Opinion
CIVIL NO. 1:02CV00595
October 8, 2003
MEMORANDUM OPINION
This action began with a pro se complaint filed by the Plaintiff on July 22, 2002. Although Plaintiff's claims are not entirely clear, it appears that Plaintiff is attempting to assert claims under the North Carolina Retaliatory Employment Discrimination Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. It appears that Plaintiff was assigned by a temporary staffing agency, Graham and Associates Temporaries, Inc., to fill a temporary position with the defendant Thomas Built Buses, Inc. Plaintiff alleges that he was informed by the Defendant that his chances of being hired full time were "very good" and "very possible," but he was ultimately terminated. Plaintiff apparently attributes his failure to be hired to his age (42), to the fact that he was not able to do heavy lifting, and to his alleged complaints about unsafe working conditions.
Defendant filed a motion for summary judgment, supported by a brief, on July 22, 2003. On August 5, 2003, the court extended the time for the Plaintiff to respond to the Defendant's motion for summary judgment until September 22, 2003, based on Plaintiff's request "for more time to submit information that may be forthcoming from the White House." To date, Plaintiff has not submitted any additional information to the court nor responded to Defendant's motion for summary judgment.
The court will, in its discretion, accept the Defendant's brief although its length substantially violates Local Rule 7.3(d). In the future, counsel's failure to be familiar with the rules could result in the striking of the document. Adherence to the rules will enable the court to rule more promptly on motions before it.
Local Rule 7.3(k) provides that failure to file a response to a motion will ordinarily result in the motion being granted as an uncontested motion. Nevertheless, the court has reviewed the Plaintiff's complaint and construed it liberally, as it customarily does with pro se complaints. To the extent that the Plaintiff seeks to assert a claim under the North Carolina Retaliatory Employment Discrimination Act, any lawsuit must be filed within ninety (90) days of the date upon which a right-to-sue letter is issued. It appears that Plaintiff filed complaints with the North Carolina Department of Labor on August 8 and October 1, 2001, and that he received a letter from the Department of Labor dated November 6, 2001, notifying him that the Department had determined there was no evidence to show that he had been subject to retaliatory treatment and advising him that he had ninety days from the date of the letter to file a lawsuit. Plaintiff did not file his complaint until July 22, 2002, well over ninety days after the date of the right-to-sue letter. Consequently, any claim is untimely.
To the extent that Plaintiff seeks to state a claim under the Age Discrimination in Employment Act, Plaintiff's primary allegation is that he was sent for a pre-employment physical and was subsequently terminated while a younger worker who was not sent for a pre-employment physical was not terminated. However, Plaintiff admits in his deposition that another worker in the protected age group who was sent for a pre-employment physical at the same time as the Plaintiff was not terminated.
Plaintiff also seems to allege that his rights under the Americans with Disabilities Act were violated because he could not do heavy lifting because of a back condition. However, Plaintiff also alleges that when he advised the Defendant that he could not do heavy lifting he was transferred to a job in another department. The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working. See 29 C.F.R. § 1630.2(j) (3)(I) (2003).
Despite the Plaintiff's failure to provide any additional information to the court, the court has reviewed the Plaintiff's complaint and the material produced during discovery. It appears that Plaintiff was terminated for legitimate non-discriminatory reasons when his temporary assignment was coming to an end. Therefore, the court will grant the Defendant's motion for summary judgment.
An order and judgment in accordance with this memorandum opinion shall be entered contemporaneously herewith.