IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NORTH CAROLINA
`WESTERN DIVISION
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`NO. 5:24-CV-596-FL
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`ALEXANDER NICHOLI,
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` P l a i n t i f f ,
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` v.
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`NC DETECTIVE AGENCY, INC.,
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` Defendant.
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`ORDER
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`This matter is before the court on defendant’s motion to dismiss pursuant to Federal Rule
`of Civil Procedure 12(b)(6) (DE 19). Plaintiff responded in opposition, and in this posture the
`issues raised are ripe for ruling. For the following reasons, the motion is granted, and plaintiff is
`allowed leave to amend his complaint, as set forth herein.
`STATEMENT OF THE CASE
` Plaintiff, proceeding pro se, commenced this action October 18, 2024, and filed amended
`complaint February 18, 2025, against defendant, his former employer .
`1 Plaintiff alleges defendant
`discriminated and retaliated against him in violation of the Americans with Disabilities Act, 42
`U.S.C. §§ 12101 et seq. (“ADA”).
`2 He seeks injunctive relief, back and front pay, compensatory
`and punitive damages, interest, and costs.
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`1 Plaintiff initially named “North Caro lina Detective Agency, Inc.” as defendant, but following a first motion
`to dismiss filed by defendant, plaintiff filed the operative amended complaint. Unless otherwise specified, all further
`references to the “complaint” in this order or to “Compl.” in citations are to the operative amended complaint at docket
`entry 15.
`2 Plaintiff also cites Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. However, where
`he makes no allegation or argument that such statute applies, the court does not address it.
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` For good cause shown and over plaintiff’s objection, the court granted defendant extension
`of time to respond to amended complaint. Accordingly, defendant filed the instant motion March
`17, 2025, seeking dismissal for failure to state a claim.
`In response, plaintiff attempted to file second amended complaint March 28, 2025,
`accompanied by charge of discrimination and notice of right to sue from the United States Equal
`Employment Opportunity Commission (“EEOC”), NCDA Formal Complaint, and separation
`notice. Where such filing was not made with leave of court or defendant’s consent, the court struck
`the second amended complaint as filed out of compliance with Rule 15(a). Plaintiff then responded
`in opposition to the instant motion April 4, 2025.
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`Defendant did not reply, and the time to do so has expired.
`STATEMENT OF FACTS
` The facts as alleged in the complaint may be summarized as follows.
` Plaintiff began working for defendant as a security guard February 14, 2024. (Compl. (DE
`15) ¶ 14). Early in plaintiff’s employment, his supervisor and site director Alexander Rogers
`(“Rogers”) granted plaintiff permission to use “pen and paper on the floor to keep [plaintiff] awake
`and attentive on the job.” (Id. ¶ 21).
` On March 2, 2024, plaintiff “experienced workplace harassment from a supervising officer,
`Thomas Lee [(‘Lee’)], which he believes was racially charged in character.” (Id. ¶ 16). The next
`day, plaintiff submitted a formal complaint about the racial harassment to Rogers. (Id. ¶ 17). Two
`days later, on March 5, 2024, Rogers held a meeting with plaintiff and Lee. (Id. ¶ 19). During
`that meeting, Rogers and Lee “further engaged in targeted and discriminatory bullying of Plaintiff
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`3 Where “[p]ro se filings are to be construed liberall y,” the court reads plaintiff’s attempted second amended
`complaint and attached documents as part of his response to the instant motion. Sanford v. Clark, 52 F.4th 582, 587
`(4th Cir. 2022).
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`in retaliation for his complaint of workplace harassment and hostile work environment.” (Id.).
`Plaintiff then “experience[d] a panic attack which was expressed vocally through his Tourette
`syndrome.” (Id.). Through a “spat of verbal tics characteristic of Tourette Syndrome . . . Plaintiff
`covered his eyes and repeatedly and compulsively asked Mr. Lee and Mr. Rogers to ‘stop.’ ” (Id.
`¶ 25).
` The next day, plaintiff was transferred to a different job site, and no remedial action was
`taken against Lee. (Id. ¶ 20). Along with the tran sfer, “Rogers retaliated against the complaint
`and his experience with [plaintiff’s] disability by revoking [plaintiff’s] permission [to use pen and
`paper] without just cause.” (Id. ¶ 21).
` Plaintiff submitted an addendum to his formal complaint the morning of March 11, 2024.
`(Id. ¶ 22). This addendum included “complaint based on discrimination of sexual orientation by
`both Mr. Rogers and Mr. Lee and discrimination of race by Mr. Lee, as well as allegations of
`workplace harassment and creating a hostile work environment on the same protected
`characteristic basis.” (Id.). That afternoon, plaintiff received a separation notice, informing him
`that his employment was terminated, in part due to a “lapse in mental stability.” (Id. ¶ 23).
` Defendant then “complain[ed]” to the North Carolina Private Protective Services Board
`“that Plaintiff’s disability makes him unfit for duty.” (Id. ¶ 30).
`COURT’S DISCUSSION
`A. Standard of Review
`To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft
`v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
`“Factual allegations must be enough to raise a right to relief above the speculative level.”
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`Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-
`pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not
`consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further
`factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
`Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
`B. Analysis
` A plaintiff asserting a retaliation or discrimination claim is “required to allege facts to
`satisfy the elements of a cause of action created by the relevant statute in compliance with Iqbal.”
`Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017). The court examines each of
`plaintiff’s claims in turn.
`1. Retaliation
`Defendant argues plaintiff fails to state a claim for retaliation under the ADA.
`4 “Employers
`violate the ADA by retaliating against an employee for engaging in ADA protected activity.”
`Israelitt v. Enterprise Servs. LLC, 78 F.4th 647, 655 (4th Cir. 2023). ADA protected activities
`include “oppos[ing] any act or practice made unlawful by [the ADA],” or making “a charge,
`testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing
`under [the ADA].” 42 U.S.C. § 12203(a); see Tartaro-McGowan v. Inova Home Health, LLC, 91
`F.4th 158, 165 (4th Cir. 2024).
`Plaintiff alleges defendant retaliated by transferring him to a different worksite, revoking
`his permission to use pen and paper while working, and terminating his employment. However,
`plaintiff does not allege that he engaged in ADA protected activity prior to any of these acts by
`defendant. Plaintiff’s only formal complaint prior to his transfer and permission revocation
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`4 Where plaintiff reiterates that “[t]his suit was brought under the pretext of the ADA, not Title VII,” the court
`analyzes the sufficiency of his claims only under the ADA. (Pl’s Resp. (DE 24) ¶ 1).
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`regarded an encounter with a supervisor “which he believes was racially charged in character.”
`(Compl. (DE 15) ¶ 16). Although plaintiff amended this formal complaint, his amendment alleged
`“discrimination of sexual orientation,” “discrimination of race,” “workplace harassment[,] and
`creating a hostile work environment on the same protected characteristic[s].” (Compl. (DE 15) ¶
`22). Because the ADA does not protect against racial or sexual orientation-based discrimination,
`making such complaints is not “ADA protected activity.” See Israelitt, 78 F.4th at 655.
`Where plaintiff does not plausibly allege engagement in ADA protected activity, he fails
`to state a claim for retaliation under the ADA.
`2. Discrimination
` Defendant argues plaintiff fails to state a claim for failure to accommodate or disparate
`treatment under the ADA.
` a. Failure to Accommodate
`Under the ADA, an employer is prohibited from “discriminat[ing] against a qualified
`individual on the basis of disability.” 42 U.S.C. § 12112(a). Such unlawful discrimination can
`include the failure to make “reasonable accommodations to the known physical or mental
`limitations of an otherwise qualified individual with a disability who is an applicant or employee.”
`Id. § 12112(b)(5)(A).
`“Before an employer is required to accommodate a disabled employee, the employee must
`make an adequate request, thereby putting the employer on notice.” Kelly v. Town of Abingdon,
`90 F.4th 158, 166 (4th Cir. 2024). “To trigger an employer’s duty to accommodate, a disabled
`employee need only communicate his disability and desire for an accommodation.” Id. “To
`properly invoke the ADA, the communication must be sufficiently direct and specific, providing
`notice that the employee needs a special accommodation for a medical condition.” Id. at 167.
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`Plaintiff argues that his expression of Tourette syndrome during the March 5, 2024,
`meeting put his employer on notice of his disability. However, there is no indication in the
`complaint that plaintiff ever made a “direct and specific” communication to defendant of a desire
`for an accommodation. Id. Therefore, any conclusion that defendant had a duty to accommodate
`is speculative.
`Where plaintiff does not plausibly allege that defendant was aware of plaintiff’s desire for
`an accommodation, his failure to accommodate claim fails.
` b. Disparate Treatment
`To state a claim for disparate treatment discrimination under the ADA, a plaintiff must
`plausibly allege that: 1) he has a disability as defined in the ADA, 2) he was a “qualified
`individual,” and 3) his employer took an adverse action against him on account of his disability.
`Young v. United Parcel Serv., Inc., 784 F.3d 192, 198 (4th Cir. 2015).
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`The ADA defines “disability” with respect to an individual as “(A) a physical or mental
`impairment that substantially limits one or more major life activities of such individual; (B) a
`record of an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §
`12102(1). An individual is “ ‘regarded as having such an impairment’ if the individual establishes
`that he or she has been subject to an action prohibited under [the ADA] because of an actual or
`perceived physical or mental impairment whether or not the impairment limits or is perceived to
`limit a major life activity.” Id. § 12102(3)(A).
`Here, plaintiff plausibly alleges that he has a disability and that defendant took an adverse
`action against him because of that disability. According to the complaint, plaintiff was terminated
`because defendant believed plaintiff “had a lapse in mental stability.” (Compl. (DE 15) ¶ 23).
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`5 Contrary to defendant’s argumen t, the McDonnell Dougla s burden-shifting framew ork is an evidentiary
`standard that does not apply at the pleading stage. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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`Additionally, defendant “complain[ed] that Plaintiff’s disability makes him unfit for duty.” (Id. ¶
`30). Construing these facts in the light most fa vorable to plaintiff, he plausibly alleges that
`defendant regarded him as having an impairment and that defendant terminated him because of
`that perceived impairment.
`However, plaintiff does not allege that he was a “qualified individual” within the meaning
`of the ADA. A qualified individual is a person who “with or without reasonable accommodation,
`can perform the essential functions of the employment position that such individual holds or
`desires.” 42 U.S.C. § 12111(8). A function is essential to a position “when ‘the reason the position
`exists is to perform that function,’ when there aren't enough employees available to perform the
`function, or when the function is so specialized that someone is hired specifically because of his
`or her expertise in performing that function.” Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d
`562, 579 (4th Cir. 2015) (quoting 29 C.F.R. § 1630.2(n)(2)).
`Here, the complaint lacks allegations of the essential functions of plaintiff’s position or of
`his ability to perform them. Plaintiff alleges he stayed “awake and attentive” when using pen and
`paper at work. (Compl. (DE 15) ¶ 21). Such minimal performance cannot reasonably be
`considered “essential” to the security guard position. 42 U.S.C. § 12111(8). Because plaintiff
`does not plausibly allege that he is a qualified individual, he fails to state a claim of ADA
`discrimination.
`C. Opportunity to Amend
`In sum, where plaintiff fails to allege sufficient facts to state a retaliation or discrimination
`claim under the ADA, defendant’s motion is granted, and plaintiff’s complaint is dismissed.
`However, where plaintiff previously attempted to file a second amended complaint, which was
`stricken by the court, and where plaintiff may be able to overcome the pleading deficiencies
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`identified herein through additional factual allegations, the court will allow plaintiff an opportunity
`to file a second amended complaint in accordance with the following directions.
`Plaintiff is directed to file a second amended complaint, if any, within 30 days of this order.
`If plaintiff seeks to continue the instant action in this court, his second amended complaint must
`set forth all relevant, specific factual allegations that “plausibly suggest an entitlement to relief.”
`Iqbal, 556 U.S. at 681; see Fed. R. Civ. P. 8. The second amended complaint will be considered
`the complaint in its entirety, and the court will not review plaintiff’s prior filings or other
`documents in the record to identify any misplaced claims. In the event plaintiff fails to file a
`second amended complaint within 30 days of this order as directed, the clerk is directed to close
`the case without further order of this court.
`CONCLUSION
` Based on the foregoing, defendant’s motion to dismiss (DE 19) is GRANTED. Plaintiff’s
`amended complaint (DE 15) is DISMISSED WITHOUT PREJUDICE. Plaintiff is allowed a
`period of 30 days from the date of this order to file a second amended complaint, in accordance
`with the directions set forth herein. If no such filing is made within 30 days, the clerk is
`DIRECTED to close this case without further order of this court.
`SO ORDERED, this the 13th day of August, 2025.
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` _____________________________
` LOUISE W. FLANAGAN
` United States District Judge
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