Warner v. Town of Pineville

Filing 9

MEMORANDUM OPINION AND ORDER: The Court does hereby ORDER that Defendant town of Pineville's Partial 4 MOTION to Dismiss be GRANTED and that all federal claims included in Plaintiff's Complaint be DISMISSED WITH PREJUDICE. Further, the Court ORDERS that the remaining state law claims be remanded to the Circuit Court of Wyoming County, West Virginia. Signed by Judge Irene C. Berger on 10/30/2013. (cc: attys; any unrepresented party; Clerk-WCCC) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

KENNETH BUTCH WARNER,
Plaintiff,
v.

CIVIL ACTION NO. 5:13-cv-22204

THE TOWN OF PINEVILLE,
Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendant Town of Pineville’s Partial Motion to Dismiss
(Def.’s Mot.) (Document 4), and accompanying Memorandum in Support (Def.’s Memo.)
(Document 5). After careful consideration of the Complaint and the written submissions,1 the
Court finds that the Defendant’s partial motion to dismiss should be granted.
I.

BACKGROUND

On May 24, 2013, the Plaintiff, Kenneth “Butch” Warner (“Plaintiff”) filed suit in the
Circuit Court of Wyoming County, West Virginia, alleging “violations of [his] civil rights and to
redress the unlawful and discriminatory conduct and employment practices of the Defendant.”
(Compl. ¶ 1.) Specifically, the Plaintiff alleges that
he was terminated from his employment and targeted for unfair
treatment based, in whole or part, upon his race in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 USC Sections 2000e, et
seq., and the Civil Rights Act of 1981, as amended by the Civil Rights
Restoration Act of 1991, 42 USC Section 1981, in violation of the
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The Court notes that the Plaintiff did not file a Response to the Defendant’s Partial Motion to Dismiss.

Statutory and Common Law of the State of West Virginia, and in
violation of the 5th and 14th Amendments to the United States
Constitution, and in violation of terms and conditions imposed to
prevent race based discrimination in the West Virginia Constitution and
the West Virginia Human Rights Act.

(Id.) The Plaintiff contends that while an employee of the Town of Pineville, he was “targeted for
employee discipline, drug testing and otherwise given negative treatment leading to his
termination,” because he was African American. (Compl. ¶ 6.) He claims “[t]hat the Town of
Pineville, through its agents, employees, mayor and council committed acts outrageous to the
ordinarily reasonable and prudent person.” (Id. ¶ 14.) The Plaintiff alleges he received “racial
slurs,” and was “antagonized [and] humiliated.” (Id. ¶ 7.) He was “caused to suffer public
embarrassment [and] to suffer the historical discrimination of his race,” resulting in “aggravation,
psychological distress and anxiety.” (Id. ¶ 11.) As a consequence, the Plaintiff “lost [his] job, lost
wages … and otherwise was cost economic and status damages.” (Id. ¶ 12.) He prays for
compensatory and punitive damages as well as special damages consisting of front pay,
reinstatement and lost wages. (Id. ¶ 15.) The Plaintiff also prays for “general damages for the tort
of outrage, discrimination, anxiety, mental and emotional distress, humiliation, anxiety (sic) and
loss of opportunities, together with statutory damages.” (Id.)
On August 23, 2013, the Defendant Town of Pineville filed a Notice of Removal
(Document 1) and attached an Answer to Plaintiff’s Complaint (Document 2) therein. The
Defendant timely removed this action to this Court pursuant to 28 U.S.C. §§ 1331, 1391, 1441 and
1446. The Plaintiff did not file any motion seeking to remand the matter. The Defendant’s partial
motion to dismiss requests dismissal with prejudice pursuant to Rules 12(b)(1) and 12(b)(6) of the

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Federal Rules of Civil Procedure. (Def.’s Mot. at 3, 6.) As previously noted, the Plaintiff did not
file a response in opposition.
II.

JURISDICTION

The threshold question for this Court to consider is whether it has federal subject matter
jurisdiction in this case. As noted above, this civil action was removed to this Court pursuant to
28 U.S.C. § 1446 and the Defendant’s assertion that the Plaintiff’s claims arise under the Civil
Rights Act of 1964, 42 U.S.C. §2000e, the Civil Rights Act of 1991, 42 U.S.C. § 1981, and the
Fifth and Fourteenth Amendments to the United States Constitution. Therefore, the Defendant
relies on the Civil Rights Act(s), as well as the Fifth and Fourteen Amendments, as grounds for
federal question jurisdiction pursuant to 28 U.S.C. § 1331, which provides that this Court has
“original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the
United States.” 28 U.S.C. § 1331.
The party seeking to adjudicate a matter in federal court, through removal, carries the
burden of alleging in its notice of removal and, if challenged, demonstrating the court’s
jurisdiction over the matter. Strawn et al. v. AT &T Mobility, LLC et al., 530 F.3d 293, 296 (4th
Cir. 2008); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“The
burden of establishing federal jurisdiction is placed upon the party seeking removal.”) (citation
omitted). The Fourth Circuit has held that “[w]hile a defendant filing a notice of removal under 28
U.S.C. § 1446(a) need only allege federal jurisdiction with a short plain statement—just as federal
jurisdiction is pleaded in a complaint—when removal is challenged, the removing party bears the
burden of demonstrating that removal jurisdiction is proper.” Strawn v. AT & T Mobility LLC, 530

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F.3d 293, 297 (4th Cir. 2008) (quoting Ellenburg v. Spartan Motor Chasis, Inc., 519 F.3d 192, 200
(4th Cir. 2008).
Noting that the Defendant’s removal motion is unchallenged, it appears from a review of
the record and pleadings before this Court that the Defendant has satisfied its initial burden of
alleging federal question jurisdiction. The Plaintiff’s claims are almost entirely matters pertaining
to federal statutes, including Title VII of the Civil Rights Act of 1964 (Title VII) and the Civil
Rights Act of 1991. (Compl. ¶ 1.) He also alleges violations of the Fifth and Fourteenth
Amendments to the United States Constitution. (Id.) Clearly, most of these claims present federal
questions and thus, the jurisdiction of this Court is proper.
III.

STANDARD OF REVIEW

A. 12(b)(1)
A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a
court is competent to hear and adjudicate the claims brought before it. Federal courts derive their
jurisdictional power to hear cases and controversies from Article III of the Federal Constitution. It
is axiomatic that a court must have subject matter jurisdiction over a controversy before it can
render any decision on the merits. Challenges to jurisdiction under Rule 12(b)(1) may be raised in
two distinct ways: “facial attacks” and “factual attacks.” Thigpen v. United States, 800 F.2d 393,
401 n. 15 (4th Cir.1986), rejected on other grounds, Sheridan v. United States, 487 U.S. 392
(1988). In this case, the Defendant has facially attacked the Plaintiff’s Complaint. A “facial
attack” questions whether the allegations in the complaint are sufficient to sustain the court's
jurisdiction. (Id.) If a “facial attack” is made, the court must accept the allegations in the complaint
as true and decide if the complaint is sufficient to confer subject matter jurisdiction. (Id.) The
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burden of proving subject matter jurisdiction in a motion to dismiss is on the party invoking such
jurisdiction. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir.1991).
B. 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the Court
must “accept as true all of the factual allegations contained in the complaint.” Erikson v. Pardus,
551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those
facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are
insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Furthermore, the court
need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E.
Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice…
[because courts] ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Iqbal, 556 U.S. at 678 (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570.) In other words, this “plausibility standard requires a
plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570.) In
the complaint, a plaintiff must “articulate facts, when accepted as true, that ‘show’ the plaintiff has
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stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at
557.) “Determining whether a complaint states [on its face] a plausible claim for relief [which
can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
IV.

DISCUSSION

The Court finds that the Town of Pineville’s Partial Motion to Dismiss should be granted.
First, the Plaintiff’s allegations in the Complaint are insufficient to sustain this Court’s jurisdiction
with respect to the Title VII claim. Fed. R. Civ. P. 12(b)(1). Second, even assuming the remaining
allegations to be true, the Plaintiff has failed to state a claim upon which relief can be granted with
respect to the alleged violations the Civil Rights Act of 1866, as amended by the Civil Rights
Restoration Act of 1991, 42 U.S.C. § 1981, and Fifth and Fourteenth Amendment. Fed. R. Civ. P.
12(b)(6).
A. Title VII Claim
The Defendant argues simply that the Plaintiff never pursued, let alone satisfied, the
“multi-tiered administrative scheme” mandated by Title VII. (Def.’s Memo at 4.) In support, the
Defendant contends that the Plaintiff failed to file a charge with the appropriate state agency or
EEOC, and, similarly, was not entitled to and did not receive a right-to-sue letter from the EEOC.
(Id.) The Defendant also argues that the Plaintiff’s Title VII claim is time barred, pointing this
Court to the plain wording of 42 U.S.C. §2000e. (Id. at 5.)
Title VII specifically vests enforcement functions related to discriminatory practices in
either an appropriate state agency and/or the Equal Employment Opportunity Commission
(EEOC). 42 U.S.C. § 2000e-5. The Fourth Circuit “has long held that the receipt of, or at least
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entitlement to, a right-to-sue letter is a jurisdictional prerequisite that must be alleged in a
plaintiff’s complaint.” Davis v. North Carolina Department of Correction, 48 F.3d 134, 140 (4th
Cir. 1995) See e.g. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
Accordingly, “[w]hen a plaintiff fails to raise a Title VII claim before the EEOC, the district court
lacks subject matter jurisdiction to hear it.” Lowe v. City of Monrovia, 775 F.2d 998, 1003 (9th Cir.
1985).
A review of the Plaintiff’s Complaint supports the Defendant’s contention and reveals no
pleading indicating receipt of, or entitlement to a right-to-sue letter from the EEOC. Indeed, it is
undisputed that the Complaint is entirely silent with respect to any pre-suit administrative relief
having been sought, whether state or federal, to remedy the alleged discrimination. As such, this
Court does not enjoy jurisdiction over the Plaintiff’s Title VII claim, and thus, that claim should be
dismissed with prejudice.
Furthermore, even assuming arguendo the Plaintiff’s receipt of, or entitlement to, a
right-to-sue letter, the statute of limitations explicitly referenced in Title VII had long passed
before the filing of the Complaint. 42 U.S.C. § 2000e-5(e)(1) demands that a charge pursuant to
Title VII be filed with the EEOC “within one hundred and eighty days after the alleged unlawful
employment practice occurred … .” That same section of 42 U.S.C. § 2000e dictates, however,
that in the event a Plaintiff first seeks relief with an appropriate “State or local agency,” a claim
must nonetheless be filed “within three hundred days after the alleged unlawful employment
practice occurred, or within thirty days after receiving notice that the State or local agency has
terminated the proceedings under the State or local law, whichever is earlier.” (Id.) In the instant
case, Plaintiff did not file suit in the Circuit Court of Wyoming County, West Virginia, until May

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24, 2013, nearly two years to the day after his alleged unlawful termination on May 25, 2011. (See
Complaint.) Thus, the Complaint was filed well past the mandatory dates established in 42 U.S.C.
§ 2000e, irrespective of the possession of, or entitlement to, a right-to-sue letter.
B. 42 U.S.C. § 1981 claim
Plaintiff’s related cause of action for unlawful and wrongful discharge in violation of the
Civil Rights Act of 1866, as amended by the Civil Rights Restoration Act of 1991, 42 U.S.C. §
1981, likewise fails given the standard delineated in Fed. R. Civ. P. 12(b)(6). In support of the
motion to dismiss, the Defendant asserts that the Plaintiff failed to state a claim because the
Plaintiff based his discrimination claim(s) on the language of 42 U.S.C. § 1981, instead of § 1983,
thereby failing to allege a claim “necessary to remedy that alleged violation against a
governmental actor such as the Defendant.” (Def.’s Memo. at 7-8.) 42 U.S.C. § 1981 states that:
[a]ll persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kinds, and to no
other.

42 U.S.C. § 1981(a). As the Supreme Court of the United States noted, however, when suit is
filed against the State or their actor, including a municipality, § 1983 is the “exclusive federal
remedy for violation of the rights guaranteed in § 1981.” Jett v. Dallas Indep, Sch. Dist., 491 U.S.
701, 733 (1989) (See also Roberson v. City of Goldsboro, 564 F.Supp.2d 526 (E.D.N.C. 2008);
(Bowyer v. District of Columbia, 2012 WL 6622618 (D.D.C. 2012). Even though 42 U.S.C. § 1981
was amended in 1991, ensuing Fourth Circuit case law instructs this Court that the holding in Jett
remains applicable. See Dennis v. County of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995); Lewis v.
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Robeson County, 63, Fed.Appx. 134, 138 (4th Cir. 2003)(per curiam)(unpublished). The Fourth
Circuit in Dennis looked to the thorough post-1991 Congressional Amendment analysis of 42
U.S.C. § 1981 in Phillippeaux v. North Central Bronx Hospital. Phillippeaux declared:
that Jett continues to state accurately the law under which
municipalities may be held liable for Section 1981 violations by
their employees or agents. Therefore, to assert a Section 1981 claim
against municipal entities, as plaintiff has done in this case, plaintiff
must allege a violation of Section 1983 and meet the requirements
of Monell. Because, as discussed above, plaintiff has failed to assert
a violation of Section 1983, his Section 1981 claim is dismissed
with prejudice.

871 F.Supp. 640 (S.D.N.Y., 1994) (footnote omitted). Because in the instant case it is undisputed
that the Plaintiff alleged a cause of action sounding in § 1981, and not § 1983, he has failed to state
a claim upon which relief can be granted. For that reason, the 42 U.S.C. § 1981 claim should be
dismissed with prejudice.
C. Fourteenth Amendment Claim
The claims relating to alleged Fifth and Fourteenth Amendment violations also fail as a
matter of law.2 The Fourteenth Amendment's Equal Protection Clause declares that “[n]o State
shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The equal protection clause “limits all state action, prohibiting any state from
denying a person equal protection through the enactment, administration, or enforcement of its
laws and regulations.” Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal,
135 F.3d 275, 289 (4th Cir.1998) (internal quotation marks & emphasis omitted). As a

2
The Plaintiff’s Complaint did not identify the particular basis for his Fifth or Fourteenth Amendment claims,
whether premised on substantive due process, procedural due process, or a liberty interest. Regardless of the basis, the
Plaintiff has failed to state a claim upon which relief can be granted for either a Fifth or Fourteenth Amendment claim.

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consequence, the Fourth Circuit has been clear that the Fourteenth Amendment does not create a
cause of action for any deprivations of the rights contained in the Constitution. See Hughes v.
Bedsole, 48 F.3d 1376, 1383 n.6 (4th Cir. 1995). Instead, it is again § 1983 of 42 U.S.C. that
provides the statutory cause of action for abuses of the protections contained in the Fourteenth
Amendment to the United States Constitution. Collins v. City of Harker Heights, Tex., 503 U.S.
115, 119-120 (1992). As mentioned above, it is undisputed that the Plaintiff’s Complaint is wholly
silent with regards to 42 U.S.C. § 1983. As such, the Plaintiff’s Fourteenth Amendment claim
should also be dismissed with prejudice.
D. Fifth Amendment Claim
Finally, the Plaintiff alleges that the Town of Pineville, “through unlawful and
discriminatory conduct and employment practices,” violated the “5th Amendment” to the United
States Constitution. (Compl. ¶ 1.) It is well settled that “[t]he Due Process Clause of the Fifth
Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment
prohibits the States, from depriving any person of property without due process of law.”
Dusenbery v. U.S., 534 U.S. 161, 167 (2002) (quotations omitted). Thus, because the lone
Defendant here is a town or municipality and not the federal government, the Plaintiff’s Fifth
Amendment claim should likewise be dismissed with prejudice.
In sum, “although we accept the well-pleaded factual allegations of a complaint as true,
and we draw reasonable inferences therefrom in the plaintiff's favor, we do not blindly accept
‘allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences,’ nor do we accept ‘allegations that contradict matters properly subject to judicial
notice.’” Stratton v. Mecklenburg County Dept. of Social Services, 521 Fed.Appx 278 (4th Cir.
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2013) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002)). It appears from a review of the
Complaint that the Plaintiff has not stated any claim upon which relief can be granted in light of
basic pleading standards and well established case law. As such, all of the Plaintiff’s federal claims
should be dismissed.
E. State Law Claims
This Court must also make a determination about its jurisdiction over the remaining state
claims. “When a case presents a federal question, the court has supplemental jurisdiction over state
law claims which are part of the same case or controversy.” Pinnoak Resources, LLC v. Certain
Underwriters at Lloyd’s, London, 394 F.Supp.2d 821, 828 (S.D.W. Va. Jan. 13, 2005) (citing 28
U.S.C. § 1367.) “The United States Supreme Court has ruled that the supplemental jurisdiction
statute applies to removal actions.” (Id.) (citing City of Chicago v. International College of
Surgeons, 522 U.S. 156 (1997)).

28 U.S.C. § 1367, the supplemental jurisdiction statute,

provides that “the court is permitted, but is not required, to retain jurisdiction over the related state
claims.” Pinnoak Resources, 394 F.Supp.2d at 828. “[A] court has discretion to dismiss or keep a
case when it ‘has dismissed all claims over which it has original jurisdiction.’” Shanaghan v.
Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (quoting 28 U.S.C. § 1367(c)(3)). In other words, a
federal court may retain state law claims even after “the federal basis for an action drops away.”
Shanaghan, 58 F.3d at 109 (citing 28 U.S.C. § 1367). “[T]rial courts enjoy wide latitude in
determining whether or not to retain jurisdiction over state claims when all federal claims have
been extinguished.” (Id. at 110) (citation omitted.) A district court’s decision to retain or to decline
jurisdiction may be informed by the “convenience and fairness to the parties, the existence of any

11

underlying issues of federal policy, comity and considerations of judicial economy.” (Id.) (citing
Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
The Court notes that the Plaintiff’s state law claims consist of alleged violations of the
“terms and conditions imposed to prevent race based discrimination in the West Virginia
Constitution and the West Virginia Human Rights Act,” as well as the “tort of outrage.” (Compl. ¶
1, 15.) Finding that any state law claim arising out of the same alleged actions by the Town of
Pineville would necessarily involve the same “case or controversy,” for purposes of this
Memorandum and Order, the Court chooses to exercise its inherent discretion to decline
jurisdiction over the state law claims remaining in this case. The Court has considered that the
scheduling order has only recently been entered, and the only remaining claims are state law
claims. Therefore, after careful consideration of the convenience and fairness to the parties as well
as judicial economy, the Court, in its discretion, elects to decline jurisdiction over the state law
claims.
CONCLUSION
WHEREORE, after careful consideration and based on the findings herein, the Court does
hereby ORDER that the Defendant Town of Pineville’s Partial Motion to Dismiss (Document 4)
be GRANTED and that all of the federal claims included in Plaintiff’s Complaint be
DISMISSED WITH PREJUDICE. Further, the Court ORDERS that the remaining state law
claims be REMANDED to the Circuit Court of Wyoming County, West Virginia.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party, and a certified copy to the Clerk of the Circuit Court of Wyoming County,
West Virginia.
ENTER:

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October 30, 2013