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Facey v. Dae Sung Corp.

United States District Court, D. Maryland

January 17, 2014

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

Decided January 16, 2014.

Page 537

For Hearl Facey, Plaintiff: George A Rose, LEAD ATTORNEY, Rose Law Firm LLC, Baltimore, MD.

For Dae Sung, LLC, Defendant: Benjamin Norman Thompson, LEAD ATTORNEY, PRO HAC VICE, Wyrick Robbins Yates and Ponton LLP, Raleigh, NC; Gerry H Tostanoski, Kelly M Marzullo, LEAD ATTORNEYS, Tydings and Rosenberg LLP, Baltimore, MD; Jennifer M Miller, Raleigh, NC.

For LB & B Associates Inc., Defendant: Gerry H Tostanoski, Kelly M Marzullo, LEAD ATTORNEYS, Tydings and Rosenberg LLP, Baltimore, MD; Benjamin Norman Thompson, PRO HAC VICE, Wyrick Robbins Yates and Ponton LLP, Raleigh, NC; Jennifer M Miller, Raleigh, NC.

For International Union of Operating Engineers, Local 37 Scholarship Fund, Inc., Defendant: John Michael Singleton, LEAD ATTORNEY, Singleton Law Group, Lutherville, MD.

OPINION

Page 538

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. )

Page 539

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. ...


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