Johnson v. Cooper, et al
ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS for 11 Motion to Dismiss/Lack of Jurisdiction, Motion to Dismiss for Failure to State a Claim filed by Roy Cooper, North Carolina Department of Justice, 26 Order Memorandum an d Recommendations granting in part and denying in part 11 Motion to Dismiss for Failure to State a Claim. All of plaintiffs claims are DISMISSED except for plaintiffs claim of retaliation set forth in count two of the second amended complaint. The clerk is DIRECTED to update the docket to bring it in conformity with the caption of this order. Initial order governing case deadlines will follow. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 8/15/2017. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
THE NORTH CAROLINA DEPARTMENT )
OF JUSTICE, ATTORNEY GENERAL’S )
OFFICE, ADMINISTRATION DIVISION, )
HUMAN SERVICES SECTION
This matter is before the court on defendant’s motion to dismiss for failure to state a claim.
(DE 11). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United
States Magistrate Judge, Robert T. Numbers, II, entered a memorandum and recommendation
(“M&R”), wherein it is recommended that the court grant defendant’s motion in part. With no
objections filed, the court adopts the recommendation in the M&R, and grants defendant’s motion
Plaintiff, a black woman employed as a paralegal in defendant’s office, commenced this
Where the magistrate judge allowed in part plaintiff’s motion to amend the complaint wherein plaintiff now
names as defendant only North Carolina Department of Justice, Attorney General’s Office, Administration Division,
Human Services Section, (DE 26), the caption is here amended so to reflect. Where there now exists a discrepancy
between the caption and the description of parties on the court’s docket, the clerk is directed to update the docket to bring
it in conformity with the caption of this order.
action July 15, 2016, pursuant to Title VII of the Civil Rights of 1964 (“Title VII”), asserting claims
of race discrimination, hostile work environment, and retaliation based upon plaintiff’s filing a
charge complaining of same with the United States Equal Employment Opportunity Commission
(“EEOC”). Roy Cooper (“Cooper”), former defendant in this matter, and defendant moved to
dismiss plaintiff’s claims of race discrimination on the ground that plaintiff’s claims are time-barred
and fail to state a claim upon which relief can be granted. (DE 11).
In lieu of responding to the motion, plaintiff, outside the time period for amendment as a
matter of course, moved to amend her complaint. (DE 19). Following response in opposition to her
motion, plaintiff filed an amended motion to amend the complaint. (DE 23). Plaintiff attached
amended complaints to both filings. (DE 19-1; DE 25). The first amended complaint omitted
Cooper as a defendant, added as defendant Josephine Tetteh, in her individual and official capacity
as a North Carolina assistant attorney general, and added a claim of intentional infliction of
emotional distress. The second amended complaint named only the above-captioned defendant and
added a claim of negligent infliction of emotional distress. Both amended complaints amplified
plaintiff’s original claims under Title VII and gave expanded recitation of the facts giving rise to the
The M&R recommends dismissal of all claims except for plaintiff’s Title VII claim for
retaliation. By order issued simultaneously with the M&R, the magistrate judge denied the motion
to amend except as to plaintiff’s claim of retaliation, final amendment to the caption, and expanded
recitation of the facts, as set forth in the second amended complaint. Neither party objected to the
M&R, and the time to do so has elapsed.
STATEMENT OF FACTS
The court incorporates herein section I of the M&R, where that section accurately
summarizes the facts alleged in the second amended complaint.
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
& Accident 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).
Therefore, where the parties lodged no objections in this matter, the court reviews for clear error.
Upon careful review of the record, the court finds no clear error in the determination of the
magistrate judge. Plaintiff’s claims of race discrimination and hostile work environment must be
dismissed because they are time-barred where plaintiff did not initiate this action within 90 days of
receiving notice of right to sue from the EEOC. See Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.
147, 149–52 (1984). Plaintiff’s claims of intentional and negligent infliction of emotional distress
must be dismissed where plaintiff has failed to plead extreme and outrageous conduct – an essential
element of those claims. See Holloway v. Wachovia Bank & Trust Co., N.A., 339 N.C. 338, 351
(1994). Plaintiff’s claim of retaliation may proceed where plaintiff has pleaded that she engaged in
protected activity by filing an EEOC charge, that defendant took an adverse employment action by
giving plaintiff additional job duties, and that said adverse employment action was sufficiently
proximate in time to the protected activity to support an inference that a causal link exists between
the protected activity and the adverse employment action. See Boyer-Liberto v. Fontainebleau
Corp., 786 F.3d 264, 271 (4th Cir. 2015).
In sum, the court adopts the M&R as its own, dismisses plaintiff’s claims of race
discrimination, hostile work environment, intentional infliction of emotional distress, and negligent
infliction of emotional distress. Plaintiff’s claim of retaliation may proceed.
Based upon the foregoing, defendant’s motion to dismiss is GRANTED IN PART AND
DENIED IN PART. All of plaintiff’s claims are DISMISSED except for plaintiff’s claim of
retaliation set forth in count two of the second amended complaint. The clerk is DIRECTED to
update the docket to bring it in conformity with the caption of this order. Initial order governing
case deadlines will follow.
SO ORDERED, this the 11th day of August, 2017.
LOUISE W. FLANAGAN
United States District Judge
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