Abraham v. Rohoho, Inc.

Alex Abraham, Plaintiff, v. Rohoho, Inc. d/b/a Papa John's Pizza, Defendant.

C.A. No. 3:18-CV-3082-MGL-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

March 27, 2019

REPORT AND RECOMMENDATION

Plaintiff Alex Abraham ("Abraham" or "Plaintiff"), proceeding pro se, filed this employment action against his former employer, Rohoho, Inc. d/b/a Papa John's Pizza ("Rohoho" or "Defendant"). Compl., ECF No. 1. Currently before the undersigned is Defendant Rohoho's Motion to Dismiss, in which it seeks to dismiss all claims pending against it either for failure to exhaust administrative remedies or for failure to state a claim. ECF No. 26. Plaintiff submitted his Response to the Motion to Dismiss, ECF No. 28, to which Defendant submitted a Reply, ECF No. 29. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation ("R&R") on Defendant's Motion to Dismiss. ECF No. 26. Because the motion to dismiss is dispositive, this R&R is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 22, be granted.

I. Applicable standards of review

Defendant moves to dismiss Plaintiff's Complaint based on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing some of Plaintiff's claims should be dismissed because Plaintiff failed to exhaust administrative remedies, and that some should be dismissed for failure to state a claim.

A. Rule 12(b)

Defendant's failure-to-exhaust-administrative-remedies argument is considered under Rule 12(b)(1). Agolli v. Office Depot, Inc., 548 F. App'x 871, 875 (4th Cir. 2013). A plaintiff always bears the burden of demonstrating that subject matter jurisdiction properly exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). When a defendant challenges subject-matter jurisdiction pursuant to a Rule 12(b)(1) motion to dismiss, the court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004) (citing cases).

Although the usual rule is that a court "may not consider any documents that are outside of the complaint, or not expressly incorporated therein," Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), a court may properly consider documents "attached or incorporated into the complaint," as well as documents attached to the defendant's motion, "so long as they are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).

"A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not needdetailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .

550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("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." (citing Twombly, 550 U.S. at 556)). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to "'draw all reasonable inferences in favor of the plaintiff.'" Kolon Indus., 637 F.3d at 440 (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only "labels and conclusions" or "naked assertion[s]" lacking "some further factual enhancement" will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint "need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).

Further, "courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documentsincorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

B. Pro se pleadings

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), and a federal district 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); Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, "a court may not act as [a pro se] litigant's advocate and construct legal arguments that the plaintiff has not made[.]" Warren v. Tri Tech Labs., Inc., 993 F. Supp. 2d 609, 613 (W.D. Va.), aff'd, 580 F. App'x 182 (4th Cir. 2014) (citing Brock v. Carroll, 107 F.3d 241, 242-43 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).

II. Factual and procedural background

Construed in the light most favorable to Plaintiff, the nonmoving party, this factual summary partially is derived from Defendant's compilation of Plaintiff's allegations. See Def. Mem. 1-4. In Plaintiff's one-page opposition to Defendant's Motion, Plaintiff does not take issue with Defendant's factual recitation other than to state that Defendant "mixed up the time fram[e] of complaints" and to suggest Defendant's focus was incorrect. He does not provide his ownversion of the facts or explain how Defendant may have incorrectly stated any time frames. Pl. Mem. 1.

A. Plaintiff's Complaint

Using the court-created form Complaint for Employment Discrimination Plaintiff alleges Defendant illegally discriminated against him by terminating him. Plaintiff submits he was discriminated against on the basis of his race, his gender/sex, and his national origin. Compl. 5. In listing the "Basis for Jurisdiction," Plaintiff indicates that his claims are brought under Title VII (42 U.S.C. §§ 2000e through 2000e-17) Id. at 3. Although Plaintiff also "checked the boxes" to indicate he also brought claims pursuant to other federal law and relevant state, city/county law, id. at 4, he does not provide specifics as to which other laws provide a basis for his Complaint. Accordingly, as does Defendant in its Motion to Dismiss, the undersigned construes Plaintiff's Complaint as including only Title VII. Plaintiff also checked boxes claiming that Defendant discriminated against him by terminating his employment, imposing "[u]nequal terms and conditions" on his employment, and retaliating against him. Id. at 4. Plaintiff claims all discriminatory conduct occurred in June and July of 2017 but also checked a box alleging that Defendant is still committing these acts against him. Id. Plaintiff alleges he was discriminated against based on race, sex, and national origin and, specifically, that he was called racial slurs; that he was teased for being gay; that he was forced to work while others were not; and that he was subject to hostile work conditions. Id. at 5. The only adverse employment action discussed in his Complaint is his termination, which he indicates Defendant has wrongly characterized as voluntary. See ECF No. 1-1 at 2.

Attached to Plaintiff's Complaint Form are two letters he apparently sent to the South Carolina Human Affairs Commission ("SHAC") on January 12 and January 14, 2018. ECF No. 1-1.¹

Plain...