Walton v. NC Department of Health Human Services

Filing 21

ORDER granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims for unlawful retaliation and hostile work environment due to sexual harassment remain, but her claims for age and sex discriminat ion and hostile work environment based on her age will be dismissed with leave to amend. Should plaintiff wish to amend her complaint, she must do so no later than 30 days from the date of this order. Signed by Senior Judge W. Earl Britt on 9/13/2017. Copy sent to Cecelia D. Walton, 2811 Millbrook Manor Cir, Apt 207, Raleigh, NC 27604 via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-00085-BR
CECELIA D. WALTON

)
)
Plaintiff,
)
v.
)
)
NORTH CAROLINA DEPARTMENT
)
OF HEALTH AND HUMAN SERVICES, )
)
Defendant.
)

ORDER

This matter is before the court on the 8 May 2017 motion to dismiss filed by defendant
North Carolina Department of Health and Human Services (“NCDHHS”). (DE # 15.) Plaintiff
filed a response in opposition on 16 May 2017, in which she requests leave to amend her
complaint should the court grant the motion to dismiss. (DE # 18.) NCDHHS did not file a
reply brief, and the time within which to do so has expired. This matter is therefore ripe for
disposition.
I. BACKGROUND
Plaintiff was laid off from her employment at NCDHHS on 30 June 2014. (Compl., DE
# 5, at 4.) After being laid off, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). (Id.) Plaintiff was rehired in May 2015 as a
trainee with Disability Determination Services (“DDS”), a division within NCDHHS. (Id.) In
October 2015, the EEOC issued plaintiff a right to sue letter, notifying her that she had 90 days
to file suit against NCDHHS for the alleged discriminatory conduct. (Id.)
Plaintiff alleges that she was subjected to continuous harassment from her trainer, Robert
Englander, after she was placed in the work unit at DDS. According to plaintiff, Englander

discussed his penile cancer and penis during her daily training sessions, and his inappropriate
comments were supported by her supervisor, Tim Wilson. (Id.) Plaintiff further alleges that
Englander failed to properly train her and review her work. (Id.) On 19 January 2016, plaintiff
complained about this treatment to an EEO officer within NCDHSS. (Id.) Plaintiff was fired
nine days later on 28 January 2016. (Id.) According to plaintiff, her termination occurred soon
after the initial 90-day period for her to file suit had expired. (Id.)
On 7 March 2017, Magistrate Judge Robert T. Numbers, II granted plaintiff leave to
proceed in forma pauperis and found plaintiff’s complaint survived review under 28 U.S.C. §
1915e(2). (DE # 4.) Thereafter, plaintiff’s complaint was filed. (DE # 5.) In her complaint,
plaintiff alleges that she was discriminated against based on her age and sex, that she was
subjected to a hostile work environment, and that NCDHHS retaliated against her for
complaining about the discrimination. (Id. at 2-3.)
II. STANDARD OF REVIEW
NCDHHS moves to dismiss plaintiff’s complaint for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def.’s
Mem., DE # 16, at 1.) “To survive a motion to dismiss, a complaint must contain 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Although the court is required to liberally construe pro se complaints,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the court “need not overlook a clear failing to
provide factual enhancement in support of a particular claim that would cause the Court to
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conclude it is facially plausible,” Joyner v. Poole, No. 4:14-CV-208-BO, 2015 WL 1179492, at
*2 (E.D.N.C. Mar. 13, 2015) (citing Iqbal, 556 U.S. at 678).
III. ANALYSIS
A. Age and Sex Discrimination Claims
Plaintiff first alleges that she was discriminated against based on her age and sex. Title
VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Additionally,
under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), it is
“unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual . . . because of such individual’s age.” The ADEA’s agebased protections apply to individuals who are at least 40 years of age. 29 U.S.C. § 631.
NCDHHS argues that plaintiff’s age and sex discrimination claims must be dismissed
because plaintiff has failed to plead sufficient facts to establish the elements of a prima facie case
of discrimination under Title VII or the ADEA. (Def.’s Mem., DE # 16, at 4-5.) The Supreme
Court has indicated that “an employment discrimination plaintiff need not plead a prima facie
case of discrimination . . . to survive [a] motion to dismiss” because “[t]he prima facie case . . .
is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 515, 510 (2002). However, the Fourth Circuit Court of Appeals has emphasized that
Swierkiewicz did not abrogate the requirement that the plaintiff allege “facts sufficient to state
all the elements of her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003); see Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)

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(explaining that Swierkiewicz does not nullify the heightened pleading requirements of
Twombly and Iqbal).
A plaintiff’s prima facie case requires proof of the same elements for both sex
discrimination under Title VII and age discrimination under the ADEA. See Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004). To demonstrate a prima facie
case of sex or age discrimination, a plaintiff must show that: (1) she is a member of a protected
class; (2) she suffered adverse employment action; (3) she was performing her job duties at a
level that met her employer’s legitimate expectations; and (4) “the adverse employment action
occurred under circumstances raising an inference of unlawful discrimination.” Webster v.
Rumsfeld, 156 F. App’x 571, 578 (4th Cir. 2005) (citing Hill, 354 F.3d at 285).
In her complaint, plaintiff alleges that she was terminated, despite successfully
completing classroom training, because she was both over 40 and a female. (Compl., DE # 5, at
4.) To demonstrate that her termination was based on her age and sex, plaintiff focuses on
Englander’s frequent comments about his anatomy during training sessions. (Id.) While these
comments were likely unwelcome and uncomfortable for plaintiff, plaintiff has to failed to allege
facts showing a “nexus . . . between the alleged discriminatory statements and . . . the
employment decisions made by [the employer].” EEOC v. Clay Printing Co., 955 F.2d 936, 942
(4th Cir. 1992). Although plaintiff claims that Englander made unwelcome comments, and that
Wilson supported these comments, she does not allege that the subject matter of these comments
related in any way to her termination or that either Englander or Wilson were involved in her
termination. See Green v. Fairfax Cty. Sch. Bd., 832 F. Supp. 1032, 1039 (E.D. Va. 1993)
(concluding that gender-based comments made by plaintiff’s manager to another employee were
“not indicative of any intention by [the manager] to make any decision in any manner
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unfavorable to women generally or to [plaintiff] in particular”), aff’d 23 F.3d 400 (4th Cir.
1994); see also Johnson v. Angels, 125 F. Supp. 3d 562, 567 (M.D.N.C. 2015) (dismissing
plaintiff’s discriminatory discharge claim because she failed to allege any facts to suggest a
nexus between her discharge and racially discriminatory remarks made by company’s executive
director). The court therefore finds that plaintiff’s allegations are insufficient to give rise to a
reasonable inference that her termination was motivated by her age or sex.
Plaintiff also asserts that Englander’s failure to review her work and provide her with
feedback amounted to discriminatory treatment. (Compl., DE # 5, at 2, 4.) Failure to train can
be considered an adverse employment action. See Thompson v. Potomac Elec. Power Co., 312
F.3d 645, 649-50 (4th Cir. 2002). However, plaintiff’s complaint fails to allege facts sufficient
to support a plausible inference of discrimination on the basis of her age or sex. While plaintiff
references Englander’s comments about his anatomy, she does not indicate how these comments
related to Englander’s failure to train her. Furthermore, plaintiff’s complaint does not contain
allegations about how her training differed from other similarly situated employees who were not
members of her protected group. See id. (noting that to establish a prima facie case of
employment discrimination regarding the failure to train, a plaintiff must show that she was not
provided training under circumstances giving rise to an inference of discrimination—namely,
that she was denied training given to other similarly situated employees who are outside of the
protected class). Because plaintiff’s allegations are insufficient to state a plausible claim for
relief, NCDHH’s motion to dismiss will be granted as it relates to plaintiff’s claims of
discrimination under Title VII and the ADEA.

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B. Hostile Work Environment Claims
Plaintiff alleges that she was subjected to a hostile work environment as a result of sexual
harassment and discrimination based on her age. “A hostile work environment exists ‘[w]hen
the workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th
Cir. 2015) (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
To state a hostile work environment claim based on her age or sex, plaintiff must plausibly allege
that: “(1) she experienced unwelcome harassment; (2) the harassment was based on her ... [age
or sex]; (3) the harassment was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive atmosphere; and (4) there is some basis for imposing liability
on the employer.” Buchhagen v. ICF Int’l, Inc., 545 F. App’x 217, 219 (4th Cir.2013)
(quoting Bass, 324 F.3d at 765).
NCDHHS moves for dismissal on the grounds that plaintiff has not plausibly alleged that
she experienced harassment because of her age and sex, or that the acts alleged were severe or
pervasive enough to constitute a hostile work environment. (Def.’s Mem., DE # 16, at 6.) With
respect to plaintiff’s claim that she was sexually harassed, “[s]exual harassment occurs when the
victim is subjected to sex-specific language that is aimed to humiliate, ridicule or intimidate.”
Jennings v. Univ. of North Carolina, 482 F.3d 686, 691, 695 (4th Cir. 2007). Here, plaintiff
claims that Englander created a hostile work environment by discussing his sexual anatomy
during her training sessions. (Compl., DE # 5, at 4). She specifically alleges that Englander
made comments referencing his “penis, balls, and penile cancer,” and that these comments
occurred on a daily basis over an eight-month period. (Id.) These allegations are sufficient to
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put NCDHHS on notice of plaintiff’s claim of sexual harassment and its grounds. Thus,
NCDHHS’s motion to dismiss will be denied on plaintiff’s sexual harassment claim.
As to plaintiff’s claim that she was subjected to a hostile work environment due to her
age, plaintiff does not allege any facts demonstrating that the treatment of which she complains
was motivated by her age. Plaintiff’s allegations of a hostile work environment center on the
alleged comments Englander made about his anatomy. There are no allegations that Englander’s
comments made any reference to plaintiff’s age. Because there is no basis to infer that plaintiff
was subjected to harassment based on her age, plaintiff’s age-based hostile work environment
claim will be dismissed.
C. Retaliation Claim
Plaintiff also asserts that NCDHHS retaliated against her by terminating her employment
after she filed a discrimination charge in 2015, and made a complaint to the EEO Officer at
NCDHSS in January 2016. To state a retaliation claim under Title VII and the ADEA, a plaintiff
must demonstrate that: (1) she engaged in a protected activity; (2) she suffered an adverse
employment action; and (3) there was a causal link between the protected activity and the
employment action. Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir. 2013).
NCDHHS admits that plaintiff engaged in two protected activities, and that the termination of
plaintiff’s employment constituted an adverse employment action. (Def.’s Mem., DE # 16, at 7.)
However, NCDHSS disputes plaintiff’s allegations of a causal connection between her
termination and the protected acts. (Id. at 7-8.)
“[U]nder Fourth Circuit law, very little proof is required to establish the causal link in a
retaliation case; in fact, in many instances, the connection is inferred from the mere act of
termination . . . ” Barbier v. Durham Cty. Bd. of Educ., 225 F. Supp. 2d 617, 627 (M.D.N.C.
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2002). In this case, plaintiff alleges that she was fired ten days after complaining to the EEO
manager about the harassment. (Compl., DE # 5, at 4.) Additionally, plaintiff alleges that her
termination occurred directly following the expiration of the time-period for her to file a
complaint relating to her first EEOC complaint. (Id.) “While evidence as to closeness in time
‘far from conclusively establishes the requisite causal connection, it certainly satisfies the less
onerous burden of making a prima facie case of causality.’” Yashenko v. Harrah’s NC Casino
Co., 446 F.3d 546, 551 (4th Cir. 2006) (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457
(4th Cir. 1989)). The court therefore concludes that plaintiff’s factual allegations are sufficient
to support a causal connection between the alleged protected acts and plaintiff’s termination.
IV. CONCLUSION
For the foregoing reasons, NCDHHS’s motion to dismiss, (DE # 15), is GRANTED IN
PART and DENIED IN PART. Plaintiff’s claims for unlawful retaliation and hostile work
environment due to sexual harassment remain, but her claims for age and sex discrimination and
hostile work environment based on her age will be dismissed with leave to amend. Should
plaintiff wish to amend her complaint, she must do so no later than 30 days from the date of this
order.
This 13 September 2017.

__________________________________

W. Earl Britt
Senior U.S. District Judge

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