Morrison v. Resource Management Concepts
Filing
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ORDER granting 5 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Graham Mullen on 3/21/17. (Pro se litigant served by US Mail.)(ssh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OFNORTH CAROLINA
CHARLOTTE DIVISION
3:16CV651-GCM
RAYKISHA MORRISON,
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Plaintiff,
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Vs.
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RESOURCE MANAGEMENT
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CONCEPTS, INC.,
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Defendant.
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____________________________________)
ORDER
This matter is before the Court upon Defendant’s Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The pro se Plaintiff has filed a response, and
the Defendant has elected not to file a Reply. Accordingly, this matter is ripe for disposition.
I.
FACTUAL BACKGROUND
The pro se Plaintiff, an African-American female, filed her Amended Complaint alleging
race and sex discrimination and retaliation. This action arises from the Plaintiff’s employment
and subsequent discharge from her position as an Occupational, Safety, and Health Specialist in
Defendant Resource Management Concepts, Inc.’s (“RMC”) Environmental & Safety Division.
Plaintiff was hired by RMC on February 4, 2013. (Amd. Compl. ¶ 6). She alleges that she was
the only African-American and the only female under the supervision of Brent Elrod. Id. at ¶¶ 89. She alleges that after Elrod became her supervisor, she “began to be falsely blamed for not
completing assignments, missing meetings, and being nonresponsive to [her] clients.” Id. at ¶ 10.
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At her 2014 annual performance review, Elrod commented that Plaintiff “had an
unprofessional and confrontational tone/approach in written responses to customers and peers”
and that she was “unresponsive to calls from [Elrod], and failed to attend scheduled team
meetings.” Id. at ¶ 12. On April 6, 2015, Plaintiff was provided a performance improvement
plan as a result of the 2014 annual review. Id. at ¶¶ 14, 18. On the same day, at a meeting
discussing the review, Plaintiff indicated that she disagreed with Mr. Elrod’s evaluation. Id. At
the same meeting, Plaintiff also commented that she believed she was being accused of being
confrontational and aggressive “because of misperceptions based on [her] sex and race. Id. at ¶
15. In August of 2015, Plaintiff was told that she was responsible for presenting two Power
Point presentations. Id. at ¶ 19. She completed the presentations but complained to Mr. Elrod
that one did not go well due to mistakes made by those who created the presentations. Id.
On November 2, 2015, Mr. Elrod called the Plaintiff and told her that she was being
discharged due to the poor presentations in August and because “RMC had received negative
comments about [her] from all of [her] clients.” Id. at ¶ 20. Plaintiff alleges that throughout her
employment with Defendant she has “satisfactorily performed [her] job duties and met RMC’s
expectations.” Id. at ¶ 21.
Plaintiff alleges that her termination was in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., in that she was terminated because of her race and sex, and that
she was retaliated against for complaining that she was being discriminated against on the basis
of her race and sex. Defendant seeks to dismiss Plaintiff’s Amended Complaint for failure to
state a claim upon which relief can be granted.
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II.
DISCUSSION
When faced with a Rule 12(b)(6) motion to dismiss, courts are instructed to “accept as
true all well-pleaded allegations and . . . view the complaint in a light most favorable to the
plaintiff.” Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, this
procedural safeguard does not apply to both implausible factual allegations and any of a
plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009).
Moreover, Plaintiff has the burden of pleading “more than a sheer possibility that a
defendant acted unlawfully.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal
quotations omitted). While “hyper-technical” pleadings of earlier legal eras are not required,
Plaintiffs must make more than “naked assertions of wrongdoing” without any “factual
enhancement.” Id., quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
The Fourth Circuit requires district courts to construe pro se complaints liberally to
ensure that valid claims do not fail for lack of legal specificity. Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir.1978). However, this liberal construction need not extend to outright advocacy for
the pro se plaintiff nor will it permit a district court to ignore a clear failure of the pro se plaintiff
to allege facts in the complaint which set forth a claim that is cognizable under federal law. Id.;
Weller v. Dep't of Soc. Services, 901 F.2d 387 (4th Cir.1990). The Court does not have to divine
facts not disclosed by the Plaintiff in her Complaint, nor must the Court invoke causes of action
that are neither articulated nor supported by factual allegations.
Indeed, pro se plaintiffs, with the assistance of the district court's lenient eye, must still
do more than a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at
555 (internal citations omitted). Like plaintiffs who are represented by counsel, a pro se plaintiff
must still “allege facts sufficient to state all the elements of [the] claim.” See Bass v. E.I. Dupont
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de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). In light of Twombly and Bass, conclusory
statements with insufficient factual allegations, even when asserted by pro se plaintiffs, will
simply not suffice. To survive a motion to dismiss under Twombly, a plaintiff must allege enough
facts “‘to raise a right to relief above the speculative level’ and must provide ‘enough facts to
state a claim to relief that is plausible on its face.’” Robinson v. Am. Honda Motor Co., 551 F.3d
218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570).
In order to allege a plausible prima facie claim for sex or race discrimination, the Plaintiff
must allege sufficient facts to establish: (1) membership in a protected class; (2) satisfactory job
performance; (3) an adverse employment action; and (4) more favorable treatment of similarlysituated employees outside the protected class. See Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010) aff’d 566 U.S. 30 (2012).
The Amended Complaint fails to allege facts that establish that the Plaintiff performed
her job duties in a satisfactory manner. There are no allegations that the Plaintiff was told by any
of her supervisors at RMC that her performance met their expectations. Plainly stated, outside of
the Plaintiff’s naked assertion that she “satisfactorily performed [her] job duties and met RMC’s
expectations,” (Amd. Compl. ¶ 21), the Amended Complaint is devoid of any facts that establish
that the Plaintiff performed her job in a satisfactory manner. Instead, the Amended Complaint
discloses facts that establish the opposite - that the Plaintiff consistently failed to meet RMC’s
expectations. In April 2015, the Plaintiff was provided with a performance review. Id. at ¶ 11. In
this review, written by the Plaintiff’s supervisor, the Plaintiff was informed that she:
•
“had an unprofessional and confrontational tone/approach in written
response to customers and peers”;
•
“was unresponsive to calls from [her supervisor]; and
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•
“failed to attend scheduled team meetings.”
Id. at ¶ 12. In addition to the annual review, and based upon the concerns contained therein, the
Plaintiff’s supervisor provided the Plaintiff with a Performance Improvement Plan intended to
address the Plaintiff’s job performance shortcomings. Id. at ¶ 14. Despite efforts by RMC to
address the Plaintiff’s substandard performance, the Plaintiff failed to remedy her deficiencies. In
August 2015, the Plaintiff performed poorly during a presentation that RMC had asked her to
conduct. Id. at ¶ 19. With no signs of improvement by the Plaintiff and based upon her pattern of
poor performance, RMC informed the Plaintiff that she was being discharged. Id. at ¶ 20.
Because the Amended Complaint fails to allege facts that could plausibly support a claim
that the Plaintiff was performing her job satisfactorily, and instead alleges facts that establish the
opposite - that the Plaintiff had consistently failed to fulfill her position’s duties - the Plaintiff’s
claim for sex and race discrimination must be dismissed.
In addition to her failure to plausibly allege satisfactory performance of her job, Plaintiff
also fails to allege that others outside of the protected class who were similarly situated were
treated more favorably. She merely alleges in vague and conclusory terms that she was treated
“differently from, and less preferably than” two “similarly-situated” non-African American male
employees, Don Durnill and Stephen Smith. Id. at ¶ 27. This conclusory allegation fails to
establish a plausible basis for believing that these two employees were actually similarly situated
or that Plaintiff’s race and/or sex was the basis for her termination. See Coleman, 626 F.3d at
191.
Plaintiff next contends she was retaliated against by Defendant in response to her
allegation that she was being discriminated against. To establish a prima facie case for
retaliation, a plaintiff must show (1) that she engaged in protected activity; (2) that the employer
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took an adverse employment action against her; and (3) there is a causal nexus between the
protected activity and the adverse action. Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243,
250 (4th Cir. 2015). Retaliation claims require the employee to show “that retaliation was a butfor cause of a challenged adverse employment action.” Guessous v. Fairvew Prop. Investments,
LLC, 828 F.3d 208, 216-17 (4th Cir. 2016) citing Foster v. Univ. of Md.-E. Shore, 787 F.3d 243,
252 (4th Cir. 2015). Thus, to state a Title VII retaliation claim, a plaintiff must plausibly allege a
but-for causal connection between plaintiff's protected activity and the alleged retaliation. Naked
allegations of a causal connection between plaintiff's protected activity and the alleged retaliation
do not state a plausible Title VII claim. See McCleary-Evans v. Maryland Dep't of Transp., State
Highway Admin., 780 F.3d 582, 585-88 (4th Cir. 2015), cert. denied, 136 S. Ct. 1162 (2016).
The Amended Complaint fails to plausibly state a cognizable claim for retaliation as it
fails to present any factual allegations supporting a retaliation claim under Title VII. Plaintiff
concedes that her 2014 Performance Review contained comments indicating that her supervisor
had concerns regarding the Plaintiff’s professionalism, written tone, lack of responsiveness, and
failure to attend team meetings. It was only after this document was provided to the Plaintiff, and
during a conversation regarding the Performance Review’s contents, that the Plaintiff alleges she
voiced concerns regarding “misperceptions based on [her] sex and race,” which the Plaintiff
contends represents protected activity.
The allegations in the Amended Complaint establish that RMC had developed significant
and serious concerns regarding the Plaintiff’s job performance, and that these concerns were
provided in writing to the Plaintiff prior to the Plaintiff engaging in any alleged protected
activity. Moreover, the allegations in the Amended Complaint establish that the Plaintiff was
discharged nearly seven months following the Plaintiff’s alleged protected activity, when it
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became clear that the Plaintiff had failed to address the concerns contained in the Performance
Review. Because the Plaintiff has failed to plausibly establish that her participation in a protected
activity was a but-for cause of her termination, the Plaintiff’s claim for retaliation must likewise
be dismissed.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss is hereby
GRANTED.
Signed: March 21, 2017
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