DocketNumber: Civil No. JKB-13-3256
Citation Numbers: 992 F. Supp. 2d 536
Judges: Bredar
Filed Date: 1/16/2014
Status: Precedential
Modified Date: 11/26/2022
Hearl Facey (“Plaintiff’) brought this suit against the Dae Sung Corporation
I. BACKGROUND
Plaintiff is an “old African American male citizen of the U.S. of Jamaican national origin” who has been employed as a building engineer by FTSS JV since June 12, 2008. (ECF No. 2 at ¶¶2, 11.) FTSS JV is a joint venture between Dae Sung, which owns 51% of the equity in FTSS JV, and LB & B, which owns 49% of the equity in FTSS JV. (Id. at ¶¶3, 4.) FTSS JV provides “facility and maintenance services ... at the Centers for Medicare and Medicaid Services headquarters complex in Woodlawn, Maryland.” (Id. at ¶ 5.) Throughout his tenure at FTSS JV, Plaintiff has “performed his job commendably, if not satisfactorily.” (Id. at ¶ 11.)
On Tuesday, February 28, 2012, Dale Morissey, Plaintiffs supervisor, asked him to assist subcontractors who were performing tests on smoke detectors. (Id. at ¶ 12.) During these tests, the subcontractors set off one of the building’s alarm. (Id.) After one of the subcontractors turned the alarm off, James Wack, a project manager with FTSS JV, instructed the subcontractor to set the alarm off again. (Id.) Plaintiff describes Wack as being “White” and of “U.S. national origin.” (Id.)
The February 28 incident led to an investigation that was conducted by Wack and Bill Shriver, FTSS JV’s chief engineer. (Id. at ¶ 13.) On Wednesday February 29, 2012, Plaintiff was called to a meeting with Shriver, Wack, Morissey, and Joseph Single.
Plaintiff filed a grievance with the Union regarding his termination, pursuant to a collective bargaining agreement (“CBA”). (Id. at ¶ 18.) However, Plaintiff alleges that the “Union refused to pursue Plaintiffs grievance against the termination of his employment.” (Id.)
In the weeks and months before his firing, Plaintiff had issues with Lee Best, another FTSS JV engineer who also served as shop steward
On Thursday March 1, 2012 Wack learned that Plaintiff had a second full time job and “concluded this was the reason why [Plaintiff] was not accommodating Mr. Best’s tardiness.” (Id. at ¶ 16.) Plaintiff alleges that Wack and Best “then conspired to use the February 28, 2012 incident as a pretext to terminate [Plaintiffs] employment in order to accommodate Mr. Best and the risk and exposure associated with [Plaintiffs] reporting and claiming overtime for the hours when Mr. Best was late.” (Id.) Plaintiff further alleges that Wack and Best “also conspired to use the February 28, 2012 [sic] as a pretext for termination due to Plaintiffs race and national origin.” (Id.)
On September 27, 2013, Plaintiff filed his complaint with the Circuit Court of Maryland for Baltimore City (“Circuit Court”). (ECF No. 2.) On November 1, Defendants removed the action to this Court. (ECF No. 1.) On November 7, Defendants Dae Sung and LB & B filed the present motion to dismiss Counts Five and Six of Plaintiffs complaint. (ECF No. 11.)
II. LEGAL STANDARD
A motion to dismiss under FED. R. CIV. P. 12(b)(6) is a test of the legal sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). To pass this test, a complaint need only present enough factual content to render its claims “plausible on [their] face” and enable the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
III. ANALYSIS
Defendants Dae Sung and LB & B have moved to dismiss Counts Five and Six of Plaintiffs complaint. (ECF No 11.) The Court will consider each count in turn, beginning with Count Six.
a. Count Six — Violation of 42 U.S.C. § 1986
Plaintiffs claim under 42 U.S.C. § 1986 is untimely. Claims for violations of § 1986 are subject to a one-year statute of limitations. 42 U.S.C. § 1986 (“[N]o action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.”). Here, Plaintiffs claims are based on the termination of his employment, which occurred on March 3, 2012. (ECF No. 2 at ¶ 14.) Plaintiff filed the present action in the Circuit Court on September 27, 2013, more than twelve months after the cause of action accrued. (ECF No. 2.) Therefore, Count Six of Plaintiffs complaint shall be dismissed.
b. Count Five — Violation of 42 U.S.C. § 1985
Plaintiffs have failed to plead sufficient facts to support their § 1985 conspiracy claim against Defendants. In order to state a claim under 42 U.S.C. § 1985(3), which creates a private cause of action against “two or more persons ... [who] conspire ... for the purposes of depriving ... any person ... of the equal protection of the laws, or of equal privileges and immunities under the laws,” 42 U.S.C. § 1985(3), a plaintiff must prove the following:
(1) A conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.
A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir.2011) (quoting Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir.1995)). Here, Plaintiff has failed to allege sufficient facts to render its claim under § 1986 “plausible on its face” and enable the Court to “draw the reasonable inference that the defendants] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In particular, Plaintiff has failed to allege concrete facts to allow the Court to draw the reasonable inference that there was a “conspiracy of
In order prove a section 1985 conspiracy “a claimant must show an agreement or a ‘meeting of the minds’ by defendants to violate the claimant’s constitutional rights.” Simmons, 47 F.3d at 1377. This standard is “relatively stringent.” Id. In fact the Fourth Circuit, under this standard,
has rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a section 1985 conspiracy, such that the claim can withstand a summary judgment motion. Indeed, [the court has] specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.
Id.
Here, Plaintiffs allegation is that “all three Defendants conspired for the purposes of depriving Plaintiff of the equal protection of the laws and of equal privileges and immunities under the laws by terminating Plaintiffs employment and denying Plaintiff grievance.” (ECF No. 2 at ¶42.) The Court will begin its analysis with the Union’s alleged involvement in the conspiracy.
Plaintiff alleges that although he filed a grievance regarding his termination, “the Union refused to pursue” it. (ECF No. 2 at ¶ 18.) In order to support his claim that the Union conspired with the other Defendants, Plaintiff alleges that Best, who in addition to being an employee of FTSS JV was Union’s shop steward, conspired with Wack, the FTSS JV project manager, to “use the February 28, 2012 incident as a pretext to terminate [Plaintiffs] employment.” (Id. at ¶¶ 15, 16, 17.) Although Plaintiff does not make the point explicitly, the Court reads his complaint as alleging that Best, as shop steward, was responsible for the Union’s decision not to pursue Plaintiffs grievance.
Plaintiff further alleges that Wack and Lee acted in concert “in order to accommodate Mr. Best[’s frequent tardiness] and avoid the risk and exposure associated with [Plaintiffs] reporting and claiming overtime for the hours when Mr. Best was late.” (Id. at ¶ 16.) Further, Plaintiff alleges that “Mr. Wack and Mr. Best also conspired to use the February 28, 2012 [sic] as a pretext for termination due to Plaintiffs race and national origin.” (ECF No. 2 at ¶ 16.)
In order to state a § 1985 conspiracy claim, Plaintiff must show that the co-conspirators were each “motivated by a specific class-based, invidiously discriminatory animus.” A Society Without a Name, 655 F.3d at 346. Here, Plaintiff has alleged several specific facts that, taken together, might support his contention that Best and Wack were motivated by a desire to retaliate against Plaintiff for his complaints regarding Best’s tardiness. However, his allegation that Best and Wack were motivated by Plaintiffs “race and national origin” lacks any concrete supporting facts. As a result, the Court finds that Plaintiffs pleadings are insufficient to support his claim that the Union conspired with Defendants Dae Sung and LB & B for the purposes of depriving him of the equal protection of the laws or of equal
This leaves two Defendants—Dae Sung and LB & B. In order to support his claim against Dae Sung and LB & B, Plaintiff states that he was fired from FTSS JV, Defendants Dae Sung and LB & B’s joint venture, for “failing to check if the alarm had been deactivated” on June 12, 2008. (ECF No. 2 at ¶¶ 13, 14.) Second, he states that “other engineers, including Mitchell Perkey, Thomas Slinger, Lee Best and Anthony Lamortina have had incidents where they set off the building alarms by error or inadvertently, and none of them were fired.” (Id. at ¶ 17.) Third, he alleges that these other engineers were given verbal warnings” and that “Plaintiff was the only engineer who was an African-American of Jamaican national origin.” (Id.)
Plaintiff further alleges that (1) the June 12, 2008 incident was investigated by Wack and Shiver, (2) the original decision to give Plaintiff a verbal warning as a result of the incident was made by Shriver, Wack, Morissey, and Single, and (3) subsequently Wack fired Plaintiff after telling him that the “FTSS JV human resource [sic] office” rejected the decision to give Plaintiff a verbal warning. (Id. at ¶¶ 13,14.)
The Court notes that all these individuals, on whom Plaintiff relies to “show an agreement or a meeting of the minds,” Simmons 47 F.3d at 1376, are FTSS JV employees. Under the intracorporate conspiracy doctrine, “acts of corporate agents are acts of the corporation itself, and corporate employees cannot conspire with each other or with the corporation.” ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir.2002). Therefore, the actions of these individuals cannot form the basis for Plaintiffs conspiracy allegation, unless an exception to the intracorporate conspiracy doctrine applies.
There are two exceptions. First, the doctrine is “generally inapplicable “where a coconspirator possesses a personal stake independent of his relationship to the corporation.’ ” Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 353 (4th Cir.2013) (quoting ePlus Tech., 313 F.3d at 179). Second, “a plaintiff may state a conspiracy claim where the agent’s acts were not authorized by the corporation.” Id.
Here, neither exception applies. In Painter’s Mill Grille, LLC, the Fourth Circuit found that neither exception applied in a case where the plaintiff alleged that “the individual defendants were acting at all times as “agent[s], servants] and/or employees[s]’ of the corporate defendants and that the corporate defendants [were] therefore vicariously liable.” Here, Plaintiff is likewise asserting a theory of vicarious liability based on the conduct of FTSS JV employees. Further, plaintiff has not alleged that any individual “possess[ed] a personal stake independent of [their] relationship to” their employer” or that they were acting outside the scope of their employment. ePlus Tech., 313 F.3d at 179. Therefore, the Court finds that the intracorporate conspiracy doctrine applies and that, as a result, Plaintiffs pleading are insufficient to support his claim that Defendants Dae Sung and LB & B conspired for the purposes of depriving him of the equal protection of the laws or of equal privileges and immunities under the law, in violation of § 1985. Therefore, Count Five of Plaintiffs complaint must be dismissed.
IV. Conclusion
Accordingly, an order shall issue GRANTING Defendants Dae Sung and LB & B’s motion to dismiss Counts Five and Six of the complaint (ECF No, 11).
ORDER
In accordance with the foregoing memorandum, it is ORDERED that Defendants
Further, the Clerk is instructed to amend the docket to reflect that the name of the first defendant is Dae Sung, LLC and not Dae Sung Corporation.
. It appears that Plaintiff has made a mistake in the name of the first Defendant. It is Dae Sung, LLC and not Dae Sung Corporation. (ECF No. 1 at 1.) The Court will instruct the Clerk to amend the docket to correct this mistake.
. It appears Plaintiff may have mistakenly named the International Union of Operating Engineers, Local 37 Scholarship Fund, Inc. as a Defendant, intending instead to bring suit against the International Union of Operating Engineers, Local 37. (ECF No. 23 at 3 n. 1.)
. The facts are recited here as alleged by the Plaintiff, this being a motion to dismiss. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997).
. The complaint does not provide any further information on Joseph Single. However, the Court infers that he is also an employee of FTSS JV.
. It is unclear whether the phrase "the engineers” is meant to include Plaintiff.
. Plaintiff does not define the term shop steward. The Court therefore understands Plaintiff to be using the term to refer to: "A union member elected by the employees in a shop, department, or plant to serve as the representative of the union and charged mainly with negotiating adjustments of grievances of employees with the employer usually through the foreman.” Shop Steward, in Webster’s Third New International Dictionary (Philip B. Grove, ed., 1981).
. Plaintiff has conceded this point. Indeed, in his memorandum in opposition to Defendants Dae Sung and LB & B's motion to dismiss, Plaintiff does not present any arguments to counter Defendants Dae Sung and LB & B’s claim that Count Six should be dismissed. (ECF No. 20-1.) Further, Plaintiff's memorandum is styled "Plaintiff’s memorandum in support of Plaintiff's partial opposition to motion to dismiss Counts Five and Six of Plaintiff’s complaint & jury demand.” (Id.) (Emphasis added).
. The Court reiterates that, in fact, Plaintiff has named the International Union of Operating Engineers, Local 37 Scholarship Fund, Inc. as a Defendant rather than the International Union of Operating Engineers, Local 37. However, this apparent mistake is of no moment in adjudicating the present motion to dismiss.