Gottesman v. J.H. Batten, Inc., 1:03CV00085.

• Decision Date: 26 September 2003
• Docket Number: No. 1:03CV00085.,1:03CV00085.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Jeffrey GOTTESMAN Plaintiff, v. J.H. BATTEN, INC. Defendant.

286 F.Supp.2d 604

Jeffrey GOTTESMAN Plaintiff, v. J.H. BATTEN, INC. Defendant.

No. 1:03CV00085.

United States District Court, M.D. North Carolina.

September 26, 2003.

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Mark Floyd Reynolds, II, High Point, NC, Todd J. Combs, Morgan Herring Morgan Green, Rosenblutt & Gill, High Point, NC, for Plaintiff.

Dena Beth Langley, Brian Stephen Clarke, Adams Kleemeier Hagan Hannah & Fouts, Greensboro, NC, for Defendant.

MEMORANDUM OPINION

BULLOCK, District Judge.

On January 24, 2003, Jeffrey Gottesman ("Plaintiff") filed an employment discrimination suit against J.H. Batten, Inc. ("Defendant"). Plaintiff's complaint alleges several bases for relief in five separate counts: (1) age discrimination in employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"); (2) failure to accommodate a disability and discriminatory discharge in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"); (3) failure to accommodate a disability and discriminatory discharge in violation of the North Carolina Persons with Disabilities Protection Act,¹ N.C. Gen. Stat. § 168A-1, et seq. (the "NCPDPA"); (4) failure to accommodate a disability in violation of the Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, cl. 2; and (5) wrongful discharge from employment in violation of North Carolina state public policy.

Before the court is Defendant's motion to dismiss all counts of Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, Defendant's motion to dismiss will be granted in part and denied in part.

FACTS

Defendant is a building contractor located in Forsyth County, North Carolina. On November 6, 2000, Plaintiff was hired by Defendant's President, David Batten, as Defendant's "Chief Estimator." At the time of his hiring, Plaintiff was fifty-nine years old and had over forty years of experience as an estimator in the construction industry.

As Chief Estimator, Plaintiff performed approximately seventy-five percent of his work within Defendant's home office. Plaintiff's duties included determining the building materials needed by Defendant to complete building projects, pricing and bidding, and sales and marketing. Part of Plaintiff's sales and marketing duties involved oral and written presentations to potential clients, architects, and owners. At Defendant's request, Plaintiff also trained a new estimator to perform similar types of estimation work for Defendant.

In December 2001, Plaintiff was diagnosed with throat cancer and hospitalized. Defendant placed Plaintiff on an indefinite medical leave of absence and hired a new estimator in the meantime. On December 13, 2001, medical doctors performed a full laryngectomy on Plaintiff and surgically removed all of Plaintiff's larynx.² As a result of his laryngectomy, Plaintiff lost the use of his vocal cords and now speaks with the aid of an electronic speaking device or artificial larynx.³

On April 11, 2002, Plaintiff returned to work. Plaintiff maintains that upon his return to work, he asked Defendant to provide him with e-mail capabilities and a telephone headset. Plaintiff requested these accommodations so that he might perform his job duties and speak on the telephone with ease despite his electronic speaking device. According to Plaintiff's complaint, Defendant agreed to provide Plaintiff with e-mail capabilities but refused to provide Plaintiff with a telephone headset. Defendant told Plaintiff and Plaintiff's wife that Plaintiff could use a telephone headset on company phones as long as he purchased his own headset. Although Plaintiff explained to Defendant that he could not afford to buy his own telephone headset, Defendant ignored all of Plaintiff's requests for a headset.

Plaintiff also maintains that, during his first week at work following his medical leave of absence, he did not receive any work assignments until he requested work from Defendant. Upon Plaintiff's request, Defendant asked Plaintiff to estimate the cost of construction for a church building. Plaintiff received no other work projects from Defendant until one week later when Plaintiff again requested work from Defendant. Defendant then asked Plaintiff to estimate another church construction project.

On April 26, 2002, David and Harold Batten met with Plaintiff and informed Plaintiff of his discharge from employment with Defendant. Plaintiff maintains that Defendant told him the reason for his discharge was that his work was "too slow." (Compl.¶ 19.) At the time of Plaintiff's discharge, Plaintiff was sixty-one years old.

Plaintiff alleges in his complaint that Defendant failed to provide Plaintiff reasonable accommodations regarding his disability by refusing to supply him with a telephone headset. Plaintiff also asserts that Defendant's alleged reason for terminating him was pretextual and that Defendant wrongfully terminated Plaintiff's employment because of his age and disability. Based on these allegations, Plaintiff contends that Defendant's conduct constitutes employment discrimination in violation of the ADEA, ADA, NCPDPA, and the United States Constitution. Plaintiff also contends that Defendant wrongfully discharged him in violation of North Carolina public policy.

DISCUSSION

A motion to dismiss for failure to state a claim upon which relief may be granted made pursuant to Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss, the court accepts as true all well-pleaded allegations and views the complaint in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). The function of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint and not the facts that support it. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

(1) Plaintiff's ADEA Claim

In his "First Cause of Action," Plaintiff asserts a claim against Defendant pursuant to the ADEA. "In order to establish a cause of action under the ADEA, a plaintiff must demonstrate that but for the employer's motive to discriminate against the plaintiff on the basis of age, the plaintiff would not have been discharged." E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir.1992). "The plaintiff may meet this burden under the ordinary standards of proof by direct or indirect evidence relevant to and sufficiently probative of the issue [of age discrimination]." Id.⁴ In the alternative, a plaintiff may follow the judicially created scheme of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and adapted to ADEA cases. Clay Printing Co., 955 F.2d at 940 (citations omitted). Under the McDonnell Douglas scheme of proof, the plaintiff must show four elements to establish a prima facie case of discriminatory discharge under the ADEA: "(1) he is a member of the protected class; (2) he was qualified for the job and met the employer's legitimate expectations; (3) he was discharged despite his qualifications and performance; and (4) following his discharge, he was replaced by someone with comparable qualifications outside the protected class." Causey v. Balog, 162 F.3d 795, 802 (4th Cir.1998) (citation omitted).

An employment discrimination plaintiff need not plead specific facts in his complaint establishing a prima facie case of discrimination under the McDonnell Douglas framework. Swierkiewicz v. Sorema, 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). "[U]nder a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case." Swierkiewicz, 534 U.S. at 511, 122 S.Ct. 992 (emphasis omitted). Instead, the plaintiff must comply with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must only include a "short and plain statement of the claim showing that the pleader is entitled to relief" in order to provide defendant fair notice of the nature of the plaintiff's claims and the grounds upon which they rest. Id. at 512, 122 S.Ct. 992 (citing Conley, 355 U.S. at 47, 78 S.Ct. 99).

In the instant case, Plaintiff alleges in his complaint that "[t]he Defendant's assertions that it was proper to terminate [Plaintiff] for unknown reasons is a ploy used by the Defendant to terminate the Plaintiff['s] employment because of his age, sixty-one." (Compl. ¶ 25.) Plaintiff contends that he was "intentionally terminated by the Defendant because of his age." (Compl.¶27.) Plaintiff also contends that "[he] was terminated by [Defendant] fifteen days following his return to work, and he was replaced by a significantly younger employee." (Compl.¶ 36.) Plaintiff further contends that he is entitled to liquidated damages for Defendant's "willful violations of the Age Discrimination in Employment Act." (Compl.¶ 29.) Viewing the complaint in the light most favorable to the plaintiff, the court finds that Plaintiff has...