Johnson v. SGL Carbon, LLC

Filing 13

ORDER granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim; granting 10 Motion to Amend/Correct Complaint. Plaintiff may file her Amended Complaint. Signed by Senior Judge Graham Mullen on 6/27/2016. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
VIVIAN JOHNSON

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Plaintiff,
vs.
SGL CARBON, LLC
Defendant.

No. 3:16-cv-136

ORDER
THIS MATTER is before the Court upon Defendant’s Motion to Dismiss for Failure to
State a Claim (Doc. No. 6), Defendant’s Brief in Support (Doc. No. 7), Plaintiff’s Memorandum
in Opposition (Doc. No. 8), and Defendant’s Reply (Doc. No. 12). Defendant requests that this
case be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth
below, the Motion is DENIED IN PART and GRANTED IN PART. Plaintiff has also filed a
Motion to Amend/Correct (Doc. No. 10), along with a Proposed Amended Complaint (Doc. No.
10-1). Plaintiff’s Motion is GRANTED.
I. BACKGROUND
Plaintiff Vivian Johnson is a female, African-American resident of Mecklenburg County,
North Carolina and Defendant is a Nevada limited liability corporation with an office in
Charlotte, North Carolina. (Doc. No. 1-1 at ¶¶ 1-2). Defendant employed Plaintiff from July 23,
2012, through December 19, 2014. (Id. at ¶ 3).
Defendant hired Plaintiff as a Client Support Specialist on July 23, 2012. (Doc. No. 1-1 at
¶ 8). Plaintiff was the only female on the Infrastructure Team (“IT”) and one of two African-

American employees in the Charlotte office of seven employees. (Id. at ¶ 10). Plaintiff reported
to Marshall Munyak, a Caucasian male. (Id. at ¶ 8-10). As of June 2014, Plaintiff had not
received any disciplinary warnings or coaching regarding her work performance or conduct, and
Plaintiff’s most recent job performance evaluation rated her performance as “Excellent.” (Id. at
¶ 11).
However, Plaintiff alleges that Mr. Munyak treated her differently than her male,
Caucasian coworkers by excluding her from job-specific meetings, conferences, conference
calls, job-critical training, and office outings from the beginning of her employment. (Id. at ¶ 12).
Further, Mr. Munyak assigned all extraneous administrative and clerical responsibilities to
Plaintiff, although they were not included in her job description. (Id. at ¶ 14). Plaintiff also did
not receive the same equipment as the other male members of the IT team, such as a Blackberry,
laptop, desktop, and dual monitors. (Id. at ¶ 15). Plaintiff continued to be excluded from
activities attended by the rest of the male members of Defendant’s IT team from March through
July 2014. (Id. at ¶ 16-18).
Plaintiff experienced additional difficulties working with her coworker Marcus Owens,
who also reported to Mr. Munyak. (Id. at ¶ 19). For example, Mr. Owens was not disciplined for
refusing to include Plaintiff in specific training for office systems. (Id.) Further, Mr. Owens
would not answer Plaintiff’s questions although he would immediately assist male team
members. (Id. at ¶ 20). Mr. Owens also repeatedly asked Plaintiff, “Do you really know what
you’re doing?” in front of her male coworkers. (Id.) On June 18, 2014, Mr. Owens yelled at
Plaintiff, “Y’all are lazy” while Plaintiff was the only person in the room, a remark that Plaintiff
understood to mean that African-Americans are lazy. (Id. at ¶ 21).

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On numerous occasions when Plaintiff complained about Mr. Owens’s behavior, Mr.
Munyak allegedly would tell Plaintiff she was “dropping a dead raccoon at his feet.” (Id. at ¶ 22).
On June 19, 2014, Mr. Munyak told Plaintiff she was being “too emotional.” (Id. at ¶ 23).
Plaintiff also endured cursing and foul language from both her coworkers and Mr. Munyak. (Id.
at ¶ 24). Plaintiff complained to Human Resources about Mr. Owens’s behavior and Mr.
Munyak’s failure to respond, but upon Plaintiff’s information and belief, no investigation was
conducted and no corrective action was taken. (Id. at ¶ 25).
Plaintiff took medical leave on August 7, 2014, and returned to work on or about
September 22, 2014. (Id. at ¶ 26). After Plaintiff returned, Mr. Munyak changed her IT
responsibilities and removed her access to certain accounts. (Id.) Over the next few months, Mr.
Munyak cancelled three meetings to discuss Plaintiff’s promotion and continued to take away
her work responsibilities. (Id. at ¶ 27-28). Further, Plaintiff was told that Mr. Munyak planned to
“get rid of” her because she was causing him problems. (Id. at ¶ 27).
On December 15, 2014, Plaintiff returned to the office after working through the
weekend preparing invoices for which Mr. Owens refused to provide critical information. (Id. at
¶ 29). Plaintiff complained to Mr. Munyak about Mr. Owens’ behavior, and Mr. Munyak made
excuses. (Id.) Plaintiff then informed Mr. Munyak she was leaving early for the day and Mr.
Munyak became agitated, following Plaintiff to the elevator and verbally harassing her. (Id.)
Later that day, Plaintiff received a phone call from Human Resources informing her that she was
being terminated for leaving work without permission and for using inappropriate language. (Id.
at ¶ 30).
Plaintiff filed her charges of race and sex discrimination and retaliation with the Equal
Employment Opportunity Commission (“EEOC”) on January 16, 2015, pursuant to 42 U.S.C.

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§ 2000e-5(b) and (e). (Exhibit A, Doc. No. 1-1). In response, the EEOC issued a Notice of Right
to Sue on November 19, 2015. (Exhibit B, Doc. No. 1-1). Plaintiff then brought this action on
February 11, 2016, asserting claims against Defendant SGL Carbon, LLC for violating Title VII
of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.1 (Doc. No. 1-1).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for
failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule
12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a
claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), cert. denied, 510
U.S. 828 (1993). Thus, the Rule 12(b)(6) inquiry is limited to determining if the allegations
constitute “a short and plain statement of the claim showing the pleader is entitled to relief”
pursuant to Federal Rule of Civil Procedure 8(a)(2).
In order to survive a defendant’s motion to dismiss, factual allegations in the complaint
must be sufficient to “raise a right to relief above a speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Thus, a complaint will survive if it contains “enough facts
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). For the purposes of a Rule 12(b)(6) analysis, 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. (quoting
Twombly, 550 U.S. at 556). The Court must draw all reasonable factual inferences in favor of the
Plaintiff. Priority Auto Grp., Inc. v. Ford Motor Credit Co., 757 F.3d 137, 139 (4th Cir. 2014).

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Plaintiff initially alleged an additional claim of intentional, or in the alternative, negligent infliction of emotional
distress (Doc. No. 1-1 at ¶¶ 54-58), but later filed a Motion to Amend/Correct her Complaint. (Doc. No. 10).
Plaintiff’s Proposed Amended Complaint does not include claims for intentional or negligent infliction of emotional
distress. Thus, this Order does not address Defendant’s arguments on those issues.

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In a Rule 12(b)(6) analysis, the Court must separate facts from legal conclusions, as mere
conclusions are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Importantly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. However, well-pleaded factual allegations are entitled to a
presumption of truth, and the court should determine whether the allegations plausibly give rise
to an entitlement to relief. Id. at 679.
An employment discrimination complaint need not contain specific facts establishing a
prima facie case, but must contain only a “short and plain statement of the claim showing the
pleader is entitled to relief” pursuant to Rule 8(a)(2). Swierkiewicz v. Sorema N.A., 534 U.S. 506,
506 (2002). However, well-pleaded facts in the complaint must permit the court to infer more
than the mere possibility of misconduct. See Fed. R. Civ. P. 8(a)(2).
III. DISCUSSION
A. Race and gender discrimination
Plaintiff claims that Defendant discriminated against her in the workplace in violation of
Title VII and § 1981, alleging a variety of acts culminating in her discharge. (Doc. No. 1 at ¶ 35,
40, 51). The necessary elements to establish a discrimination claim under Title VII and § 1981
are the same. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004); Gariola v. Virginia Dep’t
of General Services, 753 F.2d 1281, 1285 (4th Cir. 1985). Race and gender discrimination claims
may be proved by either direct evidence or circumstantial evidence. Swierkiewicz, 534 U.S. at
506.
Plaintiff asserts sufficient circumstantial evidence to allege plausible claims of racial and
sex discrimination. To survive Defendant’s Rule 12(b)(6) motion to dismiss absent direct
evidence, a plaintiff must allege sufficient facts showing: (1) that she is a member of a protected

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class; (2) whose job performance was satisfactory; (3) that she was subjected to an adverse
employment action; and (4) that similarly situated employees outside her class received more
favorable treatment.2 See Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010) (citing
White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)).
Plaintiff is part of a protected class because she was the only female on the IT team and
one of two African-Americans in Defendant’s Charlotte office. (Doc. No. 1 at ¶ 10).
Additionally, Plaintiff raised sufficient facts in the Complaint to suggest that her job performance
was satisfactory. (Id. at ¶ 11). For example, Plaintiff received performance ratings of
“Excellent,” earned customer service awards, and accumulated no disciplinary warnings or job
coaching prior to April 2014. (Id.)
In order to demonstrate “adverse employment action” for the purposes of Plaintiff’s Title
VII claim, Plaintiff must show a “discriminatory act that ‘adversely affect[ed] the terms,
conditions, or benefits of the plaintiff’s employment.’” James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375 (4th Cir. 2004). The typical requirements for an adverse employment action
are “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory
responsibility, or reduced opportunities for promotion.” Boone v. Goldin, 178 F.3d 253, 255 (4th
Cir. 1999). This standard is strict, as “Congress did not intend Title VII to provide redress for
trivial discomforts endemic to employment.” Id. at 256. Plaintiff claims she was terminated on
the basis of sex and race discrimination. (Doc. No. 1). The Complaint alleged that Plaintiff had
been exposed to cursing and foul language from her coworkers throughout her employment,
although Plaintiff was terminated for similar actions and for leaving the office early after

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Plaintiff cites the structured procedures set forth in McDonnell Douglas Corp v. Green. 411 U.S. 792 (1973).
However, the Supreme Court held the McDonnell Douglas framework to be an evidentiary rather than a pleading
standard, noting “the prima facie case should not be transposed into a rigid pleading standard for discrimination
cases.” Swierkiewicz, 534 U.S. at 512.

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working all weekend. (Id.) Defendant states that Plaintiff never mentions race or gender in
explaining her termination, rather that she conceded she was terminated for legitimate reasons.
(Doc. No. 7). However, Plaintiff notes that her Caucasian, male coworkers had exhibited similar
behavior but had not faced termination and that Plaintiff was told that Mr. Munyak planned to
“get rid of her.” (Id.) Thus, Plaintiff has alleged sufficient facts to constitute adverse employment
action in order to Defendant’s Motion to Dismiss.
Plaintiff asserts she was treated differently than her male, Caucasian coworkers
throughout her time as an employee of Defendant. (See Doc. No. 1). Beyond the assignment of
extraneous clerical responsibilities, Plaintiff notes that she was not provided the same job-critical
office equipment as her Caucasian, male team members, and she was left out of work-related
meetings, trainings, outings, and business trips attended by her coworkers. (Id.) Further, Plaintiff
alleges that no action was taken when Plaintiff complained about Mr. Owens’s behavior, and
Plaintiff’s promotional meeting was rescheduled three times. (Doc. No. 8). Finally, Plaintiff
asserts that she was subjected to remarks from Mr. Munyak and Mr. Owens that she understood
to be discriminatory. (Doc. No. 1 at ¶¶ 20-23). Defendant notes Plaintiff fails to allege that her
position was filled by someone outside of her protected class. (Doc. No. 7). However, this
showing is not necessary at the pleadings stage. See O’Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 313 (1996) (“Because it lacks probative value, the fact that an ADEA
plaintiff was replaced by someone outside the protected class is not a proper element of the
McDonnell Douglas prima facie case.”).
In sum, Plaintiff’s racial and sex discrimination claims survive Defendant’s Rule 12(b)(6)
Motion to Dismiss because Plaintiff’s factual allegations are enough to “raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Plaintiff has alleged sufficient facts to

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meet the elements of a discrimination claim under Title VII and § 1981 for purposes of a Rule
12(b)(6) motion to dismiss.
B. Retaliation
Title VIII prohibits discrimination against any employee who “has opposed
any . . . unlawful employment practice” under Title VII. 42 U.S.C.A. § 2000e-3(a). To establish
a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) she
engaged in a protected activity; (2) her employer took some adverse employment action against
her; and (3) there is a causal link between the adverse employment action and the protected
activity. Ennis v. Mission Med. Associates, No. 1:15CV105, 2016 WL 1603593, at *4-5
(W.D.N.C. Mar. 28, 2016), report and recommendation adopted, No. 115CV00105MOCDLH,
2016 WL 1574614 (W.D.N.C. Apr. 19, 2016). However, as previously discussed, an
employment discrimination complaint need not contain specific facts establishing a prima facie
case, but must contain only a “short and plain statement of the claim showing the pleader is
entitled to relief.” Swierkiewicz, 534 U.S. at 512. In a retaliation claim, the plaintiff must allege
sufficient facts to show that the defendant discriminated against Plaintiff because she complained
of sexual and race discrimination. Ennis, 2016 WL 1603593, at *4-5. Further, the plaintiff must
allege facts demonstrating that the unlawful retaliation was the but-for cause of the alleged
discriminatory action by the employer. Id.
The Complaint gives rise to a plausible claim that, but-for Plaintiff’s complaints of race
and sex discrimination to her supervisor and to the Human Resources Office, she would not have
been terminated. (See Doc. No. 1). Plaintiff alleges sufficient facts to show that she had a
reasonable belief that she had experienced race and sex-based discrimination. (Id.) Additionally,
Plaintiff engaged in a protected act when she complained to Human Resources in June 2014. (Id.

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at ¶ 25). After Plaintiff returned from medical leave in September 2014, Mr. Munyak engaged in
behavior that Plaintiff believed penalized her for the complaints of racial and sex discrimination,
such as changing her job responsibilities and removing her access to certain accounts. (Id. at ¶
26).
Finally, Plaintiff offers sufficient facts to suggest a causal connection between the
allegedly retaliatory acts after Plaintiff complained to Human Resources and her ultimate
termination. Although Defendant claims Plaintiff was terminated for using “inappropriate
language” and for leaving work early, other Caucasian, male employees had used foul language
throughout Plaintiff’s employment without being terminated. (Id. at ¶ 24). Further, Plaintiff told
Mr. Munyak she was leaving early. (Id. at ¶ 29). The circumstances surrounding the termination
and Plaintiff’s factual allegations regarding pre-termination discrimination suggest Defendant’s
reason for termination was pretextual, and that Plaintiff would not have been terminated had she
not complained to Mr. Munyak and Human Resources. Thus, Plaintiff has alleged sufficient facts
to state a facially plausible claim for retaliation.
C. Hostile work environment
Title VII creates a hostile work environment claim because an employee’s work
environment is a term or condition of employment. Walker v. Mod-U-Kraf Homes, 775 F.3d 202,
207 (4th Cir. 2014). A plaintiff alleging racial or sex-based harassment “must demonstrate that a
reasonable jury could find [the] harassment (1) unwelcome; (2) based on [her race and/or sex];
and (3) sufficiently severe or pervasive to alter the conditions of employment and create an
abusive atmosphere.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001). A
hostile work environment is one “permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and

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create an abusive working environment.” Walker, 775 F.3d at 207. Further, the alleged harasser’s
relationship to the plaintiff as a supervisor or as a coworker is a critical determination in a hostile
work environment inquiry. McKinnish v. Donahoe, 40 F. Supp. 3d 689, 694 (W.D.N.C. 2015). In
Faragher v. City of Boca Raton, the Supreme Court held that if a supervisor is engaging in
harassment and takes tangible employment action against employee victim, then the employer
can be vicariously liable for that supervisor’s actions. 524 U.S. 775, 807 (1998). Employer
liability for harassment by a coworker only attaches if the employer was negligent in controlling
the working conditions. McKinnish, 40 F. Supp. 3d at 695 (quoting Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)).
Plaintiff alleges that she suffered several incidents amounting to a hostile work
environment claim while she was an employee of Defendant. (Doc. No. 1-1 at ¶ 40; Doc. No.
10-1 at 40) However, to the extent that Plaintiff alleges that Mr. Munyak created a hostile work
environment as her supervisor, she is unsuccessful. Plaintiff alleges mere inconveniences, such
as the fact that Mr. Munyak kept her out of job critical meetings and failed to supply her with
job-related information. (Doc. No. 8). Plaintiff also points to allegedly discriminatory comments
from her supervisor. (Id.) However, this behavior is not sufficiently “severe or pervasive” to rise
to the level of a hostile work environment claim. Walker, 775 F.3d at 207. Plaintiff identifies
only a few comments from her supervisor and a series of incidents occurring over a period of
months. (See Doc. No. 1). These instances do not arise to behavior creating a hostile work
environment, especially considering conduct this Court has previously found actionable. See,
e.g., Tims v. Carolinas Healthcare Sys., 983 F. Supp. 2d 675, 681 (W.D.N.C. 2013) (holding
plaintiff’s allegations that a supervisor referred to her as “you people” and “y’all blacks” did not
rise to the level of severity necessary to alter the terms and conditions of employment).

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To the extent that Plaintiff alleges that Mr. Owens created a hostile work environment,
Plaintiff is again unsuccessful. First, Plaintiff has not alleged sufficient facts to suggest that her
coworker’s conduct can be attributed to SGL Carbon, Inc., as she does not assert anything to
indicate that SGL Carbon was negligent in controlling the working conditions of its Charlotte
office. See, e.g, McKinnish, 40 F. Supp. 3d at 697 (holding that plaintiff failed to present
evidence that a postal service employer was negligent in controlling working conditions).
Further, similar to Plaintiff’s hostile work environment claim against Mr. Munyak, the
Complaint does not allege behavior from Mr. Owens rising to the level necessary for a hostile
work environment claim. In support of her claim, Plaintiff points to one comment from Mr.
Owens that she understood to be discriminatory and incidents where Mr. Owens refused to help
Plaintiff. (See Doc. No. 1). Plaintiff’s claims against Mr. Owens do not “alter the conditions of
the victim’s employment and create an abusive working environment.” Walker, 775 F.3d at 207.
Finally, Plaintiff’s Proposed Amended Complaint (Doc. No. 10-1) contains no additional
facts that could give rise to an inference that Defendant created a hostile work environment.
Accordingly, although she will be permitted to file her Amended Complaint, she should omit
reference to Defendant’s alleged creation of a hostile work environment.
IV. CONCLUSION
The Court finds that Plaintiff’s Complaint adequately states claims of race discrimination,
gender discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964
and 42 U.S.C. § 1981. Accordingly, Plaintiff’s discrimination and retaliation claims are not
dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). However,
the Court finds that the Complaint fails to allege sufficient facts to show Plaintiff is entitled to
relief for her hostile work environment claim. The Court will grant a motion to dismiss where

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the factual allegations do not “raise a right to relief above a speculative level.” Twombly, 550
U.S. at 570.
THEREFORE, Defendant’s Motion to Dismiss for Failure to State a Claim (Doc. No. 6)
is GRANTED IN PART and DENIED IN PART. Plaintiff’s Motion to Amend/Correct is
GRANTED, and Plaintiff may file her Amended Complaint.
SO ORDERED.

Signed: June 27, 2016

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