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Pierce v. Office Depot

United States District Court, D. South Carolina, Rock Hill Division

August 21, 2014

Robert M. Pierce, Jr., Plaintiff,
v.
Office Depot, Defendant.

REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

In this employment discrimination case, Robert M. Pierce, Jr. ("Plaintiff") is suing his former employer, Office Depot ("Defendant"). In his amended complaint, Plaintiff alleges (1) violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), (2) breach of employment contract/wrongful discharge, and (3) breach of contract accompanied by a fraudulent act. [Entry #20 at 1, 7-13]. Plaintiff seeks lost wages, actual, liquidated, and punitive damages, attorneys' fees, and costs. Id. at ¶ 66.

This matter comes before the court on Defendant's partial motion to dismiss filed on April 8, 2014, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [Entry #23]. Defendant seeks dismissal of the portions of Plaintiff's ADEA claim concerning alleged adverse employment actions in January 2010 and November 2011, arguing that they are time-barred. Defendant also seeks dismissal of both claims for breach of contract, alleging they fail to state a claim as a matter of law. The motion having been fully briefed [Entry #25, #26], it is ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.). Because the motion to dismiss is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant Defendant's motion.

I. Factual and Procedural Background

Plaintiff alleges he began his employment with Defendant in 1998 and was terminated on August 3, 2012. [Entry #20 at ¶ 10]. He states that he was involuntarily assigned to a new territory in January 2010 ("2010 Reassignment"), id. at ¶ 12, which he claims was an unfavorable territory that had consistently underperformed, id. at ¶ 43.

In November 2011, Plaintiff failed to be promoted to the District Manager position for which he had applied ("November 2011 Failure to Promote"). Id. at ¶¶ 19-20.

In May 2012, Defendant issued Plaintiff a letter of concern that indicated his sales numbers were not within expectations. Id. at ¶ 23.

In June 2012, Plaintiff learned he failed to be promoted to the Vertical Markets Development Manager (VMDM) position for which he had applied ("June 2012 Failure to Promote"). Id. at ¶¶ 24-25.

On July 3, 2012, Plaintiff received a Performance Improvement Process Memorandum ("PIP") dated July 2, 2012, to help him meet Defendant's performance expectations. Id. at ¶ 29; PIP filed as Entry #20-4. Plaintiff claims the PIP altered his at-will status because "the improvement plan is a 60-day process." [Entry #20 at ¶¶ 30-33].

On August 3, 2012, Plaintiff was terminated. Id. at ¶ 34. Plaintiff claims he was terminated in violation of the PIP because he was not allowed the full 60 days to complete the PIP. Id. Defendant's reason for discharging Plaintiff was "lack of performance, " id. at ¶ 35, but Plaintiff claims the given reason was false and is pretext for age discrimination, id. at ¶¶ 35-36.

After his termination, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on April 23, 2013, alleging age discrimination from the earliest date of November 2011 and latest date of August 3, 2012. [Entry #20-2]. Plaintiff did not check the box for "Continuing Action." In the charge, Plaintiff complained of having been denied promotions in November 2011 and June 2012, and of being terminated in August 2012. Id. On September 30, 2013, the EEOC issued a Dismissal and Notice of Rights ("Dismissal"). [Entry #20-3 at 1]. Plaintiff timely filed this action on December 27, 2013. [Entry #1]. In his amended complaint, Plaintiff alleges that the following actions constituted adverse employment actions: (1) 2010 Reassignment, (2) November 2011 Failure to Promote, (3) June 2012 Failure to Promote; and (4) August 2012 Termination. [Entry #20 at ¶¶ 43, 46, 48, and 50].

II. Discussion

A. Standard of Review

Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is "not required to accept as true the legal conclusions set forth in a ...


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