Sabrosso-Rennick v. North Carolina State Treasurer

Filing 32

ORDER granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim; granting 29 Motion for Extension of Time to File Response. Signed by US District Judge Terrence W. Boyle on 6/13/2018. Copy sent to Rosita Sabrosso-Rennick via US Mail to 3802 Delverne Road, Baltimore, MD 21218. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-114-BO

ROSITA SABROSSO-RENNICK,
Plaintiff,

v.
NORTH CAROLINA STATE
TREASURER,
Defendant.

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ORDER

This cause comes before the Court on defendant's motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff, proceeding in this matter prose, has
responded outside the time provided, and the motion is ripe for ruling. For the reasons that follow,
defendant's motion to dismiss is granted in part.
BACKGROUND
Plaintiffs amended complaint alleges claims for retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; wrongful termination in violation of North
Carolina public policy; violation of plaintiffs due process rights under the North Carolina
Constitution; 1 and defamation, libel, and slander. Plaintiff alleges that she, a forty-nine year old
African American female, was employed by defendant as an Information and Communications
Specialist (II), with a working title of marketing officer, prior to her unlawful dismissal for
allegedly unsatisfactory work performance. Plaintiff was hired in 2014 and alleges that her first
protected activity took place in July 2015 when she consulted with defendant's human resources
department "immediately following one of many uncomfortable and antagonistic conversations

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Plaintiff has clarified in her response to the motion to dismiss that she has brought a due process
claim only under the North Carolina Constitution.

with [plaintiffs] [m]anager, Mrs. Buonfiglio." Amd. Cmpl. ii 5. Plaintiff alleges that she excused
herself from the meeting with Buonfiglio after telling Buonfiglio that she was not comfortable
with the conversation and felt she was being

discr~minated

against because of her race based on

the condescending manner in which she had been spoken to as well as plaintiffs observation that
similarly situated counterparts were not treated in the same manner. Id. Plaintiff was dismissed
from her position as marketing officer on February 10, 2016, allegedly as a form ofretaliation after
plaintiff had brought her concerns about possible race discrimination to the human resources
department. Id

ii 8.

Plaintiff alleges that from July 2015 to December 2016 she engaged in

protected activity by filing an EEOC (Equal Employment Opportunity Commission) complaint.
Id

ii 14.

Plaintiff alleges that during the last several months of her employment she was given

numerous duplicitous warnings from defendant, one of which defamed her character and accused
her of falsifying information on her job application. Id.

ii 16.

In support of her due process claim, plaintiff alleges that she had a protected liberty interest

in her job which was violated by defendant, and that defendant has through its actions injured
plaintiffs good name and reputation and foreclosed plaintiffs ability to secure other employment
opportunities. Plaintiffs defamation-based claims arise out of her allegation that defendant made
a false allegation that plaintiff had falsified her receipt of an associate's degree on her employment
application.
DISCUSSION
At the outset, the Court grants plaintiffs motion for extension of time to respond to the
motion to dismiss and it has considered plaintiffs arguments included in her response.
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478
U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should

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accept as true all well-pleaded allegations and should view the complaint in a light most favorable
to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A complaint
must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544; 570 (2007). In other words, the facts alleged must allow a court, drawing
on judicial experience and common sense, to infer more than the mere possibility of misconduct.

Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc., 591F.3d250, 256 (4th Cir. 2009). The court
"need not accept the plaintiffs legal conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or arguments." Philips v. Pitt County Mem.

Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (internal alteration and citation omitted).
"The Eleventh Amendment bars suit against non-consenting states by private individuals
in federal court." Bd of Trustees of the Univ. ofAla. v. Garrett, 531 U.S. 356, 363 (2001). This
guarantee applies not only to suits against the State itself but also to suits where "one of [the
State's] agencies or departments is named as the defendant." Pennhurst State Sch. & lfosp. v.

Halderman, 465 U.S. 89, 100 (1984); see also Housecalls Home Health Care, Inc. v. US. Dep't
of Health & Human Servs., 515 F. Supp. 2d 616, 625 (M.D.N.C. 2007) (North Carolina
Department of State Treasurer considered an arm of the State for Eleventh Amendment purposes).
The Eleventh Amendment bars suit in federal court regardless of the nature of the relief that is
sought, Pennhurst, 465 U.S. at 100, unless one of the limited exceptions such as waiver or
abrogation applies. See Edelman v. Jordan, 415 U.S. 651, 673 (1974); Seminole Tribe v. Florida,
517 U.S. 44 (1996).
Plaintiff has identified no waiver or abrogation of immunity with respect to her state law
claims, and her state law claims against defendant are properly dismissed. See also Johnson v.

North Carolina, 905 F. Supp. 2d 712, 723 (W.D.N.C. 2012) (dismissing state law employment-

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related claims against state agency employer); Dai v. Univ. of N Carolina, at Chapel Hill, No.
1:02CV224, 2003 WL 22113444, at *5 (M.D.N.C. Sept. 2, 2003) ("the State is likewise entitled
to Eleventh Amendment immunity when common law tort claims, such as wrongful discharge,
that seek monetary damages are brought into federal court through pendent jurisdiction.").
Moreover, any limited waiver of sovereign immunity by the State of North Carolina with respect
to tort claims requires that such claims proceed before the North Carolina Industrial Commission.

See N.C. Gen. Stat. § 143-291; Hooper v. North Carolina, 379 F. Supp. 2d 804, 812 (M.D.N.C.
2005) (wrongful termination is a tort not a contract claim).
Title VII represents a valid abrogation of the State's Eleventh Amendment immunity,
however. Fitzpatrick v. Bitzer, 427 U.S. 445, 448-49 (1976) (Title VII was "amended to bring the
States within its purview"); Stewart, Jr. v. Virginia Com. Univ., 414 F. App'x 555, 556 (4th Cir.
2011). Title VII prohibits discrimination by employers against its employees for opposing any
practice made unlawful by Title VIL 42 U.S.C. § 2000e-3(a). In the absence of direct proof of
retaliation, a plaintiff must first make a prima facie showing that she engaged in protected activity,
that her employer took adverse employment action against her, and that a causal connection exists
between the protected activity and the adverse employment action. Williams v. Cerberonics, Inc.,
871F.2d452, 457 (4th Cir. 1989). If the plaintiff has established a prima facie case, it may be
rebutted by her employer by a showing of legitimate, nondiscriminatory reasons for the adverse
employment action. Id. The burden then lies with plaintiff to show that her employer's proffered
legitimate reasons are merely pretext for discrimination. Id
Defendant does not argue that plaintiff has failed to satisfy the first and second elements
of her retaliation claim - that she engaged in protected activated by complaining to human
resources and that she suffered an adverse employment action when her employment was

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terminated. Defendant argues only that plaintiff has failed to sufficiently allege that a causal
connection exists between her protected activity and the adverse employment action. Plaintiff has
alleged that she engaged in protected activity by complaining to human resources about her
manager, Buonfiglio, in July of 2015. As noted above, plaintiff's termination was in February
2016, approximately seven months later. "Where a plaintiff rests his case on temporal proximity
alone, the temporal proximity must be very close." Penley v. McDowell Cty. Bd of Educ., 876
F.3d 646, 656 (4th Cir. 2017). Generally, more than a period of days or weeks is not sufficiently
proximate to support the presence of causation. See, e.g., Vicino v. Maryland, 982 F. Supp. 2d
601, 614 (D. Md. 2013) (less than two months between protected activity and termination
sufficient to establish causation).
Plaintiff contends that after she complained to human resources, defendant subjected her
to a series of retaliatory events, including a negative performance review and written warnings
regarding

uns~tisfactory

job performance, which demonstrate causation.

"In cases where

'temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts
may look.to the intervening period for other evidence ofretaliatory animus."' Lettieri v. Equant
Inc., 478 F.3d 640, 650 (4th Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271,

281 (3d Cir.2000)). This may include evidence of "recurring retaliatory animus" which occurred
during the period between the protected activity and the adverse employment action. Id.
Although plaintiff's allegations which would support the presence of recurring retaliatory
animus are at times conclusory, she has alleged sufficient facts to ~udge her claim across the line
from conceivable to plausible. Twombly, 550 U.S. at 570. On March 3, 2015, Buonfiglio found
during plaintiff's performance review that plaintiff was meeting expectations. On September 22,
2015, two months after her human resources complaint about Buonfiglio in July 2015, Buonfiglio

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gave plaintiff a negative performance review; on November 20, 2015, Buonfiglio issued plaintiff
a written warning for unsatisfactory job performance; on December 17, 2015, Buonfiglio alleged
that plaintiff missed another deadline; and on January 29, 2016, Buonfiglio again issued plaintiff
a written warning regarding unsatisfactory job performance. See Amd. Cmpl. at 9. Buonfiglio
was allegedly aware of plaintiffs complaint to human resources and plaintiff contends that each
subsequent discipline issued by Buonfiglio was baseless. See Lettieri, 4 78 F .3d at 651 (steps taken
after protected activity to make it easier to terminate plaintiffs position may demonstrate
causation). At the pleading stage, this is sufficient to proceed further. Accordingly, the motion to
dismiss is denied as to plaintiffs Title VII retaliation claim.
CONCLUSION
For the foregoing reasons, plaintiffs motion for extension of time [DE 29] is GRANTED
and defendant's motion to dismiss [DE 26] is GRANTED IN PART and DENIED IN PART. With
the exception of plaintiffs Title VII retaliation claim, plaintiffs claims are DISMISSED.

SO ORDERED, this

/.J day ofJune, 2018.

~fJ~
UNITED STATES DISTRICT JUDGE

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