Eleazu v. Dir. US Army Network Enter. Ctr.

Decision Date23 November 2020
Docket NumberC/A No.: 3:20-2576-JMC-SVH
PartiesChimaroke Victor Eleazu, Plaintiff, v. Director US Army Network Enterprise Center, Natick, Defendant.
CourtU.S. District Court — District of South Carolina
REPORT AND RECOMMENDATION AND ORDER

Chimaroke Victor Eleazu ("Plaintiff"), proceeding pro se, filed this complaint against the Director of the United States Army Network Enterprise Center located in Natick, Massachusetts ("Defendant"), alleging a hostile work environment, harassment, and wrongful termination of his employment. Plaintiff's claims are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. ("ADA"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and 42 U.S.C. § 1981. [ECF No. 1 at 3].

This matter comes before the court on Defendant's motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(3) and 12(b)(6). [ECF No. 12]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 14]. Defendant's motion having been fully briefed [see ECF Nos. 16, 18], this matter is ripe for disposition. Also before the court is Plaintiff's motion for issuance of subpoena [ECF No. 17] and Defendant's motion to stay discovery pending resolution of the motion to dismiss. [ECF No. 19].

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned grants Defendant's motion to stay, holds Plaintiff's motion for issuance of subpoenas in abeyance until the district judge rules on this report and recommendation, and recommends the district judge grant Defendant's motion to dismiss.

I. Factual and Procedural Background

Plaintiff alleges that all the events that led to his claims occurred in Essex County, Massachusetts. [ECF No. 1 at 2]. Plaintiff alleges prior to October 7, 2014, he had a "perfect work relationship" at his workplace and had "no complaint." Id. Thereafter, "[t]he harassment started and continued after [a] co-worker went on a loud rant in the office about a murder case in Danvers, Ma," and this harassment continued until July 22, 2015, when Defendant terminated Plaintiff's employment. Id.

Plaintiff alleges the complained-of harassment included:

stereotype jokes, ridicule, put-downs, interference with work performance, name calling, verbal and nonverbal abusive behaviors, fears and concerns resulting from death threatening statement from co-workers directed at me remained unresolved after promises from management to resolve it.

Id. at 3. He alleges he was "unable to secure any kind of grantee of my personal safety at work or any assurance from management that the continue harassment would stop." Id.

Plaintiff contacted an Equal Employment Opportunity ("EEO") official concerning his claims on October 29, 2014. [ECF No. 12-3 at 3; see also ECF No. 16 at 20-21].1 He received notice on December 5, 2014, following "the absence of [his] response to fact-finding questions" and "extensions requestform," informing him of his right to file a formal complaint of discrimination within 15 calendar days of receipt of the notice. [ECF No. 12-2 at 1, 5].

Plaintiff seeks "monetary relief to cover" losses occurring during the year at issue, including "pain and suffering" and "lost wages (employment), ability to care for my family including paying my monthly mortgage, credit cards and other bills, bad credit reporting, cost of legal representation, borrowed money from parents, inconvenience, loss of enjoyment of life, used most of my personal retirement accounts." [ECF No. 1 at 3-4].

II. Discussion
A. Standard on Motion to Dismiss

Under Rule 12(b)(3), a defendant may move to dismiss an action as brought in an improper venue. A plaintiff need "make only a prima facie showing of proper venue in order to survive a motion to dismiss." Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 365-66 (4th Cir. 2012) (citation omitted). In determining whether a plaintiff has met this standard, "the court is permitted to consider evidence outside the pleadings." Id. (citing Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006)). The court should "view the facts in the light most favorable to the plaintiff." Id. at 366 (citing Glob. Seafood Inc. v. Bantry Bay Mussels, Ltd., 659 F.3d 221, 224 (2d Cir. 2011)).

A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "a 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) ). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards, 178 F.3d at 244. Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).

Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read thepleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

B. Analysis

As a preliminary matter, the undersigned addresses the claims at issue. Plaintiff purports to bring this action pursuant to Title VII, the ADA, the ADEA, and 42 U.S.C. § 1981. [ECF No. 1 at 3]. In response to Defendant's motion to dismiss, [see ECF No. 16 at 1-2, 5], Plaintiff appears to abandon any claims brought pursuant to the ADA and the ADEA. See Coker v. International Paper Co., C/A No. 08-1865, 2010 WL 1072643, at * 2 (D.S.C. Mar. 18, 2010) (noting that plaintiff can abandon claims by failing to address them in response to a dispositive motion).2

First, Plaintiff cannot bring a claim pursuant to § 1981 in this instance. See Middlebrooks v. Leavitt, 525 F.3d 341, 349 (4th Cir. 2008) ("[Section 1981] does not, however, provide a remedy against federal officials")).3 Second, the Rehabilitation Act, 29 U.S.C. § 701 et seq. ("Rehabilitation Act"), rather than the ADA, is the statute upon which a federal employee can raise a disability discrimination claim. See Hatcher v. Wilkie, C/A No. 3:17-2535-JMC-PJG, 2019 WL 2090810, at *5 (D.S.C. Feb. 27, 2019) (collecting cases).

Out of an abundance of caution, the undersigned will address Plaintiff's claims as having been brought pursuant to Title VII, the Rehabilitation Act, and the ADEA.

1. Proper Venue

Defendant argues venue is appropriate in Massachusetts, not South Carolina.4 Venue for a Title VII claim is governed by a specific statutoryprovision under which venue is proper in any of three judicial districts where: (1) "the unlawful employment practice is alleged to have been committed," (2) "the employment records relevant to such a practice are maintained and administered," or (3) "the aggrieved person would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3). When a defendant cannot be brought to court under any of these three situations, the proper venue is the location of the defendant's principal office. Id. "[T]he Title VII venue provision also applies to actions brought under the Rehabilitation Act." Archuleta v. Sullivan, No. 9102029, 1991 WL 179071, at *3 n.3 (4th Cir. Sept. 13, 1991) (citing 29 U.S.C. § 794a(a)(1)).

The complaint establishes Massachusetts is the appropriate venue for Plaintiff's Title VII and Rehabilitation Act claims. Considering the first prong of the test set forth in Title VII, Plaintiff pleads that the allegedly unlawful employment practices took place in Middlesex County, Massachusetts. [ECF No. 1 at 2]. Plaintiff's allegations do not address either the second or third prongs, although he appears to indicate that he would have continued to be employed at the Natick, Massachusetts, location but for the discrimination and harassment.5

Plaintiff pleads he currently resides in the District of South Carolina and appears to argue venue is proper here for this reason. [ECF No. 1 at 1, ECF No. 16 at 18]. However, Plaintiff's residence is not a basis for venue under Title VII's specific venue provision or under the Rehabilitation Act. Benton v. England, 222 F. Supp.2d 728, 731 (D. Md. 2002) (holding "plaintiff's place of residence is not one of the three options for venue provided for by 42 U.S.C. § 2000e-5(f)(3)"). Plaintiff's pleading does not demonstrate venue is proper in the District of South Carolina on any of the first three prongs of the test set forth at 42 U.S.C. § 2000e-5(f)(3). By the terms of his own...

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