Dunfee v. Global Contact Services, LLC et al

Filing 19

MEMORDANDUM OPINION AND ORDER pursuant to the 4 , 12 Motions to Dismiss, directing that plaintiff's federal claims under 42 U.S.C. § 1981(a), 42 U.S.C. § 1986, and 42 U.S.C. § 2000e are dismissed with prejudice; plaintiff� 39;s state law claims for intentional infliction of emotional distress, harassment, discrimination, and false light invasion of privacy are dismissed with prejudice; and this action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 11/14/2011. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER DUNFEE,
Plaintiff,
v.

Civil Action No. 2:11-00306

GLOBAL CONTACT SERVICES, LLC,
PATTY TOMLIN, Jointly and severally
liable; COURTNEY BROCK-SMITH, Jointly
and severally liable; ASHLEY BARNETT,
Jointly and severally liable; BILLIE JEAN
CALVERT, Jointly and severally liable;
CARRIE LAWRENCE, Jointly and severally
liable; John Does,
Defendants.
MEMORDANDUM OPINION AND ORDER

Pending are (1) the motion of Patty Tomlin, Ashley
Barnett, Billie Jean Calvert, and Carrie Lawrence (“individual
defendants”) to dismiss, filed June 21, 2011;1 and (2) the motion
of Global Contact Services, LLC (“Global”) to dismiss, filed
August 10, 2011.

To date, the record indicates that Brock-Smith has not been
served.
1

I.

A.

Background

The Complaint
As an initial matter, the court observes that the

complaint fails to set forth plaintiff’s legal and factual
allegations in an organized and coherent fashion.2

Plaintiff’s

response to defendants’ motions is similarly deficient.3

2

If a complaint only “vaguely identif[ies] potential legal
issues” or “present[s] obscure or extravagant claims defying the
most concerted efforts to unravel them,” then district courts are
not “requir[ed] to conjure up questions never squarely presented
to them. District judges are not mind readers . . . . [T]hey
cannot be expected to construct full blown claims from sentence
fragments.” Beaudett v. Hampton, 775 F.2d 1274, 1276, 1277-78 (4th
Cir. 1985).
Accordingly, plaintiff is strongly cautioned to observe all
Federal and Local Rules of Civil Procedure and related conventions
with respect to the form and substance of pleadings filed with the
court. Among other things, plaintiff is reminded that claims must
be stated “in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Fed. R. Civ. P.
10(b). Moreover, “[i]f doing so would promote clarity, each claim
founded on a separate transaction or occurrence—and each defense
other than a denial—must be stated in a separate count or
defense.” Id.
3

As defendants correctly observe, plaintiff was also
derelict in responding to the motions to dismiss. The individual
defendants moved to dismiss June 21, 2011, and Global filed its
motion on August 10, 2011. Plaintiff filed a single response on
September 9, 2011. The court is uncertain as to which motion
plaintiff responded. In any event, the response is over 60 days
late with respect to the individual defendants’ motion. Plaintiff
offers no explanation for his failure to respond to the motions
timely, within the 14-day requirement set forth by Local Rule
7.1(a)(7), among others. As a matter of substance, plaintiff’s
(contin.)

Nevertheless, the following is a recitation of the facts taken
from the complaint as best the court can discern.

Plaintiff Roger Dunfee is a resident of Fayette County,
West Virginia, and a former customer management representative at
Global.

(Compl. ¶¶ 5, 10, 16).

Global is a Delaware corporation

with its principal place of business in North Carolina and
maintains an office in Fayette County, West Virginia.
11).

(Id. ¶¶ 6,

Defendants Ashley Barnett, Billie Jean Calvert, and Carrie

Lawrence are residents of West Virginia.

(Id. ¶¶ 7-9).

The

residency of defendants Patty Tomlin and Courtney Brock-Smith are
not pleaded.

All individual defendants appear to be former co-

workers of plaintiff at Global.

The circumstances of plaintiff’s employment and
termination are not explained with any measure of detail; however,
it is uncontested that Global hired plaintiff on April 14, 2008,
and terminated him on June 9, 2009.

Plaintiff appears to allege

that he was illegally discharged because of his gender and sexual
orientation.

(Compl. ¶ 20).

In so doing, he claims defendants

violated 42 U.S.C. § 1981(a), 42 U.S.C. § 1986, and 42 U.S.C. §
cursory response cites no applicable legal authority and appears
only minimally responsive to defendants’ motions.

2000 e-5(f)(3). (Compl. ¶¶ 1-3).

Additionally, plaintiff makes

further vague statements that seem to allege various causes of
action, including intentional infliction of emotional distress,
harassment, discrimination, and false light invasion of privacy.
(Id. ¶¶ 19-33).

In his prayer for relief, plaintiff requests (1) an
order requiring defendant4 to adopt and disseminate an antiharassment policy; (2) an order requiring Global and John Does to
adopt procedures for investigating and remedying sexual harassment
in the workplace; (3) an order reinstating plaintiff to his prior
position, but if impracticable, a front pay award of $1,000,000;
(4) back pay in the amount of $500,000; (5) compensatory damages
for emotional suffering and related medical and therapeutic
expenses; (6) punitive damages in the amount of $1,000,000; and,
(7) attorneys’ fees.

(Id. at WHEREFORE clause ¶¶ 1-8).

Inasmuch

as plaintiff seeks relief pursuant to various federal civil rights
statutes, the court possesses federal question jurisdiction.5

4

Presumably plaintiff means defendant Global. Throughout
his complaint and response, plaintiff does not clearly identify
among defendants when stating his allegations.
5

Plaintiff also asserts that the court maintains diversity
jurisdiction over his case. (Compl. ¶¶ 12-14). Because the
(contin.)

A.

Previous Litigation

In a prior action, plaintiff filed a similar complaint
against Global on September 2, 2010, in the Circuit Court of
Fayette County, West Virginia.

See Dunfee v. Global Contact

Services, LLC, No. 2:10-cv-01250, slip op. at 1 (S.D.W. Va. Dec.
13, 2010) (Goodwin, C.J.) (“Dunfee I”).

Global removed that

action on diversity grounds and filed a motion to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
2.

Id. at

There, the court observed that “[n]either the plaintiff’s

Complaint, nor the plaintiff’s Response to the Defendant’s Motion
to Dismiss cite any legal authority supporting any specific cause
of action.”

Id.

Despite this, the court construed the complaint

to allege causes of action for harassment, discrimination,
retaliatory discharge, wrongful discharge, infliction of emotional
distress, invasion of privacy, and breach of contract.

Id.

Before proceeding to examine plaintiff’s possibility of relief,
the court admonished plaintiff and his counsel:
The plaintiff’s Complaint contains general factual
allegations and cites vague legalese . . . as a basis
for relief. The plaintiff has not, however, identified
any legal basis for his claims and this court cannot
readily discern what causes of action, if any, the
plaintiff is actually asserting. It is not the
individual defendants are not diverse to plaintiff, as Mr. Dunfee
himself pleads, this assertion is plainly incorrect.

responsibility of the court to name the tort. It is the
duty of the plaintiff and his attorney to locate legal
authority supporting causes of action.
Id. at 4.

Following an examination of plaintiff’s threadbare

allegations, the court dismissed the complaint without prejudice.
Id. at 7.

The court now turns to the pending motions.

II.

A.

Motions to Dismiss

Governing Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a
pleader provide “a short and plain statement of the claim showing
. . . entitle[ment] to relief.”

Fed. R. Civ. P. 8(a)(2); Erickson

v. Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule 12(b)(6)

correspondingly permits a defendant to challenge a complaint when
it “fail[s] to state a claim upon which relief can be granted
. . . .”

Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 127 S. Ct.

1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), overruled on other grounds, Twombly, 127 S. Ct. at 1969));
see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.

2007).

Additionally, the showing of an “entitlement to relief”

amounts to “more than labels and conclusions . . . .”
127 S. Ct. at 1965.

Twombly,

It is now settled that “a formulaic

recitation of the elements of a cause of action will not do.”
Id.; Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008).
The complaint need not, however, “make a case” against a
defendant or even “forecast evidence sufficient to prove an
element” of the claim.

Chao v. Rivendell Woods, Inc., 415 F.3d

342, 349 (4th Cir. 2005) (quoting Iodice v. United States, 289
F.3d 270, 281 (4th Cir. 2002)).

Instead, the opening pleading

need only contain “[f]actual allegations . . . [sufficient] to
raise a right to relief above the speculative level.”

Twombly,

127 S. Ct. at 1965; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (noting the opening pleading “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”).

Stated another way,

the complaint must allege “enough facts to state a claim to relief
that is plausible on its face.”

Id. at 1974; Giarratano, 521 F.3d

at 302. The recent decision in Iqbal provides some guidance
concerning the plausibility requirement:
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. The plausibility standard is not
akin to a “probability requirement,” but it asks for

more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are
“merely consistent with” a defendant's liability, it
“stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ”
Iqbal, 129 S. Ct. at 1949 (citations omitted).
As noted in Iqbal, the Supreme Court has consistently
interpreted the Rule 12(b)(6) standard to require a district court
to “‘accept as true all of the factual allegations contained in
the complaint . . . .’”

Erickson, 127 S. Ct. at 2200 (quoting

Twombly, 127 S. Ct. at 1965); see also South Carolina Dept. of
Health and Environmental Control v. Commerce and Industry Ins.
Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross,
313 F.3d 184, 192 (4th Cir. 2002)).

The court is additionally

required to “draw[] all reasonable . . . inferences from those
facts in the plaintiff's favor . . . .”

Edwards v. City of

Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

As noted above, plaintiff explicitly alleges defendants
violated 42 U.S.C. §§ 1981, 1986, and § 2000e, and appears to

allege various other causes of action.

Defendants’ motions to

dismiss are now ripe for consideration.6

B.

Federal Claims

First, defendants seek dismissal of plaintiff’s gender
discrimination claim under § 1981 on the grounds that § 1981 does
not provide for such a claim.

The court agrees.

Section 1981

prohibits discrimination on the basis of race and does not apply
to gender discrimination.

42 U .S.C. § 1981(a); see Runyon v.

McCrary, 427 U.S. 160, 167-68 (1976); Cornell v. Gen. Elec.
Plastics, 853 F. Supp. 221, 223 (S.D. W. Va. 1994) (citing cases).
Plaintiff does not allege racial discrimination played any role in
this case.

Accordingly, this claim is dismissed.

Second, plaintiff’s claims under 42 U.S.C. § 2000e, et
seq. also fails.

Title VII of the 1964 Civil Rights Act requires

that administrative remedies be unsuccessfully pursued before an
action may be filed in federal district court.
5(e).

42 U.S.C. § 2000e-

See Love v. Pullman Co., 404 U.S. 522 (1972); EEOC v. Hansa

Products, Inc., 844 F.2d 191, 191-92 (4th Cir. 1988).

This

prerequisite is intended to ensure that charged parties are made
6

The separately filed motions set forth identical grounds
for dismissal.

aware of the alleged violation and to allow the Equal Employment
Opportunity Commission (“EEOC”) to seek conciliation.
Balog, 162 F.3d 795, 800 (4th Cir. 1998).

Causey v.

Only after pursuing an

employment discrimination charge with the EEOC may a claimant file
a Title VII action in federal district court.
F.2d at 191-92.

Hansa Products, 844

Moreover, “[i]n order to preserve federal rights

in West Virginia, a ‘deferral’ state, a plaintiff must file a
complaint with the EEOC within 300 days of the alleged unlawful
employment practice.”

Haught v. The Louis Berkman, LLC, 377 F.

Supp. 2d 543, 552 (N.D. W. Va. 2005) (citing Mohasco Corp. v.
Silver, 447 U.S. 807 (1980)).7

Here, the record does not indicate

that plaintiff filed an administrative charge with the EEOC or the
West Virginia Human Rights Commission, let alone one within the
limitations period.8

7

Inasmuch as plaintiff failed to comply with

“A deferral state is one ‘which has a
prohibiting the unlawful employment practice
establishing or authorizing a State or local
seek relief from such practice.’ 42 U.S.C.A.
Products, 844 F.2d at 192, n.1.
8

State or local law
alleged and
authority to grant or
§ 2000e–5(c).” Hansa

As noted, a plaintiff has a maximum of 300 days from the
occurrence of an alleged discriminatory event to file a timely
charge with the EEOC. See Evans v. Technologies Applications &
Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). Plaintiff makes no
allegations of wrongful conduct beyond that which might have
occurred while he was employed by Global. In view of the date of
discharge, June 9, 2009, and construing all other allegations as
true, plaintiff’s Title VII claims are time-barred. See U.S.C. §
2000e-5(e)(1).

the statutory prerequisites, and to the extent any claims under 42
U.S.C. § 2000e, et seq. are asserted, these claims are time-barred
and must be dismissed.

Finally, plaintiff’s claims under 42 U.S.C. § 1986 also
cannot succeed.

To effectuate a cause of action under § 1986,

plaintiff must state a cause of action under 42 U.S.C. § 1985.
See Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).9
Even construing the complaint liberally, plaintiff has not alleged
a violation of § 1985.10
9

With regard to § 1985(3), the United

Section 1986 states:

Every person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in section
1985 of this title, are about to be committed, and
having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be liable to the
party injured, or his legal representatives, for all
damages caused by such wrongful act, which such person
by reasonable diligence could have prevented . . . .
10

Subsections 1 and 2 of § 1985 clearly do not apply in
this case. For § 1985(3), a plaintiff must allege four elements:
“(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of
conspiracy; (4) whereby a person is either injured in his person
or property or deprived of any right or privilege of a citizen of
the United States.” Trerice, 755 F.2d at 1085 (quoting United
Brotherhood of Carpenters and Joiners of America v. Scott, 463
U.S. 825, 828-29 (1983)).

States Supreme Court has stated that “[t]he language requiring
intent to deprive of equal protection, or equal privileges and
immunities, means there must be some racial or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators’ action.”

Griffin v. Breckenridge, 403 U.S. 88, 102

(1971); see also Trerice, 755 F.2d at 1085 (“In construing this
requirement neither the Supreme Court nor the Fourth Circuit has
identified any classes other than racial or religious classes.”).
Plaintiff has pleaded no allegations indicating that the events at
plaintiff’s former workplace were motivated by racial or religious
class-based animus.11

Because plaintiff has failed to allege a

claim pursuant to § 1985, his § 1986 claim must correspondingly
fail and is therefore dismissed.

Accordingly, to the extent plaintiff alleges claims
under 42 U.S.C. § 1981(a), 42 U.S.C. § 2000e, and 42 U.S.C. §
1986, they are dismissed with prejudice.

C.

State Law Claims

As noted above, plaintiff appears to make further
allegations similar to those found in the complaint filed in his
11

The complaint references 42 U.S.C. § 1986 twice without
accompanying factual allegations. (Compl. ¶ 1-2).

prior suit.

See Dunfee I, at 1-7.

The court dismissed the prior

complaint for failure to state a claim.

Id. at 7.

Given the

pleading deficiencies identified in Dunfee I, the court granted
defendant’s motion to dismiss without prejudice.

Id. at 4.

Regrettably, plaintiff has failed to heed the guidance of the
court in Dunfee I and now supplies a similarly deficient pleading.
Taking a generous view, this court construes the complaint as an
attempt to allege state law causes of action for intentional
infliction of emotional distress, harassment, discrimination, and
false light invasion of privacy -- similar to the causes of action
identified by the court in Dunfee I.

Id. at 2.

Even so

construed, the complaint, for the reasons that follow, fails to
identify any claims that could “plausibly give rise to an
entitlement to relief.”

Iqbal, 129 S.Ct. 1950.

First, plaintiff appears to claim intentional infliction
of emotional distress, which is defined as “one who by extreme or
outrageous conduct intentionally or recklessly causes severe
emotional distress to another . . . .”

Roth v. DeFeliceCare,

Inc., 700 S.E.2d 183, 194 (W. Va. 2010) (quoting Syl. pt. 1,
Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692 (W. Va.
1982)).

In the employment context, plaintiff must show that an

“employee’s distress results from the outrageous manner by which

the employer effected the discharge.”

Id.

Beyond vaguely

claiming that defendants directed “crude” and “offensive” remarks
toward him -- without identifying their content or the connection
of those remarks to his employment -- plaintiff alleges no facts
indicating outrageous conduct on the part of defendants.

Second, regarding his harassment and discrimination
claims, plaintiff again fails to adequately plead the requisite
elements of each claim.12

For that reason, these claims are

dismissed.

Plaintiff also appears to allege a false light invasion
of privacy claim.

12

His rather obscure allegation reads as follows:

See Conrad v. ARA Szabo, 480 S.E.2d 801, 809-12 (W. Va.
1996) (discussing elements of an action for hostile environment
sexual harassment).
At times, plaintiff seems to plead that defendants harassed
and discriminated against him inasmuch as he is a “man” and
“member of a group protected under Title VII from discrimination
on the basis of sex.” (Compl. ¶ 15). Later in the complaint,
plaintiff consistently claims he was harassed based on defendants’
subjective beliefs concerning plaintiff’s sexual orientation, and
not because he was male. (Id. ¶¶ 19-21). Plaintiff never alleges
that he himself is a homosexual. Still later, in his response,
plaintiff appears to contradict the complaint by arguing that he
“was not in a ‘protective class’. . . . Our case is different
insomuch that no sexual basis was overt but inferred by the
employee.” (Response at 2). Defendants complain that plaintiff’s
response is unintelligible and only serves to further muddy the
waters first stirred by the complaint. The court agrees.

“Defendant continued to discuss an episode concerning a ring that
plaintiff allegedly owned which caused plaintiff to be placed in a
false light and made fun of by other employees.”
The law in this area is well-settled.

(Compl. ¶ 24).

“Publicity which

unreasonably places another in a false light before the public is
an actionable invasion of privacy.”

Syl. pt. 12, Crump v. Beckley

Newspapers, Inc., 320 S.E.2d 70, 74 (W. Va. 1984).13

Moreover,

“widespread publicity . . . is an essential ingredient to any
false light invasion of privacy claim.”

Id. at 87-88.

Plaintiff

does not indicate the scope of the publicity except for the
references to “other employees.”

“It is not an invasion of

privacy to communicate the private fact to a single person or a
small group of persons.”

Benson v. AJR, Inc., 599 S.E.2d 747 (W.

Va. 2004) (citation omitted).

Plaintiff does not elaborate on the factual allegation
underlying plaintiff’s false light claim -- namely, that an
13

A false light invasion of privacy occurs if

“(a) the false light in which the other was
be highly offensive to a reasonable person,
actor had knowledge of or acted in reckless
to the falsity of the publicized matter and
light in which the other would be placed.”

placed would
and (b) the
disregard as
the false

Crump, 320 S.E.2d at 88 (quoting Restatement (Second) of
Torts § 652E (1977)).

unnamed defendant “discuss[ed] an episode concerning a ring.”
Vague allegations such as these cannot support a cognizable legal
claim for false light invasion of privacy.

Accordingly, this

claim is dismissed.

In sum, plaintiff appears to have ignored the directive
of the court in Dunfee I by once again failing to allege
sufficient allegations paired with factual content that would
“allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, at 1949.

Inasmuch as these claims are based on unorganized, vague, and
wholly inadequate factual and legal allegations, they must be
dismissed.

Simply put, plaintiff has not alleged any facts in a

legally cognizable or coherent form that provides the court or
defendants with notice of his claims or legal grounds for relief.
In view of the fact that given a second opportunity plaintiff
failed to correct the deficiencies identified in Dunfee I, all
claims are dismissed with prejudice.

III.

Conclusion

For the foregoing reasons, it is hereby ORDERED as
follows:

1) plaintiff’s federal claims under 42 U.S.C. § 1981(a), 42
U.S.C. § 1986, and 42 U.S.C. § 2000e are dismissed with
prejudice;
2) plaintiff’s state law claims for intentional infliction of
emotional distress, harassment, discrimination, and false
light invasion of privacy are dismissed with prejudice;
and
3) this action be, and it hereby is, dismissed and stricken
from the docket.

The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.

ENTER: November 14, 2011

John T. Copenhaver, Jr.
United States District Judge