BENJAMIN v. VAUGHAN et al

Filing 22

MEMORANDUM ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 12/30/2016, that Benjamin's motion to amend (Doc. 20 ) will be GRANTED, Defendants' motions to dismiss (Docs. 7 , 16 ) will be GRANTED, Plaintiff's Title VII and ADA claims will be DISMISSED with prejudice, and Plaintiff's FMLA claim will be DISMISSED without prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHRISTOPHER BENJAMIN,
Plaintiff,
v.
NANCY VAUGHAN, et al.
Defendants.

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1:16CV136

MEMORANDUM ORDER
THOMAS D. SCHROEDER, District Judge.
This is an action for employment discrimination by Plaintiff
Christopher Benjamin, proceeding pro se, based on his African
American

descent,

Jewish

faith,

and

alleged

disability.

Benjamin’s complaint names seven defendants: Nancy Vaughan, Mayor
of

the

City

of

Greensboro

(the

“City”);

Zack

Matheny,

City

Councilman; Jim Westmoreland, City Manager; Wade Walcutt, City
Parks and Recreation Superintendent; Kim Porter, City Recreation
Center Supervisor; Corey Povar, City Recreation Center Supervisor;
and Amanda Krysiak, an employee of PMA Management, Inc.
at 1.)

(Doc. 2

Before the court are motions to dismiss by Defendants

Vaughan, Matheny, Westmoreland, Walcutt, Povar, Porter (Doc. 7)
and Krysiak (Doc. 16).

Benjamin has filed a response (Doc. 19)

and a motion to amend both his complaint and response brief to
correct misspellings and a few dates (Doc. 20).
ready for decision.

The motions are

For the reasons set forth below, the motions

will be granted, and this action will be dismissed.
I.

BACKGROUND
The complaint, viewed in the light most favorable to Benjamin,

as the nonmoving party, alleges the following:
Benjamin is African American and Jewish.
was employed as a custodian with the City.

(Doc. 2 at 1.)
(Id.)

While moving

heavy chairs on January 15, 2014, he sprained his left wrist.
at 1-2.)

He

(Id.

This injury prevented him from performing his typical

duties as a custodian.

(Id.)

Shortly after the injury, Benjamin

requested light work duty, but his supervisor informed him that
there was no light work duty available.

(Id. at 2.)

Benjamin was

offered light duty work on February 5, 2014, which he accepted.
(Id.)

However, the light duty work ceased to be available shortly

thereafter.

(Id.)

Benjamin was again offered light duty assignments in March
17, 2014, but was told that he needed to be medically cleared in
order to accept the work.

(Id. at 2-3.)

He consulted a physician

on March 18, 2014, but while leaving the medical facility, suffered
injuries in a traffic incident that caused permanent partial
disability to his neck, back, shoulders, right wrist, knees, and
feet.

(Id. at 3.)

Benjamin exhausted his paid leave time and was

subsequently terminated.

(Id.)

Benjamin filed suit on February 23, 2016.

(Id. at 1.)

His

complaint is a four and one-half-page, stream of consciousness
2

run-on single paragraph, and his brief is no easier to decipher.
Construed liberally, they appear to contend that his termination
was the result of racial animus, religious discrimination, and
discrimination on the basis of a disability.

(Id. at 3-5.)

Benjamin alleges that Defendants violated his rights under Title
VII, 42 U.S.C. § 2000e et seq., the Americans with Disabilities
Act Amendments Act (“ADAAA”), 42 U.S.C. § 12101 et seq., and the
Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., when
Defendants failed to allow him to work light duty, forcing him to
use his FMLA leave.1
was terminated.

Once that leave was exhausted, he claims, he

He also appears to allege retaliation under Title

VII, claiming that he was fired because he lodged a complaint
against Matheny, who allegedly harassed him while he attempted to
cast his ballot in the November 2013 election.

(Doc. 21 at 3.)

Finally, Benjamin alleges that Krysiak conspired with certain
Defendants
benefits.

to

deny

his

application

for

workers’

compensation

Benjamin seeks back pay ($317 per week from January 31,

2014), as well as $300,000 each from the City and PMA Management,
Inc., neither of whom is named as a party.

(Doc. 2 at 1, 4-5.)

Vaughan, Matheny, Westmoreland, Walcutt, Porter, and Povar
move to dismiss for failure to state a claim pursuant to Federal
1

Benjamin’s complaint also alleges violations of 18 U.S.C. § 241, 246
and 29 C.F.R. § 1630.2(i)(1)(i). None of these provides a private right
of action. Brown v. Winman, No. 5:15-CV-59-BO, 2015 WL 5837471, at *1
(E.D.N.C. Oct. 6, 2015); Dugar v. Coughlin, 613 F. Supp. 849 (S.D.N.Y.
1985).

3

Rule of Civil Procedure 12(b)(6).

(Doc. 7 at 1.)

Krystiak moves

to dismiss pursuant to Rule 12(b)(6) as well as Rule 12(b)(1).
(Doc. 16 at 1.)
II.

ANALYSIS
Under Federal Rule of Civil Procedure 12(b)(6), “a complaint

must contain sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

A claim is plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A

12(b)(6) motion to dismiss “challenges the legal sufficiency of a
complaint considered with the assumption that the facts alleged
are true.”

Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.

2009) (citations omitted).
This standard applies to pro se plaintiffs.

Adams v. Sw. Va.

Reg’l Jail Auth., 524 F. App’x 899, 900 (4th Cir. 2013).2

Thus,

“[w]hile a pro se litigant’s pleadings are liberally construed,
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), a pro se

2

Unpublished opinions of the Fourth Circuit are not precedential. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(recognizing that “we ordinarily do not accord precedential value to our
unpublished decisions” and that such decisions “are entitled only to the
weight they generate by the persuasiveness of their reasoning” (citation
omitted)).

4

complaint must still contain sufficient facts ‘to raise a right to
relief above the speculative level’ and ‘state a claim to relief
that is plausible on its face.’”

Adams, 524 F. App’x at 900

(quoting Twombly, 550 U.S. at 555).

This liberal construction

does not permit the court to become an advocate for a pro se
litigant or to rewrite his complaint.

Laber v. Harvey, 438 F.3d

404, 413 n.3 (4th Cir. 2006); Gordon, 574 F.2d at 1152–53.
A.

Title VII and ADA Claims

Defendants argue that Benjamin’s claims under Title VII and
the ADAAA are time-barred.

(Doc. 8 at 2-3.)

Defendants do not

contest that Benjamin filed a charge with the Equal Employment
Opportunity Commission and received a right to sue letter.

(Id.)

But they argue that he failed to file his lawsuit within ninety
days of receiving the letter on October 13, 2015. See 42 USC
§ 2000e-5(f)(1)(2016).

Defendants are correct, as Benjamin filed

his lawsuit on February 23, 2016, more than ninety days after he
received the letter.

(Doc. 21 at 1.)

Benjamin argues that the limitation period should be tolled
on religious holidays and weekends occurring in between his receipt
of the letter and when he filed his complaint.

(Id. at 1-3.)

He

cites no authority for this proposition other than the First
Amendment to the United States Constitution.
is clearly without merit.

(Id.)

This argument

Benjamin’s employment discrimination

claims will therefore be dismissed as untimely. Mann v. Std. Motor
5

Prods., 532 F. App'x 417, 418 (4th Cir. 2013) (“A claimant who
fails to file a complaint within the ninety-day statutory time
period mandated by Title VII generally forfeits his right to pursue
his claims.”) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466
U.S. 147, 149-51 (1984)).3
B.

Claims against Krysiak

Krysiak moves to dismiss any claim Benjamin may be attempting
to assert that she participated in some kind of conspiracy to deny
him workers’ compensation benefits to which he was entitled. (Doc.
2 at 4; Doc. 21 at 2-4.)4
Benjamin’s complaint fails to plead sufficient facts to allow
the court to draw a reasonable inference that Krysiak is liable
for conspiring to deny Benjamin the workers’ compensation benefits
to which he alleges he was entitled.

The complaint alleges only

that “Amanda Krysiak . . . entered into the conspiracy of aiding
and abetting her co-conspirators by denying two of the plaintiff’s
workers compensation claims . . . because it was of a benefit to
PMA Management.” (Doc. 2 at 4.)

In his response brief, Benjamin

barely expands upon these allegations, stating “Krysiak, aided and

3

This also precludes Benjamin’s ill-defined race or religion claim based
on alleged retaliation by City Councilman Matheny, who allegedly
interfered with Benjamin’s effort to vote on November 5, 2013. (Doc. 2
at 3-4.)
4

To the extent Benjamin seeks to include Krysiak and/or PMA Management,
Inc. in his generalized allegations of “Defendants,” such shotgun
pleading, without further factual support, fails to satisfy the pleading
requirements of Rule 12(b)(6).

6

abetted

her

compensable

co-conspirators
worker

by

denying

compensation

two

claims

separate

filed

by

and
the

plaintiff . . . which was the wheels for the conspiracy to work.”
(Doc. 21 at 3.)
To prove a civil conspiracy, Benjamin would have to show (1)
an agreement between two or more persons to commit a wrongful act;
(2) an overt act in furtherance of the agreement; and (3) damage
to the plaintiff as a result of the wrongful act.

Suntrust Mortg.

Inc. v. Busby, 651 F. Supp. 2d 472, 488 (W.D.N.C. 2009); Pleasant
Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 656-58, 464
S.E.2d 47, 54 (1995).

Furthermore, “[b]ecause liability attaches

as a result of the wrongful act committed, not the agreement
itself, the existence of an underlying tortious act is the key to
establishing a civil conspiracy.”

Eli Research, Inc. v. United

Commc’ns Grp., LLC, 312 F. Supp. 2d 748, 763 (M.D.N.C. 2004).
Benjamin has simply failed to plead any such facts.

His

complaint merely asserts, in no more than conclusory fashion, that
Krysiak

–

an

apparent

employee

of

a

third

party

benefits

administrator - engaged in a conspiracy to deny Benjamin two
separate workers’ compensation payments.
assertions based solely on speculation.

These are fact-bare

This claim will therefore

be dismissed.
C.

FMLA Claim

Benjamin’s

complaint

also
7

alleges

that

his

employers

“forc[ed] him to apply for FMLA and personal leave time” instead
of offering him light work duty.

(Doc. 2 at 3.)

Benjamin repeats

this claim in his brief in opposition to Defendants’ motions to
dismiss.

(Doc. 21 at 3-4.)

The FMLA entitles eligible employees to take twelve weeks of
leave

during

any

twelve-month

period

for

a

“serious

health

condition that makes the employee unable to perform the functions”
of his job.

29 U.S.C. § 2612(a)(1)(D).

Following this leave

period, an employee has the right to reinstatement to his or her
original position or an equivalent post.

Id. § 2614(a)(1).

It is

unlawful under the FMLA for an employer to interfere with an
employee's exercise of or the attempt to exercise any right under
the statute.

Id. § 2615(a)(1).

It is also unlawful for any

employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this
subchapter.

Id. § 2615(a)(2).

Benjamin does not allege that he was discharged for opposing
any practice made unlawful by the statute. Dotson v. Pfizer, Inc.,
558 F.3d 284, 294 (4th Cir. 2009).

Rather, he appears to be

alleging an interference claim – that his superiors interfered
with his rights under the FMLA.

Vannoy v. Fed. Reserve Bank of

Richmond, 827 F.3d 296, 301 (4th Cir. 2016).

“An employee may not

be required to take more FMLA leave than necessary to resolve the
circumstance that precipitated the need for leave.”
8

29 C.F.R.

§ 825.311(c).

To prevail on an interference claim, an employee

must prove (1) he was entitled to an FMLA benefit; (2) his employer
“interfered with the provision of that benefit”; and (3) “that
interference caused harm” or prejudice.

Adams v. Anne Arundel

Cnty. Pub. Schs., No. 14–1608, 2015 WL 3651735, at *3 (4th Cir.
June 15, 2015).
Here, Benjamin’s reference to the FMLA is vague.

He makes no

allegation of any denial of FMLA leave, or of any difficulty in
resolving his rights under the FMLA.

Nor does he allege he was

required to take more FMLA than medically necessary.

Rather, he

merely alleges that he was forced to use FMLA leave time because
his superiors failed to offer him light work duty.
Doc. 21 at 3-4.)5

(Doc. 2 at 3;

On the face of the complaint, this allegation

indicates that Benjamin considered himself still too injured to
perform

his

ordinary

work

and

thus

in

Consequently, this claim will be dismissed.6

need

of

FMLA

leave.

Because the claim is

5

This contention contradicts Benjamin’s recitation of the facts, where
he confirms that he was given light work duty on February 5, 2014, with
the option of refusing it to use his leave or sick time if he so chose.
(Doc. 2 at 2.) Benjamin accepted the work but was unable to complete
this work because of his subsequent injuries. (Id.) Benjamin was again
offered light work duty on March 17, 2014, but was told that he needed
to pass a fitness evaluation before accepting it. (Id. at 3.) Upon
leaving the medical facility, Benjamin was injured in a car accident,
preventing him from accepting the light work assignment. (Id.)
6

The court need not decide, therefore, whether any conceivable FMLA
claim is cognizable against the individual Defendants.
See Jones v.
Sternheimer, 387 F. App'x 366, 368 (4th Cir. 2010) (“[W]hether the FMLA
imposes liability on employee supervisors in their individual capacities
is an open question in this circuit, as we have expressly declined to
decide this issue when it has arisen before us.”); Caire v. Conifer Value

9

ill-stated, the court will dismiss it without prejudice.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Benjamin’s motion to amend (Doc.
20) will be GRANTED, Defendants’ motions to dismiss (Docs. 7, 16)
will be GRANTED, Plaintiff’s Title VII and ADA claims will be
DISMISSED with prejudice, and Plaintiff’s FMLA claim will be
DISMISSED without prejudice.

/s/
Thomas D. Schroeder
United States District Judge
December 30, 2016

Based Care, LLC, 982 F. Supp. 2d 582, 597 n. 11 (D. Md. 2013) (comparing
Sandowski v. U.S. Postal Serv., 643 F. Supp. 2d 749, 752–57 (D. Md. 2009)
with Reed v. Md. Dep’t of Human Resources, No. ELH-12-0472, 2013 WL
489985, at *7–14 (D. Md. Feb. 7, 2013).

10