Moser v. Drillers Service Inc.
Filing
15
ORDER denying 10 Motion to Dismiss in regards to plf's ADEA age discrimination, state law wrongful discharge and ADEA retaliation claims, respectively. Signed by District Judge Richard Voorhees on 10/21/2013. (cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL DOCKET NO.: 5:13CV45-RLV
CHARLES E. MOSER,
Plaintiff,
)
)
)
vs.
)
)
DRILLER’S SERVICE, INC.,
)
Defendant.
)
____________________________________)
Memorandum & Order
THIS MATTER is before the court on a Motion to Dismiss by Defendant Driller’s
Service, Inc., filed on June 6, 2013, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging failure to state a claim for which relief can be granted. (Doc. 10). Defendant
timely filed a Memorandum of Law in Support of Motion to Dismiss. (Doc. 11). For the
following reasons, the Court will DISMISS Defendant’s Motion to Dismiss.
BACKGROUND
The following facts are alleged in the Complaint filed by Plaintiff, Charles E. Moser
(“Moser”) who brought suit against Defendant, Driller’s Services (“DSI”) for violation of
Moser’s rights protected by the Age Discrimination in Employment Act, 29 U.S.C. § 621, and
for wrongful discharge based on N.C.G.S. § 143-422.1 et. seq.
Moser began his employment with DSI on or about 1970 and remained employed until
1981. (Doc. 6, 2). Thereinafter, Moser was re-hired by DSI on August 1, 1984 and remained
employed until his termination on October 12, 2012. (Doc. 6, 3). Moser worked as a Business
Development Manager for Environmental and Geothermal Products at DSI’s Hickory, North
Carolina location. (Doc. 6, 2). Following the hiring of a new supervisor in December 2011,
Moser was subjected to “unwarranted discipline” and “changes to his job duties.” Id. In July
2012, Moser, who was then 64 years old, was advised that his pay was being reduced, he was
being moved to an “on-site” office, and that his performance in the workplace was
“unacceptable.” Id. Moser asserted that he was not aware of any “similarly situated employees”
that were subjected to the same discipline, changes to job duties, or pay reductions. Id. In August
2013, the President for Driller’s Services, Jim Inman, informed Moser that the company wanted
to “find a younger person for your [Moser’s] position.” (Doc. 6, 3). On October 12, 2012,
Moser’s employment was terminated by DSI.
On October 11, 2012, Moser filed an Age Discrimination claim against DSI with the
United States Employment Opportunity Commission (“EEOC”). Id. A copy of the EEOC charge
was “sent” to DSI on the same day. Id. The EEOC officially received the charge on October 12,
2012, the same day that DSI terminated Moser. Id. The record does not reflect whether DSI had
actual knowledge of the EEOC charge before Moser’s termination. Moser asserts that, after his
termination, his position was filled by a “substantially younger”1 employee. Id. The record,
however, does not reflect whether Moser’s position with DSI was ever actually filled by a
“substantially younger” individual. On or about January 14, 2013, the EEOC issued a Notice of
Right to Sue and a lawsuit was filed within ninety (90) days of that Notice.2
In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134
L.Ed.2d 433 (1996), the Supreme Court decided that replacement of an ADEA plaintiff by a
“substantially younger” worker – not replacement by someone outside the ADEA’s protected class - is
the proper formulation of that element in the McDonnell Douglas prima facie case. The Court reasoned
that, given that the discrimination prohibited by the ADEA is discrimination because of an individual’s
age, not because of the individual’s membership in a protected class, the fact that one person in the
protected class has lost out to another person in the protected class is irrelevant. The relevant question is
whether the person in the protected class has lost out because of his age. See id. at 312, 116 S.Ct. 1307.
1
2
An age discrimination lawsuit may be filed any time after sixty (60) days have passed from the
day the charge is filed, but no later than ninety (90) days after receipt of notice that an EEOC
investigation is concluded. 29 U.S.C. § 621.
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On March 22, 2013, Moser filed a second claim with the EEOC alleging Retaliation
under the ADEA. Id. Moser’s second EEOC claim was denied on May 28, 2013. Id. Specifically,
Moser’s second claim asserted that his termination was motivated by the filing of his original
EEOC claim in October 2012. Id. Moser asserts that the filing of the October 11th EEOC charge
was a protected activity and that his termination was in retaliation of such filing, a violation of 29
U.S.C. § 621 et. seq. Id.
Based on the foregoing events, Moser pursues a claim for Age Discrimination pursuant to
29 U.S.C. § 621, a state law claim for wrongful discharge pursuant to the North Carolina Equal
Employment Practices Act (“EEPA”), N.C.G.S. § 143-422.1 et. seq, and a Retaliation claim
under the ADEA pursuant to 29 U.S.C. § 621 et. seq. (Doc. 6, p. 1). DSI filed the Motion to
Dismiss (Doc. 10), to which Moser responded (Doc. 12, 13) and DSI replied (Doc. 14). The
Court now considers the merits of Defendant’s Motion to Dismiss.
STANDARD OF REVIEW
A motion filed pursuant to 12(b)(6) of the Federal Rules of Civil Procedure challenges
the legal sufficiency of a complaint, Jordan v. Alternatives Res. Corp., 458 F.3d 332, 338 (4th
Cir. 2006), measured by whether it meets the standards stated in Rule 8 (providing general rules
of pleading), Rule 9 (providing rules for pleading special matters), Rule 10 (specifying pleading
form), Rule 11 (requiring the signing of pleading and stating its significance), and Rule 12(b)(6)
(requiring that a complaint state a claim upon which relief can be granted), Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). While a complaint need not contain detailed
factual allegations, the courts require more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (applying Rule 8). Specifically, plaintiffs may proceed into the litigation process
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“only when their complaints are justified by both law and fact.” Francis, 588 F.3d 186, 193. To
be justified by fact, courts must not overlook “conclusory, unwarranted deductions of fact, or
unreasonable inferences,” nor must the court “accept as true allegations that contradict matters
properly subject to judicial notice or by exhibit.” Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002).
“Federal Rules of Civil Procedure 8(a)(2) requires only a ‘short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)
and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The decisive standard is that the combined
allegations, taken as true3, must state a “plausible,” not merely conceivable, case for relief.
Sepúlveda–Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 679 (citations omitted)). To have facial plausibility—a standard that lies
between the outer boundaries of a probability requirement and the mere possibility of unlawful
conduct—the pleading must contain factual content that permits the court, using its “judicial
experience and common sense,” reasonably to infer the defendant’s liability. Id.
When ruling on a Rule 12(b)(6) motion, the Court accepts “as true all well-pleaded
allegations and view[s] the complaint in the light most favorable to the plaintiff. Phillips v. Pitt
Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). A court evaluates the complaint in its
entirety, as well as “documents attached to or incorporated into the complaint. Sec’y of State for
Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (citing Fed. R. Civ. P.
10(c)); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999) (stating that “a court may
The Fourth Court has recognized that a “dismissal pursuant to a Rule 12(b)(6) motion is
inappropriate unless, accepting as true the well-pleaded facts in the complaint and viewing them in the
light most favorable to the plaintiff, it appears to a certainty that the plaintiff would be entitled to no
relief under any state of facts which could be proved in support of his claim.” Brooks v. City of WinstonSalem, 85 F.3d 178, 181 (4th Cir. 1996) (quoting Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 & n. 4
(4th Cir. 1993)) (emphasis added).
3
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consider [a document outside the complaint] in determining whether to dismiss the complaint”
where the document “was integral to and explicitly relied on in the complaint” and there was no
authenticity challenge). However, the district court cannot go beyond these integral documents
on a Rule 12(b)(6) motion without converting the motion into one of for summary judgment.
Fed. R. Civ. P. 12(b), (d), 56.
DISCUSSION
ADEA Claim
In the instant action, Moser first contends that his termination violated the Age
Discrimination in Employment Act (the “ADEA”). (Doc. 6, 4). The ADEA sets forth that:
[I]t shall be unlawful for an employer…to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of 4 such
individual’s age.
29 U.S.C. § 623(a)(1) (brackets, ellipses, and emphasis in original). In an ADEA case, the
plaintiff bears the burden of proving that the defendant’s adverse hiring decision 5 was motivated6
by the plaintiff’s age. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004). This can be demonstrated in one of two ways. Id. at 284-85. First, the plaintiff may
offer direct or circumstantial evidence of a discriminatory motive. 7 Id. at 284; Goldberg v. B.
“The words ‘because of’ mean ‘by reason of: on account of.’ ….[U]nder the plain language of
the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse
decision.’ Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176 (2009) (quoting 29 U.S.C. § 623(a)(1))
(brackets, ellipses, and emphasis in original).
4
An “adverse employment decision” is a tangible employment action constituting a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus.v.
Ellerth, 524 U.S. 742, 761 (1998).
5
6
How the Court defines/treats the term “motivation” is addressed at footnote seven.
“Even prior to the United States Supreme Court’s decision in Gross, the Fourth Circuit had
recognized that, in the context of the ADEA, ‘motivated’ meant ‘but for’ causation, i.e., that age ‘must
7
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Green & Co., Inc., 836 F.2d 845, 847 (4th Cir. 1988). Second, in the absence of such evidence,
the plaintiff may move forward by proving a prima facie case through the application standards
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (internal citations omitted);
Hill, 354 F.3d at 285. If a plaintiff can establish a prima facie case, the burden moves to the
defendant to articulate a legitimate, nondiscriminatory reason or reasons for the action taken. See
Furnco Const. Corp. v. Waters, 438 U.S. 567, 577-78 (1978). Lastly, the burden then shifts back
to the plaintiff to establish that the articulated reasons provided by the defendant were merely a
pretext for discrimination and not the actual motivation8 for the employer’s action. McDonnell
Douglas, 411 U.S. at 804.
In order to establish a prima facie case pursuant to McDonnell Douglas, the plaintiff must
show that: 1) he is within the protected age group;9 2) he was discharged or demoted; 3) at the
time of discharge or demotion, plaintiff was performing at a level that met his employer’s
legitimate expectations;10 and 4) he was replaced by someone of comparable qualifications
have actually played a role in the employer’s decision-making process and had a determinative influence
on the outcome.” (Corl v. Burlington Coat Fac. of N.C., L.L.C., No. 1:10-CV-406, 2013 WL 1465384
(M.D.N.C. 2013). (which in turn had quoted Hill, 354 F.3d at 286) (internal citation omitted) (emphasis
added). Indeed, the Fourth Circuit had adopted this understanding of the ADEA’s causation standard
much earlier. See Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982) (“The narrow
motivational issue central to any ADEA claim…is whether the plaintiff was discharged because of his age
or more precisely, whether age was a determining factor in the sense that but for his employer’s motive to
discriminate against him because of his age, he would not have suffered the unfavorable action.”
(emphasis added) (internal citations omitted). In sum, the use of the words “motivation” or “motivating”
in order to describe the ADEA’s causation standard in Fourth Circuit cases preceding Gross does not
mean that such decisions lack continuing validity. Corl, No. 1:10-CV-406, 2013 WL 1465384.
9
(40 or over). Walsh v. Ciba-Geigy Corp., 121 F.3d 702, 2 (4th Cir. 1997).
“Job performance and relative employee qualifications are widely recognized as valid, nondiscriminatory bases for any adverse employment decision.” Evans v. Tech. Applications & Serv. Co., 80
F.3d 954, 960 (4th Cir. 1996). When the legitimate expectations of an employer are at issue….both the
employer and the employee may present evidence of the expectations themselves and their legitimacy.
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-17 (4th Cir. 2006). In evaluating performance, “it is the
perception of the decision maker which is relevant.” Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).
10
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outside the protected age group. See E.E.O.C. v. Western Elec. Co., Inc., 713 F.2d 1011, 1014
(4th Cir. 1983). The plaintiff must meet all four of the aforementioned requirements in order for
the burden to shift to the defendant, whereupon defendant must articulate a legitimate,
nondiscriminatory reason for the adverse employment action. See St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 507 (1993). If an employer provides an adequate reason, the presumption of
discrimination “drops out of the picture,” and the plaintiff must then try to establish the case by a
preponderance of the evidence. Reeves, 530 U.S. at 143. Specifically, plaintiff must show that
the defendant’s reasons were pre-textual and the plaintiff must in fact be the victim of intentional
discrimination. Id.
Here, the adverse employment decision criterion is not at issue since Mr. Moser’s
employment was terminated. Similarly, it is uncontested that at the time of his termination, Mr.
Moser was 64 years old and was a member of the protected class. (Doc. 6, 2). Both parties have
advanced competing legal positions regarding the third and fourth requirements for a prima facie
case, but neither has done so compellingly.11
Because Moser alleges that DSI President Jim Inman (“Inman”) informed him on or
about August 3, 2012, that the company wanted to “find a younger person for [Moser’s]
position,” Moser does not have to make out a prima facie case to survive Rule 12 scrutiny.
Inman’s alleged statement is direct evidence of a discriminatory animus and, therefore, gives rise
to an inference of discrimination. The record does not establish whether Mr. Inman played an
11
Mr. Moser asserts that at the time of his termination he was qualified for his position and met
all legitimate expectations as Business Development Manager of Environmental and Geothermal
Products. Id. However, DSI asserts that Mr. Moser failed to sufficiently allege facts supporting the
contention that he was meeting legitimate job expectations or that he was replaced by a substantially
younger person. (Doc. 11, 10-13). In July 2012, DSI specifically informed Mr. Moser that his
“performance was unacceptable” and his pay was being reduced (Docs. 13, 2).
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integral role in terminating Moser. However, the remarks made by Inman, as President of DSI,
were undeniably related to the employment decision in question. Inman’s statement both reflects
directly on the alleged age discriminatory attitude and bears directly on the termination of
Moser’s employment. Based upon the facts alleged, it would be reasonable to infer that age
played a role in Moser’s termination. See Hill, 354 F.3d at 286. Consequently, this Court may
make a “reasonable inference” that the statement had at least some determinative effect on
Moser’s termination. See Sepulveda-Villarini, 628 F.3d at 29. Accordingly, Moser has alleged
facts sufficient to nudge his age discrimination claim across the line from merely conceivable to
plausible and it shall withstand DSI’s Motion to Dismiss.
North Carolina State Law Claim for Wrongful Discharge
The North Carolina Equal Employment Practices Act (“NCEEPA”) prohibits
discrimination based on age as against public policy. Specifically, the statute provides that:
[I]t is the public policy of this State to protect and safeguard the right and
opportunity of all persons to seek, obtain and hold employment without
discrimination or abridgement on account of race, religion, color, national origin,
age, sex or handicap by employers which regularly employ 15 or more
employees.
N.C. GEN. STAT. § 143- 422.2 (1977). Ordinarily, an employee without a definite term of
employment is an employee at-will and may be discharged without reason.” Coman v. Thomas
Mfg, Co., 381 S.E. 2d 445, 446 (1989) (citing Still v. Lance, 182 S.E. 2d 403 (1971)). “North
Carolina is an employment-at-will state.” Garner v. Rentenbach Constructors, Inc., 515 S.E. 2d
438, 439 (1999). “Any exception to the at-will-employment doctrine should be adopted only
with substantial justification grounded in compelling considerations of public policy.” Salter v. E
& J Healthcare, Inc., 575 S.E. 2d 46, 52 (2003).
The public policy exception referenced above is a very narrow exception to the
employment-at-will doctrine. Id. In order to properly invoke the doctrine and state a claim for
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unlawful discrimination, plaintiff must allege an “unlawful discharge.” Blair v. Randolph County
Bd. of Educ., 713 S.E. 2d 793 (2011). The burden rests solely on the plaintiff to demonstrate that
he was the victim of a protected discriminatory action. See generally, Salter, 575 S.E. 2d at 51
(asserting that for a claim of retaliatory termination, “the employee has the burden of pleading
and proving that the employee’s dismissal occurred for a reason that violates public policy.”)
North Carolina courts have routinely held that if a “plaintiff’s ADEA claim fails, his [state] law
claim for wrongful discharge on the basis of unlawful age discrimination also fails.” Rishel v.
Nationwide Mut. Ins. Co., 297 F.Supp. 2d 854, 875 (M.D.N.C. 2003).
In the present action, Moser has alleged that his age was a motivating factor for his
termination. Specifically, Moser asserts that the President of DSI informed him that the company
wanted to hire a younger employee for his position and that it fired him accordingly. For the
reasons discussed in the analysis of the ADEA age discrimination claim, Moser has alleged
sufficient facts establishing direct evidence that age was a substantial or motivating factor in his
termination. Because North Carolina has adopted the same standards of proof and burden
shifting analysis in state law discrimination cases as in federal discrimination cases, North
Carolina Dep’t of Corrections v. Gibson, 301 S.E.2d 78, 82, 85 (N.C. 1983), and Moser alleges
the same factual allegations to support both his ADEA age discrimination and state law claims,
DSI is not entitled to dismissal of either claim. Thus, Moser’s state law claim for wrongful
discharge withstands DSI’s Motion to Dismiss.
ADEA Retaliation Claim
Finally, Moser asserts that he was terminated in retaliation for filing a claim with the
EEOC. An employer violates the ADEA by retaliating against an employee for engaging in
protected activity. 29 U.S.C. § 623(d) (2000). The elements of a prima facie case of retaliation
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are:
First, the plaintiff engaged in a protected activity. Second, the employer took an
adverse employment action against the plaintiff. Lastly, a causal connection
existed between the protected activity and the adverse employment action.
Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).12 Although the Supreme Court
has not addressed the specific issue of causation required to establish liability for a Title VII
retaliation claim, it has addressed the issue of causation, generally, involving employer
discrimination. In Gross, the Court concluded that the ADEA requires proof that the prohibited
criterion was the “but-for”13 cause of the prohibited conduct. See Gross v. FBL Fin. Servs. Inc.,
557 U.S. 167 (2009). Moreover, while causation relies heavily on certain facts and circumstances
of a case, “temporal proximity between the two events, an intervening pattern of retaliatory
conduct, inconsistent reasons by the employer for the adverse action, and differential treatment
of other employers,” are pertinent factors to the causation element. Jaudon v. Elder Health, Inc.,
125 F.Supp.2d 153, 165 (D.Md. 2000) (decided at the summary judgment stage thus applying a
different legal standard than Rule 12(b)(6)); see also Williams, 871 F.2d at 457 (recognizing
temporal proximity as important factor).
Here, Moser maintains that DSI terminated his employment on October 12, 2012 based
on his age and in retaliation for filing his initial EEOC claim. (Docs. 6, 3). DSI asserts that it
terminated Moser because he was not meeting legitimate job expectations and his performance
was “not acceptable.” (Docs. 11, 8). Based on the facts asserted in the Complaint, a claim with
the EEOC was filed on October 11, 2012 and a copy of it was “sent” to DSI on the same day.
12
If the employee establishes a prima facie case, the employer may rebut it by presenting
evidence of a legitimate, non-retaliatory reason for the adverse action. After the employer presents
evidence of its legitimate, non-retaliatory reason, the burden shifts back to the employee to show that the
employer’s proffered reason is pre-textual. Williams, 871 F.2d at 457.
13
See Footnote 5 for further explanation of “but-for” application.
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(Docs. 13, 2). Applying McDonnell Douglas, Moser sufficiently alleges that he was engaged in a
protected activity by the filing of his EEOC charge on October 11, 2012 and that DSI took an
adverse employment action against him by terminating him on October 12, 2012. (Docs. 13, 23). The Court cannot conclude as a matter of law, even assuming all of Moser’s factual
allegations are true14, that DSI was (or was not) aware of the charge before the termination.
However, at this stage of the litigation, the close temporal proximity between the filing of the
EEOC charge and Moser’s discharge (i.e., approximately twenty-four (24) hours) gives rise to a
reasonable inference that DSI had constructive notice15 of the protected activity prior to Moser’s
termination on October 12, 2012. Under these facts, the suspect timing advances Plaintiff
Moser’s factual allegation into the realm of plausibility. Accordingly, Moser’s ADEA retaliation
claim contains sufficient facts to survive DSI’s Rule 12(b)(6) motion.
ORDER
In conclusion, Moser has alleged facts sufficient to nudge his ADEA age discrimination,
state law wrongful discharge, and ADEA retaliation claim across the line from merely
conceivable to plausible and has given DSI fair notice of the claims against it as well as the
grounds upon which those claims rest.
IT IS THEREFORE ORDERED that Defendant’s Motions to Dismiss are DENIED in
regards to Plaintiff’s ADEA age discrimination, state law wrongful discharge and ADEA
retaliation claim, respectively.
14
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
15
See Perkins v. Langdon, 237 N.C. 159, 168 (1953) (general, where a party has information that
is reasonably calculated to excite attention and to stimulate inquiry, the party is charged with constructive
notice of all that reasonable inquiry would have disclosed).
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Signed: October 21, 2013
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