Opinion
C.A. No. 5:17-CV-2858-RBH-KDW
01-14-2019
Marcus D. Kelly, Plaintiff, v. QVC, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Marcus D. Kelly ("Kelly" or "Plaintiff"), proceeding pro se, filed this employment action against his former employer, QVC ("QVC" or "Defendant"), as well as several individuals and another corporation. See Original Compl., ECF No. 1-2. All Defendants other than QVC were summarily dismissed. See ECF No. 34. Upon having been served, QVC filed a Motion to Dismiss, ECF No. 26, in which it sought to dismiss all claims pending against it either for failure to exhaust administrative remedies or for failure to state a claim. In an order dated July 6, 2018, the court dismissed Plaintiff's claims of "retaliation and discrimination based on national origin, religion, and disability (specifically, Plaintiffs claims of (a) retaliation under Title VII [of the Civil Rights Act of 1964], the ADA [Americans with Disabilities Act], and the ADEA [Age Discrimination in Employment Act], (b) national origin and religion discrimination under Title VII, and (c) disability discrimination under the ADA)," finding Plaintiff had failed to exhaust administrative remedies as to those claims. However, Plaintiff was given 15 days to file an amended complaint that cured deficiencies as to his "Title VII race, color, and gender/sex discrimination claims and his ADEA discrimination claims[.]" July 6, 2018 Order 7, ECF No. 45. The Order continued, "In the event Plaintiff does not file an amended complaint curing the deficiencies as to those claims within fifteen days, those claims shall be dismissed without prejudice. In the event Plaintiff files an amended complaint as to those claims, the matter shall be recommitted to the Magistrate Judge for further pretrial handling." Id. In response to Plaintiff's request for a six-month extension to file the permitted amended complaint, the court advised Plaintiff he would be permitted until August 9, 2018, to file any amended complaint. The court advised that no further extensions would be given. ECF No. 49.
Plaintiff initially submitted a pro se Complaint using the court's general form for civil complaints. ECF No. 1. Plaintiff complied with the court's instructions, see ECF No. 10 at 2, and provided his claims on a court-provided "Complaint for Employment Discrimination" form, see ECF No. 1-2. Unless otherwise specified, references to Plaintiff's "Complaint" herein are to the proper-form Complaint found at ECF No. 1-2.
Although Plaintiff's Amended Complaint now under review lists these dismissed Defendants as well as QVC, only QVC is a Defendant to this action. No further discussion of any claims as to any other party listed in the caption of Plaintiff's Amended Complaint is required.
Plaintiff filed an Amended Complaint. ECF No. 52. 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 the Amended Complaint. ECF No. 53. Because the motion to dismiss is dispositive, this R&R is entered for the district judge's consideration. Plaintiff opposes the Motion, ECF No. 57; Defendant has submitted a Reply, ECF No. 58. Having considered the filings, argument, and applicable law, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 53, be granted, and that Plaintiff's Amended Complaint be dismissed without further leave to amend. I. Standard of review
A. Rule 12(b)(6)
Defendant moves to dismiss Plaintiff's Amended Complaint for failure to state a claim for relief. Fed. R. Civ. P. 12(b)(6). "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:
As discussed in the July 6, 2018 Order and the R&R it adopted, Defendant's Motion to Dismiss the initial complaint included Rule 12(b)(6) challenges as well as challenges brought under Rule 12(b)(1) as to those portions of the Motion that sought to dismiss some of Plaintiff's claims for failure to exhaust administrative remedies. See ECF No. 45 at 3-4 (Order); ECF No. 37 at 2-3 (May 7, 2018 R&R on first Motion to Dismiss).
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). In deciding whether to dismiss a complaint under Rule 12(b)(6), a court may take judicial notice of its own records, as well as documents attached to the complaint and documents attached to the motion to dismiss that "are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
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. Analysis
A. Only claims subject to amendment will be considered
As an initial matter, Defendant's Motion to Dismiss notes that Plaintiff's Amended Complaint includes some allegations that have already been dismissed for failure to exhaust administrative remedies. See Def. Mem. 1-2, 4-5. In responding to the Motion to Dismiss, Plaintiff does not specifically address this argument. Rather, he reiterates some of his unexhausted claims and baldly submits that he has "exhausted all administrative remedies." Pl. Mem. 4.
The court has already definitively ruled that Plaintiff has failed to administratively exhaust certain claims contained in his original Complaint. Those claims, "retaliation and discrimination based on national origin, religion, and disability (specifically, Plaintiffs claims of (a) retaliation under Title VII, the ADA, and the ADEA, (b) national origin and religion discrimination under Title VII, and (c) disability discrimination under the ADA)," have been dismissed based on detailed legal review of the administrative charge Plaintiff filed with South Carolina Human Affairs Commission ("SHAC") and Equal Employment Opportunity Commissioner ("EEOC"). See July 6, 2018 Order 3-4, 7, ECF No. 45; R&R 8-12, ECF No. 37; see also Charge of Discrimination, ECF No. 26-1.
Importantly, those claims have been dismissed without giving Plaintiff an opportunity to amend his pleading to resubmit such claims. July 6, 2018 Order 7. The court found "amendment would be futile as to these administratively unexhausted claims, and therefore leave to amend them is not warranted." Order 4-5 n.8 (citing several cases for the proposition that amendment as to claims not administratively exhausted would be futile and would not be permitted). This clear ruling notwithstanding, Plaintiff's Amended Complaint purports to include allegations as to "National Origin Discrimination," "Religion," "Disability Discrimination (ADA)," and "Retaliation Discrimination." See generally Am. Compl. To be clear, based upon the court's prior detailed rulings and determination that amendment would not be appropriate as to claims of "retaliation and discrimination based on national origin, religion, and disability (specifically, Plaintiffs claims of (a) retaliation under Title VII, the ADA, and the ADEA, (b) national origin and religion discrimination under Title VII, and (c) disability discrimination under the ADA)," Order 7, to the extent Plaintiff's Amended Complaint includes any of these nonexhausted claims, no additional analysis is required.
B. Claims subject to amendment
As plainly explained in the court's July 6, 2018 Order, the only claims Plaintiff has been given leave to amend are his "Title VII race, color, and gender/sex discrimination claims and his ADEA discrimination claims[.]" July 6, 2018 Order 7, ECF No. 45. As the Order explained, as pleaded in his original Complaint, Plaintiff "alleges in conclusory fashion that he was terminated because of his race, color, gender/sex, and age, but it does not contain sufficient facts making those claims plausible." Id. at 6 (citing Elliott v. Am. States Ins. Co., 883 F.3d 384, 395 (4th Cir. 2018)). The court permitted amendment as to his Title VII and ADEA discrimination claims, which Defendant did not contend had not been exhausted.
As noted in considering the prior motion to dismiss, the "Particulars" of Plaintiff's Charge include the following about his claimed discrimination:
I was disciplined and suspended and subjected to disparate terms and conditions on or about October 28, 2016. I was called to the office and was told I was under suspension due to an altercation with a younger employee (female) that happened off of the company property. The younger employee (female) was not suspended. In addition, I am aware of other employees (white/black with light complexion) who had done the same or similar thing and were not reprimanded.Charge, ECF No. 26-1.
I was discharged on or about November 28, 2016. I received a call from management stating that I was no longer on suspension and could not return to my employment. I believe because of my race, color and age, I was subjected to such treatment.
I therefore believe I was discriminated against because of my race (black), sex (male) color (dark complexion), and age (45) in violation of the South Carolina Human Affairs Law, as amended, Title VII of the US Civil Rights Act of 1964, as amended, and Age Discrimination Employment Act of 1967, as amended.
C. Plaintiff's Amended Complaint
Plaintiff's pro se Amended Complaint, liberally construed, contains the following allegations and claims related to the Title VII and ADEA discrimination claims he was permitted to amend:
In part, this factual summary is derived from Defendant's compilation of Plaintiff's allegations. See Def. Mem. 5-7. In responding to Defendant's Motion, Plaintiff does not take issue with Defendant's general factual recitation. This summary does not include allegations related to the claims Plaintiff has been advised he could not amend.
1. "Race Discrimination"
Plaintiff alleges that QVC discriminated against him based on race in that he was "harassed by QVC Staff by selecting other races for higher paying jobs, giving raises to other races, talking to other races in a moderate tone, explaining details of the jobs to other races," while "allowing Pro Se Plaintiff to guess information about the job and remain in a position to terminate Pro se Plaintiff at any time." Am. Compl. 2. Plaintiff indicates he "had always been in a hostile environment" and felt "threatened" by supervisors. Id. Offering no additional information, Plaintiff submits he was illegally discriminated against because of his race, in violation of Title VII. Id.
The undersigned agrees with Defendant that, as Plaintiff's administrative charge did not reference unequal pay or an adverse action other than wrongful termination, such allegations would not now be actionable. See Def. Mem. 5 n.3. Similarly, Defendant is correct that Plaintiff's charge did not include allegations of hostile environment based on any protected characteristic. Id. at 6 n.4. Accordingly, Plaintiff should not be permitted to pursue a separate hostile work environment claim because he did not exhaust administrative remedies as to such a claim.
2. "Color Discrimination"
Plaintiff alleges QVC "Staff" placed him in a "hostile work environment" "because of the color of his skin." Am. Compl. 2. Other unnamed employees with "different color skin, with the same job titles and job descriptions" were not affected by a "hostile work environment" and were not harassed by QVC Staff. Plaintiff references "numerous witnesses," whom he does not identify, "who can and will testify in court, if needed, who observed all negative treatment" of Plaintiff. Id.
3. "Sex and/or Gender"
Plaintiff alleges that he can "validate that other[] employees with the same or different sex and gender are making higher wages, having better paying jobs with less stress, less harassment on the job, no hostile environment, etc." Am. Compl. 3. Plaintiff does not identify those other employees. Plaintiff indicates that unidentified QVC Staff made unidentified "derogatory comments related to [Plaintiff's] sex and gender." Id.
4. "Age Discrimination (ADEA)"
Plaintiff notes he is over 40 years old and claims that unidentified "QVC staff has a history of treating younger employees different or likeable but treated [Plaintiff] with no respect, in a hostile manner," and did not include Plaintiff in unidentified "sociable matters," and "harassed [Plaintiff] and threatened [Plaintiff] with termination if [he] attempted to seek knowledge and information from other employees." Am. Compl. 3. Plaintiff alleges he "never received the same information as other workers younger than 40 years old." Id.
As noted above, Plaintiff's Charge did not include claims of retaliation, and he was not permitted to amend to include such claims.
5. Additional allegations
Plaintiff references the situation he had noted in his Charge—that there had been a Restraining Order issued by state court that concerned a disagreement between Plaintiff and a female QVC employee. Am. Compl. 4. He indicates he advised QVC of the Restraining Order, and he was discriminated against and the "discrimination never stopped by QVC until Plaintiff was terminated." Id. Plaintiff indicates the Restraining Order had approved Plaintiff and the female employee's both working at QVC, but that "QVC violated" the Restraining Order "by not allowing Plaintiff to continue working at QVC[.]" Id. Plaintiff alleges QVC never suspended or terminated other employees "for being arrested," claiming QVC improperly suspended him although he had not violated a "QVC Order." Id. Plaintiff does not identify the other employees. Plaintiff also mentions that a background check was conducted on him, he but does not indicate how this ties to his discrimination claim. Am. Compl. 5. Finally, Plaintiff's Amended Complaint includes a litany of how he allegedly has been impacted by QVC's actions.
To the extent Plaintiff is attempting to revive claims against other parties concerning the background check, as noted above, those claims have been dismissed, see ECF No. 34, and are not considered further herein.
D. Defendant's arguments
1. Timeliness
Plaintiff's Amended Complaint was docketed on August 13, 2018. It was mailed in an envelope post-marked August 10, 2018. ECF No. 52-1. Defendant submits Plaintiff's Amended Complaint should be dismissed out of hand because it was mailed to the court on August 10, 2018—one day after the August 9, 2018 deadline provided by the court in its July 25, 2018 Order. See Def. Mem. 1-2. Plaintiff does not respond to this argument other than to claim that he has "filed all documents (from the first date of filing discrimination case) in a timely manner," which he indicates has "always been verified by the United States Post Office Employees as well as the United States District Court Clerks." Pl. Mem. 1. Plaintiff does not respond to the concerns Defendant raises—that parties must abide by deadlines. To be sure, deadlines are important and are to be followed by all litigants. In this case, Plaintiff is proceeding pro se, and the court is inclined to excuse Plaintiff's one-day delay in placing the Amended Complaint in the mail. See Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010) (noting the Fourth Circuit's "longstanding policy in favor of merits-based adjudication"); see also Fed. R. Civ. P. 6(d) (adding three days to certain deadlines when a party, such as a pro se party, is served by mail).
Defendant also argues that the entire Amended Complaint is untimely because it was not filed within the 90-day statute of limitations. Def. Mem. 2-4. Defendant argues that the court's July 2018 Order actually dismissed all of Plaintiff's claims. Accordingly, Defendant submits that, even as to the claims that were dismissed without prejudice, the Title VII limitations period would not be tolled. Id. (citing, inter alia, McMorris v. Sherfield, No. 6:10-CV-00670-JMC, 2011 WL 13457, at *2 (D.S.C. Jan. 4, 2011) ("A suit dismissed without prejudice is treated for statute of limitations purposes as if it had never been filed."). In McMorris, the court was addressing whether the prior dismissal without prejudice of a different case would operate to toll the limitations period. 2011 WL 13457, at *2 (noting the "filing of [p]laintiff's earlier lawsuit had no tolling effect" on the limitations period).
In any event, this argument is unavailing here because the effect of the July 6, 2018 Order was not to actually dismiss the portion of Plaintiff's Complaint that concerned his "Title VII race, color, and gender/sex discrimination claims and his ADEA claims[.]" Order 7. For those claims, Plaintiff was permitted to file an amended complaint. In the event he did not file an "amended complaint curing the deficiencies as to those claims within [the allotted time], those claims shall be dismissed without prejudice." Id. In the event an amended complaint was filed as to those claims, the matter was to be "recommitted to the Magistrate Judge for further pretrial handling." Id. The Clerk of Court did not dismiss Plaintiff's Complaint at the time the July 6, 2018 Order was docketed. Rather, Plaintiff filed an Amended Complaint, Defendant filed the Motion to Dismiss now under consideration, and the matter was referred to the undersigned for pretrial handling.
It is recommended that Defendant's timeliness arguments be found to be without merit.
2. Failure to state a claim
Defendant also argues that Plaintiff's Amended Complaint should be dismissed for failure to state a claim. The undersigned agrees. In the R&R and Order considering challenges to Plaintiff's exhausted Title VII and ADEA discrimination claims, the court explained to Plaintiff the deficiencies in his original Complaint and the applicable law to be considered in determining whether any pleading should survive a Rule 12(b)(6) challenge. See Order 5-6; R&R 12-17. The succinct explanation of the applicable legal standards set out in the July 6, 2018 Order remains pertinent in considering the instant Motion:
To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Elliott v. Am. States Ins. Co., 883 F.3d 384, 395 (4th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A] plaintiff must provide sufficient detail to show that he has a more-than-conceivable chance of success on the merits." Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th Cir. 2018) (alterations omitted). Title VII prohibits an employer from terminating an employee on the basis of, inter alia, race, color, and sex, see 42 U.S.C. § 2000e-2(a)(1), and the ADEA prohibits such termination on the basis of age. See 29 U.S.C. § 623(a)(1). "[A]lthough the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief." Harman v. Unisys Corp., 356 F. App'x 638, 640 (4th Cir. 2009); see Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 627 (4th Cir. 2015) (considering Title VII and ADEA claims in the context of Rule 12(b)(6)); Coleman v. Maryland Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (analyzing a Title VII claim under Rule 12(b)(6)), aff'd, 566 U.S. 30 (2012).Order 5-6.
Defendant argues that Plaintiff's Amended Complaint should be dismissed because he has not presented facts sufficient to set out plausible claims under Title VII or the ADEA. Similar to deficiencies noted in the original Complaint, Plaintiff's Amended Complaint does not contain specific factual allegations indicating he was treated differently from similarly situated employees. Rather, Plaintiff has again failed to provide facts alleging comparisons between himself and any other employee except to generally allege that other, unidentified, undescribed employees of QVC were treated better in unexplained ways by unidentified employees of QVC and that unidentified, undescribed employees were arrested but permitted to return to work. Def. Mem. 9-10.
In response, Plaintiff indicates he has been discriminated against on the basis of national origin "by a QVC white male and female staff. (Per my legal advisor, the names, addresses, etc. will be given when subpoenaed at the time of trial)." Pl. Mem. 2. Similarly, he indicates he was discriminated against on the basis of color when "[a] different complexion of employees at QVC were given better opportunities, hired in a better category and pay scale was better than mine when hired by QVC Staff." Id. Again, Plaintiff parenthetically suggests that he will provide names and addresses "when subpoenaed at the time of trial." Id. As to sex/gender discrimination, he indicates QVC allowed other sexes and genders to go to jail and not be disciplined or terminated, including "numerous white male employees." Id. Again, he does not provide more detail concerning who those employees were or their status at QVC. He offers similarly vague information as to his age-discrimination claim. Id. at 3 (indicating QVC "allowed other white female and male employees to transfer to other departments . . . drive the machinery . . . and increase their pay . . . [despite his] seniority."). Plaintiff provides no more details as to any of these other employees, but again suggests he will provide that information when "subpoenaed for court." Id.
Plaintiff concludes by indicating that "[a]ll circumstantial evidence such as time, individuals to be identified, race, color, gender, sex, etc., will be identified by subpoenaed (sic) at the time of trial." Pl. Mem. 4. "Per my Legal Advisor," Plaintiff continues, "this information is not of any importance to the Defendants at this time, due to information may hurt Plaintiff's case in the future." Id. Plaintiff argues that Defendant knows the "supervisors, leaders, etc." who were associated with him, and suggests QVC should contact them. Id.
Any advice Plaintiff may have received notwithstanding, it is incumbent upon Plaintiff—not Defendant—to provide evidence sufficient to set out a plausible discrimination claim. As discussed in the court's prior Order, this requires information to plausibly identify others who were treated disparately despite having similar circumstances. At this, the pleadings stage, Plaintiff is not required to know every detail of his case or all names and detailed work histories of those he claims were treated more favorably. Nonetheless, he must provide some information at this time. He may not simply advise the court he is withholding the names and information concerning these potential comparators until "subpoenaed for court." The undersigned notes that Plaintiff cited several cases for the proposition that he could withhold the comparator information until later. Plaintiff offers no legal analysis explaining why he relies on these cases. See Pl. Mem. 2-3 (citing cases including Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) (concerning constitutionality of mandatory retirement of Missouri state-court judges); Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (concerning whether former employees could bring Title VII retaliation claims); General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004) (concerning who could bring ADEA claim); Ky. Retirement Systems v. EEOC, 554 U.S. 135 (2008) (concerning whether state plan violated the ADEA); Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985) (concerning mandatory retirement ages and the ADEA)). While these cases generally involve employment matters, none of them specifically support his claims. More to the point, none of these cases support Plaintiff's argument that he should be permitted to move forward and withhold information important to the plausibility of his claim.
The time for Plaintiff to set out facts sufficient to support plausible claims of discrimination is now. He has not done so. Here, neither Plaintiff's Amended Complaint nor information in his opposition memorandum provides any names, characteristics, or other details concerning who the "other employees" who were treated differently were, other than to indicate they were White, female, younger, differently complexioned, or were arrested and not terminated. There is no additional information from which plausible claims could be discerned. Accordingly, the undersigned agrees with Defendant that Plaintiff has not provided enough specifics to set out a plausible claim. His conclusory generalities are insufficient and make his disparate treatment claims subject to dismissal. See Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (noting that "naked assertions" of wrongdoing necessitate some "factual enhancement" within the complaint to cross "the line between possibility and plausibility of entitlement to relief"), quoting Twombly, 550 U.S. at 557 (internal quotations marks omitted); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) ("[I]n considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements"); see also Iqbal, 556 U.S. at 678 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").
Plaintiff is again reminded that information contained only in court filings is not part of his pleadings. See Order 6 n.9.
Plaintiff's Amended Complaint does not cure the deficiencies noted in his original Complaint as to his exhausted claims (that is, his Title VII race, color, and gender/sex discrimination claims and his ADEA discrimination claims). Defendant's Motion to Dismiss should be granted. III. Conclusion and Recommendation
For the reasons set forth herein, it is recommended that Defendant's Motion to Dismiss, ECF No. 53, be granted and the Amended Complaint be dismissed. Plaintiff has been given another opportunity to set out facts sufficient to support plausible Title VII and ADEA discrimination claims. He failed to do so. Defendant asks that all claims be dismissed with prejudice, see Def. Mem. 11, which the district judge may in his discretion find it appropriate to do.
The Fourth Circuit Court of Appeals has emphasized that a dismissal under Rule 12(b)(6) is generally with prejudice unless the court specifically orders that the dismissal is without prejudice (and provides an explanation for using its discretion to deviate from the general rule). Abdul-Mumit, et al. v. Alexandria Hyundai, LLC, et al., 896 F.3d 278, 2018 WL 3405474, *5 (4th Cir. July 13, 2018) (citing Carter v. Norfolk Community Hosp. Assoc., Inc., 761 F.2d 970, 974 (4th Cir. 1985)).Bryant v. U.S. Secret Serv., No. 2:18-CV-2738-MBS-MGB, 2018 WL 5284244, at *6 (D.S.C. Oct. 18, 2018), report and recommendation adopted, No. CV 2:18-2738-MBS, 2018 WL 5281980 (D.S.C. Oct. 24, 2018) (dismissing with prejudice when plaintiff's amended pleading failed to state a claim and sought relief from defendants immune from such relief).
IT IS SO RECOMMENDED. January 14, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge