Diede v. UNC Healthcare et al

Filing 35

ORDER granting 12 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdiction; granting 12 UNC Healthcare's Motion to Dismiss. Plaintiffs claims against Hussari remain. Signed by Senior Judge W. Earl Britt on 1/23/2018. Copy sent to Annmarie Diede 130 S Estes Dr, Chapel Hill, NC 27514 via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-00788-BR
ANNMARIE DIEDE,

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Plaintiff,
v.
UNC HEALTHCARE, et al.,
Defendants.

ORDER

This matter is before the court on the 26 April 2017 motion to dismiss filed by defendant
UNC Healthcare. (DE # 12.) Plaintiff filed a memorandum in opposition on 18 May 2017. (DE
# 18.) UNC Healthcare did not file a reply brief, and the time within which to do so has expired.
This matter is therefore ripe for disposition.
I. FACTS
Plaintiff Annmarie Diede was employed by UNC Healthcare in the Central Processing
Department from 19 January 2015 to 21 April 2015. (Compl., DE # 4, ¶¶ 2, 5.) Following the
termination of her employment, plaintiff filed a motion for leave to proceed in forma pauperis
and a proposed complaint in this court. (DE # 1.) Plaintiff’s complaint names the following as
defendants in this action: UNC Healthcare; Beth Paganini-Finch; Bradley Jensen; Christina
Vanessa Daniels, Rajai Hussari, and Jerry Unknown. (DE # 4, at 1.) In the complaint, plaintiff
alleges that she was sexually harassed by Hussari, and that she was terminated following her
complaints about Hussari’s conduct in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e et seq. (Id. at 4-5.) Plaintiff also alleges a state law claim for

assault and battery against Hussari. (Id. at 4.) She seeks recovery of back pay, reinstatement of
her former job, and a trial by jury on all issues. (Id. at 5.)
On 20 January 2017, Magistrate Judge Robert T. Numbers, II granted plaintiff’s motion
for leave to proceed in forma pauperis and ordered that plaintiff’s complaint be filed. (DE # 3.)
In the same order, Judge Numbers provided a memorandum and recommendation on frivolity
review pursuant to 28 U.S.C. § 1915(e)(2), in which he recommended that some of plaintiff’s
claims be dismissed without prejudice, in part, because she failed to state a claim upon which
relief may be granted. (Id.) Judge Numbers also recommended that the court dismiss plaintiff’s
claims against all defendants except for UNC Healthcare and Hussari. (Id.) On 24 February
2017, the court adopted, in its entirety, the reasoning in Judge Number’s memorandum and
recommendation and dismissed plaintiff’s battery claim and all claims against Paganini-Finch,
Daniels, Jensen, and Unknown. (DE # 7.) Plaintiff’s claims of hostile work environment,
retaliation, and assault against UNC Healthcare and Hussari remain.
II. ANALYSIS
In its motion to dismiss, UNC Healthcare moves for dismissal based on lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Def.’s Mem. Supp.
Mot. Dism., DE # 13, at 5.) In the alternative, UNC Healthcare seeks dismissal of the claims
against it for lack of personal jurisdiction due to plaintiff’s failure to properly serve it under
Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5), or in the further alternative dismissal
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Id. at 10, 12.)
Because the issue of subject matter jurisdiction is dispositive, the court does not consider UNC
Healthcare’s alternative arguments.

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A. Standard of Review
Pursuant to Rule 12(b)(1), a court must dismiss all or part of an action over which it lacks
subject matter jurisdiction. Whether subject matter jurisdiction exists is a threshold question that
must be addressed by the court before considering the merits of the case. Jones v. Am. Postal
Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). A plaintiff seeking federal jurisdiction has
the burden of proving that subject matter jurisdiction exists. Williams v. United States, 50 F.3d
299, 304 (4th Cir. 1995). “In determining whether jurisdiction exists, the district court is to
regard the pleadings as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)
(citations omitted).
B. Subject Matter Jurisdiction
UNC Healthcare contends that plaintiff’s Title VII claims for hostile work environment
and retaliation should be dismissed under Rule 12(b)(1) because she failed to comply with the
applicable administrative requirements. (Def.’s Mem. in Supp. Mot., DE # 13, at 5-7.)
Additionally, UNC Healthcare asserts that dismissal is appropriate because it is entitled to
Eleventh Amendment immunity with respect to plaintiff’s Title VII and state law claims. (Id. at
8-10.)
1. Failure to Exhaust Administrative Remedies
Turning first to the applicable administrative requirements, before filing a Title VII claim
in federal court, a plaintiff must first exhaust her administrative remedies by filing a charge of
discrimination with the Equal Opportunity Employment Commission (“EEOC”). Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C. § 2000e-5(f)(1); 29

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U.S.C. § 626(d)). “The allegations contained in the administrative charge of discrimination
generally limit the scope of any subsequent judicial complaint.” Hentosh v. Old Dominion
Univ., 767 F.3d 413, 416 (4th Cir. 2014) (citations omitted). Although courts “recognize that
EEOC charges often are not completed by lawyers and as such must be construed with utmost
liberality,” courts are “not at liberty to read into administrative charges allegations they do not
contain.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013) (citations
and quotation marks omitted). “Only 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 pursued in a lawsuit under Title VII. Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
Although plaintiff claims that she filed a charge of discrimination in her complaint,
plaintiff did not attach her EEOC charge of discrimination as an exhibit. Instead, plaintiff
attached the EEOC notice of right to sue letter as an exhibit to the complaint, (Pl.’s Ex. F, DE #
1-2, at 38), along with the EEOC determination regarding her charge of discrimination, (Pl.’s Ex.
G, DE # 1-2, at 40). UNC Healthcare argues that because the EEOC charge is not in the record,
the court cannot properly determine whether the claims in plaintiff’s complaint are reasonably
related to the EEOC charge. However, the EEOC charge was directly referenced in the EEOC
determination, which notes the following:
Charging Party alleges respondent subjected her to a sexually hostile work
environment because of her sex (female) when she was sexually harassed by a
male coworker. Charging Party further alleges that after she complained to
management about the sexual harassment, she was discharged less than a month
later in retaliation in violation of Title VII.
(Id.) Because this document detailing plaintiff’s EEOC charge was attached to the complaint,
the court can consider it in determining whether plaintiff exhausted her administrative remedies

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with respect to her Title VII discrimination claims. See Richmond, Fredericksburg & Potomac
R.R. Co., at 768 (permitting the court to consider evidence outside of the complaint when a Rule
12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction).
Here, the text of the EEOC determination states that plaintiff intended to charge UNC
Healthcare with hostile work environment and retaliation on the basis of her sexual harassment
by a coworker. Plaintiff has continued to pursue these claims in the instant suit. Thus, the court
finds that plaintiff has successfully exhausted her administrative remedies on her claims arising
under Title VII.
2. Eleventh Amendment Immunity
UNC Healthcare also moves to dismiss for lack of subject matter jurisdiction on the
grounds that Eleventh Amendment immunity bars the instant suit against it. “The Eleventh
Amendment bars suits against non-consenting states by private individuals in federal court.” Bd.
of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). In addition to the States
themselves, the Eleventh Amendment shields non-consenting state agencies and departments
from suits by private individuals in federal court. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984). The Eleventh Amendment bar “applies as well to state-law claims
brought into federal court under pendent jurisdiction,” such as plaintiff’s tort claim for assault.
Id. at 121.
It is well settled that public universities, such as the University of North Carolina, are
instrumentalities of the state that are immune from suit under the Eleventh Amendment. See
Huang v. Board of Governors of the Univ. of N.C., 902 F.2d1134, 1139 (4th Cir. 1990) (treating
the University of North Carolina as an arm of the state and holding that it could not be sued for
money damages because the state of North Carolina had not waived its Eleventh Amendment

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immunity); see also Brown v. Rector & Visitors of the Univ. of Va., No. 3:07CV30, 2008 WL
1943956, at *4 (W.D. Va. May 2, 2008) (noting the Eleventh Amendment provides immunity
from suit for a university, as an instrumentality of the state, and applies to all claims for
compensatory, declaratory and injunctive relief); Googerdy v. N.C. Agric. & Tech. St. Univ.,
386 F. Supp. 2d 618, 625 (M.D.N.C. 2005) (granting motion to dismiss § 1983 claim against the
university on grounds that the university was an alter ego of the state and protected from liability
under that statute); Jennings v. Univ. of N.C. at Chapel Hill, 240 F. Supp. 2d 492, 498
(M.D.N.C. 2002) (dismissing § 1983 claims against the University of North Carolina under the
Eleventh Amendment). UNC Healthcare argues that the immunity granted to public universities
extends to “the University of North Carolina Health Care system,” which N.C. Gen. Stat §116-37
establishes “as an affiliated enterprise of The University of North Carolina.” (Def.’s Mem. in
Supp. Mot., DE # 13, at 5.) The court agrees that UNC Healthcare is an instrumentality of the
state, and consequently is protected from liability by the Eleventh Amendment. See Solomon v.
Rex UNC Healthcare, No. 5:16-CV-179-D, 2016 WL 8678003, at *4 (E.D.N.C. Oct. 21, 2016)
(report and recommendation) (recommending dismissal of complaint against Rex UNC
Healthcare on the grounds that it was an instrumentality of the state and protected from liability
by the Eleventh Amendment), adopted, 2016 WL 6634876 (E.D.N.C. Nov. 8, 2016).
Here, there is nothing in the complaint that indicates the state of North Carolina has
waived Eleventh Amendment immunity in any area that is relevant to plaintiff’s Title VII claims.
Moreover, there is no indication in the instant matter that the state of North Carolina has waived
immunity with respect to plaintiff’s tort claim for assault. See Kawai Am. Corp. v. Univ. of N.C.
at Chapel Hill, 567 S.E.2d 215, 218 (N.C. Ct. App. 2002) (recognizing that the state of North
Carolina has not waived sovereign immunity for intentional torts); see also Hart v. Brienza, 784

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S.E.2d 211, 216 (N.C. Ct. App. 2016) (noting that assault is an intentional tort). Consequently,
plaintiff’s Title VII and state law claims against UNC Healthcare must be dismissed.
III. CONCLUSION
For the reasons set forth above, UNC Healthcare’s motion to dismiss, (DE # 12), is
GRANTED, and it is DISMISSED from this action. Plaintiff’s claims against Hussari remain.
This 23 January 2018.

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W. Earl Britt
Senior U.S. District Judge

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