Opinion
Civil Action No. 0:19-cv-0970-CMC-TER
12-06-2019
LATONYA JESSICA JACKSON, Plaintiff, v. CONTINENTAL TIRE THE AMERICAS, LLC; CONTINENTAL AG; ADAM LOVE; ERIK LEFEBVRE, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., alleging that Defendants discriminated against her and subjected her to a hostile working environment and then retaliated against her when she complained. Presently before the court are Defendants Adam Love and Erik Lefebvre's Motion to Dismiss (ECF No. 22) and Defendants Continental AG and Continental Tire the Americas LLC's Motion to Dismiss (ECF No. 24). Because she is proceeding pro se, Plaintiff was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to the motions could result in dismissal of his case. Plaintiff did not timely file a response to the motions, and the undersigned entered a text order giving Plaintiff an additional ten days to file a response. Thereafter, Plaintiff filed a response to both motions. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTUAL ALLEGATIONS
Plaintiff was employed by Continental Tire and sets forth in an attachment to her complaint a series of harassment she endured from other employees, including Inside Sales Department Supervisors, Adam Love and Erik Lefebvre. She alleges that the harassment began in April of 2015 and continued thereafter. Plaintiff alleges that Continental Tire terminated her employment on June 30, 2017, after she complained of the harassment. III. STANDARD OF REVIEW
Defendants also seek dismissal pursuant to Fed.R.Civ.P. 12(b)(2) and Fed.R.Civ.P 12(b)(5), arguing that service of process on them was insufficient and, thus, the court lacks personal jurisdiction. However, the court need not address this issue because, as discussed below, dismissal is appropriate on the merits.
A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement."Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003). The court may consider documents attached to a complaint or motion to dismiss "so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)).
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." 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.
IV. DISCUSSION
A. Love's and Lefebvre's Motion to Dismiss
As stated above, Plaintiff brings this action pursuant to Title VII, alleging claims of discrimination, hostile work environment and retaliation. It is well settled that Title VII does not provide causes of action against defendants in their individual capacities. Title VII reads as follows: "[i]t shall be unlawful employment practice for an employer ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual's .. . sex." 42 U.S.C. § 2000e-2(a). The statute defines employer as "a person engaged in an industry affecting commerce who has fifteen or more employees" and "any agent of such a person." 42 U.S.C. § 2000e(b). The Fourth Circuit has analyzed the definition of "employer" and rejected the notion of individual liability under Title VII. Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (holding that supervisors are not liable in their individual capacities under Title VII violations). Therefore, dismissal of Defendants Love and Lefebvre is appropriate pursuant to Rule 12(b)(6) for failure to state a claim.
B. Continental Tire's and Continental AG's Motion to Dismiss
1. Exhaustion of Administrative Remedies
a. Continental AG
Defendants Continental Tire and Continental AG also argue that dismissal of the claims against them is appropriate on the merits. Continental AG argues that Plaintiff has not exhausted her administrative remedies as to any claims alleged against it because she did not name Continental AG in her Charge of Discrimination filed with the Equal Employment Opportunity Commission (EEOC). See Charge of Discrimination (ECF No. 24-1).
"Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the [Equal Employment Opportunity Commission (EEOC)]." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir.2000); see also 42 U.S.C. § 2000e-5(f)(1). The EEOC must then decide whether it will bring a claim in federal court or if it will issue a "right-to-sue" letter to the claimant, "which letter is essential to initiation of a private Title VII suit in federal court." Davis v. North Carolina Dep't of Corrections, 48 F.3d 134, 136-37 (4th Cir.1995). Upon receipt of the right to sue letter from the EEOC, Plaintiff has 90 days within which to file a civil action raising federal discrimination claims. 42 U.S.C. § 2000e-5(f)(1) and 29 U.S.C. § 626(e). Failure to name a party in the EEOC charge generally means the plaintiff did not exhaust the administrative remedies against that party, and dismissal is appropriate. See Alvarado v. Board of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 458-59 (4th Cir.1988) (citing 42 U.S.C. § 2000e-5(f)(1)) ("Under Title VII, a civil action may be brought after administrative proceedings have ended or conciliation attempts have failed only 'against the respondent named in the [administrative] charge.'"). "[D]istrict courts throughout the Fourth Circuit have recognized a 'substantial identity' exception to Title VII's naming requirement where unnamed defendants are substantially identical, though not necessarily outright identical, to the named defendant." Keener v. Universal Cos., Inc., 128 F.Supp.3d 902, 915 (M.D.N.C. 2015). "If unnamed defendants are substantially or 'functionally' identical to named ones, then the plaintiff may sue all defendants in a district court action, even though some defendants were unnamed in the administrative action." Mayes v. Moore, 419 F.Supp.2d 775, 783 (M.D.N.C. 2006).
Plaintiff has the burden of establishing this "substantial identity" exception. See Shaughnessy v. Duke Univ., No. 1:18-cv-461, 2018 WL 6047277, at *2 (M.D.N.C. Nov. 19, 2018). However, she does not address this issue or even mention Continental AG in her response to the Motion to Dismiss. Therefore, because Plaintiff did not name Continental AG in her charge of discrimination or show that the substantial identity exception applies, dismissal of Plaintiff's claims against Continental AG is appropriate.
b. Continental Tire
Defendant Continental Tire also argues that Plaintiff failed to exhaust her administrative remedies with respect to her race and sex-based harassment claims against it. Defendant argues that Plaintiff's charge does not contain allegations sufficient to complain of either race or sex-based harassment. 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 Equal Employment Opportunity Comm'n v. Gen. Elec., 532 F.2d 359, 365 (4th Cir.1976)); see also Smith v. First Union Nat'l 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."). Only those claims stated in the initial administrative charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred).
In her charge, Plaintiff checks the boxes for discrimination based on race, sex, and retaliation. See Charge of Discrimination (ECF No. 24-1). She states in her charge that
On February 27, 2017, I had a meeting with my Supervisor (Mr. Adam Love-Caucasian) to discuss the ongoing sex-based hostile work environment created by Mr. Eric Lefebvre (Inside Sales Dept Supervisor-Caucasian). I made this original complaint around November 2015, when Mr. Lefebvre made the remark that I was too confident for a woman. Mr. Lefebvre was not disciplined until my third complaint, but this did not deter Mr. Lefebvre from continuing to harass me and create a hostile work environment such as, tempering [sic] with my phone and talking to me in an intimidating manner. I also shared this information with Ms. Aimee Larson (HR Representative-Caucasian) who never investigated my claims.Charge of Discrimination (ECF No. 24-1). Plaintiff clearly indicates that she suffered discrimination based on race, sex, and retaliation in her charge of discrimination. Although her narrative description does not include many specific allegations of harassment, it contains sufficient information such that the specifics of her complaints would be developed through a reasonable investigation into her charge of discrimination. Therefore, Defendants' argument that Plaintiff fails to exhaust her administrative remedies with respect to her race and sex-based discrimination claims is without merit.
On June 21, 2017, I had a meeting with Ms. Christine Wolman (Senior HR Manager-Caucasian) to again discuss the hostile work environment. My claims were not investigated and shortly after this complaint, I was provided a pretext reason for my termination; not meeting telephone standards. They also offered me a severance package, which I did not sign.
I believe that I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, because of my race and sex (Black Female); and in retaliation for engaging in a protected activity.
Continental Tire next argues that even if Plaintiff has exhausted her administrative remedies, her claims are time-barred. To pursue a Title VII claim, a plaintiff must "file a complaint with the EEOC within 180 days of the incident, or within 300 days of the incident if state or local proceedings are initiated." Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir.1997); 42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Here, Plaintiff is required to file her charge of discrimination within 300 days following the alleged discriminatory acts. Plaintiff filed her charge of discrimination on November 15, 2017. Charge of Discrimination (ECF No. 24-1). Thus, Continental Tire argues, Plaintiff cannot proceed with any claim under Title VII based on events alleged to have occurred before January 19, 2017. "A discrete retaliatory or discriminatory act, like termination or failure to promote, occurs 'on the day that it happened.' As a result, a plaintiff's charge as to that discrete act is timely only if the discrete act occurred 180 days prior to the filing of the charge." Sutton v. Charlotte-Mecklenburg Schs., No. 3:18-cv-00161, 2018 WL 3637366, *3 (W.D.N.C. July 30, 2018)(quoting Morgan, 536 U.S. at 110, 114). Plaintiff alleges in her complaint that she applied for but did not receive two promotions, one in March of 2016, Compl. p. 21, and the other in July of an unknown year, Compl. p. 18. To the extent Plaintiff alleges that Continental Tire discriminated against her based on her race or sex by denying her these promotions, such claims are barred as untimely. Her termination occurred on June 30, 2017, and, thus, her claim of discrimination based upon that discrete employment event is timely.
Plaintiff alleges only that "July I applied for Inventory Analyst position," and her allegations are not in chronological order. Nevertheless, it is clear that this event occurred prior to January 19, 2017, because her employment was terminated prior to July of 2017 (and, thus, the failed promotion could not have happened that July).
However, the bulk of Plaintiff's complaint alleges various acts of harassment occurring during the course of her employment with Continental Tire. Under the continuing violation doctrine, "a Title VII plaintiff seeking to recover for a hostile work environment can recover for acts occurring even beyond that period, as long as at least a portion of the hostile work environment occurred within the relevant limitations period." White v. BFI Waste Servs., LLC, 375 F.3d 288, 292-93 (4th Cir. 2004) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ). Plaintiff alleges that she experienced a hostile work environment from April of 2015 through January 20, 2017. Therefore, because at least a portion of the alleged harassment occurred within the limitations period, Plaintiff's hostile work environment claim is not time-barred.
2. Failure to State a Claim
Next, Continental Tire argues that even if Plaintiff's claims have been exhausted and are not time-barred, dismissal is still appropriate because Plaintiff fails to state a claim that is plausible on its face. To allege either a discrimination or a hostile work environment claim, a plaintiff must allege that the adverse employment action and harassment was because of or based on a protected category, here, race or sex. See McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 583 (4th Cir. 2015) (discrimination); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 313 (4th Cir. 2008) (hostile work environment). Continental Tire argues that Plaintiff fails to present facts sufficient to allege that the adverse employment action or harassment was because of a protected trait.
"To state a Title VII claim, a plaintiff must plausibly allege the appropriate causal connection between the plaintiff's protected status . . . and the alleged discrimination . . . .'[N]aked allegations' of a casual connection between the plaintiff's race . . . and the alleged discrimination do not state a plausible Title VII claim." Rickets v. Logics, LLC, No. 5:15-cv-0293-D, 2016 WL 4051852, at *5 (E.D.N.C. July 27, 2016) (quoting McCleary-Evans, 780 F.3d at 585-86). To allege harassment because of race or sex, a plaintiff must allege facts sufficient to "transform an ordinary [workplace] conflict ... into an actionable claim of discrimination." See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 282 (4th Cir. 2000). The complaint form Plaintiff completed is specific to employment discrimination. When asked what the defendant based it's discrimination on, Plaintiff checked boxes for race (and wrote in "African-American") and gender/sex (and wrote in "female"). Compl. p. 5. Plaintiff also states "[o]ur Director of Operations Vince Rosacco is threatened by my high work ethic, gender, race, and confidence." Compl. ¶ 22. However, she makes no factual allegations that would move this statement beyond mere speculation to allow the court to draw the reasonable inference that her alleged disparate treatment and harassment was based on race or sex. Furthermore, the fact that Plaintiff checked boxes for discrimination based on race and sex amount to nothing more than a formulaic recitation of the elements of a Title VII, which is insufficient to survive a motion to dismiss. Accordingly, dismissal of Plaintiff's discrimination and hostile work environment claims is appropriate pursuant to Rule 12(b)(6). See, e.g., Jackson v. S.C. State Ports Auth., No. 2:12-cv-1283-DCN-BM, 2014 WL 843270, * (D.S.C. Feb. 7, 2014)(recommending dismissal of pro se plaintiff's discrimination claim under Title VII where her complaint failed to include sufficient allegations to state a plausible discrimination claim and included only conclusory allegations lacking in factual support); Signal v. Gonzales, 430 F. Supp. 2d 528 (D.S.C. 2006)(granting defendant's motion to dismiss pro se plaintiff's hostile work environment claim where she failed to plead any facts to establish a causal link between the alleged conduct and any racially discriminatory motive); Bass v. E.I. Dupont De Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)(noting that the plaintiff's complaint was full of problems she experienced with co-workers and supervisors, but that those facts did not seem to have anything to do with gender, race, or age harassment).
Finally, Continental argues that Plaintiff fails to state a claim for retaliation that is plausible on its face. To establish a prima facie case of retaliation, Plaintiff is required to plead that: (1) she engaged in protected activity; (2) Continental Tire took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the termination. Honor v. Booze-Allen Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004). Continental Tire argues that, even accepting Plaintiff's factual allegations as true, she fails to allege that she engaged in activity protected by Title VII.
A plaintiff may engage in protected activity under either the "opposition" clause or the "participation" clause of Title VII. "To qualify as opposition activity an employee need not engage in the formal process of adjudicating a discrimination claim." Laughlin v. Metropolitan Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). However, a plaintiff must show she opposed an employment activity that was "actually unlawful under Title VII" or reasonably believed by the employee to be unlawful. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)). Complaints about management activities that would not constitute unlawful discrimination do not count as protected activity. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216-17 (4th Cir. 2002).
As stated above, other than very formulaic or conclusory allegations, Plaintiff asserts no factual allegations regarding her race or sex. Likewise, although she includes allegations regarding her complaints of unfair treatment or harassment, Plaintiff's allegations fail to show that she complained of activity that would be unlawful under Title VII. With respect to her complaints, she alleges only that she reported "harassment" and provided "documentation detailing the incidents that had occurred." Compl. p. 22. She frequently uses the word "harassment" but never alleges that she complained of harassment based on her race or sex. "Title VII's opposition clause "protects opposition neither to all unlawful employment practices nor to practices the employee simply thinks are somehow unfair." McNair v. Computer Data Sys., Inc., 172 F.3d 863, 1999 WL 30959, at *5 (4th Cir. Jan.26, 1999). Plaintiff's allegations fail to give rise to a cause of action for retaliation under Title VII, and, thus, dismissal of this claim is appropriate as well.
Although Plaintiff filed a Response (ECF No. 37) to Defendants' motions, she did not address any of the arguments raised by Defendants and simply repeated the allegations raised in her Complaint. Plaintiff may be able to cure some of the deficiencies identified by Defendant Continental Tire by filing an amended complaint pursuant to Fed.R.Civ.P. 15; however she has failed to do so after Defendants filed their motions. Plaintiff is advised that she still may be able to do so upon filing an appropriate motion to amend.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants Adam Love and Erik Lefebvre's Motion to Dismiss (ECF No. 22) be granted pursuant to Fed.R.Civ.P. 12(b)(6) and Defendants Continental AG and Continental Tire the Americas LLC's Motion to Dismiss (ECF No. 24) be granted pursuant to Fed.R.Civ.P. 12(b)(6) and this case be dismissed in its entirety.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge December 6, 2019
Florence, South Carolina