McCrosky v. Preferred Furniture Components, Inc.

• Decision Date: 19 November 2021
• Docket Number: 1:21CV43
• Court: U.S. District Court — Middle District of North Carolina
• Parties: BARNETT LEON MCCROSKY, Plaintiff, v. PREFERRED FURNITURE COMPONENTS, INC., Defendant.

BARNETT LEON MCCROSKY, Plaintiff, v. PREFERRED FURNITURE COMPONENTS, INC., Defendant.

No. 1:21CV43

United States District Court, M.D. North Carolina

November 19, 2021

MEMORANDUM OPINION AND ORDER

N Carlton Tilley, Jr. Senior United States District Judge

This matter is before the Court on a Motion to Dismiss by Defendant Preferred Furniture Components, Inc. (“Preferred”) [Doc. #10] and a Motion to Strike by Plaintiff Barnett Leon McCrosky [Doc. #12]. For the reasons explained below, the motion to dismiss is granted in part as to the retaliation claim and, as a result, the Court declines to exercise supplemental jurisdiction over the North Carolina Wage and Hour Act claim. The motion to strike is denied, but the facts in Preferred's brief that are not alleged in the Complaint are not considered.

I.

As an initial matter, McCrosky has moved pursuant to Rule 12(f) of the Federal Rules of Civil Procedure to strike Preferred's brief in support of its motion to dismiss because it contains and relies on facts not alleged in the Complaint. (See Mot.) Rule 12(f) permits the court to strike certain material “from a pleading”, but a brief is not a pleading, see Fed.R.Civ.P. 7(a). Nevertheless, a Rule 12(b)(6) motion “tests the sufficiency of a complaint; it does not . . . resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citation omitted). Therefore, although the motion to strike is denied, the Court has not considered the facts in Preferred's brief that are not alleged in the Complaint.

II.

As alleged in the Complaint, Preferred hired McCrosky as a truck driver in 1993, and five years later he was promoted to Warehouse Manager. (Compl. ¶¶ 19-20.) He served under three company presidents, never received any formal reprimands, and received raises throughout his career. (Id. ¶¶ 21, 23.) On or about December 1, 2015, Jim Hodgin was promoted to serve as Preferred's president. (Id. ¶ 22.)

On or about August 14, 2019, McCrosky “approached Hodgin to alert him about [McCrosky's] arrangements for that day's product deliveries.” (Id. ¶ 24.) In response, Hodgin slammed his fist on his desk and yelled profanities at McCrosky, “particularly using the word ‘goddamned.'” (Id. ¶ 25.) “Having just heard Hodgin violate the Third Commandment, [McCrosky] asked that Hodgin calm down and watch his language because [McCrosky] was ‘a Christian who will always stand up for his God.'” (Id. ¶ 26.) Hodgin responded that “he didn't give a 'goddamn' what [McCrosky] wanted and immediately fired [him].” (Id. ¶ 28.)

After he was fired, McCrosky discussed possible severance with Hodgin, and Hodgin agreed to pay McCrosky $2, 600 in severance ($100 for each year of service) and provide a positive job reference. (Id. ¶¶ 29-30.) However, when McCrosky came to pick up his severance, Hodgin told him that he had unilaterally rescinded the agreement. (Id. ¶ 32.) There would be no severance. (Id.) And Hodgin told McCrosky that he should not expect a positive job reference, saying “'you wouldn't want me to lie, would you Mr. Christian?'” (Id. ¶ 33.)

McCrosky has sued Preferred for religious discrimination in violation of Title VII (Count I), retaliation in violation of Title VII (Count II), and a violation of the North Carolina Wage and Hour Act (Count III). Preferred has moved to dismiss all three counts for failure to state a claim upon which relief can be granted. In response to the motion to dismiss, McCrosky voluntarily dismissed Count I. (Notice of Voluntary Dismissal [Doc. #14].)

III.

To survive a motion to dismiss made pursuant to Rule 12(b)(6), 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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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. (citing Twombly, 550 U.S. at 556); see also McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (noting that a complaint must “contain[] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in the sense that the complaint's factual allegations must allow a court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). However, when a complaint states facts that are “'merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.''” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). When evaluating whether the complaint states a claim that is plausible on its face, the facts are construed in the light most favorable to the plaintiff and all reasonable inferences are drawn in his favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless, “labels and conclusions[, ]” “a formulaic recitation of the elements of a cause of action[, ]” and “naked assertions . . . without some further factual enhancement” are insufficient. Twombly, 550 U.S. at 557. In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level”. Id. at 555.

A.

McCrosky asserts a claim of retaliation in violation of Title VII and alleges that he “engaged in protected activity . . . by requesting accommodation for his religious practice and complaining about Hodgin's language” and was terminated for doing so. (Compl. ¶¶ 44-45.) Preferred argues that McCrosky has failed to allege that he engaged in protected activity or that there is a causal connection between any protected activity and his termination. (Br. in Supp. of Mot. to Dismiss (“Br. in Supp.”) at 12-16 [Doc. #11]; Reply Br. in Supp. of Mot. to Dismiss (“Reply Br.”) at 6-11 [Doc. #16].)

The Fourth Circuit Court of Appeals recently explained,

[i]n the context of a Title VII case, “an employment discrimination plaintiff need not plead a prima facie case of discrimination” to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.E.2d 1 (2002). Instead, a Title VII plaintiff is “required to allege facts to satisfy the elements of a cause of action created by the that statute.” McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).

Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (2020) (footnote omitted).

Not only does Title VII prohibit an employer from discriminating against any individual “because of such individual's . . . religion . . .”, 42 U.S.C. § 2000e-2(a), but it also prohibits an employer from discriminating against an employee “because he has opposed any practice” that is unlawful under Title VII “or because he has made a charge . . . or participated in any manner in an investigation . . .” of a practice that is unlawful under Title VII, 42 U.S.C. § 2000e-3(a). Oppositional activity is protected when the plaintiff “reasonably believe[s] that the employment action []he opposed constituted a Title VII violation” and his “conduct in opposition was reasonable”. Netter v. Barnes, 908 F.3d 932, 937-38 (4th Cir. 2018) (citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015); Laughlin v. Metro Wash. Airports Auth., 149 F.3d 253, 359-60 (4th Cir. 1998)).

Accordingly, [the] inquiry is whether [the plaintiff] alleges facts that plausibly state a violation of Title VII “above the speculative level.” Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also McCleary-Evans, 780 F.3d at 585-86.

Bing, 959 F.3d at 617.

B.

McCrosky alleges that he was terminated in retaliation for having requested accommodation for his religious practice. But Preferred contends that McCrosky has not sufficiently alleged that he requested such accommodation and, even if he had, he has not sufficiently alleged causation. (Br. in Supp. at 12-16.) McCrosky does not respond to this argument and focuses, instead, on the other alleged purported protected activity of opposing a hostile work environment which is addressed below, infra § C. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. to Dismiss (“Br. in Opp'n”) at 3-4 [Doc. #15].) By failing to respond, McCrosky has conceded this issue. See Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918, 2010 WL 1667285, at *7-*8 (M.D. N.C. Apr. 23, 2010) (citing cases); Brand v. N.C. Dep't of Crime Control & Pub. Safety, 352 F.Supp.2d 606, 618 (M.D. N.C. 2004) (“By failing to respond, Plaintiff concedes that he has not stated a . . . claim.”). Cf. Local Civ. R. 7.2(a), 7.3(k) (providing response brief contents and consequence of not timely filing a brief or response). The “court nevertheless has an obligation to review the motion[] to ensure that dismissal [of this issue] is proper.” Stevenson v. City of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014).

Because McCrosky was not participating in any investigation or proceeding under Title VII, his request for accommodation would have to be oppositional activity to be protected. Protected oppositional activity occurs when an employee opposes discriminatory workplace conduct. For example, opposing the failure to provide reasonable accommodation would constitute protected activity. But simply requesting accommodation does not.

Furthermore even if requesting religious accommodation were protected activity, McCrosky has not sufficiently alleged that he did so. In relevant part, a religious accommodation comes about when an...