FLEMING, ET AL. V. NORFOLK SOUTHERN CORPORATION, ET AL.
ORDER signed by JUDGE LORETTA C. BIGGS on 03/31/2018 that Defendants' Motion to Dismiss, (ECF No. 7 ), is GRANTED, and the claims alleged by Plaintiff Mark W. Harris are DISMISSED WITH PREJUDICE. (Samuel-Priestley, Tina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LARRY B. FLEMING and
MARK W. HARRIS
NORFOLK SOUTHERN CORPORATION
and NORFOLK SOUTHERN RAILWAY,
Plaintiffs, Larry M. Fleming (“Mr. Fleming”) and Mark W. Harris (“Mr. Harris”),
initiated this action against Defendants, Norfolk Southern Corporation and Norfolk Southern
Railway Company, alleging retaliation in violation of 42 U.S.C. § 2000e et seq. (“Title VII”).
Before the Court is Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6).1 For the
reasons set forth below, the Court will grant Defendants’ motion.
According to the Complaint, Mr. Harris, who is Caucasian, was employed by
Defendants as a conductor from May 2011 until his termination on July 7, 2016. (ECF No. ¶
4.) Mr. Fleming, who is also Caucasian, was employed by Defendants as a brakeman from
Though Defendants, in their Motion to Dismiss, state that they “move[ ] to dismiss the Complaint,”
(ECF No. 7 at 1), Defendants’ arguments for dismissal are exclusively focused on the claims alleged
by Mr. Harris. (See generally ECF Nos. 7, 8.) Nowhere in Defendants’ motion, supporting
memorandum of law, or reply brief, (ECF Nos. 7, 8, 12), do they proffer arguments for dismissal of
claims alleged by Mr. Fleming. Accordingly, this Court will only consider the motion for dismissal of
claims alleged by Mr. Harris.
October 2006 until he was terminated on July 7, 2016. (Id. ¶ 3.) During his employment, Mr.
Fleming filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC Charge”) for race discrimination which included claims against Ben
Fennell, an African-American Division Superintendent employed by Defendants.2 (Id. at 1;
id. ¶ 17.)
On June 14, 2016, Plaintiffs, along with RJ Johnson (“Mr. Johnson”), an AfricanAmerican locomotive engineer, were working as part of a three-person crew during “a regular
freight run” on train P05P214. (Id. ¶¶ 11, 25.) Defendants claimed that a “possible violation
of [their] operating and safety rules” had been committed by the three-person crew on June
14, 2016. (Id. ¶¶ 13–14.) A formal investigation hearing was held on June 21, 2016, even
though such an investigation was “very unique.” (Id. ¶ 16.) Following the conclusion of the
investigation, Mr. Fennell ordered the termination of Mr. Harris, Mr. Fleming, and Mr.
Johnson. (Id. ¶¶ 17, 22.) The Complaint alleges that Mr. Fennell “referenced [Mr.] Fleming’s
2015 charge of discrimination when he subsequently . . . discharged the Plaintiffs.” (Id. at 2.)
Then, in December, 2016, Mr. Fennell “allowed the one African[-]American crew member[,]
Mr. RJ Johnson (now deceased)[,] to return to work while denying this same leniency to the
remaining two Caucasian crew members, namely Plaintiffs Fleming and Harris.” (Id. ¶ 25.)
On December 9, 2016, Plaintiffs Fleming and Harris each filed an EEOC Charge
claiming retaliatory discrimination against Defendants. (Id. ¶ 9.) Plaintiffs commenced the
instant lawsuit within ninety days of receiving their respective Notice of Right to Sue letters
from the EEOC. (Id. ¶ 10.) Defendants have moved to dismiss “the claims asserted by Mr.
Mr. Fleming’s EEOC Charge was filed on February 10, 2015. (ECF No. 1 at 1.)
Harris in their entirety” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(ECF No. 7 at 1.)
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
“challenges the legal sufficiency of a complaint,” Francis v. Giacomelli, 588 F.3d 186, 192 (4th
Cir. 2009); “it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, 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 complaint
may fail to state a claim upon which relief can be granted in two ways: first, by failing to state
a valid legal cause of action, i.e., a cognizable claim, see Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 452 (4th Cir. 2012); or second, by failing to allege sufficient facts to support
a legal cause of action, see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
In evaluating whether a claim is stated, “a court accepts all well-pled facts as true and construes
these facts in the light most favorable to the plaintiff,” but does not consider “legal
conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits an employer from retaliating against
an employee because he has opposed an unlawful employment practice, “or because he has
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The purpose of Title VII’s antiretaliation provision is to preserve “unfettered access to statutory remedial mechanisms” for
employees who fear reprisal. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). An employer,
therefore, violates Title VII by taking an adverse employment action against an employee
based on an employee’s exercise of his rights under Title VII. See id.
In order to state a prima facie case of retaliation under Title VII, Plaintiff must allege:
“(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link
between the protected activity and the [adverse] employment action.” Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub nom. Coleman v. Court of Appeals of Md., 566
U.S. 30 (2012). To satisfy the first element, a plaintiff may “use the protected activity of a
closely related individual.” McCowen v. Vill. of Lincoln Heights, No. 1:13cv0520 (WOB-KKL),
2014 WL 7227841, at *6 (S.D. Ohio Dec. 17, 2014) (citing Thompson v. N. Am. Stainless, LP,
562 U.S 170 (2011)), aff’d, 624 F. App’x 380 (6th Cir. 2015). Here, Mr. Harris does not allege
that he personally engaged in protected activity. Rather, relying on Thompson, Mr. Harris alleges
associational retaliation based on the protected activity of his co-worker, Mr. Fleming, who
filed an EEOC Charge against Defendants in 2015. (ECF No. 1 at 1; id. ¶¶ 26–27.)
Specifically, Mr. Harris alleges that he “was discharged because he was within the protected
zone of interest with [Mr.] Fleming” in violation of Title VII. (ECF No. 1 ¶¶ 26–27; ECF No.
11 at 7.)
Under Title VII, a “person claiming to be aggrieved” may file suit. 42 U.S.C. § 2000e5(f)(1). In Thompson, the Supreme Court recognized that an employee may pursue a Title VII
retaliation claim based on retaliation suffered in response to the protected activity of a third
party. See Thompson, 562 U.S. at 175–78. In that case, the plaintiff and his fiancée were both
employed by the same employer. Id. at 172. Three weeks after the plaintiff’s employer was
notified that the plaintiff’s fiancée filed an EEOC Charge alleging sex discrimination, the
plaintiff was terminated. Id. There, the Supreme Court held “that the term ‘aggrieved’ in Title
VII . . . enabl[es] suit by any plaintiff with an interest arguably [sought] to be protected by the
statute, . . . while excluding plaintiffs who might technically be injured in an Article III sense
but whose interests are unrelated to the statutory prohibitions in Title VII.” Id. at 178 (second
alteration in original) (internal quotation marks and citation omitted). The Court found that
the plaintiff was a “person aggrieved” within the meaning of Title VII because he was
employed by the same employer as the original EEOC claimant and causing him injury was
the employer’s intended means of harming the claimant (his fiancée). Id. Thus, the plaintiff
was within the “zone of interests” sought to be protected by Title VII. Id. Critical to the
Court’s analysis in Thompson was the nature of the relationship between that plaintiff and the
party who engaged in the protected activity. While the Supreme Court “decline[d] to identify
a fixed class of relationships for which third-party [retaliatory acts] are unlawful,” it explained
that “firing a close family member will almost always” give rise to a violation of Title VII’s
anti-retaliation provision, while “reprisal on a mere acquaintance will almost never do so.” Id.
Applying these principles to the instant action, the Court finds that Mr. Harris is not
an “aggrieved” person within the meaning of Title VII, and therefore, he is not within the
zone of interests “sought to be protected by the statutory provision.” Id. at 177–78. Here,
Mr. Harris, in his response brief, characterizes the relationship between himself and Mr.
Fleming as co-workers who were “closely affiliated.” (ECF No. 11 at 18.) Mr. Harris further
argues that he and Mr. Fleming were “members of the small crew entrusted with this freight
train, who belong to the same national union, the same local union division, [who] report to
the same manager, who were tried together by Defendant[s] in one joint hearing, and who
both received disparate discipline in retaliation for Plaintiff Fleming[‘s] protected activity.” (Id.
at 16.) Though Mr. Harris characterizes his relationship with Mr. Fleming in this manner,
such characterization does not appear in the Complaint. At this stage of the proceedings, the
Court must examine the sufficiency of the Complaint. See Giacomelli, 588 F.3d at 192. In so
doing, there are no allegations in the Complaint to show that the relationship between Mr.
Harris and Mr. Fleming was anything more than that of co-workers. The only allegation in
the Complaint with respect to the relationship between Mr. Harris and Mr. Fleming is that
they served as crew members on train P05P214. (ECF No. 1 ¶ 11.) Nothing about this
allegation—or any other allegation in the Complaint—permits the reasonable inference that,
like the plaintiff in Thompson, the relationship between Mr. Harris and Mr. Fleming was such
that Mr. Harris was terminated to hurt and/or punish Mr. Fleming. See Thompson, 562 U.S. at
178 (concluding that “[h]urting [the plaintiff] was the unlawful act by which the employer
punished [his fiancée]”). See Mackall v. Colvin, No. ELH-12-1153, 2015 WL 412922, at *24 (D.
Md. Jan. 29, 2015) (explaining that the plaintiff’s associational retaliation claim fails, in part,
because the plaintiff “does not allege any facts to establish that she and [a third-party who
engaged in protected activity] were anything more than ‘mere acquaintances’ or co-workers”
of the same race and who shared “the same chain of supervisors”); Gibbs v. Norfolk So. Ry. Co.,
No. 3:14-cv-587-DJH, 2015 WL 4273208, at *5 (W.D. Ky. July 14, 2015) (noting that, with
respect to plaintiffs’ associational retaliation claim, plaintiffs “offer no facts to suggest that the
relationship between them was such that [defendant] would have sought to punish one by
firing the other”). Nor are there any allegations from which the Court can reasonably infer
that, like in Thompson, Mr. Harris’ termination would dissuade a co-worker from engaging in
protected activity. See Thompson, 562 U.S. at 174 (“We think it obvious that a reasonable worker
might be dissuaded from engaging in protected activity if she knew that her fiance [sic] would
Thus, accepting Mr. Harris’ well-pled factual allegations as true and drawing all
reasonable inferences in his favor, the Court concludes that Mr. Harris has failed to state a
cognizable claim of associational retaliation under Title VII. The Court will, therefore, grant
Defendants’ motion, and the claims alleged by Mr. Harris in the Complaint will be dismissed
For the reasons stated herein, the Court enters the following:
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss, (ECF No. 7),
is GRANTED, and the claims alleged by Plaintiff Mark W. Harris are DISMISSED WITH
This, the 31st day of March, 2018.
/s/ Loretta C. Biggs
United States District Judge
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