McDonald v. Hanger Prosthetics & Orthotics, Inc.
ORDER granting in part and denying in part 11 Motion to Dismiss for Failure to State a Claim - Defendant's partial motion to dismiss is GRANTED IN PART and DENIED IN PART. The court DISMISSES any Title VII claim in the first cause of action concerning bonuses or a pay raise, but DENIES defendant's motion to dismiss plaintiff's Title VII racially hostile work environment claim in the first cause of action. The court DISMISSES any claim in the second cause of action concerning a racially hostile work environment in violation of North Carolina public policy. The court DISMISSES plaintiff's NCWHA claim in the third cause of action. Signed by Chief Judge James C. Dever III on 10/5/2014. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
HANGER PROSTHETICS &
On March 26, 2014, Jannette McDonald ("McDonald" or "plaintiff') sued her former
employer Hanger Prosthetics & Orthotics, Inc. ("Hanger" or "defendant") in New Hanover County
Superior Court. See Compl. [D.E. 1-1]. On May 9, 2014, Hanger timely removed the action. [D.E.
1]. McDonald's complaint contains three causes of action: (1) a Title VII race discrimination
termination claim and a Title VII racially hostile work environment claim; (2) a North Carolina
wrongful termination in violation of public policy claim because Hanger allegedly terminated
McDonald's employment based on her race; and (3) a violation of the North Carolina Wage and
Hour Act (''NCWHA"), N.C. Gen. Stat.§§ 95-25.1-95-25.25, by failing to pay McDonald a pay
raise and bonuses. See Compl. ~~ 2~6. On June 16, 2014, Hanger moved to dismiss a portion of
McDonald' complaint for failure to state claim upon which relief can be granted [D.E. 11]. On July
28, 2014, McDonald responded [D.E. 14]. On September 16,2014, Hanger replied [D.E. 19]. As
explained below, Hanger's motion to dismiss is granted in part and denied in part.
"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) (quotation omitted); see Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007); Coleman v. Md. Ct. of Aweals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct.
1327 (2012); Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir. 2008). The court "accepts all wellpled facts as true" but need not accept a complaint's "bare assertions devoid of further factual
enhancement," nor a complaint's statements or conclusions of law. Nemet Chevrolet. Ltd. v.
Consumeraffairs.com,lnc., 591 F.3d250, 255 (4thCir. 2009). "Theplausibilitystandardisnotakin
to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678. Moreover, a Title Vll plaintiff is not required to plead facts that
constitute a prima facie case. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510--15 (2002).
Nonetheless, Swierkiewicz "left untouched the burden of a plaintiff to allege facts sufficient to state
all elements of her claim." Jordan v. Alternative Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006)
McDonald concedes that her allegations in her Title Vll cause of action concerning a pay
raise and bonus "do not raise separate and independent claims ... under Title Vll." Pl.'s Resp. [D.E.
14] 5. Thus, the court grants the partial motion to dismiss any Title Vll claim in the first cause of
action concerning a pay raise or a bonus. Likewise, McDonald concedes that her allegations in her
wrongful discharge claim in the second cause of action do not include a hostile work environment
claim based on public policy because North Carolina does not recognize such a claim. See PI's
Resp. 11; Whitt v. Harris Teeter. Inc., 359 N.C. 625,625, 614 S.E.2d 531, 532 (2005) (per curiam),
adopting dissent in Whitt v. Harris Teeter. Inc., 165 N.C. App. 32, 43, 598 S.E.2d 151, 159 (2004)
(McCullough, J., dissenting). Thus, the court grants the partial motion to dismiss any claim in the
second cause of action alleging a racially hostile work environment in violation of North Carolina
The parties dispute whether McDonald has plausibly alleged a racially hostile work
environment claim under Title VII in her first cause of action and whether McDonald has plausibly
alleged a NCWHA violation in her third cause of action. The court has reviewed the complaint in
light of the standard governing under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
As for McDonald's racially hostile work environment claim under Title VII in her first
cause of action, the claim barely ekes across the line from possible to plausible. Cf. Burlington N.
& Santa Fe Ry. v. White, 548 U.S. 53, 68-69 (2006); Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998); Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998); Harris v. Forklift Sys ..
Inc., 510 U.S. 17,21 (1993); Freeman v. Dal-Tile C01:p., 750 F.3d 413,421 (4th Cir. 2014); EEOC
v. Xerxes Com., 639 F.3d 658,676--77 (4th Cir. 2011); Bonds v. Leavitt, 629 F.3d 369,385-86 (4th
Cir. 2011); Moseby-Grant v. City of Hagerstown, 630 F.3d 326, 336--37 (4th Cir. 2010). Thus,
Hanger's motion to dismiss that claim is denied. Whether McDonald will survive a motion for
summary judgment on that claim is an issue for another day.
As for McDonald's NCWHA claim, McDonald alleges that Hanger "has not fully paid [her]
the pay raise and bonuses she is owed for her work at [Hanger's] Wilmington office, between
January 1, 2012[,] and May 13, 2013" and thereby violated the NCWHA. Compl.
support of her allegations, McDonald cites her offer of employment letter and claims that it stated
that ifher "workshop skills improved by on or around April2012, she would receive a pay raise of
$5,000." Id. ~ 23. McDonald alleges that her skills improved, but she did not receive "the agreedupon raise." ld. ~ 24. McDonald also alleges that she never received "any bonus provided to other
comparators, even though she routinely saw more patients than the other two practitioners, Murphy
and Jones." ld. ~ 25.
In moving to dismiss McDonald's NCWHA claim, Hanger attached both its offer letter to
McDonald (which she signed) and her employment and non-compete agreement (which she signed).
See [D.E. 11-1 ]. Because the documents are integral and expressly relied upon in the complaint and
neither party challenges their authenticity, the court may consider them without converting Hanger's
motion to dismiss into a motion for partial summary judgment.
Phillips v. LCI Int'l Inc.,
190 F.3d 609, 618 (4th Cir. 1999).
Section 95-25 of the NCWHA states:
Every employer shall pay every employee all wages and tips accruing to the
employee on the regular payday. Pay periods may be daily, weekly, bi-weekly, semimonthly, or monthly. Wages based upon bonuses, commissions, or other forms of
calculation may be paid as infrequently as annually if prescribed in advance.
N.C. Gen. Stat. § 95-25.6. McDonald's bonus claim under the NCWHA fails because the offer
letter reserves the decision to award a bonus to "management's discretion." [D.E. 11-1] 2; see
McCabev. AbbottLabs .. Inc.,No. 5:13-CV-125-D,2014 WL4685184, at *6-7 (E.D.N.C. Sept. 19,
As for McDonald's NCWHA claim concerning a pay raise, McDonald's offer letter states:
"On/around April 1, 2102, your performance and Base Pay will be re-evaluated and if your personal
fabrication skills have improved to an acceptable level, the Base Pay will be increased by $5,000."
[D.E. 11-1] 2. The offer letter also states: "Working hours and schedules, facility assignments,
compensation arrangements and other terms and conditions of employment may be modified at any
time." Id. 2-3.
The pay-raise claim fails for two reasons. First, nothing in the NCWHA requires an
employer to give an employee a raise. Second, the pay raise referenced in the offer letter was
conditional and Hanger retained the discretion to evaluate McDonald's performance and to decide
whether to give McDonald a raise. Particularly given McDonald's concessions in her complaint
concerning her poor performance, see Compl. ~~ 15, 17, McDonald has failed to state a claim upon
which relief can be granted under the NCWHA concerning a pay raise. See McCabe, 2014 WL
4685184, at *6-7. Accordingly, the court grants Hanger's motion to dismiss the NCWHA cause of
action in count three.
In sum, defendant's partial motion to dismiss [D.E. 11] is GRANTED IN PART and
DENIED IN PART. The court DISMISSES any Title VII claim in the first cause of action
concerning bonuses or a pay raise, but DENIES defendant's motion to dismiss plaintiffs Title VII
racially hostile work environment claim in the first cause of action. The court DISMISSES any
claim in the second cause of action concerning a racially hostile work environment in violation of
North Carolina public policy. The court DISMISSES plaintiffs NCWHA claim in the third cause
SO ORDERED. This J_ day of October 2014.
Chief United States District Judge
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