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Robertson v. Beacon Sales Acquisition

United States District Court, D. Maryland, Southern Division

May 31, 2018




         Plaintiff Hartley Shawcross Robertson brings this pro se action against his former employer. Defendant Beacon Sales Acquisition. Inc. d/b/a The Roof Center ("Defendant" or "the Company"). Plaintiff alleges that Defendant demoted him in October of 2011 based on his race in violation of 42 U.S.C. § 1981 and terminated him in September of 2012 in retaliation for engaging in activity protected under the Dodd-Frank Act. 15 U.S.C. § 78u-6(h)(1)(A). Now pending before the Court is Defendant's Motion to Dismiss. ECF No. 12. and Motion to Strike Plaintiffs Supplemental Addendum. ECF No. 21. No. hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the following reasons. Defendant's Motions are granted.

         I. BACKGROUND

         A. Factual Background [2]

         Plaintiff worked as an Assistant Controller in Plaintiffs Gaithersburg. Maryland headquarters, starting sometime before November of 2010.[3] Plaintiff alleges that starting in November of 2010. he observed Matthew Frye, the Branch Manager of Defendant's White Plains location, engage in inappropriate financial activities and that he reported these activities to William Onofre. Plaintiff's first-line supervisor and the Controller; Mike Alley, the Regional Manager; and Frances Stevenson, a Staff Accountant. Specifically. Plaintiff alleges that Frye repeatedly received checks from contractors but failed to immediately deposit them or otherwise notify the Regional Manager as required by Company policy, Id. at 7.[4] Because Frye was improperly advancing inventory to contractors without payment. Plaintiff warned Defendant that Frye was possibly defrauding the Company, Id. at 10.

         On October 1. 2011, Plaintiff was assigned to conduct an audit of the inventory for the White Plains branch. Id. at 9. Plaintiff indicates that he was unable to perform the audit that day because the branch was not ready, Id. at 10. When Plaintiff returned to conduct the audit the following day. Onofre instructed Plaintiff that he only had two and a half hours to complete the audit. Id. Although Plaintiff stated that two and a half hours was insufficient. Plaintiff proceeded as expeditiously as possible and ultimately reported to Onofre that he found a large number of discrepancies and had concerns with the branch's inventor} and accounting practices. Id.

         On October 11. 2011. Onofre issued Plaintiff a written reprimand for failing to follow the audit process because he allegedly utilized branch employees to assist with taking the inventory. Id. at 11. Onofre did not investigate the inventory discrepancies that Plaintiff previously raised. Id. On October 17. 2011. Plaintiff was summoned to the Human Resources office, and Onofre. along with two other employees, blamed Plaintiff for some of the missing inventory that Plaintiff previously identified. Id. Plaintiff states that he was given the choice to either accept a demotion to Staff Accountant or face termination. Id. Plaintiff alleges that his demotion was part of an effort by Defendant to cover up Frye's infractions and systematically reduce Plaintiffs role in the company, id. Although the correspondence attached to Plaintiffs Complaint makes no mention of racial discrimination. Plaintiff alleges in his Statement of Claim that he. an African American, was demoted whereas Alley, who is Caucasian, failed to act in response to Frye's misconduct but was allowed to remain in management. Id. at 1.

         Plaintiff contends that following his demotion, he continued to report instances of possible misconduct but. on August 12. 2012. he was issued a Final Warning for questioning management practices. Id. at 11. On September 19. 2012. Plaintiffs former attorney informed Defendant of its alleged retaliation against Plaintiff and requested that it stop. Id. at 1 2: see also Id. at 2-3 (September 19. 2012 Correspondence). On September 20. 2012. Plaintiff reported that Onofre appeared to be inappropriately using Company funds, yet Defendant failed to investigate. Id. at 12. On September 24, 2012. Defendant relieved Plaintiff of all major duties, Id. The following day. Defendant terminated Plaintiff. Id.

         B. Service of Process

         Plaintiff fled his Complaint on September 23. 2016 but did not serve Defendant with a copy of the summons until October 23. 201 7. almost 400 days later. ECF Nos. 1.11. After Plaintiff initially tiled the Complaint, the Court issued an Order on September 30. 2016 directing Plaintiff to complete and file a summons. ECF No. 2. In the Order, the Court informed Plaintiff of his obligation to serve Defendant with a summons and copy of the Complaint in accordance with Rule 4 of the Federal Rules of Civil Procedure and provided Plaintiff with the website and phone number for the Maryland State Department of Assessments and Taxation so that Plaintiff could obtain the name and service address for Defendant's resident agent, hi. Following this Order. Plaintiff failed to submit a completed summons for the Clerk to issue and failed to serve Defendant with the summons and copy of the Complaint.

         On February 2, 2017. the Court ordered Plaintiff to show cause as to why service of process had not been effected within fourteen days and warned that failure to show cause would result in dismissal of the Complaint. F.CF No. 3. On February 15. 2017. Plaintiff submitted a proposed summons for Defendant's General Counsel at 5244 River Road. Bethesda. MD 20816. ECF No. 4. The summons was issued by the Clerk's office on March 30, 2017. ECF No. 5. but Plaintiff did not explain his failure to timely submit a completed summons.

         Following issuance of the summons. Plaintiff did not file a notification via affidavit that Defendant had been served, and. on June 8. 2017. the Court again ordered Plaintiff to show cause as to why service of process had not been effected. ECF No. 6. On June 21, 2017. Plaintiff requested an extension to the Show Cause Order, indicating that he was unaware that the Clerk's office had issued the summons. ECF No. 7. Plaintiff indicated that after receiving the Show Cause Order, he went to the courthouse to complete service of process and was referred to Janet Fletcher but was unable to contact her. Id. Plaintiff then mailed the summons to Defendant at the River Road address and filed a copy of the certified mail receipt on August 7. 2017. ECF No. 8. Again. Plaintiff failed to explain his delay in mailing the summons to Defendant.

         On October 4. 2017. the Court informed Plaintiff that there was no indication that the summons was mailed to Defendant as it did not appear that the mail was sent restricted delivery with a return receipt requested. ECF No. 9. The Court once again ordered Plaintiff to show cause as to why sen ice of process had not been effected. Id., Plaintiff responded on October 18. 201 7. indicating that while he sent a copy of the summons by certified mail with return receipt requested on June 22. 2017. the certified mail was unable to be delivered because the addressee was unknown, and it was returned to Plaintiff oil August 4. 2017. ECF No. 10.[5] Plaintiff indicated that he had since discovered the correct address for Defendant's General Counsel and re-sent the summons via certified mail that day. hi. On October 25. 2017, Plaintiff filed a copy of the associated return receipt, indicating that the summons had been delivered to Defendant's General Counsel at its correct address. ECF No. 11.


         Defendant moves to dismiss the Complaint for insufficient service of process. Fed.R.Civ.P. 12(b)(4). (5). and failure to state a claim upon which relief can be granted. ...

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