Ennals v. Spencer Gifts Distribution Center

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:23-CV-615-RJC-DCK
THIS MATTER IS BEFORE THE COURT on “Defendant Spencer Gifts Distribution
Center’s Motion To Dismiss Plaintiff’s Complaint For Failure To State A Claim” (Document No.
8) filed February 15, 2024. This motion has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. §636(b), and is now ripe for disposition. Having carefully considered the
arguments, the record, and applicable authority, the undersigned will respectfully recommend that
the motion be granted with respect to Plaintiff’s OSHA claims, Plaintiff’s claims of harassment
and creation of a hostile work environment in violation of Title VII, and Plaintiff’s claims of sex-
and gender-based violations of Title VII, and denied with respect to Plaintiff’s claims of retaliation
and race-based discrimination under Title VII and retaliation in violation of the FLSA.
I. BACKGROUND
Dain Ennals (“Plaintiff” or “Ennals”), appearing without counsel, initiated this action with
the filing of a form “Complaint For A Civil Case” (Document No. 1) (the “Complaint”) on
September 27, 2023. In his Complaint, Plaintiff alleges claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”), the Fair Labor Standards Act (“FLSA”), and the Occupational Safety
and Health Act (“OSHA”). Id.
DAIN ENNALS, )
)
)
)
)
)
)
)
Plaintiff,
v. MEMORANDUM AND
RECOMMENDATION
SPENCER GIFTS DISTRIBUTION
CENTER,
Defendant.
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Plaintiff states that he was employed by Defendant Spencer Gifts Distribution Center1
(“Defendant” or “Spencer Gifts”) from approximately September 5, 2021, to October 16, 2022.
(Document No. 1, p. 5). In his Complaint, Plaintiff writes: “[D]efendant subjected me to
demeaning work tasks, [ostracized] me, and [discriminated] against me because I, by speaking or
various means of writing, presented by means communicated with co-employees, managers, team
leaders and supervisors or other agents at [Spencer Gifts], issues concern[ing] violations of OSHA
mandates regarding workplace safety.” Id. Plaintiff next claims Defendant “hired[,] promoted,
[and] patronized, other[ ] employees in peer positions, yet denied [him] benefits, bonuses,
insurance and other monies or earned financial security by employment because [he] complained
about lack of visibility to [timekeeping]/recordkeeping, performance tracking…and other non-
biased data that is required or guaranteed by [FLSA].” Id.
Lastly, Plaintiff writes:
“[D]efendant demeaned me, belittled, chastised, over scrutinized me, degraded me,
harassed me, intimidated, isolated, made racist-based insults and jokes by means of
writing, directly or indirectly verbal communications shared with other employees,
and ultimately terminated me in retaliation for my reporting and complaining via
email, written documents delivered to manager and talking or discussing these
subjects with manager and [so], violated my rights that are guaranteed and protected
by [Title VII].”
Id. at p. 6.
The above allegations effectively represent the entirety of the Complaint on its face.
Defendant Spencer Gifts filed a “…Motion To Dismiss Plaintiff’s Complaint For Failure
To State A Claim” (Document No. 8) (“Motion To Dismiss”) pursuant to Rules 8, 12(b)(1), and
12(b)(6) of the Federal Rules of Civil Procedure on February 15, 2024.
1 Defendant notes that the proper name for its entity is “Spencer Gifts, LLC,” and “[t]here is no entity
entitled Spencer Gifts Distribution Center.” (Document No. 8, p. 1).
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Plaintiff then filed a pro se response to Defendant’s Motion to Dismiss (Document No. 11)
(“Response”) on February 29, 2024. To this response, Plaintiff attached a copy of his Right To
Sue letter from the Equal Employment Opportunity Commission (“EEOC”), although he did not
attach a copy of the underlying charge. Id.
Defendant filed its “…Reply To Plaintiff’s Response To Defendant’s Motion To
Dismiss…” (Document No. 12) (“Reply”) on March 7, 2024. Defendant incorporates by reference
a copy of Plaintiff’s “Charge of Discrimination” (Document No. 12-1) (“EEOC Charge”) filed
with the EEOC.
The pending motion has been fully briefed and is ripe for review and a recommended
disposition to the Honorable Robert J. Conrad, Jr.
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) seeks to dismiss a complaint for lack of subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff has the burden of proving that subject
matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). The existence of subject matter jurisdiction is a threshold issue
the court must address before considering the merits of the case. Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999). “The subject matter jurisdiction of federal courts is
limited and the federal courts may exercise only that jurisdiction which Congress has prescribed.”
Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)).
When a defendant challenges subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1),
“the district court is to regard the pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for summary judgment.”
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Richmond, 945 F.2d at 768. The district court should grant the Rule 12(b)(1) motion to dismiss
“only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail
as a matter of law.” Id.; see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the “legal sufficiency of the
complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, Robinson v.
American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).
“Although for the purposes of this motion to dismiss we must take all the factual allegations
in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
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allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “should view the complaint
in the light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th
Cir. 1993).
Where a complaint is filed by a pro se Plaintiff, courts have determined that the complaint
should be liberally construed and “must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). Indeed, “the Fourth Circuit requires district courts to construe pro se
complaints liberally to ensure that valid claims do not fail for lack of legal specificity.” Morrison
v. Res. Mgmt. Concepts, Inc., 3:16-CV-651-GCM, 2017 WL 1095067, at *2 (W.D.N.C. Mar. 21,
2017) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). However, this does not
mean that district courts should “assume the role of advocate for the pro se plaintiff.” Gordon,
574 F.2d at 1151. When a complaint clearly fails to express sufficient facts to support the alleged
claim under federal law, courts are not required to recognize “obscure or extravagant claims
defying the most concerted efforts to unravel them.” Weller v. Dep’t of Soc. Servs. for City of
Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). “Like plaintiffs who are represented by counsel, a
pro se plaintiff must still ‘allege facts sufficient to state all the elements of [the] claim.’” Morrison,
2017 WL 1095067 at *2 (quoting Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003)).
III. DISCUSSION
Defendant’s Motion to Dismiss asks the Court to dismiss Plaintiff’s Complaint pursuant to
Fed.R.Civ.P. 8, 12(b)(1), and 12(b)(6). The undersigned will analyze each of Defendant’s
arguments for dismissal of Plaintiff’s claims below.
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A. Plaintiff’s Title VII Claims
Defendant first argues Plaintiff’s Complaint “fails to allege sufficient facts to support a
cognizable claim for race harassment, discrimination, or retaliation upon which relief can be
granted” under Title VII. (Document No. 9, p. 7). Defendant argues that to succeed on a claim
for hostile work environment under Title VII, “Plaintiff must show he was subject to: (1)
unwelcome conduct; (2) based on his race; (3) that was sufficiently severe or pervasive to alter
Plaintiff’s conditions of employment and create an abusive work environment; and (4) that the
unwelcome conduct is imputable to Spencer Gifts.” Id. (citing Roberts v. Glenn Indus. Grp., Inc.,
998 F.3d 111, 117 (4th Cir. 2021). Defendant contends “Plaintiff fails to allege any facts showing
the most basic element of a harassment claim – his race.” Id. at p. 8. Defendant argues Plaintiff
“offers only conclusory allegations as to his Title VII claim and does not provide sufficient factual
detail to allow the Court to ascertain what protected class Plaintiff belongs to or even the
unwelcome conduct to which he contends he was subjected.” Id. Defendant further argues
Plaintiff “has not offered facts to show retaliatory animus by anyone at Spencer Gifts, nor has he
identified any protected activity that he engaged in that would support a retaliation claim.” Id. at
p. 9.
Defendant also argues that “[p]rior to filing suit under Title VII, a plaintiff is required to
file a charge of discrimination with the EEOC within 180 days after the alleged unlawful
employment practice,” (Document No. 9, p. 9), and that “[t]he contents of this charge determine
the scope of the plaintiff’s right to file a federal lawsuit such that ‘[o]nly 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 maintained’” in a
subsequent suit. Id. at p. 10 (quoting Jones v. Calvert Grp., Inc., 551 F.3d 297, 300 (4th Cir.
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2009)). Defendant contends Plaintiff “failed to show that he filed any Charge of Discrimination
against Spencer Gifts” with the EEOC and “the Complaint on its face does not show that Plaintiff
exhausted his administrative remedies as to those claims.” Id. at p. 11. Defendant argues “when
a plaintiff fails to exhaust their administrative remedies under Title VII, they deprive the federal
courts of subject matter jurisdiction over the claim.” Id. at p. 10.
In response, Plaintiff asserts “Spencer Gifts willfully, intentionally, and maliciously
retaliated by terminating [his] employment, even after having offered [him] continued employment
several times, later rescinded, because [he] conveyed complaints about harassment, safety, [and]
improper timekeeping, to managers or supervisor via text, email, verbal and written forms.”
(Document No. 11, pp. 1–2). Plaintiff writes:
[D]efendant’s white-non-black supervisor often used race based jokes, nicknames,
gender and sex and sexually laced jokes, invitations to violence and many other
vulgarities that created a hostile work environment, that I complained about, but
the non-black onsite manager was dis-concerned and not interested with my
complaints or more concerned with other employees who are non-black, which
caused me to file a complaint with the EEOC office in Charlotte NC.
Id. at p. 2.
Along with his Response, Plaintiff provided a “Right To Sue” letter issued on June 29,
2023, by the Charlotte District Office of the EEOC. (Document No. 11-2). Plaintiff provides no
additional facts in his Response regarding the alleged conduct or the scope and circumstances of
the charge he filed with the EEOC.
In reply, Defendant reiterates its argument that “Plaintiff’s Complaint contains only bare
conclusory or speculative allegations.” (Document No. 12, p. 1). Defendant contends that
“[neither Plaintiff’s] Complaint nor his Response provides any specific details about when he
allegedly complained, the specific complaints he made, whether he complained more than once,
the identity of the person or persons to whom he complained, or whether employees outside
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Plaintiff’s protected class were treated differently” and that “Plaintiff’s Complaint and Response
fail to plead a single fact that would allow the Court to conclude that Spencer Gifts discriminated
against him based on his race and retaliated against him because he reported race discrimination.”
Id. at p. 3.
To its Reply, Defendant incorporates by reference Plaintiff’s EEOC Charge. (Document
No. 12-1). Defendant notes that in the EEOC Charge, “Plaintiff complained [he had] been
‘subjected to race discrimination by [his] direct supervisor’ in March 2022, and on July 14, 2022,
but does not identify the supervisor or the discriminatory conduct.” (Document No. 12, p. 5).
Defendant argues Plaintiff’s EEOC Charge does not mention the race-, gender-, and sex-based
jokes and “other vulgarities” Plaintiff alleges in his Complaint, and that “Plaintiff’s Complaint
alleges for the first time that Spencer Gifts subjected him to race-based harassment and a hostile
work environment.” Id. Defendant contends that “[d]espite the narrative in his Response, Plaintiff
did not allege race-based harassment or hostile work environment in his EEOC Charge—only
race-based discrimination and retaliation—nor did he include any facts in the Charge narrative
which would support such claims.” Id. at p. 6. Defendant argues “Plaintiff has failed to
demonstrate how his new claims of discrimination are reasonably related to his EEOC Charge”
and “[t]he race-based harassment and hostile work environment claims alleged in Plaintiff’s
Complaint do not reasonably fall within the scope of the race discrimination claim alleged in his
EEOC Charge.” Id. at pp. 5–7.
The undersigned notes that under Title VII, it is unlawful for an employer “to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Title VII similarly
prohibits employers from discriminating against any employee “because he has opposed any
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practice” made unlawful by the act “or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a).
Plaintiff’s Complaint alleges discrimination, harassment, the creation of a hostile work
environment, and retaliation in violation of Title VII. (Document No. 1). The undersigned will
consider Defendant’s arguments regarding the sufficiency of Plaintiff’s Title VII claims.
1. Exhaustion of Administrative Remedies
Defendant is correct that Title VII requires the Plaintiff exhaust available administrative
remedies prior to filing a lawsuit. Prior to bringing a claim pursuant to Title VII, an individual
must file a claim with the EEOC within 180 days after the alleged unlawful employment action
occurred and obtain a Right To Sue letter from the agency. 42 U.S.C. § 2000e-5(e)(1);
Cunningham v. Wells Fargo N.A., 3:19-CV-528-FDW, 2020 WL 5300843, at *5 (W.D.N.C. Sept.
4, 2020). Once the Right To Sue letter issues, the claimant then has ninety days to bring suit on
the claims alleged in the charge. 42 U.S.C. § 2000e-5(f)(1); Cunningham, No. 3:19-CV-528-
FDW, 2020 WL 5300843, at *5. “‘The scope of the plaintiff’s right to file a federal lawsuit is
determined by the charge’s contents’ to give the defendant notice and prevent gamesmanship.”
Shine v. Wells Fargo, 3:24-CV-242-KDB, 2024 WL 3931029, at *2 (W.D.N.C. Aug. 23, 2024)
(quoting Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012). “[C]ourts regularly
dismiss Title VII claims under 12(b)(6) when a plaintiff fails to exhaust administrative remedies
before filing suit.” Seme v. Autumn Care of Statesville, 5:23-CV-152-KDB, 2024 WL 1920322,
at *3 (W.D.N.C. Apr. 12, 2024).2
2 The Fourth Circuit has also stated that “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,” Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009); but see Fort Bend Cnty., Texas v. Davis, 587 U.S.
541, 550–51 (2019) (“Title VII’s charge-filing requirement is not of jurisdictional cast…Instead, Title VII’s
charge-filing provisions ‘speak to…a party’s procedural obligations.’” (internal citations omitted)).
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The undersigned notes this Court’s recent decision in Perkins v. Gaston Cnty. Bd. Of Educ.,
3:23-CV-643-RJC (W.D.N.C. Sept. 24, 2024) (declining to consider factual allegations appearing
in response to the defendant’s motion to dismiss, but absent from the plaintiff’s amended
complaint). Here, Defendant has incorporated the EEOC Charge for this Court’s consideration.
Defendant provides that “[i]n its review of a Rule 12(b)(6) motion to dismiss, this Court ‘may
consider documents attached to the complaint…as well as those attached to the motion to dismiss,
so long as they are integral to the complaint and authentic’ without converting the motion into a
motion for summary judgment.” (Document No. 12, pp. 4–5) (quoting Sec’y of State for Defence
v. Trimble Nav. Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Defendant writes that “[t]he EEOC
Charge is ‘integral to the complaint and authentic’ as it contains Plaintiff’s allegations against
Spencer Gifts and is the mechanism by which Plaintiff gains entry to this Court”; Spencer Gifts
“attaches and incorporates [t]herein by reference Plaintiff’s EEOC Charge for the Court’s
consideration.” Id. at p. 5. The undersigned finds this issue presents a close call. Ultimately, in
light of Defendant’s presentation and argument on this point and the liberal standard with which
pro se pleadings must be construed, the undersigned is persuaded in this case to consider Plaintiff’s
EEOC Charge in evaluating this Motion.3
Here, Plaintiff’s Charge of Discrimination with the EEOC is dated February 28, 2023. Id.
at p. 1. Plaintiff’s Right To Sue letter issued on June 29, 2023. (Document No. 11). Plaintiff filed
suit on September 27, 2023, ninety (90) days from the issuance of the Right To Sue letter.
(Document No. 1). Plaintiff’s EEOC Charge asserts that “[i]n or around March 2022 and on July
14, 2022, [he] was subjected to race discrimination by [his] direct supervisor,” and that he reported
3 Should this Court ultimately find it improper to consider Plaintiff’s EEOC Charge at this stage, the
undersigned respectfully recommends that Plaintiff’s Title VII claims be dismissed for failure to allege
exhaustion of administrative remedies, and that Plaintiff be allowed leave to amend his Complaint to
incorporate the EEOC Charge.
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these incidents promptly to the onsite staffing agency manager.4 (Document No. 12-1, p.1). The
EEOC Charge then alleges that, despite exceeding the required standards to be hired to a full-time
position with Defendant and being promised selection for a full-time position of employment,
Plaintiff was not hired full-time and was ultimately laid off “due to a lack of work” on October 16,
2022. Id. at pp. 1–2. The Charge states Plaintiff’s belief that he was “discriminated and retaliated
against based on his race (Black)” in violation of Title VII. Id.
First, the undersigned is persuaded by Defendant’s arguments that Plaintiff has not
exhausted administrative remedies with respect to any claims of gender- and sex-based
harassment, hostility, or discrimination in violation of Title VII. Although “the exhaustion
requirement should not become a tripwire for hapless plaintiffs,” Sydnor, 681 F.3d at 594, courts
have routinely declined to find exhaustion of administrative remedies in cases such as this “where
a charge alleges only racial discrimination but the complaint includes sex discrimination.” Id. at
593–94 (citing Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132–33 (4th Cir. 2002); see also Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Accordingly, the undersigned
recommends that any sex- and gender-based claims under Title VII be dismissed for failure to
exhaust administrative remedies.
With respect to allegations of retaliation and race-based discrimination, the undersigned
finds that Plaintiff’s EEOC Charge sufficiently alleges conduct under these theories to plausibly
exhaust the available administrative remedies.
4 The undersigned notes that Plaintiff’s 180-day window for filing charges with the EEOC related to these
alleged discrete incidents of race-based discrimination would have expired by January 10, 2023, several
weeks prior to the filing of the EEOC Charge. “[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.” National R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113 (2002).
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With respect to claims of race-based harassment and the creation of a hostile work
environment, the undersigned finds this presents a close call. The standard for exhaustion of
administrative remedies is whether “a plaintiff’s claims in her judicial complaint are reasonably
related to her EEOC Charge and can be expected to follow from a reasonable administrative
investigation.” Sydnor, 681 F.3d at 594 (quoting Smith v. First Union Nat. Bank, 202 F.3d 234,
247 (4th Cir. 2000). The Fourth Circuit has “held that the allegation of a discrete act or acts in an
administrative charge is insufficient when the plaintiff subsequently alleges a broader pattern of
misconduct.” Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). Similarly, “if the
factual foundation in the administrative charge is too vague to support a claim that is later presented
in subsequent litigation, that claim will also be procedurally barred.” Id.
Plaintiff’s EEOC Charge is factually sparse, at best, with respect to any allegations of
harassment or the creation of a hostile work environment. It asserts two discrete instances of “race
discrimination by [his] direct supervisor,” both of which occurred over 180 days prior to the filing
of the Charge (Document No. 12-1). The undersigned acknowledges Defendant’s argument that
district 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); (Document
No. 12, p. 7). Ultimately, the undersigned is persuaded that Plaintiff’s EEOC Charge alleges only
discrimination and retaliation for purposes of exhausting administrative remedies. The
undersigned will therefore respectfully recommend that charges of race-based harassment and the
creation of a hostile work environment, as well as sex- and gender-based claims, be dismissed for
failure to exhaust administrative remedies. The undersigned will consider the sufficiency of the
Complaint under theories of retaliation and race-based discrimination in violation of Title VII.
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2. Factual Sufficiency of the Pleadings Under Theories of Retaliation and
Discrimination
The elements of a prima facie retaliation claim under Title VII are: “(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 Ct. of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff'd sub nom. Coleman v. Ct. of Appeals of Maryland, 566 U.S. 30, 132 S. Ct.
1327, 182 L. Ed. 2d 296 (2012). Here, Plaintiff has alleged that Defendant terminated him in
retaliation for reporting racial discrimination, as charged in the EEOC filing. (Document No. 1);
see also (Document No. 12-1).
Construed liberally and taken as true for purposes of this motion, the undersigned finds the
allegations in Plaintiff’s Complaint sufficiently give rise to a reasonable inference of retaliatory
termination in violation of Title VII. Plaintiff has pled an adverse employment action
(termination). Plaintiff has also pled protected activity, which under § 2000e-3(a) “encompasses
utilizing informal grievance procedures as well as staging informal protests and voicing one’s
opinions in order to bring attention to an employer’s discriminatory activities.” Pannachia v. City
of Durham, 2022 WL 816548, at *4 (M.D.N.C. Mar. 17, 2022) (quoting Kubicko v. Ogden
Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999)). In this case, Plaintiff alleges he reported
race-based harassment and discrimination and complained via email and written documents
delivered to his manager as well as by discussing the subject with his manager. (Document No.
1). The undersigned believes such allegations raise a reasonable inference of protected activity.
With respect to a causal link between the protected activity and the adverse employment
action, the undersigned finds Plaintiff’s pro se allegations sufficient at the motion to dismiss stage.
Causation “is generally shown by alleging ‘the employer either understood or should have
understood the employee to be engaged in protected activity and…the employer took adverse
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action against the employee soon after becoming aware of such activity.’” Amis v. Pekoske, 3:20-
CV-541-FDW, 2021 WL 783543, at *5 (W.D.N.C. Mar. 1, 2021), aff'd sub nom. Amis v.
Mayorkas, No. 21-1544, 2022 WL 1090252 (4th Cir. Apr. 12, 2022) (quoting Perkins v. Int'l Paper
Co., 936 F.3d 196, 214 (4th Cir. 2019)). Even “when close temporal proximity is not established,
‘courts may look to the intervening period for other evidence of retaliatory animus.’” Russell v.
Univ. of N. Carolina at Charlotte, 3:20-CV-172-FDW, 2020 WL 6216827, at *4 (W.D.N.C. Oct.
22, 2020) (quoting Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007)). Construed liberally
and taken in the light most favorable to Plaintiff at this stage, the undersigned finds the allegations
contained in the Complaint give rise to a reasonable inference of retaliation.
With respect to discrimination, the elements of a prima facie case of discrimination in the
absence of direct evidence are: “(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. Maryland Ct. of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff'd sub nom. Coleman v. Ct. of Appeals of Maryland, 566 U.S. 30, 132 S. Ct.
1327, 182 L. Ed. 2d 296 (2012).
The undersigned finds this issue again presents a close call. Plaintiff argues his “white-
non-black supervisor often used race[-]based jokes, nicknames, gender and sex and sexually laced
jokes, invitations to violence and many other vulgarities…that I complained about, but the non-
black onsite manager was dis-concerned and not interested with my complaints or more concerned
with other employees who are non-black.” (Document No. 11). Plaintiff’s EEOC Charge asserts
satisfactory job performance. (Document No. 12-1). (“I exceeded both standards, but I was never
hired.”) Again, taking Plaintiff’s allegations as true and construing liberally his pro se Complaint,
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the undersigned is ultimately persuaded that these statements raise a reasonable inference of race-
based discrimination in violation of Title VII for purposes of evaluating a motion to dismiss.
The undersigned thus respectfully recommends that Plaintiff’s claims of retaliation and
race-based discrimination in violation of Title VII be permitted to proceed to discovery, and that
any other claim under Title VII be dismissed.
B. Plaintiff’s FLSA Claim
Plaintiff also alleges discriminatory treatment by Defendant in retaliation for Plaintiff’s
complaints related to employee rights under the Fair Labor Standards Act (“FLSA”).
In its Motion To Dismiss, Defendant argues Plaintiff’s FLSA claim is factually insufficient
to survive. (Document No. 9, p. 12). Defendant contends Plaintiff’s Complaint “should be
dismissed as an impermissible shotgun pleading in violation of Rule 8(a),” describing a shotgun
pleading as “one that fails to articulate claims with sufficient clarity to allow the defendant to frame
a responsive pleading or one in which it is virtually impossible to know which allegations of fact
are intended to support which claims for relief.” Id. (citing Wilkinson v. Wells Fargo Bank, N.A.,
3:19-CV-580-RJC, 2020 WL 2542867, at *3 (W.D.N.C. May 19, 2020).
Defendant asserts that a plaintiff claiming retaliation in violation of FLSA “must plausibly
allege three (3) things: (1) that he engaged in conduct protected by the FLSA; (2) that he suffered
some adverse employment action subsequent to or contemporaneous with the protected activity;
and (3) there must be a causal link between Plaintiff’s protected activity and the adverse
employment action.” Id. (citing Tom v. Hosp. Ventures, LLC, 980 F.3d 1027, 1042 (4th Cir.
2020)). Defendant contends “the FLSA requires that an employee complaint have ‘some degree
of formality’ to constitute protected activity” and that the FLSA protects employees from
retaliation “only if the employee has filed a complaint, or instituted or caused to be instituted [a]
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FLSA complaint.” Id. at p. 13 (quoting Minor v. Bostwick Lab’ys, Inc., 669 F.3d 428, 439 (4th
Cir. 2012)). Defendant argues Plaintiff “does not state when he complained, the specific complaint
he made, whether he complained more than once, and the identity of the person or persons to
whom he complained.” Id. Defendant also argues that “[t]he FLSA does not apply to all
employees and here, Plaintiff does not allege that the FLSA applies to him in this case.” Id.
In response, Plaintiff asserts termination in retaliation for his conveyance of complaints
about employment practices, but offers no additional facts or argument related to Defendant’s
above contentions. (Document No. 11).
In reply, Defendant reiterates its argument that Plaintiff’s pleadings are factually
insufficient with respect to his FLSA claims. (Document No. 12, p. 4).
The undersigned is not persuaded by Defendant’s arguments. While Defendant is correct
that all pleadings must comply with the requirements of Rule 8, the undersigned finds that
Plaintiff’s pro se Complaint sufficiently frames his factual allegations in relation to his claims for
relief. At this stage, the undersigned also finds it plausible the FLSA applies to Plaintiff.
The FLSA prohibits retaliatory discharge or discrimination against an employee “because
such employee has filed any complaint or instituted or caused to be instituted any proceeding under
or related to this chapter.” 29 U.S.C. § 215(a)(3). The Supreme Court of the United States has
held oral as well as written complaints to be within the scope of the statute’s language. Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 4 (2011). The Fourth Circuit has held
“intracompany complaints to be considered protected activity within the meaning of its
antiretaliation provision.” Minor, 669 F.3d at 438 (finding allegations that a plaintiff “expressed
her concerns regarding FLSA violations to the chief operating officer of her company in a meeting
specifically called for that purpose” were sufficient to survive a motion to dismiss). Defendant
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correctly articulates the standard of formality required to constitute protected activity: whether
Plaintiff’s complaint to his employer “was ‘sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context, as an assertion of rights protected
by the statute and a call for their protection.’” Id. at 439 (quoting Kasten, 563 U.S. at 14).
However, the undersigned finds that, as in Minor, Plaintiff’s allegations of complaints give rise to
a reasonable inference of protected activity at this stage. Plaintiff asserts he “complained about
lack of visibility to [timekeeping]/recordkeeping, performance tracking…and other non-biased
data that is required by the FLSA.” (Document No. 1). Such complaints, especially when
construed liberally, could reasonably be found to have put Defendant on notice that Plaintiff was
asserting rights protected by the statute. And, as with Plaintiff’s Title VII claims for retaliation,
the undersigned finds it plausible that a causal link could have existed between these complaints
and Plaintiff’s termination.
Thus, the undersigned respectfully recommends that Plaintiff’s FLSA claims be permitted
to proceed.
C. Plaintiff’s OSHA Claim
Plaintiff also claims Defendant “subjected [him] to demeaning work tasks, [ostracized
him], and discriminated against [him]” because he presented concerns regarding “violations of
OSHA mandates regarding workplace safety” with “co-employees, managers, team leaders and
supervisors or other agents at Spencer’s.” (Document No. 1).
Defendant argues in its Motion to Dismiss that “before instituting an OSHA lawsuit in
federal court, a plaintiff must first file a complaint with the Department of Labor within thirty (30)
days of the alleged OSHA violation.” (Document No. 9, p. 13). Defendant contends Plaintiff
“does not allege or offer evidence that he timely filed such a complaint with the Department of
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Labor and thus, has not offered evidence that he exhausted administrative remedies before filing
this Action.” Id. at pp. 13–14.
Defendant next contends that “[e]ven if [Plaintiff] had filed a timely OSHA complaint with
the Department of Labor, Plaintiff’s OSHA claim would still fail,” because “OSHA does not
provide a private right of action through which an employee may sue his employer.” Id. at p. 14.
In response, Plaintiff asserts termination in retaliation for his conveyance of complaints
about safety, but offers no additional facts or argument related to Defendant’s above contentions.
See (Document No. 11).
In reply, Defendant asserts that Plaintiff “fails to provide anything more than vague
allegations to support” his OSHA retaliation claim and reiterates the above arguments regarding
failure to exhaust administrative remedies and the lack of a private right of action under the statute.
(Document No. 12, p. 4).
OSHA provides that “[n]o person shall discharge or in any manner discriminate against
any employee…because of the exercise by such employee on behalf of himself or others of any
right afforded by this chapter.” 29 U.S.C. § 660(c)(1). Importantly, it next provides:
Any employee who believes that he has been discharged or otherwise discriminated
against by any person in violation of this subsection may, within thirty days after
such violation occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall cause such
investigation to be made as he deems appropriate. If upon such investigation, the
Secretary determines that the provisions of this subsection have been violated, he
shall bring an action in any appropriate United States district court against such
person.
29 U.S.C. § 660(c)(2).
As Defendant notes, Plaintiff has pled no facts to indicate he made any administrative
filings pursuant to these provisions, nor has he pled adequate facts to enable this Court to assess
the timeliness of any complaints.
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Ultimately, the undersigned is most persuaded by Defendant’s argument that “there exists
no private right of action against any party under 29 U.S.C. § 660(c)(2), as it appears Plaintiff has
attempted here.” Parks v. Deere Hitachi, 2007 WL 9757764, at *2 (M.D.N.C. Sept. 20, 2007)
(dismissing a pro se complaint under Rule 12(b)(6) when the plaintiff claimed retaliatory discharge
in relation to an alleged OSHA complaint); see also Carr v. United States, 2018 WL 5074671, at
*4 (E.D.N.C. Oct. 17, 2018) (“In enacting OSHA, Congress intentionally declined to provide for
a private right of action and instead vested the Department of Labor with the power to vindicate
the rights of employees terminated in retaliation for reporting safety concerns.”); Taylor v.
Brighton Corp., 616 F.2d 256, 259 (6th Cir. 1980) (“[W]e hold that there is no private right of
action under OSHA [§] 11(c), 29 U.S.C. [§] 660(c).”).
For the foregoing reasons, the undersigned respectfully recommends that Plaintiff’s claims
under OSHA be dismissed.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant Spencer Gifts Distribution Center’s Motion To Dismiss Plaintiff’s Complaint For
Failure To State A Claim” (Document No. 8) be GRANTED in part with respect to Plaintiff’s
OSHA claims, Plaintiff’s claims of harassment and creation of a hostile work environment in
violation of Title VII, and Plaintiff’s claims of sex- and gender-based violations of Title VII, and
DENIED in part with respect to Plaintiff’s claims of retaliation and race-based discrimination
under Title VII and retaliation in violation of the FLSA.
If the Court ultimately deems the factual allegations in Plaintiff’s Complaint insufficient
to support the claims recommended to proceed above, the undersigned respectfully recommends
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that Plaintiff be allowed an opportunity to amend his Complaint to correct any deficiencies
identified by the Court’s Order.
V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED.
Signed: September 26, 2024
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