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Duke v. Xylem Tree Experts, Inc.

United States District Court, E.D. Virginia, Richmond Division

December 27, 2018

LESLIE DUKE, Plaintiff,
XYLEM TREE EXPERTS, INC., et al., Defendants.


          John A. Gibney, Jr. United States District Judge.

         Leslie 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"), [1] William Hoover, Randolph Hoover, and Benjamin Hoover, [2] 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.

         I. BACKGROUND

         Xylem 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.

         In the 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).[3]

         II. STANDARD

         A. Subject Matter Jurisdiction

         Federal 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. 12(h)(3).

         B. Failure to State a Claim

         A Rule 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., 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 (2007)).

         The 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).


         A. Surface Transportation Assistance Act

         The 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 ...

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