Soliman v. Worldwide Language Resources, Inc. et al
ORDER granting 5 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge James C. Dever III on 12/29/2016. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RESOURCES, INC., AND
DOES 1 TO 20, INCLUSIVE,
On August 18, 2016, Maher Soliman ("Soliman" or "plaintiff') filed a prose complaint
against Worldwide Language Resources, Inc. ("WWLR"), and Does 1 to 20 (collectively,
"defendants") [D.E. 1]. Soliman claims that by failing to hire him, defendants violated Title VII of
the Civil Rights Act of1964, as amended, 42 U .S.C. §§ 2000e to 2000e-17 ("Title VII'') and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 ("ADEA''),
breached an employment contract, and committed various state-law torts. On September 20, 2016,
defendants moved to dismiss Soliman's complaint under Federal Rule of Civil Procedure 12(b)(6)
[D.E. 5] and filed a memorandum in support [D.E. 6]. On October 6, 2016, Soliman responded in
opposition [D.E. 11]. As explained below, the court grants defendants' motion to dismiss.
Soliman is a 62-year old Egyptian-American living in California. Compl. [D.E. 1] 2, ~ 1.
Born in Cairo, Soliman speaks Arabic and English. Id. ~ 10. He is a United States citizen and holds
a "Top Secret" security clearance, b~helor' s degrees in business.administration and accounting, and
a juris doctor degree. Id. From 2003 to 2012, Soliman worked as an independent contractor for the
United States Department of Defense and United States Department of State. Id. ~ 11. During that
time, Soliman deployed to Iraq seven times, and served in various capacities, including linguist,
cultural advisor, and liaison between the United States embassy and Iraqi judges. Id.
On or about January 8, 2016, Mohammed Tajak, WWLR's recruiting officer, contacted
Soliman regarding a translator position with one ofWWLR's clients. Id. ~ 12. WWLR is based in
Fayetteville, North Carolina, and provides language and translation services to the United States
government and other clients. ld.
2. On or about January 11, 2016, Soliman "completed the
application process," which entailed executing WWLR's Job Description and Wage Agreement
Form. Id. ~ 13; see also Mot. to Dismiss [D.E. 6-1]. The application listed the potential position's
salary as $90,000.00 per year. Compl. ~ 12; Mot. to Dismiss [D.E. 6-1]. On January 25, 2016,
Soliman completed the required four-part language test. Compl. ~ 14. On January 27, 2016, Tajak
called Soliman to congratulate him on his test results and inform Soliman that his deployment was
15. Soliman alleges that during this phone call Tajak stated that Soliman's
"employment contract will be extended to up to three years." Id. Soliman accepted the "offer." Id.
On or about February 4, 2016, Tajak sent Soliman an email stating that the client did not
select Soliman, and WWLR was therefore unable to process Soliman's application. ld. ~ 16; Mot.
to Dismiss [D.E. 6-2]. Tajak then informed Soliman that WWLR ''would not be able to continue
with [Soliman's] hiring process." Compl. ~ 16. Later on February 4, 2016, Soliman received a
second email, this time from Regina Humphrey, a WWLR human-resources employee. ld. ~ 17. In
the email, Humphrey informed Soliman that the client (an unidentified government agency) had
"declined to accept [Soliman]" for work on its contract and gave no reason for doing so. ld.; Mot.
to Dismiss [D.E. 6-3]. 1
In his complaint, Soliman refers to his "application" but does not attach any application
documents, including the Job Description and Wage Agreement Form. See Compl. ~ 12. Although
generally a court analyzing a motion to dismiss under Rule 12(b)(6) cannot consider extrinsic
evidence, the court may consider a document attached to a motion to dismiss "in determining
whether to dismiss the complaint [it] it was integral to and explicitly relied on in the complaint and
[it] the plaintiffs do not challenge its authenticity." Am. Chiropractic Ass'n v. Trigon Healthcare.
Inc., 367 F.3d 212, 234 (4th Cir. 2004) (alterations in original) (quotation omitted). Under this
standard, the court may consider the Job Description and Wage Agreement Form submitted by
After learning ofWWLR' s client's decision not to select him, Soliman filed a discrimination
charge against WWLR with the Equal Employment Opportunity Commission ("EEOC"). Compl.
21. On May 27, 2016, the EEOC dismissed Soliman's EEOC charge after it was ''unable to
conclude that the information obtained establishes violations of the statutes." Compl. Ex. A.
On September 20, 2016, Soliman filed this action asserting seven causes of action: (1) breach
of contract and promissory estoppel, id. ~~ 23-26; (2) employment discrimination on the basis of
national origin in violation of Title Vll, id.
(3) employment discrimination on the basis
of age in violation of the ADEA, id. ~~ 35-42; (4) employment discrimination on the basis of
religion in violation of Title Vll, id. ~~ 43-51; (5) fraudulent and negligent misrepresentation under
North Carolina law, id. ~~52-56; (6) wrongful refusal to hire in violation of North Carolina public
policy, id. ~~ 57--62; and (7) negligent retention and supervision under North Carolina law. ld. ~~
63-73. Soliman seeks damages and injunctive relief. Id. at 15-17. On September 20, 2016,
defendants moved to dismiss Soliman's complaint under Federal Rule of Civil Procedure 12(b)(6)
[D.E. 5]. On October 6, 2016, Soliman responded in opposition [D.E. 11].
A motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can
be granted" tests whether the complaint is legally and factually sufficient. See Fed. R. Civ. P.
12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Com. v. Twombly, 550 U.S. 544,
570 (2007); Coleman v. Md. Court of Ap_peals, 626 F.3d 187, 190 (4th Cir. 2010), affd, 132 S. Ct.
1327 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus,
551 U.S. 89, 93-94 (2007) (per curiam). A court need not accept a complaint's "legal conclusions,
elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet
defendants. Additionally, Soliman's complaint references his "offer" listing an annual salary of
$90,000.00, and two emails sent by WWLR. See Compl. ~~ 12, 17, 26. Because these documents
are integral to and expressly relied upon in his complaint and because Soliman does not dispute their
authenticity, the court considers those documents as well. See, e.g., Am. Chiropractic Ass'n, 367
F.3d at 234.
Chevrolet. Ltd. v. Consumeraffairs.com.lnc., 591 F.3d250,255 (4thCir. 2009). However, the court
"accepts all well-pled facts as true and construes these facts in the light most favorable to the
plaintiff in weighing the legal sufficiency ofthe complaint." Id. Construing the facts in this manner,
a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face." Id. (quotation omitted).
The standard used to evaluate· the sufficiency of a pleading is flexible, "and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickso!!, 551 U.S. at 94 (quotation omitted). Erickson, however, does not
"undermine [the] requirement that a pleading contain 'more than labels and conclusions."'
Giarratano, 521 F.3dat304n.5 (quoting Twombly, 550U.S. at555); seeAshcroftv. lgbal, 556U.S.
662,677-83 (2009); Colemru1, 626F.3dat 190; NemetChevrolet.Ltd., 591 F.3dat255-56; Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Soliman asserts three claims under federal law. Soliman claims that defendants failed to hire
him due to his national origin and religion in violation of Title Vll, and failed to hire him due to his
age in violation of the ADEA. In relevant part, Title Vll makes it unlawful for an employer to fail
or refuse to hire an applicant because of his religion or national origin. See 42 U.S.C. § 2000e2(a)(1). In relevant part, the ADEA prohibits an employer from failing or refusing to hire an
applicant because of his age where the applicant is age 40 and above. See 29 U.S.C. § 623(a)(1).
Soliman has no direct evidence of illegal discrimination and proceeds under the McDonnellDouglasburden-shifting.framework. SeeMcDonnellDouglasCor_p. v. Gree!!,4ll U.S. 792(1973);
Williams v. Giant Food Inc., 370 F.3d 423, 430 & n.5 (4th Cir. 2004) (Title Vll case); Mereish v.
Walker, 359 F.3d 330, 334 (4th Cir. 2004) (ADEA case). Under this framework, a plaintiff first
must establish a prima facie case of discrimination. See,~' O'Connor v. Consol. Coin Caterers
Cor_p., 517 U.S. 308,311-12 (1996); St. Mazy's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993);
McDonnell Douglas Cor_p., 411 U.S. at 802. If the plaintiff establishes a prima facie case, ''the
burden shifts to the employer ... to articulate a legitimate, non-discriminatory reason for the adverse
employment action." Lettieri v. Equant Inc., 478 F .3d 640, 646 (4th Cir. 2007) (quotation omitted);
see St. Mary's Honor Ctr., 509 U.S. at 506--07. If the defendant-employer meets its burden of
production, then the plaintiff must prove by a preponderance of the evidence that a genuine issue of
material facts exists concerning whether the employer's stated reason for the adverse employment
action was a mere pretext for illegal discrimination.
See,~ Reeves v. Sanderson Plumbing Prods ..
Inc., 530 U.S. 133, 143 (2000); Lettieri, 478 F.3d 646--47. "At this last step the burden to
demonstrate pretext merges with the ultimate burden of persuading the court that [the plaintiff] has
been a victim of intentional discrimination."
Lettieri, 478 F.3d 646--47 (quotation omitted)
(alteration in original).
A plaintiff demonstrates pretext by showing that the defendant-employer's "explanation is
'unworthy of credence' or by offering other forms of circumstantial evidence sufficiently probative
of age[, national origin, or religious] discrimination." Mereisb, 359 F .3d at 336 (quoting Tex. Dep't
ofCmzy. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). To prevail on an age discrimination claim,
a plaintiff must prove that age was not only a motivating factor in the employer's adverse
employment action, but that "age was the 'but-for' cause ofthe employer's adverse decision." Gross
v. FBL Fin. Servs.. Inc., 557 U.S. 167, 176--77 (2009); see EEOC v. Baltimore Czy., 747 F.3d 267,
273 (4th Cir. 2014); Duf:fyv. Belk. Inc., 477 F. App'x 91,93 (4th Cir. 2012) (unpublished); Bodkin
v. Town of Strasburg, 386 F. App'x 411,413 (4th Cir. 2010) (per curiam) (unpublished).
In order to establish a prima facie of failure to hire in violation of Title VII or the ADEA, a
plaintiff must show that: (1) he belonged to a protected class; (2) he applied for a specific position;
(3) he was qualified for the position; and, (4) the employer rejected him for that position under
circumstances giving rise to an inference of illegal discrimination. See,
EEOC v. Sears
Roebuck & Co., 243 F.3d 846,851 & n.2 (4th Cir. 2010).
Soliman has plausibly alleged the first three elements of his prima facie case; however, he
has failed to plausibly allege the fourth element. Soliman argues that three alleged f~cts satisfy the
fourth element ofhis prima facie case. First, Soliman alleges that WWLR did not hire him "despite
being fully qualified for the position." Compl. ~~ 29, 37, 45. Second, Soliman alleges that Tajak
sought to hire Muslim candidates as opposed to Christians like Soliman. See id.
Soliman alleges that WWLR "has a pattern and practice of denying Egyptians employment
opportunities on the basis of their national origin." Id.
Soliman has not plausibly alleged that WWLR rejected him under circumstances giving rise
to an inference of unlawful discrimination. See McCleary-Evans v. Md. Dept. ofTransp., 780 F.3d
582, 585-88 (4th Cir. 2015); Falegan v. Thomas, No. 5:09-CV-00317-BR, 2009 WL 3415665, at
*1 (E.D.N.C. Oct. 22, 2009) (unpublished). As for Soliman's allegation that he was qualified yet
WWLR rejected him, being qualified for the position is the third element of the prima facie case.
Sears Roebuck & Co., 243 F.3d at 851. Failing to hire a qualified applicant does not alone
raise an inference of illegal discrimination. See,
McCleary-Evans, 780 F.3d at 585-88.
Employers prefer to hire qualified applicants when the opportunity arises but sometimes must
choose among many qualified applicants. "The crucial issue in a Title VII action [or an ADEA
action] is an unlawfully discriminatory motive for a defendant's conduct, not the wisdom or folly
of its business judgment." Jiminez v. Mazy Washington Coll., 57 F.3d 369, 383 (4th Cir. 1995).
Thus, Soliman's qualifications alone do not satisfy the fourth element of his prima facie case. As
for Soliman's allegation that Tajak sought to hire Muslim candidates and not hire Christians like
Soliman, Soliman's allegation is a bare assertion devoid of further factual enhancement. See, e.g.,
McCleary-Evans, 780 F.3d 585-88; Nemet Chevrolet. Ltd., 591 F.3d at 255. The same conclusion
applies to Soliman's bare allegation that WWLR "has a pattern and practice of denying Egyptians
employment opportunities on the basis of their national origin." Compl. ~ 31; cf. McCleary-Evans,
780 F.3d at 585-88; Nemet Chevrolet. Ltd., 591 F.3d at 255. Because Soliman has not plausibly
alleged the fourth element of his prima facie case, Soliman has failed to state a claim for
discrimination based on national origin or religion under Title VII or age discrimination under the
ADEA. See,~' McCleary-Evans, 780 F.3d 585-88.
Next, the court addresses Soliman's claims under North Carolina law: breach of contract,
promissory estoppel, fraudulent and negligent misrepresentation, wrongful refusal to hire in violation
ofNorth Carolina public policy, and negligent retention and supervision. In exercising supplemental
jurisdiction over Soliman's state-law claims, the court applies North Carolina substantive law. See
Johnson v. Hugo's Skateway. 974 F.2d 1408, 1416 n.7 (4th Cir. 1992). In resolving any disputed
issue of state law, the court must determine how the Supreme Court of North Carolina would rule.
See Twin Ciey Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co., 433 F .3d 365, 369 (4th Cir. 2005).
If the Supreme Court of North Carolina "has spoken neither directly nor indirectly on the particular
issue" at hand, a federal court must "predict how [the North Carolina Supreme Court] would rule
if presented with the issue." Id. (quotations omitted). A federal court predicting an outcome under
state law ''may consider lower court opinions[,] ... treatises, and the practices of other states." Id.
(quotation omitted).2 When predicting an outcome under state law, a federal court "should not create
or expand [a] [s]tate's public policy." Time Warner Entm't-Advance/Newhouse P'ship v. CarteretCraven Elec. Membership Com., 506 F.3d 304, 314 (4th Cir. 2007) (first alteration in original)
(quotation omitted); Wade v. Danek Med.• Inc., 182 F.3d 281,286 (4th Cir. 1999).
As for Soliman's breach of contract claim, Soliman alleges that on or about January 8, 2016,
Tajak called Soliman and "extended an offer of employment." Compl. ~~ 15, 24. Soliman further
alleges that, on January 27, 2016, in another phone conversation, Tajak extended the contractual
duration ''to up to three years," and that Soliman "accepted" the offer. Id. ~~ 15, 24.
North Carolina is an at-will employment state. "[A]bsent an employment contract for a
definite period oftime, both employer and employee are generally free to terminate their association
North Carolina does not have a mechanism to certify questions of state law to its Supreme
Court. See Town ofNags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cir. 2013).
at any time and without reason." Head v. Adams Farm Living. Inc., 775 S.E.2d 904, 909 (N.C. Ct.
App. 20 15) (quotation omitted). The at-will doctrine has three limited exceptions: (1) the parties
enter an employment contract for a definite period of time; (2) federal and state statutes that prohibit
unlawful discharge based on impermissible considerations such as the employee's
religion, national origin, or disability; and (3) discharge in contravention ofNorth Carolina public
policy. Kurtzman v.AppliedAnalyticallndus.. Inc., 347N.C. 329,331,493 S.E.2d420,422(1997);
see Onwe v. Waste Indus .. Inc., No. 5:15-CV-611-D, 2016 WL 6330387, at *2 (E.D.N.C. Oct. 26,
2016) (unpublished); Head, 775 S.E.2d at 909; Whiting v. Wolfson Casing Corp., 173 N.C. App.
218,222, 618 S.E.2d 750,753 (2005); Considine v. Compass Grp. USA. Inc., 145 N.C. App. 314,
321, 551 S.E.2d 179, 184, aff'd, 354 N.C. 568, 557 S.E.2d 528 (2001) (per curiam).
Soliman fails to plausibly allege that he and WWLR agreed to a contract for a definite term.
First, Soliman alleges that WWLR "extended an offer of employment to him" on or about January
8, 2016, but does not specify the terms of that offer. Compl.
15, 24. On January 11, 2016,
Soliman completed the application process. See id. ~ 13. As part of that process, Soliman received
the Job Description and Wage Agreement Form, which specifically states:
It does not modify the at will employment relationship between you and WorldWide;
does not constitute a commitment by WorldWide to employ me for any particular
length oftime or at all; and does not restrict either WorldWide or myself from ending
the employment at any time for any reason, with or without notice.
Mot. to Dismiss [D.E. 6-1] (emphasis in original). According to Soliman, on January 25,2016, he
passed the 4-part language test, and, on January 27, 2016, Tajak: told him this deployment was
"imminent." Id. ~ 15. Tajak: also told Soliman on January 27, 2016, ''that his employment contract
will be extended to up to three years." ld. (emphasis added). Soliman then purported to accept ''the
Soliman has not plausibly alleged a contract for a definite term. The "at will" language in
the application "easily overrides" any implication to the contrary suggested by the ambiguous
statement that Soliman's alleged employment contract will be extended to up to three years. See
Ausley v. Bishop, 133 N.C. App. 210, 219-20, 515 S.E.2d 72, 79 (1999). Thus, Soliman's breach
of contract claim fails.
Soliman also alleges "promissory estoppel." Compl.
26. Under North Carolina law,
promissory estoppel applies only "in a defensive situation, where there has been an intended
abandonment of an existing right by the promisee." Home Elec. Co. ofLenoir v. Hall & Underdown
Heating & Air Conditioning Co., 86 N.C. App. 540, 543, 358 S.E.2d 539, 541 (1987), aff'd, 322
N.C.107, 366 S.E.2d441 (1988)(percuriam); seeMelvinv.Principi,No. 5:03-CV-968-FL(3),2004
WL 3769429, at *10 (E.D.N.C. Dec. 2, 2004) (unpublished). Soliman cannot use promissory
estoppel offensively to obtain affirmative relief. See,~' Head, 86 N.C. App. at 543-45, 358
S.E.2d at 541-42. Thus, Soliman's promissory-estoppel claim fails.
Next, Soliman alleges that WWLR fraudulently and negligently misrepresented that
Soliman's deployment was "imminent" and that his "employment contract" will be "extended to up
to three years." Compl. ~~ 15, 24, 53-55. To state a fraud claim, a plaintiff must plausibly allege:
"(1) [a] false representation or concealment of a material fact, (2) reasonably calculated to deceive,
(3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured
party," where "any reliance on the allegedly false representations must be reasonable." Forbis v.
Neal, 361 N.C. 519, 526--27, 649 S.E.2d 382, 387 (2007); see Rowan Cty. Bd. ofEduc. v. U.S.
GypsumCo.,332N.C.1, 17,418 S.E.2d648,658-59(1992). Tostateanegligent-misrepresentation
claim, a plaintiff must plausibly allege that he (I) justifiably
reli~) to his detriment, (3) on
information prepared without reasonable care, (4) by one who owed the relying party a duty of care.
Raritan River Steel Co. v. Cheny. Bekaert & Hollang, 322 N.C. 200, 206, 367 S.E.2d 609, 612
(1988); Brinkman v. BarrettKays&Assocs., 155N.C.App. 738,742,575 S.E.2d40,43-44 (2003).
Defendants argue that Soliman fails to satisfy either standard.
Soliman's fraudulent-misrepresentation claim fails for multiple reasons. First, Soliman does
not plausibly allege an intent to deceive. Cf. Compl. ~55. For example, even assuming that Tajak
had extended a legally sufficient offer, Soliman does not allege that WWLR (through Tajak or
anyone else) knew that the offer would be rescinded when Tajak made the representations to
Soliman. Cf. Hunterv. Guardian Life Ins. Co. ofAm., 162N.C.App. 477,481,593 S.E.2d 595,599
(2004). Instead, Soliman simply alleges that Tajak made statements that led Soliman to believe he
would be hired, yet Soliman was not hired. Soliman's bare allegation of an intent to deceive is a
legal conclusion that the court need not accept as true when considering a motion to dismiss for
failure to state a claim.
Alternatively, Soliman fails to plausibly allege that he justifiably relied to his detriment on
Tajak' s statements. A misrepresentation claim "must allege pecuniary loss. In other words, the
complaint must allege that the plaintiff's reliance was actually detrimental." Howard v. Cty. of
Durham, 227 N.C. App. 46, 55, 748 S.E.2d 1, 7 (2013). Soliman, however, alleges no facts in
support of his legal conclusion that he ''justifiably relied upon the representation as true and acted
upon it to his damage." Compl. ~55. For example, Soliman does not allege that he declined other
employment opportunities, expended resources in preparing for his "imminent" deployment, or
otherwise took actions in reliance on Tajak's statements that caused him pecuniary harm. Having
failed to allege facts in support of his bare legal conclusion, Soliman fails to state a claim for fraud
or negligent misrepresentation. See, Howard, 227 N.C. App. at 56-57, 748 S.E.2d at 7-8.
Soliman claims that WWLR's failure to hire him violated North Carolina public policy. In
support, Soliman notes that North Carolina's public policy protects and safeguards ''the right and
opportunity of all persons to seek, obtain, and hold employment without discrimination or
abridgment on account of race, religion, color, national origin, age, biological sex or handicap."
N.C. Gen. Stat. § 143-422.2.
North Carolina does not recognize a private cause of action under section 143-422.2. See,
e.g., McLean v. Patten Cmtys.. Inc., 332 F.3d 714, 719 (4th Cir. 2003); Smith v. First Union Nat'l
Bank, 202 F.3d 234,247 (4th Cir.2000); Bratcher v. Pharm. Prod. Dev.. Inc., 545 F. Supp. 2d 533,
544 (E.D.N.C. 2008); Roberts v. Wal-Mart Stores. Inc., 503 F. Supp. 2d 787, 788-89 (E.D.N.C.
2007); Mullis v. Mechs. & Farmers B~ 994 F. Supp. 680,687 (M.D.N.C.1997). Thus, Soliman's
failure-to-hire claim under section 143-422.2 fails. Moreover, to the extent Soliman seeks relief
under North Carolina law as an applicant for employment for the tort of wrongful discharge in
violation of public policy and relies on section 143-422.2 as the public policy, the claim fails. The
tort of wrongful discharge in North Carolina requires that a person be an employee and then be
discharged. "By definition, the tort does not apply to applicants." Bufford v. Centurylmk, 759 F.
Supp. 2d 707, 708 (E.D.N.C. 2010).
Finally, Soliman alleges that WWLR negligently retained and supervised Tajak and
Humphrey. Compl. ~~ 63-73. North Carolina courts "recognize the existence of a claim against
an employer for negligence in employing or retaining an employee whose wrongful conduct injures
another." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483,494, 340 S.E.2d 116, 123 (1986).
To hold an employer liable, a plaintiff ''must prove that the incompetent employee committed a
tortious act resulting in injury to [the] plaintiff and that prior to the act, the employer knew or had
reason to know of the employee's incompetency." Id. at 495, 340 S.E.2d at 124; Smith v. Privette,
128 N.C. App. 490, 494, 495 S.E.2d 395, 398 (1998); see Smifu, 202 F.3d at 249-50.
Soliman's negligent retention and supervision claims fail because he alleges no facts in
support of his legal conclusions. Fot example, "[a]n essential element of a claim for negligent
retention of an employee is that the employee committed a tortious act resulting in [the] plaintiff[' s]
injuries." Waddle v. Sparks, 331 N.C. 73, 87, 414 S.E.2d 22,29 (1992). Soliman, however, has not
plausibly alleged that Tajak and Humphrey committed any tortious acts. Instead, Soliman simply
asserts that Tajak and Humphrey "had the propensity to engage" in the alleged tortious acts described
in his complaint. See Compl. ~~ 66, 68--69. That naked allegation is not enough to survive a motion
to dismiss. See Waddle, 331 N.C. at 87,414 S.E.2d at 30; see also Jackson v. FKI Logistex, 608 F.
Supp. 2d 705, 707--09 (E.D.N.C. 2009). Having failed to plausibly allege an underlying tort,
Soliman's fails to state a claim for negligent retention and supervision.
Alternatively, even if Soliman had plausibly alleged an underlying tort, he still would not
have stated a claim for negligent retention or supervision, because he has offered no facts suggesting
that WWLR "knew or had reason to know'' ofTajak and Humphrey's alleged incompetence before
they engaged in any misrepresentations. For example, Soliman does not plausibly allege that
WWLR had received complaints regarding Tajak or Humphrey, disciplined them previously for
similar conduct, or was otherwise on notice of their alleged tortious tendencies. Soliman instead
offers the legal conclusion that WWLR "knew or should have known of their incompetency" before
each allegedly committed tortious acts. See Compl. ~ 70. Even viewing the complaint in the light
most favorable to Soliman, Soliman fails to state a claim for negligent retention or supervision. See,
545 F. Supp. 2d at 546-47.
In sum, the court GRANTS defendants' motion to dismiss [D.E. 5], and DISMISSES
plaintiff's complaint without prejudice.
SO ORDERED. This 2.. ~ day of December 2016.
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