Opinion
C.A. No. 3:18-CV-3082-MGL-KDW
03-27-2019
Alex Abraham, Plaintiff, v. Rohoho, Inc. d/b/a Papa John's Pizza, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Alex Abraham ("Abraham" or "Plaintiff"), proceeding pro se, filed this employment action against his former employer, Rohoho, Inc. d/b/a Papa John's Pizza ("Rohoho" or "Defendant"). Compl., ECF No. 1. Currently before the undersigned is Defendant Rohoho's Motion to Dismiss, in which it seeks to dismiss all claims pending against it either for failure to exhaust administrative remedies or for failure to state a claim. ECF No. 26. Plaintiff submitted his Response to the Motion to Dismiss, ECF No. 28, to which Defendant submitted a Reply, ECF No. 29. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation ("R&R") on Defendant's Motion to Dismiss. ECF No. 26. Because the motion to dismiss is dispositive, this R&R is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 22, be granted. I. Applicable standards of review
Defendant moves to dismiss Plaintiff's Complaint based on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing some of Plaintiff's claims should be dismissed because Plaintiff failed to exhaust administrative remedies, and that some should be dismissed for failure to state a claim.
A. Rule 12(b)
Defendant's failure-to-exhaust-administrative-remedies argument is considered under Rule 12(b)(1). Agolli v. Office Depot, Inc., 548 F. App'x 871, 875 (4th Cir. 2013). A plaintiff always bears the burden of demonstrating that subject matter jurisdiction properly exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). When a defendant challenges subject-matter jurisdiction pursuant to a Rule 12(b)(1) motion to dismiss, the court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004) (citing cases).
Although the usual rule is that a court "may not consider any documents that are outside of the complaint, or not expressly incorporated therein," Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), a court may properly consider documents "attached or incorporated into the complaint," as well as documents attached to the defendant's motion, "so long as they are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
"A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule 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." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("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." (citing Twombly, 550 U.S. at 556)). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to "'draw all reasonable inferences in favor of the plaintiff.'" Kolon Indus., 637 F.3d at 440 (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only "labels and conclusions" or "naked assertion[s]" lacking "some further factual enhancement" will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint "need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).
Further, "courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
B. Pro se pleadings
Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, "a court may not act as [a pro se] litigant's advocate and construct legal arguments that the plaintiff has not made[.]" Warren v. Tri Tech Labs., Inc., 993 F. Supp. 2d 609, 613 (W.D. Va.), aff'd, 580 F. App'x 182 (4th Cir. 2014) (citing Brock v. Carroll, 107 F.3d 241, 242-43 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). II. Factual and procedural background
Construed in the light most favorable to Plaintiff, the nonmoving party, this factual summary partially is derived from Defendant's compilation of Plaintiff's allegations. See Def. Mem. 1-4. In Plaintiff's one-page opposition to Defendant's Motion, Plaintiff does not take issue with Defendant's factual recitation other than to state that Defendant "mixed up the time fram[e] of complaints" and to suggest Defendant's focus was incorrect. He does not provide his own version of the facts or explain how Defendant may have incorrectly stated any time frames. Pl. Mem. 1.
A. Plaintiff's Complaint
Using the court-created form Complaint for Employment Discrimination Plaintiff alleges Defendant illegally discriminated against him by terminating him. Plaintiff submits he was discriminated against on the basis of his race, his gender/sex, and his national origin. Compl. 5. In listing the "Basis for Jurisdiction," Plaintiff indicates that his claims are brought under Title VII (42 U.S.C. §§ 2000e through 2000e-17) Id. at 3. Although Plaintiff also "checked the boxes" to indicate he also brought claims pursuant to other federal law and relevant state, city/county law, id. at 4, he does not provide specifics as to which other laws provide a basis for his Complaint. Accordingly, as does Defendant in its Motion to Dismiss, the undersigned construes Plaintiff's Complaint as including only Title VII. Plaintiff also checked boxes claiming that Defendant discriminated against him by terminating his employment, imposing "[u]nequal terms and conditions" on his employment, and retaliating against him. Id. at 4. Plaintiff claims all discriminatory conduct occurred in June and July of 2017 but also checked a box alleging that Defendant is still committing these acts against him. Id. Plaintiff alleges he was discriminated against based on race, sex, and national origin and, specifically, that he was called racial slurs; that he was teased for being gay; that he was forced to work while others were not; and that he was subject to hostile work conditions. Id. at 5. The only adverse employment action discussed in his Complaint is his termination, which he indicates Defendant has wrongly characterized as voluntary. See ECF No. 1-1 at 2.
Attached to Plaintiff's Complaint Form are two letters he apparently sent to the South Carolina Human Affairs Commission ("SHAC") on January 12 and January 14, 2018. ECF No. 1-1.
Information in these letters is included herein for completeness. As discussed within, Defendant indicates it did not receive these letters from SHAC.
Plaintiff worked for Defendant, a Papa John's pizza franchisee that operates Papa John's pizza restaurants in South Carolina, during two time periods (during 2016 and again from February through July 2017) and at several locations. See ECF 1-1 at 1. Plaintiff first worked for Defendant in or about March 2016 at a store located on Lake Murray Boulevard in Irmo, South Carolina. Within approximately three months, Plaintiff was promoted to Assistant Store Manager and moved to the Assembly Street, Columbia location. He was later transferred back to the Irmo store and voluntarily left his employment with Defendant. Id. In or about February 2017, Plaintiff was rehired to work for Defendant at the Devine Street location in Columbia; he worked there until July 2017 when his employment was allegedly terminated. Id.
In the January 14, 2018 letter attached to his pleading Plaintiff describes incidents that he claims occurred during both the first (2016) and second (2017) periods of his employment. Regarding the earlier period of employment, Plaintiff alleges that in 2016 there was a "hostile work environment" at the Columbia store because the General Manager was having a sexual relationship with two of the other employees. Id. at 1. Plaintiff alleges he reported this to the District Manager, Chris Phillips. Additionally, while at the Assembly Street store in 2016, Plaintiff alleges that Phillips made an inappropriate sexual remark to him. After Plaintiff was transferred back to the Irmo store in 2016, he claims he was "sabotaged by a racist GM," Sarah Storey, resulting in disciplinary action. He also specifically alleges that Storey made an inappropriate comment about his race. Plaintiff notes that "the next week" he left and took another job. Id.
The letter then discusses Plaintiff's second period of employment with Defendant at the Devine Street store, where he began working in February 2017. ECF No. 1-1 at 1. "About four months later," James Hicks told Plaintiff that employees at the Irmo store were having problems with the General Manager there, Tavares Burton. Plaintiff "was aware that James Hicks took the issue to[] corporate." Id. Plaintiff alleges District Manager Phillips asked him about this issue, knew Plaintiff was aware Hicks made a report to Human Resources, and asked Plaintiff for Hicks' phone number. Id.
Plaintiff then sets forth his allegations regarding the day of his termination (July 25, 2017), claiming that Phillips forced him to work alone, cursed at him, threw dough balls at him, threatened him with physical violence and a call to the police, and chest bumped him on the way out of the store. ECF No. 1-1 at 1. Plaintiff alleges Phillips had called two individuals to pick a fight with Plaintiff once he got out of the store. Id. Plaintiff indicates he was fired that day, but that his termination forms indicated he had voluntarily quit. Id. at 2. Plaintiff asserts, "I was fired for no reason and felt that it was retaliation for James Hicks going to [corporate] and me knowing him." Id. at 1.
B. Administrative proceedings
Plaintiff filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC") on or about March 15, 2018. See Charge, ECF No. 22-2 at 3. In the Charge, Plaintiff alleges a specific action that occurred at a specific time—discriminatory and/or retaliatory discharge on or about July 25, 2017. Plaintiff alleged these actions were improperly taken on the basis of race and/or sex. In the box for "Date(s) Discrimination Took Place," Plaintiff wrote that the discrimination occurred on July 25, 2017 (the alleged date of his termination). Id. Plaintiff did not check the box denoting "continuing action." The "Particulars" of the Charge provide, in full:
I was discharged on or about July 25, 2017. The District Manager (female/white) and I got into an altercation wherein she yelled, threw dough balls at me and told me to get the H*ll out of her store. As I was attempting to leave, she threatened to have me assaulted, bumped her chest on mine, threatened to call the police and had me physically moved from the store. I believe I was subjected to such treatment because I discovered the GM was having a sexual relationship with an employee, and I reported it to corporate. In addition, I believe I was terminated because the District Manager learned that I was aware of an employee at another store making a complaint to corporate.Charge, ECF No. 22-2 at 3.
I therefore believe I was discriminated against because of my race (black), sex (male) and in retaliation for engaging in activity protected by the South Carolina Human Affairs Law, as amended, and Title VII of the US Civil Rights Act of 1964, as amended.
The EEOC dismissed Plaintiff's Charge and issued a Notice of Right to Sue on August 14, 2018. Right to Sue Letter, ECF No. 1-2. Plaintiff filed his Complaint on November 14, 2018. ECF No. 1. III. Analysis
A. Title VII: exhaustion of administrative remedies
Before filing suit under Title VII a plaintiff must exhaust his administrative remedies by bringing a charge with the EEOC or an appropriate state agency. 42 U.S.C. § 2000e-5(f)(1). Defendant argues Plaintiff has failed to exhaust administrative remedies as to all claims from his 2016 employment with Defendant and as to his claims related to national origin. Def. Mem. 9-12. Accordingly, Defendant argues the court is without jurisdiction to consider any claims concerning his 2016 employment or any claims of national-origin discrimination.
Typically, an employee complaining of discrimination contacts the EEOC and provides it with information to support the allegations of illegal discrimination. The EEOC and/or SHAC then sends a notice and copy of the charge to the employer, giving the employer an opportunity to conduct its own investigation and resolve any actions internally. At the same time, the EEOC or SHAC investigates the charge. Balas v. Huntington Ingalls Industs., 711 F.3d 401, 407 (4th Cir. 2013). Here, Plaintiff's Charge references both SHAC and the EEOC. ECF No. 22-2.
The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit "may encompass only the 'discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge'") (quoting EEOC v. Gen. Elec., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith v. First Union Nat. Bank, 202 F.3d 234, 247 (4th Cir. 2000) ("A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit."). Thus, "factual allegations made in formal litigation must correspond to those set forth in the administrative charge." Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). A plaintiff is considered to have exhausted claims in the charge and "any charges that would naturally have arisen from an investigation thereof[.]" Id. (internal citation and quotation omitted). "[A] claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex." Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009). However, because administrative charges are not typically completed by lawyers, they must be construed liberally. See Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988).
Here, Plaintiff's Charge relates only to his 2017 termination. His Complaint, however, includes allegations concerning a prior term of employment, one that had ended in 2016. Plaintiff claims that he was the subject of an inappropriate sexual comment and racial comment and that that he was targeted for disciplinary action because of his race. See ECF 1-1. These allegations were not presented in Plaintiff's Charge. Particularly, the claims in Plaintiff's Charge related to his termination from his 2017 employment with Defendant. See ECF No. 22-2 at 3. Further, the Charge attributes discrimination only to the "District Manager" who terminated his employment on July 25, 2017, Chris Phillips. Id.
Defendant submits that all allegations of discrimination and/or retaliation from Plaintiff's 2016 employment are not related to the allegations in Plaintiff's Charge and are, therefore, barred. Defendant notes that it did not receive Plaintiff's letters addressed to SHAC and appended to the Complaint during the administrative charge process. These letters are not part of Plaintiff's administrative Charge, nor does he argue they are.
Plaintiff's brief response does not address Defendant's administrative exhaustion argument. Other than to briefly state that Defendant had "mixed up the time fram[e] of complaints," Plaintiff makes no reference to the events of 2016 to argue that they should be considered herein. Pl. Mem. 1, ECF No. 28.
The court agrees with Defendant that claims regarding Plaintiff's 2016 employment have not been administratively exhausted and cannot be considered by the court. See Chacko, 429 F.3d at 509 ("If the claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.") (quoting Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995)). Plaintiff's 2016 claims are not connected in time, place, or actors to those claims in his Charge and, thus, Plaintiff cannot get around the required exhaustion of administrative remedies. See generally Chacko, 429 F.3d 505. Because Plaintiff had two distinct periods of employment with Defendant at different locations, the allegations cannot be read as a continuing event. The 2016 claims took place at different stores than Plaintiff worked at in 2017, involved Sarah Storey who was not named or referenced in Plaintiff's Charge, and made reference to two specific comments (one of a sexual nature and the other about race) that were not stated in Plaintiff's Charge.
Accordingly, the portion of Defendant's Motion that seeks to dismiss all claims related to Plaintiff's prior 2016 employment with Defendant should be granted as such claims are administratively barred.
Defendant also argues that claims from 2016 should be dismissed as untimely filed because they took place more than 300 days before Plaintiff filed his Charge. See Def. Mem. 11. Plaintiff does not respond to this argument. Consideration of this argument is not necessary as the allegations concerning 2016 are administratively barred. In any event, the undersigned agrees with Defendant that claims from 2016 predated the March 15, 2018 Charge by well more than 300 days and could be dismissed as untimely. A Title VII complainant must first file a charge with the EEOC "within 300 days 'after the alleged unlawful employment practice occurred.'" Agolli, 548 F. App'x at 874 (citing 42 U.S.C. § 2000e-5(e)(1)).
The court further agrees with Defendant that, to the extent Plaintiff now seeks to bring discrimination claims based on his national origin, see Compl. 5, he may not do so because no such claim is referenced in his Charge. Plaintiff checked certain boxes on his Charge form, indicating he was claiming discrimination based on race, sex, and retaliation. ECF No. 22-2. Importantly, there were also "check boxes" for other types of discrimination that he left blank—those for discrimination based on color, religion, national origin, age, disability, genetic information, and other. Id. While the "check boxes are not necessarily dispositive" of the exhaustion issue, a claimant "must at least have alleged relevant facts in the narrative description on the EEOC Charge form." Fanord v. Washington Metro. Area Transit Auth., No. CV TDC-14-3973, 2017 WL 3887855, at *4 (D. Md. Sept. 5, 2017) (quoting Chacko, 429 F.3d at 509). Further, nothing in the "Particulars" of Plaintiff's Charge references any discrimination based on national origin. Again, Plaintiff's response to the Motion to Dismiss does not address any of Defendant's arguments regarding exhaustion of remedies.
Here, Plaintiff's Charge did not include claims related to his 2016 employment or any claims related to his national origin. The undersigned agrees with Defendant that these claims should be dismissed for failure to exhaust administrative remedies. In addition, allegations concerning events of 2016 could be dismissed as time-barred.
B. All other claims: Failure to state a claim upon which relief can be granted
Plaintiff's Charge also includes exhausted Title VII claims of discrimination and retaliation based on his July 2017 termination. Defendant moves to dismiss these claims pursuant to Rule 12(b)(6), arguing Plaintiff has not pleaded plausible claims of retaliation or discrimination based on race or gender.
Defendant first argues Plaintiff has not set out a plausible claim of retaliation. Def. Mem. 12-13. In support of dismissal, Defendant looks to the prima-facie framework used when, as here, Plaintiff has presented no direct evidence. Defendant submits Plaintiff's retaliation claim fails because he has not asserted that he engaged in any protected activity or provided evidence that could causally link any protected activity to his termination. To establish a prima facie case of retaliation, a plaintiff must assert three elements: (1) that he engaged in a protected activity; (2) that his employer took an adverse employment action against him; and (3) that there was a causal link between the two events. See EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005).
As an initial matter, the undersigned notes that a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss. See McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (finding district court improperly analyzed Rule 12(b)(6) challenge to Title VII termination claim using prima facie framework, but finding grant of motion appropriate for failure to meet "plausibility" standard). "[T]he prima facie case . . . is an evidentiary standard, not a pleading requirement, that may require demonstrating more elements than are otherwise required to state a claim for relief"; therefore, "requiring a plaintiff to plead a prima facie case would amount to a heightened pleading standard." Id. at 584 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12) (2002) (internal citations and quotation marks omitted). Even so, absent direct evidence, "courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of plaintiff's claim for relief. See Coleman, 626 F.3d at 190 (reciting elements of a prima facie case . . . en route to affirming dismissal for failure to state a claim)." Craft v. Fairfax Cnty. Gov't, No. 1:16CV86 (JCC/MSN), 2016 WL 1643433, at *4 (E.D. Va. Apr. 26, 2016).
As the court has noted,
Before McCleary-Evans, there was an obvious tension between Supreme Court and Fourth Circuit caselaw regarding the pleading requirements in employment discrimination cases. A plaintiff alleging employment discrimination claims within the Fourth Circuit was expected to plead facts sufficient to establish the elements of a prima facie case. Because the Fourth Circuit "continu[ed] to apply a heightened pleading standard after Swierkiewicz, [it was] at odds with the Supreme Court's clear pronouncement that all elements of a prima facie case need not be supported with factual pleadings in order to survive a motion to dismiss." Cockerham v. Stokes Cty. Bd. of Ed., 302 F. Supp. 2d 490, 495 (M.D.N.C. 2004). However, the Fourth Circuit Court of Appeals has since made clear that it will follow the Swierkiewicz standard, and, accordingly, plaintiffs alleging employment discrimination claims are no longer required to establish a prima facie case to survive a motion to dismiss. McCleary-Evans, 780 F.3d at 585.Ballew v. United Parcel Serv. Inc., No. 618CV00059DCCJDA, 2018 WL 5074603, at *4 (D.S.C. Aug. 20, 2018), report and recommendation adopted, No. 6:18-CV-00059-DCC, 2018 WL 5043887 (D.S.C. Oct. 17, 2018).
Here, Defendant seeks dismissal based on Plaintiff's failure to set out any allegations he participated in any protected activity. Further, even if protected activity had been pleaded, Defendant submits, Plaintiff's own allegations refute that any such activity caused his termination. Def. Mem. 12 (citing ECF No. 1-1 at 1 in which Plaintiff states, "I was fired for no reason and felt that it was retaliation for James Hicks going to [corporate] and me knowing him."). The same letter indicates Hicks had gone to corporate about undefined "problems at the Irmo store with the GM Tavares Burton." ECF No. 1-1 at 1.
Plaintiff offers no counter-argument regarding protected activity.
To establish the element of protected activity, Plaintiff must demonstrate that he "opposed any practice made an unlawful employment practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." See 42 U.S.C. 2000e-3(a) (emphasis added). Protected activities fall into two distinct categories: participation or opposition. See id. An employer may not retaliate against an employee for participating in an ongoing investigation or proceeding under Title VII, nor may the employer take adverse employment action against an employee for opposing discriminatory practices in the workplace. See id.
The undersigned agrees with Defendant that Plaintiff has not pleaded facts sufficient to support a cause of action for retaliation. Plaintiff's allegation that he was fired in retaliation for "knowing" someone would not be a protected act. Although Plaintiff's Charge claims he was retaliated against because he had "discovered that the GM was having a sexual relationship with an employee, and [he] reported it to corporate," ECF No. 22-2 at 3, the Complaint indicates that took place during Plaintiff's earlier 2016 employment. ECF No. 1-1 at 1. As discussed above, allegations concerning the separate 2016 employment period are administratively- and time-barred. Plaintiff has not pleaded a plausible claim of retaliation because he has not alleged a protected activity (or facts that could plausibly suggest one).
In any event, even if considered, there is no indication that the 2016 report concerned conduct violative of Title VII.
Further, the undersigned agrees with Defendant that, even if a protected act had been alleged, Plaintiff has offered no plausible linkage between such act and his termination. Instead, he has alleged he was terminated because he knew another individual who had made some sort of complaint to management. Plaintiff's retaliation claim should be dismissed.
Finally, Defendant argues that Plaintiff's remaining claim of discrimination on the basis of sex and race should be dismissed for failure to state a claim. Def. Mem. 13-14. Simply put, Defendant submits Plaintiff has not linked "any allegedly discriminatory conduct on the basis of his sex or race to the alleged adverse employment event, his termination." Def. Mem. 13.
Plaintiff's response does not address this argument specifically, nor does it include any reference to Plaintiff's race or gender. Rather, Plaintiff's opposition submits that his claims are "accurate" and that he has additional evidence and statements that support his claim. Pl. Mem. 1. Iqbal and Twombly require more.
In considering this portion of Defendant's Motion, the prima facie factors of establishing a case of race- or gender-based discrimination is instructive. The prima facie case generally requires that a plaintiff show that (1) he is a member of a protected class; (2) he was qualified for his job and his job performance was satisfactory; (3) he was fired; and (4) other employees who are not members of the protected class were retained under apparently similar circumstances. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002). In short, a plaintiff must show that he suffered an adverse employment action "because of h[is] race [or sex]." Ruffin v. Lockheed Martin Corp., 659 F. App'x 744, 746 (4th Cir. 2016) (considering Rule 12(c) motion).
Construing Plaintiff's Complaint liberally, the court notes his brief allegations that he was "called racial slurs" and was "teased for being gay." Compl. 5. Plaintiff simply has not provided information to create a plausible link between those bare allegations of remarks made to him at unidentified times and his allegation that he was terminated "because of" his race or sex. Ruffin, 659 F. App'x at 746. To the contrary, Plaintiff indicates he was not terminated for any good cause but because he knew James Hicks. ECF No. 1-1 at 1. Plaintiff has not pleaded facts sufficient to set forth a plausible claim for relief under Title VII. Dismissal is appropriate.
Defendant's Motion to Dismiss Plaintiff's Title VII claims for discrimination based on race and gender/sex should be granted and these claims be dismissed for failure to state a claim. III. Conclusion and Recommendation
For the reasons set forth herein, it is recommended that Defendant's Motion to Dismiss, ECF No. 22, be granted, and the Complaint be dismissed.
IT IS SO RECOMMENDED. March 27, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge