Flanigan v. Fayetteville State University

Filing 19

ORDER granting 8 Motion to Dismiss for Failure to State a Claim and denying 16 Motion to Amend - Signed by District Judge Louise Wood Flanagan on 01/19/2016. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-448-FL
No. 5:15-CV-527-FL

PATRICIA FLANIGAN, also known as
PATRICIA GRIFFIETH FLANIGAN
Plaintiff,
v.
FAYETTEVILLE STATE UNIVERSITY,
Defendant.

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ORDER

This matter is before the court on defendant’s motions to dismiss, filed pursuant to Federal
Rules of Civil Procedure 12(b)(6). (No. 5:15-CV-448-FL, “Case I,” DE 8; and No. 5:15-CV-527FL, “Case II,” DE 11). Plaintiff has responded in opposition, and additionally, moves to amend the
complaints in both No. 5:15-CV-448-FL (“Case I”) and No. 5:15-CV-527-FL (“Case II”). (Case
I, DE 17; Case II, DE 18). Additionally, plaintiff has moved for default judgment pursuant to
Federal Rule of Civil Procedure 55 in Case II. (Case II, DE 8). The issues have been briefed fully,
and in this posture, the matter is ripe for ruling. For the reasons stated below, the court denies
plaintiff’s motions, and grants defendant’s motions to dismiss in both cases.
STATEMENT OF THE CASE
Prior to the instant matters, plaintiff, proceeding pro se, first raised claims of racial
discrimination against defendant in this court on February 21, 2014, alleging defendant had
subjected her to “different terms and conditions of employment” since 2010, in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Flanigan v. Fayetteville
State University, et al, No. 5:14-CV-102-FL. The court dismissed the action for failure to state a
claim upon which relief can be granted on December 11, 2014.
On September 3, 2015, plaintiff, proceeding pro se, initiated the instant Case I in this court,
on the basis of federal question jurisdiction, alleging racial discrimination amounting to a hostile
work environment, and retaliation by defendant, in violation of Title VII. On October 27, 2015,
defendant moved to dismiss for failure to state a claim. On October 29, 2015, plaintiff retained
counsel in Case I, and on November 17, 2015, plaintiff, through counsel, filed a response in
opposition to dismissal, and a motion to amend the complaint. Defendant replied on November 23,
2015.
Plaintiff, proceeding pro se, initiated Case II in this court on October 6, 2015, again alleging
a racially discriminatory, hostile work environment, and retaliation, in violation of Title VII. On
December 2, 2015, plaintiff moved for default judgment. Defendant moved to dismiss the complaint
in Case II for failure to state a claim, and filed a memorandum in opposition of default judgment on
December 7, 2015, supplemented by exhibits on December 8, 2015. Plaintiff, without counsel,
responded in opposition to defendant’s motion to dismiss, and moved to amend the complaint on
December 31, 2015. Defendant replied on January 11, 2016.
STATEMENT OF THE FACTS
Plaintiff is an African American female, who has been employed by defendant since 1988,
as a library technician. Since March 2008, plaintiff has been supervised by Ms. Jinong Sun
(hereinafter “supervisor”), an Asian female. Plaintiff has two co-workers, in addition to her
supervisor, and plaintiff identifies these individuals as either Asian or Hispanic. In September 2013,

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plaintiff filed a charge of racial discrimination against defendant with the Equal Employment
Opportunity Commission (“EEOC”), and on February 21, 2014, plaintiff filed a charge of retaliation
with the EEOC. On March 6, 2014, she filed a charge of retaliation with the North Carolina Office
of Administrative Hearings (“NCOAH”).
On December 3, 2013, plaintiff’s supervisor began emailing plaintiff on a daily basis
accusing plaintiff of job infractions. On undetermined dates, the supervisor refused to approve a
leave form for plaintiff and told plaintiff she was unprofessional in her telephone conduct. On April
2, 2014, plaintiff was singled out by her supervisor during a department meeting about an error
plaintiff had made. On an unspecified date, plaintiff’s performance rating dropped from “Very
Good” to “Good.” Plaintiff contends that the other non-African American employees were not
subject to the treatment outlined above. Further, on April 7, 2015, plaintiff contends that certain
charges she made to the NCOAH were discussed among the other employees. Plaintiff received
“Notice of Right to Sue” letters from the EEOC on June 3, 2015, and July 6, 2015.
DISCUSSION
A.

Motion for Default Judgment
As an initial matter, although defendant appeared in Case I, defendant made no appearance

in Case II until December 7, 2015. Plaintiff moved for default judgment on December 2, 2015,
pursuant to Federal Rule of Civil Procedure 55, without providing further briefing. In response,
defendant argues that plaintiff never properly served defendant, and in any event, plaintiff included
a request for waiver of service within her complaint. Defendant contends that had it been properly
served, it would have consented to the waiver of service. Accordingly, defendant argues that its
motion to dismiss in Case II properly was filed within the 60 days allowed after a waiver of service.

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Due to the nature of plaintiff’s duplicate filings in Cases I and II, good cause for defendant’s delay
in Case II has been shown, and plaintiff’s motion for default judgment is denied.
B.

Motions to Dismiss
1.

Standard of Review

A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; “it does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated if the complaint
contains “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, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). 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) (citations omitted).
The complaint of a pro se litigant1 must be liberally construed, but this requirement for lenient
construal does not undermine the proposition that a pleading must contain more than conclusory
allegations. Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Giarratano v. Johnson, 521 F.3d 298,
304 n.5 (4th Cir. 2008) (citing Twombly, 550 U.S. at 555).
2.

Analysis

The allegations alleged by plaintiff in both complaints arise under the same circumstances
of employment, during the same period of time, and amount to identical claims of hostile work

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Plaintiff retained counsel in Case I on October 29, 2015, but plaintiff is unrepresented in Case II.

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environment based on race and retaliation for protected activity. Accordingly, the court addresses
plaintiff’s allegations in unified discussion in this order. Considering all facts alleged together,
plaintiff fails to state a claim upon which relief can be granted.
a.

Hostile Work Environment

To demonstrate racial discrimination in the form of a hostile work environment, plaintiff
must show that the offending conduct was: 1) unwelcome; 2) because of her race; 3) sufficiently
severe or pervasive enough to alter the conditions of her employment and create an abusive work
environment; and 4) imputable to her employer. Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir.
2011). Plaintiff is unable to satisfy the second or third elements.
i.

Because of Race

Plaintiff does not plead any facts demonstrating that the supervisor’s conduct is because of
plaintiff’s race. Plaintiff argues, in a conclusory manner, that she is subject to treatment by her
Asian supervisor that the other two employees, identified racially as Asian or Hispanic by plaintiff,
do not receive. The facts as provided by plaintiff, however, do not create the presumption that, “but
for” her race, plaintiff would not have received supervisor criticism. See Hartsell v. Duplex
Products, Inc., 123 F.3d 766, 772 (4th Cir. 1997) (“An insulting or demeaning remark does not
create a federal cause of action for . . . harassment merely because the ‘victim’ of the remark
happens to belong to a class protected by Title VII.”).
Plaintiff does not contend that the employment-related criticisms leveled at her by her
supervisor were unwarranted, or, that her two co-workers committed similar errors and infractions.
The supervisor’s refusal to sign a leave form for plaintiff on a single occasion does not imply racial
causation either. Plaintiff does not allege that her supervisor ever has referred, directly, or

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indirectly, to plaintiff’s race when issuing work-related criticisms. Plaintiff’s complaints fail to
demonstrate that the treatment creating the purported hostile work environment is because of her
race.
ii.

Sufficiently Severe and Pervasive

In determining whether a working environment has become objectively hostile in violation
of Title VII, the court looks at several factors, including: the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or merely offensive; and
whether it interferes unreasonably with plaintiff’s work performance. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993). Title VII is not a “general civility code,” and “conduct must be
extreme to amount to a change in the terms and conditions of employment.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998).
Accepting the facts in the light most favorable to plaintiff, the mere fact that plaintiff finds
her supervisor difficult to work with does not generate liability for hostile work environment. See
Hartsell, 123 F.3d at 773-74 (“Title VII does not guarantee a happy workplace, only one free from
unlawful discrimination.”). Plaintiff continues in her employment with defendant, having worked
in the same position with defendant since 1988. She has not suffered depreciation in job
performance. A dip on a single performance evaluation from “Very Good” to “Good” is not
meaningful, and alone is insufficient to satisfy plaintiff’s pleading burden. See Buckner v. Lew, No.
5:13-CV-199-FL, 2014 WL 1118428, *7 (E.D.N.C. Mar. 20, 2014) (“[A]brupt shifts in workload,
reassignments, negative reviews, a supervisor’s rejection of plaintiff’s work product, mandatory
meetings with a director, and a supervisor’s occasional angry and agitated demeanor, are not
sufficiently severe or pervasive”). Accordingly, plaintiff’s claims alleging a racially discriminatory,

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hostile work environment must be dismissed.
b.

Retaliation

A plaintiff seeking to establish a prima facie case of retaliation must demonstrate direct or
indirect evidence of “conduct or statements that both reflect directly the alleged discriminatory
attitude and that bear directly on the contested employment decision,” or, the plaintiff is subject to
the shifting burden framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 577 (4th Cir. 2015); see also Foster
v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 249-51 (4th Cir. 2015). Plaintiff at bar argues
that she establishes a prima facie case of retaliation under the McDonnell Douglas framework.
Plaintiff must demonstrate: 1) she engaged in protected activity; 2) defendant subjected
plaintiff to a materially adverse employment action; and 3) there was a causal link between the
protected activity and the adverse action. Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006). Only
if she successfully pleads these elements does the burden shift to defendant to put forth a nondiscriminatory reason for the conduct. Id. It is undisputed that plaintiff has engaged in “protected
activity,” by filing numerous charges with the EEOC, and previously filing suit in this court.
Plaintiff, however, is unable to demonstrate the second or third elements necessary to establish a
prima facie case of retaliation.
i.

Materially Adverse Employment Action

To demonstrate that she was subject to a materially adverse employment action, plaintiff
must plead facts from which the court may conclude that a reasonable person in plaintiff’s position
would be dissuaded from making or supporting a charge of discrimination as a result of the action.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). An employee is not immunized

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from “those petty slights or minor annoyances that often take place at work” because she engages
in protected activity, however. Id. “[C]onflicts at work that generate antipathy and snubbing by
supervisors” do not rise to the level of materially adverse employment actions, absent further
context. Id. (internal quotations and citation omitted).
The instances of conduct by plaintiff’s supervisor, as outlined in the statement of the facts,
do not rise to the level of materially adverse employment actions. “[R]eprimands and poor
performance evaluations occur with some frequency in the workplace,” and are “much less likely
to involve adverse employment actions than transfers, discharges, or failures to promote.” Adams
v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 432 (4th Cir. 2015). The conduct pleaded by
plaintiff fails to “cross the threshold that courts have traditionally required for a personnel matter
to be actionable.” See id. (listing cases).
ii.

Causal Link

Plaintiff also must demonstrate a causal link between the alleged retaliatory conduct and the
protected activity. A mere temporal proximity between the protected activities and the adverse
employment action may be considered in determining whether a causal link exists if the proximity
is “very close,” but the implication of causation wanes as months pass. See Clark Cnty. School Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001).
Plaintiff provides little information concerning the dates the conduct occurred from which
the court can conclude that a very close temporal relationship implying causation existed between
the protected activity and the conduct. The court is aware, from plaintiff’s previous complaint
against defendant and plaintiff’s supervisor in Flanigan, No. 5:14-CV-102-FL, that plaintiff’s
interactions with her supervisor are alleged to be part of a years-long feud between the two that

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began in 2010. Plaintiff does not demonstrate the kind of close temporal relationship that implies
causation.
Plaintiff provides no other evidence of causation. The only other relevant fact pleaded by
plaintiff is that her protected activity was “discussed with other employees” on April 7, 2015. (Case
II, ¶ 13). Plaintiff does not plead that any of the alleged adverse actions in the instant matter
occurred after this discussion. The complaint does not demonstrate that the incidences described
by plaintiff were in retaliation for protected activity, and accordingly, plaintiff’s retaliation claim
must be dismissed for failure to state a claim upon which relief can be granted.
C.

Amending the Complaints
A plaintiff may amend her claims once as a matter of course before the defendant files a

responsive pleading. Fed. R. Civ. P 15(a). Once the defendant files a responsive pleading, however,
the plaintiff may amend her complaint only by written consent of the defendant, or by leave of the
court. Laber, 438 F.3d at 426. Federal Rule of Civil Procedure 15(a) directs that leave “shall be
freely given when justice so requires.” Justice does not require the court to give plaintiff leave when
the amendment would be prejudicial to the opposing party, there has been bad faith on the part of
the moving party, or the amendment would be futile. Laber, 438 F.3d at 426. An amendment is
futile if it would not survive a motion to dismiss. See Perkins v. United States, 55 F.3d 910, 917
(4th Cir. 1995).
On February 21, 2014, plaintiff filed the first of three complaints against defendant, alleging
racial discrimination. Flanigan, No. 5:14-CV-102-FL. The court dismissed the action, as noted
above on December 11, 2014. Plaintiff did not move to amend the complaint. Plaintiff then filed
the second complaint, in the form of the action Case I presently before this court, on September 3,

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2015. Plaintiff subsequently filed the third complaint in the action Case II, also presently before this
court, on October 6, 2015, despite the pending nature of Case I. All three filings concern plaintiff’s
ongoing dispute with her supervisor, as outlined in the instant order, but, because the court did not
dismiss Flanigan, No. 5:14-CV-102-FL, with prejudice on December 11, 2014, the portions of the
racial discrimination claims in Case I and Case II that otherwise would be barred by res judicata are
properly before this court. See Goode v. Cent. Virginia Legal Aid Soc'y, 807 F.3d 619, 626 (4th Cir.
2015).
That being said, plaintiff has had sufficient opportunity through the course of three
complaints to demonstrate to the court that she is the victim of racial discrimination and retaliation
in violation of Title VII. She has failed to do so. With an eye towards liberally construing plaintiff’s
complaints, the court has analyzed the sparse facts pleaded in Cases I and II together for the purpose
of this order. Neither plaintiff, nor plaintiff’s counsel, make any argument as to how plaintiff will
be able to amend her complaints to overcome the pleading deficiencies set forth herein. Therefore,
the “proposed amendment is clearly insufficient or frivolous on its face.” See Johnson v. Oroweat
Foods Co., 785 F.2d 503, 510 (4th Cir. 1986). Plaintiff’s motions to amend are denied.
CONCLUSION
Based on the foregoing, the court DENIES plaintiff’s motion for default judgment (Case II,
DE 8); DENIES plaintiff’s motions to amend (Case I, DE 16; and Case II, DE 18); and GRANTS
defendant’s motions to dismiss. (Case I, DE 8; and Case II, DE 11). The actions are DISMISSED,
and the clerk is DIRECTED to close these cases.
SO ORDERED this the 19th day of January, 2016.

______________________________
LOUISE W. FLANAGAN
United States District Judge
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