Opinion
5:21-CV-419-M
02-15-2023
BRITTNEY L. WOODY, Plaintiff, v. AEROTEK HOLDINGS, LLC and AEROTEK INC., Defendants.
MEMORANDUM AND RECOMMENDATION
BRIANS. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion by defendants Aerotek Inc. and Aerotek Holdings, LLC (collectively “defendants”) to dismiss [DE-14] the complaint of pro se plaintiff Brittney Woody (“plaintiff”). Defendants move to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants filed a memorandum in support of the motion to dismiss. [DE-15]. Plaintiff responded in opposition, including supporting materials. [DE-24]. Defendants filed a reply to the response in opposition. [DE-25]. The time for filing responsive briefs has expired and the pending motion is ripe for adjudication. The motion was referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons set forth below, it is RECOMMENDED that defendants' motion to dismiss be DENIED IN PART and DENIED AS MOOT IN PART without prejudice, as provided below.
I. BACKGROUND
On October 14, 2021, plaintiff, proceeding pro se, initiated this action by filing an application to proceed in forma pauperis (“IFP application”) [DE-1] that included a proposed complaint against the defendants [DE-1-1]. On June 27, 2022, the undersigned issued a deficiency order [DE-4], identifying multiple deficiencies in plaintiff's application, including that there was insufficient address information in the summonses to effect service of process on defendants. On July 11, 2022, plaintiff filed updates to numerous documents in her filing, including the summonses. [DE-5, -6, -7]. On July 14, 2022, plaintiff's IFP application was granted [DE-8] and plaintiff's complaint was filed with this court [DE-9].
II. FACTUAL ALLEGATIONS
In her complaint [DE-9], plaintiff alleges that she was terminated due to her disability. Specifically, plaintiff claims that she attempted to file for Family and Medical Leave Act (“FMLA”) leave when she first got sick and then again when her condition worsened but was denied on both occasions. Id. at 4. Plaintiff reports that she filed for accommodations under the Americans with Disabilities Act of 1990, as amended, (the “ADA”) on one occasion. Id. She alleges further that after her disability worsened, she attempted to have her accommodations updated, but the updated accommodations were denied. Id.
Plaintiff contends that her employer's claim that she was dismissed for performance is unfounded as her performance average was “99.3%.” Id. Furthermore, she argues that the claim that she was dismissed for attendance is incorrect, because at the time of her dismissal the attendance policy had been suspended due to COVID-19. Id.
Plaintiff reports that she filed charges with the Equal Employment Opportunity Commission regarding the alleged discriminatory conduct on September 25, 2020, and received her right-to-sue letter on July 28, 2021. Id.
III. STANDARD OF REVIEW UNDER RULE 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if “it appears certain that the plaintiff cannot prove any set of facts in support of [her] claim entitling [her] to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Ordinarily, the complaint need contain simply “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)). “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.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if the plaintiff alleges factual content “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and shows more than “a sheer possibility that a defendant has acted unlawfully.” Id.; SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 425 (4th Cir. 2015) (“[I]t is not our task at the motion-to-dismiss stage to determine ‘whether a lawful alternative explanation appear[s] more likely' from the facts of the complaint.” (quoting Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015))), as amended on reh'g in part (Oct. 29, 2015).
In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded allegations of the challenged complaint and view those allegations in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); see also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (noting that the court must accept as true all factual allegations of the complaint). All reasonable factual inferences from the allegations must be drawn in plaintiff's favor. Edwards, 178 F.3d at 244. However, bare assertions of legal conclusions or formulaic recitations of the elements of a claim are not entitled to be assumed true. Iqbal, 556 U.S. at 680-81. Complaints filed by pro se plaintiffs are entitled to liberal construction. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016) (“We are mindful of our obligation to liberally construe a pro se complaint.”); Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (“We must construe pro se complaints liberally . . . and liberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” (alteration in original) (citations omitted)); White v. White, 886 F.2d 721, 724 (4th Cir. 1989) (“Pro se complaints are to be read liberally”).
IV. ANALYSIS
Within their memorandum of law in support of their motion, defendants argue that plaintiff's complaint should be dismissed because: (1) plaintiff failed to file the complaint within 90 days of receiving the right-to-sue letter ([DE-15] at 4) (“Argument 1”); (2) the complaint is devoid of facts to support a plausible claim of discrimination under Title VII of the Civil Rights Act of 1964 ([DE-15] at 5) (“Argument 2”); (3) the complaint fails to allege sufficient facts to establish a claim for discrimination under the ADA ([DE-15] at 6) (“Argument 3”); and (4) the Aerotek defendants named in this action are improper parties ([DE-15] at 8) (“Argument 4”). Each argument is addressed below.
a. Argument 1: Filing complaint within 90 days of receiving right-to-sue letter
42 U.S.C.A. § 2000e, Title VII of the Civil Rights Act of 1964 provides that “within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved . . .” 42 U.S.C.A. § 2000e-5. Plaintiff's right-to-sue letter was issued on July 28, 2021. [DE-9-1] at 1. Plaintiff's IFP application [DE-1], including a complaint [DE-1-1] was filed on October 14, 2021, but due to various deficiencies therein, see Deficiency Order [DE-4], the complaint in this matter [DE-9] was not filed until July 14, 2022. Defendants argue that the complaint should be dismissed because it was not filed within the 90-day period and is, therefore, untimely.
The Fourth Circuit has recently issued an opinion holding that “an action under federal law is commenced for limitations purposes when a plaintiff delivers a complaint to the district court clerk-regardless of whether the plaintiff pays the filing fee, neglects to do so, or asks to be excused from the fee requirement.” Andrew Allen v. Atlas Box and Crating Co., Inc., No. 201910, slip op. at 11 (4th Cir. Feb. 3, 2023). Here, plaintiff was issued her right-to-sue letter on July 28, 2021. [DE-9-1] at 1. She filed her IFP application, including a complaint, 78 days later on October 14, 2021. [DE-1]. As the complaint is considered to have been filed on the day the IFP application was filed, 78 days after the issuance of the right-to-sue letter, the complaint is timely filed.
The undersigned therefore RECOMMENDS that defendants' motion to dismiss based upon the timeliness of the filing of the complaint be DENIED.
b. Argument 2: Title VII designation
Defendants claim that “[t]he only stated cause of action in [p]laintiff's [c]omplaint is a claim under Title VII of the Civil Rights Act.” [DE-15] at 5 (noting that plaintiff's complaint form includes the statement, “[t]his action is brought pursuant to Title VII of the Civil Rights Act of 1964.”). Defendants argue that as plaintiff's complaint does not allege discrimination on the basis of race, color, religion, sex, or national origin, as required by 42 U.S.C. § 2000e-2(a)(1) under Title VII, plaintiff's claim must fail. [DE-15] at 5. However, defendants in their motion to dismiss, acknowledge “[p]laintiff seems to have intended to bring a claim under the [ADA], not Title VII.” Id.
The pro se fill-in-the-blank employment discrimination complaint form on this court's website is pre-drafted for Title VII claims. United States District Court for the Eastern District of North Carolina, Form Complaint (Employment Discrimination) ¶3 (available at https://www.nced.uscourts.gov/pdfs/forms/proseComplaintPackageEmployDisc.pdf) (last visited February 14, 2023) (“This action is brought pursuant to Title VII of the Civil Rights Act of 1964.”) Plaintiff appears to have used this form to draft her complaint. See generally Compl. [DE-9]. However, in multiple portions of her complaint, plaintiff clearly alleges discrimination arising from her disability. Compl. [DE-9] at 2 (complaining of acts including “[t]ermination of my employment due to disability”); at 4 (“I was terminated due to my disability.”) Moreover, in her filed Civil Cover Sheet [DE-3-1], plaintiff indicates in at least two locations that her claim is based on the ADA. See [DE-1-3] (Civ. Cover Sheet § IV Nature of Suit (“Amer.” w/Disabilities-Employment box); § VI “Violation of ADA” listed as Cause of Action.)
The existence of pro se standard forms on this court's website does not alleviate pro se plaintiffs' burdens of ensuring legal accuracy in their briefs. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 246 (3d Cir. 2013) (“[M]anuals do not provide case-specific advice.”); see also United States District Court for the Eastern District of North Carolina, Representing Yourself in a Civil Case: A Guide for the Pro Se Litigant at 1 (October 2022) (“This guide is not legal advice and is not a substitute for hiring an attorney to represent you.”).
However, complaints filed by pro se plaintiffs are entitled to liberal construction, Kerr, 824 F.3d at 72, particularly when civil rights are at issue. Jehovah, 798 F.3d at 176. Where a pro se plaintiff uses a generic employment discrimination standard form and includes sufficient detail in the filing that it is apparent to all parties involved, including opposing counsel, that the alleged discrimination pertains to a claim under the ADA, the liberal construction prescribed in Kerr discourages dismissal based on one reference to an incorrect statute.
Accordingly, it is RECOMMENDED that (i) plaintiff be granted leave to file an amended complaint, as provided below, clarifying the statutory basis of her claim(s); and (ii) defendants' motion to dismiss based upon the Title VII designation be DENIED AS MOOT without prejudice.
c. Argument 3: Sufficiency of facts claimed under the ADA
Defendants next argue that “[p]laintiff failed to allege sufficient facts to establish a claim for discrimination under the ADA.” [DE-15] at 6. The ADA states that, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C.A. § 12112(a).
The Fourth Circuit has previously held that:
To establish a claim for disability discrimination under the ADA, a plaintiff must prove “(1) that she has a disability, (2) that she is a ‘qualified individual' for the employment in question, and (3) that [her employer] discharged her (or took other adverse employment action) because of her disability.” EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.2000). Disability discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n. 3, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003).Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015) (alteration in original).
“The Supreme Court has indicated that ‘an employment discrimination plaintiff need not plead a prima facie case of discrimination ... to survive [a] motion to dismiss' because ‘[t]he prima facie case ... is an evidentiary standard, not a pleading requirement.'” Walton v. N. Carolina Dep't of Health & Hum. Servs., No. 5:17-CV-00085-BR, 2017 WL 4080459, at *2 (E.D. N.C. Sept. 14, 2017), aff'd sub nom. Walton v. NC Dep't of Health & Hum. Servs., 765 Fed.Appx. 1 (4th Cir. 2019) (alterations in original) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 510 (2002)). However, the Fourth Circuit Court of Appeals has emphasized that there is still a requirement that the plaintiff allege “facts sufficient to state all the elements of her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003); see also Coleman v. Md. Ct of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (explaining that Swierkiewicz does not nullify the heightened pleading requirements of Twombly and Iqbal and plaintiff's allegations must raise the plaintiff's “right to relief above the speculative level”).
While “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis,” see Pub. L. No. 110-325 § 2(b)(5), 122 Stat. 3553, 3554 (2008), here, plaintiff did not name her disability in her complaint. Plaintiff does, however, provide additional details with respect to her disabilities and the circumstances surrounding her alleged discrimination in her response to the motion to dismiss [DE-24] and the associated documentation [DE-24-1]. See [DE-24] at 5-6. A motion to dismiss “tests the sufficiency of a complaint.” Allen v. Ted Wire, No. 1:19CV689, 2020 WL 4586722, at *2 (M.D. N.C. Aug. 10, 2020), report and recommendation adopted sub nom. Allen v. Wire, No. 1:19CV689, 2020 WL 5549104 (M.D. N.C. Sept. 16, 2020) (emphasis added). When considering a Rule 12(b)(6) motion, “a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint,” and [a] “district court cannot go beyond these documents” without “convert[ing] the motion into one for summary judgment,” which is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (citations omitted). The Fourth Circuit has noted, however, that pro se litigants have an “untutored hand requiring special judicial solicitude” and that pro se “litigants with meritorious claims should not be tripped up in court on technical niceties.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985). See also Coon v. Rex Hosp., Inc., No. 5:20-CV-00652-M, 2021 WL 3620282, at *4 (E.D. N.C. Aug. 16, 2021) (granting plaintiff leave to file an amended complaint alleging the specifics of how she complied with Title VII and the ADA's administrative requirements). “[A] party may amend its pleading . . . with . . . the court's leave,” and “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).
Rather than dismiss the complaint, it is RECOMMENDED that (i) plaintiff be granted leave to file an amended complaint, as provided below, alleging with specificity the facts regarding her disability and the circumstances surrounding her alleged discrimination that are described or referenced in her response to the motion to dismiss [DE-24] and the associated documentation [DE-24-1]; and (ii) defendants' motion to dismiss for failure to state a claim upon which relief can be granted be DENIED AS MOOT without prejudice.
d. Argument 4: Improper defendants
Finally, defendants contend that Aerotek, Inc. and Aerotek Holdings, LLC are improper defendants to the matter as neither employed plaintiff, and that it was, instead, Aerotek Affiliated Services, Inc. that employed plaintiff. [DE-15] at 8. Defendants, therefore, argue that the claims against Aerotek, Inc. and Aerotek Holdings, LLC be dismissed, and that Aerotek Affiliated Services, Inc. be substituted as the appropriate Aerotek defendant.
In light of the foregoing, it is RECOMMENDED that (i) plaintiff be granted leave to amend the complaint with respect to the proper defendant or defendants; and (ii) defendants' motion to dismiss with respect to plaintiff's alleging the improper defendants be DENIED AS MOOT without prejudice.
V. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the court enter an order providing as follows:
1. Plaintiff is granted leave to file an amended complaint (a) clarifying the statutory basis of her claim(s), (b) against the proper defendant(s), and (c) alleging with specificity the facts regarding her disability and the circumstances surrounding her alleged discrimination that are described or referenced in her response to the motion to dismiss [DE-24] and the associated documentation [DE-24-1];
2. Plaintiff shall have 14 days from the date of entry of the court's order in which to file an amended complaint;
3. If plaintiff fails to file an amended complaint within 14 days from the date of entry of the court's order, the clerk of court is ordered to DISMISS the complaint WITH PREJUDICE;
4. Defendants' motion to dismiss based upon the timeliness of the filing of the complaint (Argument 1) is DENIED; and
5. Defendants' motion to dismiss for failure to state a claim upon which relief can be granted with regard to each of defendants' other three arguments (Arguments 2, 3 and 4) is DENIED AS MOOT without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until March 1, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar the party 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).