IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL HENRY, ) ) Plaintiff, ) ) v. ) 1:25CV1084 ) PUBLIX DISTRIBUTION CENTER ) and CITY VIEW APARTMENTS, ) ) Defendants. )
ORDER, MEMORANDUM OPINION, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on pro generally Docket Entry 2 (“Compl.”). se Plaintiff Michael Henry’s The Court should dismiss the application to proceed in forma Complaint in its entirety because pauperis. See Docket Entry 1. For the Henry has failed to state a claim. reasons set forth below, the Court will grant the application for the limited The Court must dismiss a case filed in purpose of allowing the Court to forma pauperis if it fails to state a consider a recommendation of claim on which relief may be granted. dismissal. 28 U.S.C. § 1915(e)(2)(B). To state a claim, “a complaint must contain I. DISCUSSION sufficient factual matter, accepted as true, to ‘state a claim to relief that is Henry’s Complaint alleges multiple plausible on its face.’” Ashcroft v. claims: discrimination on the basis of Iqbal, 556 U.S. 662, 678 (2009) race and sexual orientation in (quoting and citing Bell Atlantic Corp. violation of Title VII of the Civil v. Twombly, 550 U.S. 544, 570 Rights Act, 42 U.S.C. § 2000e et seq., (2007)). That is, a plaintiff must make retaliation in violation of Title VII of factual allegations that are “enough to the Civil Rights Act, 42 U.S.C. § 2000e raise a right to relief above the et seq., age discrimination in violation speculative level.” See Bell Atlantic of 29 U.S.C. § 621 et seq. (Age Corp., 550 U.S. at 555 (citation Discrimination in Employment Act modified). “Thus, while a plaintiff (“ADEA”)), defamation, physical does not need to demonstrate in a harm, and illegal eviction. See complaint that the right to relief is ‘probable,’ the complaint must human resources for help with advance the plaintiff’s claim ‘across housing, and they gave him leads that the line from conceivable to he could not afford. plausible.’” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting He came into work early one day only Twombly, 550 U.S. at 570). The to have his Bluetooth radio stolen. He Court “accepts all well-pled facts as filed a complaint, but his supervisors true and construes these facts in the laughed. He returned to work light most favorable to the plaintiff, operating his forklift, and another but does not consider legal employee let his pallet jack coast, and conclusions, elements of a cause of it hit Henry’s forklift lightly. Henry action, and bare assertions devoid of then made another move to operate factual enhancement[,] . . . his forklift, and an order checker unwarranted inferences, came speeding up to him and argued unreasonable conclusions, or that Henry had cut him off. Three arguments.” Nemet Chevrolet, Ltd. v. other employees watched and would Consumeraffairs.com, Inc., 591 F.3d not leave. When they finally did leave, 250, 255 (4th Cir. 2009) (citation they went to the office and alleged modified). A pro se plaintiff’s Henry threatened them. The complaint must be construed liberally supervisor, Hughe, asked Henry for a in his favor. See Jehovah v. Clarke, statement and then sent him home 798 F.3d 169, 176 (4th Cir. 2015). saying they were going to investigate. Publix never brought Henry back to As alleged in the Complaint: work and days later took his badge. Because he was let go, he missed the Henry identifies himself as a raise he could have received in heterosexual African-American born another three weeks. See generally in 1970. Sometime prior to Compl. September 27, 2025, he came to North Carolina for a scheduled A. Equal Employment interview at the Publix Distribution Opportunity Center, presumably in McLeansville. Commission He was late and missed the interview, and no one called to reschedule. Before a plaintiff can bring suit in Instead, he worked elsewhere until federal court alleging a violation of Publix notified him that they could Title VII or the ADEA, he must file a pay him more than he was earning charge with the Equal Employment elsewhere. He took the job and caught Opportunity Commission (“EEOC”). up on his expenses. But at some See, e.g., Walton v. Harker, 33 F.4th point, Publix told him it was cutting 165, 172 (4th Cir. 2022). Here, Henry back on his hours. He applied for two does not allege that he filed any internal positions with the company charge with the EEOC. When asked but did not receive either. He asked on his form Complaint the date that he filed a charge with the EEOC, he an investigation into an alleged responded, “N/A,” and did not violation, see 42 U.S.C. § 2000e-3(a), complete any further information on Henry did not allege that he did either the topic. Without having first of those things or that his employer exhausted his administrative reduced his hours or terminated him remedies with the EEOC, Henry’s because he did. Therefore, Henry’s Title VII and ADEA claims are Title VII claims should be dismissed. procedurally barred and should be dismissed. See id. C. Age Discrimination
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL HENRY, ) ) Plaintiff, ) ) v. ) 1:25CV1084 ) PUBLIX DISTRIBUTION CENTER ) and CITY VIEW APARTMENTS, ) ) Defendants. )
ORDER, MEMORANDUM OPINION, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on pro generally Docket Entry 2 (“Compl.”). se Plaintiff Michael Henry’s The Court should dismiss the application to proceed in forma Complaint in its entirety because pauperis. See Docket Entry 1. For the Henry has failed to state a claim. reasons set forth below, the Court will grant the application for the limited The Court must dismiss a case filed in purpose of allowing the Court to forma pauperis if it fails to state a consider a recommendation of claim on which relief may be granted. dismissal. 28 U.S.C. § 1915(e)(2)(B). To state a claim, “a complaint must contain I. DISCUSSION sufficient factual matter, accepted as true, to ‘state a claim to relief that is Henry’s Complaint alleges multiple plausible on its face.’” Ashcroft v. claims: discrimination on the basis of Iqbal, 556 U.S. 662, 678 (2009) race and sexual orientation in (quoting and citing Bell Atlantic Corp. violation of Title VII of the Civil v. Twombly, 550 U.S. 544, 570 Rights Act, 42 U.S.C. § 2000e et seq., (2007)). That is, a plaintiff must make retaliation in violation of Title VII of factual allegations that are “enough to the Civil Rights Act, 42 U.S.C. § 2000e raise a right to relief above the et seq., age discrimination in violation speculative level.” See Bell Atlantic of 29 U.S.C. § 621 et seq. (Age Corp., 550 U.S. at 555 (citation Discrimination in Employment Act modified). “Thus, while a plaintiff (“ADEA”)), defamation, physical does not need to demonstrate in a harm, and illegal eviction. See complaint that the right to relief is ‘probable,’ the complaint must human resources for help with advance the plaintiff’s claim ‘across housing, and they gave him leads that the line from conceivable to he could not afford. plausible.’” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting He came into work early one day only Twombly, 550 U.S. at 570). The to have his Bluetooth radio stolen. He Court “accepts all well-pled facts as filed a complaint, but his supervisors true and construes these facts in the laughed. He returned to work light most favorable to the plaintiff, operating his forklift, and another but does not consider legal employee let his pallet jack coast, and conclusions, elements of a cause of it hit Henry’s forklift lightly. Henry action, and bare assertions devoid of then made another move to operate factual enhancement[,] . . . his forklift, and an order checker unwarranted inferences, came speeding up to him and argued unreasonable conclusions, or that Henry had cut him off. Three arguments.” Nemet Chevrolet, Ltd. v. other employees watched and would Consumeraffairs.com, Inc., 591 F.3d not leave. When they finally did leave, 250, 255 (4th Cir. 2009) (citation they went to the office and alleged modified). A pro se plaintiff’s Henry threatened them. The complaint must be construed liberally supervisor, Hughe, asked Henry for a in his favor. See Jehovah v. Clarke, statement and then sent him home 798 F.3d 169, 176 (4th Cir. 2015). saying they were going to investigate. Publix never brought Henry back to As alleged in the Complaint: work and days later took his badge. Because he was let go, he missed the Henry identifies himself as a raise he could have received in heterosexual African-American born another three weeks. See generally in 1970. Sometime prior to Compl. September 27, 2025, he came to North Carolina for a scheduled A. Equal Employment interview at the Publix Distribution Opportunity Center, presumably in McLeansville. Commission He was late and missed the interview, and no one called to reschedule. Before a plaintiff can bring suit in Instead, he worked elsewhere until federal court alleging a violation of Publix notified him that they could Title VII or the ADEA, he must file a pay him more than he was earning charge with the Equal Employment elsewhere. He took the job and caught Opportunity Commission (“EEOC”). up on his expenses. But at some See, e.g., Walton v. Harker, 33 F.4th point, Publix told him it was cutting 165, 172 (4th Cir. 2022). Here, Henry back on his hours. He applied for two does not allege that he filed any internal positions with the company charge with the EEOC. When asked but did not receive either. He asked on his form Complaint the date that he filed a charge with the EEOC, he an investigation into an alleged responded, “N/A,” and did not violation, see 42 U.S.C. § 2000e-3(a), complete any further information on Henry did not allege that he did either the topic. Without having first of those things or that his employer exhausted his administrative reduced his hours or terminated him remedies with the EEOC, Henry’s because he did. Therefore, Henry’s Title VII and ADEA claims are Title VII claims should be dismissed. procedurally barred and should be dismissed. See id. C. Age Discrimination
B. Title VII Discrimination Similarly, had Henry alleged he exhausted his administrative Even had Henry alleged that he remedies, he did not sufficiently exhausted his administrative allege he was discriminated against remedies prior to filing this suit, he because of his age. The ADEA failed to plausibly allege a violation of prohibits employers from Title VII. Employers cannot “discriminat[ing] against any “discharge any individual, or individual [who is at least 40 years of otherwise . . . discriminate against any age] with respect to his compensation, individual with respect to his terms, conditions, or privileges of compensation, terms, conditions, or employment, because of such privileges of employment, because of individual’s age.” 29 U.S.C. such individual’s race . . . [or] sex . . . .” §§ 623(a)(1), 631(a). Henry has not 42 U.S.C. § 20003-2(a)(1); see also alleged that his employer took any Bostock v. Clayton Cnty., 590 U.S. action against him related to his age. 644 (2020) (holding that Title VII Thus, his ADEA claim should be protects against discrimination based dismissed. on sexual orientation). “[A] Title VII plaintiff is required to allege facts to D. State Law Claims satisfy the elements of a cause of action created by statute[,]” “not Henry’s remaining claims arise under plead a prima facie case of state law. “‘Although a federal court discrimination.” Bing v. Brivo Sys., has discretion to assert LLC, 959 F.3d 605, 616 (4th Cir. [supplemental] jurisdiction over state 2020). claims even when no federal claims remain, . . . “if the federal claims are Here, there are simply no allegations dismissed before trial . . . the state that Henry’s employer took any action claims should be dismissed” without because of Henry’s race or his sexual prejudice.’” Spanos v. Vick, 576. F. orientation. And, while employers are Supp. 3d 361, 369 (E.D. Va. 2021) also prohibited from retaliating (quoting Alexandria Resident against an employee who reports a Council, Inc. v. Alexandria Redev. & violation of Title VII or participates in Hous. Auth., 11 F. App’x 283, 287 (4th Cir. June 6, 2001) (quoting United forma pauperis, Docket Entry 1, is Mine Workers v. Gibbs, 383 U.S. 715, GRANTED for the limited purpose 726 (1966)). Accordingly, Henry’s of allowing the Court to consider a state law claims should also be recommendation of dismissal. It is dismissed. RECOMMENDED that this case be dismissed under 28 U.S.C. II. CONCLUSION § 1915(e)(2)(B)(ii) for failure to state a claim. It is therefore ORDERED that Henry’s application to proceed in
J Gibson McFadden United States Magistrate Judge
March 2, 2026 Durham, North Carolina