BASKINS v. MACK

Filing 28

MEMORANDUM OPINION and ORDER signed by JUDGE THOMAS D. SCHROEDER on 8/28/2017, For the reasons set forth above, that the motions of Mack and Union Baptist Church to dismiss Baskins' claims (Docs. 15 , 16 ) will be GRANTED IN PART as follows : The ADEA claim against Mack in his individual capacity is DISMISSED WITHOUT PREJUDICE; and the remaining claims of the amended complaint will be DISMISSED WITHOUT PREJUDICE in twenty-one days unless Baskins (1) files a copy of his EEOC char ge and/or an amended complaint alleging sufficient facts to demonstrate that he has exhausted his administrative remedies under the ADEA in regard to a named Defendant, and/or (2) alleges sufficient facts to give rise to a colorable claim under the Equal Pay Act. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EUGENE BASKINS,
Plaintiff,
V.
SIR WALTER MACK (Union Baptist
Church),
Defendant.

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1:16cv1420

MEMORANDUM OPINION & ORDER
THOMAS D. SCHROEDER, District Judge.
This employment discrimination case is before the court on
the motions of Sir Walter Mack, Jr., 1 and Union Baptist Church to
dismiss the complaint, as amended, on various grounds.
16.)

(Docs. 15,

Plaintiff Eugene Baskins, proceeding pro se and in forma

pauperis, has responded (Doc. 24), and Mack and Union Baptist
Church have filed replies (Docs. 25, 26.)

For the reasons set

forth below, Baskins’ claim for age discrimination against Mack in
his individual capacity will be dismissed for lack of subject
matter jurisdiction.
court’s
claims.

subject

There remains a serious question as to the

Because

matter
the

jurisdiction
deficiencies

over
are

Baskins’
subject

to

remaining
possible

correction and to avoid the potential of piecemeal rulings, Baskins
shall have twenty-one days within which to file either an amended

1

Mack refers to himself as “Dr. Sir Walter Mack, Jr.” in his filings.
(Docs. 15, 17, 25.)

complaint or the appropriate documentation to support the court’s
jurisdiction, or the amended complaint will be dismissed without
prejudice.

In the meantime, the court defers ruling on other

grounds for dismissal raised.
I.

BACKGROUND
On December 19, 2016, Baskins filed a complaint using the

court’s pro se form for a civil rights complaint.

(Doc. 2.)

He

sued “Sir Walter Mack (Union Baptist Church)” in his or its
individual and official capacities, alleging he was fired “based
on age discrimination” and “on refusing to increase a key employee
benefits” because he was “part-time.”

(Doc. 2 at 4.)

Baskins

attached a copy of a U.S. Equal Employment Opportunity Commission
(“EEOC”)

right-to-sue

addressed to him.

letter,

dated

(Id. at 7.)

September

30,

2016,

and

The letter stated that the EEOC

closed its file on EEOC charge no. 435-2015-00352 because “the
EEOC

is

unable

to

conclude

that

the

establishes violations of the statutes.”

information
(Id.)

obtained

However, the

letter does not reference any of the relevant laws, conduct at
issue, or any other information regarding the underlying charge. 2
Apart from attaching the right-to-sue letter to his complaint,
Baskins made no reference to the EEOC charge.

2 The letter does indicate that “Eric Ellison” of “The Ellison Law Firm”
received a copy of the letter. However, none of the parties Baskins
names in his caption as Defendants is directly referenced or has admitted
receiving notice of the letter.

2

Baskins filed an amended complaint on March 15, 2017, naming
Mack, Carles Boyd, and Monica Covington as Defendants in the
caption, but naming only Mack in the body of the form complaint.
(Doc. 5.)

In his amended complaint, Baskins made no reference to

the EEOC charge and failed to state against whom the charge was
brought.

Because Baskins proceeds as a pauper, the Magistrate

Judge reviewed the complaint and authorized its filing as to “Sir
Walter Mack (Union Baptist Church)” only, even though the court
observed that “[a] substantial question remains about the legal
sufficiency of the factual matter” alleged in it.

Summons was

issued on March 16, 2017, as to “Sir Walter Mack (Union Baptist
Church)” (Doc. 8) and served that same date (Doc. 11). 3

This court

adopted the Magistrate Judge’s Recommendation to dismiss Boyd and
Covington as Defendants.

(Doc. 14.)

The amended complaint, viewed in the light most favorable to
Baskins, alleges that he worked as a custodian for Union Baptist
Church from June 2011 until he was terminated on March 13, 2014.4
Three days into his work he was told he would be paid $8.75 an
hour, but “three months in the job” the “financial department”

3

The return of service shows that Monica Covington accepted process on
behalf of Mack. (Doc. 11).
There is no challenge to service in the
present motions.

4

Baskins’ filings differ as to the date of termination. In his original
complaint, Baskins listed his termination date as March 13, 2015. (Doc.
2 at 4.)
In his amended complaint, he alleges he was terminated on
March 13, 2014. (Doc. 5 at 3.) In his reply, however, he states he was
terminated on March 13, 2015. (Doc. 24 at 2.)

3

informed him that he would earn $7.25 an hour.
This was confirmed in July 2011.

(Id.)

(Doc. 5 at 2.)

Baskins refused to sign

any documentation in July 2011 that confirmed his salary.
According

to

Baskins,

he

had

more

(Id.)

experience

and

qualifications than church employees Roger Martin (who was paid
$10 an hour) and Jay Collins, but was paid less.
alleges

that

there

“was

a

lot

of

(Id.)

intimidation,

environment, and harassment in the workplace.

He also

hostile

work

The discrimination

that they inflicted was from Ms. Monica Covington, Mr. Carles Boyd
and Sir Walter Mack.”

(Id.)

On March 13, 2014, church officials gave Baskins “some papers
to read saying that [he] would work according to what they wrote.”
(Id. at 3.)

Baskins did not agree with the papers and refused to

sign a letter that was part of the papers.

(Id.)

Carles told

Baskins that if he didn’t sign the letter he would be fired.

(Id.)

Baskins took his paycheck and, as he proceeded to leave, was
terminated.

(Id.)

Baskins alleges he is over 40 years of age and had over 40
years of experience.

(Id. at 4.)

He also alleges, “Yes they

judged me by my age and less pay and comment on my age.”

(Id.;

Doc. 2 at 4 (“This case deals with an employee firing another
employee based on age discrimination.”).)
provide

a

legal

or

jurisdictional

basis

While Baskins failed to
for

his

claims,

his

complaint may be liberally construed to allege a claim under the
4

Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(“ADEA”), and wrongful discharge in violation of North Carolina
public policy, N.C. Gen. Stat. §§ 143.422.1 to 143.422.3.
Defendant Mack moves to dismiss the amended complaint on four
grounds: (1) there is no individual liability under the ADEA or
public policy exception for wrongful discharge under State law;
(2) the amended complaint fails to state a claim upon which relief
can be granted and should be dismissed under Federal Rule of Civil
Procedure 12(b)(6); (3) Baskins’ claims are time-barred; and (4)
this court lacks subject matter jurisdiction over the claims.
(Doc.

19.)

Union

Baptist

Church,

to

the

extent

the

amended

complaint is construed to name it as a Defendant, moves to dismiss
on similar grounds: (1) failure to state a claim; (2) failure to
name a proper Defendant; (3) statute of limitations; and (4) lack
of subject matter jurisdiction.

(Doc. 20.)

Baskins has filed a

three-page handwritten response; it does not address any of the
arguments raised by Defendants but makes a reference to having
“filed a (EPA) Equal Pay Act back pay” claim.

(Doc. 24 at 3.)

Mack and Union Baptist Church reply that Baskins should not be
permitted
complaint.
II.

to

raise

new

facts

and

claims

not

alleged

in

his

(Docs. 25, 26.)

ANALYSIS
A court must consider its subject matter jurisdiction as a

“threshold matter” prior to addressing the merits of the case.
5

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95
(1998); Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474, 480 (4th Cir. 2005).

“The plaintiff has the burden

of proving that subject matter jurisdiction exists.”

Evans v.

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647
(4th Cir. 1999) (citing Richmond, Fredericksburg & Potomac R. Co.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).

“When a

defendant challenges subject matter jurisdiction pursuant to Rule
12(b)(1), ‘the district court is to regard the pleadings as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary
judgment.’”

Id. (quoting Richmond, Fredericksburg & Potomac R.

Co., 945 F.2d at 768).

“The district court should grant the Rule

12(b)(1) motion to dismiss ‘only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail

as

a

matter

of

law.’”

Id.

(quoting

Richmond,

Fredericksburg & Potomac R. Co., 945 F.2d at 768).
“When reviewing a pro se complaint, federal courts should
examine carefully the plaintiff’s factual allegations, no matter
how inartfully pleaded, to determine whether they could provide a
basis for relief.

In addition, in order to determine whether the

claim of a pro se plaintiff can withstand a motion to dismiss, it
is

appropriate

allegations

to

made

look
in

beyond

any

the

additional
6

face

of

the

materials

complaint
filed

by

to
the

plaintiff.”

Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258 (4th

Cir. 1997) (per curiam) (citations omitted).

However, the liberal

construction of a pro se plaintiff’s pleading does not require the
court to ignore clear defects in pleading, Bustos v. Chamberlain,
No. 3:09–1760–HMH–JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27,
2009), or to “conjure up questions never squarely presented in the
complaint,” Brice v. Jenkins, 489 F. Supp. 2d 538, 541 (E.D. Va.
2007) (internal quotation marks and citation omitted).

Nor does

it require that the court become an advocate for the unrepresented
party.

Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th

Cir. 1990).
Mack and Union Baptist Church move to dismiss the amended
complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) because Baskins failed to
cite a jurisdictional basis for his age discrimination claims.
(Doc.

19

at

15-16;

Doc.

20

at

12-13.)

Federal

question

jurisdiction exists where an action arises under the Constitution,
laws, or treaties of the United States.

28 U.S.C. § 1331.

Under

the “well-pleaded complaint rule,” a federal court may exercise
federal jurisdiction “only when a federal question is presented on
the

face

of

the

plaintiff's

properly

pleaded

complaint.”

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

The

failure

not

to

controlling.

reference

a

federal

law

in

the

complaint

is

Club Comanche, Inc. v. Gov't of Virgin Islands, 278
7

F.3d 250, 259 (3d Cir. 2002) (citing N. Am. Phillips Corp. v. Emery
Air Freight Corp., 579 F.2d 229, 233 (2d Cir. 1978))); Davoodi v.
Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014)
(holding that the attachment to the complaint of an EEOC charge
alleging a federal claim gave rise to federal question jurisdiction
(citing Fed. R. Civ. P. 10(c))).

However, the plaintiff must set

forth sufficient allegations to give rise to a federal right. Club
Comanche, 278 F.3d at 259.

To determine whether a plaintiff

alleged a federal claim under such circumstances, courts will “look
to the pleading requirements established in the statutes from which
the causes of action arise, or in courts' interpretations of the
pleading requirements of those statutes.” Id.
In his amended complaint, Baskins failed to complete Section
I of the form complaint regarding the court’s jurisdiction over
his claim (Doc. 5 at 1) or state any jurisdictional basis for his
claims in any of his other pleadings.

(Docs. 1, 2, 3, 24.) 5

While

the attachment of an EEOC charge that alleges a federal claim can
give rise to federal question jurisdiction, Davoodi, 755 F.3d at
310, Baskins did not attach the contents of the EEOC charge to his

5

Baskins also did not complete Section II regarding the basis for
jurisdiction in his original form civil rights complaint. (Doc. 2 at
2-3). He did specify in the civil cover sheet that he was bringing his
claim under federal question jurisdiction, but he failed to state a cause
of action or cite a statute under which he was bringing the claim. (Doc.
3 at 1.)

8

complaint but instead provided only a right-to-sue letter that
contained no information about the charge’s underlying claims.
Though Baskins failed to cite the jurisdictional basis for
his claim, he did plead sufficient facts to establish the nature
of his federal claim under the ADEA.

The ADEA prohibits age

discrimination against people who are at least 40 years old.
U.S.C. § 631(a).

29

Private employers that employ twenty or more

employees are covered under the statute.

Id. § 630(b).

In the

absence of direct evidence of discrimination, a claim of age
discrimination in a discharge case under the ADEA is demonstrated
where a plaintiff is (1) a member of the protected class, (2)
qualified for the position and meeting the employer’s legitimate
expectations,
performance,

(3)

terminated

and

(4)

despite

replaced

by

his

someone

qualifications outside the protected class.
F.3d 795, 802 (4th Cir. 1998).

qualifications
with

and

comparable

Causey v. Balog, 162

In his amended complaint, Baskins

specifically pleads facts to establish that he was a member of the
protected

class

(Doc.

5,

at

4

(“I

was

over

40

years

of

age . . . .”).) and that Union Baptist Church was subject to
enforcement under the ADEA.
more employees.”).)

(Id. (“Union Baptist Church has 20 or

Additionally, he alleges facts to support an

inference that he was qualified for the position and met his
employer’s expectations.

(Id.)

He also claims that his case is

“based on age discrimination” (Doc. 2 at 4) and that “they judged
9

me by my age and less pay and comment on my age” (Doc. 5 at 4.)
Therefore, in light of the deference afforded pro se plaintiffs,
the court finds that Baskins’ failure to cite the jurisdictional
basis for his claim does not deprive the court of federal subject
matter jurisdiction.

See Club Comanche, 278 F.3d at 259; Gordon

v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (“The Fourth Circuit
takes the position that its district courts must be especially
solicitous of civil rights plaintiffs.”).
In addition, Mack argues that any ADEA claim against him
should be dismissed because that act does not create individual
liability.

In Baskins’ original complaint, he stated that he was

bringing a claim against Mack in both his individual and official
capacity.

(Doc. 2 at 2.)

To the extent Baskins seeks to bring a

claim against Mack in his individual capacity, the court lacks
subject matter jurisdiction over it and the claim will therefore
be dismissed.

Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180–

81 (4th Cir. 1998); Birbeck v. Marvel Lighting Corp., 30 F.3d 507,
510-11 (4th Cir. 1994); Thomas v. Duke Univ., No. 3:11-CV-00387W, 2012 WL 4753299, at *3 (W.D.N.C. Oct. 4, 2012) (“Under wellsettled precedent, this Court lacks subject matter jurisdiction
over [defendants] in their individual capacities because Title VII
and ADEA claims do not permit individual liability for employment
discrimination.”).
Next, Mack and Union Creek Baptist Church argue that the court
10

lacks

subject

matter

jurisdiction

because

Baskins

failed

to

demonstrate that he exhausted his administrative remedies prior to
bringing his claim under the ADEA (Doc. 19 at 14-15; Doc. 20 at
11-12).

Baskins has not responded to this contention.

Prior to filing a federal lawsuit under the ADEA, a plaintiff
must file a charge of discrimination with the EEOC.

29 U.S.C.

§ 626(d)(1); Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th
Cir. 2009).

The contents of the charge will determine “the scope

of the plaintiff's right to file a federal lawsuit.”
F.3d at 300.

Jones, 551

Subject to limited exceptions, a civil action may

only be brought against a prospective defendant named in the
charge.

29 U.S.C. § 626(e); Causey, 162 F.3d at 800. 6

Similarly,

a plaintiff may bring “[o]nly those discrimination claims stated
in the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the
original complaint.”

Jones, 551 F.3d at 300 (quoting Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)).
“[A] failure by the plaintiff to exhaust administrative remedies

6

Courts have recognized an exception to the naming requirement where
the defendant has a substantially similar identity to the named party
in the EEOC charge. Keener v. Universal Companies, Inc., 128 F. Supp.
3d 902, 915–16 (M.D.N.C. 2015) (applying the substantial identity
exception to hold that the plaintiff’s failure to name all relevant
defendants in her EEOC charge did not deprive the court of subject matter
jurisdiction); see Causey, 162 F.3d at 800 n.1 (assuming without deciding
that a defendant not named in the EEOC charge could be sued in his
representative capacity).

11

concerning [an ADEA] claim deprives the federal courts of subject
matter jurisdiction over the claim.”

Brandford v. Shannon–Baum

Signs, Inc., 519 Fed. App’x 817 (4th Cir. 2013) (quoting Jones,
551 F.3d at 300). 7

The Fourth Circuit has recognized that “a

plaintiff fails to exhaust his administrative remedies where . . .
his

administrative

actors,

and

charges

discriminatory

reference
conduct

allegations in his formal suit.”

different

than

the

time

frames,

central

factual

Chacko v. Patuxent Inst., 429

F.3d 505, 506 (4th Cir. 2005).
Mack and Union Baptist Church argue that this court lacks the
requisite information to determine whether it has subject matter
jurisdiction over Baskins’ purported ADEA claims because he has
failed to attach a copy of the EEOC charge or allege in the
complaint against whom the charge was filed. (Doc. 19 at 14-15;
Doc. 20 at 11-12.) The court finds that, even liberally construing
Baskins’ pro se complaint and accepting its allegations as true,
Baskins has failed to allege sufficient facts that he has exhausted
his administrative remedies as to either Defendant or claim under
the ADEA.

Brooks v. Coble Settlement, No. 1:14CV280, 2015 WL

862546, at *5 (M.D.N.C. Feb. 27, 2015)(“Since Plaintiff did not
include a copy of an EEOC charge as against all or any of the

7 The Fourth Circuit ordinarily does not accord precedential value to
its unpublished decisions, which “are entitled only to the weight they
generate by the persuasiveness of their reasoning.”
Collins v. Pond
Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (citation omitted).

12

present Defendants, this Court cannot determine which, if any, of
her claims she may have exhausted.”); Jackson-Brown v. Tech. &
Project Eng'g Servs., LLC, No. 1:14-CV-01297-GBL, 2014 WL 7272887,
at *9 (E.D. Va. Dec. 17, 2014).

But see Barkhorn v. Ports Am.

Chesapeake, LLC, No. CIV. JKB-10-750, 2011 WL 4479694, at *3 (D.
Md. Sept. 26, 2011) (“It is at least somewhat disingenuous for
[the defendant] to claim this Court lacks jurisdiction because of
a pleading technicality when, in fact, its counsel has been in
possession of the very document at issue.”).
Apart from attaching a copy of the EEOC right-to-sue letter,
Baskins’ pleadings make no mention of the contents of his EEOC
charge or name the persons against whom the charge was brought.
While the right-to-sue letter indicates that “Eric Ellison” of
“The Ellison Law Firm” was copied on the letter, it is unclear
what relationship, if any, this party has to the Defendants.

The

court therefore finds that the complaint, as amended, is subject
to dismissal because Baskins has failed to allege facts sufficient
to determine whether this court has subject matter jurisdiction
over his ADEA claim.
Finally, Baskins’ response to the motions to dismiss makes an
oblique reference to the Equal Pay Act.

(Doc. 24 at 3.)

A claim

invoking federal question jurisdiction “may be dismissed for want
of subject-matter jurisdiction if it is not colorable, i.e., if it
is

‘immaterial

and

made

solely
13

for

the

purpose

of

obtaining

jurisdiction’

or

is

‘wholly

insubstantial

and

frivolous.’”

Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (quoting Bell v.
Hood, 327 U.S. 678, 682–83 (1946)); Crosby v. City of Gastonia,
635 F.3d 634, 643 (4th Cir. 2011) (noting that a federal claim may
be “so ‘plainly insubstantial’ or ‘entirely frivolous’ as to be
manifestly

outside

federal

jurisdiction”

(quoting

Lovern

v.

Edwards, 190 F.3d 648, 656 (4th Cir. 1999))); Davis v. Pak, 856
F.2d 648, 652 (4th Cir. 1988).

The Equal Pay Act, 29 U.S.C.

§ 206(d), provides a remedy for sex discrimination and provides a
cause of action where an employer has paid different wages to
employees of opposite sexes, the employees hold jobs that require
equal skill, effort, and responsibility, and the jobs are performed
under similar working conditions.

Corning Glass Works v. Brennan,

417 U.S. 188, 195 (1974); Brinkley v. Harbour Recreation Club, 180
F.3d 598, 613 (4th Cir. 1999), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003).
considers

Baskins’

response

brief

as

an

Even if the court

effort

to

amend

the

allegations of his amended complaint, he simply fails to allege
any legal or factual basis to support a claim of discrimination
based on sex.

Based on the current record, any Equal Pay Act claim

is “plainly insubstantial and entirely frivolous.” Lovern, 190
F.3d at 656.

The court finds that any potential claim under the

Equal Pay Act does not provide an adequate basis for subject matter
question jurisdiction.
14

The court therefore finds that the complaint, as amended, is
subject to dismissal for lack of subject matter jurisdiction.
Baskins will be given twenty-one days within which to file a copy
of his EEOC charge and/or an amended complaint that alleges facts
sufficient to demonstrate that a charge has been brought against
a named Defendant.

Feuerstein v. Simpson, 582 F. App'x 93, 97 n.3

(3d Cir. 2014) (“[C]ourts have consistently held that leave to
amend may be granted without a formal motion.” (citing inter alia
Straker v. Metro. Transit Auth., 333 F. Supp. 2d 91, 102 (E.D.N.Y.
2004))).

To the extent Baskins intends to raise a claim under the

Equal Pay Act, he must allege some factual basis for his claim.
Baskins is cautioned that if he fails to file the appropriate
material(s) within the proscribed period, the court will be left
with

no

other

prejudice.

alternative

but

to

dismiss

the

action

without

The court will defer ruling on any other ground for

dismissal raised by Mack and Union Baptist Church not addressed
herein.

See Steel Co., 523 U.S. at 94 (holding that a federal

court may not act under “‘hypothetical jurisdiction’ that enables
a court to resolve contested questions of law when its jurisdiction
is in doubt.”).
III. CONCLUSION
For the reasons set forth above, therefore,
IT IS ORDERED that the motions of Mack and Union Baptist
Church to dismiss Baskins’ claims (Docs. 15, 16) will be GRANTED
15

IN PART as follows:

The ADEA claim against Mack in his individual

capacity is DISMISSED WITHOUT PREJUDICE; and the remaining claims
of the amended complaint will be DISMISSED WITHOUT PREJUDICE in
twenty-one days unless Baskins (1) files a copy of his EEOC charge
and/or

an

amended

complaint

alleging

sufficient

facts

to

demonstrate that he has exhausted his administrative remedies
under the ADEA in regard to a named Defendant, and/or (2) alleges
sufficient facts to give rise to a colorable claim under the Equal
Pay Act.

/s/
Thomas D. Schroeder
United States District Judge
August 28, 2017

16