Hamilton v. Duke Energy Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:23-CV-00333-FDW-DCK

WINSTON HAMILTON, )

)

Plaintiff, )

)

v. ) ORDER

)

DUKE ENERGY BUSINESS SERVICES, LLC )

and DUKE ENERGY CORPORATION, )

)

Defendants. )

)

THIS MATTER is before the Court on Defendant’s Motion to Dismiss (Doc. No. 18).

Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court issued a notice (Doc.

No. 21) to Plaintiff, who appears pro se, advising him of the burden he carries in responding to

Defendants’ motion. This matter has been fully briefed, (Doc. Nos. 18, 19, 20, 22, 23), and is

ripe for ruling. For the reasons set forth below, Defendant’s Motion is GRANTED.

I. BACKGROUND

Plaintiff, a Black male, was hired by Defendants1 in January 2005 and, by early 2010,

earned the titled of Engineer III. (Doc. No. 16, p. 1.) In 2011, Plaintiff received an unfavorable

performance evaluation. (Id.) After Plaintiff challenged his review, a director revised Plaintiff’s

review with a higher score and informed Plaintiff if he maintained good performance, he would

be promoted to Lead Engineer. (Id. at 2.) After Plaintiff’s review was revised, Plaintiff met with

Human Resources to express concern “that the evaluation was driven by limiting Plaintiff’s

1 The Parties dispute whether Plaintiff was employed by Defendants and, if so, for what periods. Defendants

submitted a “Declaration of Mark Teague”, the Managing Director, asserting Defendant Duke Energy Business

Services employed Plaintiff from March 2014 to October 2018. (Doc. No. 19-1, p. 2.) Defendants also submitted a

“Declaration of Eddie Anderson”, a Senior Project Director, asserting Plaintiff was employed by Duke Energy

Carolinas LLC from May 2003 to March 2014. (Doc. No. 19-2, p. 2.)

promotional opportunity based on race.” (Id. at 4.) In 2012, Plaintiff also spoke with his

supervisor and a project vice president regarding his “perceived treatment from management and

specific co-workers and that it was based on race.” (Doc. No. 16, p. 4.) Specifically, comments

had been made to Plaintiff that “[he] will never be senior leadership”. (Id. at 5.)

After being told for several years Plaintiff was on track for promotion but not receiving

one, Plaintiff accepted an internal lateral position in 2014. (Id.) In this position, Plaintiff

completed what he thought to be an anonymous survey and provided feedback that “black people

were treated poorly in certain areas”. (Id. at 6.) Thereafter, Plaintiff experienced both supervisory

and non-supervisory personnel making reference to his survey comments. (Id. at 7.)

In 2016, after serving in a lead position for two years, Plaintiff was not evaluated for a

higher-level position that was ultimately awarded to a white male with no previous experience in

the role. (Id.) At some point, the comments from coworkers became personal leading Plaintiff to

believe that his personal, non-work internet activity was being monitored. (Id. at 8.) In 2018,

Plaintiff informed his manager he was frustrated with the personal attacks and lack of promotion

opportunities. (Id. at 9.) Plaintiff threatened legal action if his concerns were not addressed. (Id.)

Two months later, Plaintiff received a promotion. (Id.)

In October 2018, Plaintiff accepted a job with McDermott International. (Id. at 11.)

However, Plaintiff continued to experience discrimination including a lower salary and lack of

promotions. (Id. at 13). Plaintiff believes this continued discrimination was a result of direct

contacts between McDermott International and Defendants through projects they worked on

together. (Id.) Ultimately, Plaintiff was laid off in December 2021 by McDermott International.

(Id. at 16.)

In September 2021, Plaintiff filed suit against McDermott International in the Southern

District of Texas, Case No. 4:21-cv-03097, alleging race, sex, and disability discrimination. The

case against McDermott International has since settled. In December 2021, Plaintiff filed suit

against Duke Energy Business Services in the Southern District of Texas, Case No. 4:21-cv-

04070, alleging race discrimination. On August 8, 2022, the case against Duke Energy Business

Services in Texas was dismissed for improper venue. On June 2, 2023, Plaintiff filed this matter

against Defendants Duke Energy Business Services and Duke Energy Corporation alleging race

discrimination and conspiracy under both federal and state law. (Doc. No. 1.) After obtaining

leave from the Court, Plaintiff filed his First Amended Complaint on August 16, 2023. (Doc. No.

16.) On August 29, 2023, Defendants filed the present Motion to Dismiss. (Doc. No. 18.)

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a motion may be

dismissed for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) inquiry is

limited to determining if the pleader’s allegations constitute “a short and plain statement of the

claim showing the pleader is entitled to relief.” Iqbal, 556 U.S. at 678. To survive a 12(b)(6)

motion to dismiss, Plaintiff’s “complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). Facial plausibility exists only when the factual content allows a court

to draw the “reasonable inference” that the defendant is liable for the misconduct. Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must draw all reasonable factual

inferences in favor of the party asserting the claim. Priority Auto Grp., Inc. v. Ford Motor Co.,

757 F.3d 137, 139 (4th Cir. 2014).

In a Rule 12(b)(6) analysis, the Court must separate facts from legal conclusions, as mere

conclusions are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Importantly,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. However, well-pled factual allegations are entitled to a

presumption of truth, and the court should determine whether the allegations plausibly give rise

to an entitlement to relief. Id. at 679.

“When considering a motion to dismiss involving pro se parties, the court construes the

pleadings liberally to ensure that valid claims do not fail merely for lack of legal specificity.”

Brown v. Charlotte Rentals LLC, No. 3:15-cv-0043-FDW-DCK, 2015 WL 4557368, at *2

(W.D.N.C. July 28, 2015) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). At the

same time, however, the Court should not “assume the role of advocate for the pro se plaintiff.”

Gordon, 574 F.2d at 1151 (quotation omitted).

III. ANALYSIS

A. 42 U.S.C. § 1981

Plaintiff alleges several claims of race discrimination under 42 U.S.C. § 1981. The Court

liberally construes the First Amended Complaint as alleging discrimination and retaliation claims

of hostile work environment, disparate treatment, disparate impact, failure to promote, and

constructive discharge.

Pursuant to 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make and enforce contracts, . . . and to

the full and equal benefit of all laws and proceedings . . . as is enjoyed by white citizens.” 42

U.S.C. § 1981(a). The statute also guarantees equal treatment in “the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). The statute of

limitations governing race discrimination and retaliation claims under 42 U.S.C. § 1981 is four

(4) years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) (holding claims arising

under the 1991 amendments to section 1981 are governed by the four-year federal statute of

limitations set forth in 28 U.S.C. § 1658). A claim accrues when the plaintiff knows, or should

have known, of the actual injury—the adverse employment action. See Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113–14 (2002). Ultimately, Courts will grant a motion to dismiss

based on a statute of limitations defense only if the time bar is apparent on the face of the

complaint. Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017).

Here, Plaintiff was employed by Defendants2 from January 2005 to October 2018. Then,

on June 2, 2023, Plaintiff filed this case against Defendants. The relevant period for purposes of

the statute of limitations starts on June 2, 2019—four years prior to the commencement of this

suit. At the time of filing, Plaintiff had not worked for Defendants in nearly five (5) years.

Because Plaintiff was not employed by either Defendant during the relevant period, there is no

adverse employment action which can constitute a claim under 42 U.S.C. § 1981.

Plaintiff attempts to argue that the statute of limitations period is based on the filing date

for the original complaint filed in the Southern District of Texas case. (Doc. No. 22, p. 2.) The

Court disagrees. The Southern District of Texas case was dismissed for improper venue on

August 8, 2022. Notably, it was not transferred to this Court. Plaintiff refiled his case in this

Court on June 2, 2023, nearly ten months after the prior dismissal and eight months after time

expired on Plaintiff’s race discrimination claims. This matter is before the Court pursuant to

federal question jurisdiction, and Federal Rule of Civil Procedure 41 contains no savings

provision tolling the statute of limitations for a period after an action is dismissed. See Renegar

2 For purposes of analysis, the Court will presume without deciding that Duke Energy and DEBS were employers of

Plaintiff during this period.

v. R.J. Reynolds Tobacco Co., 145 N.C. App. 78, 81 (2001). Additionally, neither the Texas nor

the North Carolina saving statute applies.

North Carolina Rule of Civil Procedure Rule 41(b) provides a mechanism for a court to

extend the statute of limitations by adding a savings clause to a dismissal without prejudice.

Specifically, the rule provides: “If the court specifies that the dismissal of an action commenced

within the time prescribed therefore . . . is without prejudice, it may also specify in its order that

a new action based on the same claim may be commenced within one year or less after such

dismissal.” N.C. R. Civ. P. 41(b). A savings clause is not presumed to have been intended simply

because the court dismissed the action without prejudice. See, e.g., Williams v. Cathy, No. 3:08-

cv-65, 2008 WL 2277544, at *3 (W.D.N.C. June 2, 2008) (“Where a civil action has been

involuntarily dismissed without prejudice, the plaintiff will not be entitled to additional time to

refile where the order did not also specify that he was so entitled.”); Burgess v. Equilink Corp.,

652 F. Supp. 1422, 1426 (W.D.N.C. 1987) (“There is no exception in Rule 41(b) for filing

beyond the limitations period for a plaintiff whose prior action was dismissed by an order and

judgment which did not specify that a subsequent action may be commenced within one year.”).

Instead, the rule provides that if a one-year savings clause is to be provided, it must be specified

in the court's order. N.C. R. Civ. P. 41(b); Lumber Co. v. Barkley, 461 S.E.2d 780, 781–82

(1995) (“The unambiguous language of Rule 41(b) permits the trial court to affirmatively specify

in its order that the action be refiled within a year or less. The 29 June 1992 order contains no

specification whatsoever with regard to the time in which plaintiff may commence a new action

based on the same claim. Accordingly, the applicable statute of limitations is controlling with

regard to the time in which plaintiff was allowed to refile.”).

As an initial matter, only the race discrimination claim against Defendant Duke Energy

Business Services was part of the originally filed Texas case. Plaintiff failed to request, from

either the Southern District of Texas or this Court, a savings clause, and the time to do so is not

in response to Defendants’ Motion to Dismiss. See Topshelf Mgmt., Inc. v. Campbell-Ewald

Co., 203 F.Supp.3d 608, 612 (M.D.N.C. 2016). Ultimately, there are no extraordinary

circumstances beyond Plaintiff’s control which made it impossible to file the claims on time. See

Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (explaining how federal courts have

recognized equitable tolling in two situations: (1) where the plaintiff was prevented from

asserting his claims “by some kind of wrongful conduct on the part of the defendant”; and (2)

where “extraordinary circumstances beyond the [plaintiff's] control made it impossible to file the

claims on time”).

Even if the Court construed Plaintiff’s conspiracy allegations to imply an argument for

use of the integrated employer test, this too would fail. To determine whether an entity “that does

not directly employ the plaintiff may still be considered an employer under” the statute, the

Fourth Circuit has used the “integrated employer” test which sets forth four factors: “(1)

common management; (2) interrelation between operations; (3) centralized control of labor

relations; and (4) degree of common ownership/financial control.” Bittle-Lindsey v. Seegars

Fence Co., Inc., 2022 WL 1566770, at * 2–3 (May 18, 2022) (quoting Hukill v. Auto Care, Inc.,

192 F.3d 437, 442 (4th Cir. 1999). Importantly, aside from Plaintiff stating that Defendants

worked on the Asheville Combined Cycle Power Plant project with McDermott International3,

there is no evidence that the control of McDermott International’s labor operations was

3 The relationship, if any, between Defendants and McDermott International as potentially established through

common work on the above named project may in fact be more attenuated than Plaintiff asserts as the power plant

was “engineered and constructed by Chicago Bridge and Iron Company [ ], an entity which entered into a Business

Combination Agreement, ‘merged’, with McDermott International, Inc. on December 18, 2017.” (Doc. No. 16, p.

11.)

centralized with Defendants or that there was any degree of common ownership. Thus, Plaintiff

cannot accredit any alleged adverse employment action while employed by McDermott

International to Defendants to extend the statute of limitations period for his race discrimination

claims. Accordingly, Plaintiff’s alleged claims under 42 U.S.C. § 1981 are DISMISSED.

B. 18 U.S.C. § 241

Plaintiff alleges a conspiracy under 18 U.S.C. § 241 between Defendants and his

subsequent employer, McDermott International. In support, Plaintiff asserts that there was

“contact between McDermott International and agents of Duke Energy” and “information spread

by [Duke Energy] continued to cause harassment to Plaintiff through his employment at

McDermott International.” (Doc. No. 16, p. 17.)

Under 18 U.S.C. § 241, it is a federal crime for “two or more persons [to] conspire to

injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws of the United States.” Importantly, §

241 is the criminal analogue of 42 U.S.C. § 1983 and “do[es] not give rise to a civil action for

damages.” Cok v. Consentino, 876 F.2d 1, 2 (1st Cir. 1989). Plaintiff's reliance on § 241 fails as

a matter of law because only the United States as prosecutor can bring a complaint under that

section. Id.; see also Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (“[D]ismissal of

[plaintiff's] claims . . . alleging violations of [Section 241 and other statutes] was proper because

these are criminal statutes that do not provide for a private right of action and are thus not

enforceable through a civil action.”); Tribble v. Reedy, 888 F.2d 1387 (4th Cir. 1989) (table)

(affirming dismissal of civil action “alleg[ing] violations of 18 U.S.C. §§ 241, 1341 and 1343 . . .

[because u]nless there is a clear Congressional intent to provide a civil remedy, a plaintiff cannot

recover civil damages for an alleged violation of a criminal statute”).

Even if the Court liberally construes the Complaint as raising a properly pled conspiracy

claim pursuant to § 1983, Plaintiff has still failed to state a claim upon which relief can be

granted. To state a claim under § 1983, a plaintiff must allege that he was “deprived of a right

secured by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50

(1999). The color of law requirement “excludes from its reach merely private conduct, no matter

how discriminatory or wrongful.” Id. Plaintiff does not allege that his rights secured by the

constitution and laws of the United States were violated by any state actor. See Thomas v. The

Salvation Army So. Terr., 841 F.3d 632 (4th Cir. 2016) (affirming dismissal in favor of

defendants, three private charities, because plaintiff did not allege any facts to remotely suggest

that their actions were attributable to the state). Therefore, any attempt to rely on § 1983 is

unavailing. Accordingly, Plaintiff’s alleged claims under 18 U.S.C. § 241 and 42 U.S.C. § 1983

are DISMISSED.

C. North Carolina General Statute § 99D-1

In the absence of Plaintiff’s claims dismissed by the Court, the state claim under Section

99D-1 is clearly insufficient to support federal diversity jurisdiction. As such, in the exercise of

its discretion, the Court declines to retain jurisdiction over this case.

The Fourth Circuit in Shanaghan v. Cahill discussed when it may be appropriate to

dismiss state law claims when the federal basis for an action drops away. Id. at 109–12. The

court may consider: “(1) the convenience and fairness to both parties; (2) judicial economy; (3)

whether the amount claimed in the complaint was made in good faith or whether plaintiff was

“consciously relying on flimsy grounds” to get into federal court; (4) whether plaintiff would be

prejudiced from dismissal of the action, such as the existence of a statute of limitations bar; (5)

the amount of time and energy already expanded; (6) existence of an issue of state law best

resolved in state court; and (7) other case-by-case considerations.” See id. at 112-13; see also

Piedmont Roofing Services, LLC v. Nationwide Mutual Ins. Co., No. 5:22-CV-00145, 2023 WL

1466613, at *2 (W.D.N.C. Feb. 2, 2023).

In consideration of these factors, the Court will exercise its discretion to dismiss

Plaintiff's claim without prejudice. Although complete diversity of citizenship exists,*+ Plaintiff

did not plead any facts related to the amount in controversy. Thus, the Court lacks diversity

jurisdiction. Additionally, there is no added convenience to the parties by litigating in federal

court. Plaintiff's claim of civil conspiracy, governed by North Carolina state law, is better

resolved at the state court level. Plaintiff will not be prejudiced by dismissal of this action.

Finally, the parties’ time and efforts will not be wasted due to the early juncture of this matter.

Accordingly, the Court declines to retain jurisdiction over this matter and Plaintiffs state law

claim is DISMISSED WITHOUT PREJUDICE.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, (Doc. No. 18), is

GRANTED.

IT IS SO ORDERED.

Frank D. Whitney

United States District Judge * ey

4 Plaintiff’s domicile is in Texas. (Doc. No. 16, p. 1.) Both Defendants have their principle place of business in

North Carolina. (Doc. No. 16, p. 2.)

10