United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge.
Duke claims that his employer fired him because he refused to
drive a truck without the necessary highway permits. The
Court previously directed Duke to file a second amended
complaint ("SAC") to allege sufficient facts to
establish subject matter jurisdiction, specifically whether
he has exhausted administrative remedies under the Surface
Transportation Assistance Act ("STAA"). In the SAC,
Duke reiterates his grievances under the STAA, but does not
indicate that he complied with the administrative exhaustion
requirements. Duke also asserts claims under Title VII of the
Civil Rights Act of 1964, various criminal statutes, and 42
U.S.C. § 1983. The defendants, Xylem Tree Experts, Inc.
("Xylem"),  William Hoover, Randolph Hoover, and
Benjamin Hoover,  have moved to dismiss the SAC under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Because the Court lacks subject matter jurisdiction over
Duke's STAA and Title VII claims and his remaining
allegations fail to state a claim for relief, the Court will
grant the motion to dismiss.
hired Duke in 2017 to drive tractor trailers. On April 30,
2018, Duke's supervisor, William Hoover, called Duke and
asked him to drive his truck to Midway, North Carolina, where
a Xylem crew would load a piece of equipment for Duke to
drive to Xylem's shop in Wakefield, Virginia. The load
was a "wide load" that Duke could not transport
during the day without a permit. That evening, Hoover called
Duke and told him to bring the wide load to the Virginia shop
even though he had not yet received the required permits.
Duke refused to drive the wide load without the proper
permit, and Hoover then fired Duke.
SAC, Duke asserts the following claims: (1) wrongful
termination in violation of the STAA; (2) sexual harassment
in violation of Title VII; (3) various criminal allegations;
and (4) violation of his constitutional rights under 42
U.S.C. § 1983. The defendants have moved to dismiss
Duke's complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
Subject Matter Jurisdiction
courts have limited subject matter jurisdiction and
"possess only the power authorized by Constitution and
statute, which is not to be expanded by judicial
decree." Kokkenen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (citations omitted). Duke
bears the burden of establishing subject matter jurisdiction.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
The complaint must allege the grounds for jurisdiction.
Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968).
If the court determines that it lacks subject matter
jurisdiction, it must dismiss the action. Fed.R.Civ.P.
Failure to State a Claim
12(b)(6) motion gauges the sufficiency of a complaint without
resolving any factual discrepancies or testing the merits of
the claims. Republican Party of N.C. v. Martin, 980
F.2d 943, 952 (4th Cir. 1992). In considering the motion, a
court must accept all allegations in the complaint as true
and must draw all reasonable inferences in favor of the
plaintiff. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th
Cir. 2009) (citing Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999)). The principle that a court
must accept all allegations as true, however, does not apply
to legal conclusions. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must state facts that, when accepted as
true, state a claim to relief that is plausible on its face.
Id. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
Federal Rules of Civil Procedure require that a complaint
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). When the plaintiff appears pro se,
although courts should liberally construe the complaint,
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978), "[principles requiring generous construction of
pro se complaints are not. . . without limits."
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985). Courts need not attempt "to discern the
unexpressed intent of the plaintiff." Laber v.
Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006).
Surface Transportation Assistance Act
STAA prohibits employers from firing an employee
"because ... the employee . . . refuses to operate a
vehicle because the operation violates a regulation,
standard, or order of the United States related to commercial
motor vehicle safety." 49 U.S.C. §
31105(a)(1)(B)(i). The STAA also prohibits employers from
firing an employee for refusing to drive a vehicle when the
employee "has a reasonable apprehension of serious
injury to the employee or the ...