White v. Tire Centers, LLC
Filing
19
ORDER granting in part and denying in part 12 Motion to Dismiss. Signed by Senior Judge Graham Mullen on 3/19/2013. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-2-GCM
DAVID WHITE,
)
)
Plaintiff,
)
)
vs.
)
)
TIRE CENTERS, LLC,
)
)
Defendant.
)
____________________________________)
ORDER
THIS MATTER comes before the Court on Defendants’ Partial Motion to Dismiss
Plaintiff’s Amended Complaint [Doc. No. 12], Plaintiffs’ response [Doc. No. 17], and
Defendants’ reply [Doc. No. 18]. The matter, fully briefed by both parties, is ripe for
determination. For the reasons set forth below, the Court will GRANT Defendants’ Motion.
I. PROCEDURAL BACKGROUND
On November 6, 2012, Plaintiff filed a Complaint against Defendant Tire Centers, LLC
in the Union County Superior Court, asserting the following three causes of action: (i) wrongful
discharge in violation of North Carolina’s Public Policy against age discrimination as set forth in
North Carolina’s Equal Employment Practices Act; (ii) failure to promote, age based harassment,
constructive discharge, and retaliation in violation of the Age Discrimination in Employment Act
(“ADEA”); and (iii) negligent infliction of emotional distress. Plaintiff worked at Tire Centers
from approximately March, 2002, until he resigned in April, 2012.
Defendant removed the case to this Court on January 2, 2013 and filed a Partial Motion
to Dismiss on January 8, 2013 pursuant to Rules 12(b)(1) and 12(b)(6). Plaintiff filed a response
1
[Doc. No. 7] and an Amended Complaint [Doc. No. 8] withdrawing his wrongful discharge in
violation of North Carolina public policy and Negligent Infliction of Emotional Distress claims.
Plaintiff’s Amended Complaint reasserted his ADEA claims. Following Plaintiff’s Amended
Complaint, Defendant withdrew its Partial Motion to Dismiss Plaintiff’s Complaint. [Doc. No.
11]. Plaintiff filed the instant Partial Motion to Dismiss on February 12, 2013.
II. FACTUAL BACKGROUND
Plaintiff, a 64 year old man, was last employed by Defendant TCI as a Dealer
Development Sales Manager. [Amended Complaint, Doc. No. 8 ¶ 4]. Prior to working with
Defendant TCI, Plaintiff was employed with TCI’s sister company, Michelin North America,
and had over 40 years’ experience in the tire business, including management experience. [Id.].
Soon after his hire, Plaintiff was assigned the position of Assistant Manager of Defendant’s
Cincinnati, Ohio distribution center. [Doc. No. 8 ¶ 5]. In February, 2005 Plaintiff became
manager of Defendant’s Tampa, Florida distribution center. [Id.]. In March, 2007, Plaintiff was
named Regional Sales Manager for the car dealer team’s southeast division and in 2012, Plaintiff
was named Dealer Development Sales Manager. [Id.].
Plaintiff alleges that he had interest in and applied for several positions with Defendant
and that he was not hired for these positions. Plaintiff alleges that he sought promotion to better
position by following Defendant’s procedure for obtaining promotions by filling out and
submitting to Defendant’s Human Resources at least four talent sheets (2/28/2007, 1/21/08,
12/4/08, and 8/1/11) in which he described his background in the tire business as well as his
interest in Regional Director and other supervisory positions.
[Doc. No. 8 ¶¶ 9-10].
Specifically, Plaintiff alleges that in 2009, he expressed his interest on his talent sheet for a
regional Director position, but he was not selected for an interview for the Regional Director
2
position. [Id. ¶ 12]. Following his non-hire, Plaintiff alleges he talked with his manager, Sal
Rossano, about why he was not hired as Regional Director. Plaintiff alleges that Mr. Rossano
indicated that age was a factor in the decision not to hire him as Regional Director. [Id.].
Plaintiff alleges that in 2010, a position for Business Development Manager opened, but was
never formally posted. [Doc. No. 8 ¶ 15]. A younger co-worker, Steven Taden, was promoted
to Business Manager. [Id. ¶ 14].
Plaintiff contends that this was a position that he was
particularly well suit for, given his extensive background in the tire business, management
experience, and customer relations talents. [Id.]. Plaintiff admits that he never applied for this
position, was not aware of the position until after it was filled and had not submitted a talent
sheet in over a year when this position became available. [Doc. No. 8 ¶¶ 10, 15].
In March, 2011, Plaintiff spoke with Jim Borkey, Defendant’s Senior Vice President of
Sales, regarding his interest in growing with Defendant. [Doc. No. 8 ¶¶ 8, 18]. Plaintiff alleges
that he informed Mr. Borkey that Mr. Rossano and/or Human Resources employee Leesa Cooper
made discriminatory statements that the failure to hire Plaintiff as Regional Director in 2009 was
due to his age. [Id.] Mr. Borkey allegedly responded, “you haven’t sued us yet?” [Id.].
In September 2011, Plaintiff contends that he applied for several vacant Distribution
Regional Sales Manager positions. [Doc. No. 8 ¶ 19]. Plaintiff also alleges that he was qualified
for an open position as Regional Director in Myrtle Beach, South Carolina, though Plaintiff does
not allege that he applies for this position. Instead, Plaintiff contends that despite expressing
interest on his talent sheet for this type of position, Defendant did not notify him that there was
an opening for this position. [Id. ¶ 20]. Plaintiff alleges that he was not selected for the Myrtle
Beach position and that a younger employee who was the Atlantic coast Director was selected
for that position and another younger employee from within the company replaced the Atlantic
3
coast Director’s position. [Doc. No. 8 ¶ 22].
In October, 2011, Plaintiff alleges that he had a meeting with Mr. Rossano and Ms.
Martin, a Human Resources representative, about the Distribution Regional Sales Manager
positions. Plaintiff was informed that he was not being promoted. Following the meeting,
Plaintiff informed Mr. Martin that Mr. Rossano stated that age was the reason for his failure to
be promoted to Regional Director in 2009. Plaintiff alleges that following his non-selection in
2011, Plaintiff was told by an unidentified “company managing official that he was probably not
selected because [Defendant] did not know how much longer he would work.” [Doc. No. 8 ¶
23].
Plaintiff also alleges that Mr. Rossano repeatedly referred to him as “old man.” [Doc.
No. 8 ¶ 27]. He contends that after reporting this alleged admission of age bias, he was subjected
to increased scrutiny of his work performance. [Id. ¶ 30]. Plaintiff contends that he retired from
his employment with Defendant in 2012 due to his “denial of promotions, continued age biased
remarks, the repeated statements that he did not get the promotion because of his age, the undue
scrutiny of his work and the humiliation these actions on the part of [Defendant] and its
managing officials cause him.” [Doc. No. 8 ¶¶ 31-32].
On January 19, 2012, Plaintiff alleges that he filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) for “violations of the Age
Discrimination in Employment Act.” [Doc. No. 8 ¶ 33]. Plaintiff alleges that the EEOC issued
him a right to sue letter and “within ninety days” from issuance, he commenced this action. [Id.].
4
III.
STANDARD OF REVIEW
1. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal where the court lacks
Jurisdiction over the subject matter of the lawsuit. In determining whether subject matter
jurisdiction exists under Rule 12(b)(1), a court “is to regard the pleadings’ allegations as mere
evidence on the issue . . .”. Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). For Rule 12(b)(1) motions, “[t]he district court should apply
the standard applicable to a motion for summary judgment, under which the nonmoving party
must set for specific facts beyond the pleadings to show that a genuine issue of material fact
exists.” Id. (internal citations omitted).
2. 12(b)(6)
To survive a motion to dismiss, the plaintiff must make factual allegations which “raise a
right to relief above the speculative level” and plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. V. Twombly, 550 U.S. 544, 545-47 (2007), Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). The court must view the complaint in the light most
favorable to the plaintiff and take the plaintiff’s allegations as true. Randall v. United States, 30
F.3d 518, 522 (4th Cir. 1994).
However, the Court is not bound by the Plaintiff’s legal
conclusions, as the purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the
Amended Complaint. Id. (internal citations omitted).
IV.
ANALYSIS
A. 2009 and 2010 Failure to Promote Claims
Defendant argues that Plaintiff’s ADEA claims for failure to promote which occurred
5
prior to July 23, 2011 must be dismissed pursuant to Rule 12(b)(1) and or 12(b)(6) because
Plaintiff failed to timely exhaust his administrative remedies.
Plaintiff and Defendant both agree that before a plaintiff may file suit under the ADEA,
he is required to file a charge of discrimination with the EEOC. See 29 U.S.C.A. § 626(d). The
parties also agree that the limitations period for filing a discrimination charge with the EEOC is
180 days. Id. Therefore, in order to preserve a claim of age discrimination, a plaintiff must file a
charge of discrimination with the EEOC within 180 days after the allegedly discriminatory act.
Moreover, ‘[t]he scope of the plaintiff’s right to file a federal lawsuit is determined by the
charge’s contents.” Jones v. Calvert Group Ltd, 551 F.3d 297, 3000 (4th Cir. 2009).
Here, Plaintiff filed a charge alleging age discrimination with the EEOC on January 19,
2012. [Doc. No. 8 ¶ 33].1 This EEOC charge was filed more than two years after Plaintiff’s
2009 application for and denial of a position as Regional Director and more than two years after
the alleged 2010 failure to promote Plaintiff to Business Development Manager.
Plaintiff argues that “the continuing violation doctrine may preserve [Plaintiff’s] deadline
for filing claims” and contends that discovery will help determine whether this doctrine applies
to this matter.
[Doc. No. 17 at 7].
However, the Supreme Court, in National Railroad
Passenger Corp v. Morgan , 536 U.S. 101 (2002) held that an employee must file a charge of
discrimination within the appropriate limitations period for each discrete act of discrimination
that occurred. The Court explained that such discrete acts of discrimination “are not actionable
if time barred, even when they are related to acts alleged in timely filed charges.
Each
discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore,
1
180 days prior to January 19, 2012 is July 23, 2011.
6
must be filed within the 180 – or 300 – day time period after the discrete discriminatory act
occurred.” The Court continued, finding that claims of failure to promote are “easy to identify”
as “[d]iscrete acts,” because each is a separate and distinct incident of discrimination.” Id. at
114.
Following Morgan, the Fourth Circuit has refused to apply the continuing violation
doctrine to claims of failure to promote. In Williams v. Giant Food, Inc., 370 F.3d 423 (4th Cir.
2004), the plaintiff argues that her Title VII failure to promote claims should not be dismissed
even though she did not file an EEOC charge within 180 days of the last promotion decision.
Instead, the plaintiff argued that these promotion decisions were part of a continuing violation
that continued to accrue up until she was allegedly forced to resign due to the discrimination. Id.
370 F.3d at 427-29. The Fourth Circuit held that the Supreme Court’s decision in Morgan
foreclosed any such continuing violation argument:
[Plaintiff] argues that the continuing violation doctrine extends the ordinary
limitations periods. This argument is foreclosed by [Morgan], which holds that
an employee must file a charge of discrimination within the appropriate
limitations period as to each discrete act of discrimination that occurred. Such
discrete acts of discrimination “are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.” . . . Because failure to promote
is a discrete act of discrimination, . . . the continuing violation doctrine does not
apply here and cannot save [plaintiff’s] untimely claims.
Id. at 429 (citations to Morgan omitted) (citing Davidson v. American Online, 337 F.3d
1179, 1185-86 (10th Cir. 2003) (holding that the plaintiff could only pursue refusals to hire that
occurred within the limitations period); Tademe v. Saint Cloud State Univ., 328 F.3d 982-987-88
(8th Cir. 2003) (holding that the plaintiff’s tenure and promotion claims were barred because they
were not filed within 300 days of the alleged misconduct)). See also Belton v. City of Charlotte,
175 F. App’x 641, 653 (4th Cir. 2006) (“The Supreme Court has specifically identified the failure
7
to promote as a ‘discrete act’ that ‘occur[s] on the day that it happen[d].’ Each discrete act of
discrimination ‘starts a new clock for filing charges alleging that act,’ meaning that only
incidents that occur within the timely filing period are actionable . . .”.) (internal citations
omitted); Mezu v. Morgan State Univ., 367 F. App’x 385, 388 (4th Cir. 2010) (“An ‘unlawful
employment practice’ under 42 U.S.C. § 2000e-5(e) refers to a discrete discriminatory act or
single occurrence even when related to other acts. ‘Discrete acts such as … failure to promote
… are not actionable if time barred, even when they are related to acts alleged in timely filed
charges.’”) (internal citations omitted); Malghan v. Evans, 118 F.App’x 731, 734 (4th Cir. 2004)
(“We find without difficulty that the district court correctly dismissed [Plaintiff’s] claims [for,
among other things, non-selection] for failure to exhaust administrative remedies, as he is not
saved from his failure to administratively present his claims by the continuing violations
doctrine.”) (internal citations omitted); McDougal v. Goodyear Tire and Rubber Co., 427 F.
Supp.2d 595, 606 n.3 (E.D.N.C. 2006) (“Under Title VII, plaintiff’s failure-to-promote claims
are limited to non-promotions occurring within 180 days of filing her . . . EEOC charge.”
(internal citations omitted).
Supreme Court and Fourth Circuit authority makes clear that failure to promote claims
cannot be part of any continuing violations because they are separate, discrete acts of
discrimination. Therefore, Plaintiff’s argument that the four promotions decisions were part of a
continuing violation is misplaced and Plaintiff’s 2009 and 2010 failure to promote claims must
be dismissed.
8
B. 2010 Failure to Promote Plaintiff to Business Development Manager and
2011 Failure to Promote Plaintiff to Regional Director
“To establish a prima face ADEA failure to promote claim, a plaintiff must show that: (1)
he is at least 40; (2) he applied for an open position; (3) he was rejected even though qualified;
and (4) the position remained open or was filled by a similarly-qualified applicant substantially
younger than him.” Cepada v. Bd. Of Educ. Of Baltimore Cnty., 814 F.Supp. 2d 500, 512 (D.
Md. 2011) (citing Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006).
Defendant contends that Plaintiff’s Amended Complaint fails to state a claim for failure
to promote because the Amended Complaint makes clear that Plaintiff did not apply for either
the 2010 Business Development Manager position or the 2011 Regional Director position in
Myrtle Beach. Plaintiff responds that Defendant’s absence of a formal “posting” policy for
vacant positions, combined with the fact that Defendant did not post the 2010 Business
Development Manager and September 2011 Regional Director positions, relieves him of the
requirement to plead that he applied for such positions.
Plaintiff’s Amended Complaint alleges that there was an informal policy for submitting
interest in promotional opportunities and that he understood this informal policy. [Doc. No. 8 ¶
7]. In his Amended Complaint, Plaintiff alleges that “Defendant had an informal application
procedure which allowed employees to fill out talent sheets indicating their interest for
advancement to positions they were interested in.” (Id.). Plaintiff further alleges that “[u]pon
information and belief, when a position opened, the Defendant’s Human Resources
Representative, … held discussions with . . . . Collectively, they based their decisions on who to
promote to open vacancies.” (Id. ¶ 8). Plaintiff explains that he filled out and submitted a talent
9
sheet on February 28, 2007; November 21, 2008; December 4, 2008 and August 1, 2011. On
each talent sheet, Plaintiff described his background and specific positions he had held with prior
employers and stated that he was interested in a Regional Director position and/or some other
supervisory position. (Id. ¶ 10).
With respect to the 2010 Business Development Manager position, Plaintiff specifically
stated in his Amended Complaint that the position was never formally posted. [Doc. No. 8 at ¶
15]. Plaintiff contends that he was “well suited” for this position and that he had previously
expressed an interest in a supervisory position.” [Doc. No. 8 ¶¶ 14, 16].
In its Answer,
Defendant admits that the 2010 position was never formally posted and admits that it did not
notify all of its employees of this job vacancy. [Doc. No. 16 ¶ 15].
With respect to the 2011 position for Regional Director, Plaintiff contends that the
position was never formally posted and that Defendant did not notify its employees of the job
vacancy. [Doc. No. 8 ¶ 21]. Defendant admits the same. [Doc. No. 16 ¶ 21].
Defendant argues that Plaintiff’s reliance on generic expressions of interest cannot
overcome his failure to plead that he applied for the positions. Defendant cites to Tyndall v.
Dynaric, 997 F. Supp. 721, 726-27 (E.D. Va. 1998) for the proposition that a generalized
expression of interest in promotional opportunities is insufficient to state a failure to promote
claim. However, here, unlike Tyndall, in addition to expressing a generalized interest in growing
with the company, Plaintiff alleges that he also filled out four talent sheets indicating his general
interest in advancing with the company and stating his interest in a Regional Director position
and/or some other supervisory position. [Doc. No. 8 ¶ 10].
10
Although Defendant disputes the existence of four talent sheets, Defendant asserts that it
only has records of Plaintiff completing two talent sheets (December 4, 2008 and August 1,
2011). However, the record in this case, considered in the light most favorable to the Plaintiff,
reveals that Plaintiff submitted four talent sheets on February 28, 2007; November 21, 2008;
December 4, 2008 and August 1, 2011. The August 1, 2011 talent sheet was filled out just one
month prior to the 2011 Regional Director position hiring decision and specifically expressed
interest in in a Regional Director position.
On these facts, the Court declines to dismiss
Plaintiff’s ADEA claim for the 2011 Regional Director position for failure to state a claim for
relief at this time.2
IV. CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that Defendants’ Partial Motion
to Dismiss Plaintiff’s Amended Complaint [Doc. No. 12] is GRANTED in part and DENIED in
part. Plaintiff’s 2009 and 2010 failure to promote claims are dismissed. Plaintiff’s 2011
Regional Director position failure to promote claim states a prima facie case for ADEA and will
not be dismissed at this time.
IT IS SO ORDERED.
Signed: March 19, 2013
2
With respect to the 2010 Business Development Manager claim, the Court already decided that such
claim must be dismissed in the previous section of this Order.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?