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Facey v. Dae Sung Corp.

United States District Court, Fourth Circuit

January 16, 2014

HEARL FACEY Plaintiff
v.
DAE SUNG CORPORATION., et al., Defendants

MEMORANDUM

James K. Bredar, United States District Judge

Hearl Facey (“Plaintiff”) brought this suit against the Dae Sung Corporation[1] (“Dae Sung”), LB&B Associates Inc. (“LB&B”), and the International Union of Operating Engineers, Local 37 Scholarship Fund, Inc.[2] (the “Union” and, collectively with other defendants, “Defendants”) alleging violations of 31 U.S.C. §3730(H) and 42 U.S.C. §§ 1981, 1985, and 1986, as well as state statutes and common law in relation to the termination of Plaintiff’s employment with FTSS Joint Venture (“FTSS JV”). Now pending before the Court is Defendants Dae Sung and LB&B’s motion to dismiss Counts Five and Six of Plaintiff’s complaint (ECF No. 11). The issues have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below, the motion to dismiss will be GRANTED.

I. BACKGROUND[3]

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, Plaintiff’s 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.[4] (Id.) They informed Plaintiff that they had concluded that (1) the subcontractors were responsible for setting off the alarm; (2) “the engineers did not have required training on the particular alarm system;”[5] and (3) Plaintiff would be given a verbal warning for not checking to see if the alarm had been deactivated. (Id.)

On Saturday, March 3, 2012, Plaintiff returned to work and was fired by Wack. (Id. at ¶ 14.) Wack explained to Plaintiff that the “FTSS JV human resource [sic] office” had rejected the decision to give Plaintiff a verbal warning. (Id.) Plaintiff alleges that other engineers, including Mitchell Perkey, Thomas Slinger, Lee Best, and Anthony Lamortina, had incidents where they “set off the building alarms by error or inadvertently, and none of them were fired.” (Id.) Plaintiff further alleges that “[u]pon information and belief, they were given verbal warnings.” (Id.) Also, Plaintiff was the only engineer who was “an African-American of Jamaican national origin.” (Id.)

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 Plaintiff’s 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[6] for the Union and sometimes “relieved [Plaintiff] at work.” (Id. at ¶¶ 15, 17.) Plaintiff describes Best as African-American and of “U.S. national origin.” (Id.) Plaintiff had been complaining about Best’s “frequent late attendance” and reported that even when Best was late for work, “he reported . . . that he had arrived to work on time and was paid for full shifts.” (Id.) Plaintiff thought this was “unfair and dishonest.” (Id.) However, Wack was “displeased whenever [Plaintiff] reported Best’s tardiness.” (Id.)

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 [Plaintiff’s] employment in order to accommodate Mr. Best and the risk and exposure associated with [Plainitff’s] 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 Plaintiff’s 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 Plaintiff’s 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 (2009). The plaintiff may not, however, rely on naked assertions, speculation, or legal conclusions. Bell Atl. v. Twombly, 550 U.S. 544, 556-57 (2007). In assessing the merits of a motion to dismiss, the court must take all well-pled factual allegations in the complaint as true and construe them in the light most favorable to the Plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. ...


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