Thomas v. Helms Robinson & Lee, P.A.

Filing 15

MEMORANDUM AND RECOMMENDATIONS on 6 MOTION to Dismiss for Failure to State a Claim filed by Helms Robison & Lee, P.A. ( Objections to M&R due by 12/22/2016 plus an additional 3 days if served by mail), IT IS ORDERED that Plaintiff file an "Amended Complaint" on or before December 19, 2016, as directed herein. Signed by Magistrate Judge David Keesler on 12/7/16. (Pro se litigant served by US Mail.)(mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-139-RJC-DCK
KELLY THOMAS,

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Plaintiff,
v.

HELMS ROBISON & LEE, P.A.,
Defendant.

MEMORANDUM AND
RECOMMENDATION AND
ORDER

THIS MATTER IS BEFORE THE COURT on “Defendant Helms Robison & Lee,
P.A.’ Motion To Dismiss” (Document No. 6). This motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. §636(b), and is now ripe for disposition. Having carefully
considered the arguments, the record, and the applicable authority, the undersigned will
respectfully recommend that the motion be denied.
I. BACKGROUND
Kelly Thomas (“Plaintiff”), appearing pro se, initiated this action with the filing of a
“Complaint” (Document No. 1) on March 17, 2016. The Complaint alleges that Plaintiff was
employed as a receptionist at Helms Robison & Lee, P.A. (“Defendant”) beginning on March 2,
2015. (Document No. 1). Plaintiff contends that she suffered discriminatory treatment on the
basis of her race (African-American), and that she was terminated on April 17, 2015, in retaliation
for complaining about such treatment. Id.
Plaintiff specifically alleges that she was subjected to “severe, offensive and ongoing
comments about her race,” from the first day of her employment. (Document No. 1, p.2). Plaintiff
states that Defendant’s human resources manager asked her “where did you come from and how

did you get here,” and that a paralegal said “[s]he’s a black lady, and doesn’t know what she’s
doing.” Id. Plaintiff also contends that she was instructed to refer to Defendant’s Caucasian male
employees as “Mister,” although non-African American employees were not subject to this rule.
Id.
Plaintiff’s allegations also refer to “Defendant’s contractor James, (last name unknown)”
who told Plaintiff she “must be one of the good ones,” referring to her race, and then later said that
he was not racist, but “I don’t like colored smurfs.” Id. Plaintiff further alleges that “James” was
instructed by Defendant’s management to “watch” her and that he told her on “several occasions,
‘I’m watching you.’” (Document No. 1, p.3).
Plaintiff’s allegations contend that she “complained about the continuing racially
derogatory comments” to partners Helms and Lee on March 27, 2015, but that they apparently
took no action in response. Id. Finally, Plaintiff contends that after an approved two-day absence
to care for her sick child, she was immediately terminated on April 17, 2015, despite never
receiving “written reprimands or warnings of any kind.” (Document No. 1, pp.2,4).
Plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”)
on April 27 2015, based on discrimination due to her race and retaliation. Id. Plaintiff received a
“Notice Of Right To Sue” on December 18, 2015. Id.
The Complaint filed with this Court on March 17, 2016, asserts claims for: (1) hostile
work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000(e), et seq.
(“Title VII”); and (2) retaliation under Title VII. (Document No. 1, pp.4-6). Also on March 17,
2016, Plaintiff filed an “Application To Proceed In District Court Without Prepaying Fees Or
Costs” (Document No. 2). The Honorable Robert J. Conrad, Jr., presiding district judge, granted
Plaintiff’s motion to proceed in forma pauperis on May 26, 2016. (Document No. 3).

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“Defendant Helms Robison & Lee, P.A.’ Motion To Dismiss” (Document No. 6) and
“Brief In Support…” (Document No. 7) were filed on August 1, 2016. Defendant seeks dismissal
for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Document Nos. 6 and 7). The Court
issued a “Roseboro Order” (Document No. 8) on August 2, 2016, advising pro se Plaintiff of her
right to respond to the motion to dismiss.
Plaintiff filed a “Response In Opposition…” (Document No. 11) on September 6, 2016,
but appears to have inadvertently omitted an intended “Memorandum in Opposition.”

See

(Document No. 11, p.2). On November 10, 2016, the undersigned sua sponte allowed Plaintiff
additional time to file a memorandum in response to the motion to dismiss. (Document No. 12).
Plaintiff’s “Memorandum In Opposition ….” (Document No. 13) was then filed on November 18,
2016; and Defendant’s “Reply Brief In Support…” was filed December 1, 2016.
As such, this matter is now ripe for review and a recommendation to Judge Conrad.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the “legal sufficiency of the
complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss 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, 697 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, Robinson v.
American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “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.” Iqbal, 556 U.S. at 678.

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).
“Although for the purposes of this motion to dismiss we must take all the factual allegations
in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “should view the complaint
in the light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th
Cir. 1993).
The courts traditionally hold pleadings by pro se parties “to less stringent standards than
formal pleadings drafted by lawyers....” Haines v. Kerner, 404 U.S. 519, 520 (1972). The Fourth
Circuit also recognizes that “we must construe pro se complaints liberally.” Laber v. Harvey, 438
F.3d 404 (4th Cir. 2006) (citing Hemphill v. Melton, 551 F.2d 589, 590-91 (4th Cir. 1977)).
Therefore, the undersigned will interpret Plaintiff’s papers “to raise the strongest arguments that
they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2nd Cir. 1994).
III. DISCUSSION
A. Hostile Work Environment
Defendant first argues that Plaintiff’s hostile work environment claim should be dismissed
because Plaintiff has not alleged severe or pervasive harassment, or harassment by someone in a
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supervisory role. (Document No. 7, p.4) Defendant notes that Plaintiff must show that the
complained conduct was: “(1) unwelcome; (2) based on the plaintiff’s race; (3) sufficiently
severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work
environment; and (4) is imputable to the employer.” (Document No. 7, p.5) (citing Okoli v. City
of Balt., 648 F.3d 216, 220 (4th Cir. 2011)).
The crux of Defendant’s argument in support of dismissing the hostile work environment
claim is that Plaintiff’s claims are too “vague and conclusory” to rise to the level of unlawful
conduct. (Document No. 7, pp.7-8). Moreover, Defendant argues that Plaintiff has not adequately
shown that the purported harassment is imputable to the employer – “Plaintiff has not alleged that
any of the offending employees, or contractors, of Helms Robison were supervisory employees.”
(Document No. 7, p.8).
Plaintiff’s “Memorandum In Opposition…” primarily re-asserts the allegations in the
Complaint. (Document No. 13). Plaintiff contends that the Complaint “specifically alleges that
she experienced numerous and ongoing racially derogatory comments from Defendant’s
employees” and “that she complained about these comments to management.” (Document No.
13, p.6).
The undersigned observes that the Complaint and Plaintiff’s brief in opposition both also
allege that a contractor employed by Defendant named “James” was instructed by Defendant’s
management to “watch” Plaintiff, and that he advised her “on several occasions” that he was indeed
watching her. (Document No. 1, p.3; Document No. 13, p.2). This allegation, combined with
Plaintiff’s other descriptions of her work environment, indicates factual support that the alleged
discrimination was pervasive and imputable to the employer. Plaintiff essentially alleges that
management directed “James” to supervise her, even though he is identified as a “contractor.”

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Applying the standard of review set forth above, and construing Plaintiff’s Complaint
liberally and in the most favorable light, the undersigned will recommend that Defendant’s motion
be denied as to the hostile work environment claim. It may be a close call, but it seems Plaintiff’s
allegations are sufficient to survive at this stage, and that discovery on this issue is appropriate.
B. Retaliation
Next, Defendant argues that Plaintiff’s retaliation claim should be dismissed because she
has not sufficiently alleged: (1) an objective belief that she engaged in a protective activity; or
(2) a causal connection between her termination and the protected activity. (Document No. 7,
pp.9-12).1

Defendant contends that Plaintiff has not alleged any direct evidence that its

termination of Plaintiff was motivated by race. (Document No. 7, p.9). Therefore, Defendant
asserts that “to establish a prima facie claim for retaliation in violation of Title VII, a plaintiff must
prove: (1) that she engaged in a protected activity; (2) that her employer took an adverse action
against her; and (3) that there was a causal link between these two events. Id. (citing EEOC v.
Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005)).
1.

Protected Activity

Defendant first asserts that Plaintiff failed to allege that she engaged in a protected activity,
the first element of a retaliation claim. (Document No. 7, p.10) (citing EEOC v. Navy Fed. Credit
Union, 424 F.3d at 405-06). Defendant ultimately concludes that because “Plaintiff’s allegations
of discriminatory conduct are vague, ambiguous and in some cases were not even directed at

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The undersigned observes that both Plaintiff and Defendant refer to paragraphs in the Complaint that
are not currently available on the Court’s docket. Compare (Document No. 1, pp.5-6 with Document No.
7, pp.4, 7 and Document No. 13, p.7). The undersigned has reviewed a hard copy of the missing page
from Plaintiff’s original filing that appears to be consistent with the parties’ references in their briefs.
However, the undersigned will direct Plaintiff to file an “Amended Complaint,” including all pages and
exhibits, as well as Plaintiff’s “Dismissal Notice Of Right To Sue.”
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Plaintiff,” her “reports of these statements to Helms Robison’s partners cannot reasonably be
believed to be protected activity.” Id.
The undersigned notes that the EEOC v. Navy Fed. Credit Union decision relied on by
Defendant provides the following instructive explanation of protected activity:
in the context of a retaliation claim, a “protected activity” may fall
into two categories, opposition and participation. Only one of these
categories—opposition—is relevant here. See Laughlin, 149 F.3d
at 259 (citing 42 U.S.C. § 2000e–3(a)). As we have recognized,
protected oppositional activities may include “staging informal
protests and voicing one’s own opinions in order to bring attention
to an employer’s discriminatory activities,” id., as well as
“complain[ts] ... about suspected violations,” Bryant v. Aiken Reg’l
Med. Ctrs., Inc., 333 F.3d 536, 543–44 (4th Cir. 2003).
EEOC v. Navy Fed. Credit Union, 424 F.3d at 406.
In this case, the Complaint in most pertinent part states:
Thomas complained about continuing racially derogatory comments
she had been subjected to throughout her employment to Helms and
Lee on or about March 27, 2015. Upon information and belief,
Helms and Lee took no action to investigate or remedy the
harassment. Helms only response was to tell Thomas she needed to
“get a thick skin.”
(Document No. 1, ¶ 15).
Applying Defendant’s caselaw, the undersigned is persuaded that Plaintiff has sufficiently
alleged that she participated in a protected activity. At a minimum, the Complaint adequately
alleges that Plaintiff voiced her opinion “to bring attention to her employer’s discriminatory
activities,” and/or “about suspected violations.” See EEOC v. Navy Fed. Credit Union, 424 F.3d
at 406.
2. Causal Connection
Defendant also argues that Plaintiff’s Complaint does not provide a sufficient causal link
between her complaint of discrimination and her termination. (Document No. 7, p.10). Defendant
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acknowledges that Plaintiff has alleged “a causal connection existed between the discharge and
the complaint,” but argues that “[s]uch conclusory allegation cannot support Plaintiff’s claim.”
(Document No. 7, pp.10-11) (citing Document No. 1 at ¶ 33).
Defendant further acknowledges that “[a]lthough a short interval between a plaintiff’s
protected activity and an adverse employment action may occasionally raise an inference of
causation, …in general, more than a temporal connection is required.” (Document No. 7, p.11)
(quoting Freeman v. Ace Tel. Ass’n, 467 F.3d 695, 697-98 (8th Cir. 2005). Defendant concludes
that allegations of intervening events – including Plaintiff’s two-day absence to care for her sick
child – are sufficient to break the causal connection between her termination and the report of
purported discrimination. Id.
The undersigned respectfully disagrees, and finds that the Complaint provides adequate
factual content to draw a reasonable inference that Defendant is liable for retaliation. Contrary to
Defendant’s argument, the undersigned is persuaded that there is sufficient temporal proximity
between Plaintiff’s protected activity (her report to the partners) and Defendant’s adverse action
(Plaintiff’s termination) to plausibly support a causal link.
Moreover, liberally construing pro se Plaintiff’s Complaint, there is enough factual
content, and notice to Defendant, to allow this claim to also proceed to discovery. See Erickson
v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56). Plaintiff does not
have to prove her claim(s) at this stage; rather, she must “‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Id.
Of course, the undersigned express no opinion as to whether Plaintiff’s claims are likely to
withstand a future dispositive motion after the facts, arguments, and authority related to these
claims have been further developed.

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IV. RECOMMENDATION AND ORDER
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant Helms Robison & Lee, P.A.’ Motion To Dismiss” (Document No. 6) be DENIED.
IT IS ORDERED that Plaintiff file an “Amended Complaint” on or before December 19,
2016, as directed herein.
V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005). Moreover, failure
to file timely objections will preclude the parties from raising such objections on appeal. Diamond,
416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Snyder v. Ridenhour, 889
F.2d 1363, 1365 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), reh’g denied, 474
U.S. 1111 (1986).
IT IS SO RECOMMENDED AND ORDERED.

Signed: December 7, 2016

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