FISHER v. THE WINSTON SALEM POLICE DEPT. et al, No. 1:2012cv00868 - Document 26 (M.D.N.C. 2014)

Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 03/28/2014 as set out herein. RECOMMENDED that Plaintiff's Motion to Amend (Docket Entry 23 ) be DENIED and that Defendants' Motions to Dismiss (Docket Entries 8 and 14 ) be GRANTED.(Taylor, Abby)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ìøILLIAM RAY FISHER, Plaintiff, V. THE WINSTON-SALEM POLICE DEPT., etal., Defendants. ) ) ) ) ) ) ) ) ) ) 1,:1,2CY868 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is befote the Court on Defendants Winston-Salem Police Department ("WSPD"), Sgt. Tony Perkins, Police Chief Scott Cunningham, and Investigatot Cliff Cranford's Motion to Dismiss. (Docket Entty 1,4.) Also befote the Court is a motion to dismiss claims against Defendants Perkins, Cunningham, and Cranfotd capacities in their individual pocket E.ttty 8) and Plaintiff William Ray Fisher's Motion to Amend Complaint. (Docket Entty the 23) All matters are dpe fot disposition. Fot the teasons that follow, the Court recommends that Defendants' motions to dismiss be gtanted and Plaintiffs motion to amend be denied. I. BACKGROUND Ptaintifl a fifty-six year old man1, applied to be a police officet with the City of Winston-Salem in August 2009. (Compl. T III, Docket Entry 1.) Plaintiff alleges that his 1 The EEOC Determination attached to the Complaint indicates that Plaintiff was 56 yeats old at the time he applied for employment. (EEOC Detetmination at 7,8x.2, Docket Entry 1'-2.) The application was "blocked" as a tesult of age discriminatton. (Id.) Specifically, Plaintiff alleges that "younget and less qualified applicants" with "no police experience" were accepted, while his "twenty plus years" of law enforcement experience were "belittled" by Defendant Sgt. Tony Perkins. (Id.) Consequently, Plaintiff was denied a spot in the WSPD Basic Law Enfotcement Ttaining ("BLET") Rectuitment Class. Charge (Id ) Plaintiff subsequently filed a of Discdmination undet the Age Discdmination in Employment Act ("A,DEA") with the Equal Employment Oppottunity Commission, which issued a Detetmination on Febtuary 9,20'1,2 a¡d a Notice of Suit Rights on May 21,,201,2. (EEOC Detetmination, Ex. 2, Docket Etttry 1.-2 and Notice of Suit Rights, Ex. 1, Docket Ent y 1-1.) Plainttff fied a pro r¿ lawsuit on August 1.4, 2072, in which he named as Defendants the WSPD and, in their individual capacities, Cunningham, Ctanford, and Perkins. (Compl. T include the City II.) Plaintiff did not of Winston-Salem as a defendant and now seeks to amend the otiginal complaint to name the City of ìTinston-Salem as a defendant. (?1.'s Mot. to Am., Docket Entry 23.) Defendants fìled a motion to dismiss for failure to state a clum upon which telief may be gtanted pursuant to Fedetal Rule of Civil Ptocedure 12þ)(6) on Octobet 5, pocket Entry 14.) Defendants assert that "Plaintiff has not sufficiently 201,2. alleged he was qualified to participate as a Winston-Salem Police recruit" or that "he was denied entry into recruit class due to his age." (Id. at 2) a Defendants also request this coutt dismiss the Plaintiffs Complaint pursuant to Rules 12þ)Q), (4), and (5), as ìøSPD is not alegal entity ot person over which this Court has jurisdiction ot that is capable of receiving a summons, and Court notes, however, that Plaintiff indicates that he was actually 65 yeats old at the time he applied fot employment with the police depattment. Gl." Resp. at 3, Docket Entry 19.) 2 Plaintiff failed to serve the City of Winston-Salem in accordance with Rule aO(2) of the Federal Rules of Civil Ptocedure. (Id. at Procedute and Rule 4(D(5) of the North Carolina Rules of Civil 1,.) Defendants Perkins, Cunningham and Cranfotd filed a motion to dismiss in theit individual capacities on September. 21,, 2072 pwsuant to Fedetal Rule of Civil Ptocedute 12þX1) and (6). pocket Entry 8.) These defendants argue that they should be dismissed ftom this lawsuit because individual employees cannot be held liable under the ADEA and because they were 3, Docket Entry not listed as tespondents in the PlainufPs EEOC chatge. (Defs.'Bl at2- 9.) In his motion to amend, Plaintiff seeks to amend the original complaint to name the City of l7inston-Salem as a defendant. (Pl.'s Mot. to Am., Docket Entty 23.) Defendants oppose the amendment, assetting futility whete Plaintiffs amended complaint restates the same facts alleged in the original Complaint and wrll not withstand a motion to dismiss. (Jee Docket Entties 24 and25.) II. DISCUSSION A. Standard of Review Rule 15(a) of the Federal Rules of Civil Ptocedute ptovides that"a p^rq may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)Q). It funher requires." states that "[t]he court should fteely give leave when justice so Id. Granttng a motion to amend a complaint is within the discretion of the Coutt, "but outright refusal to grant the leave without any justifting reason appeating for the denial is not an exercise of disctetion." Foman u. Dauis,371 U.S. 178, '1,82 (1'962). The Fouth Circuit has stated that "faf district court may deny a motion to amend when the amendment 5 would be ptejudicial to the opposing patty, the movingperfiy has acted in bad faith, ot the amendment would be futile." Eqøal Nghts Ctr. Cu. 201,0). An amended complaint is futile u. I\ile¡ Bolton Assocl, 602 if it cannot withstand F.3d a motion 597 , 603 (4th to dismiss for failure to state a clakn pursuant to Fedetal Rule of Civil Ptocedure 12þ)(6); thetefore, the Court may deny the motion. Perkins u. United (addition of States, 55 F.3d 91'0, 917 (4th Cir. negligence claim futile because case would if Plaintiffs Thus, the Coutt will determine not survive motion to 1995) dismiss). amended complaint, which solely adds anothet named defendant, can withstand a motion to dismiss. A motion to dismiss pursuant to Rule 12(bX6) tests the sufficiency of the complaint. Edwards u. Ci4t of Goldsboro, 178 F.3d 231,,243 (4th Cir. 1,999). A complaint that does not "contain sufficient factualmatter, accepted as true, to'state aclaim to relief thatis plausible u. Iqbal,556 U.S. 662, 678 (2009) (quoting Be// Atl. Corp. u. Tworzbþ,550 U.S. 544,570 (2007)). "A claim has facial plausibiJity when the plaintiff on its face"' must be dismissed. Ashcroft pleads factual content that allows the court defendant is üable fot the misconduct." Id.; to dtaw the teasonable infetence that the see also Sìmrnon¡ dv United Mortg. dz Laan Inu., LLC, 634 F.3d 754,768 (4th Clï. 2011) (internal quotation omitted) ("O. a Rule 12þ)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face."). The test does not require the complaint to have "'detailed factual allegations,' . . . à ut rathet] plead sufficient facts to allow a court, drawing on 'judicial expetience and common sense,' to infer 'more than the mere possibility of misconduct."' Nemet Cheurolet, 2009) (quoting lqbal,556 U.S. Ltd. u. Conwmerffiirs.clm, 1nc.,591 F.3d 250, 256 (4th Cir. ^t 678-79,) Pro :e complaints 4 ar.e to be libetally consttued in assessing suf{iciency undet the Federal Rules of Civil Ptocedure. Erickson u. Pardus,551 U.S' 89,94 Q007). However, even under this liberal construction, "generosity is not a fantasy," fot him. and the court is not expected to plead a plaintifà s claim Bender u. Sabarban Hotþ., lnc.,1.59 F'.3d 186, I92 (4th Cir. 1993). "Libetal construction is patticulady apptopriate when a pro complaint raises civil rights issues." Moodl-Il/illiarns se 680 (E.D.N.C.201,3) (emphasis in odginal); see aln Brown u. u. UpoSdencq953 F. Supp. 2d 677, N.C. Dept. of Corr., 61,2F.3d720, 722 (4th Cu.201,0). A motion to dismiss pursuant to Rule 12þ)(6) must be read in conjunction with the pleading requirements of the ADE,A.. The hire or to discharge respect ^ny individuai ot ADEA fotbids an employer to "fail or tefuse to otherwise discdminate against any individual with to his compensation, terms, conditions, ot privileges of employment, such individual's age." 29 U.S.C. $ 623(a)(t). In Court explained that where a plunttff because of Haq9n Paper Co. u, Bigins, the Supteme claims age-telated "dispatate treatmenC' (i.t. intentional discdmination "because of a1e"), the plaintiff must ptove that age "actually motivated the employet's decision." 507 U.S. 604, 610 (L993); S1sîens u. EEOC,554 U.S. 135, 1,41, employer may have relied upon treatment" because see also Kentøck1 Retirement (2008). The coutt in HaTgn Paþer also noted that "[t]he a formal, facially disctiminatory policy requiting advetse of age, or "the employer may have been motivated by [age] on an ad hoc, informal basis." Haryn Paþer,507 U.S. ^t 61,0. Nonetheless, a plaintiff alleging disparate treatment cannot succeed unless the employee's age "actaa/þ þla1ed a role in that a deterruinatiue inflaence on the o/'/tclme." Id. (emphasis added). 5 þrocess and ltad B. ,{.nalysis Here, Plaintiff alleges that the discrimination against him was "delibetate and intentional," as Defendant Perkins "blocked" his employment with the police depattment by moving "younget and less qualified" applicants before him. (Compl. 1T IIL) Similady, Plaintiff states that Defendant Cranfotd tated him "on a lower level" and judged him "less qualified" than younget applicants who had no pol-ice ot college expenence. Id. These stâtements however, amount to mere "legal conclusions" that fail to satisfy the Tworzbþ-Iqbal sta¡dard of federal pleading. Twornbþ, 550 U.S. at 555. Plaintiff proffets no information in the Complaint as to how the WSPD makes its detetminations, rendering it impossible for a coutt to determine whether or not he has alleged that he was qualified. Indeed, Plaintiff only submitted the WSPD's rectuiting unit's scale tating system as an attachment to his response to Defendants'motion to dismiss. (Pl.'s Resp. at1.2-1,3, Docket Entry 17.)2 This document is outside the pleadings and is not approptiate fot consideration on the pending Rule 12þ)(6) motion. Caringtoa u. UMG Renrdings, Inc., 1':1'0-CV-890, 2011 WL 3568278 at *3 (1\4.D.N.C. Aug. 1,2, 201,7) aild, 468 F. App'x 304 (4th Ck. 201'2) (inappropriate for Court to consider documents attached to Plaintiffls response to a Rule 12(bX6) motion). of police ftom a physician that Plaintiff is in good Moreover, apart from tepeatedly stating he had "twenty plus yeats" experience and afl attached statement cardiovascular health, the Complaint says little about Plaintiffs qualifications. In one of the accepted applicants had instance, Plaintiff appears to be arguing that because many 2 Plan:iLff also has several other attached documents to his opposition bdef. 6 "bad driving records" aîd "some who had as many as 3 tafltc citations on their recotd" (Compl. T III), the court must assume that Plaintiff, by conttast, has an excellent dtiving recotd, which Ptaintiff mentions fot the ftst time in his response to Defendants' motion to dismiss. pl.s Resp. Brief at 5, Docket Entry 17; Pl.'s Resp. Bt. at 4, Docket E.ttty 19.) This "unwarranted infetence" however, is insufficient under Twombþ-Iqbal and their ptogeny. E. Shore Markeîq Inc. u. I,D. Associate¡ Ltd. P'shþ, 213 F.3d 175, 180 (4th Cir. 2000). To construe Fisher's complaint in this manner, even considering the libetality afforded to þr0 re litigants, is to transform the court into an "advocate" for the plaintiff. IY/eller u. DE't of Soc. Seras. fzr Ci4t of Baltimore, 901 F.2d 387 , 391, (4th Cir. 1990). Even if the court were to consider the additional allegattons contained in Plaintiffs responses to the Defendants' motions to dismiss, Plaintiff elucidates few additional facts that constitute direct evidence that WSPD acted in a disctiminatory manner. Plaintiff descdbes an isolated conversation with Defendant Ctanford - dudng which Mt. Ctanfotd exptessed only "surprise" at Plaintiffs desire to be a police officet - and indicates plans to show "twenty nine examples" to the Court of younget individuals with less expetience who wete accepted into the police academy. (Pl.'s Resp. Bl at 4, 6, Docket Entry 17.) recitations cannot be said to quali$r as direct evidence of disctimination, patticulatly in consideration of the competitiveness of the rectuitment program apply are hired for a class" System, Id. at These - ^nd - "only 2-3o/o of those that Plaintiffs admitted educational deficits. (Scale Rating "12.) In the absence of direct evidence of intentional discrimination, Plaintiff may present a prima facie case for discrimination pursuant to the McDonnell-Doøglm paradigm. Once the 7 burden is met, "the employer is entitled to tebut the employee's ptesentation by offedng evidence that legitimate, non-discriminatory feasons existed fot the employment decision," aftet which the employee may demonstrate the legitimate reasons were pretexts for age discdmination. Bold u. Citl of ll/ilnington, N.C.,943 F. S.rpp. 585, 588 (E.D.N.C. 1'996) (citing McDonnellDouglas Corp. u. Green,4l1 U.S. 792,802-3 (1973)). To establish a pdma facie case, Plaintiff must show that: 1) he is a membet of a gtoup protected undet the ADEA; 2) he was qualified fot the position fot which he applied; 3) he was not hired fot the position; and 4) the employer continued to seek applications from applicants outside the ptotected class. Henso n u. Uge tî Gro aþ, Inc., 61. F .3d 27 0, 27 4 (4th Cir. 1 995). Here, Plaintiff has effectively pled the between foty frst, third, and foutth elements - he is and seventy years old, 29 U.S.C. $ 623(a)(t), he was not recruited fot the police academy, and the WSPD did continue to hire rectuits undet 40 (though 2 two tectuits over forty were hired). Howevet, Defendants are coffect in assettingthat Plaintiff has failed to satis$r the second element. Plaintiff has not alleged the minimum job qualifìcations fot the position, nor has he alleged that he met such qualifications. The Court cannot simply infer, based upon the allegations in the Complaint, that the minimum qualifications weà e met based upon PlaintifPs "20 plus years as a police officer." In an attached exhibit to the Complaint Plaintiff provides the age, education and expetience of several individuals selected for the position. (E,*. 5, Docket Entry 1-5.) However, this information fails to ptovide the 8 Court with job qualifications apparently met by such individuals. Even with the most libetal constuction, Plaintiffs claim fot age discdmination fails.3 C. Retaliation Claim To the extent PlaintifPs Complaint retaliation provisions asserts retaliation, such claim also of the ADEA forbid "discdminat[ion] applicant who has "made fails. The anti- agaínst" an employer ot job a charge, testified, ot patticipated in" a Title VII ptoceeding ot investigation. 42 U.S.C. $ 2000e-3(a); Barlington I'J. dy Santø Ft þ. Co. u. ll/hin,548 U.S. 53, 53 Q006). "A plaintiff lacking direct evidence of tetaliatiorr m^y utilize the McDonnell Doaglas . . . framework to ptove a claim of tetaliatio n." Price u. Thonpson, 380 F.3d 209, 21,2 (4th Cir. 2004). To estabüsh a pdma facie case of retaliation, a plaintiff must show "(1) that engaged he in a protected activityt Q) that his employer took an advetse employment action against him; and (3) that a causal connection existed between the ptotected activity and the assetted advetse action." King u. Rønsfeld,328 F3d 1,45, 1,50-51 (4th, Ctt.2003); see also William¡ u. Cerberonics, 1nc.,871. F.2d 452,457 (4th Cir. 1989). The statute does not confine the actions and harms it forbids to those "affecttng employment terms ot provisions;" 3 Again, even if the Coutt were to find Plaintiffs attachments to his tesponse brief to be an "integral" paft of his Complaint, Plaintiffls claim still fails. Should the Scale Rating System be some fotm of a "job qualification" guide, Plaintiffs allegations do not suggest that he should have a scale rating of "3". (Jea Scale Rating System, Pl.'s Resp. Bl at 12, Docket Entry 17.) Plaintiff does not possess a degree related to the cdminal justice field or indeed, any degree at all. While serving in the navy (experience that not alleged in the Complaint), he was subject to a "captain's masC' disciplinary procedure. (Id. at 14.) Plaintiff notes that he has been involved in law enforcement roles in vadous capacities for twenty yeats (despite curently wotking in maintenance), but there is no indication his seruice records reflect "positive service." (Id. at 12). Moreover, Defendant Ctanford's teview indicates that there were "some areas of concern" with Plaintiff, (Id. at 14.) \)à hjle it is acknowledged that the burden upon the Ptaintiff is "not a, heavy one" and that the factors recited above v/ere not intended to be rigidly applied, Young u. I-tltman,748 F.2d 1.94,1.97 (4th Cir. 7984), cert. denied,471 U.S. 1061 (1985), Plaintiff fails to allege that he was qualified to be a police tectuit. 9 ratheï., it covers "employer actions that would have been matetially adverse to a teasonable employee or applicant," such that a plaintiff must show "that the challenged action 'well might have dissuaded a teasoflable wotket discdmination."' Børlington,548 U.S. at 54 from making ot suppotting a charge of (quolJLng Rochon u. Gonqales, 438 F.3d 1'21'7, 1'21'9 p.C. Cir.2006). The Fourth Circuit has assumed that "in the failure-to-hire context, the employet's knowledge coupled with an advetse action taken at the fffst oppottunity satisfies the causal connection element of the ptima Forward, Hamilton dz 5ripps,345F.3d742,754 (9th Cir. 2003);Il/illian¡ 1,32 F.3d 1,1,23, 1,732 CX/.D. Ya. 2007). facie case." Price, 380 at 21.3; see also E.E.O.C. u. Lace, (6th Cu. 1,997); Tharston u. Arn. Press, LLC, 497 F. Srrpp. 2d 718,783 Additionally, courts are mindful of the fact that the passage of tjme "tends to negate the inference of discdmination." Price,380 F.3d at 273; Dowe Pouerfl in Roanol<e u. Na¡huille Network, u. Total Action Againsî Valley 145 F.3d 653, 657 (4th Cit. 1998). In his Complaint, Plaintiff alleges that Defendant Cunningham states that Plaintiff threatening to sue the WSPD hurts Plaintiff. (Compl. lf III; see al¡o Cunningham E-mail, Ex. 4, Docket Entry 1-4.) Plaintiff appeats to test his tetaliation claim on this statement. Conceivably, Plaintiffs'infotmal complaint to the \7SPD constitutês "oppositional ptotected acriviry." McNeill a. Bd. of Gnt)erilurs of the Uniu. of N.C.,837 F. S.tpp. 2d 540,543 (à 4.D.N.C. 201,1) (quoting Arrzstrong u. Index Joarnal Co., 647 F,2d 44'1,, 448 ("Oppositional activity 'has been held to (4th Cir' 1981) encompass infotmal ptotests, such as voicing complaints to employers or using an employer's gtievance ptocedutes."') However, Plaintiff does not allege that an adverse action was taken. Even aftet lodging an intetnal complaint 10 with the \øSPD and threatening to sue, Plaintiff remained active in the hidng ptocess. (See Cunningham E-mail at 1, Docket Entry 1-4.) Nothing in the Complaint alleges an adverse action taken by Defendants aftet the e-mail exchange. Because Plaintiff fails to allege direct evidence ot tetaliation under the McDonnell Douglas standatd, Defendants' motion to dismiss should be gtanted.a D. Individual Officers'Motion to Dismiss Defendants Perkins, Cunningham and Cranfotd argue that dismissal because Plaintiff failed is appropriate to name these individuals in the EEOC charge. (Defs.' Br. at .3, Docket Entry 9.) Genetally, undet the ADEA and Title VII, "a civil action may be brought only'against the respondent named in the charge."' Caasel u. Balog 162F.3d 795, 800 (4th Cir. 1998) (quoting 42 U.S.C. $ 2000e-5(à (1) (1994)); :ee also 29 U.S.C. $ 626(e) (ADEA). "Failute to name a p^rty in the EEOC charge normally means the plaintiff did not exhaust the administrative remedies against those parties, anda disttict court must dismiss the case." Mayt u. Moore,4"I9 F. Srrpp. 2d775,782 (à d.D.N.C.2006). Plaintiff does not dispute that the individual defendants weà e not named in the EEOC chatge. Plaintiff has not exhausted administrative temedies against Defendants Perkins, Cunningham and Cranfotd; thetefote, the Cout lacks subject matter jurisdiction over these defendants. Even if administtative remedies wete exhausted, Plaintifls claims against these defendant still fail under Rule 12þ)(6). The AD,A. makes discriminate on the basis it unlawful of age. 29 U.S.C.A. S 623. The ADEA f.or an "employer" to defines an employet as a "person engaged in an industry affectng commerce who has twenty or more employees fot a Because the Court recommends dismissal on the merits for failure to state a claim, the Coutt will not addtess Defendant \WSPD's grounds for dismissal under Rules 12þ) Q), @ and (5). 1,1 each working day calendat yeat . . in .þ4 each of trventy or more ^ny ^gent calendat weeks in the current or pteceding of such a person ." 29 U.S.C.A. S 630(b). Unless an individual qualifies as Plaintiffs employer as defined above, the ADEA does not ptovide fot individual liability. The ADEA "limits civil liability to the employer" and an employee is "îot a proper defendanC' (4th Cir. 1,994); in this case. Bir/<beck see also Jones u. Steraheimer,3ST F. the ADEA "do[es] not provide for causes u. Marael Ughting Corþ.,30 F.3d 507, App'* 366,368 (4th Cir. of action against defendants 51.0-1.1. 201,0) (holding that in theit individual capacities"); Pardasani v. Røc/< Roorz Shoet Inc., 91,2 F. S.rpp. "1,87, 1.90-91 (A{.D.N.C. 1996) Qrolding thete can be no individual liability for ADEA claims adsing ftom decisions of a delegable natute); Bryant u. Locklear, 947 F.Supp. 915, 918 (E.D.N.C. 1,996) ("[]ndividual capacity suits may not be maintained under Title VII or the ADEA where the petsonnel decisions at issue are of a plainly delegable character."). Hete, Plaintiff has indicated that the thtee individual defendants ate being sued in "their official status as agents of the police dept. Resp. Br. at 2, Docket Entry 19.) as well as in their individual capacity." (Pl.'s However, because the WSPD was never Plaintiffs employet, and because A.DEA claims cannot be pursued against employees in their individual capacities, Defendants'motion to dismiss pocket Entty 8) should be gtanted fot a falure to state a claim as to any of these defendants. 72 III. CONCLUSION Based upon the fotegoing teasons, IT IS HEREBY RECOMMENDED that Plaintiffs Motion to Amend (Docket Entty 23)be DENIED and that Defendants'Motions to Dismiss pocket Enties 8 and 14) be GRANTED. L $ffiçe Match 28,201,4 Duham, Noth Catolina 1,3 M$isffitcJudp

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