Floyd v. LGI Homes et al

Filing 18

ORDER granting 12 Motion to Dismiss. Defendants Michael Sabik and Susan Thompson are TERMINATED from this case, and the Title VII claim against Defendant LGI Homes NC, LLC is DISMISSED. Signed by Senior Judge Graham Mullen on 7/27/2017. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CV-00197-GCM
KAREN Y. FLOYD,
Plaintiffs,
v.
MICHAEL SABIK
LGI HOMES
SUSAN THOMPSON,
Defendants.

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ORDER

THIS MATTER is before the Court upon Defendants’ Motion to Dismiss pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has filed a response
and Defendants have filed a reply. Accordingly, this matter is ripe for disposition.
I.

Introduction
This action was filed pro se on April 13, 2017. [Doc. No. 1]. Plaintiff claims that

Defendants discriminated against her based upon her race and disability in violation of Title VII
of the Civil Rights Act (“Title VII”) and the Americans with Disability Act (“ADA”) by not hiring
her. Id. at 4. Plaintiff filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) on April 15, 2015 in which she asserted that she was discriminated against based upon
her disability. Id. at 5. On February 24, 2017, Plaintiff received a “right to sue letter” and
subsequently filed the current action. Id. In response to Plaintiff’s suit, Defendants filed the present
Motion to Dismiss the Corporate Defendant, LGI Homes – NC, LLC1 (“LGI”), from the Title VII

The correct Defendant Corporation is “LGI Homes – NC, LLC,” not “LGI Homes.” The Clerk is directed to
correct the Defendant Corporation’s name accordingly.
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claim under Rule 12(b)(1) and the Individual Defendants, Michael Sabik (“Sabik”) and Susan
Thompson (“Thompson”), from both claims under Rules 12(b)(1) and 12(b)(6) [Doc. No. 12].
II.

Legal Standard
“Rule 12(b)(1) provides for dismissal of a lawsuit where a court lacks jurisdiction over the

subject matter of the lawsuit.” Miller v. Ingles, No. 1:09-CV-200, 2009 WL 4325218, at *3
(W.D.N.C. Nov. 24, 2009); Fed. R. Civ. P. 12(b)(1). “Lack of subject-matter jurisdiction may be
raised at any time either by a litigant or the court.” Id. (citing Mansfield, C. & L.M.R. Co. v. Swan,
111 U.S. 379, 382 (1884)). When a court considers subject-matter jurisdiction, the burden of proof
is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
In order to survive a motion to dismiss under Rule 12(b)(6), Plaintiff’s Complaint must
contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). As the United
States Supreme Court has held, the “short and plain statement of the claim,” as set forth in Rule
8(a)(2), “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 Twombly, 550 U.S. at
570). A complaint is only plausible when it “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. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. A court need not accept as true a plaintiff’s “unwarranted
inferences, unreasonable conclusions, or arguments.” Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008).
While courts must liberally construe pro se complaints, the court is not required to accept
a pro se plaintiff’s contentions as true, Denton v. Hernandez, 504 U.S. 25, 32 (1992), and cannot

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ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court.
See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial
solicitude’ with which a district court should view such pro se complaints does not transform the
court into an advocate. Only those questions which are squarely presented to a court may be
properly addressed.”). “Like plaintiffs who are represented by counsel, a pro se plaintiff must still
‘allege facts sufficient to state all the elements of [the] claim.’” Justice v. Dimon, 2011 WL
2183146, at *4 (W.D.N.C. June 6, 2011) (quoting Bass v. E.I. DuPont 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.”
Id.
III.

Discussion
To maintain a suit under Title VII, Plaintiff must first file a charge with the EEOC and then

receive a “letter to sue” from the EEOC. See 42 U.S.C. § 2000(e)-5(f)(1) (2012). Plaintiff herein
provided the “letter to sue” she received from the EEOC. [Doc. No. 1]. However, that letter only
granted her the right to sue under the ADA, not Title VII. Id. Failure to attain a Title VII “letter to
sue” deprives this Court of subject-matter jurisdiction over that cause of action and it must
therefore be dismissed. See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing
Davis v. N.C. Dep’t of Corr., 48 F.3d 134, 138–40 (4th Cir. 1996)). The Court notes that Plaintiff
is pro se, but she presents no defense against a failure to follow administrative procedure and its
consequential deprivation of subject-matter jurisdiction. As such, Plaintiff’s Title VII claim against
all Defendants shall be dismissed.
Turning to the ADA claim, Plaintiff correctly followed administrative procedure. [Doc.
No. 1]. See 42 U.S.C. § 12117 (2012). However, the ADA does not allow for individual liability.

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See Swaim v. Westchester Academy, Inc., 170 F. Supp. 2d 580, 583 (M.D.N.C. 2001) (“[I]ndividual
defendants do not face personal liability under the Americans with Disabilities Act.”) (citing Baird
v. Rose, 192 F.3d 462, 472 (4th Cir. 1999)). In fact, one of the fundamental requirements of the
ADA is that the defendant be an “employer” of at least fifteen individuals. 42 U.S.C. §§ 12111–
12 (2012) (emphasis added). Plaintiff again presents no argument as to how individuals can be
liable under the ADA. Consequently, even when taking the facts in a light most favorable to
Plaintiff and taking into account her pro se status, Plaintiff fails to state an ADA claim against the
Individual Defendants. Accordingly, Defendants’ Motion to Dismiss the ADA claim against the
Individual Defendants shall be granted.

IV.

Conclusion
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss is hereby

GRANTED, Defendants Michael Sabik and Susan Thompson are TERMINATED from this
case, and the Title VII claim against Defendant LGI Homes – NC, LLC is DISMISSED.

Signed: July 27, 2017

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