Petition for Writ of Certiorari — Nancy Massenburg, Petitioner v. Innovative Talent Solutions, Inc., et al.

•

VI 1.1

No.

Nancy D-Massenburg

Petitioner

v.

Innovative Talent Solutions, Inc.

Respondent

Lee Air Conditioners, Inc.

Respondent

Nancy D-Massenburg, Appellant Pro Se.; Katie Weaver

Hartzog, Katherine Marie Barber-Jones, HARTZOG LAW

GROUP, Cary, North Carolina; Dieter Mauch, HEDRICK

MURRAY BRYSON KENNETT & MAUCH, PLLC, Durham,

North Carolina, Appellees.

INTRODUCTION TO APPENDIX

Because supoena's for discovery information were not

enforced (District Court DE 117, 117-1 Motion to Compel),

extension of time for dispositive motion denied (DE 110 and

exhibits); FRCP 26 (b)(1), Patten v Hall, No. 5:15-CT-3118-FL,

2017 WL 6062258, at*4 (E.D.N.C. Dec 7, 2017) and Massenburg

was not allowed by one of the clerks of the United States District

Court for the Eastern District of NC to file my Rule 56 Affidavit

"un-notarized" (App. 8 pg 88-95) and have a Notice of Deficiency

issued to make the correction, the district court granted ITS'

(Th

Summary Judgement and disregarded "evidence" which presented

genuine issues of material facts with "each" of Lee and ITS'

defensive reasons which also raised the disparate treatment issue

and proved each defense to be false. See: Notice to Counsel

regarding: DE 150 and Notice of Deficiency regarding ITS: DE

101.

My Petition for Writ of Certiorari points this court to

. genuine issues of evidentiary and material facts and ITS' practice of

disqualifying formerly convicted, qualified minority applicants

during the registration process on sight of any conviction, which

removes the opportunity for any conditional offer of employment

to made. All of which were identified in my District Court DE 122

and 123-Opposition to ITS Motion for Summary Judgement.

The Fourth Circuit Court of Appeals affirmed and

erroneously found that facts and legal contentions were adequately

presented in the materials before the court and argument would not

aid the decisional process. See: App 3, Massenburg v. Innovative

Talent Sols., Inc., 2019 U.S. Dist. LEXIS 17298 (E.D.N.C., Feb. 4,

2019-).

The Fourth Circuit Court of Appeals also found claims

against Lee Air to be time-barred with no consideration given to

the ITS strategically created technicality of withholding identity of

Lee Air at the EEOC stage from January 2015 thru October 2016

(DC/DE 35-1,2,3), identity also sought in lower court early on

pursuant to Fed. R. Civ. P. 26(a)(1)(A) prior to discovery, (DE 10).

Neither court applied the identity of interest test previously applied

by the Fourth Circuit in Olvera-Morales v. Ina Labor Mgmt.

Corp., No. 1:05CV00559, 2008 WL 939180, at *1-2 (M.D.N.C.

Apr.4,2008) to determine if Lee's interest was represented by ITS

during the EEOC stage. DE 114-3 page 7 (Defendants Service

Agreement).

Index to Appendix

US Court of Appeals for the Fourth Circuit-DE 36,

Order on Petition for Hearing En Banc, Feb 25,

2020

APP. 1 (pgs 1-2)

US Court of Appeals for the Fourth Circuit-DE 30-1

Pet. for Rehearing En Banc,

Oct. 22, 2019

APP. 2 (pgs. 3-30)

US Court of Appeals for the Fourth Circuit-DE 28,

Opinion, Oct. 8,2019

APP. 3 (pgs. 31-33)

United States District Court for the Eastern District of NC-DE 176,

Order, Feb.4, 2019

APP. 4 (pgs. 34-64)

United States District Court for the Eastern District of NC, DE

177, Judgement, Feb. 4,

2019

APP. 5 (pg 65)

US District Court for the Eastern District of NC, DE 125,

Magistrate's order, May 15, 2019

APP. 6

(pg. 66-86)

EEOC Guidance 915.002-Discriminatory Assignment

Practices @ Allocation of Remedies

App.7 (pg

87)

Massenburg's rejected Affidavit for Opposition to ITS, Inc.

Motion for Summary Judgement

App. 8 (pg

88-95)

APP. 1

-1USCA4 Appeal: 19-1192 Doc: 36 Filed: 02/25/2020 Pg: 1

of 2-FILED: February 25, 2020-UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

No. 19-1192 (5:16-cv-00957-D)

NANCY MASSENBURG

Plaintiff - Appellant

v.

INNOVATIVE TALENT SOLUTIONS, INC.; LEE

AIR CONDITIONERS, INC.

Defendants - Appellees

and

ASHLEY HUNT, d/b/a Innovative Talent

Solutions; UNNAMED CLIENT

DISCRIMINATORY HIRING POLICY,

enforced for, by Ashley; KIM KORANDO, ITS,

Inc. legal representation

Defendants

APP. 1

-2ORDER

The court denies the petition for rehearing

and rehearing en Banc. No judge requested a poll

under Fed. R. App. P. 35 on the petition for

rehearing en bane.

Entered at the direction of the panel:

Judge Wilkinson, Judge Quattlebaum, and

Senior Judge Shedd.

For the Court

/s/ Patricia S. Connor, Clerk

Case 5:16-cv-00957-D Document 184 Filed 02/25/20 Page 1

of 2

App. 3

-31USCA4 Appeal: 19-1192 Doc: 28 Filed: 10/08/2019 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1192

NANCY MASSENBURG,

Plaintiff - Appellant,

v.

INNOVATIVE TALENT SOLUTIONS, INC.; LEE AIR

CONDITIONERS, INC.,

Defendants - Appellees,

and

ASHLEY HUNT, d/b/a Innovative Talent Solutions; UNNAMED

CLIENT DISCRIMINATORY HIRING POLICY, enforced for, by

Ashley; KIM KORANDO, ITS, Inc. legal representation,

Defendants.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever III, District

Judge. (5 :16-cv-00957-D)

Submitted: September 26, 2019 Decided: October 8, 2019

App. 3

-32Before WILKINSON and QUATTLEBAUM, Circuit Judges, and

SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Nancy Massenburg, Appellant Pro Se. Katherine Marie BarberJones, HARTZOG LAW GROUP, Cary, North Carolina; Katie

Weaver Hartzog, Katie Terry Jefferson, CRANFILL, SUMNER &

HARTZOG, LLP, Raleigh, North Carolina; Dieter Mauch,

HEDRICK MURRAY BRYSON KENNETT & MAUCH, PLLC,

Durham, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Nancy Massenburg appeals the district court's order granting

Innovative Talent Solutions, Inc.'s ("ITS") motion for summary

judgment, granting Lee Air Conditioners, Inc.'s ("Lee Air")

motion to dismiss, granting in part ITS's motion to strike

Massenburg's second amended complaint, dismissing as moot

Massenburg's motion to compel, striking Massenburg's

supplemental claims, dismissing as moot Defendants' remaining

motions, and denying Massenburg's remaining motions. We have

reviewed the record and find no reversible error. Accordingly, we

affirm for the reasons stated by the district court.

Massenburg v. Innovative Talent Sols., Inc., No. 5:16-cv-00957-D

(E.D.N.C. Feb. 4, 2019).* We dispense with oral argument

because the facts and legal contentions are adequately presented in

App 3

-33the materials before this court and argument would not aid the

decisional process.

AFFIRMED

* The fact that Massenburg filed her Equal Employment

Opportunity Commission charge against Lee Air after she added

Lee Air as a Defendant in the civil action was not a sufficient

ground on which to dismiss the discrimination claim brought

against Lee Air pursuant to Title VII of the Civil Rights Act of

1964 (Title VII), as amended, 42 U.S.C.A. §§ 2000e to 2000e-17

(West 2012 & Supp. 2018). See Henderson v. E. Freight Ways,

Inc., 460 F.2d 258, 260 (4th Cir. 1972) (providing that, when rightto-sue letter is issued prior to dismissal of case, it "validate[s] the

pending action"). However, we conclude that any error was

harmless because Massenburg's Title VII claim against Lee Air is

time-barred. See 42 U.S.C.A. § 2000e-5(e)(1).

Case 5:16-cv-00957-D Document 181 Filed 10/08/19

(Th

App. 4

-34IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF NORTH CAROLINA WESTERN

DIVISION

Case 5:16-cv-00957-D Document 176 Filed 02/04/19

ORDER

On February 2, 2017, Nancy Massenburg

("Massenburg" or "plaintiff), proceeding prose and in

forma pauperis, filed a complaint against Ashley Hunt,

d/b/a Innovative Talent Solutions, Inc. ("ITS") and an

unnamed client of ITS for whom a discriminatory hiring

policy was enforced ("Unnamed Client"), seeking relief

under Title VII of the Civil Rights-Act of 1964 ("Title

VII"), as amended, 42 U.S.C. § 2000e et [D.E. 7]. On

May 3, 2017, Massenburg filed a first amended

complaint against Ashley Hunt ("Hunt"), Kimberly

Korando ("Korando"), and the Unnamed Client [D.E.

33].1 On May 30, 2018, while her motion for leave to file

a second amended complaint was pending [D.E. 97],

Massenburg filed a second amended complaint that

replaced the Unnamed Client with Lee Air Conditioners,

Inc. ("Lee Air"; with ITS, "defendants") as a defendant and

alleged new claims against ITS [D.E. 128].

On April 20, 2018, ITS moved for summary

judgment [D.E. 112], filed a statement of material facts

[D.E. 113], and filed a memorandum in support [D.E.

115]. On May 14, 2018,

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 1 of 26

App. 4

-35I On August 2, 2017, this court dismissed

Massenburg's

claims against Hunt and Korando with

prejudice [D.E. 64]. Massenburg responded in opposition

[D.E. 122], filed an opposing statement of material facts

[D.E.123], and filed other supporting documents [D.E. 124].

On June 14, 2018, ITS moved to strike Massenburg' s second

amended complaint [D.E. 134], and ITS filed a memorandum

in support [D.E. 135]. On June 19, 2018, Massenburg

responded in opposition [D.E. 137]. On July 3, 2018, ITS

replied [D.E. 145]. On July 27, 2018, Lee Air moved to

dismiss Massenburg's second amended complaint for lack of

subject-matter jurisdiction and for failure to state a claim upon

which relief can be granted [D.E. 154]. On August 20, 2018,

Massenburg responded in opposition [D.E. 161]. On

September 4, 2018, Lee Air replied [D.E. 165]. Finally, on

April 18, 2018, Massenburg moved to extend the deadline for

dispositive motions established in this court's scheduling order

of November 6, 2017 [D.E. 110]. On May 8, 2018, ITS

responded in opposition [D.E. 121].

As explained below, the court grants ITS's motion

for summary judgment, grants ITS's motion to strike, and

grants Lee Air's motion to dismiss. The court denies

Massenburg' s motion for leave to file a second amended

complaint, denies Massenburg's motion to file a sur-reply,

denies Massenburg's motion to amend the scheduling order,

and dismisses as moot Massenburg's motion for a protective

order and order to compel. Finally, the court strikes

Massenburg' s latest filing [D.E•171] and dismisses as moot

defendants' motion to strike.

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 2 of 26

App 4

-3 6I.

ITS is an employment agency that Hunt owns and

operates. See [D.E. 113] 1 1; Hunt Aff. [D.E. 114-3] 12. As

part of an initial screening process for candidates, ITS

requires applicants to complete an online application.See

[D.E. 113] 11 2-3. ITS provides all candidates with a

notification and release form that outlines ITS's policies on

background checks. See id. 14. ITS does not conduct a

background check on any candidate until a client extends a

conditional job offer to that candidate and the candidate has

accepted it. See id.16; Hunt Aff. [D.E. 114-3]14. No ITSsponsored candidate has been disqualified from an accepted offer

because of full disclosure of the candidates criminal history. Les.

[D.E. 1 1 3], 7; [D.E. 114-2] 3. LeeAir contracted with ITS to obtain

referrals for qual ifi ed candidates for employment with • Lee Air. See

[D.E. 113], 11; Hunt Aff. [D.E. 114-3], 3. In 2014, Lee Air

requested candidates for a dispatcherposition and asked that the

candidate have atleastoneyearofdispatcherexperience,

preferably in the HVAC industry. See [D.E. 113],12; Hunt Aff.

[D.E. 114-3], 5. ITS identified onehighlyqualifiedcandidate,

AngelaV.,who had twoyears ofdispatcherexperiencein theHVAC

industry. Sgs [D.E. 113]„ 13-15. ITS identified two other qualified

candidates who met LeeAir's requirements. See id. 16. One of these

candidates, Natasha H., was an African-Americanwoman.

See i,d. 17; Hunt Aff. [D.E. 114-3, 7. At the time, ITS did not

intend to refer any other candidates for the position to Lee Air. Les.

[D.E. 113],19. Ultimately, Lee Air hired Angela V. See id, 20.

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 3 of 26

App 4

-37On October9,2014,beforeLeeAirhiredAngelaV.,an ITS recruiter

named KatherineWhite ("White") contacted Massenburg after

finding Massenbuig's resume online. See id , 21. Massenburg

alleges that White told Massenburg that it was difficult to find a

candidate with dispatcher experience. See id., 22; cf. [D.E. 123] ,

22. White encouraged Massenburg to apply for the Lee Air

position and informed herthat Lee Airwould wanttoconduct a

background check. See [D.E. 113] „ 23, 26. White stated that

the background check would extend for seven years, and

Massenburg indicated that the check would not rai se any issues.

See id.,24. White did notprovide ITS or Hunt with Massenburg'

s resume. See id. , 27.

On October 10, 2014, Massenburg applied online to ITS. See

is:1,28. In her application, Massenburg admitted that she had been

convicted ofassault ofa government official in 1997. See id.Ff29-30.

Later that day, Hunt called Massenburg to tell her n ot to come in for the

interview that White had scheduled because ITS had already identi fled

all the candidatesthatITS intendedtorefer to Lee Air. See id.1131-32.

ITS claims that Hunt did so to save Massenburg time and effort. See

id. Massenburg, however, claims that Hunt told her that Lee Air

would not hire anyone with a conviction. See id. 133; [D.E. 123]

133; [D.E. 114-1] 47-48. Massenburg did not attend the

interview that White scheduled. Leg [D.E. 114-2] 14. Lee Air does

not disqualify candidates with convictions, and Lee Air has hired at

least one candidate with a criminal history. See [D.E. 113]134; Hunt

Aff. [D.E. 114-3] 1 14.

2

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 2 of 26

App 4

-38According to ITS, Hunt bel i eyed thattheotherthree candidates

were m ore qualified than Massenburg forthe Lee Air job. Les [D.E.

113] 140; Hunt Aff. [D.E. 114-3] 111. Unlike Angela V.,

Massenburg lacked dispatcher experience in the HVAC industry and

lacked recent dispatcher experience in any industry. See [D.E. 113] 1

40. Massenburg did not include her dispatcher experience with

Cardinal Cab Company in her application, and she did not submit

her resume to ITS. See id. 1136--39.Massenburg alleges that

two candidates that ITS referred to Lee Air also lacked

dispatcher experience in the HVAC industry. See [D.E. 123] 1 40.

Massenburg believes that she has been turned down for many other

jobs because ofher criminal record, which also includes a conviction

for common law robbery. See [D.E. 113] 1141-42; [D.E. 123] 141.

ITS contends that it does not have a "total exclusionary

requirement" for applicants with criminal histories and that it does

not have any clients, including Lee Air, that would disqualify a

candidate solely because of criminal history. [D.E. 113]118-9(alteration

omitted). ITS also claims that itsclients, includingLeeAir,evaluatea

candidatewithacriminalhistoryholistically. See [D.E.113] 110.

Massenburg responds that ITS's statements are "mere smoke and

mirrors." [D.E. 123] 8,10

II.

Summary judgment is appropriate when, after reviewing the

record as a whole, the court determines that no genuine issue of

material fact exists and the moving party is entitled to judgment

as a matter oflaw. Fed. R. Civ. P. 56(a); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking

summary judgment must initially demonstrate the absence of a

genuine issue of material fact or the absence of evidence to

support the nonmoving party's case. Celotex Corp. v. Catrett,

477 U.S. 317, 325(1986).

4

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 4 of 26

App 4

-39Once the moving party has met its burden, the nonmoving

party may not rest on the allegations or denials in its pleading,

Anderson., 477 U.S. at 248-49, but "must come forward with

specific facts showing that there is a genuine issue for trial.".

Matsushita Elec. Indus. Co. v. Zenith Radio Corp..,

475. u.s. 574, 587 (1986) (emphasis and quotation omitted). A

trial court reviewing a motion for summary judgment should

determine whether a genuine issue of material fact exists for trial.

Anderson. 477 U.S. at 249. In making this determination, the

court must view the evidence and the inferences drawn therefrom

in the light most favorable to the nonmoving party. Scott v.

Harris. 550 U.S. 372, 378 (2007).

A genuine issue ofmaterial fact exists if there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party. Anderson: 477 U.S. at 249. "The mere

existence of a scintillaofevidence in support ofplaintiffs

position [is] insufficient" Id. at 252.; see Beale v. Hardy. 769

F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party, however,

cannot create a genuine issue of material fact through mere

speculation ok the building of one inference upon another.").

Only factual disputes that affect the outcome under substantive

law properly preclude summary judgment. See Anderson., 477

U.S. at 248.

A.

In relevant part, Title VII of the Civil Rights Act of

1964 makes it unlawful for an employer to refuse to hire, or

otherwise to discriminate against, any individual with respect

to that individual's "compensation, terms, conditions, or

privileges of employment, because of such individual's race."

5

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 5 of 26 •

App 4

-4042 U.S.C. §1000e-2(a)(1). An employer also cannot "limit,

segregate, or classify his ... applicants for employment in any

way which would deprive [that individual] of employment

opportunities . . . because of such individual's race." 42 U.S.C. §

2000e-2(a)(2). A Title VII plaintiff can prove discrimination

tqat violates 42 U.S'.C. § 2000e-2(a) in two ways: disparate

treatment and disparate impact. See EEOC v. Abercrombie &

Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015); Abeles v.

Metro. Wash. Aft:ports Auth., 676 F. App'x 170,174 (4th Cir.

2017) (unpublished). A "disparate treatment claim requires

proof of discriminatory motive," while a "disparate impact

claim" does not. Abdus-Shahid v. Mayor & Cizy Council

ofBalt.. 674 F. App'x 267, 274 (4th Cir. 2017) (per curiam)

(unpublished). Construing Massenburg's pro se complaint

liberally, Massenburg alleges a Title Vii discrimination claim

under both theories. In Griggs v. Duke Power Co., 401 U.S.. 424

(1971), the United States Supreme Courtfirst recognized

disparate impact liability p.nderTitleV11. See Ricci v.

DeStefano. 557U.S. 557, 577-78 (2009). In 1991, Congress

codified the holding of Griggs in 42 U.S.C. § 2000e2(k)(l)(A)(i). See id. at 578. To prove a disparate impact claim, a

Title VII plaintiff must first show "that an employer uses a

particular employment practice that causes a disparate impact

on the basis of race, color, religion, sex, ornational origin." Id..

see 42 U. S. C. § 2000e-2(k)(1)(A)(i). in other words, a plaintiff

must first identify a particular employment practice that, although

facially neutral, causes a disparate impact on a protected group.

See Connecticut v. Teal., 457 U.S. 440, 446 (1982); Anderson

v. Westinghouse Savannah River Co., 406 F.3d 248, 265 (4th Cir.

2005); Walls v. Cizy of Petersburg. 895 F.2d 188, 191 (4th Cir.

1990); Rocha v. Coastal Carolina Neuropsychiatric Crisis Servs.,

P.A., 979 F. Supp. 2d 670, 681 (E.D.N.C. 2013). A plaintiff

can use statistical evidence to meet this burden.

12

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 12 of 26

App 4

-41See Anderson, 406 F.3d at 265; Walls, 895 F.2d at 191. If a

plaintiff establishes a prima facie case, an employer can

respond by demonstrating "that the challenged practice is job

related ... and consistent with business necessity." 42 U.S.C. §

2000e-2(k)(1)(A)(i); see Ricci., 557 U.S. at 578; N.A.A.C.P. v.

N. Hudson Reel Fire & Rescue. 665 F.3d 464, 476-77 (3d Cir.

2011); Anderson. 406 F.3d at 265. Even if an employer rebuts

the plaintiffs prima facie case, "a plaintiff may still succeed by

showing that the employer refuses to adopt an available

alternative employment practice that has less disparate impact

and serves the employer's legitimate needs." Ricci., 557 at 578.

In that situation, the plaintiff will have shown that the

employer's alleged business necessity is "mere pretext for

discrimination." Teal. 457 U.S. at 447; Anderson. 406 F.3d at

265.

As for Massenburg's prima facie case, Massenburg must

identify a specific employment practice that caused a disparate

impact to a protected class. Massenburg, however, fails to

identify a particular employment practice concerning

candidates' criminal history. See [D.E. 122] 3-11.

Indeed, Massenburg concedes that she lacks evidence of

ITS's policies. See id. at 3-4. Instead, Massenburg merely

alleges that, on October 10, 2014, Hunt informed her that Lee Air

did not "want anyone with prior convictions." I. at 6. ITS

disputes that it or Lee Air ever had such a policy and asserts that

Lee Air hired at least one person with a conviction, a fact that

Massenburg does not dispute. Les [D.E. 113] ,r34; [D.E. 123],r

34. Furthermore, Hunt denied making this statement to

Massenburg. She [D.E. 114-3] fl 13-15. In any event, even if

Hunt made this statement, the statement concerns Lee Air's

alleged policy, not ITS's policy. Massenburg has not

presented admissible evidence that ITS had an employment

13

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 12 of 26

App 4

-42policy concerning candidates with convictions. See RoclYb 979

F. Supp. 2d at 681. Viewing the evidence in the light most

favorable to Massenburg, no rational jury could find that ITS had a

particular employment practice concerning candidates with

convictions. Thus, Massenburg' s disparate impact claim fails.

See42 U.S.C.§2000e-2000e-2(k); McNaim v. Sullivan., 929

F.2d 974, 979 (4th Cir. 1991); Walls„ 895 F.2d at 191; cf.

Holder v. City of aleigh, 867 F.2d 823,826 (4th Cir. 1989).

Alternatively, even if Massenburg could identify a

particular employment practice of ITS, Massenburg cannot

establish that this employment practice caused disparate impact

on a protected class. A Title VII plaintiff asserting a disparate

impact must show that the identified employment policy causes a

disparate impact injurious to a protected class. See 42 U.S.C. §

2000e-2(k)(l)(A)(i); Lewis v. City of Chi., 560 U.S. 205, 213

(2010). Generally, a disparate impact plaintiff must

"demonstrate that it is the application of a specific or particular

employment practice thathas created the disparate impact under

attack." Wards Cove., 490 U.S. at 657. Massenburg has failed to

present evidence of causation. agg [D.E. 123] 7-11.

Accordingly, Massenburg has failed to establish a prima facie

disparate impact claim under Title VII. See Lewis, 560 U.S. at

2i3; cf. Reyes v. Waples Mobile Home Park Ltd. P'ship. 903

F.3d 415, 425-29 (4th Cir. 2018).

Alternatively, "when a plaintiff has made out a prima

facie case of disparate impact," the burden shifts to the

defendant to "produc[e] evidence that its employment practices

are based on legitimate business reasons" related to the job in

question. Watson v. Fort Worth Barik:& Trust, 487 U.S. 977, 998

(1988); see Albemarle Paper Co. v. Moody., 422 U.S. 405, 425

(1975); Griggs. 401 U.S. at432; Hardie v. Nat'l Collegate

14

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 12 of 26

App 4

-43Athletic Ass'n, 876 F.3d 31.2, 319-20 (9th Cir. 2017). If

the defendant does so,-'the plaintiff must show that other policies

could similarly serve the employer's legitimate business

interests without causing the adverse disparate impact on the

protected class. See Watson., 487 U.S. at 998.

ITS argues that it inquires into criminal history on its online

application because it could face liability under North Carolina

law for negligent hiring if it failed to conduct a reasonable

investigation into the background of candidates. Les [D.E. 115]

10. In North Carolina, a negligent hiring claim requires actual

or constructive notice of the employee's "unfitness or bad

habits." Medlin v. Bass, 327 N.C. 587, 590-91, 398 S.E.2d

460, 462 (1990); Taft v. Brinley's Grading Servs., Inc.,

225N.C. App. 502,516, 738 S.E.2d 741, 750 (2013). ITS's

explanation is a legitimate business reason to inquire into an

applicant's criminal history in its online application. Thus, even

if Massenburg established a prima facie disparate impact claim,

ITS has advanced a legitimate business explanation, and

Massenburg has not rebutted ITS's business explanation. See

Watson. 487 U.S. at 998; Moody. 422 U.S. at 425. Accordingly,

the court grants ITS's motion for summary judgment on

Massenburg's Title VII disparate impact claim.

B.

Construing Massenburg's prose complaint liberally,

Massenburg also asserts a disparate treatment claim under Title

VII.2 Title VII prohibits employers from refusing to hire any

person because oftheir race. See42U.S.C. §2000e-2(a)(1). A

plaintiff may establish a Title VII violation in two ways. First,

a plaintiff may demonstrate through direct evidence that illegal

discrimination motivated an employees' diverse employment

15

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 12 of 26

App 4

-44action framework established in McDonnell Douglas Com. v.

Green, 411 U.S. 792 (1973). See Hill v. Lockheed Martin

Logistics Mgmt.., Inc.., 354 F.3d 277, 284--85 (4th Cir. 2004) (en

bane), abrogated on other grounds by Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 570 U.S. 338 (2013): Hunter-Rainevv. N.C.

State Univ.,No. 5:17-CV-46-D,2018 WL 1092963, at *1

(E.D.N.C. Feb. 28, 2018) (unpublished), affd, 774 F. App'x 801

(4th Cir. 2018) (per curiam) (unpublished). Massenburg lacks

direct evidence of racial discrimination and proceeds under

the McDonnell-Douglas framework. To establish a prima facie

case of discrimination in hiring, a plaintiff must show that (1) the

plaintiff is a member of a protected class, (2)the plaintiff applied

and was qualified for the position in question, (3) despite her

qualifications, the plaintiff was rejected, and (4) after her

rejection, the position remained open or was filled in a manner

giving rise to an inference of discrimination. See EEOC v. Sears

,Roebuck & Co., 243 F.3d 846, 851 (4th Cir. 2001); Brown v.

Mcl&ml, 159 F.3d 898,902 (4th Cir. 1998); Hunter-Rainev.

2018 WL 1092963, at *2.

2 To the extent

that Massenburg also asserts a disparate treatment

claim under 42 U.S.C. § 1981, the ":framework of proof for disparate

treatment claims ... is the same for actions brought under Title VII, or

[section] 1981, or both statutes." Mallory v. Booth Refrigeration Sum.lv

x,882 F.2d 908,910 (4th Cir. 1989).

If the plaintiff establishes a prima facie case, the burden

shifts to the defendant to produce evidence that the adverse

employment action was "fora legitimate, nondiscriminatory

reason." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248,254 (1981). This burden is one of production, not

persuasion. See St. Mary's Honor Ctr. v. Hicks., 509 U.S. 502,

509-11 (1993). If the defendant offers admissible evidence

16

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(Th

App 4

-45sufficient to meet its burden of production, "the burden shifts back

to the iplaintiff to prove by a preponderance of the evidence that

the [defendant's] stated reasons were not its true reasons, but

were a pretext for discrimination." Hill. 354 F.3d at 285

(quotation omitted); see. Reevesv.SandersonPlurabine

Prods..lxic.,530U.S.133, 143 (2000);)3ursline,450U.S. at 256;

Kiag v. Rumsfield, 328 F.3d 145, 150-54 (4th Cir. 2003).

A plaintiff can prove pretext by showing that the

alleged "nondiscriminatory" explanation is unworthy of

credence or by offering other forms of circumstantial

evidence sufficiently probative of [race] discrimination."

Mereish v. Walker, 359 F.3d330, 336 (4th Cir. 2004) (quotation

omitted); see Reeves., 530 U.S. at 147. In analyzing the

record concerning pretext, the court does not sit to decide

whether the employer in fact discriminated against the

plaintiff. See: Holland v. Washington Homes, Inc.., 487F.3d

208, 215-17 (4th Cir. 2007); Hawkins v. PepsiCo., Inc.., 203

F.3d 274, 279-80 (4th Cir. 2000). Rather, the court focuses on

whether the plaintiff has raised a genuine issue of material

fact as to pretext within the meaning of Reeves and its

Fourth Circuit progeny.

An employer is entitled to summary judgment on the issue of

pretext if the employee "create[s] only a weak issue of fact as to

whether the employer's reason [is] untrue and there [is,.abundant

and uncontroverted independent evid ence that " the alleged illegal

discrimination didnot occur. Reeves. 530 U.S. at 148. Moreover,

aplaintiffs own assertions ofdiscrimination in and of themselves

are insufficient to counter substantial evidence of legitimate,

nondiscriminatory reasons foradverse employment action. ap_e_

Dockinsv. BenchmarkCommc'ns,176F.3d 745, 749(4thCir.)

1999); lskander v. Dent of the Navy., 116 F. Supp. 3d 669, 678-79

(E.D.N.C. 2015), affd, 625 F. App'x. 211 (4th Cir. 2015) (per

curiam) (unpublished). In hiring an employee or choosing

candidates to interview, an employer can lawfully select more qualified

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-46candidates. See Hux v. City of Ne:wort News., 451 F.3d 311, 317-18

(4th Cir. 2006).

As for Massenburg's prima facie case, Massenburg is a

member of a protected class under Title VII, and the court assumes

without deciding that Massenburg applied for the position with Lee

Air. Nonetheless, Massenburg has not established that she was

qualified for the position. Lee Air required one year of dispatcher

experience in any industry. See [D.E. 113] ,r 12; [D.E. 114-3] ,r 5.

Although Massenburg claims that White reviewed Massenburg' s

resume that listed dispatcher experience, see. '[D.E. 113],r22,

Massenburg did not include that experience on her application to

ITS. See [D.E. 113],r,r 35-39; Ex. 7 [D.E. 114-3] 16-19.

Accordingly, no rational juror could conclude that ITS knew that

Massenburg met the minimum qualifications of the position with

Lee Air when ITS decided not to refer her to Lee Air. Therefore,

viewing the evidence in the light most favorable to Massenburg, no

rational juror could find that Massenburg was qualified for the

position.

Alternatively, even assuming that Massenburg meets the

first three elements of her prima facie case, ITS did not reject

Massenburg in circumstances that permit a reasonable inference of

race discrimination. Hunt intended to refer only the three

candidates that she selected for the position with Lee Air. See

[D.E. 113]131. Of the three candidates, one was AfricanAmerican.

See id. 117. Massenburg' s allegation that Hunt stated

that Lee Air would not hire anyone with a criminal history,

by itself, does not permit an inference of race discrimination.

Thus, Massenburg has failed to establish a prima facie case.

See Hunter-Rainev. 2018 WL 1092963, at *2-3.

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-47Alternatively, even assuming that Massenburg established a

prim.a facie case of race discrimination, ITS had a legitimate, nondiscriminatory reason for not referring Massenburg to Lee Air:

Hunt thought three other candidates were more qualified than

Massenburg and did not intend to refer anyone else to Lee Air.

As for pretext, Massenburg speculates that "unlawful

discrimination...likely motivated" ITS. [D.E. 122] 17.

Massenburg's speculation is insufficient to show that ITS's

explanation is "unworthy of credence," and she otherwise fails to

offer evidence that raises a genuine issue of material fact

concerning pretext. Mereisb, 359 F.3d at 336; see Hux, 451 F.3d

at 317-18. Thus, viewing the evidence in the light most

favorable to Massenburg, no rational jury could find that ITS

discriminated against Massenburg based on her race.

Accordingly, the court grants ITS's motion for summary

judgment on Massenburg's disparate treatment claim.

C.

On June 11, 2018, Massenburg moved to stay any action

on ITS's motion for summary judgment pending further

discovery [D.E. 132] and filed a memorandum in support [D.E.

133]. On July 16, 2018, ITS responded in opposition [D.E. 149].

Generally, a court should grant a motion for summary judgment •

only "after adequate time for discovery." Celotex, 477 U.S. at

322; see McCrav v. Md. Dep't ofTransp.• 741 F.3d 480,483 (4th

Cir. 2014). "[S]ummary judgment [must] be refused where the

nonmoving party has not had the opportunity to

discover. "information critical to responding to a motion for

summary judgment. Anderson. 477 U.S. at 250 n. 5; see Dufau

v. Price., 703 F. App'x 164, 167 (4th Cir. 2017) (per

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-48curiam) (unpublished). Under Rule 56(d) ofthe Federal Rules of

Civil Procedure, a district court can stay amotion for summary

judgment ifthe nonmoving party shows specifically with an affidavit

that it cannot "present facts essential to justify its opposition." Fed.

R. Civ. P. 56(d); see Pisano v. Stracb, 743 F.3d 927,931 (4th Cir.

2014); Ingle ex rel. Estate ofIngle v. Yelton, 439 F .3d 191, 195 (4th

Cir. 2006). The Fourth Circuit places "great weight" on the Rule

56(d) affidavit. Evans v. Techs. Am,lications & Serv. Co.., 80

F.3d 954, 961-62 (4th Cir. 1996).

A "court may deny a Rule 56(d) motion when the information

sought would not by itself create a genuine issue of material fact

sufficient forthe non-movant to survive summaryjudgment." Pisano.

743 F.3d at 931; see Tyree v. United States, 642 F. App'x 228, 230

(4th Cir. 2016) (per curiam) (unpublished); Poindexter v. MercedesBenz Credit Corn.. 792 F.3d 406, 411 (4th Cir. 2015); Ingle. 439 F.3d

at 195. But a court may grant the motion if 'the non movant seeks

necessary information possessed only by themovant" and has not

hada reasonable opportunity to discover the information. Pisano.

743 F.3d at 931; fee Hodgin v. UTC Fire & Sec. Ams. Corn.. 885 F.3d

243, 250 (4th Cir. 2018); Ingle, 439 at 196-97. Rule 56(d) motions are

"broadly favored" and should be granted ifnecessarytoprotect

nonmovingparties fromprematuremotions forsummary judgment.

McCray. 741 F.3d at 484; Greater Balt. Ctr. for Pregnancy Concerns,

Inc. v. Mayor & City Council of Balt., 721 F.3d 264,281 (4th Cir.

2013) (en banc).

To support her motion, Massenburg argues that the date on

which Lee Air hired Angela V. is relevant to her prima facie case. See

[D.E. 133] 2. The court rejects this argument. The date on which Lee

Air hired Angela V., by itself, does notcreate a genuine issue of

material factconcerning whether the circumstances reasonably

permit an inference of racial discrimination. Furthermore,

Massenburg already Icnowsthe identity of all three candidates

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49referred to LeeAir, see [D.E. 113]11 15-19, and that information also

isnotmaterial to herTitle VII claims.

Finally, Massenburg didnot file a Rule 56(d) affidavit. See:

Evans. 80 F.3d at 961-62. Accordingly, the court denies

Massenburg's motion to stay.

Alternatively, Massenburg has not shown why the period

for discovery before ITS's motion for summary judgment was

insufficient. "A party requesting relief pursuant to Rule 56(d)

must demonstrate that the party has not had sufficient time to

develop information needed to oppose the Summary judgment

motion." Cookev. U.S. Bureau of Prisons, 926 F. Supp. 2d 720,725

(E.D.N.C.2013); see. .Harrods Ltd. v. Sixty Internet Domain

Names. 302 F.3d 214,244 (4th Cir. 2002). For example, if the

parties have not engaged in any discovery, then granting relief

under Rule 56(d) may be appropriate. See. e.g.. Mathis v. GEO

Gt:p., Inc.,No. 2:08-CT-21-D, 2011 WL 2899135, at *9 (E.D.N.C.

July 18, 2011) (unpublished). Massenburg, however, has had

ample opportunity to discover information essential to opposing

ITS's motion for summary judgment. SeeHodgm, 885 F.3d at 250.

In fact, Massenburg was able to conduct discovery between

November 6, 2017, and April 20, 2018, and relied on materials

obtained in discovery in opposing ITS's motion for summary

judgment. See [D.E.132] 2. Thus, the court rejects

Massenburg's Rule 56(d) motion.

III.

On March 9, 2018, Massenburg moved for leave to file a

second amended complaint [D.E. 97]. On May 15, 2018,

Magistrate Judge Numbers ordered Massenburg to file an

amended complaint that named both ITS and Lee Air as defendants

[D.E. 125]. However, Judge Numbers did not authorize any new

claims against ITS. See id. Massenburg's motion for leave to

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n

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-50amend remained pending. On May 30, 2018, Massenburg filed a

second amended complaint against ITS and Lee Air [D.E. 128],

In her second amended complaint, Massenburg added two new

claims again st ITS, a Titl e VII retaliation claim and a claim underthe

Fair Credit Reporting Act ("FRCA"), 15 U.S.C. § 1681, et seq.

Ss_q [D.E. 97-2] 18-21. On June 14, 2018, ITS moved to strike

Massenburg's second amended complaint.

A.

Generally, a party may amend a pleading once as a

matter of course. ae Fed. R. Civ. P. 15(a)(1). In all other

cases, a party must obtain either the consent of the opposing

party or the leave of court, which the court should freely give

"when justice so requires." Fed. R. Civ. P. 15(a)(2). Under

this standard, a motion for leave to amend should be 4enied

only if it would be prejudicial to the nonmoving party, if the

moving party has acted in bad faith, or if the amendment would

be futile.See Foman v. Davis., 371 U.S. 178, 182 (1962);

Equal Rights Ctr. v. NilesBoltonAssocs.., 602 F.3d 597, 603

(4th Cir. 2010); Laber v. Harvey. 438 F.3d 404, 426 (4th

Cir. 2006) (en bane); HCMF Cor n. v. Aile!!, 238 F.3d273,

276 (4th Cir. 2001); Edwards v. City o Goldsboro, 178

F.3d231, 242 (4th Cir. 1999); Johnson v. Oroweat Foods Co.,

785 F.2d 503,509 (4th Cir. 1986).

When a party seeks to amend a pleading after a

deadline established in a scheduling order, the party first must

satisfy the good cause standard in Rule 16. Sgs Fed. R.

Civ. P. 16(b)(4); )4ourisonRugCor p. v. Parviziim, 535

F.3d295, 298 (4th Cir. 2008); Sansotta ex rel. Klaus v. Town

of NagsHeag,No. 2:1.0-CV-29-D,2011 WL3438422,at*1

(E.D.N.C.Aug. 5,2011)(unpublished). This standard "focuses

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-51on the timeliness ofthe amendment and the reasons for its tardy

submission; the primary consideration is the diligence ofthe

moving party." Montgomery v. Anne Arundel Ctv.. 182 F. App'x

156, 162 (4th Cir. 2006) (per curiam) (unpublished); ae.e_

Nourison Rug. 535 F.3d at 298; J-lexion Specialty Chems.. Inc.

v. Oak-Bark Cor D.. No. 7:09-CV-105-D, 2011 WL 45 7382, at

*8 (E.D.N.C. Sept. 28, 2011) (unpublished). "Good cause exists

when a party's reasonable diligence before the amendment

deadline would not have resulted in the discovery of the

evidence supporting a proposed amendment." Sansotta. 2011

WL 3438422, at *2; see United States v. Gocl-vviri; 247

F.R.D. 503, 506 (E.D.N.C. 2007). A scheduling order is "not

a frivolous piece of paper, idly entered, which can be cavalierly

disregarded," and a movant "must demonstrate that the reasons

for the tardiness of his motion justify a departure from" the

scheduling order. Rassoull v. Maximus. Inc.., 209 F.R.D. 372,

373-74 (D. Md. 2002) (quotation omitted). If a party meets the

Rule 16(b) standard, then the party must also satisfy the Rule

15(a)(2) standard. See Cook v Howard., 484 F. App'x 805,

814--15 (4th Cir. 2012) (per curiam) (unpublished); Hexion

Specialty Chems. Inc.., 2011 WL 4527382, at *8; Godwin. 247

F.R.D. at 506.

On March 9, 2018, Massenburg moved for leave to file

a second amended complaint [D.E. 97]. This court's

scheduling order of November 6, 2017, required the parties to

move to amend all pleadings "promptly after the information

giving rise to the motion bec[ame] known to the party." [D.E.

77] 2. The order further stated that "[a]ny such motion filed

after December 15, 2017, must meet the standards of [Rules]

15 and 16." Id. At 3. Accordingly, Massenburg' s motion for

leave to amend must meet the standards of both Rule 16(b)

and Rule 15(a)(2). See Cook., 484 F. App'x at 814-15.

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-52B.

As for Massenburg's Title VII retaliation claim,

Massenburg's second amended complaint contains

allegations concerning her EEOC charge. Massenburg filed

her EEOC charge on January 2, 2015, and she contends that

ITS retaliated against her for filing that charge by not

cooperating with the EEOC. See [D.E. 97-2] 19.

Massenburg, however, knew of ITS's alleged non-cooperation

with the EEOC well before November 6, 2017. Therefore,

Massenburg has not met Rule 16'sgood cause standard, and

the court denies Massenburg's motion to file a second

amended complaint. Alternatively, Massenburg cannot

satisfy Rule 15 because her motion to amend is futile. A

district court may deny a plaintiffs request for leave to amend

the complaint when the amendment would be futile. See

Forn 371U. S. at 182; NewportNews Holdings Corp. v.

Virtual City Vision., Inc., 650 F.3d 423,439 (4th Cir. 2011).

An amendment is futile if the amended complaint would

fail to state a claim upon which relief can be granted. See:

Van Leer v. Deutsche Bank Sec.,Inc. 479 F. App'x 475,479

(4th Cir. 2012) (unpublished); United States ex rel. Wilson.

Kellogg Brown & Root. Inc.. 525 F.3d 370,375 (4th Cir. 2008).

Whether a complaint states a claim upon whichrelief can be

granted depends on whether the complaint is legally and factually

sufficient. 5gg Ashcroftv. Iqbal, 556 U.S. 662, 677-:--78 (2009);

Bell Atl. Corp. v. Twombly. 550 U.S. 544, 562-63,570 (2007);

Giarratano v. Johnso!1, 521 F.3d 298,302 (4th Cir. 2008);

accord. Erickson v. Pardus., 551 U.S. 89, 93-94 (2007) (per

curiam).

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-53The standard used to evaluate the sufficiency of a

pleading is flexible, "and a pro se complaint, however inartfully

pleaded, must beheld to less stringent standards than formal

pleadings drafted by lawyers." Frickson, 551 U. S. at 94 (emphasis

and quotation omitted). Erickson,however, does not undermine

the "requirement that a pleading contain 'more than labels and

conclusions."' Giarratano, 521 F.3d at 304 n.5 (quoting

Twombly, 550 U.S. at 555); see Iqbal, 556 U.S. at 678-79;

Coleman v. Md. Court of A lineals, 626 F.3d 187, 190 (4th Cir.

2010), affd, 566 U.S. 30 (2012); Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009);

Francis v. Giacornelli, 588 F.3d 186,193 (4th Cir. 2009).

Although a court must liberally construe a pro se plaintiffs

allegations, it "cannot ignore a clear failure to allege facts" that

set forth a cognizable claim. Johnson v. BAC Home Loans

Servicing, LP, 867 F. Supp. 2d 766, 776 (E.D.N.C. 2011); see

Giarratano 521 F.3d at 304 n.5. As for Massenburgl s retaliation

claim, Massenburg lacks direct ev idence of retaliation. Thus,

she proceeds under the McDonnell-Douglas framework. To

establish a prima facie case of retaliation, Massenburg must

show that (1) she engaged in protected activity, (2) the

employer took an action against her that a reasonable

employee would find materially adverse, and (3) a causal

connection existed between the protected activity and the

adverse action. See, e.g.• Burlington N. & Santa Fe Ry. v.

White., 548 U.S. 53, 67-70 (2006); peMasters v. Carilion

796 F.3d 409, 416 (4th Cir. 2015; Foster v. Univ. of Md.-E.

Shore, 787 F:3d 243,250 (4th Cir. 2015); Bover-Liberto v.

Fontainebleau Corp.. 786 F.3d 264,271 (4th Cir. 2015) (en

banc); Balas v. Huntington Ingalls Indus..inc.„711F.3d401,

410(4thCir. 2013); Holland. 487 F3d at218;

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-54Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004),

abrogated on other grounds by Foster. 787 F.3d at 299; Bryant.

v. AikenReg'l Med. Ctrs. Inc.., 333 F.3d 536,543 (4th Cir.

2003); Spriggs v. Diamond Auto Glass., 242 F.3d 179, 190

(4th Cir. 2001).

Under Title VII, a plaintiff engages in protected

activity when she "oppose[s] any practice made an unlawful

employment practice by [Title VII]" or because she makes a

charge, testifies, assists, or participates "in any manner in an

investigation, proceeding, or hearing under [Title VII]."

42 U.S.C. § 2000e-3(a); see Clausen. v. Bayer Corp.. No. 5:15CV-50-BO, 2015 WL 5146704, at *5 (E.D.N.C. Sept. 1, 2015)

(unpublished). Protected activities include using "informal

grievance procedures as well as staging informal protests and

voicing one's opinions in order to bring attention to an employer's

discriminatory activities." Laughlin v. Metro. Wash. Air.ports

Auth. 149F.3d253, 259 (4th Cir. 1998); see Chang Lim v.

Azar. 310 F. Supp. 3d 588, 603--04 (D. Md. 2018). A plaintiff

must show that the employment practices that she opposed were

either actually unlawful under Title VII or that she reasonably

believed that the employment practices were unlawful. See

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 20,271 (2001) (per

curiam); DeMasters. 796 F.3d at 417; Boyer-Liberto, 786

F.3dat282; Bonds v. Leavitt., 629 F.3d 369,384 (4th Cir. 2011);

EEOC v. Navy Fed. Credit Union., 424 F.3d397, 406 (4th Cir.

2005); Chang Lim, 310 F. Supp. 3dat603--04. An adverse

employment action includes a "discriminatory act that adversely

affects the terms, conditions, or benefits of the plaintiffs

employment" Mitchell v. N.C. Div. ofEmp't Sec., 76 F.

Supp. 3d 620,625 (E.D.N.C. 2014) (alteration omitted), aff d, 599

F. App'x 517 (4th Cir. 2015) (per curiam) (unpublished); leg_

Burlington N. & Santa Fe Rv., 548 U.S. at 68, 70;

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-55Holland. 487 F.3d at 219. A plaintiff meets this element if the

alleged action "might have dissuaded a reasonable worker from

making or supporting a charge of discrimination." Burlington N.

& Santa Fe Rv., 48 U.S. at 68 (quotation omitted); see Holley

v. N.C. Dep't of Admin., 846 F. Supp. 2d 416,442 (E.D.N.C.

2012). "There must be some significant detrimental effect" to

the plaintiff. Holland, 487 F.3d at 219.

As for Massenburg's prima facie case, Massenburg

engaged in protected activity by filing an EEOC charge on

January 2,2015. See [D.E.124-1]; [D.E. 97-1] 4. Massenburg

alleges that ITS took a materially adverse action against her by

refusing to cooperate with the EEOC's investigation.

50. [D.E. 97-2] 19. However, ITS's alleged failuie to cooperate

with the EEOC's investigation, ' even if true, would not

dissuade a reasonable worker from filing a discrimination

charge. Moreover, Massenburg has failed to plausibly allege

causation between her filing the charge and the allegedly

adverse action. Accordingly, Massenburg has failed to plausibly

allege retaliation in violation of Title VII, and the court denies

as futile her motion to amend.

C.

As for . Massenburg's FCRA claim, Massenburg

alleges that, nearly three years after she submitted her online

application to ITS, ITS "r[an] her background and disbursed

[her] personal information without [her] knowledge" by

"furnish[ing] [her] criminal background report to the

EEOC." [D.E. 97-2] 21.3 Massenburg alleges that she had no

notice of the disclosure, depriving her of her rights under

FCRA. j. Massenburg has failed to meet Rule 16's good

cause standard. Thus, the court denies Massenburg' s

n

App 4

-56motion to amend her complaint to add an FCRA claim.

Alternatively, Massenburg fails to plausibly allege an FCRA

claim. Congress enacted FCRA to "ensure fair and accurate

credit reporting, promote efficiency in the banking system,

and protect consumer privacy." Safeco Ins. Co. of Am. v.

Burr., 551 U.S. 47, 52 (2007); see Saunders v. Branch.

Banking & Tr. Co. of Va.. 526 F.3d 142, 147 (4th Cir. 2008).

FCRA applies only if the information that ITS allegedly

provided to the EEOC constitutes a "consumer report" within

the meaning of 15 U.S.C. § 1681a(d)(1). See, ,15U.S.C. §§

1681b, 1681d, 1681m;Benzingv.Tharrington-Smith,LLP,

No. 5:10-CV-533-F, 2012 WL 1015957, at *2 (E.D.N.C. Mar.

23, 2012) (unpublished), affd, 485 F. App'x 624 (4th Cir.

2012) (per curiam) (unpublished); cf. Spokeo. Inc. v. Robins.,

136 S. Ct. 1540, 1545 (2016). A consumer report includes

"any written, oral, or other communication of any information

by a consumer reporting agency bearing on a consumer's

credit worthiness, credit standing, credit capacity, character,

general reputation, personal characteristics, or mode of living

which is used or expected to be used" for purposes enumerated

in the statute, including employment purposes. § 1681a(d)(1).

Massenburg does not allege any facts concerning the purpose

of the alleged disclosure. Additionally, Massenburg does not

allege any facts conceining whether ITS is a "consumer

reporting agency" within the meaning of FRCA. au 15

U.S.C. § 1681a(f). Accordingly, Massenburg fails to plausibly

allege an FRCA claim. Thus, the court denies as futile

Massenburg' s proposed FCRA claim.

App 4

-57D.

3 It is not clear that ITS

did so. Massenburg cites as evidence a

FOIA request, which she filed with the EEOC, indicating that the

EEOC withheld some information from disclosure because releasing

the information could constitute an "unwarranted invasion of personal

privacy." [D.E. 97- 29] 5, 10. The document does not state what

information the EEOC withheld.

Alternatively, the new claims against ITS fall outside

the scope of the court's order of May 15, 2018, granting

Massenburg leave to file an amended complaint that named

Lee Air as a defendant [D.E. 125]. Although Massenburg

listed the Title VII retaliation and FRCA claims in her proposed

second amended complaint, Massenburg did not obtain leave

to amend her pleadings to add these new claims against ITS

before filing a second amended complaint.

A court may strike "an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter"

from a pleading. Fed. R. Civ. P. 12(f). If a plaintiff files an

amended pleading without securing leave to amend, a court

can strike the amended pleading. See Laschkewitsch v.

Lincoln Life & Annuity Distribs., Inc., No.. 5 : 13 -CV-315BO, 2014 WL 715420, at *1 (E.D.N.C. Feb. 24, 2014)

(unpublished). Although Massenburg had leave to amend her

complaint to add Lee Air as a defendant, she did not have

leave to amend her complaint to add new claims against ITS.

aes [D.E. 125] 8. Thus, the court grants ITS's motion to strike

the Title VII retaliation and FCRA claims against it in

Massenburg's second amended complaint.

App 4

-58IV.

On July 27, 2018, Lee Air moved to dismiss

Massenburg's second amended complaint for lack of

jurisdiction and failure to state a claim. A motion to dismiss

under Rule 12(b)(1) of the Federal Rule of Civil Procedure

tests subject-matter jurisdiction, which is "the courts'

statutory or constitutional power to adjudicate the case."

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89

(1998) (emphasis omitted); see Holloway v. Pagan River

Dockside Seafood, Inc.., 669 F.3d 448, 453 (4th Cir. 2012).

"[T]he party invoking federal jurisdiction bears the burden of

establishing its existence." • Steel Co. 523 U.S. at 104; see.,

' Evans v. B.F. Perkins Co., 166 F.3d 642,647 (4th Cir.

1999). In considering a motion to dismiss under Rule 12(b)(1),

the court may consider evidence outside of the pleadings

without converting the motion into one for summary

judgment. See. Richmond, Fredericksburg& Potomac R.R,

v. United States, 945 F.2d 765, 768 (4th Cir. 1991). A federal

court "must determine that it has subject-matter jurisdiction

over the case before it can pass on the merits of that case."

Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474, 479-80 (4th Cir. 2005).

A district court has subject-matter jurisdiction over a Title

VII claim only if the plaintiff exhausted administrative

remedies beforefiling suit. See., 'Sydnory.FairfaxCty., 681

F.3d 591, 593-94 (4th Cir. 2012); Jones v. Calvert Grp.. Ltd.,

551 F.3d 297, 300 (4th Cir. 2009); Tagirova v. Elizabeth City

State Uv., No. 2:16-CV-70-D, 2017 WL4019516, at *1

(E.D.N.C. Sept. 11,2017) (unpublished); Webb v. N.C. Dep't of

Crime Control & Pub. Safety. 658 F. Supp. 2d 700, 707-09

(E.D.N.C. 2009).

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-59Title VII requires plaintiffs to exhaust administrative .

remedies by filing a charge with the EEOC before initiating

litigation in federal court. See Svndor, 681 F.3d at 593. This

requirement is an "integral part of the Title VII enforcement

scheme."

(quotation omitted). Under Title VII, a charge must

be filed within 180 days ofthe alleged unlawful employment

practice. See 42 U.S.C. § 2000e-5(e)(1); Jones, 551 F.3d at 300.

A failure to file a charge with the EEOC in a timely fashion is

not jurisdictional and is subject to waiver, estoppel, and

equitable tolling. Sag Zipes v. Trans World Airlines, Inc.., 455

U.S. 385, 393 (1982). Nonetheless, a failure to exhaust

administrative remedies before filing suit in federal court is

jurisdictional. See Jones., 551 F.3d at 300; Williams v. N.C.

Admin. Office of Courts., No. 4:18-CV-63-D, 2018 WL

6345367, at *2-3 (E.D.N.C. Dec. 4, 2018) (unpublished). 4The

contents of a plaintiffs EEOC charge determine the scope of

a plaintiffs right to maintain a Title VII claim in federal court.

See. ,Hentosh v. OW Dominion Univ., 767 F.3d 413,416 (4th

Cir. 2014); Johnson v. PittCty. Bd. ofEduc., No. 4:16-CV-214D,2017 WL2304211, at *3 (E.D.N.C. May 25, 2017)

(unpublished). If a plaintiffs claims in her complaint are

"reasonably related to her EEOC charge and can be expected to

follow from a reasonable administrative investigation," the court

retains jurisdiction over the claims even if a plaintiff failed

to file an EEOC charge before filing suit. Sydnor, 681 F.3d at

594; see Smith v. First Union Nat'l Bank, 202 F.3d 234,237 (4th

Cir. 2000); Fvans, 80 F.3d at 963; Johnson v. SecTek, Inc.., No.

ELH-13-3798, 2015 WL 502963, at *4 (D. Md. Feb. 4, 2015)

(unpublished); Allen v. CityofRaleimNo. 5:13-CV-522-D, 2014

WL 840735, at *2 (E.D.N.C. Mar. 4, 2014) (unpublished). In

contrast, a claim exceeds the scope of an EEOC charge if the

claim references different actors, different violations, or

different time frames than those listed in the EEOC charge. aes_

22

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-60Syndor, 681 F.3d at 593; Chacko v. Patuxent Inst.. 429 F.3d

505,506 (4th Cir. 2005).

As for Massenburg's Title VII claims against Lee Air,

Massenburg's EEOC charge of January 2, 2015, only names

ITS. See [D.E. 7-1]. Because it does not name Lee Air, this

charge does not satisfy Title Mrs exhaustion requirement.

On. September 19, 2018, Massenburg filed a second charge

of discrimination and retaliation with the EEOC and named

both ITS and Lee Air. See [D.E. 168-4].

However, Massenburg filed this charge after she added Lee

Air as a defendant to this case. Thus, the EEOC charge does not

satisfy the exhaustion requirement. See Smith. 202 F.3d at 247.

Accordingly, the court lacks subject-matter jurisdiction over

Massenburg' s Title VII claims against Lee Air.

4 The Supreme Court has granted certiorari to decide

whether Title VH's administrative exhaustion requirement is

jurisdictional. See Davis v. FortBendCV.„ 893 F.3d300 (5th Cir.

2018), cert. granted., No. 18-525, 2019 WL 166880 (U.S. Jan. 11,

2019).

Massenburg also alleges a state law violation of the North

Carolina Equal Employment Protection Act ("the NCEEPA"),

N.C. Gen. Stat.§ 143-422.2, based on race. 50 [D.E. 128] 1. In

relevant part, the NCEEPA states that it is the "public policy of

[North Carolina] to protect and safeguard the right and

opportunity of all persons to seek, obtain and hold employment

without discrimination or abridgment on account ofrace, religion,

color, national origin, age, sex or handicap by employers which

regularly employ 15 or more employees," N.C. Gen. Stat. § 143422.2(a).

23

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-61North Carolina law does not recognize a private cause of

action under the NCEEPA. See: Smith, 202 F.3d at 247;

Bratcher v. Phann. Prod. Dev., Inc.., 545 F. Supp. 2d 533,

544 (E.D.N.C. 2008); Mullis v. Mechs. & Farmers Bank

994 F. Supp. 680, 687 (M.D.N.C. 1997).

Moreover, North Carolina does not recognize a wrongful

failure to hire claim. See Schulze v. Meritor Auto.. Inc.., 13

F. App'x 89, 90 (4th Cir. 2001) (per curiam) (unpublished);

Bufford v. Centuzylink. 759 F. Supp. 2d 707, 708 (E.D.N. C.

2010). Thus, Massenburg has not plausibly alleged a claim

under the NCEEPA against Lee Air. Accordingly, the court

dismisses the claim.

V.

On April 18, 2018, Massenburg moved to extend the deadline for

dispositive motions in the court's November 6, 2017, scheduling

order pursuant to Rule 16(b)(4) of the Federal Rule of Civil

Procedure [D.E. 110]. Under the scheduling order, discovery

closed on March 23, 2018, and the deadline for dispositive

motions was April 20, 2018. Massenburg proposes that the new

deadline be 45 days after the court has ruled on all pending

motions. See id. at 1.

In support, Massenburg argues that she is confused about

whether her Title VII retaliation and FRCA claims are properly

before the court and that she is awaiting further discovery. See

bd at 1-2. Rule 16(b)(4) requires a movant to demonstrate good

cause for a district court to modify a scheduling order. See Fed.

R. Civ. P. 16(b)(4).

24

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n

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-62This standard "requires the party seeking relief to

show that the deadlines cannot reasonably be met despite the

party's diligence." Cook., 484 F. App'x at 815 (alteration and

quotation omitted). The "primary consideration is the

diligence of the moving party." Montgomery, 182 F. App'x at

162; see Opsitnick v. Crumpler, No. 5-13-CV-835-D, 2015

WL 12860285, at *1 (E.D.N.C. Oct. 19, 2015)

(unpublished). A litigant does not establish good cause if the

district court "concludes that the party seeking relief . . . has

not acted diligently in compliance" with a scheduling order.

McMillan v. Cumberland Ctv. Bd. of Educ., 734 F. App'x

836,816 (4th Cir. 2018)(unpublished).

Massenburg has failed to show why she was unable to

file a dispositive motion by the scheduling order's deadline.

Thus, the court denies Massenburg's motion to amend the

scheduling order.

VI.

On January 2, 2019, Massenburg filed a document

entitled "Supplemental claims to DE 168- 2 and 3" [D.E.

171]. On January 16, 2019, defendants moved to strike

this filing [D.E. 173].

Under the Federal Rules of Civil Procedure, a court may

"strike from a pleading an insufficient defendant or any

redundant, immaterial, impertinent, or scandalous matter." Fed. R.

Civ. P. 12(t).

23

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-64file a motion for costs in accordance with the Federal Rules of

Civil Procedure and this court's local rules. The clerk shall close

the case.

SO ORDERED. This 4th day of February 2019.

scv. aA

Jig C. DEVER III

United States District Judge

Case 5:16-cv-00957-D Document 176 Filed 02/04/19 Page 24 of 26

Additional material

from this filing is

available in the

Clerk's Office.