Hoyle v. Cumberland County Hospital Systems, Inc.

Filing 37

ORDER - The court DISMISSES AS MOOT defendant's motion to dismiss D.E. 16 , Hoyle's motion to deny defendant's motion to dismiss D.E. 19 , and Hoyle's second motion to deny defendant's motion to dismiss D.E. 25 . The cou rt GRANTS defendant's motion to dismiss plaintiff's amended complaint D.E. 28 and DISMISSES WITHOUT PREJUDICE plaintiff's amended complaint. Signed by District Judge James C. Dever III on 3/7/2025. Sent via US Mail to Rise H. Hoyle at 7702 Eunice Drive, Fayetteville, NC 28306. (Mann, Stephanie)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
No. 5:24-CV-65-D

RISE' H. HOYLE,
Plaintiff,

v.
CUMBERLAND COUNTY HOSPITAL
SYSTEMS, INC.,
Defendant.

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ORDER

On February 5, 2024, Rise' H. Hoyle {''Hoyle" or "plaintiff'), filed a prose complaint [D.E.
l] and a motion to proceed in forma pauperis [D.E. 3]. In her complaint, Hoyle alleged that her
former employer Cumberlan<;i County Hospital Systems, Inc., d/b/a/ Cape Fear Valley Medical
Center ("Cape Fear'' or "defendant") wrongfully discharged her in violation ofNorth Carolina law
and violated Title VII of the Civil Rights Act of 1964 (''Title VII''). See id. On February 7, 2024,
the court referred the case to United States Magistrate Judge Robert T. Numbers, Il for a
Memorandum and Recommendation (''M&R'') and frivolity review [D.E. 5]. See 28 U.S.C. §
636(b)(l). On May 17, 2024, Magistrate Judge Numbers recommended that the court grant the
motion to proceed in forma pauperis, allow plaintiff's Title VII retaliation claim to proceed, and
dismiss the remainder of Hoyle's complaint without prejudice [D.E. 6]. On May 30, 2024, Hoyle
objected to the M&R [D.E. 7]. On June 10, 2024, the court overruled Hoyle's objection, ,adopted
the M&R, allowed Hoyle's Title VII retaliation claim to proceed, and dismissed the remainder of
Hoyle's complaint without prejudice [D.E. 8].

On August 2, 2024, Cape Fear moved to dismiss Hoyle's Title VII retaliation claim [D.E.
16] and filed a memorandum in support [D.E. 17]. On August 21, 2024, Hoyle filed a ''motion to
deny defendant's motion to dismiss and response in opposition" [D.E. 19]. That same day, Hoyle
also filed an amended complaint. See Am. Compl. [D.E. 20]. In Hoyle's amended complaint,
Hoyle alleges (1) race discrimination in violation of Title VII (count one), (2) national origin
discrimination in violation of Title VII (count two), (3) a racially hostile work environment in
violation of Title VII (count three), (4) retaliation in violation of Title VII (count four), (5) age
discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA''), as
amended, 29 U.S.C. §§ 621 et seg. (count five), (6) disability discrimination in violation of Title I
of the Americans with Disabilities Act (''Title I"), 42 U.S.C. §§ 12101, et~ (count six), (7)
retaliation in violation of the ADA (count seven), and (8) wrongful discharge in violation of North
Carolina public policy (count eight). See id 1-18.
On September 4, 2024, Cape Fear replied in support of its motion to dismiss [D.E. 21]. On
September 16, 2024, Hoyle filed an "amended motion to deny defendant's motion to dismiss"
[D.E. 25] and a document titled "argument and opposition" [D.E. 26]. On September 18, 2024,
Hoyle purported to amend her amended complaint [D.E. 27].
On September 25, 2024, Cape Fear moved to dismiss Hoyle's amended complaint [D.E.
28] and filed a memorandum in support [D.E. 29]. See Fed. R. Civ. P. 12(b)(1 ), (6). On November
14, 2024, Hoyle filed two responses in opposition. See [D.E. 34, 35]. On November 27, 2024,
Cape Fear replied [D.E. 36]. As explained below, the court grants Cape Fear's motion to dismiss
the amended complaint and dismisses without prejudice Hoyle's amended complaint.

2

I.
Hoyle is a 61-year-old "mixed race" woman who considers herself ''white/Caucasian." See
Am. Compl. 1, 3, 5. From 2019 until August 27, 2021, Hoyle worked for Cape Fear as a registered
nurse. See id. Hoyle alleges she performed her job satisfactorily. See id at 2. In March 2021,
Hoyle expressed interest in two open positions at Cape Fear-patient care manager and nurse
educator. See id. at 4. In March 2021, however, Cape Fear hired two younger and less experienced
nurses. See id. at 4-5, 12. Hoyle alleges Cape Fear refused to consider her for those two positions
because Hoyle is white and Cape Fear's Human Resource Department "is primarily
[b]lack/African American?

...." Id. at 5.

On May 11, 2021, Hoyle underwent surgery on her left foot, which impaired her ability to
walk and required physical therapy; See id. at 12. Cape Fear approved Hoyle's request for leave
under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et. seq. On August 9, 2021,
Hoyle returned to work. See id. at 2, 5, 12. After returning to work, Hoyle alleges a new patient
care manager, Jerri Musselwhite (''Musselwhite"), did not offer her an accommodation even
though ''it was visibly obvious [Hoyle] was suffering with every step." Id. at 12. Musselwhite
also allegedly told Hoyle that Hoyle ''was too old and needed to find another position." Id.
On August 26, 2021, Musselwhite texted Hoyle and told Hoyle that the two ofthem needed
to "discuss some things." Id. at 13. On August 27, 2021, Hoyle met with Musselwhite and Alicia
Shields ("Shields"), Cape Fear's employment relations and human resources director. See id. at
12-14. At this meeting, Shields allegedly accused Hoyle of "being racist." Id. at 14. At the
meeting, Hoyle denied being racist but resigned to stop the alleged harassment. See id at 13.
Hoyle alleges Shields and Musselwhite's actions amounted to a constructive discharge. See id. at

3

8, 13-14. Moreover, Cape Fear declined to let Hoyle "rescind her resignation" and banned her
from working in its facilities. See id. at 13-14.
On February 7, 2022, Hoyle filed a charge with the Equal Employment Opportunity
Commission (''EEOC'') against Cape Fear alleging that Cape Fear declined to promote her and
terminated her employment because of her "race, age ... , national origin and/or ethnicity, sex,
color, [and] disability." [D.E. 20-2] 2. On November 15, 2023, the EEOC issued Hoyle a right to
sue notice. See [D.E. 34-4].
II.
Cape Fear moves to dismiss Hoyle's amended complaint. See [D.E. 29] 1; Fed. R. Civ. P.
12(b)(l), (6). A motion to dismiss under Rule 12(b)(l) tests subject-matter jurisdiction, which is
the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see Fed. R. Civ. P. 12(b)(l). A federal
court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on
the merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 479-80 (4th Cir. 2005). When considering a Rule 12(b)(l) motion, the court "may consider
evidence outside the pleadings without converting the proceeding into one for summary
judgment." White Tail Park, Inc. v. Straube, 413 F.3d 451, 459 (4th Cir. 2005) (quotation
omitted); see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must
establish that this court has subject-matter jurisdiction over her claims. See, ~ Steel, 523 U.S.
at 104; Evans, 166 F.3d at 647; Richmond, Fredericksburg & Potomac R.R. v. United States, 945
F.2d 765, 768 (4th Cir. 1991). However, ''when a defendant asserts that the complaint fails to
allege sufficient facts to support subject[-]matter jurisdjction, the ... court must apply a standard

4

patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and
any additional materials]." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Com. v. 1\vombly, 550 U.S. 544,
554--63 (2007); Coleman v. Md. Ct. ofAp_peals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S.
30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading ''must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quotation omitted); see 1\vombly. 550
U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the
facts and reasonable inferences "in the light most favorable to [the nonmoving party]." Massey v.
Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); ~ Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds~ Reed v. Town of
Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions,
''unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302
(quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's factual allegations must
"nudge[] [her] claims," 1\vombly. 550 U.S. at 570, beyond the realm of "mere possibility'' into
''plausibility." Iqbal, 556 U.S. at 678-79.
"Determining whether a complaint states a plausible claim for relief . . . [is] a context
specific task that requires the reviewing court to draw on judicial experience and common sense."
Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct," the complaint does not suffice. Id.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
"attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus.,

5

Inc., 637 F.3d 435,448 (4th Cir. 2011); ~ Fed. R. Civ. P. lO(c); Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263,268 (4th Cir. 2005).
A court also may consider a document submitted by a moving party if it is "integral to the
complaint and there is no dispute about the document's authenticity'' without converting the
motion into one for summary judgment. Goines, 822 F.3d at 166. "[l]n the event of conflict
between the bare allegations of the complaint and any exhibit attached ... , the exhibit prevails."
Id. (quotation omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991). Additionally, a court may take judicial notice of public records. See,~ Fed. R. Evid.
201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty.
Mem'l Hom., 572 F.3d 176, 180 (4th Cir. 2009).
A.
Cape Fear argues Hoyle failed to exhaust her administrative remedies for a retaliation claim
under Title VII and the ADA because Hoyle's EEOC charge does not allege retaliation. See [D.E.
29] 6-10. Before a person may file a claim in court under Title VII or the ADA, the person must
file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(l). An EEOC charge
suffices "only if it is sufficiently precise to identify the parties, and to describe generally the action
or practices complained of." Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (quotation
omitted); see Miles v. Dell, Inc., 429 F.3d 480, 491-92 (4th Cir. 2005). Moreover, the content of
the EEOC charge determines the scope of plaintiff's right to maintain a Title VII claim or ADA
claim in court. See,~ Hentosh v. Old Dominion Univ., 767 F.3d 413, 416-17 (4th Cir. 2014),
abrogated on other grounds~ Fort Bend Cnty. v. Davis, 587 U.S. 541 (2019); Bryant v. BellAtl.
Md., Inc., 288 F.3d 124, 132-33 (4th Cir. 2002). "Only those discrimination claims stated in the
initial charge, those reasonably related to the original complaint, and those developed by

6

reasonable investigation of the original complaint may be maintained in a subsequent Title VII
lawsuit." Evans v. Techs. A:ru,lfoations & Serv. Co., 80 F.3d 954,963 (4th Cir. 1996); ~ Sydnor
v. Fairfax Cnty.• 681 F.3d 591, 593-94 (4th Cir. 2012); Miles, 429 F.3d at 491-92; Bryant, 288
F.3d at 132-33. "Thus, a claim in formal litigation will generally be barred if the EEOC charge
alleges discrimination on one basis, such as race, and the formal litigation claim alleges
discrimination on a separate basis, such as sex." Jones v. Calvert Qm., Ltd., 551 F.3d 297, 300
(4th Cir. 2009), abrogated on other grounds~ Davis, 547 U.S. at 547; see Bonds v. Leavitt, 629
F.3d 369, 379 (4th Cir. 2011). The same principle applies to a plaintiff who files an EEOC charge
with respect to one adverse employment action (such as a failure to promote), but then seeks to
expand the formal litigation claim to a separate adverse employment action (such as a termination).
See Bonds, 629 F.3d at 379-80; Jones, 551 F.3d at 300; Miles, 429 F.3d at 491-92; Chacko, 429
F.3d at 509; Bryant, 288 F.3d at 132-33; Evans, 80 F.3d at 963. The rationale behind these
principles concerning the scope of an EEOC charge relates to providing fair notice to an employer
concerning a charge and permitting the EEOC to investigate and (if appropriate) to resolve the
dispute without a lawsuit. See, e..&, Chacko, 429 F.3d at 508---09, 513; Miles, 429 F.3d at 491.
In her EEOC charge, Hoyle did not allege retaliation under Title VII or the ADA. See [D.E.
34-1] 2. Likewise, the EEOC did not interpret Hoyle's charge as alleging retaliation under Title
VII or the ADA. See [D.E. 29-2] 2. Moreover, Hoyle admits she did not allege retaliation in her
EEOC charge. See Am. Compl. 9. Thus, Hoyle failed to exhaust her administrative remedies as
to her Title VII and ADA retaliation claims, and the court dismisses as unexhausted counts four
and seven of her amended complaint.

B.
As for Hoyle's failure-to-promote claims under Title VII and the ADEA, Hoyle alleges that

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she expressed interest in two open positions in March 2021. See Am. Compl. 2, 4-5, 12. Cape
Fear, however, promoted two younger and less experienced nurses. See id.
Under Title VII and the ADEA, a person must file her EEOC charge within 180 days of
each alleged discrete act of discrimination under Title VII. See,~ 42 U.S.C. § 2000e;,-5(e)(l);
29 U.S.C. § 626(d)(l)-(3); Davis, 587 U.S. at 543--44; Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 109-15 (2002); EEOC v. Com. Off. Prods. Co., 486 U.S. 107, 110 (1988); Wtlliams v.
Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004); Bryant, 288 F.3d at 132; Coleman v. Altec,
Inc., No. 5:16-CV-954, 2018 WL 4289610, at *2 (E.D.N.C. Sept. 7, 2018) (unpublished); Young
v. Onslow Water & Sewer Auth., No. 7:16-CV-259, 2018 WL 405975, at •4 (E.D.N.C. Jan. 12,
2018) (unpublished); Barcliffv. N.C. League of Muns., No. 5:10-CV-244, 2011 WL 3290578, at
*2 (E.D.N.C. Aug. 1, 2011) (unpublished); Bratcher v. Phann. Prod. Dev., Inc., 545 F. Supp. 2d
533, 539 (E.D.N.C. 2008); McDougal-Wtlson v. Goodyear Tire & Rubber Co., 427 F. Supp. 2d
595, 606 n.3 (E.D.N.C. 2006). If a party fails to timely file an EEOC charge, the party ''lose[s] the

ability to recover for'' that claim because the claim is not "actionable." Morgan, 536 U.S. at 110,
113. Only adverse employment actions "that took place within the timely filing period are
actionable." Id. at 114; see Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 623-24
(2007), superseded by statute 29 other grounds, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No.
111-2, 123 Stat. 5; Wtlliams, 370 F.3d at 428; Evans, 80 F.3d at 963; Coleman, 2018 WL4289610,
at *2; Young, 2018 WL 405975, at *4-5; Cooper v. Smithfield Packing Inc., No. 5:10-CV-479,
2011 WL 3207912, at *3 (E.D.N.C. July 27, 2011) (unpublished); Barcliff, 2011 WL 3290578, at
*4; McDougal-Wtlson, 427 F. Supp. 2d at 606 n.3.
Determining the timeliness of plaintiffs' EEOC charges requires the court to identify the
precise "unlawful employment practice" at issue. Del. State Coll. v. Ricks, 449 U.S. 250, 257

8

(1980). ''Mere continuity of employment, without more, is insufficient to prolong the life of a
cause of action for employment discrimination." Id.; United Air Lines, Inc. v. Evans, 431 U.S.
553, 558 (1977). "The proper focus is upon the time of the discriminatory acts, not upon the time
at which the consequences of the acts became most painful." Ricks, 449 U.S. at 258 (quotation
omitted); UnitedAirLines, Inc., 431 U.S. at 558. The cause of action arises under Title VII or the
ADEA "when the employee receives unequivocal notice of the facts giving rise to [her] claim or a
reasonable person would know of the facts giving rise to a claim." Burfield v. Brown, Moore &
Flint, Inc., 51 F.3d 583, 589 (5th Cir. 1995) (per curiam); see Hearn v. Town of Oak Island, No.
21-1598, 2022 WL 7935994, at *1 (4th Cir. Oct. 14, 2022) (per curiam) (unpublished); Martin v.
Sw. Va. Gas Co., 135 F.3d 307, 310 (4th Cir. 1998) (collecting cases); English v. Whitfield, 858
F.2d 957, 961-62 (4th Cir. 1988).
Hoyle alleges that Cape Fear did not promote her in March 2021. See Am. Compl. 2, 4-5,
12. Hoyle, however, did not file her EEOC charge until February 7, 2022. See [D.E. 20-2] 2.
Thus, the court dismisses as untimely Hoyle's failure-to-promote-claims. See, ~ Morgan, 536
U.S. at 113.
C.
In counts one and two, Hoyle alleges race and national origin discrimination in violation
of Title VII. Title VII prohibits an employer from discharging an employee ''because of such
individual's" race or national origin. 42 U.S.C. § 2000e-2(a)(l ). A plaintiff need not plead a prima
facie case under McDonnell Douglas Com. v. Green, 411 U.S. 792, 802--04 (1973), to survive a
motion to dismiss. See,~ Swierkiewicz v. Sorema N.A, 534 U.S. 506, 508, 515 (2002);
Barbour v. Garland, 105 F.4th 579, 590 (4th Cir. 2024); Holloway v. Matyland, 32 F. 4th 293, 298
(4th Cir. 2022); Bing v. Bravo Sys., LLC, 959 F.3d 605,616 (4th Cir. 2020); McCleary-Evans v.

9

Md. De_p't ofTransp., 780 F.3d 582, 585 (4th Cir. 2015). In order to state a race or national origin
discrimination claim under Title VII, Hoyle must plausibly allege that Cape Fear discriminated
against her because of her race or national origin with respect to her compensation, terms,
conditions, or privilege of employment. See, e.:.&, Kelly v. Town ofAbingdon, 90 F.4th 158, 169
(4th Cir. 2024); Holloway. 32 F.4th at 299; Lemon v. Myers Bigel, P.A., 985 F.3d 392, 399-400
(4th Cir. 2021); Bing. 959 F 3d. at 616--17; McCleary-Evans, 780 F.3d at 585-86; Jordan v. Alt.
Res. Com.. 458 F.3d 332, 346 (4th Cir. 2006), overruled on other grounds by Boyer-Liberto v.
Fontainebleau Com.. 786 F.3d 264 (4th Cir. 2015) (en bane).
In considering whether Hoyle plausibly alleged a race or national origin discrimination
claim under Title VII, Hoyle must plausibly allege an adverse employment action. See, ~
Muldrow v. City of St. Louis, 601 U.S. 346, 355 (2024); Holloway, 32 F.4th at 299; Bing. 959
F.3d. at 616--17; McCleary-Evans, 780 F.3d at 585-86. An adverse employment action does not
require a "significant ... [o]r serious, or substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar" change in working conditions.
Muldrow. 601 U.S. at 355 (quotation omitted). Rather, it requires "some harm respecting an
identifiable term or condition of employment." Id.; see Yates v. Spring Inde_p. Sch. Dist., 115 F.4th
414,420 (5th Cir. 2024); Stratton v. Bentley Univ., 113 F.4th 25, 38 n.6 (1st Cir. 2024); Peifer v.
Bd. of Prob. & Parole, 106 F.4th 270,277 (3d Cir. 2024); Rios v. Centerra (hp. LLC, 106 F.4th
101, 112 (1st Cir. 2024); Cole v. (hp. Health Plan, Inc., 105 F.4th 1110, 1114 (8th Cir. 2024);
Milczak v. Gen. Motors, LLC, 102 F.4th 772, 787 (6th Cir. 2024), reh'g denied sub nom. Mllczak
v. Gen. Motors, LLC, No. 23-1462, 2024 WL 3205990 (6th Cir. June 17, 2024) (unpublished).
Moreover, to "discriminate against means [to] treat worse." Muldrow, 601 U.S. at 355 (quotation
omitted). An employee need only be "treat[ed] worse" respecting an identifiable term, condition,

or privilege of employment based on her protected status, such as sex. Id. Thus, an adverse
employment action includes a "disadvantageous change to the compensation, terms, conditions, or
privileges of employment because of a protected status." Cole, 105 F.4th at 1114; see Rios, 106
F.4th at 112.
In Muldrow, a female police sergeant filed a Tile VII sex discrimination claim and alleged
that the St. Louis Police Department transferred her from one job as a sergeant to another job as a
sergeant because she was a woman. See Muldrow, 601 U.S. at 350. Specifically, she alleged that
the St. Louis Police Department transferred her from a plainclothes job in the Intelligence Division
to a uniformed job in the Department's Fifth District because of her sex. Id. at 351. Although the
sergeant's "rank and pay remained the same in the new position, her responsibilities, perks, and
schedule did not." Id. With respect to the requirement of an adverse employment action, the
Supreme Court held that a Title VII plaintiff alleging a sexually discriminatory transfer had to
show ''that the transfer brought about some 'disadvantageous' change in an employment term or
condition." Id. at 354 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80
(1998)). The Supreme Court explained that the phrase ''terms, conditions, or privileges of
employment'' used in Title VII "is not used in the narrow contractual sense; it covers more than
the economic or tangible." Id. (quotations omitted). Nonetheless, "[t]o make out a Title VII
discrimination claim, a [claimant] must show some harm respecting an identifiable term or
condition of employment." Id at 354-55.
A plaintiff may establish a Title VII violation in two ways. First, a plaintiff can show •
through direct evidence that racial discrimination motivated an employer's adverse employment
action. See, e..:&, Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005).
Alternatively, if a plaintiff lacks direct evidence of race or national origin discrimination (as in this

11

case), a plaintiff can proceed under the McDonnell Douglas, 411 U.S. at 802--03, burden-shifting
framework. See Hill, 354 F.3d at 284-85. The McDonnell Douglas framework consists of three
steps: "(1) the plaintiff must first establish a prima facie case of employment discrimination or
· retaliation; (2) the burden of production then shifts to the employer to articulate a nondiscriminatory or non-retaliatory reason for the adverse action; (3) the burden then shifts back to
the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse
employment action is a pretext and that the true reason is discriminatory or retaliatory." Guessous
v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). The McDonnell Douglas
framework applies to termination claims under Title VII. See, ~ Williams, 370 F.3d at 430;
Beall v. Abbott Lab'ys, 130 F.3d 614, 619 (4th Cir. 1997), abrogated in part on other grounds 1?y
Gilliam v. S.C. Dep't of Juv. Just., 474 F.3d 134 (4th Cir. 2007).
To establish a prima facie case of race or national origin discrimination, Hoyle must show
that (1) she was a member of a protected class, (2) she suffered an adverse employment action, (3)
she was fulfilling her employer's legitimate expectations at the time of the adverse action, and (4)
she was treated differently than a similarly situated employee outside the protected class. See,
~ Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619,626 (4th Cir. 2015), abrogated in part

ml other grounds 1?y Bing. 959 F.3d 605; White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th
Cir. 2004); Tahirv. Sessions, No. 5:16-CV-781, 2017 WL 1735158, at *4 (E.D.N.C. May 2, 2017)
(unpublished), aff'd, 703 F. App'x 211 (4th Cir. 2017) (per curiam) (unpublished).
To establish a valid comparator, the plaintiff must show that she and the comparator were
"similar in all relevant respects." Haywood v. Locke, 387 F. App'x 355,359 (4th Cir. 2010) (per
curiam) (unpublished); see Smith v. Stratus Comput, Inc., 40 F.3d 11, 17 (1st Cir. 1994); Barski
v. Gyberdata Techs., Inc., No. 8:17-CV-3593, 2020 WL 4471827, at *6 (D. Md. Aug. 4, 2020)

12

(unpublished); Wilson v. City of Chesg.peake, 290 F. Supp. 3d 444, 457 (E.D. Va. 2018), aff'd, 738
F. App'x 169 (4th Cir. 2018) (per curiam) (unpublished). The comparator must have "dealt with
the same supervisor, ... been subject to the same standards and ... engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their conduct or
the employer's treatment of them for it." Mitchell v. Toledo Hos_p.• 964 F.2d 577, 583 (6th Cir.
1992); ~ Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019); Haywood,
387 F. App'x at 359; Cook v. CSX Trans.p. Con,.. 988 F.2d 507,511 (4th Cir. 1993); Wilson, 290
F. Supp. 3d at 457-58. However, "a comparison between similar employees will never involve
precisely the same set of work-related offenses occurring over the same period of time and under
the same sets of circumstances." Haynes, 922 F.3d at 223 (quotation omitted); see Cook, 988 F.2d
at511; Moorev. City of Charlotte, 754F.2d 1100, 1107 (4th Cir. 1985). In the disciplinary context,
"[t]he most important variables ... and the most likely sources of different but nondiscriminatory
treatment, are the nature of the offenses committed and the nature of the punishments imposed."
Moore, 754 F.2d at 1105.
Hoyle alleges she ''was forced to hear non-citizen travel nurses . . . discuss their hourly
wages of $95.00 per hour, while [Hoyle] with many years of experience was paid a mere hourly
sum of $28.02 per hour." Am. Compl. 4. Hoyle also alleges that Cape Fear's human resource
department ''is primarily Black/African American" and Hoyle is white. See id at 5. Furthermore,
Hoyle alleges Shields falsely accused Hoyle of being racist and thereby constructively discharged
her. See id. at 6. Moreover, Hoyle claims Cape Fear made unspecified "accommodations for a
young Filipino nurse" but not for Hoyle. Id. at 7.
A constructive discharge claim requires Hoyle to plausibly allege her ''working conditions
[became] so intolerable that a reasonable person in the employee's position would have felt

13

compelled to resign." Green v. Brennan, 578 U.S. 547, 555 (2016) (quotation omitted); see Pa.
State Police v. Suders, 542 U.S. 129, 147 (2004); Kelly. 90 F.4th at 169 n.7; Chapman v. Oakland
Living Ctr., Inc., 48 F.4th 222,235 (4th Cir. 2022); E.E.O.C. v. Consol Energy, Inc., 860 F.3d
131, 144-45 (4th Cir. 2017). The standard for intolerable working conditions sufficient to create
a constructive discharge is higher than that for a hostile work environment claim. See, ~ Evans
v. Int'l Paper Co., 936 F.3d 183, 193 (4th Cir. 2019).

"[M]ere dissatisfaction with work

assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions"
do not constitute objectively intolerable conditions. Heiko v. Colombo Sav. Bank F.S.B., 434
F.3d 249,262 (4th Cir. 2006) (quotation omitted).
"Because the claim of constructive discharge is so open to abuse by those who leave
employment of their own accord, [the Fourth Circuit] has insisted that it be carefully cabined."
Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004) (quotation omitted),
abrogated on other grounds hy Green, 578 U.S. 547. A plaintiff who fails to plausibly allege a
hostile work environment necessarily fails to plausibly allege a constructive discharge. See, ~
Suders, 542 U.S. at 147; Soto v. Town of Rolesville, 729 F. Supp. 3d 533, 549 (E.D.N.C. 2024);
Sunkins v. Hampton Roads Connector Partners, 701 F. Supp. 3d 342, 356 (E.D. Va. 2023). This
principle dooms Hoyle's constructive discharge claim.

Cf. Holloway, 32 F.4th at 300--01

(affirming the dismissal of a hostile work environment claim where the "complaint falls
considerably short of alleging an abusive work environment"). Thus, the court dismisses Hoyle's
claims that Cape Fear constructively discharged her in violation of Title VII.
Alternatively, Hoyle fails to plausibly allege any valid comparator concerning Cape Fear's
alleged constructive termination ofHoyle's employment. Absent a valid comparator, Hoyle's race
discrimination and national origin discrimination claims fail. See, ~ McDonnell Douglas, 411

14

U.S. at 804; Cosby v. S.C. Prob., Parole & Pardon Servs., 93 F.4th 707, 714-17 (4th Cir. 2024);
Spencer v. Va. State Univ., 919 F.3d 199, 207---08 (4th Cir. 2019); Haywood, 387 F. App'x at
359-60; Lightner v. City ofWtlmington, 545 F.3d 260, 265 (4th Cir. 2008); Cook, 988 F.2d at 511;
Moore, 754 F.2d at 1105---06; Matney v. Del Toro, No. 2:21-CV-2554, 2023 WL 6644591, at *15
(D.S.C. June 29, 2023) (unpublished), re.port and recommendation adopted by 2023 WL 6370658
(D.S.C. Sept. 30, 2023) (unpublished); Iskander v. De,p't of Navy. 116 F. Supp. 3d 669, 679-80
(E.D.N.C.), aff'd, 625 F. App'x 211 (4th Cir. 2015) (per curiam) (unpublished). Accordingly, the
court grants Cape Fear's motion to dismiss counts one and two of the amended complaint.
Alternatively, Hoyle fails to plausibly allege that Cape Fear treated her differently because
of her race or national origin. For example, Hoyle contends that she had to listen to non-citizen
travel nurses discuss their higher hourly wage. Hoyle, however, does not describe the race or
national origin of these travel nurses. Moreover, and in any event, Hoyle was not a travel nurse
and was not similarly situated to travel nurses. Likewise, even if Cape Fear's human resources
department ''is primarily Black/African American" and Hoyle is white, those two facts are not
evidence that Cape Fear discriminated against Hoyle because of Hoyle's race or national origin.
See,~ McCleaty-Evans, 780 F.3d at 585-86. The same conclusion holds true concerning
Shields's alleged accusation of racism or Cape Fear's alleged unidentified accommodation of a
''young Filipino nurse." See id.
In opposition to this conclusion, Hoyle insists that Cape Fear committed "reverse
discrimination" against her and that Hoyle "is of a [p]rotected race ...." Am. Compl. 3. Hoyle
is in a protected class and can allege race and national origin discrimination. See McDonald v.
Santa Fe Transp. Co., 427 U.S. 273, 280 (1975); Lucas v. Dole, 835 F.2d 532, 534 (4th Cir. 1987).
Moreover, Hoyle need not plead to some higher standard as a white woman. See Lucas, 838 F.2d

15

at 534; cf. Ames v. Ohio Dcm't of Youth Servs., 87 F.4th 822, 825 (6th Cir. 2023) (per curiam),
cert. granted, 145 S. Ct. 118 (2024). Nonetheless, Hoyle still must plausibly allege that Cape Fear
terminated her because of her race or national origin. See Iqbal, 556 U.S. at 678-79; Twombly.
550 U.S. at 569-70; McCleary-Evans, 780 F.3d at 585. Hoyle's conclusions about race and
national origin discrimination fail to move her claims from possible to plausible. Accordingly, the
court grants Cape Fear's motion to dismiss counts one and two of the amended complaint. See
Iqbal, 556 U.S. at 678-79; Twombly. 550 U.S. at 569-70; McCleary-Evans, 780 F.3d at 585.

D.
In count three, Hoyle alleges a racially hostile work environment claim under Title VII. To
state a hostile work environment claim, an employee must plausibly allege that (1) she experienced
unwelcome conduct, (2) the conduct was based on a protected characteristic under the relevant
statute, (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment
and create an abusive atmosphere, and (4) the conduct is imputable to the employer. See,~
Cosby. 93 F.4th at 716; Laurent-Workman v. Wormuth, 54 F.4th 201, 210-12 (4th Cir. 2022);
Chapman, 48 F.4th at 229; Perkins v. Int'l Paper Co., 936 F.3d 196, 207---08 (4th Cir. 2019); Parker
v. Reema Consulting Servs., Inc., 915 F.3d 297, 302 (4th Cir. 2019); Boyer-Liberto, 786 F.3d at
277; Okoli v. City of Bait., 648 F.3d 216, 220-21 (4th Cir. 2011); E.E.O.C. v. Fairbrook Med.
Clinic, P.A., 609 F.3d 320, 327 (4th Cir. 2010); Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir. 2008);
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en bane); Evans v. Capitol
Broad Co., 716 F. Supp. 3d 387, 402---04 (E.D.N.C. 2024); Coleman v. Altec, Inc., No.
5:16-CV-954, 2018 WL 4289610, at *3 (E.D.N.C. Sept. 7, 2018) (unpublished); Brown v. Wake
Cnty. Gov't, No. 5: 16-CV-806, 2017 WL 2982971, at *5 (E.D.N.C. July 12, 2017) (unpublished).
An employee also must plausibly allege that her protected characteristic was the ''but for" cause

16

of the alleged harassment. See,~ Gilliam, 474 F.3d at 142.
To determine whether conduct was sufficiently severe or pervasive to alter the employee's
terms and conditions of employment and create an abusive working environment based on a
protected characteristic, the court examines the allegations both subjectively and objectively. See,
~ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). First, the employee must subjectively

consider the conduct to be sufficiently severe or pervasive as to alter her conditions of employment.
See,~ Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (per curl.am); Faragher
v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Boyer-Liberto, 786 F.3d at 277. Second, a
court views the conduct from the perspective of a reasonable person in the employee's position to
determine whether it is objectively severe or pervasive. See, ~ Breeden, 532 U.S. at 271;
Faragher, 524 U.S. at 787-88; Oncale, 523 U.S. at 81-82; Boyer-Liberto, 786 F.3d at 277.
The objective component helps courts ''to police the baseline for hostile environment
claims." Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en bane) (quotation
omitted). The court considers all the circumstances, including the "frequency ofthe discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work performance." Forklift
Sys., Inc., 510 U.S. at 23; see Parker. 915 F.3d at 304. The conduct must be severe or pervasive
to be actionable. See Forklift Sys., Inc., 510 U.S. at 23; Faragher, 524 U.S. at 787-88; BoyerLiberto, 786 F.3d at 277-78. Title VII does not create "a general civility code for the American
workplace." Oncale, 523 U.S. at 80; see Irani v. Palmetto Health, 767 F. App'x 399,416 (4th Cir.
2019) (per curl.am) (unpublished). Rather, the "conduct must ... amount to a change in the terms
an4 conditions of employment." Faragher, 524 U.S. at 788; see Boyer-Liberto, 786 F.3d at 277-81.
Simple teasing, sporadic rude language, oftband comments, jokes related to a protected status, and

17

isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment. See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 5~.
68--69 (2006); Breeden, 532 U.S. at 270-71; Faragher, 524 U.S. at 788; cf. Chapman, 48 F.4th at
228-34; Boyer-Liberto, 786 F.3d at 277-81. Likewise, mere rude or insensitive treatment cannot
sustain a hostile work environment claim. See, ~ Bonds, 629 F.3d at 385-86; Baqir v. Principi,
434 F.3d 733, 746-47 (4th Cir. 2006); see also Breeden, 532 U.S. at 270-71; Faragher, 524 U.S.
at 787-88; Oncale, 523 U.S. at 81-82; cf. Chapman, 48 F.4th at 228-34; Boyer-Liberto, 786 F.3d
at 277-81; Walker, 775 F.3d at 207-10; Freeman v. Dal-Tile Cotp., 750 F.3d413, 420-24 (4th Cir.
2014); Okoli, 648 F.3d at 220-22.
''The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by simple
recitation of the words used or the physical acts performed." Oncale, 523 U.S. at 81-82.
"Common sense, and an appropriate sensitivity to social context," will enable courts to distinguish
between teasing, distasteful jokes, sporadic rude language, wlgarity, stupidity, offhand comments,
and insensitive treatment and "conduct which a reasonable person in the plaintiff's position would
find severely hostile or abusive" based on a protected characteristic. Id at 82; Hartsell v. Dyplex
Prods., Inc., 123 F.3d 766, 772-73 (4th Cir. 1997).
Although hostile work environment claims often involve repeated conduct, an "isolated
incident of harassment can amount to discriminatory changes in the terms and conditions of
employment, if that incident is extremely serious." Boyer-Liberto, 786 F.3d at 277 (quotations
and alterations omitted); see Pryor v. United Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015);
Okoli, 648 F.3d at 220 & n.5. In assessing the severity of the harassing conduct, the status of the
harasser is an important factor.

See Boyer-Liberto, 786 F.3d at 278; Sonnier v. Diamond

18

Healthcare Com., 114 F. Supp. 3d 349, 356 (E.D. Va. 20M). A "supervisor's power and authority
invests his or her harassing conduct with a particular threatening character... Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 763 (1998); see Boyer-Liberto, 786 F.3d at 278.
To impute liability to an employer for an employee's harassment, a plaintiff must
demonstrate that "after having acquired actual or constructive knowledge of the allegedly
harassing conduct, the employer had taken no prompt and adequate remedial action to correct it."
Mikels v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999) (alteration and quotation omitted)
(collecting cases); see~ 791 F.3d at 498; Freeman, 750 F.3d at 423; E.E.O.C. v. Xerxes Cotp.,
639 F.3d 658, 669 (4th Cir. 2011); E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir.
2008). As for an employer's remedial actions, ''Title VII requires only that the employer take steps
reasonably likely to stop the harassment." Bazemore v. Best Buy. 957 F.3d 195, 202 (4th Cir.
2020) (quotation omitted); see Xerxes Cotp., 639 F.3d at 669. In assessing remedial actions, the
court must consider, inter alia, ''the promptness of the employer's investigation when complaints
are made, whether offending employees were counseled or disciplined for their actions, and
whether the employer's response was actually effective" in stopping the conduct of which plaintiff
complains. Xerxes Cotp., 639 F.3d at 669; see Bazemore, 957 F.3d at 202; ~ 791 F.3d at 498.
"[S]o long as discipline is reasonably calculated to end the [offensive] behavior, the exact
disciplinary actions lie within [the employer's] discretion." Bazemore, 957 F.3d at 202. "A
remedial action that effectively stops the harassment will be deemed adequate as a matter of law."
Xerxes Com., 639 F.3d at 670 (quotation omitted); Bazemore, 957 F.3d at 201--02.
Hoyle alleges Musselwhite harassed her by following her around the hospital (including
into the restroom) and scrutinizing Hoyle's work assignments. Hoyle also alleges Shields falsely
accused Hoyle of being a racist. See Am. Compl. 5-9, 12-14.

19

To state a hostile work environment claim, Hoyle must plausibly allege that her race was
the "but for'' cause of the alleged harassment. See Gilliam, 474 F.3d at 142; Ocheltree, 335 F.3d
at 338. Hoyle also must plausibly allege that the conduct was sufficiently severe or pervasive to
alter her conditions of employment. See,~ Breeden, 532 U.S. at 270-71; Faragher, 524 U.S. at
788; Oncale, 523 U.S. at 80; Bonds, 629 F.3d at 385-86; Baqir, 434 F.3d at 746-47.
Hoyle fails to plausibly allege that the conduct was sufficiently severe or pervasive to alter
her conditions of employment. Hoyle also fails to plausibly allege that Musselwhite or Shields
engaged in the alleged conduct because of Hoyle's race. Accordingly, the court grants Cape Fear's
motion to dismiss count three.

E.
In count five, Hoyle alleges an ADEA discrimination claim against Cape Fear. The ADEA
prohibits an employer from "fail[ing] or refus[ing] to hire or to discharge any individual or
otherwise discriminate against any individual with respect to [her] compensation, terms,
conditions, <>rprivileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(l).
To survive a motion to dismiss, a plaintiff must plausibly allege ''that age constituted the but-for
cause of the adverse employment action." Bandy v. City of Salem, 59 F.4th 705, 710 (4th Cir.
2023); see Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009). Merely alleging that age was one
of multiple motives for an employer's adverse employment action does not suffice. See Bandy,

59 F.4th at 710; Westmoreland v. TWCAdmin. LLC, 924 F.3d 718, 725 (4th Cir. 2019). Rather,
the employee must plausibly allege ''that the employer would not have taken the adverse
employment action in the absence of age discrimination." Bandy, 59 F.4th at 710 (cleaned up);
see Gross, 557 U.S. at 177; Westmoreland, 924 F.3d at 725.
In order to state an age discrimination claim under the ADEA, Hoyle must plausibly allege,

20

inter alia, that she was at least age 40 and that Cape Fear took an adverse employment action
against her because ofher age. See 29U.S.C. § 623(a)(l); Gross, 557 U.S. at 176; Bandy. 59 F.4th
at 710.
Hoyle plausibly alleges that Cape Fear is her employer and that she is over 40 years old.
See Am. Compl. 1. As for an adverse employment action, Hoyle alleges that Musselwhite made
Hoyle walk long distances during her shifts, criticized her work, and once said she was too old for
the job. See id. at 5, 8. Musselwhite's alleged conduct and one stray remark do not constitute
adverse employment action. See,~ Muldrow, 601 U.S. at 354--55; Birkbeck v. Marvel Lighting
Corp., 30 F.3d 507, 511-12 (4th Cir. 1994); EEOC v. Clay Printing Co., 955 F.2d 936, 942-43 (4th
Cir. 1992).
Hoyle also alleges that Cape Fear constructively terminated her employment during the
meeting where Shields allegedly falsely accused Hoyle of being a racist and Hoyle resigned to
stop the alleged harassment. See Am. Compl. 8, 13-14. As discussed, Hoyle fails to plausibly
allege facts sufficient to show constructive discharge. Thus, the court dismisses Hoyle's ADEA
claim.
Alternatively, even viewing Hoyle's amended complaint in the light most favorable to her
and even assuming Cape Fear terminated Hoyle's employment, Hoyle fails to plausibly allege that
Cape Fear terminated her employment because of her age. See Iqbal, 556 U.S. at 677-80;
Twombly. 550 U.S. at 554-63; O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-14
(1996); see also McCleary-Evans, 780 F.3d at 585-88; Gomez v. Haystax Tech., Inc., 292 F. Supp.
3d 676, 686-87 (E.D. Va. 2017), aff'd, 761 F. App'x 220 (4th Cir. 2019) (per curiam)
(unpublished). Accordingly, the court grants Cape Fear's motion to dismiss count five of the
amended complaint.

21

F.
In count six, Hoyle alleges disability discrimination in violation ofTitle I ofthe ADA. Title
I of the ADA applies to employment and prevents discrimination "against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a).
A plaintiff may assert an ADA claim against her employer based on (1) intentional
discrimination or disparate treatment; (2) disparate impact; or (3) failure to make reasonable
accommodations. See Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003); Prentice v. North
Carolina, No. 5:20-CT-3150, 2023 WL 2533164, at *4 (E.D.N.C. Mar. 3, 2023) (unpublished),
aff' d sub nom. Prentice v. Haynes, No. 23-6243, 2023 WL 6442566 (4th Cir. Oct. 3, 2023) (per
curiam) (unpublished); see also A Helping Hand LLC v. Bait. Cnty., 515 F.3d 356,362 (4th Cir.
2008). A plaintiff may prove such discrimination through direct evidence or through the
McDonnell Douglas burden-shifting framework. See Raytheon, 540 U.S. at 49-50 & n.3; Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); McDonnell Douglas, 411 U.S. at
802-04.
As with her other discrimination claims, Hoyle need not plead a prima facie case to survive
a motion to dismiss. See Swierkiewicz, 534 U.S. at 508, 515. Nonetheless, Hoyle still must
plausibly "allege facts sufficient to state all the elements of [her] claim." Jordan, 458 F.3d at 346
(cleaned up), overruled on other grounds~ Boyer-Liberto, 786 F.3d 264; see Iqbal, 556 U.S. at
678-79; Twombly, 550 U.S. at 569-70; McCleary-Evans, 780 F.3d at 585.
To establish a disability discrimination claim under Title I of the ADA, a plaintiff must
prove "(1) that she has a disability, (2) that she is a 'qualified individual' for the employment in

22

question, and (3) that [her employer] discharged her (or took other adverse employment action)
because of her disability." Jacobs v. N.C. Ad.min. Off. of the Cts., 780 F.3d 562, 572 (4th Cir.
2015) (quotation omitted) (alteration in original); see EEOC v. McLeod Health, Inc., 914 F.3d 876,
883 (4th Cir. 2019). A disability under the ADA must "substantially limit? one or more [of the
plaintiff's] major life activities." 42 U.S.C. § 12102(l)(A); see J.D. by Doherty v. Colonial
Williamsburg Found., 925 F.3d 663, 670 (4th Cir. 2019); Jacobs, 780 F.3d at 572-74. An adverse
action includes "a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits." Burlington Indus., Inc., 524 U.S. at 761; see Muldrow, 601 U.S.
at 354-55; Laird v. Fairfax Cnty., 978 F.3d 887,893 (4th Cir. 2020).
The court assumes without deciding that Hoyle plausibly alleges a disability from her foot
surgery on May 11, 2021. See Am. Compl. 2, 4. The court also assumes without deciding that
Hoyle plausibly alleges that she was qualified to perform her job and performed the essential
functions of her job without reasonable accommodation. See id. at 2, 4. Hoyle, however, fails to
plausibly allege that Cape Fear took adverse action because of Hoyle's alleged disability.
Likewise, Hoyle fails to plausibly allege her accommodation requests, Cape Fear's alleged denial
of those requests, or how those alleged accommodations would have allowed her to perform the
essential functions of her job. See,~ Wtlson v. Dollar Gen. Com., 717 F.3d 337, 345 (4th Cir.
2013). Accordingly, the court grants defendant's motion to dismiss count six.
G.
In count eight, Hoyle alleges wrongful discharge in violation of North Carolina public
policy. Hoyle, however, resigned. Thus, the court construes Hoyle's claim as a wrongful
constructive discharge claim in violation of public policy.

23

For this claim, this court must predict how the Supreme Court of North Carolina would .
rule on any disputed state-law issue. See Twin City Fire Ins. Co. v. Ben Am.old-Sunbelt Beverage
Co., 433 F.3d 365,369 (4th Cir. 2005). First, the court looks to opinions of the Supreme Court of
North Carolina. See Stable v. CTS Com.. 817 F.3d 96, 100 (4th Cir. 2016). If there are no
governing opinions from that court, this court may consider the opinions of the North Carolina
Court of Appeals, treatise~, and ''the practices of other states." Twin City Fire Ins. Co., 433 F.3d
at 369 (quotation and citation omitted). In predicting how the highest court of a state would address
an issue, this court must "follow the decision of an intermediate state appellate court unless there
(

is persuasive data that the highest court would decide differently." Town of Nags Head v.
Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (quotation omitted); see Hicks ex. rel. Feiock v.
Feiock, 485 U.S. 624, 630 & n.8 (1988). Moreover, in predicting how the highest court of a state
would address an issue, this court "should not create or expand a [s]tate's public policy." Time
Warner Ent.-Advance/Newhouse P'ship v. Carteret-Craven Blee. Membership Com., 506 F.3d
304, 314 (4th Cir. 2007) (alteration and quotation omitted); see Day & Zimmennann Inc. v.
Challoner, 423 U.S. 3, 4 (1975) (per curiam); Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th
Cir. 1999).
North Carolina does not recognize a claim for wrongful constructive discharge in violation
of public policy. See,~ Whitt v. Harris Teeter, Inc., 359 N.C. 625, 614 S.E.2d 531, 532 (2005)
(per curiam); Batchelor v. City ofWtlson, 747 F. Supp. 3d 845,864 (E.D.N.C. 2024) (collecting
cases); Gelin v. N-Able Techs.. Inc., No. 5:22-CV-345, 2023 WL 3079420, at *4--5 (E.D.N.C. Apr.
25, 2023) (unpublished); EEOC v. 1618 Conce.pts, Inc., 432 F. Supp. 3d 595,609 (M.D.N.C. 2020);
Millerv. Gerber Collision (Ne.), Inc., No. 4:19-CV-18, 2019 WL 1960337, at *2-3 (E.D.N.C. May

24

2, 2019) (unpublished). Accordingly, the court dismisses Hoyle's wrongful constructive discharge
claim.

m.
In sum, the court DISMISSES AS MOOT defendant's motion to dismiss [D.E. 16], Hoyle's
motion to deny defendant's motion to dismiss [D.E. 19], and Hoyle's second motion to deny
defendant's motion to dismiss [D.E. 25]. The court GRANTS defendant's motion to dismiss
plaintiff's amended complaint [D.E. 28] and DISMISSES WITHOUT PREJUDICE plaintiff's
amended complaint.
SO ORDERED. This l

day of March, 2025.

J~.DEVER
United States District Judge

25