Bess v. Cnty. of Cumberland

• Decision Date: 25 July 2011
• Docket Number: NO: 5:10-CV-453-BR,: 5:10-CV-453-BR
• Parties: ALVIN L. BESS, Plaintiff, v. COUNTY OF CUMBERLAND, BOARD OF COMMISSIONERS, NORTH CAROLINA and JAMES MARTIN, JAMES LAWSON, TOMAS LLOYD and RICHARD HEICKSEN, INDIVIDUALLY, Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

ALVIN L. BESS, Plaintiff, v. COUNTY OF CUMBERLAND BOARD OF COMMISSIONERS, NORTH CAROLINA and JAMES MARTIN, JAMES LAWSON TOMAS LLOYD and RICHARD HEICKSEN INDIVIDUALLY, Defendants.

NO: 5:10-CV-453-BR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

Dated: July 25, 2011

ORDER

This matter is before the court on the 9 December 2010 motion to dismiss filed by defendants Cumberland County ("County"), Cumberland County Board of Commissioners ("Board"),¹ James Martin ("Martin"), James Lawson ("Lawson"), Tomas Lloyd ("Lloyd"), and Richard Heicksen ("Heicksen").² The motion has been fully briefed and is ripe for disposition.

I. BACKGROUND

Plaintiff Alvin L. Bess ("plaintiff") was employed as a transportation planner by the Fayetteville Area Metropolitan Planning Organization ("FAMPO"), which is housed in theCumberland County Planning and Inspections Department, from 3 March 2008 until his termination on 12 March 2010. (Compl., DE # 5, ¶¶ 6, 13, 21, 32, 133; Defs.' Mem. Supp. Mot. Dismiss, DE # 12, at 2.) Plaintiff filed two charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") on 26 January 2010³ and 19 May 2010. (Id. ¶¶ 13-14, 18, 111, 153, 178.) On 20 October 2010, plaintiff commenced this action by filing a motion to proceed in forma pauperis, and he attached his complaint to the motion. He asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act of 1990 ("ADA"), and the Age Discrimination in Employment Act ("ADEA"). Plaintiff also appears to assert numerous state law claims against the defendants.

On 9 December 2010, all of the defendants filed a joint motion to dismiss the complaint. Plaintiff filed a response on 15 December 2010. None of the defendants filed a reply.

II. DISCUSSION

A. Federal Claims Against the Individual Defendants and the Board

The individual defendants contend that all of the federal claims that have been brought against them should be dismissed because there is no individual liability under Title VII, the ADA, or the ADEA. The court agrees that plaintiff cannot maintain any of his federal claims against Martin, Lawson, Lloyd, and Heicksen in their individual capacities. See Jones v. Sternheimer, 387 Fed. Appx. 366, 368 (4th Cir. 2010) (Title VII, the ADA, and the ADEA "do not provide for causes of action against defendants in their individual capacities."); Baird v.Rose, 192 F.3d 462, 472 (4th Cir. 1999); Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir. 1994); Ward v. Coastal Carolina Health Care, P.A., 597 F. Supp. 2d 567, 570 (E.D.N.C. 2009) ("[I]ndividual employees of corporate entities . . . are not liable in their individual capacities for Title VII violations because such individuals are not 'employers' under Title VII."). Therefore, the court will dismiss all of the federal claims asserted against the individual defendants in this case.

The court will also dismiss all of the federal claims that have been brought against the Board. The Board does not appear to be plaintiff's "employer" within the meaning of the relevant statutes, and plaintiff makes no allegations in his complaint to suggest that the Board was his actual employer. More importantly, under North Carolina law, county entities such as departments, agencies, and boards lack the capacity to be sued. See Avery v. Cnty. of Burke, 660 F.2d 111, 113-14 (4th Cir. 1981) (noting that state law dictates whether a governmental agency has the capacity to be sued in federal court). North Carolina General Statutes § 153A-11 acknowledges that a county is a legal entity which may be sued. However, there is no corresponding statute authorizing suit against a North Carolina county's Board of Commissioners. See Craig v. Cnty. of Chatham, 545 S.E.2d 455, 456 (N.C. Ct. App. 2001) (noting that the county's Board of Health and Board of Commissioners "are not entities capable of being sued"), aff'd in part, rev'd in part on other grounds, 565 S.E.2d 172 (N.C. 2002); Piland v. Hertford Cnty. Bd. of Comm'rs, 539 S.E.2d 669, 671 (N.C. Ct. App. 2000) (holding that county Board of Commissioners was not a proper party to be sued).

As a result, the only defendant remaining with respect to plaintiff's federal claims is the County, who was plaintiff's employer for the purposes of Title VII, the ADA, and the ADEA.(See, e.g., Compl. 6-10, 21.)

B. County's Motion to Dismiss for Lack of Personal Jurisdiction

The County moves to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) because it claims that it has never been served with a summons in this case. Although plaintiff did serve a summons on County Manager Martin, the County maintains that the summons was directed to Martin in his individual capacity and not in his official capacity as an agent for the County. Once service of process has been challenged, "[t]he plaintiff bears the burden of establishing that the service of process has been performed in accordance with the requirements of Federal Rule of Civil Procedure 4." McCreary v. Vaughan-Bassett Furniture Co., 412 F. Supp. 2d 535, 537 (M.D.N.C. 2005).

The County's argument is without merit. First, the County admits that Martin is a proper official upon whom service may be made on behalf of the County pursuant to North Carolina Rule of Civil Procedure 4(j)(5)b. (See Defs.' Mem. Supp. Mot. Dismiss at 4.) Furthermore, even if the court accepts the County's argument that the summons was directed to Martin in his individual capacity, when service of process gives a defendant actual notice of the pending action, the courts may construe the Federal Rules of Civil Procedure liberally "to effectuate service and uphold the jurisdiction of the court, thus insuring the opportunity for a trial on the merits." Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963); see also Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Here, the County does not deny that it had notice of this action, nor does it identify any prejudice that has arisen from any alleged technical defect in service. See McCreary, 412 F. Supp. 2d at 537. "Moreover, the court should allow a pro se litigant a certain amount of lenity that is not afforded to representedparties." Id. The court concludes that dismissal for lack of personal jurisdiction due to insufficiency of service of process is not warranted under these circumstances.

C. Title VII Race Claims Against the County

In this case, plaintiff asserts Title VII claims for "retaliatory discrimination and race discrimination." (Compl. ¶¶ 5, 111; see also id. ¶¶ 107, 200-01, 203.) The County moves to dismiss these claims pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) "tests the sufficiency of a complaint" but "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In order to survive a Rule 12(b)(6) motion to dismiss, the complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir. 2009). A court need not accept as true "'unwarranted inferences, unreasonable conclusions, or arguments.'" Id. (quoting Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009), cert. denied, 130 S. Ct. 1140 (2010)).

Plaintiff is proceeding pro se. Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520(1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

Title VII prohibits an employer from "discharg[ing] any individual, or otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a). Absent direct evidence, the elements of a prima facie case of discrimination under Title VII 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. See Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (applying these elements in the Rule 12(b)(6) context), cert. granted, 79 U.S.L.W. 3480 (U.S. June 27, 2011) (No. 101016); White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004).

"[U]nder Title VII, a plaintiff can only seek redress for discriminatory acts that occurred within 180 days prior to the filing of the EEOC charge." Barbier v. Durham Cnty. Bd. of Educ., 225 F. Supp. 2d 617, 624 (M.D.N.C. 2002); see also Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir. 1998), abrogated on other grounds, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); 42 U.S.C. § 2000e-5(e)(1). The County argues that plaintiff's "rambling allegations in his complaint" detail a multitude of alleged discriminatory actions that took place outside of the...