Opinion
No. 4:18-CV-32-BR
12-05-2018
HENRY WILLIAMS, II, Plaintiff, v. PITT COUNTY BOARD OF EDUCATION and PITT COUNTY SCHOOLS, Defendants.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on Defendant Pitt County Board of Education's ("Defendant") motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). [DE-7]. Defendant subsequently amended its memorandum of law to address the arguable inclusion of Pitt County Schools as a defendant. [DE-12]. Plaintiff Henry Williams, II ("Plaintiff") filed a response in opposition to the motion [DE-17], to which Defendant filed a reply [DE-20], and Plaintiff filed a sur-reply [DE-21]. All issues raised in the parties' briefing are ripe for decision, and the motion is referred to the undersigned for a memorandum and recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Local Civ. R. 72.3(c). For the reasons set forth below, it is recommended that the motion be allowed.
The court's Local Civil Rules do not provide for the filing of a sur-reply. See Local Civ. R. 7.1(e)-(g). However, in its discretion, the court has considered this filing.
I. BACKGROUND
Plaintiff, proceeding pro se, filed a complaint alleging claims of employment discrimination based on his race and age, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). [DE-1-3]. Plaintiff, an African-American, is a bus driver employed by the Pitt County Board of Education. Id. Plaintiff alleges that Rodney Curry ("Curry"), a mechanic supervisor who is white, referred to Plaintiff and other African-American employees as "boys" and refused to call African-American employees by their proper names, refused to sit near Plaintiff and other African-American employees, yelled for no reason, called Plaintiff "stupid," and refused to make necessary repairs to Plaintiff's bus's heating and air conditioning system; Joey Whithergton ("Whithergton"), a transportation manager who is white, treated Plaintiff "more harshly than the white employees and more harshly than younger employees;" and younger employees were assigned newer buses, but Plaintiff was "always put in old, broken down buses." Id. at 4-6. Plaintiff further alleges that on December 15, 2016, Whithergton told Plaintiff that he was "nothing but a troublemaker," after Plaintiff complained about Curry's discriminatory conduct; and on January 5, 2017, "to punish [Plaintiff] for complaining about discrimination," Whithergton took away Plaintiff's regular bus, which he had driven for two years, and assigned Plaintiff an old bus with no heat or air, which Curry refused to repair. Id. at 6.
There are discrepancies in the filings with respect to the correct spelling for Curry and Whithergton. The court will adopt the spelling contained in Plaintiff's complaint. [DE-1].
II. ANALYSIS
A. Claims against Defendant Pitt County Schools
Plaintiff names both the Pitt County Board of Education and Pitt County Schools as defendants in this matter. [DE-1]. Defendant requests dismissal of any claims asserted against Pitt County Schools because it is not an entity with the legal capacity to be sued. Def.'s Am. Mem. [DE-12] at 12-13. "State law dictates whether a governmental agency has the capacity to be sued in federal court." Parker v. Bladen Cty., 583 F. Supp. 2d 736, 740 (E.D.N.C. 2008) (citation omitted). Under North Carolina law, the local board of education, not the local school district, is the entity with the legal capacity to sue and be sued. N.C. Gen. Stat. § 115C-40; see Dodd v. Brunswick Cty. Schs., No. 7:10-CV-101-FL, 2010 WL 3075564, at *1 (E.D.N.C. Aug. 5, 2010) (dismissing plaintiff's suit naming Brunswick County Schools as a defendant rather than the local school board); Hunter v. Wake Cty. Bd. of Educ., No. 5:08-CV-62-D, 2008 WL 2695813, at *1 (E.D.N.C. July 8, 2008) (dismissing Wake County Public Schools because it "is not a corporate entity subject to suit under North Carolina law"). Accordingly, it is recommended that any claims asserted against Pitt County Schools be dismissed. B. Rule 12(b)(1) —Lack of Subject Matter Jurisdiction
Defendant seeks dismissal of Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(1) because he failed to attach to the complaint the EEOC charge and the notice of rights, which are required to establish subject matter jurisdiction. Def.'s Am. Mem. [DE-12] at 5. Alternatively, in the reply, Defendant contends that Plaintiff's claims of age and race discrimination and retaliation fall outside the scope of the allegations contained in the charge. Def.'s Reply [DE-20] at 3-4.
A court must dismiss all or part of an action over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Whether subject matter jurisdiction exists is a threshold question that must be addressed before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). The plaintiff, as the party opposing a Rule 12(b)(1) motion to dismiss, has the burden of proving that subject matter jurisdiction does, in fact, exist. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (citations omitted).
Before filing either a Title VII or ADEA claim in federal court, a plaintiff must first exhaust his administrative remedies by filing a charge of discrimination with the Equal Opportunity Employment Commission ("EEOC"). Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(d)). "The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint." Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014) (citations omitted). Although courts "recognize that EEOC charges often are not completed by lawyers and as such must be construed with utmost liberality," courts are "not at liberty to read into administrative charges allegations they do not contain." Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013) (citations and quotation marks omitted). "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint" may be pursued in a lawsuit under Title VII and the ADEA. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). "Thus, 'factual allegations made in formal litigation must correspond to those set forth in the administrative charge.'" Bonds v. Leavitt, 629 F.3d 369, 379 (4th Cir. 2011) (quoting Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005)). "[A] plaintiff fails to exhaust his administrative remedies where . . . his administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit." Chacko, 429 F.3d at 506; see Bonds, 629 F.3d at 379 ("[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.") (quoting Jones, 551 F.3d at 300). Nonetheless, because laypersons often initiate the EEOC administrative process, courts construe EEOC charges liberally. Chacko, 429 F.3d at 509.
Plaintiff has attached his EEOC charge of discrimination and right to sue letter to his opposition to the motion to dismiss. Pl.'s Resp. [DE-17] at 4-5. Because the documents were provided in response to the motion to dismiss, the court may consider them in determining whether plaintiff has exhausted his administrative remedies with respect to his Title VII and ADEA discrimination claims. See Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768 (permitting the court to consider evidence outside of the complaint when a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction). Plaintiff's complaint contains allegations of discrimination, hostile work environment, and retaliation. Compl. [DE-1]. Plaintiff's EEOC charge broadly alleges race and age discrimination, and specifically alleges hostile work environment, but nowhere in the EEOC charge does Plaintiff specifically allege or describe retaliation. Pl.'s Resp. [DE-17] at 4.
The race and age discrimination claims are addressed infra under Fed. R. Civ. R 12(b)(6).
The charge form provides an area for the claimant to check the appropriate boxes for the type of discrimination he has asserted. The "race" and "age" boxes on Plaintiff's charge form were checked, but the "retaliation" box was not checked. However, the failure to check the "retaliation" box is not alone determinative of whether Plaintiff's EEOC charge can support the retaliation claim he asserts in his complaint. Williams v. Mancom, Inc., 323 F. Supp. 2d 693, 695, n.2 (E.D. Va. 2004). Therefore, the court must also consider the language of the EEOC charge form.
In the area provided to state the particulars of his charge of discrimination, Plaintiff stated as follows:
I. During the 4 months period from November 21, 2016 until March 2, 2017, I was subjected to a hostile work environment in that a Caucasian mechanic supervisor, Mr. Rodney Corey, directed loud, disrespectful and boisterous [sic] language toward me on November 21, 2016 and I was questioned repeatedly by two Caucasian managers, including Mr. Joey Whitherton and Mr. Robert Todd, on
December 15, 2016 during an investigation of a shooting at a school. Also, a black-male bus driver, Mr. Charlie Gill, often asked about my whereabouts in a loud and disrespectful manner. I have been employed by the above named employer since 2001, in a bus driver position.Pl.'s Resp. [DE-17] at 4.
II. No reason was given to me by the employer for the hostility toward me. On three separate occasions, including November 21, 2016, December 15, 2016 and January 2017, I submitted written complaints to the employer about this, however, no action was taken by the employer to resolve my complaints.
III. I believe that I was discriminated against because of my race, black, and my age[,] 73, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended.
The narrative of Plaintiff's EEOC charge presents no facts related to allegations of retaliation, and his allegations are limited to complaints of a hostile work environment based on age and race. Id. Furthermore, Plaintiff's claim of retaliation alleged in the complaint is not reasonably related to his claims asserted in the EEOC charge and would not have been developed by a reasonable investigation into the assertions made in the narrative contained in the charge. See Thiessen v. Stewart-Haas Racing, Inc., 311 F. Supp. 3d 739, 744-45 (M.D.N.C. 2018) (plaintiff failed to exhaust administrative remedies with respect to claim of retaliation where plaintiff failed to check retaliation box, charge narrative failed to mention retaliation, and claims of wrongful discharge were not reasonably related to claim of retaliation) (citations omitted); Rosier v. TargetX, No. 2:17-CV-1306-RMG-MGB, 2018 WL 1832998, at *2-3 (D.S.C. Mar. 28, 2018) (finding complaint alleging retaliation for "requesting accommodations" not reasonably related to plaintiff's EEOC charge, where retaliation box was not checked and the narrative portion of the charge stated that plaintiff was terminated and discriminated against as a result of his disability without reference to accommodation or retaliation), adopted sub nom. Rosier v. TargetX; TargetX.com, 2018 WL 1832315 (D.S.C. Apr. 17, 2018). As the result of Plaintiff's failure to allege retaliation in his EEOC charge, he has failed to exhaust his administrative remedies with regard to his retaliation claim. Accordingly, it is recommended that Defendant's motion to dismiss pursuant to Fed. R. Civ. R 12(b)(1) be allowed with respect to any claims of retaliation contained in the complaint. C. Rule 12(b)(6) —Failure to State a Claim upon which Relief can be Granted
Defendant additionally seeks dismissal of Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Def.'s Am. Mem. [DE-12] at 6-11; Reply [DE-20] at 4-6.
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "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 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must "nudge[ ] [his] claims," Twombly, 550 U.S. at 570, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678-79.Acosta v. Jardon & Howard Techs., Inc., No. 4:18-CV-16-D, 2018 WL 5779506, at *1 (E.D.N.C. Nov. 2, 2018). "When evaluating a motion to dismiss, a court considers the pleadings and any materials 'attached or incorporated into the complaint'" and "may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment." Vlasaty v. Wake Cty. Pub. Sch. Sys. Bd. of Educ., No. 5:17-CV-578-D, 2018 WL4515877, at *3 (E.D.N.C. Sept. 20, 2018) (citations omitted).
The court must evaluate the sufficiency of a complaint drafted by a pro se party under a flexible standard. Johnson v. Allen, No. 7:18-CV-14-D, 2018 WL 4289456, at *2 (E.D.N.C. Sept. 7, 2018). A pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Nevertheless, the complaint must still "contain more than labels and conclusions," and the court "cannot ignore a clear failure to allege facts that set forth a cognizable claim." Id. (internal quotation marks and citations omitted). The principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
1. Race and Age Discrimination Claims
Defendant contends the complaint fails to allege sufficient factual allegations, i.e., membership in a protected class, satisfactory job performance, and an adverse employment action, to sustain any claims based on age and race. Def.'s Mem. [DE-12] at 6-9.
Title VII prohibits an employer from "discharg[ing] any individual, or otherwise . . . discimin[ating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C.A § 2000e-2(a). The ADEA prohibits an employer from "fail[ing] or refus[ing] to hire or discharge[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To state a claim for disparate treatment under either Title VII or the ADEA, plaintiff must allege sufficient facts showing: (1) membership in aprotected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly situated employees outside the protected class received more favorable treatment. White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); Harris v. N.C. Dep't of Transp., No. 5:15-CV-606-FL, 2017 WL 4012676, at *5 (E.D.N.C. Sept. 12, 2017) (applying White to Title VII and ADEA). "An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff's employment." Harris, 2017 WL 4012676, at *5 (quoting James v. Booz-Allen Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)). "While [c]onduct short of ultimate employment decisions can constitute adverse employment action, the typical requirements for a showing of an adverse employment action are discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion[.]" Id. (internal quotation marks and citations omitted).
Plaintiff asserts new factual allegations regarding his race, age, and job performance in filings in opposition to the motion to dismiss. [DE-17, -21]. Under Rule 15(a), a plaintiff must request leave of court to amend the complaint and cannot simply include additional factual allegations in a responsive pleading. Fed. R. Civ. P. 15(a); Materson v. Stokes, 166 F.R.D. 368, 370 (E.D. Va. 1996). Additional factual allegations contained in a response brief are ordinarily not considered on a motion to dismiss for failure to state a claim. Beck v. City of Durham, 129 F. Supp. 2d 844, 855 (M.D.N.C. 2000). However, the Fourth Circuit has held that, "in order to determine whether the claim of a pro se plaintiff can withstand a motion to dismiss, it is appropriate to look beyond the face of the complaint to allegations made in any additional materials filed by the plaintiff." Garrett v. Elko, 120 F.3d 261 (4th Cir. 1997). For purposes of judicial efficiency, the court elects to consider all of Plaintiff's factual allegations in order to determine whether, in totality, he has sufficiently pleaded claims for which relief can be granted.
Plaintiff has alleged the first two elements, namely that Plaintiff is African-American and 74 years old, thereby belonging to protected classes, and that he had "very satisfactory" job performance. Pl.'s Resp. [DE-17] at 1; Pl.'s Sur-reply [DE-21] at 1. However, taking Plaintiff's remaining allegations as true, he has not alleged facts demonstrating the third element requiring adverse employment action. Here, the only employment action alleged by Plaintiff is his reassignment to a different bus without air conditioning or heat, which Curry refused to repair. This alone is insufficient to demonstrate Plaintiff suffered an "adverse employment action." See Moret v. Green, 494 F. Supp. 2d 329, 344 (D. Md. 2008) (stating, in part, that an employer's refusal to give the plaintiff a new computer did not amount to a materially adverse employment action); Spriggs v. Pub. Serv. Comm'n of Maryland, 197 F. Supp. 2d 388, 393-92 (D. Md. 2002) (holding that actions including removing the lock from plaintiff's office door and her placement in objectionable offices after her transfer amounted to "only displeasure and inconvenience," not affecting "a term, condition, or benefit of her employment," and was not an adverse employment action) (citations omitted). Plaintiff's reassignment to a bus without air conditioning or heat, while it may be less desirable than his old bus, fails to demonstrate the type of "significant detrimental effect" necessary to demonstrate an adverse employment action. See Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) ("The mere fact that a new job assignment is less appealing to the employee [] does not constitute adverse employment action.") (citing James, 368 F.3d at 376). Therefore, it is recommended that any claims with respect to race or age discrimination pursuant to Title VII and the ADEA be dismissed.
2. Hostile Work Environment Claim
Defendant contends that the allegations in Plaintiff's complaint are too sparse to establish that Plaintiff suffered conduct that was sufficiently severe or pervasive to alter the conditions of his employment. Def.'s Mem. [DE-12] at 9-10; Def.'s Reply [DE-20] at 5-6.
In order to state a claim for hostile work environment, plaintiff must allege "that the offending conduct (1) was unwelcome, (2) was because of [his] [age or race], (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to [his] employer." Berry v. S. States Coop., Inc., No. 5:17-CV-635-FL, 2018 WL4365499, at *2 (E.D.N.C. Sept. 13, 2018) (quoting Bonds, 629 F.3d at 385). An employee must also show that his protected characteristic under Title VII or the ADEA was the "but for" cause of the alleged harassment. Coleman v. Altec, Inc., No. 5:16-CV-954-D, 2018 WL 4289610, at *3 (E.D.N.C. Sept. 7, 2018) (citing Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007)).
"To determine whether conduct is severe or pervasive, the court considers a variety of factors, including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Berry, 2018 WL 4365499, at *2 (quoting Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)). "Sufficiently severe conduct can constitute harassment, even if the conduct occurs in only one instance." Id. (citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280-81 (4th Cir. 2015) (en banc)). "However, '[a]ctivities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.'" Id. (quoting E.E.O.C. v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010)). "[C]allous behavior by [one's] superiors or a routine difference of opinion and personality conflict with [one's] supervisor . . . do not rise to the level of actionable harassment." Chang Lim v. Azar, 310 F. Supp. 3d 588, 599 (D. Md. 2018) (internal quotation marks and citations omitted).
"To determine whether conduct was sufficiently severe or pervasive to alter the employee's terms and conditions of employment and to create an abusive-working environment, the court examines the allegations both subjectively and objectively." Coleman, 2018 WL 4289610, at *3 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). "First, the employee must subjectively consider the conduct to be sufficiently severe or pervasive as to alter his conditions of employment." Id. (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (per curiam). "Second, a court views the conduct from the perspective of a reasonable person in the employee's position to determine whether it is objectively severe or pervasive." Id. (citing Breeden, 532 U.S. at 271). "The objective component helps courts 'to police the baseline for hostile environment claims.'" Id. (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc)). "Title VII does not create 'a general civility code for the American workplace,'" Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), but rather the alleged conduct must "amount to a change in the terms and conditions of employment," Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). To be actionable, "discriminatory intimidation, ridicule, and insult," based on the protected characteristic, must permeate the work environment in a manner "sufficiently severe or pervasive to alter the conditions" of the plaintiff's employment and to "create an abusive working environment." Harris, 510 U.S. at 21 (quotations omitted).
Here, Plaintiff alleges the following conduct of Curry and Whithergton created a hostile work environment: Curry referred to Plaintiff and other African-American employees as "boys" and refused to call African-American employees by their proper names, refused to sit near Plaintiff and other African-American employees, yelled for no reason, called Plaintiff "stupid," and refused to make necessary repairs to Plaintiff's bus's heating and air conditioning system; and Whithergton treated Plaintiff "more harshly than white employees and more harshly than younger employees," told Plaintiff that he was "nothing but a troublemaker" after Plaintiff complained about Curry's discriminatory conduct, and gave Plaintiff an old bus with no heat and air. Compl. [DE-1-3] at 4-6. Plaintiff alleged the discrimination occurred on November 21, 2016, December 15, 2016, and January 5, 2017, and was "ongoing before [and] after these dates." Id. at 4 ¶ 8.
First, Plaintiff makes general allegations that Curry referred to Plaintiff and other African-American employees as "boys" and refused to call African-American employees by their proper names, refused to sit near Plaintiff and other African-American employees, yelled for no reason, called Plaintiff "stupid," and refused to make necessary repairs to Plaintiff's bus's heating and air conditioning system; Whithergton treated Plaintiff "more harshly than white employees and more harshly than younger employees;" and discriminatory conduct was "ongoing before and after" the enumerated dates. Compl. [DE-1-3] at 4. Referring to an African-American employee as "boy," under certain circumstances, has been found sufficiently severe to support a hostile work environment claim. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (holding that referring to employees as "boy" could be evidence of discriminatory intent when considered with factors "including context, inflection, tone of voice, local custom, ahistorical usage," and reversing the Court of Appeals decision that the use of "boy" alone was not direct evidence of discrimination); White v. BFI Waste Servs. LLC, 375 F.3d 288, 297 (4th Cir. 2004) (recognizing that "boy" was one term of many that could create a triable issue of fact on hostile work environment claims when used against employees). However, the Fourth Circuit has held that "'conclusory statements, without specific evidentiary support, cannot support an actionable claim for harassment,' Causey v. Ball, 33 F.3d 795, 802 (4th Cir. 1998), and that allegations '[un]substantiated by accounts of specific dates, times, or circumstances,' are too 'general' to suffice, Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir. 1994)." EEOC v. Xerxes Corp., 639 F.3d 658, 676 (4th Cir. 2011) (finding a plaintiff's general statements that a co-worker used a racial slur "a bunch of different times" was insufficient to support a hostile work environment claim); see Brown v. Wake Cty. Gov't, No. 5:16-CV-806-D, 2017 WL 2982971, at *6 (E.D.N.C. July 12, 2017) ("[T]hreadbare allegation that [plaintiff] was "treated differently" than Hispanic coworkers, [] is too vague to state a claim under Title VII."). Thus, these general allegations fail to state a hostile work environment claim because they lack sufficient factual matter, i.e., specific dates, times, or circumstances, to satisfy the pleading standard set forth in Iqbal, 556 U.S. at 678.
Next, of the three specific dates on which Plaintiff alleges discrimination, the allegations related to December 15, 2016 and January 5, 2017 describe instances of retaliation when Whithergton called Plaintiff a troublemaker and assigned him an old bus for complaining about Curry, and Curry then refused to repair the bus's heating system. Compl. [DE-1-3] at 4, 6; Pl.'s Resp. [DE-17] at 4. There is no allegation that on these dates, Curry or Whithergton engaged in yelling, name-calling, or other harassing behavior, and allegations of retaliation "cannot be transformed, without more, into a hostile work environment claim." Moss v. Pasquotank Cty., No. 2:10-CV-56-BR, 2012 WL 2325846, at *10 (E.D.N.C. June 19, 2012) (citing Kilby-Robb v. Spellings, 522 F. Supp. 2d 148, 164 (D.D.C. 2007), aff'd, 309 F. App'x 422 (D.C. Cir. 2009)).
This leaves the allegation that on November 21, 2016, Curry refused to let Plaintiff drive his bus after he repaired it, yelled at Plaintiff, and called Plaintiff names. Compl. [DE-1-3] at 4-5. The Fourth Circuit in Boyer-Liberto recognized that "viable hostile work environment claims often involve repeated conduct," but ultimately held that "an isolated incident of harassment, if extremely serious, can create a hostile work environment." 786 F.3d at 268 (citing Faragher, 524 U.S. at 788). In Boyer-Liberto, the conduct at issue occurred over the course of two days when the plaintiff's supervisor yelled at her in such close proximity that plaintiff's face was sprayed with saliva, pursued the plaintiff and continued to loudly berate her in front of customers, twice threatened to "get [plaintiff]" and to "make [plaintiff] sorry," and twice called the plaintiff a "porch monkey." Id. at 269-70. In finding the offensive conduct to be "extremely serious" and sufficient to create a hostile work environment, the court considered the use of the particular slur "porch monkey," which it found "degrading and humiliating in the extreme." Id. at 280 (citing Spriggs, 242 F.3d at 185). The court also considered the status of the harasser as the plaintiff's supervisor to be a significant factor, particularly where the plaintiff's supervisor "employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate [plaintiff's] employment." Id. at 279-80.
Here, Plaintiff's allegation that he was yelled at and called names by Curry, who was a supervisor but does not appear to be Plaintiff's supervisor, is too general and lacks the necessary context, i.e., specific dates, times, or circumstances, to establish the requisite "extremely serious" conduct necessary to create a hostile work environment based on a single incident. Xerxes Corp., 639 F.3d at 676. As the Fourth Circuit has recognized, context matters. Savage v. Maryland, 896 F.3d 260, 277 (4th Cir. 2018). For example, in Boyer-Liberto, the use of a racial slur by a supervisor, accompanied by other physically threatening conduct, was sufficient to state a claim for a hostile work environment, 786 F.3d at 268, but in Woods v. Salem Elec. Co., No. 1:15-CV-525, 2017 WL 74271, at *4 (M.D.N.C. Jan. 6, 2017), the use of the words "boy" and "noose" under less egregious circumstances, though offensive, were not sufficiently severe or pervasive to support a hostile work environment claim. The allegations in Plaintiff's complaint relate troubling workplace conduct, but lack the necessary facts to "nudge[] [his] claim[] across the line from conceivable to plausible[.]" Twombly, 550 U.S. at 570; see Berry, 2018 WL 4365499, at *3 (allowing motion to dismiss for failure to state a hostile work environment claim where general assertions that harassing conduct occurred on "a frequent basis" and "on a number of earlier occasions" were too general to support a harassment claim) (citing Gilliam, 474 F.3d at 143); Bazemore v. Best Buy, No. CV PJM 18-264, 2018 WL 3117542, at *3 (D. Md. June 25, 2018) (allowing motion to dismiss pro se complaint for failure to state a hostile work environment claim, where "[g]eneral allegations of racial slurs, without specific references to detail, context, date, or circumstances, are insufficient to establish a hostile work environment."). Accordingly, because the complaint fails to allege facts to demonstrate sufficiently severe or pervasive conduct that would alter the conditions of Plaintiff's employment and create a hostile work environment, it is recommended that Defendant's motion to dismiss for failure to state a claim for hostile work environment be allowed without prejudice.
"A district court's dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice," and "[t]hat determination is within the district court's discretion." Carter v. Norfolk Cmty. Hosp. Ass'n, Inc., 761 F.2d 970, 974 (4th Cir. 1985). Plaintiff's hostile work environment allegations regarding the use of a slur and other offensive conduct failed to state a claim because they were too general and lacked specificity regarding frequency and circumstances. Because this defect could potentially be cured by amendment, dismissal of this claim without prejudice is recommended. See Martinez v. Mendoza, No. 5:17-CV-628-FL, 2018 WL 3762983, at *7 (E.D.N.C. Aug. 8, 2018) (citing Adbul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 292 (4th Cir. 2018); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Intern. Union, 10F.3d 1064, 1067 (4th Cir. 1993)). --------
III. CONCLUSION
For the foregoing reasons, it is recommended that Defendants' motion to dismiss [DE-7] be ALLOWED and Plaintiff's complaint be DISMISSED without prejudice as to the hostile work environment claim and with prejudice as to all other claims.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until December 19, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 5th day of December, 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge