CLEMMONS v. NVT TECHNOLOGIES, INC. et al
Filing
21
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/06/2015. For the foregoing reasons, IT IS RECOMMENDED that the Motion to Dismiss [Doc. # 7 ] filed by Defendant NVT Technologies be GRANTED with respect to any Title VII hostile work environment claim, and DENIED with respect to all other claims.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
HARVEY LEE CLEMMONS, JR.,
Plaintiff,
v.
NVT TECHNOLOGIES, INC., and
NATIONAL INSTITUTE OF
ENVIRONMENTAL HEALTH
SCIENCES,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
1:13CV777
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant NVT Technologies’ (“NVT’s”) Motion
to Dismiss [Doc. #7]. In this action, Plaintiff Harvey Lee Clemmons (“Plaintiff”) brings three
claims for relief arising out of his prior employment with Defendant NVT: (1) a claim against
Defendants for violation of the Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen.
Stat. § 95-241, based on alleged retaliation for filing a Workers’ Compensation claim, (2) a claim
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) based on
alleged racial discrimination and retaliation, and (3) a claim under North Carolina common law for
wrongful termination. For the reasons that follow, the Court recommends that NVT’s Motion to
Dismiss be granted to the extent Plaintiff alleges a Title VII harassment/hostile work environment
claim, but otherwise denied.
I.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
NVT hired Plaintiff, an African-American male, as a Stationary Engineer in August 2008.
(Compl. [Doc. #3] ¶¶ 1, 10-11.) According to the Complaint, Plaintiff was injured at work in July
2010 when water infused with chemicals allegedly made contact with Plaintiff’s skin. (Id. ¶ 21.)
Plaintiff alleges that he reported the incident to upper management but was not informed of his
potential Workers’ Compensation rights. (Id. ¶ 24.) Despite ongoing treatment, Plaintiff allegedly
continues to suffer from skin irritations and rashes as a result of this incident. (Id. ¶ 23.) According
to the Complaint, in September 2012, Plaintiff suffered a reoccurrence of skin irritations and rashes
resulting from the July 12, 2010 chemical exposure. (Id. ¶ 30.) Mr. Jim Burnette, Plaintiff’s
supervisor, allegedly informed Plaintiff at that time that Plaintiff might not be able to work with
chemicals anymore and thus “probably could not work at [NVT] any longer.” (Id. ¶ 31.) However,
Plaintiff alleges that white employees holding the same position as Plaintiff were not required to
work with chemicals. (Id. ¶ 32.) As a result of the skin rash reoccurrence, Plaintiff decided to file a
Workers’ Compensation claim sometime in September 2012 and, in order to do so, was instructed
by his project manager, Mr. Keeler, to request an accident report from Supervisor Burnette. (Id. ¶¶
33-35.)
At the time of the filing of the Complaint, Plaintiff’s Workers’ Compensation claim
remained open and he had not received any compensation. (Id. ¶ 36.)
Plaintiff further alleges that Supervisor Burnette often spoke to Plaintiff “in a harsh tone and
used profanity and abusive language” and assigned Plaintiff undesirable and unsafe tasks. (Id. ¶ 27.)
The Complaint further alleges that Supervisor Burnette did not treat similarly-situated white
employees in this manner, nor did he assign them the similar undesirable and unsafe tasks that he
2
assigned to Plaintiff.
(Id.)
Moreover, Supervisor Burnette allegedly placed a dead snake on
Plaintiff’s truck, in order to, according to Plaintiff, “intimidate and frighten” Plaintiff. (Id. ¶ 28.)
According to the Complaint, on November 7, 2012, Supervisor Burnette confronted
Plaintiff regarding Plaintiff’s request for a respirator. Plaintiff alleges that Supervisor Burnette
became abusive and profane toward Plaintiff. (Id. ¶ 38.) Later that same day, according to the
Complaint, Plaintiff was meeting with a secretary regarding a claim reference number, and
Supervisor Burnette came to the office and “began screaming and banging on the door.” (Id. ¶ 40.)
Plaintiff alleges that he was afraid of Supervisor Burnette and refused to open the door, and that the
secretary let Supervisor Burnette into the room although Plaintiff believed that she was fearful as
well. (Id. ¶ 41.) The Complaint alleges that the next day, Supervisor Burnette requested that
Plaintiff stay after his shift to meet with Project Manager Keeler. (Id. ¶ 45.) Supervisor Burnette
again allegedly became belligerent and profane, and Plaintiff did not feel comfortable waiting alone
with Supervisor Burnette for Mr. Keeler, so Plaintiff left the facility. (Id. ¶¶ 46-48.) Upon leaving,
Plaintiff allegedly encountered Mr. Keeler and told him about what had taken place with Supervisor
Burnette, and Mr. Keeler promised to speak with Supervisor Burnette and told Plaintiff “not to
worry about it.” (Id. ¶ 50.)
Prior to returning for his next scheduled shift on November 13, Plaintiff was informed that
he was going to be placed on paid leave pending an investigation. (Id. ¶ 51.) On the same day that
Plaintiff was informed that he was being placed on leave, he filed a charge of racial discrimination
with the Equal Employment Opportunity Commission (“EEOC”) against Defendant National
Institute of Environmental Health Sciences (“NIEHS”). NIEHS, a government entity, owns the
plant where plaintiff worked, and NIEHS contracted with NVT to operate and manage that facility.
3
(Id. ¶¶ 6, 52.) On November 20, 2012, Plaintiff amended his charge with the EEOC to change the
employer to NVT. On November 26, 2012, NVT terminated Plaintiff for cause, citing the following
reasons: not following orders on work performance; not attending meetings when requested; and
disregarding and ignoring supervisors’ instructions. (Id. ¶ 53.) Plaintiff denies the validity and
sufficiency of each alleged reason for his termination. (Id. ¶¶ 54-58.) Plaintiff contends that
Supervisor Burnette was motivated to find cause to terminate Plaintiff in order to preserve a white
employee’s job that was threatened by a funding cut. (Id. ¶ 59-60.)
On December 3, 2012, Plaintiff filed a second charge against NVT with the EEOC, alleging
racial discrimination and retaliation. (Id. ¶ 62.) On January 15, 2013, Plaintiff filed a charge with the
North Carolina Department of Labor (“NCDOL”) alleging retaliation by NVT for Plaintiff’s filing
of his Worker’s Compensation claim. (Id. ¶ 63.) Both the EEOC and NCDOL have issued
Plaintiff Right-to-Sue Letters for his three separate charges. (Id. ¶¶ 64-66.)
Plaintiff filed this action in state court alleging claims against Defendants for: (1) a violation
of the Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-241; (2)
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., based on racial
discrimination and retaliation; and (3) common law wrongful termination. NVT removed the case
to federal court [Doc. #1] and filed a Motion to Dismiss [Doc. #7].
II.
DISCUSSION
1. Standard for Motion to Dismiss
“To survive a motion to dismiss pursuant to Rule 12(b)(6), plaintiffs’ ‘[f]actual allegations
must be enough to raise a right to relief above the speculative level,’ thereby ‘nudg[ing] their claims
across the line from conceivable to plausible.’” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.
4
2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “[A] court must
accept the material facts alleged in the complaint as true.” Id. (citing Edwards v. City of Goldsboro,
178 F.3d 231, 244 (4th Cir. 1999)). However, “statements of bare legal conclusions ‘are not entitled
to the assumption of truth’ and are insufficient to state a claim.” Id. (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)).
A Title VII plaintiff is not required to plead a prima facie case of discrimination under the
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because “[t]he
prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). Instead, the Court must
consider, under the “ordinary rules for assessing the sufficiency of a complaint,” Swierkiewicz, 534
U.S. at 511, whether the Complaint fails to state a plausible claim for relief under Title VII. See also
McCleary-Evans v. Maryland Dep’t of Transp., 780 F.3d 582 (4th Cir. 2015).
2.
Retaliatory Employment Discrimination Act (“REDA”)
Plaintiff first alleges that Defendant violated REDA by suspending and terminating him in
retaliation for his filing of a Workers’ Compensation claim. North Carolina law prohibits employers
from taking retaliatory action against employees for, among other things, filing a claim under the
state Workers’ Compensation Act. See N.C. Gen. Stat. § 95-241(a)(1). A “retaliatory action” can
include both the discharge and suspension of an employee. N.C. Gen. Stat. § 95-240(2). North
Carolina courts have articulated three elements that a plaintiff must show to proceed on a REDA
claim: (1) the plaintiff exercised a right protected by the statute; (2) the plaintiff suffered an adverse
employment action; and (3) the adverse employment action occurred because the plaintiff exercised
a protected right. Wiley v. United Parcel Serv., Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811
5
(2004). NVT in this case seems to challenge the Complaint only with respect to the causality
element – i.e., that Plaintiff was fired because he filed a Workers’ Compensation claim. (See Def.’s Br.
[Doc. #8] at 4.) However, most of NVT’s contentions are directed toward the ultimate evidentiary
showing that Plaintiff must make, rather than the sufficiency of the pleadings. In the Complaint
Plaintiff alleges that within a few weeks after he made a Workers’ Compensation claim, he was
suspended, and that the suspension and later termination were in retaliation for filing the Workers’
Compensation claim.1 See also Smith v. Computer Task Grp., Inc., 568 F. Supp. 2d 603, 614
(M.D.N.C. 2008) (noting that to establish a REDA claim, “a plaintiff may present evidence of close
temporal proximity between the protected activity and the adverse employment action, or pattern of
conduct”). In addition, in his Response Brief, Plaintiff also notes other allegations in the Complaint
that would indicate NVT’s unfavorable view and “disdain” toward his workplace injury, including
failing to assist him in filing a Workers’ Compensation claim, Supervisor Burnette’s negative reaction
toward his request for a respirator and toward the reoccurrence of his condition, and Supervisor
Burnette’s abusive conduct shortly after he requested an accident report. Having considered the
parties’ contentions, and based on the allegations in the Complaint, including the alleged temporal
proximity between the filing of the Workers’ Compensation claim and the suspension and
termination, Plaintiff has stated a plausible claim at this stage in the case, and Plaintiff’s REDA claim
should survive Defendant’s Motion to Dismiss.
The Court notes that in support of a contrary conclusion, NVT submitted with its Reply
Brief certain personnel records of Plaintiff reflecting alleged performance issues pre-dating Plaintiff’s
1
Plaintiff in his Complaint does not specify the exact date on which he filed his Workers’ Compensation
claim, other than to provide it was sometime in September 2012 when he suffered a reoccurrence of rashes
and skin irritation. Plaintiff’s suspension came between 2 to 6 weeks later, on November 13, 2012.
6
Workers’ Compensation filing. In connection with these records, Defendant’s Reply cites Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006), for the proposition that, “[w]here
timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before
the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.”
However, those personnel documents were not attached to or referenced explicitly in the
Complaint. NVT nevertheless argues that the Court may consider them on the Rule 12(b)(6)
motion because “Plaintiff referenced the non-existence of the attached statements.” (Def.’s Reply
[Doc. #11] at 4 n.2.) Specifically, NVT cites the following portion of the Complaint: “Upon
information and belief, Plaintiff [] has never failed to follow an order on work performance. In fact,
upon information and belief, there are no measures or evaluations of work performance conducted
by Defendant NVT Tech at the Plant.” (Compl. [Doc. #3] ¶ 54.)
It is well established that “as a general rule extrinsic evidence should not be considered at the
12(b)(6) stage” and “when a defendant attaches a document to its motion to dismiss, ‘a court may
consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied
on in the complaint and [if] the plaintiffs do not challenge its authenticity.’” Am. Chiropractic Ass’n
v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int’l, Inc., 190
F.3d 609, 618 (4th Cir. 1999)). In this case, it cannot be fairly said that the documents NVT now
seeks to rely on are in any way “integral to and explicitly relied on in the complaint.” Moreover,
“[t]hat the Complaint raises this general issue does not . . . permit the Defendant to selectively attach
one of what may be many documents relevant to the issue, while avoiding the fuller picture provided
by the discovery process.” Robinson v. Quicken Loans, Inc., No. 3:12-0981, 2012 WL 3670391, at
*4 (S.D.W. Va. Aug. 24, 2012) (unpublished). Indeed, at this stage, there is at least some question
7
regarding the authenticity of these documents. Although each document has spaces designated for
the employee and a witness to sign, those fields remain blank, and Plaintiff claims that he had “no
such notice of their existence, much less their contents.” (Pl.’s Br. Mot. Strike [Doc. #17] at 4.)
Accordingly, NVT’s effort to introduce these documents at this time is improper on a Motion under
Rule 12(b)(6), and the Court will decline to consider them in considering the sufficiency of the
Complaint. 2
3.
Title VII Disparate Treatment Claim
Plaintiff next alleges a claim under Title VII for racial discrimination and retaliation. “Title
VII prohibits an employer from “discharg[ing] any individual, or otherwise ... discriminat[ing] against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race.” 42 U.S.C.A. § 2000e–2(a). Absent direct evidence, the elements
of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2)
satisfactory job performance; (3) adverse employment action; and (4) different treatment from
similarly situated employees outside the protected class.”
Coleman v. Md. Court of Appeals, 626
F.3d 187, 190 (4th Cir. 2010).
In its Motion to Dismiss, Defendant contends that the Complaint’s failure to identify a
2
Plaintiff, citing Rule 12(f) of the Federal Rules of Civil Procedure, filed a Motion to Strike the material in
question. In a Text Order, the Court denied the Motion to Strike pursuant to Local Rule 7.6, which provides
that “[r]ather than filing a motion to strike, a party may assert evidentiary objections in its response or reply
memorandum to factual allegations contained in memoranda or replies supporting or opposing motions to
dismiss, motions for summary judgment, and other motions” and “[i]f a separate motion to strike is filed
asserting evidentiary objections, the motion to strike may be summarily denied by the Court, and any issues
instead addressed in the ruling on the underlying motion.” Cf. DiPaulo v. Potter, 733 F. Supp. 2d 666, 670
(M.D.N.C. 2010) (“Because Federal Rule of Civil Procedure Rule 12(f) applies to pleadings, however, the
court will not strike the surreply but will simply not consider it and its attachments.”) The Court has now
considered the objections raised in the Motion to Strike and will decline to consider the information in
question for the reasons set out above.
8
similarly-situated employee treated more favorably than Plaintiff is fatal to his claims. (Def.’s Br.
[Doc. #8] at 6.)3 However, the Complaint alleges that Plaintiff was treated differently than the other
individuals in his job position who were white, based on Supervisor Burnette’s alleged use of abusive
language toward Plaintiff but not toward the white employees in his position, and based on
Supervisor Burnette’s alleged assignment of the dangerous tasks to Plaintiff, while the white
employees were given more favorable assignments. Moreover, the real substance of Plaintiff’s Title
VII claim is that he was discharged when white employees were not, and the Complaint specifically
alleges that, because of a funding issue, Plaintiff’s supervisor terminated Plaintiff in order to preserve
the job of a specific white employee. (Compl. [Doc. #3] ¶¶ 59-60.) Plaintiff further alleges that the
reasons given for his termination were untrue, and that to the extent the termination was based on
alleged failure to follow orders to perform certain tasks, that the white employees in his job position
failed to perform those tasks without consequence.
These allegations are sufficient to put
Defendant on notice of the claims alleged, and to survive Defendant’s Motion to Dismiss. To the
extent Defendant contends that Plaintiff will be unable to present any evidence to substantiate these
claims or to proceed on the merits, those matters are more appropriately considered on motions for
summary judgment. Consequently, the Court recommends that Defendant’s Motion to Dismiss
Plaintiff’s Title VII disparate treatment claim be denied.
3
In its Reply, Defendant also contends that Plaintiff cannot show “satisfactory job performance” in light of
the “evidence of multiple verbal warnings issued to Plaintiff over the course of several years.” (Def.’s Reply
[Doc. 11] at 6.) Defendant again points to matters outside the pleadings to support this argument. For the
reasons already stated, consideration of that material at this juncture would be inappropriate, and those
matters may instead be raised after a period of discovery on motions for summary judgment.
9
4.
Title VII Retaliation Claim
“Title VII also prohibits employers from ‘discriminat[ing] against any of [their] employees ...
because [the employees] ha[ve] opposed any practice made an unlawful employment practice by
[Title VII], or because [the employees] ha[ve] ... participated in any manner in an investigation’ under
Title VII. 42 U.S.C.A. § 2000e–3(a). The elements of a prima facie retaliation claim under Title VII
are: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link
between the protected activity and the employment action.” Coleman, 626 F.3d at 190. Plaintiff in
this case engaged in a protected activity by filing charges with the EEOC against NIEHS and NVT
on November 13 and 20, 2012, respectively, and Plaintiff suffered an adverse employment action
when he was terminated on November 26, 2012. NVT claims that it had no knowledge of the
EEOC charges until after Plaintiff was terminated and thus could not have been acting in retaliation.
(See Def.’s Br. [Doc. #8] at 9.)
Close temporal proximity between a plaintiff’s protected activity and the adverse
employment action may be “strongly suggestive of retaliatory motive and thus indirect proof of
causation.” Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).
In this case, Plaintiff was discharged
less than two weeks after he filed his initial complaint with the EEOC and less than one week after
he amended the name to reflect NVT. Despite NVT’s claim that it had no knowledge of Plaintiff’s
EEOC charge (Def.’s Br. [Doc. #8] at 9), this alleged fact is not in the pleadings, is disputed by
Plaintiff, and is not appropriately considered on this Motion to Dismiss. See also Miller v. Carolinas
Healthcare Sys., 561 F. App’x 239, 241 (4th Cir. 2014). Accordingly, the Court recommends that the
Motion to Dismiss be denied as it relates to Plaintiff’s Title VII retaliation claim.
10
5.
Title VII Hostile Work Environment Claim
Defendant also seeks dismissal of any claim for “hostile work environment” under Title VII.
To maintain a hostile work environment claim, “‘a plaintiff must show that the offending conduct
(1) was unwelcome, (2) was because of her sex [or race], (3) was sufficiently severe or pervasive to
alter the conditions of her employment and create an abusive work environment, and (4) was
imputable to her employer.’” Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) (quoting Ziskie v.
Mineta, 547 F.3d 220, 224 (4th Cir. 2008)) (alteration provided by Bonds).
In considering Defendant’s contentions on this issue, the Court notes that it is not clear
from the Complaint that Plaintiff intended to assert a hostile work environment claim separate from
the discriminatory discharge and retaliation claims discussed above. That is, it appears that the
Complaint sets out allegations regarding Supervisor Burnette in an effort to establish that Plaintiff’s
discharge was based on race, or to establish that Plaintiff was harassed in retaliation for the pursuit
of his Workers’ Compensation claim. However, although Plaintiff alleges generally that Supervisor
Burnette was profane and belligerent, it does not appear that Plaintiff has attempted to allege
harassment that was objectively severe or pervasive to support a separate racially hostile work
environment claim. For harassing conduct to be actionable, it must create “an objectively hostile or
abusive work environment—an environment that a reasonable person would find hostile or
abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Relevant to that determination are
“the frequency of the 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.” Id. at 23. In the Fourth Circuit, a disparity in power between the
alleged harasser and the plaintiff is probative. Ziskie, 547 F.3d at 227-28. However, “Title VII is
11
not ‘a general civility code,’” and “[p]rofanity, while regrettable, is something of a fact of daily life.”
Id. at 228 (quoting Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). In general,
“plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” E.E.O.C. v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
In this case, the Complaint generally alleges that “Mr. Burnette often spoke to Plaintiff [] in a
harsh tone and used profanity and abusive language when addressing him” and that “other
employees with allegiances to Mr. Burnette” subjected him to “harassment and abusive behavior.”
(Compl. [Doc. #3] ¶¶ 26-27.) Plaintiff also identifies a small handful of specific instances of alleged
harassment. For example, the Complaint alleges that, on an unknown date, Supervisor Burnette
participated in placing a dead snake on Plaintiff’s truck which Plaintiff believes was meant to
intimidate and frighten him. (Id. ¶ 28.) The Complaint also alleges generally that “Mr. Burnette
assigned Plaintiff Clemmons undesirable and unsafe tasks and responsibilities that, upon
information and belief, he did not assign to similarly situated white employees.” (Id. ¶ 27.) With
respect to specifics, however, the Complaint only describes four distinct encounters between
Plaintiff and Supervisor Burnette, all of which occurred on November 7 and 8, 2012 (id. ¶¶ 38-46),
throughout all of which Supervisor Burnette was variously “profane,” “belligerent,” and “abusive.”
Thus, it does not appear that the Complaint states, or has attempted to state, that the
harassment was objectively severe or pervasive in order to establish a separate hostile work
environment claim. Most of the enumerated incidents for which the Complaint provides any detail
occurred within a two-day period immediately prior to Plaintiff’s suspension, and even those
incidents are only vaguely described.4
4
Moreover, outside of that brief period, the Complaint
“[A]n ‘isolated incident[ ]’ of harassment can ‘amount to discriminatory changes in the terms and conditions
12
contains minimal factual allegations of circumstances that would render Plaintiff’s workplace
environment racially hostile. That is, the Complaint describes one specific, but undated, incident of
Supervisor Burnette participating in placing a snake in Plaintiff’s truck, and otherwise generally
alleges that Supervisor Burnette, or others with allegiances to Supervisor Burnette, subjected
Plaintiff to harassment and abusive behavior and assigned Plaintiff undesirable and unsafe tasks. In
addition, there are no allegations that Supervisor Burnette ever used racial epithets or insults, or even
referred to Plaintiff’s (or anyone else’s) race obliquely. Accordingly, to the extent any such claim was
asserted, the Court recommends that Defendant’s Motion to Dismiss be granted as to Plaintiff’s
racially hostile work environment claim.5
6.
Common Law Wrongful Termination
Plaintiff’s final claim is for wrongful termination under North Carolina common law. This
claim is inextricably linked to Plaintiff’s REDA and Title VII claims. Specifically, North Carolina
courts have recognized that retaliating against an employee for exercising Workers’ Compensation
rights is against public policy and can simultaneously be the basis for both a common law wrongful
termination claim and a REDA claim. Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C.
App. 504, 509, 593 S.E.2d 808, 811 (2004); Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 25960, 580 S.E.2d 757, 762 (2003). Similarly, N.C. Gen. Stat. § 143-422.2 states that it is the public
policy of North Carolina that employers should not discriminate against employees on the basis of,
of employment,’ if that incident is ‘extremely serious.’” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,
277 (4th Cir. 2015). However, in the present case, Plaintiff has not made allegations of an incident that would
rise to that level of seriousness.
5
Of course, Plaintiff remains free to present information regarding his history with Supervisor Burnette as
part of establishing the Title VII claims for disparate treatment and retaliation and the REDA claim going
forward, and any further consideration of the substance of Plaintiff’s contentions, and evidence supporting or
disputing the contentions, can be considered on motions for summary judgment.
13
among other things, their race. Accordingly, because Plaintiff’s REDA claim and his Title VII
disparate treatment claim relating to his discharge survive the Motion to Dismiss, his common law
wrongful termination claim does as well.
III.
CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Motion to Dismiss [Doc. #7]
filed by Defendant NVT Technologies be GRANTED with respect to any Title VII hostile work
environment claim, and DENIED with respect to all other claims.
This, the 6th day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?