Huggins v. NC Dept of Administration et al

Filing 60

ORDER adopting 37 Memorandum and Recommendations; granting in part and denying in part 9 Motion to Dismiss; and denying 16 Motion for Leave to File - Motions lodged at docket entries 38 , 43 , 48 and 56 are REFERRED to Magistrate Judge Daniel. Signed by Chief Judge Louise Wood Flanagan on 09/01/2011. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5: 1O-CV-4l4-FL
LINDA K HUGGINS,
Plaintiff,
v.
N.C. DEPT. of ADMINISTRATION, N.C.
HUMAN RELATIONS COMMISSION"
Defendant.

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ORDER

This matter comes before the court on defendant's motion to dismiss (DE # 9) and plaintiffs
motion for leave to file amended complaint (DE # 16). Pursuant to 28 U.S.c. § 636(b)(1) and
Federal Rule of Civil Procedure neb), United States Magistrate Judge David W. Daniel entered a
memorandum and recommendation ("M&R") wherein he recommends that the court grant in part
and deny in part defendant's motion to dismiss and grant in part and deny in part plaintiffs motion
to amend. The magistrate judge denied plaintiff s motion for appointment of counsel. Both parties
timely filed objections to the M&R, and both parties filed responses.! In this posture, the issues
raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the
magistrate judge as modified below, grants in part and denies in part defendant's motion to dismiss,
and denies plaintiffs motion to amend.

1 Plaintiff filed a sur-reply in response to defendant's response to her objections to the M&R. The Local Rules of this
district prohibit the filing of surreplies without leave of court. See Local Civil R. 7.]. Plaintiff did not obtain leave to
file her surreply. Nevertheless the court has considered it. Plaintiff is reminded that though she is pro se, she still must
comply with the local rules.

BACKGROUND
The following is a brief recitation ofthe facts as alleged in plaintiff s complaint and proposed
amended complaint and considered in the light most favorable to plaintiff. Plaintiff was employed
by defendant North Carolina Department of Administration, North Carolina Human Relations
Commission ("NCDOA"), from May 1, 2004, until she was terminated on January 30, 2009.
Plaintiffalleges that in August 2006, she began to experience discriminatory treatment from director
George Allison in the form of poor evaluations, written warnings, and verbal assaults and threats.
Plaintiff subsequently filed two charges with the Equal Employment Opportunity Commission
("EEOC"). The first EEOC charge was filed on or about May 18,2008, and the second was filed
on or about March 16,2009. In these charges, plaintiffalleged discrimination based on sex, religion,
and retaliation. On or about July 9, 2010, plaintiff received a right to sue letter from the EEOC.
On October 7, 2010, proceeding pro se and in forma pauperis, plaintiff filed complaint
alleging discrimination based on race, sex, religion, and retaliation in violation of Title VII of the
Civil Rights Act of 1964. Defendant filed motion to dismiss under Rule 12(b) of the Federal Rules
of Civil Procedure for insufficient service of process and failure to state a claim upon which relief
can be granted. On November 29, 2010, plaintiff filed a motion for leave to amend her complaint
to add several individual defendants, including George Allison ("Allison"), Richard Boulden
("Boulden"), Valerie Branch ("Branch"), Sally Lind ("Lind"), Sondra Chavis ("Chavis"), McKinley
Wooten ("Wooten"), and Traci Rosvall ("Rosvall"), claims for discrimination in violation ofNorth
Carolina state law, claims for emotional distress, and a request for punitive damages. On December
6, 2010, plaintiff filed a motion for appointment of counsel, which motion the magistrate judge
denied in the M&R.
2

On April 24, 2011, the court ordered plaintiffto file proof of service in conformity with Rule
4(1) of the Federal Rules of Civil Procedure, and on May 4, 2011, plaintiff filed proof of service,
lodged on the docket at entry 34. The proofof service indicates that on November 27,2010, plaintiff
served a copy of her complaint via certified mail on Zeke Creech, defendant's process agent, and
Moses Carey, defendant's chief executive officer (DE # 34, Ex. B.) The proof of service also
indicates that on December 23, 2010, plaintiff served her amended complaint via certified mail on
the same individuals (DE # 34, Ex. C.)

DISCUSSION
A.

Standard of Review
The district court reviews de novo those portions of a magistrate judge's M&R to which

specific objections are filed. 28 U.S.c. § 636(b). The court does not perform a de novo review
where a party makes only "general and conclusory objections that do not direct the court to a specific
error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d
44,47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear
error," and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,200 (4th Cir.1983).
Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1 )(c).
B.

Analysis
1.

Service of Process

A summons must be properly served before a federal court may exercise personal jurisdiction
over a defendant. Omni Capitallnt'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Rule 4 of
3

the Federal Rules of Civil Procedure provides that a state-created governmental organization, such
as the NCDOA, may be served by "delivering a copy of the summons and of the complaint to its
chief executive officer" or "serving a copy of each in the manner prescribed by that state's law for
serving a summons ...." Fed. R. Civ. P. 40)(2). As the magistrate judge noted, under North
Carolina law, an agency of the state may be served by:
[P]ersonally delivering a copy of the summons and of the complaint to the process
agent appointed by the agency in the manner hereinafter provided; by mailing a copy
of the summons and of the complaint, registered or certified mail, return receipt
requested, addressed to said process agent; or by depositing with a designated
delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the
summons and complaint, addressed to the process agent, delivering to the addressee,
and obtaining a delivery receipt. As used in this subdivision, "delivery receipt"
includes an electronic or facsimile receipt.
N.C. Gen. Stat. § lA-I, Rule 40)(4).
As the magistrate judge noted, the first attempted service of plaintiff s complaint by the U.S.
Marshal was not properly made on defendant's chiefexecutive officer or process agent, Moses Carey
and Zeke Creech. Plaintiff s proof of service, however, shows that on November 27, 2010, plaintiff
sent by certified mail a copy of her complaint to these individuals (DE # 34, Ex. 8.) The certified
mail receipt that reflects this service does not appear to be stamped. However, plaintiffs proof of
service also shows a stamped certified mail receipt for the service of a copy of her amended
complaint, sent December 23,2010, to Carey and Creech. (DE # 34, Ex. C.)
While plaintiff s pro se status makes her filings difficult to follow, it appears she has
complied with the rules for serving defendant with complaint and summons within the 120 day
period proscribed by Rule 4(m). Defendant's objection cites case law that is not binding on this
court and offers no more than a conclusory argument that the motion to dismiss should be granted

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for failure to serve the summons and complaint. Additionally, "when service of process gives a
defendant actual notice of the pending action, the courts may construe the Federal Rules of Civil
Procedure liberally 'to effectuate service and uphold the jurisdiction of the court, thus insuring the
opportunity for a trial on the merits.''' Bess v. County of Cumberland, 2011 WL 3055289 at *2
(E.D.N.C. 2011) (citing Karlsson v. Rabinowitz, 318 F.3d 666, 668 (4th Cir. 1963)). Here,
defendant does not deny that it had notice ofthis action, and does not identifY any prejudice that has
arisen from any alleged technical defect in service. Moreover, pro se litigants are allowed a certain
amount of lenity compared to represented parties. ld. (citations omitted). Defendant's objection
is overruled.
2.

Failure to Exhaust

Defendant contends that plaintiff has failed to exhaust her administrative remedies with
respect to her race discrimination claim, and moves to dismiss plaintiffs complaint on this ground.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules tests the sufficiency of the facts
pleaded in the complaint. It determines whether a claim is stated; it does not resolve issues of
disputed facts, the merits of a claim, or the applicability of defenses. Republican Party v. Martin,
908 F.3d 943, 953 (4th Cir. 1992). When reviewing a motion to dismiss, the court considers the
complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual
allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). Generally, if a court
considers matters outside the complaint in ruling on a motion to dismiss, the motion is treated as one
for summary judgment under Rule 56. Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However,
a court may consider "official public records, documents central to plaintiff s claim, and documents
sufficiently referred to in the complaint, so long as the authenticity of these documents is not

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disputed" without converting the motion to dismiss into a motion for summary judgment. Wittholm
v. Fed. Ins. Co., 164 Fed. App'x 395, 396-97 (4th Cir. 2006).
As the magistrate judge noted, plaintiff expressly referenced her EEOC charges in her
complaint. Defendant filed a copy of the second EEOC charge with its reply. There being no
dispute as to the authenticity of the EEOC charges, the court considers the second charge without
converting the instant motion into one for summary judgment. See Spain v. Va. Commonwealth
Univ., 2009 WL 2461662, at *3 (E.D.Va. 2008).
Before bringing a discrimination claim under Title VII, a plaintiff must first file a
discrimination charge with the EEOC. This charge determines the scope of the plaintiff's right to
bring a subsequent Title VII action in federal court. See, e.g., Bryant v Bell At!. Md., Inc., 288 F.3d
124, 132 (4th Cir. 2002). "[O]nly those discrimination claims stated in the initial charge, those
reasonably related to the original complaint, and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent Title VII lawsuit."

Evans v. Techs.

Applications & Servs. Co., 80 F.3d 954, 963 (4th Cir. 1996). As the magistrate judge noted, a
plaintiff's fai lure to exhaust administrative remedies in an EEOC action deprives the court of subject
matter jurisdiction over the claim. Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
The Fourth Circuit takes a narrow approach to determining ifclaims are "reasonably related"
to or "developed by reasonable investigation of' the original complaint. Evans, 80 F.3d at 963. If
the EEOC charge alleges discrimination on one basis, and the federal action alleges discrimination
on a different basis, the separate federal claim will generally be barred. Jones, 551 F.3d at 300. The
Fourth Circuit has held that a plaintiff may not expand an adverse employment action beyond the

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allegations stated in the original EEOC charge. Chako v. Patuxent Institution, 429 F.3d 505, 509
(4th Cir. 2005).
The magistrate judge found that plaintiffhad not exhausted her administrative remedies with
regard to her claim of race discrimination. The magistrate judge noted that plaintiff conceded that
her first EEOC charge only included allegations of discrimination based on sex, religion, and
retaliation. Plaintiff claimed that her second EEOC charge was based on "race and color" in addition
to sex, religion, and retaliation, yet plaintiff did not mark the boxes on the charge to indicate that
race/color was a basis for the alleged discrimination (M&R 6.) Furthermore, the magistrate judge
noted that in the "particulars" section of the second EEOC charge, plaintiff stated that she believed
she was discriminated against based on her sex, her religion, and retaliation only. While plaintiffs
proposed amended complaint states that after she became aware of the racial discrimination she
lodged complaint with the EEOC, no EEOC charge that plaintiff filed mentions race discrimination,
and there is no evidence plaintiff filed a third charge.
In her objection, plaintiff cites Jones to argue that her race discrimination claim should be
allowed because it was due to "ongoing" events. (Pl.'s Obj. 2.) However, a review of Jones
supports the magistrate judge's conclusion. In Jones, the Fourth Circuit found that the plaintiff had
not exhausted her administrative remedies when her complaint alleged discrimination based on age,
sex, and race and second EEOC charge alleged only retaliation. Jones, 551 F.3d at 301. The
plaintiff was not required to file a new EEOC charge alleging retaliation before claiming retaliatory
termination in a Title VII suit when the plaintiff alleged that the retaliation happened as a result of
the filing of an earlier EEOC charge, which also alleged retaliation. Jones, 551 F.3d at 304. The
present case is different. Plaintiffnever alleged race discrimination in any ofher EEOC charges, and
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plaintiffs retaliation claim is not at issue, as was the case in Jones. As such, plaintiff has failed to
exhaust her administrative remedies with regard to her claim of race discrimination, and the court
lacks subject matter jurisdiction to address it. Defendant's motion to dismiss this claim is granted
in part. Plaintiffs objection is overruled.
3.

Motion to Amend

Plaintiff seeks leave, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to
amend her complaint to add (1) several individual defendants, (2) claims for discrimination in
violation of state public policy, or the North Carolina Equal Employment Practices Act
("NCEEPA"), (3) claims for emotional distress, and (4) a claim for punitive damages. As the
magistrate judge noted, the disposition of a motion to amend is entrusted to a court's sound
discretion. Forman v. Davis, 371 U.S. 178, 182 (1962). A court should deny a motion to amend
only where prejudice, futility, or bad faith are present. Island Creek Coal Co. v. Lake Shore, Inc.,
832 F.2d 274, 279 (4th Cir. 1987). The magistrate judge found that plaintiffs motion to amend
should be granted only as to the emotional distress claims with respect to Allison, Boulden, Lind,
and Branch. 2
As to the individual defendants, the magistrate j udge found that plaintiffs motion to amend
should not be allowed with regard to the Title VII and NCEEPA claims because amendment would
be futile as Title VII and the NCEEPA do not provide for individual liability. See McQuade v.
Xerox Corp., 2011 WL 344091, at *5 (E.D.N.C. 2011); Chungv. BNR, Inc.lNorthem Telecom, Inc.,
16 F. Supp. 2d 632, 634 (E.D.N.C. 1997). With respect to her claims against NCDOA, the

Plaintiff made no specific allegations against Rosvall, Chavis, or Wooten in her proposed amended complaint with
respect to her emotional distress claims.

2

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magistrate judge found that plaintiff should not be allowed to amend her complaint to include a
claim under the NCEEPA because the claim would be barred by the doctrine of sovereign immunity.
See, e.g., Hooperv. North Carolina, 379 F.Supp.2d 804,814 (M.D.N.C. 2005); Dai v. Univ. ofN.C.
at Chapel Hill, 2003 WL 22113444, at *4-5 (M.D.N.C. Sept. 2, 2003).

Likewise, plaintiffs

emotional distress claims against NCDOA would also be barred by sovereign immunity. Walton v.
N.C. Dep't of Agric. & Consumer Servs., No. 5:09-CV-302-FL, slip. op. at 4-7 (E.D.N.C. Feb. 17,
2010). Additionally, the magistrate judge found that punitive damages could not be recovered
against the NCDOA. See Holley v. N.C. Dep'tof Admin., 2010 WL 2332155, at * 1 (E.D.N.C. June
8,2010).
a.

Individual defendants

Plaintiff and defendant both filed objections to this portion of the M&R. Defendant first
objects that individual defendants are not liable in their individual capacities under Title VII. It is
unclear why defendant has filed this objection, as the M&R clearly states that it recommends denying
plaintiffs motion to amend as to the individual defendants with respect to plaintiffs Title VII and
NCEEPA claims.

The court agrees with the magistrate judge's recommendation.

As such,

defendant's obj ection is overruled as moot.
Plaintiffobjects to the magistrate judge's recommendation to deny her motion to amend with
regard to the Title VII and NCEEPA claims against the individual defendants. Plaintiffcontends that
eleventh amendment immunity is not automatic immunity and that individual defendants may be
liable under Title VII under Hafer v. Melo, 502 U.S. 21 (1991). Hafer stands for the proposition that
state officials, sued in their individual capacities, are "persons" within the meaning of 42 U.S.C. §
1983, and that the Eleventh Amendment does not bar § 1983 suits, nor are state officers absolutely

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immune from personal liability under § 1983 solely by virtue ofthe official nature of their acts. 502
U.S. at 365. Hafer is irrelevant to the present case because plaintiff has not filed suit under § 1983.
Plaintiffs objection states that she sued for "monetary damages under41 U.S.c. § 1983," (Resp. 13),
but neither the complaint nor the proposed amended complaint state § 1983 as a basis for her suit.
Section 1983 prohibits any person acting "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia," from depriving the "rights,
privileges, or immunities secured by the Constitution and laws" of an individual within the
jurisdiction of the United States. 42 U.S.C. § 1983. The Fourth Circuit has held that "Title VII does
not provide the exclusive remedy for discrimination in employment ... , and public employees are
entitled to bring a § 1983 action asserting Equal Protection claims." Campbell v. Galloway, 483 F.3d
258,272 n.5 (4th Cir. 2007). The same burden-shifting analysis the court employed with respect to
Title VII is applicable in an employment discrimination action under § 1983. See Love-Lane v.
Martin, 355 F.3d 766, 786 (4th Cir. 2004).
The critical difference between Title VII and § 1983 is which entities may properly be named
as defendants. Only an "employer" is liable under Title VII; as noted above, the statute does not
permit individual liability. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998).
By contrast, a § 1983 claim generally may only be alleged against a state official acting in his or her
individual capacity, see Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989), and a state
department of administration would therefore not be a proper defendant, see Googerdy v. N.C. Agr.
& Tech. State Univ., 386 F. Supp. 2d 618, 625 (M.D.N.C. 2005) (excluding a state university from

liability under § 1983 because it is an alter ego of the State of North Carolina); Holley, 2010 WL
2332155, at *1 (noting that NCDOA is an "arm ofthe state ofNorth Carolina"). Here, plaintiff has

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properly brought her Title VII claim against NCDDA, but plaintiff cannot bring a Title VII claim
against the individual defendants. Plaintiff has attempted to make arguments referencing § 1983 in
her objections, but she has not included a proper claim under § 1983 in either her complaint or
amended complaint. Likewise, individual defendants cannot be liable under NCEEPA, Chung v.
BNR, Inc.lNorthem Telecom, Inc., 16 F. Supp. 2d 632, 634 (E.D.N.C. 1997), and as plaintiffdid not
object to or address this point, plaintiffs objections are overruled.
Lastly, plaintiffs objections to the M&R are confined primarily to her discussion of the
individual defendants and she does not address the magistrate judge's findings regarding the
NCEEPA claims or claims for punitive damages with regard to NCDDA. After careful review of
the M&R, the court agrees with the magistrate judge's findings and does not address those issues
herein. Accordingly plaintiff s motion to amend is denied with respect to the Title VII and NCEEPA
claims against individual defendants and denied with respect to the NCEEPA and punitive damages
claims against NCDDA.
b.

Emotional Distress Claims

Defendant also objects to the magistrate judge's recommendation that plaintiffs motion to
amend with regard to her claims for emotional distress against Allison, Boulden, Lind, and Branch,
be allowed. Upon careful review of plaintiffs amended complaint, the M&R, and the responsive
briefings, and keeping in mind plaintiffs pro se status, the court agrees with defendant that
plaintiffs proposed amended complaint does not allege sufficient facts to state a claim for either
intentional infliction of emotional distress or negligent infliction of emotional distress. See Cuffee
v. Verizon Commc'ns, Inc., 755 F.Supp.2d 672, 677-81 (D. Md. 2010) (denying plaintiffs motion

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for leave to file amended complaint because claims for emotional distress would not survive motion
to dismiss and therefore amendment considered futileV
Reading the proposed amended complaint in the light most favorable to plaintiff, she alleges
both intentional infliction of emotional distress ("lIED") and negligent infliction of emotional
distress ("NIEO"). The "essential elements" ofan action for intentional infliction ofemotion distress
are: "I) extreme and outrageous conduct by the defendant, 2) which is intended to and does in fact
cause 3) severe emotional distress." Waddle v. Sparks, 331 N.C. 73, 82-83, 414 S.E.2d 22, 27
(1992). Whether the alleged conduct is sufficiently extreme and outrageous is a question of law.
Thomas v. Northern Telecom, 157 F.Supp.2d 627, 635 (W.O.N.C. 2000). To be considered
"extreme and outrageous" the conduct must be "so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." ld. (citing Hogan v. Forsyth Country Club Co., 79 N.C. App.
483, 493, 390 S.E.2d 116, 123 (1986)).

To show extreme and outrageous conduct in the

employment context, there is an "extremely rigorous standard." Thomas, 157 F.Supp.2d at 635.
Discharge from employment, even if unlawful, does not by itself amount to outrageous conduct.
English v. Gen. Elec. Co., 977 F.2d 572 at *7 (4th Cir. 1992) (citing Haburjak v. Prudential Bache
Securities, 759 F.Supp. 293 (W.O.N.C. 1991 )). Similarly, demotion alone does not amount to
outrageous conduct. Id. (citing Hardin v. Champion In1'l Corp., 685 F.Supp. 527 (W.O.N.C. 1987)).

3 In recommending that plaintiffs motion to amend should be granted with respect to the emotional distress claims
against Allison, Boulden, Lind, and Branch, the magistrate judge cited Walton v. N.C. Dep't of Agric. & Consumer
Servs., No. 5:09-CY-302-FL, slip. op. at 4 (E.D.N.C. Feb. 15,2010). While the court acknowledges that it permitted
amendment of a complaint including emotional distress claims in that case, the court finds that the present case is
distinguishable. Here, unlike in Walton, after careful review of the proposed amended complaint, the court has
determined that none of plaintiffs emotional distress claims would survive a motion to dismiss.

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The court finds that even reading the facts as alleged in plaintiff s proposed amended
complaint in the light most favorable to her, plaintiff has not plead facts sufficient to meet the first
element a claim for lIED. Plaintiffcontends that defendant retaliated against her in violation ofTitle
VII, discriminated against her on the basis of her sex and religion, denied plaintiffjob assignments,
promotion and opportunities, and granted more favorable terms of employment to others. Plaintiff
also alleges that defendant decided to "zero-in" on plaintiff and review her performance in an
arbitrary manner and that she was given short deadlines to complete assignments that were
impossible to meet. (Prop. Am. CompI. 5.) Plaintiff alleges that defendant assigned her more
difficult and demanding work than was assigned to others, and that defendant subjected the female
employees to more onerous working conditions which consisted of subjecting plaintiff to more
rigorous review than others received. Plaintiff also alleges that she was not permitted to take days
off for religious reasons, and that on a particular day she planned to take off, she was ordered to
abandon her plans and remain at work on the pretext that she had not properly scheduled her time
off. (ld. at 5.) Plaintiff alleges that her evaluations at work were subjective, inaccurate, and false,
and that certain coworkers fabricated stories about plaintiff that were later found to be untrue.
The Fourth Circuit has acknowledged the stringent standard for outrageous conduct. In
Keziah v. W. M. Brown & Son, 888 F.2d 322 (4th Cir. 1989), the district court's grant of summary
judgment for defendant was affirmed on plaintiffs lIED claim when plaintiff alleged, among other
things, that her telephone messages were withheld and used by male sales representatives to usurp
her sales leads, information was secretly removed from her files and mail, and she was harassed,
humiliated, and otherwise subject to an adverse employment environment. Id. at 326. The case law
is replete with scenarios arguably more outrageous than what plaintiff has described that have been
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found insufficient to constitute extreme and outrageous conduct. See, e.g., Smith v. Computer Task
Group, Inc., 568 F.Supp.2d 603, 622 (M.D.N.C. 2008) (finding no extreme or outrageous conduct
when employer allegedly intentionally terminated plaintiffs employment, health benefits, and
worker's compensation benefits even though employer was aware of an injury plaintiff sustained
while on the job); Atkins v. U.S.F. Dugan, Inc., 106 F.Supp.2d 799,810-11 (M.D.N.C. 1999)
(finding conduct not extreme or outrageous when employee was told he was too old and sick to
handle his job and was allegedly terminated in violation of federal and state discrimination laws);
Pardasani v. Rack Room Shoes, Inc., 912 F.Supp. 187, 192 (M.D.N.C. 1996) (finding conduct not
extreme and outrageous when plaintiff alleged he was given poor performance evaluations, denied
promotions available to others, excluded from training, and finally terminated); Hogan, 79 N.C. App.
at 493-94, 340 S.E.2d at 122-23 (finding conduct not extreme or outrageous when coworker
screamed and shouted at plaintiff, called her names, and threw menus at her).
Furthermore, many of plaintiffs allegations are conclusory recitations that conduct was
extreme and cruel, that she was subject to mistreatment, and that she suffered "severe emotional
distress," that "defendants' conduct was egregious, outrageous, extreme, and of the sort not to be
tolerated in a civilized society," and that she suffered "physical pain and suffering" as a result of
defendants' conduct. (Prop. Am. CompI. 2-9.) These kinds of allegations are conclusory, and
without more than the facts as alleged, do not sufficiently raise a claim for lIED.
Plaintiff also makes a claim for NIED in her proposed amended complaint. To state a claim
for NIED, a plaintiff must allege: (1) the defendant negligently engaged in conduct, (2) it was
reasonably foreseeable that such conduct would cause the plaintiffsevere emotional distress, and (3)
the conduct did in fact cause the plaintiff severe emotional distress." McAllister v. Ha, 347 N.C.
14

638,646,496 S.E.2d 577, 582-83 (1998) (citations omitted). Plaintiff does not state a claim for
NIED as to any of the defendants.
In a claim for NIED, a plaintiffcannot simply restate facts regarding intentional behavior that
form the basis for a claim of lIED to form a claim for NIED. See, e.g., Mitchell v. Lydall, Inc .. 1994
WL 38703, at *3 (4th Cir.1994) (finding a claim for NIED is subject to dismissal when "the material
factual allegations charge nothing but intentional acts"); Bonham v. WolfCreek Academy, 2011 WL
576956, at * 11 (W.D.N.C. Feb. 9,2011) (finding plaintiff stated insufficient facts to form a claim
for NIED when plaintiffmerely restated the same facts that were the basis for plaintiffs lIED claim).
Additionally, even if plaintiff alleges negligent conduct, a plaintiff claiming NIED must still prove
that her employer should have realized that its conduct involved an unreasonable risk of causing
emotional distress.

See Faulkner v. Tyco Electronics Corp., 552 F.Supp.2d 546, 559

(M.D.N.C.,2008) (citing Johnson v. Ruark Obstetrics and Gynecology Assocs., P.A., 327 N.C. 283,
304,395 S.E.2d 85, 97 (1990)). The plaintiff must also show that her employer was aware that such
distress might result in illness or bodily harm. Id.
While plaintiff s proposed amended complaint confuses her claims for lIED and NIED, the
court, liberally construing plaintiffs pro se filing, has fully considered plaintiffs proposed claims
for NIED, and finds that amendment would be futile. Plaintiffhas not sufficiently stated a claim for
NIED. In particular, plaintiff has not alleged that defendant or proposed defendants engaged in
negligent conduct. Notably, plaintiff s proposed amended complaint states that defendants practiced
"intentional" bias against women and engaged in a practice of "intentional discrimination." (Prop.
Am. CompI. 5, 7.) Plaintifflikewise alleges that defendants "designed and intended to inflict severe
emotional distress" upon her. (ld.) While plaintiff includes conclusory allegations that she suffered

15

emotional distress as a "proximate cause" of various defendants' actions, such statements do not
form a claim for NIED. Even construing plaintiffs amended complaint liberally, the proposed
amendment is futile. 4
Accordingly, plaintiff s motion to amend her complaint with respect to the emotional distress
claims is denied as to all defendants. The court has not allowed any of the claims in the proposed
amended complaint to go forward because amendment would be futile, and as such, plaintiffs
motion to amend is denied.
4.

Motion for Counsel

Plaintiff objects to the magistrate judge's denial of her motion for counsel. Upon review of
the magistrate judge's ruling, the court agrees with the findings as laid out in the M&R. As such,
plaintiffs objection is overruled.
5.

Pending Discovery Motions

There are currently several pending motions regarding discovery issues in this case. Not all
of the motions are ripe. To promote efficiencies and ensure that this case proceeds expeditiously in
light of the decisions reached herein, the court DIRECTS the Clerk to REFER the motions lodged
at docket entries 38, 43, 48, and 56 to Magistrate Judge David W. Daniel.

In light of the court's denial of plaintiffs motion to amend her complaint with respect to her claims for emotional
distress, it is unnecessary for the court to address several ofdefendant's objections, inc Iud ing defendant's objections that
liED and N lED cannot be brought in federal court, defendant's objections regarding its discovery requests related to
plaintiffs claims for emotional distress, and its arguments related to immunity of public officials from liability for
negligent conduct.

4

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CONCLUSION
Upon de novo review of those portions of the magistrate judge's M&R to which specific
objections have been filed, and upon considered review of those portions of the M&R to which no
such objection has been made, the court ADOPTS the findings and recommendations of the
magistrate judge as set forth above, GRANTS in part and DENIES in part defendant's motion to
dismiss (DE # 9), and DENIES plaintiffs motion to amend (DE # 16). Motions lodged at docket
entries 38, 43, 48 and 56 are REFERRED to
SO ORDERED, this the

M~gistrate

Judge Daniel.

I~ day of September, 2011.

a.FiAN~N -0
Chief United States District Judge

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