Parker v. Thomas & Betts Corporation et al

MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction Plaintiff's Amended Complaint

W.D.N.C.April 17, 2017

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ANTHONY PARKER, ) ) Plaintiff, ) ) v. ) No. 3:17-cv-00041-MOC-DCK ) THOMAS & BETTS CORPORATION, ) ) Defendant. ) DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendant Thomas & Betts Corporation (“Thomas & Betts”), pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, submits its Motion to Dismiss, seeking dismissal of the Amended Complaint filed by Plaintiff Anthony Parker (“Plaintiff”), because Plaintiff fails to establish a factual, or even logical, basis for any of the legal claims set forth in his Amended Complaint. Plaintiff’s Amended Complaint attempts to state federal and state claims for age and race discrimination based on what he maintains to be a discriminatory failure to hire and termination; federal and state claims for alleged harassment; federal and state claims for alleged retaliation; a claim for alleged wrongful discharge under state law; and a state law breach of contract claim based on Thomas & Betts’ alleged violation of policies in its Handbook. First, Plaintiff’s Amended Complaint should be dismissed because it was not timely filed on or before April 3, 2017 per this Court’s Order. In the event the Court dismisses Plaintiff’s Amended Complaint, the Court should also dismiss Plaintiff’s original Complaint for the reasons outlined in Thomas & Betts first Motion to Dismiss. To the extent the Court does not dismiss Plaintiff’s Amended Complaint as untimely, it should be dismissed under Fed. R. Civ. P. 12 because Plaintiff cannot state age and race discrimination claims for alleged failure to hire and Case 3:17-cv-00041-MOC-DCK Document 22 Filed 04/17/17 Page 1 of 3 2 harassment because he failed to exhaust his administrative remedies with respect to those claims, both of which are outside the scope of his Charge of Discrimination (the “Charge”), which, in turn, deprives this Court of subject-matter jurisdiction to adjudicate those claims. Further, the Amended Complaint is devoid of any allegation that even approaches the standard for the “severe or pervasive” conduct necessary to support an actionable harassment claim. Plaintiff also fails to plead the causation element of his retaliation claim. To the contrary, Plaintiff actually admits that his employment was terminated because of his harassment of a co-worker and poor performance, which are legitimate, non-retaliatory bases for the decision. Similarly, Plaintiff’s claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”) fail because Plaintiff does not, and in fact cannot, given his admission about the reasons his employment was terminated, allege that he was meeting Thomas & Betts’ legitimate performance expectations. Plaintiff’s claims for wrongful discharge under state law should be dismissed because North Carolina recognizes no such claim in the context of harassment or retaliation. Further, courts in North Carolina apply federal standards to claims for wrongful discharge, and under that standard, Plaintiff’s claims fail because he admits his employment was terminated based on his harassment of a co-worker and poor performance, and thus he also cannot establish he was meeting Thomas & Betts’ legitimate performance expectations. Finally, Plaintiff cannot state a claim for breach of contract based upon Thomas & Betts’ alleged deviations from the procedures set forth in its Handbook because Plaintiff was an at-will employee, and the Handbook did not create a contract between Thomas & Betts and Plaintiff such that Thomas & Betts was contractually obligated to comply with it. For these reasons, and as further discussed in Thomas & Betts’ contemporaneously submitted Memorandum in Support, Plaintiff’s Amended Complaint does not, and cannot, allege Case 3:17-cv-00041-MOC-DCK Document 22 Filed 04/17/17 Page 2 of 3 3 facts sufficient to establish any claims upon which this Court could award relief. Plaintiff’s Amended Complaint should thus be dismissed in its entirety. Respectfully submitted, s/ R. Andrew Hutchinson R. Andrew Hutchinson (#025473) Attorney for Defendant BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 100 Med Tech Parkway, Suite 200 Johnson City, Tennessee 37604 Telephone: (423) 975-7657 Fax: (423) 928-5657 E-mail: dhutchinson@bakerdonelson.com OF COUNSEL: Jonathan C. Hancock (pro hac to be submitted) Whitney M. Harmon (pro hac to be submitted) Steven W. Fulgham (pro hac to be submitted) Attorneys for Defendants BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 CERTIFICATE OF SERVICE I hereby certify that on April 17, 2017, I served a true and correct copy of the foregoing by U.S. mail, postage prepaid, on the following pro se party: Anthony Parker 10410 Wheatside Dr. B Charlotte, NC 28262 Plaintiff (pro se) s/ R. Andrew Hutchinson Case 3:17-cv-00041-MOC-DCK Document 22 Filed 04/17/17 Page 3 of 3 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ANTHONY PARKER, ) ) Plaintiff, ) ) v. ) No. 3:17-cv-00041-MOC-DCK ) THOMAS & BETTS CORPORATION, ) ) Defendant. ) DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendant, Thomas & Betts Corporation (“Thomas & Betts”), pursuant to Rule 12 of the Federal Rules of Civil Procedure, seeks dismissal of the entire lawsuit filed by Plaintiff Anthony Parker (“Plaintiff”) on April 4, 2017 for the reasons set forth below. I. INTRODUCTION Plaintiff’s Amended Complaint was not timely filed on or before April 3, 2017, as required by this Court’s Order. This Court should consequently dismiss it as untimely. In that event, the Court should also dismiss Plaintiff’s original Complaint for the reasons outlined in T&B’s original Motion to Dismiss. To the extent this Court does not dismiss Plaintiff’s Amended Complaint as untimely, it should be dismissed pursuant to Fed. R. Civ. P. 12 because Plaintiff fails to establish a factual, or even logical, basis for any of the claims set forth in his Amended Complaint. In his Amended Complaint, Plaintiff attempts to state federal and state claims for age and race discrimination based on what he maintains to be a discriminatory failure to hire and termination; federal and state claims for alleged harassment; federal and state claims for alleged Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 1 of 24 2 retaliation; a claim for alleged wrongful discharge under state law; and a state law breach of contract claim based on Thomas & Betts’ alleged violation of policies in its Employee Handbook (“Handbook”). For the reasons outlined herein, Thomas & Betts submits Plaintiff simply cannot establish the required factual support for any claim, much less those he included in his Amended Complaint, and the entire case should therefore be dismissed with prejudice. As noted in its previously filed Motion to Dismiss (see Docs 9-10, referred to herein as the “First Motion to Dismiss”), Plaintiff failed to exhaust his administrative remedies with respect to his claims for failure to hire and harassment, both of which are outside the scope of his Charge of Discrimination (the “Charge”). (See Charge, attached as Exhibit 2 to First Motion to Dismiss, Doc. 10-3). 1 Plaintiff’s Amended Complaint could not and did not correct this deficiency. Further, the Amended Complaint is devoid of any allegation that even approaches the standard for the “severe or pervasive” conduct necessary to support an actionable harassment claim. Plaintiff also fails to plead the causation element of his retaliation claim. To the contrary, Plaintiff actually admits that his employment was terminated because of his harassment of a co- worker and poor job performance, which are legitimate, non-retaliatory reasons for the decision. (Amended Complaint, Doc. 20, ¶¶ 17, 37). Similarly, Plaintiff’s claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”) fail because Plaintiff does not, and in fact cannot, allege that he was meeting Thomas & Betts’ legitimate performance expectations. (Id.) 1 The Charge is referenced in the Form Complaint and, therefore, is properly referenced and considered in this Memorandum. See Whittington v. N. Carolina Dep’t of Juvenile & Delinquency Prevention, 2006 WL 909141, at *1 (W.D.N.C. Apr. 7, 2006) (“If a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”). Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 2 of 24 3 Plaintiff also does not state a legally cognizable claim for breach of contract based upon Thomas & Betts’ Handbook because he was an at-will employee, and the Handbook did not create a contract between Thomas & Betts and Plaintiff such that Thomas & Betts was contractually required to comply with it. Finally, Plaintiff’s claims for wrongful discharge under state law should be dismissed. North Carolina recognizes no such claim in the context of harassment or retaliation. Further, courts in North Carolina apply federal standards to claims for wrongful discharge, and under that standard, Plaintiff’s claims fail because he admits his employment was terminated for his harassment of a co-worker and poor performance, and thus he also cannot establish he was meeting Thomas & Betts’ legitimate performance expectations. For these reasons, and as further discussed below, Plaintiff’s Amended Complaint does not, and cannot, allege facts sufficient to establish any claims upon which this Court could award relief. Plaintiff’s Amended Complaint should thus be dismissed in its entirety. II. PROCEDURAL HISTORY Plaintiff commenced this action on January 31, 2017. (See Complaint, Doc. 1). On March 7, 2017, Defendant filed a Motion to Dismiss Plaintiff’s Complaint, with prejudice, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (See Docs. 9-10). On March 21, 2017, Plaintiff filed a Motion to Amend Complaint (Doc. 14), a Motion for Summary Judgment (Doc. 15), and a Response to Roseboro Order Dated March 8, 2017, (Doc. 16). It is unclear from Plaintiff’s filings whether he filed a Response to Defendant’s Motion to Dismiss, a separate Motion for Summary Judgment, or a combination of the two, because Plaintiff relies on both the Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 3 of 24 4 standard for summary judgment under Fed R. Civ. P. 56 and the standard for a motion to dismiss pursuant to Fed. R. Civ. P. 12. (See generally Docs. 15-16). 2 On March 23, 2017, the Court entered an Order granting Plaintiff’s Motion to Amend Complaint and denying Defendants’ Motion to Dismiss as moot, without prejudice. (Doc. 17). The Court ordered Plaintiff to file an Amended Complaint by April 3, 2017. (Doc. 17). Plaintiff filed his Amended Complaint on April 4, 2017. (See Amended Complaint, Doc. 20). Plaintiff’s Amended Complaint is almost identical to his original Complaint, with a few differences. (See Docs. 1, 20). A. Plaintiff’s Amended Complaint Unlike his original Complaint, Plaintiff’s Amended Complaint does not assert a whistleblower claim under the Fair Labor Standards Act (“FLSA”), nor does it assert a claim for vacation pay under state law, effectively abandoning these claims. (See Complaint, Doc. 1; Amended Complaint, Doc. 20). To the extent the Court finds these claims somehow survive, Thomas & Betts incorporates by reference the arguments regarding dismissal from its First Motion to Dismiss. (See Docs. 9-10). Next, Plaintiff somewhat revises his characterization of the reasons for Thomas & Betts’ termination of his employment from poor “management style” to what he contends is “supposed” harassment of a co-worker and poor job performance. (See generally Complaint, Doc. 1, at ¶ 18; Amended Complaint, Doc. 20, at ¶¶ 17, 37). The change in characterization is of no consequence because, as admitted by Plaintiff in both the original Complaint and the Amended Complaint, his employment was not terminated because of his age or race. Lastly, Plaintiff contends that the Response to Survey Results attached as Exhibit 4 to the First Motion to Dismiss (Doc. 10-5), was “ruled not credible” by a prior Plant Manager and 2 Defendant files its Response to Plaintiff’s Motion for Summary Judgment contemporaneously with this Motion to Dismiss. Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 4 of 24 5 prior Human Resource Manager at Thomas & Betts. (Amended Complaint, Doc. 20, at ¶ 61). Even if the Response to Survey Results were “ruled not credible,” Plaintiff still admits Thomas & Betts terminated his employment for legitimate, non-discriminatory and non-retaliatory reasons because the Response to Survey Results confirms Plaintiff’s admitted poor performance and harassment of a co-worker. Moreover, the incomplete survey results Plaintiff attaches to his Complaint further demonstrate his poor performance, as addressed further herein. (See Complaint, Doc. 20, at Exhibit 6). Based on the foregoing, and as further discussed below, Plaintiff’s Amended Complaint should be dismissed with prejudice for many of the same reasons Plaintiff’s original Complaint warranted dismissal. III. RELEVANT FACTS Plaintiff began working for Thomas & Betts on August 16, 2016, as a First Shift Supervisor. (Amended Complaint, Doc. 20, ¶ 9). On or about November 15, 2016, Thomas & Betts discharged Plaintiff based on his misconduct and poor performance. (See Complaint, Doc. 1, ¶¶ 16, 18, and 21; see Amended Complaint, Doc. 20, ¶¶ ¶¶ 17, 37). On November 16, 2016, Plaintiff filed his Charge of Discrimination with the EEOC against Thomas & Betts. (See Charge, Doc. 10-3). In his Charge, Plaintiff checked the boxes for race discrimination, age discrimination, and retaliation, and he listed November 15, 2016 - the date on which his employment was terminated - as both the earliest and latest date of alleged discrimination. (Id.) The factual allegations of the Charge are as follows: On or about November 15, 2016, Respondent terminated my employment. I had been employed by Respondent since August 2016 in the position of First Shift Supervisor. Respondent employs twenty or more employees. The reason provided by Respondent for my discharge is that Respondent had been having complaints from employees about my management style. Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 5 of 24 6 On or about October 14, 2016 and October 31, 2016, I objected to management issuing disciplinary action to a same-sex couple but did not similarly discipline a heterosexual couple for the same conduct. I believe that I am being discriminated against based on race (African American), age (58), and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act respectively. (Id.) Plaintiff received a Dismissal and Notice of Rights on or about January 24, 2017, (see Form Complaint, Doc. 1, at 5; see also Amended Complaint, Doc. 20, ¶ 26), and he filed this action on January 31, 2017, (Complaint, Doc. 1). In addition to the factual allegations in his Charge, Plaintiff’s Amended Complaint includes allegations that he interviewed to be the Plant Manager but did not get the job, which Plaintiff alleges was awarded to a less qualified candidate. (Amended Complaint, Doc. 20, ¶ 7). Plaintiff also alleges that Thomas & Betts bought a new desk for a younger, white male Second Shift Supervisor, ostensibly implying that the younger, white male received preferential treatment. (Id. at ¶ 8). Plaintiff contends that in October of 2016, he reported “harassing treatment” by the younger, white male supervisor, who allegedly disciplined a same-sex couple for showing affection at work. (Id. at ¶ 13). Plaintiff further contends that in October, 2016, he made an “ethics complaint” concerning purported “racial comments” by a white, male Plant Manager and a white, male Second Shift Supervisor. (Id. at ¶ 14). The alleged ethics complaint is attached to Plaintiff’s Amended Complaint as Exhibit 6. In the ethics complaint, Plaintiff submits that Larry Huinker (“Huinker”), the Plant Manager, said “where he lived in Iowa, one black person lived in the town who worked for him,” and that James Scott, (“Scott”) the Second Shift Supervisor, said “he was not prejudice because he adopted a black child.” (Id.). Plaintiff alleges he was harassed by Huinker when he accused Plaintiff of entering the women’s bathroom, and that Huinker then subjected him to “unwarranted” surveillance. (Id. at Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 6 of 24 7 ¶¶ 15, 19). Plaintiff further alleges that on November 11, 2016, a co-worker “made racial comments Plaintiff was over 75 years old and black don’t crack.” (Id. at ¶ 16). Plaintiff alleges his employment was terminated on November 15, 2016 and that he was replaced by a younger, Caucasian employee. (Id. at ¶¶ 17, 18, and 20). In his Amended Complaint, Plaintiff does not allege his employment was terminated for any illegal reason; instead, he acknowledges his employment was terminated due to his poor job performance and for harassing a co-worker. (See generally id. at ¶¶ 17, 37). In his Amended Complaint, Plaintiff adds the qualifier, “supposedly,” to his description of the reason for the termination of his employment. (See id.). Nonetheless, Plaintiff still admits Thomas & Betts’ proffered reasons were legitimate, non-discriminatory, and non-retaliatory. (See id.). Plaintiff even attaches survey results to his Amended Complaint that confirm the reason his employment was terminated was not pretext for unlawful discrimination or retaliation. (See generally id.). Finally, Plaintiff also incorrectly claims Thomas & Betts deviated from company policy by not following its procedures and investigating Plaintiff’s complaints concerning “racial comments” and “the unfair treatment of [a] same sex couple.” (Id. at ¶¶ 59-61). Plaintiff’s claims fail as a matter of law and should be dismissed, with prejudice, as further discussed below. IV. STANDARDS OF REVIEW This Court has considered motions to dismiss for failure to exhaust administrative remedies under Fed. R. Civ. P. 12(b)(1) because “[a] failure to exhaust . . . administrative remedies, deprives the court of subject matter jurisdiction, resulting in automatic and outright dismissal.” Hoffman v. Family Dollar Stores, Inc., 99 F. Supp. 3d 631, 633-34 (W.D.N.C. 2015). “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 7 of 24 8 jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Harris v. Gilbarco Veeder Root, 2009 WL 806577, at *1 (M.D.N.C. Mar. 26, 2009), report and recommendation adopted, 2009 WL 1405690 (M.D.N.C. May 18, 2009). “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. A motion brought under Fed. R. Civ. P. 12(b)(6) examines whether the plaintiff has stated a claim upon which relief can be granted. The Supreme Court has made clear that under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must do more than make conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Importantly, the Fourth Circuit has narrowly interpreted the Supreme Court’s holding in Swierkiewicz v. Sorema NA, 534 U.S. 506, 510 (2002) (holding that in discrimination actions, the prima facie case is an evidentiary standard, not a pleading requirement), and in spite of that holding, requires plaintiffs to set forth facts sufficient to allege each element of a discrimination claim. See Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). Moreover, “[p]rinciples requiring generous construction of pro se complaints are not . . . without limits,” and courts “cannot be expected to construct full blown claims from sentence fragments . . . .” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In his Amended Complaint, Plaintiff asserts a pro se Complaint is subject to less stringent pleading standards. (See Amended Complaint, Doc. 20, at 1). Plaintiff’s statement regarding the pleading standard applicable to pro se Complaints is incomplete. Courts in this jurisdiction have Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 8 of 24 9 held that “[w]hile a pro se plaintiff’s allegations are to be liberally construed, a court is not required to reject the pleadings standards set forth in the Federal Rules of Civil Procedure, and a plaintiff must still allege either directly or inferentially all the material elements of a claim to overcome a motion to dismiss.” Easter v. Virginia, No. 4:05CV162, 2006 WL 5915495, at *6 (E.D. Va. Sept. 5, 2006), aff'd sub nom. Easter v. U.S. Dep't of Health & Human Servs., 222 F. App’x 255 (4th Cir. 2007). Even applying a less stringent pleading standard, Plaintiff’s Amended Complaint should be dismissed pursuant to Rule 12 for the reasons stated below. V. LAW AND ARGUMENT A. Plaintiff’s Amended Complaint was not timely filed and should be dismissed. Plaintiff failed to timely file his Amended Complaint on or before April 3, 2017, as required by this Court’s Order. This Court granted Plaintiff leave to file an Amended Complaint but ordered him to do so on or before Monday, April 3, 2017. (See Doc. 17) (“Plaintiff shall file an Amended Complaint on or before April 3, 2017.”). In spite of the Court’s Order, it appears Plaintiff did not mail his Amended Complaint to the Clerk for filing until Friday, March 31, 2017. (See Doc. 20-2). As a result, the Clerk did not receive the Amended Complaint until Tuesday, April 4, 2017, and filed it that same day. (See Doc. 20). Plaintiff failed to comply with this Court’s Order and failed to timely file his Amended Complaint. As a result, the Court should dismiss the Amended Complaint as untimely and should also dismiss Plaintiff’s original Complaint for the reasons outlined in Thomas & Betts’ First Motion to Dismiss. (Docs. 9-10). To the extent the Court does not dismiss Plaintiff’s Amended Complaint as untimely, it should be dismissed for the reasons stated herein. Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 9 of 24 10 B. Plaintiff failed to exhaust his administrative remedies with respect to his claims for failure to hire and harassment, and these claims should be dismissed. Plaintiff has failed to exhaust his administrative remedies with respect to his failure to hire and harassment claims because they are outside the scope of his Charge. The scope of the federal claims that are subject to an administrative exhaustion requirement, namely Plaintiff’s claims alleged pursuant to Title VII and the ADEA, is confined to the causes of action set out in the Charge and those “that can reasonably be expected to follow” from its allegations. Miles v. Dell, Inc., 429 F.3d 480, 491-92 (4th Cir. 2005) (citing Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). In other words, a plaintiff fails to exhaust administrative remedies with respect to any claim that is not “reasonably related to [the] EEOC charge” and cannot be “expected to follow from a reasonable administrative investigation” based on the allegations of the charge. Id. (citing Smith v. First Union Nat’l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000)). There is absolutely no mention in Plaintiff’s Charge of any failure to hire Plaintiff as the Plant Manager, or of any alleged harassment. (See Charge, Doc. 10-3). The Charge’s allegations concerning alleged retaliation and Plaintiff’s discharge simply are not sufficient to exhaust remedies with respect to other discrete types of discrimination, including claims based on failure to hire and alleged harassment. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (holding that EEOC Charge containing allegations of disparate treatment - failure to promote - was not sufficient with respect to claims for harassment and different type of disparate treatment - discriminatory pay); see also Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) (“A claim will also typically be barred if the administrative charge alleges one type of discrimination - such as discriminatory failure to promote - and the Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 10 of 24 11 claim encompasses another type - such as discrimination in pay and benefits.”). Further, the Charge lists November 15, 2016 - the date on which Plaintiff’s employment was terminated - as both the earliest and latest date of alleged discrimination. In addition to the narrative, the date or dates selected set the scope of the Charge. For example, in Govan v. Caterpillar, Inc., a District Court in this Circuit specifically held that a harassment claim was not within the scope of a Charge specifying the date of termination as the earliest and latest date on which discrimination took place. 899 F. Supp. 2d 445, 457 (D.S.C. 2012). The court relied in part on the fact that alleging the date of the adverse action as the only relevant date is inherently inconsistent with a harassment claim. Id. (“Plaintiff specifically alleged in her charge a discrete act of racial, sex, and/or pregnancy discrimination in the context of her lay-off on July 27, 2009. Additionally, Plaintiff’s specification of July 27, 2009 as both the earliest and latest date of occurrence of the discrimination substantiates that Plaintiff did not allege a claim of hostile work environment.”); see also Givens v. Vigeant, 2013 WL 3457038, at *7 (D.S.C. July 9, 2013). Thus, when Plaintiff limited his Charge to his termination date, he only reinforced that claims for failure to hire and harassment are not within the scope of the Charge. Plaintiff’s failure to exhaust his administrative remedies as to his claims for failure to hire and harassment pursuant to the ADEA and Title VII also deprives this Court of subject-matter jurisdiction over those claims and compels dismissal of them under Fed. R. Civ. P. 12(b)(1). See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009) (“Importantly, a failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim. The same is true of claims made under the ADEA.” (citations omitted)). Even if this Court finds it does have subject-matter jurisdiction over failure to hire and harassment claims brought pursuant to the ADEA and Title VII, it should Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 11 of 24 12 exercise its subject-matter jurisdiction to dismiss them for failure to exhaust administrative remedies. See generally Enoch v. Becton, Dickinson & Co., 2012 WL 2371049, at *8, n.12 (D. Md. June 22, 2012) (recognizing that some decisions in the Fourth Circuit do not describe the exhaustion requirement as a jurisdictional one while nonetheless recognizing failure to exhaust administrative remedies is still a defense). Plaintiff’s original Complaint contains allegations outside the scope of his Charge, and Plaintiff’s Amended Complaint, which contains identical allegations, did not fix this deficiency. The Court should dismiss Plaintiff’s failure to hire and harassment claims pursuant to Title VII and the ADEA for the reasons stated above. C. Plaintiff fails to state a claim for racial harassment. Plaintiff fails to allege facts sufficient to meet the pleading standard applicable to his claim for racial harassment. In his Complaint, Plaintiff’s racial harassment claims are based solely on the following allegations: Huinker made a comment that he lived in a town with one African American who worked for him; Scott made a comment that he adopted a child who is African American; and Barbara Holden made a comment that “black don’t crack.” (See Amended Complaint, Doc. 20, at ¶¶ 14, 16 and Exhibit 6). To state a claim, Plaintiff must sufficiently allege that the purported harassment: (1) was unwelcome; (2) was based on race; (3) was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) can be imputed to Thomas & Betts. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001). Plaintiff cannot meet the third element-the “severe or pervasive” requirement. Courts determine “whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 12 of 24 13 whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). Plaintiffs “must clear a high bar in order to satisfy the severe or pervasive test” by showing that “the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.” EEOC v. Xerxes Corp., 639 F.3d 658, 676 (4th Cir. 2011). Thus, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” EEOC v. E&H Elec. Serv., Inc., 2007 WL 841942, at *3 (W.D.N.C. Mar. 19, 2007). Courts have made clear that “[t]he mere utterance of an ethnic or racial epithet . . . does not affect the conditions of employment” and, therefore, is not actionable. Id. In a similar case from this jurisdiction, Greene v. Swain County Partnership for Health, an employee contended she was subjected to a racially hostile work environment, alleging that her supervisor: (i) made racially insensitive comments concerning teen pregnancy among Native Americans; (ii) used the phrase “Token Indian”; and (iii) made derogatory remarks regarding her black hair, high cheekbones, and heritage. 342 F. Supp. 2d 442, 455 (W.D.N.C. 2004). The court found that the harassment was neither severe nor pervasive, reasoning that the employee failed to substantiate her allegation that the comments were made on a daily basis. Id. Without evidence that her allegations were more than individual occurrences, the court concluded that the employee’s claim failed as a matter of law, noting that “hostile work environment claims are not designed to provide a remedy for every instance of verbal or physical harassment in the workplace.” Id.; see also Martin v. Merck & Co., 446 F. Supp. 2d 615, 628-30 (W.D. Va. 2006) (finding that alleged harassment was neither severe nor pervasive where the “n” word was used). Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 13 of 24 14 As demonstrated by clearly established case law in this Circuit, Plaintiff’s allegations are insufficient to sustain his cause of action because they simply do not rise to the level of severe or pervasive harassment. The alleged racial harassment consists of three, isolated comments, that did not allegedly physically threaten or humiliate Plaintiff, nor did they affect Plaintiff’s work performance. There is nothing severe or pervasive about Huinker’s purported comment that he lived in a town with one African American, who worked for him, and there is nothing severe or pervasive about Scott’s alleged comment that he adopted a child who is African American. Similarly, the purported comment that “black don’t crack” may advance an inappropriate stereotype that African Americans age well, but it does not demonstrate that “the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere,” EEOC v. Xerxes Corp., 639 F.3d 658, 676 (4th Cir. 2011), especially when compared to the conduct at issue in Greene, 342 F. Supp. 2d at 455. Plaintiff’s original Complaint contained allegations insufficient to state a claim for racial harassment. Plaintiff’s Amended Complaint contains almost identical allegations, and, as a result, similarly fails to state a claim for racial harassment. Because Plaintiff cannot meet the third element required to state a claim for racial harassment, the claim should be dismissed. D. Plaintiff fails to state a claim for retaliation. Plaintiff claims he was retaliated against due to his purported complaints about “harassing treatment . . . [of] same sex couple disciplined for showing affection at work” and other employees making “racial comments.” (See Amended Complaint, Doc. 1, ¶¶ 13-14). Plaintiff’s retaliation claim fails as a matter of law because he cannot demonstrate a causal link between the purported protected activity and his termination. Additionally, Plaintiff’s Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 14 of 24 15 complaints regarding alleged treatment of a same-sex couple do not even amount to protected activity under Title VII. To state a claim for retaliation, a plaintiff must plead facts showing “(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), affirmed by Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327 (2012) (citing Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004)). Plaintiff has the burden to “allege facts sufficient to state all the elements of [his] claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Plaintiff’s own Complaint and allegations demonstrate that his discharge was not causally connected to any alleged protected activity, as required. In his Complaint, as acknowledged in his Charge as well, Plaintiff admits that his employment was instead terminated due to his harassment of a co-worker and poor job performance. (Amended Complaint, Doc. 20, ¶¶ 17, 37). The results of the survey Plaintiff attached to his Complaint only support that conclusion. Plaintiff attaches some of the survey results to his Complaint, but excludes certain of the responses to the survey, including one in which an employee gave Plaintiff the lowest possible rating for each survey question and stated as follows: He has harassed a few employees sexually, within the job [and] with language. Since he has been here he hasn’t [tried] to make his self available to help do any job on the floor. Walks around with his hands in his pockets looking for employees. I have talked to someone about his harassment and he is [still] doing it. So no I’m not pleased with him at all. (Response to Survey Results, attached as Exhibit 4 to First Motion to Dismiss, Doc. 10-5). 3 In light of his own admission that he was discharged due to his harassment of a co-worker and poor 3 This Court may consider the Response to Survey Results without converting the Motion to Dismiss into a motion for summary judgement because they are part of the survey Plaintiff attached to his Complaint. See Hartford Fire Ins. Co. v. Harborview Marina & Yacht Club Cmty. Ass’n, Inc., 2016 WL 7178304, at *2 (D. Md. Dec. 9, 2016) (citing Beke v. Amica Gen. Agency Inc., 2014 WL 6066122, at *3 (N.D. Ind. Nov. 10, 2014), for the proposition that Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 15 of 24 16 performance, which is further demonstrated by the results of his own survey, Plaintiff simply cannot meet the pleading standard required for the causation element of his retaliation claim. Additionally, Plaintiff did not engage in protected activity by allegedly reporting his misperception that a same-sex couple was being treated differently. (Amended Complaint, Doc. 20, ¶ 13). Title VII provides that it is “an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3. While a plaintiff need not establish that the employment practice he opposed in fact violated Title VII, his belief that he was opposing unlawful discrimination must: (1) have been held in subjective good faith; and (2) be objectively reasonable, which means “reasonable in light of the facts of the case and current, substantive caselaw.” Wainright v. Carolina Motor Club, Inc., 2005 WL 1168463, at *10 (M.D.N.C. Apr. 27, 2005); see also Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir. 1998) (“If the plaintiffs are free to disclaim knowledge of the substantive law, the reasonableness inquiry becomes no more than speculation regarding their subjective knowledge.”). Here, case law in this Circuit plainly establishes that sexual orientation is not protected by Title VII. See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996) (“Title VII does not prohibit conduct based on the employee's sexual orientation, whether homosexual, bisexual, or heterosexual.”); see also Wrightson v. Pizza Hut of Am., Inc., 99 F.3d “an adverse party is permitted to introduce other parts of a document or other documents ‘which ought in fairness to be considered contemporaneously with [another document] . . . without converting a motion to dismiss into a motion for summary judgment’”). In his Amended Complaint, Plaintiff asserts the Response to Survey Results were “ruled not credible” by a prior Plant Manager and prior Human Resource Manager. (Amended Complaint, Doc. 20, ¶ 61). As discussed above, even if the Response to Survey Results were “ruled not credible,” Plaintiff has still admitted Thomas & Betts terminated his employment for a legitimate, non-discriminatory and non-retaliatory reason. The Response to Survey Results merely confirm Plaintiff’s poor performance and harassment. Moreover, the survey results Plaintiff attached to his Complaint demonstrate his poor performance by his mediocre ratings. (See Complaint, Doc. 20, at Exhibit 6). Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 16 of 24 17 138, 143 (4th Cir. 1996) (“[I]t is true Title VII does not afford a cause of action for discrimination based upon sexual orientation . . . .”). Even if Plaintiff were to argue that conflicting decisions from Circuit Courts of Appeal render his belief that sexual orientation is a protected category under Title VII objectively reasonable, there has been high-profile litigation and legislative action in North Carolina regarding the protected categories under Title VII, undoubtedly putting Plaintiff on notice that sexual orientation is not, in fact, a protected category under Title VII. Therefore, given the state of the law in this Circuit and in the State of North Carolina, any belief that opposing discrimination based on sexual orientation is protected by Title VII is simply not objectively reasonable. Though Plaintiff now attempts to re-characterize the proffered reasons for the termination of his employment by Thomas & Betts, his Amended Complaint, like his original Complaint, fails to allege Plaintiff engaged in any protected activity under Title VII or that there is any causal connection between protected activity and the termination of his employment. This claim should thus be dismissed with prejudice as a result. E. Plaintiff fails to state a discrimination claim. Plaintiff’s claim that his employment was terminated because of his age and race fails as a matter of law because he admits his employment was terminated for his harassment of a co- worker and poor job performance, and not because of his age or race, which is a legitimate, non- retaliatory basis for the decision. (Amended Complaint, Doc. 20, ¶¶ 17, 37). To state a prima facie case of race discrimination, Plaintiff must allege “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 17 of 24 18 Cir. 2004)). Similarly, to state a prima facie case of age discrimination, Plaintiff must allege that: (1) he is at least 40 years old; (2) he suffered an adverse employment action; (3) he was performing his job duties at a level that met Thomas & Betts’ legitimate expectations; and (4) his position remained open or was filled by a substantially younger person. See Bodkin v. Town of Strasburg, Virginia, 386 F. App’x 411, 413-14 (4th Cir. 2010). Here, Plaintiff cannot make a prima facie case for age or race discrimination because he simply has not alleged satisfactory job performance, and he cannot allege he was meeting Thomas & Betts’ legitimate expectations. Instead, as outlined above, Plaintiff admits that he was fired for his harassment of a co-worker and poor job performance. (Amended Complaint, Doc. 20, ¶¶ 17, 37). Even if Plaintiff were able to make a prima facie claim for age or race discrimination, Thomas & Betts had a legitimate and non-discriminatory motive for the termination of Plaintiff’s employment: his harassment of a co-worker and poor job performance. (Amended Complaint, Doc. 20, ¶¶ 17, 37). His admission regarding the reason for his termination is also supported by, among other things, the previously discussed employee survey he conducted on himself and elected to partially attach to his Complaint. Plaintiff’s confession that his employment was terminated based on his poor job performance is entirely supported by the survey and survey results he offers this Court as support for his claims. This is fatal to his ability to proceed with either a claim for racial discrimination or age discrimination, because, not only do these admissions and facts establish Plaintiff was not performing satisfactorily or at a level consistent with Thomas & Betts’ legitimate expectations, they also establish a legitimate and non-discriminatory basis for the termination of his employment. Thus, Plaintiff cannot state a claim for age or race discrimination. Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 18 of 24 19 In his original Complaint, Plaintiff admitted Thomas & Betts had a legitimate, non- discriminatory basis for terminating his employment. Plaintiff’s Amended Complaint did nothing to cure this deficiency. Though re-characterizing the reasons proffered for the termination of his employment, Plaintiff’s Amended Complaint still admits Thomas & Betts had a legitimate, non-discriminatory basis for terminating his employment. Plaintiff’s discrimination claim should be dismissed as a result. F. Plaintiff fails to state a claim under state law for retaliation or wrongful discharge. Plaintiff fails to state claims for discrimination, harassment, and retaliation under state law. (See Amended Complaint, Doc. 20, Counts 3 through 5). 4 First, in purported support for his retaliation claim, Plaintiff repeatedly cites the North Carolina Retaliatory Employment Discrimination Act (“REDA”). The court in Webb v. K.R. Drenth Trucking, Inc., 780 F. Supp. 2d 409, 413 (W.D.N.C. 2011), held the REDA “prohibits employer retaliation against employees who engage in protected activity by filing claims under several enumerated state statutes 5 concerning employment practices or cooperating with investigations pursuant to claims filed by other employees.” Plaintiff does not, and in fact cannot, allege that he filed such a claim or participated in such an investigation prior to his discharge. This failure by Plaintiff is fatal to his retaliation claim under the REDA. Moreover, Plaintiff fails to state claims for harassment, discrimination, and retaliation 4 Plaintiff has two Count 3s in his Amended Complaint, no Count 4, and a Count 5. (Amended Complaint, Doc. 20). Thomas & Betts will hereinafter refer to the two Count 3s as Counts 3 and 4, respectively. 5 This Court has listed the relevant statutes as follows: “N.C. Gen. Stat. §§ 97 (North Carolina Workers’ Compensation Act); 95, Art. 2A (North Carolina Wage and Hour Act); 95, Art. 16 (North Carolina Occupational Safety and Health Act); 74, Art. 2A (North Carolina Mine Safety and Health Act); 95-28.1 (prohibiting discrimination against any person possessing the Sickle Cell or Hemoglobin C trait); 127A, Art. 16 (National Guard Re-employment Rights); 95-28.1A (prohibiting discrimination based on genetic testing); 143, Art. 52 (North Carolina Pesticide Law of 1971); 90, Art. 5F (North Carolina Drug Paraphernalia Control Act of 2009); and 50B (Domestic Violence).” Webb v. K.R. Drenth Trucking, Inc., 780 F. Supp. 2d 409, 413 (W.D.N.C. 2011). Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 19 of 24 20 under North Carolina’s Equal Employment Practices Act (“EEPA”). Plaintiff attempts to recast his harassment, discrimination, and retaliation claims for wrongful discharge in alleged violation of the public policy of North Carolina. (Amended Complaint, Doc. 20, Count 4). The “EEPA” states as follows: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees.” N.C. Gen. Stat. Ann. § 143- 422.2. With that said, the EEPA “does not express a public policy concerning harassment, failure to promote or retaliation.” Chung v. BNR, Inc./N. Telecom, Inc., 16 F. Supp. 2d 632, 634- 35 (E.D.N.C. 1997). Thus, Plaintiff cannot state a claim under the EEPA for harassment or retaliation. Moreover, while courts have recognized claims for wrongful discharge where an individual’s employment is terminated for one of the reasons enumerated in the EEPA, including age and race, those claims are analyzed under the same framework as claims brought under Title VII and the ADEA. See Henson v. Liggett Grp., Inc., 61 F.3d 270, 277 (4th Cir. 1995) (“Because plaintiff relies upon the same evidence to support her state law claim for age discrimination under the EEPA, as she did in the ADEA context, the district court correctly granted summary judgment to Liggett on Henson’s state law claim.”); Piedi v. T-Mobile USA, Inc., 2012 WL 3018366, at *5 (W.D.N.C. July 24, 2012) (“The elements of proving racial discrimination are the same under Title VII and the NCEEPA.”). As discussed above, Plaintiff cannot state claims for discrimination under Title VII or the ADEA. Because the EEPA follows the analytical framework of Title VII and the ADEA, Plaintiff’s discrimination claims brought pursuant to the EEPA should likewise be dismissed. Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 20 of 24 21 Plaintiff cannot state a claim for retaliation under the REDA because he did not file a claim under an enumerated statute nor did he participate in an investigation pursuant to such a claim prior to his discharge. Plaintiff also cannot state a claim for retaliation and harassment under the EEPA because the EEPA does not cover such claims. Lastly, because Plaintiff cannot state a claim for age or race discrimination under the ADEA or Title VII, respectively, he cannot state a claim under the EEPA, which uses the same analytical framework. Plaintiff’s Amended Complaint did nothing to fix the foregoing deficiencies, which were outlined in Thomas & Betts First Motion to Dismiss. These claims should thus be dismissed. G. Plaintiff fails to state a claim for breach of contract based upon Thomas & Betts’ Handbook. In his Amended Complaint, Plaintiff asserts Thomas & Betts deviated from company policy not following its procedures to investigate Plaintiff’s complaints concerning “racial comments” and “the unfair treatment of [a] same sex couple.” (Amended Complaint, Doc. 20, Count 6). Though not stated clearly, Plaintiff implies Thomas & Betts is liable for breach of contract to Plaintiff based upon its alleged deviation from policies set forth in its Handbook. Under North Carolina law, in order for a handbook to become a contract between the employer and employee, the handbook must be expressly included in an otherwise valid contract between the parties. See Walker v. Westinghouse Elec. Corp., 335 S.E.2d 79, 83-84 (N.C. Ct. App. 1985) (“Nevertheless, the law of North Carolina is clear that unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.”). For example, in Salt v. Applied Analytical, Inc., 412 S.E.2d 97, 99 (N.C. Ct. App. 1991), the plaintiff similarly argued that the “defendant’s personnel manual constituted part of her employment contract. She contend[ed] the contract was breached because [the] defendant failed Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 21 of 24 22 to follow the disciplinary procedure outlined in the manual.” The court affirmed the long- standing rule: “It is clear ‘that unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” Id. The court further held that the handbook did not create a contract between the employer and employee on the basis that such a holding would “require [the court] to abandon the at-will doctrine which is the in this State.” Id. at 100. Like the circumstances before the Salt Court, Thomas & Betts’ Handbook was not expressly included in any contract between Plaintiff and Thomas & Betts, as the parties had no contract. Furthermore, a holding that Thomas & Betts’ Handbook created a contractual obligation would serve to abandon the at-will doctrine. Thomas & Betts followed the procedures set forth in its Handbook in terminating Plaintiff’s employment. Even if it did not, Thomas & Betts did not have a contractual obligation to follow the procedures set forth in its Handbook. Therefore, Plaintiff’s claim based on Thomas & Betts’ Handbook fails as a matter of law and should be dismissed, with prejudice. H. All of Plaintiff’s claims should be dismissed with prejudice because any further attempt to amend the Complaint would be futile. This action should be dismissed with prejudice. Any attempt to further amend the Complaint would be futile. See Sed, Inc. of S.C. v. E. Coast Sweepstakes LLC, 2010 WL 5477748, at *1 (E.D.N.C. Dec. 30, 2010) (“A proposed amendment is ‘futile’ when ‘it advances a claim or defense that is legally insufficient on its face.’”). Plaintiff has not simply failed to state a claim because his allegations are vague and conclusory. Rather, Plaintiff has alleged a clear set of facts that do not state a valid claim of any kind, warranting complete dismissal of this action with prejudice. The deficiencies in the Complaint are not curable through amendment. See McLean v. United States, 566 F.3d 391, 400 (4th Cir. 2009) (“Courts, including this one, Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 22 of 24 23 have held that when a complaint is incurable through amendment, dismissal is properly rendered with prejudice and without leave to amend.”). VI. CONCLUSION In light of the foregoing, Thomas & Betts respectfully asks that this Court dismiss Plaintiff’s Amended Complaint for lack of subject matter jurisdiction and failure to state any legally cognizable claim. Respectfully submitted, s/ R. Andrew Hutchinson R. Andrew Hutchinson (#025473) Attorney for Defendants BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 100 Med Tech Parkway, Suite 200 Johnson City, Tennessee 37604 Telephone: (423) 975-7657 Fax: (423) 928-5657 E-mail: dhutchinson@bakerdonelson.com OF COUNSEL: Jonathan C. Hancock (pro hac to be submitted) Whitney M. Harmon (pro hac to be submitted) Emma J. Redden (pro hac to be submitted) Attorneys for Defendant BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 23 of 24 24 CERTIFICATE OF SERVICE I hereby certify that on April 17, 2017, I served a true and correct copy of the foregoing by U.S. mail, postage prepaid, on the following pro se party: Anthony Parker 10410 Wheatside Dr. B Charlotte, NC 28262 Plaintiff (pro se) s/ R. Andrew Hutchinson Case 3:17-cv-00041-MOC-DCK Document 22-1 Filed 04/17/17 Page 24 of 24