MCCROSKY v. PREFERRED FURNITURE COMPONENTS, INC.

Filing 19

MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR on 11/19/2021; that Defendant Preferred Furniture Components, Inc.'s Motion to Dismiss [Doc. # 10 ] is GRANTED IN PART as to Count II (Retaliation in Violation of Title VII). The Court declines to exercise supplemental jurisdiction over Count III (North Carolina Wage and Hour Act) and that claim is dismissed without prejudice. FURTHER that Plaintiff Barnett Leon McCrosky's Motion to Strike [Doc. # 12 ] is DENIED. A judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BARNETT LEON MCCROSKY,
Plaintiff,
v.
PREFERRED FURNITURE
COMPONENTS, INC.,
Defendant.

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1:21CV43

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss by Defendant
Preferred Furniture Components, Inc. (“Preferred”) [Doc. #10] and a Motion to
Strike by Plaintiff Barnett Leon McCrosky [Doc. #12]. For the reasons explained
below, the motion to dismiss is granted in part as to the retaliation claim and, as a
result, the Court declines to exercise supplemental jurisdiction over the North
Carolina Wage and Hour Act claim. The motion to strike is denied, but the facts in
Preferred’s brief that are not alleged in the Complaint are not considered.
I.
As an initial matter, McCrosky has moved pursuant to Rule 12(f) of the
Federal Rules of Civil Procedure to strike Preferred’s brief in support of its motion
to dismiss because it contains and relies on facts not alleged in the Complaint.
(See Mot.) Rule 12(f) permits the court to strike certain material “from a
pleading”, but a brief is not a pleading, see Fed. R. Civ. P. 7(a). Nevertheless, a

Rule 12(b)(6) motion “tests the sufficiency of a complaint; it does not . . . resolve
contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citation
omitted). Therefore, although the motion to strike is denied, the Court has not
considered the facts in Preferred’s brief that are not alleged in the Complaint.
II.
As alleged in the Complaint, Preferred hired McCrosky as a truck driver in
1993, and five years later he was promoted to Warehouse Manager. (Compl.
¶¶ 19-20.) He served under three company presidents, never received any formal
reprimands, and received raises throughout his career. (Id. ¶¶ 21, 23.) On or
about December 1, 2015, Jim Hodgin was promoted to serve as Preferred’s
president. (Id. ¶ 22.)
On or about August 14, 2019, McCrosky “approached Hodgin to alert him
about [McCrosky’s] arrangements for that day’s product deliveries.” (Id. ¶ 24.) In
response, Hodgin slammed his fist on his desk and yelled profanities at McCrosky,
“particularly using the word ‘goddamned.’” (Id. ¶ 25.) “Having just heard Hodgin
violate the Third Commandment, [McCrosky] asked that Hodgin calm down and
watch his language because [McCrosky] was ‘a Christian who will always stand up
for his God.’” (Id. ¶ 26.) Hodgin responded that “he didn’t give a ’goddamn’ what
[McCrosky] wanted and immediately fired [him].” (Id. ¶ 28.)
After he was fired, McCrosky discussed possible severance with Hodgin,
and Hodgin agreed to pay McCrosky $2,600 in severance ($100 for each year of
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service) and provide a positive job reference. (Id. ¶¶ 29-30.) However, when
McCrosky came to pick up his severance, Hodgin told him that he had unilaterally
rescinded the agreement. (Id. ¶ 32.) There would be no severance. (Id.) And
Hodgin told McCrosky that he should not expect a positive job reference, saying
“’you wouldn’t want me to lie, would you Mr. Christian?’” (Id. ¶ 33.)
McCrosky has sued Preferred for religious discrimination in violation of Title
VII (Count I), retaliation in violation of Title VII (Count II), and a violation of the
North Carolina Wage and Hour Act (Count III). Preferred has moved to dismiss all
three counts for failure to state a claim upon which relief can be granted. In
response to the motion to dismiss, McCrosky voluntarily dismissed Count I. (Notice
of Voluntary Dismissal [Doc. #14].)
III.
To survive a motion to dismiss made pursuant to Rule 12(b)(6), 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556); see also McCleary-Evans v. Md.
Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)
(noting that a complaint must “contain[] sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face in the sense that the
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complaint’s factual allegations must allow a court to draw the reasonable inference
that the defendant is liable for the misconduct alleged”). However, when a
complaint states facts that are “’merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). When
evaluating whether the complaint states a claim that is plausible on its face, the
facts are construed in the light most favorable to the plaintiff and all reasonable
inferences are drawn in his favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless, “labels and
conclusions[,]” “a formulaic recitation of the elements of a cause of action[,]” and
“naked assertions . . . without some further factual enhancement” are insufficient.
Twombly, 550 U.S. at 557. In other words, “[f]actual allegations must be enough
to raise a right to relief above the speculative level”. Id. at 555.
A.
McCrosky asserts a claim of retaliation in violation of Title VII and alleges
that he “engaged in protected activity . . . by requesting accommodation for his
religious practice and complaining about Hodgin’s language” and was terminated
for doing so. (Compl. ¶¶ 44-45.) Preferred argues that McCrosky has failed to
allege that he engaged in protected activity or that there is a causal connection
between any protected activity and his termination. (Br. in Supp. of Mot. to
Dismiss (“Br. in Supp.”) at 12-16 [Doc. #11]; Reply Br. in Supp. of Mot. to Dismiss
(“Reply Br.”) at 6-11 [Doc. #16].)
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The Fourth Circuit Court of Appeals recently explained,
[i]n the context of a Title VII case, “an employment discrimination
plaintiff need not plead a prima facie case of discrimination” to survive
a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506,
515, 122 S. Ct. 992, 152 L.E.2d 1 (2002). Instead, a Title VII
plaintiff is “required to allege facts to satisfy the elements of a cause
of action created by the that statute.” McCleary-Evans v. Md. Dep’t
of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.
2015).
Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (2020) (footnote omitted).
Not only does Title VII prohibit an employer from discriminating against any
individual “because of such individual’s . . . religion . . .”, 42 U.S.C. § 2000e-2(a),
but it also prohibits an employer from discriminating against an employee “because
he has opposed any practice” that is unlawful under Title VII “or because he has
made a charge . . . or participated in any manner in an investigation . . .” of a
practice that is unlawful under Title VII, 42 U.S.C. § 2000e-3(a). Oppositional
activity is protected when the plaintiff “reasonably believe[s] that the employment
action []he opposed constituted a Title VII violation” and his “conduct in opposition
was reasonable”. Netter v. Barnes, 908 F.3d 932, 937-38 (4th Cir. 2018) (citing
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015); Laughlin
v. Metro Wash. Airports Auth., 149 F.3d 253, 359-60 (4th Cir. 1998)).
Accordingly, [the] inquiry is whether [the plaintiff] alleges facts that
plausibly state a violation of Title VII “above the speculative level.”
Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010)
(quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955); see also
McCleary-Evans, 780 F.3d at 585-86.
Bing, 959 F.3d at 617.

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B.
McCrosky alleges that he was terminated in retaliation for having requested
accommodation for his religious practice. But Preferred contends that McCrosky
has not sufficiently alleged that he requested such accommodation and, even if he
had, he has not sufficiently alleged causation. (Br. in Supp. at 12-16.) McCrosky
does not respond to this argument and focuses, instead, on the other alleged
purported protected activity of opposing a hostile work environment which is
addressed below, infra § C. (Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Dismiss
(“Br. in Opp’n”) at 3-4 [Doc. #15].) By failing to respond, McCrosky has conceded
this issue. See Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918, 2010 WL
1667285, at *7-*8 (M.D.N.C. Apr. 23, 2010) (citing cases); Brand v. N.C. Dep’t
of Crime Control & Pub. Safety, 352 F. Supp. 2d 606, 618 (M.D.N.C. 2004) (“By
failing to respond, Plaintiff concedes that he has not stated a . . . claim.”). Cf.
Local Civ. R. 7.2(a), 7.3(k) (providing response brief contents and consequence of
not timely filing a brief or response). The “court nevertheless has an obligation to
review the motion[] to ensure that dismissal [of this issue] is proper.” Stevenson v.
City of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014).
Because McCrosky was not participating in any investigation or proceeding
under Title VII, his request for accommodation would have to be oppositional
activity to be protected. Protected oppositional activity occurs when an employee
opposes discriminatory workplace conduct. For example, opposing the failure to

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provide reasonable accommodation would constitute protected activity. But simply
requesting accommodation does not.
Furthermore, even if requesting religious accommodation were protected
activity, McCrosky has not sufficiently alleged that he did so. In relevant part, a
religious accommodation comes about when an employee has a bona fide religious
belief that conflicts with an employment requirement. Chalmers v. Tulon Co. of
Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996). An employment requirement
“must create more than an obligation to tolerate; the requirement must constitute a
duty to actively do something.” Johnston v. Ga. Pac., LLC, No. 08-169-JJB, 2009
WL 2849619, at *3 (M.D. La. Sept. 3, 2009) (citing cases from the Fifth Circuit
Court of Appeals). McCrosky alleges that he “asked Hodgin to calm down and
watch his language because [McCrosky] was ‘a Christian who will always stand up
for his God.’” Just like plaintiff in Johnston, McCrosky “did not wish to refrain
from some action that violates his beliefs, but instead wanted an end to the vulgar
language and rude demeanor of his supervisor.” Id. McCrosky has not plausibly
alleged that his beliefs about taking the Lord’s name in vain conflict with any
requirement that he actively do something as part of his employment.
C.
Next, McCrosky also alleges that his “complaining about Hodgin’s language”
is protected activity. Relying on Boyer-Liberto, he argues that he was opposing a
hostile work environment. (Br. in Opp’n at 3-4.) As in relevant here, a hostile work
environment is one in which there is unwelcome conduct based on the employee’s
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religion “which is sufficiently severe or pervasive to alter the [employee’s]
conditions of employment and to create an abusive work environment”. BoyerLiberto, 786 F.3d at 271 (citation omitted). Ultimately, a plaintiff alleging a hostile
work environment would have to show “’the environment would reasonably be
perceived, and is perceived, as hostile or abusive”. Id. at 277 (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 22 (1993)).
As explained above, oppositional activity is protected if McCrosky was
opposing a violation of Title VII or reasonably believed he was. Preferred contends
that McCrosky could not have reasonably believed that he was opposing a hostile
work environment. (Reply Br. at 6-10.) According to Preferred, Hodgin’s conduct
that McCrosky opposed was not based on McCrosky’s religion and McCrosky
could not have reasonably believed that conduct was severe or pervasive. (Id. at 79.) The Court agrees.
The purported hostile work environment that McCrosky opposed was
Hodgin’s “slamming his fist . . . and yelling profanities” including “the word
‘goddamned.’” McCrosky has not alleged that, at that time, Hodgin was aware of
McCrosky’s religion or religious beliefs nor has he otherwise plausibly alleged this
conduct was based on McCrosky’s religion. See Rivera v. P.R. Aqueduct & Sewers
Auth., 331 F.3d 183, 190 (1st Cir. 2003) (“[T]here is a conceptual gap between
an environment that is offensive to a person of strong religious sensibilities and an
environment that is offensive because of hostility to the religion guiding those
sensibilities.”); Wareham v. Dollar Bank, 937 F. Supp. 2d 656, 684 (W.D. Pa.
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2013) (finding that use of profanity including the words “God damn” did not rise to
the level of religious hostility to support a religious discrimination claim); Johnston,
2009 WL 2849619, at *2 (finding that where the conduct offended the plaintiff’s
“belie[f] that taking the Lord’s name in vain violates Scripture”, the plaintiff “has
shown only that he took offense at the comments because of his personal,
religious beliefs; he has not shown that the comments arose from a hostility
towards those beliefs.”). It is simply not plausible that when McCrosky
complained to Hodgin he reasonably believed he was opposing conduct that
violated Title VII.
This conclusion is further supported when assessing the sufficiency of the
allegations of severe or pervasive conduct. McCrosky believes that Boyer-Liberto
“is directly on point”. (Br. in Opp’n at 4.) There, the Fourth Circuit Court of
Appeals held that when “assessing the reasonableness of an employee’s belief that
a hostile environment is occurring based on an isolated incident” for purposes of a
retaliation claim, “the focus should be on the severity of the harassment.” 786
F.3d at 284. This involves determining “whether the discriminatory conduct is
physically threatening or humiliating, or a mere offensive utterance.” Id. (citation
omitted). “[A]n employee is protected from retaliation for opposing an isolated
incident of harassment when []he reasonably believes that a hostile work
environment is in progress, with no requirement for additional evidence that a plan
is in motion to create such an environment or that such an environment is likely to
occur.” Id. There, the court found that “a reasonable jury could find that . . . two
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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”, as the use of that slur “is about as odious as the use of
the word ‘nigger’” which “’is pure anathema to African-Americans.” Id. at 280.
“’[P]orch monkey’ is a racial epithet that is not just humiliating, but degrading and
humiliating in the extreme.” Id. at 285 (citation omitted).
McCrosky argues that Hodgin’s slamming his fist on the desk and yelling
profanities including the word “goddamned” is sufficiently severe under BoyerLiberto. (Br. in Opp’n at 4.) Understandably, McCrosky was taken aback by
Hodgin’s behavior and offended by his profanity and taking the Lord’s name in
vain. But, as offensive as the use of the word “goddamned” is to McCrosky, it is
quite different than the circumstances in which the offensive racial slur was made
to Boyer-Liberto, as described in detail by the Fourth Circuit. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (“[M]ere utterance of an . . . epithet which
engenders offensive feelings in an employee does not sufficiently affect the
conditions of employment to implicate Title VII.”) (internal citation omitted); EEOC
v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (recognizing “that
Title VII does not establish a general civility code for the American workplace”,
“even incidents that would objectively give rise to bruised or wounded feelings will
not on that account satisfy the severe or pervasive standard”, and “complaints
premised on nothing more than rude treatment by [coworkers], callous behavior by
[one’s] superiors, or a routine difference of opinion and personality conflict with
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[one’s] supervisor are not actionable under Title VII”) (internal quotations and
citations omitted) (alterations in original). It is not plausible that McCrosky
reasonably believed he was opposing a hostile work environment.
Because McCrosky has not sufficiently alleged protected activity in support
of his retaliation claim, it is unnecessary to address Preferred’s challenge to the
sufficiency of the causation allegations.
IV.
McCrosky brings his North Carolina Wage and Hour Act claim pursuant to
supplemental jurisdiction, 28 U.S.C. § 1367(a). That statute also permits a district
court to “decline to exercise supplemental jurisdiction over” such a claim if “the
district court has dismissed all claims over which it has original jurisdiction”. 28
U.S.C. § 1367(c). Because the claims over which the Court had original jurisdiction
are dismissed, the Court declines to exercise supplemental jurisdiction over the state
law claim. Therefore, Preferred’s motion to dismiss this claim will not be addressed.
Instead, the claim is dismissed without prejudice.
V.
For the reasons stated in this Memorandum Opinion, IT IS HEREBY ORDERED
that Defendant Preferred Furniture Components, Inc.’s Motion to Dismiss [Doc. #10]
is GRANTED IN PART as to Count II (Retaliation in Violation of Title VII). The Court
declines to exercise supplemental jurisdiction over Count III (North Carolina Wage
and Hour Act) and that claim is dismissed without prejudice.

IT IS FURTHER

ORDERED that Plaintiff Barnett Leon McCrosky’s Motion to Strike [Doc. #12] is
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DENIED. A judgment dismissing this action will be entered contemporaneously with
this Memorandum Opinion.
This the 19th day of November, 2021.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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