Everett v. Redmon

ARTHUR LEE EVERETT, JR., Plaintiff, v. KATRINA REDMON, individually and in her official capacity as the ChiefExecutive Officer of the Housing Authority of the City of Wilmington, North Carolina;MATT SCAPARRO, individually and in his official capacity as the Director ofProperty Management for the Housing Authority of the City of Wilmington;LEASHA JOHNSON, individually and in her official capacity as a Property Managerfor the Housing Authority of the City of Wilmington, Defendants.

No. 7:16-CV-323-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION

May 26, 2017

ORDER

On September 13, 2016, Arthur Lee Everett, Jr., ("Everett" or "plaintiff") sued Katrina Redmon ("Redmon"), individually and in her official capacity as the Chief Executive Officer of the Housing Authority of the City of Wilmington, North Carolina; Matt Scaparro ("Scaparro"), individually and in his official capacity as the Director of Property Management for the Housing Authority of the City of Wilmington; and Leasha Johnson ("Johnson"), individually and in her official capacity as a Property Manager for the Housing Authority of the City of Wilmington (collectively, "defendants") [D.E. 1]. On November 1, 2016, defendants moved to dismiss Everett's complaint for failure to state a claim upon which relief can be granted [D.E. 11] and filed a memorandum in support [D.E. 12]. On January 6, 2017, Everett responded in opposition [D.E. 31]. As explained below, the court grants defendants' motion to dismiss and dismisses Everett's complaint without prejudice.

I.

Everett is an African-American male who resides in Brunswick County, North Carolina. Compl. [D.E. 1] ¶¶ 7, 14. In 2001, the Housing Authority of the City of Wilmington, North Carolina ("the Housing Authority") hired Everett as a maintenance mechanic, and he served in that capacity until January 15, 2014. Id. ¶¶ 16-17.¹ On January 15, 2014, Everett was promoted to serve as lead maintenance mechanic. Id. ¶ 16.

Redmon resides in New Hanover County, North Carolina. Id. ¶ 8. In August 2014, Redmon became the Housing Authority's Chief Executive Officer ("CEO"). Id. ¶¶ 8, 25. As CEO, Redmon "serve[d] as primary advisor to the [Housing Authority] Board of Commissioners . . . and [was] charged with managing and directing all functions of the Authority in accordance with all applicable laws, rules and regulations, including rules promulgated by [the United States Department of Housing and Urban Development], as well as resolutions and policies adopted by the Board and any other body with power over the Authority." Id. ¶ 8 (quotation omitted).

Scaparro resides in New Hanover County, North Carolina. Id. ¶ 9. During the events at issue in this case, Scaparro was the Housing Authority's Director of Property Management. Id. His job duties included

(1) The overall organizing, staffing, monitoring and reporting functions in the property management department; (2) Recommending changes in policies and procedures, and implementing policies and procedures; (3) Coordinating the Housing Authority's safety program to insure compliance with applicable state and federal requirements and regulations; (4) Monitoring the operations of the maintenance staff and contractors . . . ; and (5) evaluating and recommending personnel action on subordinates' job performance.

Id. (quotation omitted).

Johnson resides in New Hanover County, North Carolina. Id. ¶ 10. During the events at issue in this case, Johnson was the Housing Authority's Property Manager for the Housing Authority's Houston Moore and Vesta Village properties. Id. Her job duties included "recommend[ing] termination and disciplinary action, if needed" for "assigned property staff," "[d]irecting all vendors and contractors that are on site completing work," and "addressing potential hazards." Id. Johnson was Everett's direct supervisor and "was charged with evaluating [Everett's] job performance and recommending termination or other disciplinary actions." Id.

On Wednesday, November 18, 2015, a contractor named William Vereen, nicknamed "Blue," with Top Notch Cleaning Service asked Everett to accompany him to a work site in an apartment in Houston Moore to "look at some damaged floor tiles." Id. ¶ 18. Everett met Blue at the site and walked to an apartment. Id. Once inside, Blue asked Everett if the material underneath some displaced floor tiles contained asbestos. Id. Everett told Blue to ask Johnson, escorted Blue to Johnson's office, and then left to resume other work. Id. ¶¶ 18-19. Johnson called Everett, told him to return to the apartment, and asked "what 'Blue' [was] talking about, if there's asbestos in the floor." Id. ¶ 19. Everett asked if Blue was still in Johnson's office, and Johnson responded "yes." Id. Unbeknownst to Everett, Johnson had put the call on speakerphone, and Blue could hear Everett. Id. Everett responded that he believed the material beneath the floor tiles in the apartment was asbestos. Id. Upon hearing Everett's comment, Blue accused Everett "of knowing the unit had asbestos and failing to tell him." Id.

On Thursday, November 19, 2015, Johnson held a meeting which Scaparro, Everett, and Director of Human Resources Vernice Hamilton ("Hamilton"). Id. ¶ 20. Scaparro said that Everett had told Blue that the material beneath the floor tiles was asbestos. Id. Scaparro expressed concern about the costs of widespread asbestos throughout the Houston Moore property and said "I can't afford every time a move out comes up to have Environmental take up the tile and the contractor put down new tile, I'll go broke. We don't have any money for that." Id. ¶ 21. Scaparro told Everett that he should have told Blue "[h]e didn't know if it was asbestos." Id. ¶¶ 20-21. Everett claimed he initially did not tell Blue that the material was asbestos, referred Blue to Johnson, and stated that the material was asbestos only when he was on the phone with Johnson and Blue. Id. ¶¶ 19-20. Scaparro and Johnson ended the meeting and admonished Everett for not telling Blue that the material beneath the floor tiles contained asbestos when he believed that it did. Id. ¶ 20.

After the meeting, Johnson instructed Everett to assist Eastern Environmental with assessing the composition of the material under the floor tiles in the apartment in question. Id. ¶ 22. Everett complied, but the Housing Authority did not provide him with "even rudimentary protective gear." Id.

On Monday, November 23, 2015, Johnson called Everett to her office for a meeting with herself and Scaparro. Id. ¶ 23. Scaparro told Everett that Everett would be sent home while Scaparro investigated Everett's conduct. Id. At 3:30 p.m. that day, Everett met with Scaparro in Hamilton's office. Id. Scaparro told Everett that Everett's employment was terminated because of "a willful violation of material facts regarding the possibility of asbestos located at Houston Moore." Id. ¶ 24.

Following his termination, Everett sought unemployment benefits. Id. ¶ 27. The North Carolina Employment Security Commission ("ESC") initially denied Everett's request for unemployment benefits after determining that Everett had been fired for "misconduct connected with work." Id. An employee who is discharged for misconduct connected with work is ineligible for unemployment benefits. See N.C. Gen. Stat. § 96-14.6.² During the ESC proceeding, the Housing Authority said that Everett had been "discharged for failing to inform the contractor of the presence of the asbestos." Compl. ¶ 27. Everett appealed the decision, and the ESC's Appeals Referee determined that Everett "reasonably followed [the Housing Authority's] policies as he understood them and performed his job to the best of his ability"; therefore, he had not been discharged for misconduct connected with work and was eligible for unemployment benefits. Id.

On September 13, 2016, Everett filed a complaint in this court against Redmon, Scaparro, and Johnson in their individual and official capacities [D.E. 1]. On November 1, 2016, defendants moved to dismiss Everett's complaint [D.E. 11] and filed a memorandum in support [D.E. 12]. On January 6, 2017, Everett responded in opposition [D.E. 31].

II.

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 684 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 347, 352-53 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must "nudge[ ] [his] claims," Twombly, 550 U.S. at 570, beyond the realm of "mere possibility" into "plausib[ility]." Iqbal, 556 U.S. at 678-79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co., 637 F.3d at 448; see Fed. R. Civ. P. 10(c); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court also may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201(d); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th...