Parker v. Curtis Wright Corporation

Filing 27

ORDER denying 26 Motion for Reconsideration. Signed by District Judge Max O. Cogburn, Jr on 4/13/2018. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00639-MOC-DCK
ANTHONY PARKER,

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Plaintiff,
Vs.
CURTIS WRIGHT CORPORATION,
Defendant.

ORDER

THIS MATTER is before the Court on a letter (#26) sent to Chambers by plaintiff. The
Court has read the letter and determined that it is a request for reconsideration of the Court’s
earlier Order (#21) dismissing the action upon defendant’s Motion to Dismiss.
The Court notes that such motion comes immediately after plaintiff filed his Notice of
Appeal (#23) from this Court’s Order (#21) and Judgment (#22). Traditionally, the filing of an
appeal divested the district court of jurisdiction. However, Rule 62.1 of the Federal Rules of Civil
Procedure provides district court with the ability to address certain motions filed during the
pendency of an appeal. In particular, Rule 62.1(a) provides, as follows:
(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands
for that purpose or that the motion raises a substantial issue.

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Fed.R.Civ.P. 62.1. Thus, under Rule 62.1, this Court is limited to either denying the motion or
providing the appellate court with notice that it intended to grant the motion or that the motion
raised an issue requiring additional consideration.
Rule 59(e) governs motions to amend and Rule 60 provides for relief from judgment and
orders based on clerical error, oversight, and mistakes. See Fed.R.Civ.P. 60; c.f. Fed.R.Civ.P. 59.
The Court has fully considered plaintiff’s Motion to Reconsider and his exhibits. For cause,
plaintiff states:
After reviewing your prestigious background felt you might be empathic to
legal wrongs. Your recent decision dated April 5, 2017, did not consider physical
evidence submitted. The physical evidence included the Defendants' EEOC
position statement with Defendants evidence.
Moreover, Randstad the email sender, denies involvement with fabricated
libelous statement. Additionally, Defendants witness denies sexual harassment
occurred.
The law requires proving my case by a preponderance of the evidence in a
civil matter. However, your decision makes no reference to evidence submitted.
Stevie Wonder can see the email is copied and pasted together.
My dilemma started from protesting the treatment of a young black man at
Curtiss Wright Corporation. Young black males encounter an unequal economic
divide in the work place. Without protesting the disparaging treatment in the work
place, young black male feel hopeless. Yes, I protested unfair treatment of Kenya
Boxley, not considering my consequence.
Furthermore, your decision goes on to infer that your Court is not a place
for me to [sue].

Motion to Reconsider (#26) at 1.
Fundamentally, plaintiff misconstrues the nature of review under Rule 12(b)(6) as it is not
an attempt to weigh the evidence either side may have, but is a review of the allegations in
Complaint to determine whether they state a cause of action under the law. As provided in the
Order (#21), “ when ruling on a Rule 12(b)(6) motion, ‘a judge must accept as true all of the factual
allegations contained in the complaint.’” Order (#21) at 4 (citing Erickson v. Pardus, 551 U.S. 89,
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94 (2007) (per curiam) (citations omitted)). The evidence he may have in support of those
allegations is not relevant at the Rule 12 stage as the Court presumes all the well-pled factual
allegations are true. Indeed, the Court is not allowed to look beyond the four corners of the
Complaint in making its Rule 12(b)(6) determination.
Finally, plaintiff appears to argue that he was fired for protesting the treatment of another
employee who was in his protected class, Mr. Boxley. Motion (#26), and that this Court did not
address that issue. As this Court summarized in its previous Order, plaintiff alleged that he
counseled an employee on August 10, 2017. He learned on August 31, 2017, that his supervisor,
Mr. Owens, was investigating that counseling session, focusing on comments plaintiff made about
the Quality Department, and that Mr. Owens, as part of that investigation, asked a black male
coworker to provide a statement regarding plaintiff’s comments. Plaintiff then alleged the
coworker later resigned, concluding that Mr. Owens’ request for a statement amounted to “ethnic
intimidation.” Complaint (#1) at ¶¶ 23-24. The Court further summarized that on August 31, 2017,
plaintiff made a complaint to Curtiss-Wright’s ethics hotline “about [a] human resource[s] issue,”
alleging that Mr. Owens’ investigation of his own conduct on August 10, 2017 was initiated
“without Corporate HR approval,” and that Mr. Owens’ request for a statement from the black
coworker amounted to “intimidation and harassment.” Id. at ¶ 25. See Order (#21) at 7.
Having concluded that plaintiff was attempting to allege a Title VII Retaliation claim, this
Court reviewed the elements of such a claim and discussed the allegations of the Complaint. The
Court held that “plaintiff must allege plausible facts that could show that the ‘protected activity
was a but-for cause of the alleged adverse action.’” Order (#21) at 13 (quoting University of Tx
Sw Med. Ctr v. Nassar, 133 S. Ct. 2517, 2534 (2013)). The Court then explained why those

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allegations concerning Mr. Owens inclusion of Mr. Boxley as a witness in the investigation were
not adequate to allege a cause of action for retaliation. In sum, this Court held that simply asking
another employee in the same protected class for a statement as to what occurred is not an
employment practice that is unlawful under Title VII or the ADEA. Id. at 14-15 (citing Amelia
Cty. Sheriff's Office, 302 F. App'x 209, 213 (4th Cir. 2008).
While there may be an “unequal economic divide in the workplace,” Motion (#26) at 1,
that divide is not bridged by alleging in conclusory fashion that it is “ethnic intimidation” to
interview witnesses to an incident who may fall into a protected class. Indeed, asking all
employees what they saw or heard about an on-the-job incident -- regardless of their race, sex, or
age -- is precisely what Title VII of the Civil Rights Act of 1964 seeks to ensure in the workplace.
The Court has fully considered plaintiff’s letter and the attachments and can find no reason
to alter or amend its decision dismissing this case. The Court will, therefore, deny the present
motion for the reasons discussed herein and in its previous Order (#21), which is fully incorporated
by reference.

ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s letter, deemed to be a Motion to
Reconsider (#26), is DENIED.
***
Plaintiff is advised that in accordance with Federal Rule of Appellate Procedure
4(a)(4)(B)(ii), with the denial of his Motion to Reconsider, if plaintiff intends to also challenge
this Order on appeal he must file a either a separate Notice of Appeal or an Amended Notice of

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Appeal, in compliance with appellate Rule 3(c), within the time prescribed under Rule 4(a)(1),
which is measured from the date this Order is entered. Plaintiff is advised that no additional fee is
charged for filing an Amended Notice of Appeal.
Signed: April 13, 2018

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