LINDSAY v. EAST PENN MANUFACTURING CO. INC.
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 03/18/2019, that Defendant's Motion to Dismiss, (Doc. 12 ), is DENIED WITHOUT PREJUDICE. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BOBBY W. LINDSAY,
Plaintiff,
v.
EAST PENN MANUFACTURING CO.
INC.,
Defendant.
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1:18CV406
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Bobby W. Lindsay brings claims for employment
discrimination and retaliation against his former employer,
Defendant East Penn Manufacturing Co. Inc. (Complaint (Doc. 7).)
Defendant has moved to dismiss these claims pursuant to Fed. R.
Civ. P. 12(b)(6). (Doc. 12.) For the reasons that follow, this
court finds that Defendant’s motion should be denied.
I.
FACTUAL & PROCEDURAL BACKGROUND
In reviewing a motion to dismiss, this court “must accept
as true all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff was employed by Defendant from 2008 until 2016.
(Complaint (“Compl.”) (Doc. 7) ¶ 3.) In approximately 2014,
Plaintiff applied for an internal promotion to lead man and did
not receive the position. (Id. ¶ 12.) Instead, Defendant
allegedly hired a less-qualified white employee from outside the
company. (Id.) Plaintiff alleges that, when he brought this to
the attention of management, “he was informed by East Penn
management that the company had a policy of not promoting black
employees.” (Id. ¶ 13.)
Plaintiff further alleges that, on multiple occasions, he
was the recipient of racial slurs and demeaning comments from
several specific co-workers, including being called a “black
mother fucker” in August 2016. (Id. ¶¶ 4–5.) Plaintiff further
alleges that certain white co-workers spat on black co-workers
on multiple occasions. (Id. ¶ 6.) Plaintiff complained about
these incidents to management in late August 2016, who allegedly
took no meaningful action and blamed Plaintiff for bringing the
treatment on himself. (Id. ¶¶ 7–8.)
After the complaint about disparaging racial comments in
late August 2016, Defendant allegedly disciplined Plaintiff for
using foul language on September 2, 2016 and then terminated
Plaintiff for insubordinate conduct on October 4, 2016. (Id.
¶¶ 9–10.) Plaintiff filed his Complaint in this matter in
Forsyth County Superior Court on April 9, 2018, (Doc. 4-1), and
Defendant then removed the matter to this court as a federalquestion case. (See Doc. 4.) Plaintiff brings claims for a
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hostile work environment, discriminatory failure to promote, and
retaliation pursuant to 42 U.S.C. § 1981, and for violation of a
state public policy. (Compl. (Doc. 7) ¶¶ 14–23.) Defendant has
moved to dismiss pursuant to Rule 12(b)(6), (Doc. 12), and
submitted a memorandum in support of its motion, (Def.’s Mem. in
Supp. of Mot. to Dismiss (“Def.’s Mem.”) (Doc. 13).) Plaintiff
has responded, (Doc. 15), and Defendant has replied, (Doc. 16.)
II.
STANDARD OF REVIEW
“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)). In other words, the plaintiff must
plead facts that “allow[] the court to draw the reasonable
inference that the defendant is liable” and must demonstrate
“more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
When ruling on a motion to dismiss, this court must accept
the complaint’s factual allegations as true. Iqbal, 556 U.S. at
678. Further, “the complaint, including all reasonable
inferences therefrom, [is] liberally construed in the
plaintiff’s favor.” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
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2004) (citation omitted). Despite this deferential standard, a
court will not accept legal conclusions as true, and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, [will] not suffice.”
Iqbal, 556 U.S. at 678.
Employment discrimination complaints must meet the
Twombly/Iqbal plausibility standard; however, the plaintiff is
not required to make out a prima facie case or satisfy any
heightened pleading requirements at the motion to dismiss stage.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McClearyEvans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d
582, 584–85 (4th Cir. 2015). The plaintiff is, however, required
to plead facts that permit the court to reasonably infer each
element of the prima facie case, including less favorable
treatment than similarly-situated employees outside of the
protected class. McCleary-Evans, 780 F.3d at 585; see also
Iqbal, 556 U.S. at 682–83 (plaintiff must plead facts supporting
reasonable inference of discriminatory intent); Coleman v. Md.
Ct. of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (stating that
a complaint must “assert facts establishing the plausibility”
that plaintiff was terminated based on race). The Fourth Circuit
has explained, however, that “evidentiary determinations
regarding whether the comparators’ features are sufficiently
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similar to constitute appropriate comparisons generally should
not be made at” the motion to dismiss stage. Woods v. City of
Greensboro, 855 F.3d 639, 650 (4th Cir.), cert. denied sub nom.,
City of Greensboro v. BNT Ad Agency, LLC, ____ U.S. ____, 138
S. Ct. 558 (2017).
“A plaintiff may prove that an employer took action with
discriminatory or retaliatory intent through direct evidence or
through the burden-shifting framework of McDonnell Douglas Corp.
v. Green.” Strothers v. City of Laurel, 895 F.3d 317, 327 (4th
Cir. 2018). Under the McDonnell Douglas framework, once the
plaintiff has made a plausible showing of each element, the
claim will survive a motion to dismiss and the burden then
shifts to the defendant to provide “some legitimate,
nondiscriminatory reason” for the disparate treatment. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
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III. ANALYSIS
A.
Hostile Work Environment
To state a claim for a hostile work environment based on
race, under 42 U.S.C. § 1981 or Title VII,1 a plaintiff must show
that “the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe
or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.’’” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65–67 (1986)).
To demonstrate sexual harassment and/or a racially
hostile work environment, a plaintiff must show that
there is (1) unwelcome conduct; (2) that is based on
the plaintiff's sex [and/or race]; (3) which is
sufficiently severe or pervasive to alter the
plaintiff's conditions of employment and to create an
The substantive elements of a claim are the same under 42
U.S.C. § 1981 and Title VII. See Gairola v. Va. Dep’t of Gen.
Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). However, a § 1981
claim is not subject to the Title VII requirement that a
plaintiff first exhaust his administrative remedies before
bringing a lawsuit. See Causey v. Balog, 162 F.3d 795, 804 n.6
(4th Cir. 1998) (noting that the plaintiff’s Title VII claim was
dismissed for failure to exhaust administrative remedies and
proceeding to evaluate plaintiff’s derivative § 1983 claim).
This court briefly notes that the statute of limitations for a
§ 1981 claim arising after 1991 is four years. See Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382 (2004). While it appears
that the alleged failure to promote may have occurred more than
four years prior to the filing of this lawsuit, this fact is not
clear from the face of the Complaint. Therefore, this court will
not presently dismiss any claims as time-barred. See Goodman v.
Praxair, Inc., 494 F.3d 458, 465–66 (4th Cir. 2007).
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abusive work environment; and (4) which is imputable
to the employer.
Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)
(internal quotation marks and citation omitted).
This court has no trouble finding that Plaintiff has
plausibly alleged remarks that were unwelcome, based on the
Plaintiff’s race, and sufficiently severe or pervasive. Indeed,
the Fourth Circuit has held that even a single instance of
racially-demeaning speech in the workplace may by itself create
a hostile work environment. See, e.g., Boyer-Liberto v.
Fountainebleau Corp., 786 F.3d 264, 279–80 (4th Cir. 2015)
(“Consequently, a reasonable jury could find that Clubb's two
uses of the ‘porch monkey’ epithet — whether viewed as a single
incident or as a pair of discrete instances of harassment — were
severe enough to engender a hostile work environment.”).
Plaintiff further states that he reported these incidents to
management, thus plausibly alleging that the conduct is
imputable to Defendant. See Vance v. Ball State Univ., 570 U.S.
421, 427 (2013) (“[A]n employer [is] liable for a racially
hostile work environment if the employer was negligent, i.e., if
the employer knew or reasonably should have known about the
harassment but failed to take remedial action.”).
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Defendant contends that the Complaint lacks specificity
regarding the alleged racially-motivated comments and
harassment, (see Def.’s Mem. (Doc. 13) at 5), and therefore
fails to state a claim.2 However, this court finds that the
specific facts alleged (the verbal comment in August 2016 and
the spitting incidents) could, if established, be sufficient by
themselves to give rise to a hostile work environment claim. In
other words, it is at least plausible that Defendant could be
liable without any proof of actual knowledge. Therefore, this
court finds that Plaintiff has plausibly stated a hostile work
environment claim and Defendant’s motion to dismiss that claim
will be denied.
This court agrees with Defendant that the Complaint is
light on details, including details that Plaintiff would
presumably know and be able to relate — for example, the
identity of the manager or manager to whom Plaintiff reported
the alleged racial slur. However, this court does not find that
the Complaint is so wholly devoid of factual support to warrant
dismissal at this stage. Unlike the complaint in Tuscarora
Yarns, which Defendant holds out as an appropriate comparison,
(see Def.’s Mem. (Doc. 13) at 8–9), Plaintiff has in fact
alleged “what was said” rather than merely alleging the general
nature of conversations. Cf. E.E.O.C. v. Tuscarora Yarns, Inc.,
No. 1:09–cv–217, 2010 WL 785376, at *2–3 (M.D.N.C. Mar. 3,
2010). Therefore, this court finds that Plaintiff has provided
both “fair notice of the nature of the claim, . . . [and]
grounds on which the claim rests.” Twombly, 550 U.S. at 555 n.3
(citing 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1202, at 94–95 (2d ed. 1990)).
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B.
Discriminatory Failure to Promote
To establish a prima facie case of failure to promote under
42 U.S.C. § 1981, the plaintiff must plausibly allege “that (1)
[he] is a member of a protected group, (2) [he] applied for the
position in question, (3) [he] was qualified for that position,
and (4) the defendants rejected [his] application under
circumstances that give rise to an inference of unlawful
discrimination.” Anderson v. Westinghouse Savannah River Co.,
406 F.3d 248, 268 (4th Cir. 2005).
Here, Plaintiff alleges that he is black and that he was
passed over for a promotion which was given to a less-qualified
and less-experienced white applicant. (Compl. (Doc. 7) ¶¶ 6,
12.) Although Plaintiff does not specifically allege that he was
qualified for the lead man position, the fact that a lessqualified applicant was hired “allows [this] court to draw the
reasonable inference” that Plaintiff was in fact qualified.
Iqbal, 556 U.S. at 678. This court finds that Plaintiff has
plausibly alleged each element of a discriminatory failure-to-
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promote claim, and Defendant’s motion to dismiss this claim will
therefore be denied.3
However, this court again cautions Plaintiff and
Plaintiff’s counsel that the lack of detail regarding facts
presumably within Plaintiff’s knowledge, such as the manager who
told Plaintiff about the alleged policy and the specific time
and place of this meeting, will not suffice at a later stage of
these proceedings.
C.
Retaliation
“In order to establish a prima facie case of retaliation, a
plaintiff must prove three elements: (1) that [he] engaged in a
protected activity; (2) that [his] employer took an adverse
employment action against [him]; and (3) that there was a causal
link between the two events.” E.E.O.C. v. Navy Fed. Credit
Union, 424 F.3d 397, 405–06 (4th Cir. 2005).4
While this court agrees with Defendant that a general
allegation of less favorable treatment pursuant to an alleged
corporate policy or pattern of behavior does not suffice to
state a failure-to-promote claim, (see Def.’s Mem. (Doc. 13) at
9), this court bases its findings here not on the alleged policy
but rather on Plaintiff’s allegations regarding his own
rejection after applying for the lead man promotion.
3
42 U.S.C. § 1981 encompasses retaliation claims, and these
claims are evaluated under the same legal standard as Title VII
retaliation claims. Boyer-Liberto, 786 F.3d at 281; see also
CBOCS W., Inc. v. Humphries, 553 U.S. 442, 454–55 (2008)
(recognizing the overlap between Title VII and § 1981).
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To establish a causal link, the third element, a plaintiff
must show but-for causation, or “proof that the unlawful
retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). In
addition, the plaintiff must illustrate close temporal proximity
between the “employer’s knowledge of protected activity” and the
alleged retaliatory action. Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273–74 (2001); see also Anderson v. Coors Brewing
Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (stating that one and
a half months is sufficiently short to demonstrate causation,
but three months is too long). However, temporal proximity alone
will not suffice where the passage of time undermines any
conclusion that the events are causally connected. See Breeden,
532 U.S. at 273–74 (finding that a twenty-month gap suggested
“no causality at all”; citing cases finding no causal link when
the gap was only three or four months). In that event, the
plaintiff may also establish causation by presenting
circumstantial evidence of retaliatory intent during the longer
intervening period between the protected conduct and the adverse
action. See, e.g., Lettieri v. Equant Inc., 478 F.3d 640, 650–51
(4th Cir. 2007) (intervening events between protected conduct
and termination showed continuing retaliatory animus).
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Here, Plaintiff’s complaint to management about alleged
racial slurs was protected activity because Plaintiff reasonably
believed that he was bringing a § 1981, or Title VII, violation
to management’s attention. See Boyer-Liberto, 786 F.3d at 284
(“[A]n employee will have a reasonable belief that a hostile
work environment is occurring based on an isolated incident if
that harassment is physically threatening or humiliating.”).
Specifically, this court finds that Plaintiff has alleged
reasonable opposition to harassment that was objectively
humiliating. Further, it is well-established that termination is
an adverse action. See Strothers, 895 F.3d at 328.
Employee discipline pursuant to an employer’s reasonable
personnel regulations, however, is generally not an independent
adverse action unless an employer either disparately applies
disciplinary measures across the company or enforces these
measures in a manner “so extreme and intrusive as to constitute
harassment.” Aldrich v. Burwell, 197 F. Supp. 3d 124, 134
(D.D.C. 2016). Here, Plaintiff does not allege that the
disciplinary action taken against him was disproportionate,
discriminatory, or even unwarranted. (See Compl. (Doc. 7) ¶ 9.)
Therefore, this court finds that the September 2016 disciplinary
action was not an adverse action for purposes of Plaintiff’s
retaliation claim.
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Plaintiff alleges that he complained to Defendant’s
managers in late August 2016, that he was disciplined on
September 2, 2016, and that he was terminated on October 4,
2016. (Id. ¶¶ 7–10.) Viewing these allegations in the light most
favorable to Plaintiff, Plaintiff was terminated less than one
and a half months after his complaint.5 This length of time is
generally at the upper end of the range that courts consider
close enough to demonstrate causation. See Breeden, 532 U.S. at
273; Anderson, 181 F.3d at 1179. Therefore, this court finds
that the temporal proximity of the complaint to Plaintiff’s
termination, coupled with the intervening disciplinary action,
is sufficient to plausibly establish causation. See Haire v. Bd.
of Supervisors of La. State Univ. Agric. and Mech. Coll., 719
F.3d 356, 368 (5th Cir. 2013) (reversing grant of summary
judgment for the defendant where approximately four months
elapsed between the protected activity and adverse action, with
intervening developments that suggested retaliatory animus).
Defendant’s motion to dismiss Plaintiff’s retaliation claim will
be denied.
This court simply does not agree that the period between
“the end of August” and October 4th is equivalent to two months,
as Defendant has argued. (See Def.’s Mem. (Doc. 13) at 8.)
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D.
Violation of State Public Policy
This court interprets Plaintiff’s second claim for relief
as alleging wrongful discharge in violation of public policy.
(See Compl. (Doc. 7) ¶¶ 20–23.) While “North Carolina is an
employment-at-will state. . . . [The North Carolina Supreme
Court] has recognized a public-policy exception to the
employment-at-will rule.” Kurtzman v. Applied Analytical Indus.,
Inc., 347 N.C. 329, 331–32, 493 S.E.2d 420, 422 (1997); see also
Coman v. Thomas Mfg. Co., 325 N.C. 172, 175–76, 381 S.E.2d 445,
447 (1989). For example, where the defendant corporation
terminated the plaintiff “for refusing to work for less than the
statutory minimum wage,” this conduct violated the clearlyarticulated public policy of the state and the plaintiff could
maintain a wrongful discharge claim. Amos v. Oakdale Knitting
Co., 331 N.C. 348, 351–54, 416 S.E.2d 166, 168–70 (1992).
Further, “absent (a) federal preemption or (b) the intent of our
state legislature to supplant the common law with exclusive
statutory remedies, the availability of alternative remedies
does not prevent a plaintiff from seeking tort remedies for
wrongful discharge based on the public policy exception.” Id.
at 356–57, 416 S.E.2d at 171; see also Hicks v. Robeson Cty.,
No. 7:98–CV–105–BR(I), 1998 WL 1669080, at *4 (E.D.N.C. Oct. 15,
1998) (finding that “the availability of a remedy under Title
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VII does not prevent a plaintiff from seeking tort remedies for
wrongful discharge based on the public policy exception”).
Here, North Carolina law provides that “[i]t is the public
policy of this State to protect and safeguard the right and
opportunity of all persons to seek, obtain and hold employment
without discrimination or abridgement on account of
race . . . .” N.C. Gen. Stat. § 143-422.2. Defendant allegedly
violated this policy by permitting a racially-charged hostile
work environment, discriminating against Plaintiff by not
promoting him, and retaliating against Plaintiff.6 The legal
standard for a public policy wrongful discharge claim is the
same as for a Title VII, or 42 U.S.C. § 1981, discrimination
claim. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir.
1995). Plaintiff’s potential federal remedies do not preempt
this claim. Therefore, Defendant’s motion to dismiss Plaintiff’s
While this court agrees with Defendant that Plaintiff’s
failure to identify the specific public policy that was violated
would ordinarily be fatal to Plaintiff’s claim, (see Def.’s Mem.
(Doc. 13) at 11), and admonishes Plaintiff’s counsel regarding
this omission, this court ultimately finds that it may look
beyond the face of the Complaint to determine the basis for this
claim. See Coman, 325 N.C. at 173–76, 381 S.E.2d at 445–47
(finding that the plaintiff, a long-haul truck driver, had
stated a claim for wrongful discharge in violation of public
policy when he alleged that his employer constructively
terminated him for refusing to falsify logs to conceal
violations of shift length regulations; relying in part on North
Carolina civil and criminal statutes not specifically identified
by the plaintiff).
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state-law wrongful discharge in violation of public policy claim
will be denied.
IV.
CONCLUSION
For the reasons stated herein, this court finds that
Defendant’s motion to dismiss should be denied.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss,
(Doc. 12), is DENIED WITHOUT PREJUDICE.
This the 18th day of March, 2019.
____________________________________
United States District Judge
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