NICKLES v. BANK OF AMERICA CORPORATION

Filing 13

MEMORANDUM OPINION AND ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 5/23/2014, that Defendant's motion to dismiss (Doc. 7 ) is GRANTED, and Nickles' complaint (Doc. 3 ) is DISMISSED WITH PREJUDICE. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DIANNE G. NICKLES,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BANK OF AMERICA CORP.,
Defendant.

1:14cv177

MEMORANDUM OPINION AND ORDER
Plaintiff Dianne G. Nickles brought this action pro se in
Guilford County (North Carolina) Superior Court, alleging that
Defendant Bank of America Corp. (“BOA”) discriminated against
her in violation of the Americans with Disabilities Act (“ADA”),
42

U.S.C.

§

12101

et

seq.,

the

North

Carolina

Persons

with

Disabilities Protection Act (“PDPA”),1 N.C. Gen. Stat. § 168A-1
et seq., and the Age Discrimination in Employment Act (“ADEA”),
29

U.S.C.

§

intentional

621

et

seq.

infliction

of

(Doc.

3.)

emotional

defamation under North Carolina law.
removed

the

action

to

this

court

Nickles
distress

also

(“IIED”)

(Id. at 4.)
(Doc.

1)

alleges

and

and

BOA timely
now

seeks

dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6)
on several bases.

1

(Docs. 7, 8.)

Nickles has responded (Doc.

Nickles refers to it by a slightly different name – the “North
Carolina Handicapped Persons Protection Act.” (Doc. 3 at 1.)

11), and BOA has replied (Doc. 12).

For the reasons set forth

below, BOA’s motion will be granted.
I.

BACKGROUND
The facts, viewed in the light most favorable to Nickles,

are as follows:
Nickles has been severely hearing impaired since she was
eight years old.

(Doc. 3 ¶¶ 5, 10.)

hearing aid at the age of ten.

She was fitted with a

(Id. ¶ 10.)

From the time she

was a child, she could wait on customers at her parents’ grocery
store and count change back to customers.

(Id.)

She has twenty

years of banking experience and has worked as a teller, head
teller, and vault and ATM teller.

(Id. ¶¶ 11, 13.)

Nickles applied for several jobs and secured an interview
with BOA on October 31, 2006.

(Id. ¶ 6.)

She was interviewed

by Betty Womack, Vice President, and Gloria Baker, Assistant
Manager.

(Id.)

not get the job.

The interview went very well, but Nickles did
(Id.)

Nearly five years later, on July 20,

2011, Nickles went back to discuss jobs with Womack at BOA.
(Id. ¶ 7.)

Womack told her there were no job openings at the

Adams Farm Branch of BOA.

(Id.)

Nickles asked why she had not

gotten the job in 2006, and Womack informed her that “it was
because [Nickles] didn’t fit into the Adams Farm Branch.”
¶ 8.)

(Id.

When Nickles asked her to explain further, Womack said,

“it was because Nickles had to use the TYY, a telephone for the
2

deaf and hard of hearing[,] and also [Womack] didn’t feel that
Nickles

could

wait

through lane.”

on

customers

at

the

front

and

the

drive

(Id. ¶ 9.)

Nickles filed a complaint with the U.S. Equal Employment
Opportunity
¶ 14.)
2012.

Commission

(“EEOC”)

on

December

2011.

(Id.

The EEOC mailed her a right-to-sue letter on March 24,
(Id. ¶ 16.)

She filed the present complaint on January

31, 2014, in Guilford County Superior Court.
II.

8,

(Id. at 1.)

ANALYSIS
A.
A

Standard of Review
court

liberally,

thus

must

construe

permitting

develop if one is present.

a

pro

se

litigants’

potentially

complaints

meritorious

case

to

Hill v. Braxton, 277 F.3d 701, 707

(4th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)).

However, this does not require that the court become

an advocate for the unrepresented party.

Weller v. Dep’t of

Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

“Only those

questions which are squarely presented to a court may properly
be addressed.”

Id.

Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.
Rule

of

Civil

Procedure

12(b)(6),

“a

complaint

Under Federal
must

contain

sufficient factual matter . . . to ‘state a claim to relief that
3

is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
pleads

factual

reasonable

A claim is plausible “when the plaintiff

content

inference

misconduct alleged.”

that

that

allows

the

the

defendant

court
is

to

draw

liable

the

for

the

Id. (quoting Twombly, 550 U.S. at 557).

A

12(b)(6) motion to dismiss “challenges the legal sufficiency of
a

complaint

considered

alleged are true.”

with

the

assumption

that

the

facts

Francis v. Giacomelli, 588 F.3d 186, 192

(4th Cir. 2009) (internal citations omitted).
B.

Federal Claims: ADA and ADEA

BOA contends that Nickles’ federal claims are barred by res
judicata.2

“Under

the

doctrine

of

res

judicata,

‘a

final

judgment on the merits bars further claims by parties or their
privies based on the same cause of action.’”

Andrews v. Daw,

201 F.3d 521, 524 (4th Cir. 2000) (quoting Montana v. United
States, 440 U.S. 147, 153 (1979)).

“When entertaining a motion

to dismiss on the ground of res judicata, a court may take
judicial notice of facts from a prior judicial proceeding when
the res judicata defense raises no disputed issue of fact.”

Q

Int’l Courier, Inc. v. Smoak, 441 F.3d 214, 216 (4th Cir. 2006)

2

The Latin phrase means “a matter [already] adjudged.”
Dictionary 1174 (5th ed. 1979).

4

Black’s Law

(citing Andrews, 201 F.3d at 524 n.1).3
Nickles first filed a complaint based on these same factual
allegations

supporting

her

ADA

and

ADEA

County Superior Court on June 19, 2012.
1:12cv754.)
2012.

claims

in

Guilford

(See Doc. 3 in case

BOA removed the case to this court on July 20,

(Doc.

1

in

case

1:12cv754.)

The

action

ended

when

Nickles filed a notice of voluntary dismissal without prejudice
on September 20, 2012.
Nickles

filed

(Doc. 11 in case 1:12cv754.)

a

complaint

based

on

the

same

factual

allegations of her ADA and ADEA claims in this court almost one
year later – on September 19, 2013.

(Doc. 2 in case 1:13cv798.)

In that complaint, she added claims of IIED, defamation, and a
violation

of

the

PDPA.

The

United

States

Magistrate

Judge

recommended that the federal claims be dismissed as time-barred
and that the court decline to exercise supplemental jurisdiction
over the state claims.

(Doc. 4 in case 1:13cv798.)

Nickles

objected (Doc. 6 in case 1:13cv798), and this court overruled
her

objections

1:13cv798).
ADEA

as

and

dismissed

the

case

(Docs.

7,

8

in

case

In dismissing her federal claims under the ADA and

time-barred

and

declining

to

exercise

supplemental

jurisdiction over her state-law claims, this court noted that
“nothing in this Order should be construed to affect Nickles’
3

Nickles does not dispute the existence or content of her earlier
lawsuits.
Indeed, she references them in her complaint and in her
response to BOA’s motion to dismiss. (Doc. 3 ¶ 1; Doc. 11 at 1.)

5

rights
court.”

regarding

her

independent

state

law

claims

in

state

(Doc. 7 at 5 in in case 1:13cv798.)

Nickles appears to have misunderstood this sentence as an
invitation to refile the exact same claims – both federal and
state – in state court.

(See Doc. 11 at 1 (“[T]he Judge had

left the case open to file in the State Court.”); Doc. 3 at 1
(“The United [States] District Court dismissed this action to
refile in the State Court . . . .”).)
invitation.

It was not any such

This court merely noted that the dismissal with

prejudice of her federal claims – those under the ADA and ADEA –
would have no effect on her rights in state court regarding her
state-law claims – IIED, defamation, and violation of the PDPA.
This court has already determined that Nickles’ ADA and
ADEA claims stemming from the October 2006 interview and July
2010

comments

from

Womack

those claims with prejudice.

are

time-barred

has

dismissed

The doctrine of res judicata bars

Nickles from asserting those claims again.
F.3d at 524.

and

See Andrews, 201

Here, there was a final judgment on the merits in

the prior suit – a dismissal with prejudice; the cause of action
is the same – ADA and ADEA claims based on the same interview
and statements; and the parties are the same – Nickles and BOA.
Res judicata precludes Nickles’ federal claims.
they will be dismissed as barred.

6

Accordingly,

C.

State-Law Claims: PDPA, IIED, and Defamation

This

court

previously

declined

to

exercise

supplemental

jurisdiction over Nickles’ state-law claims (Doc. 7 at 5 in case
1:13cv798), but this is now the third time this lawsuit has been
filed, and the parties have bounced between state and federal
court twice already.
again

decline

to

Although the court enjoys the right to

exercise

supplemental

jurisdiction

over

the

state-law claims, the interests of judicial economy and fairness
to

the

parties

counsel

in

favor

of

exercising

supplemental

jurisdiction at this time pursuant to 28 U.S.C. § 1367(a).
Among
Nickles’

other

arguments,

state-law

claims

statutes of limitation.

BOA
are

contends
barred

that

by

all

their

three

of

respective

As the Fourth Circuit has noted,

a motion to dismiss filed under Federal Rule of
Procedure 12(b)(6), which tests the sufficiency of the
complaint, generally cannot reach the merits of an
affirmative defense, such as the defense that the
plaintiff’s claim is time-barred.
But in the
relatively rare circumstances where facts sufficient
to rule on an affirmative defense are alleged in the
complaint, the defense may be reached by a motion to
dismiss filed under Rule 12(b)(6).
This principle
only applies, however, if all facts necessary to the
affirmative defense “clearly appear[ ] on the face of
the complaint.”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)
(emphasis omitted) (quoting Richmond, Fredericksburg & Potomac
R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)).

7

Bearing that

direction in mind, the court will address each of Nickles’ three
claims.
1.
First,

PDPA
Nickles

discriminating

claims

against

her

(Doc. 3 ¶¶ 4-5, 21-22.)
is time-barred.

that
on

BOA

the

violated

basis

of

the

her

PDPA

by

disability.

BOA contends that Nickles’ PDPA claim

(Doc. 8 at 8.)

Nickles does not respond to

BOA’s argument and appears to abandon her PDPA claim in her
response to BOA’s motion to dismiss.

(Doc. 11.)

Under the PDPA, a claim accrues on “the date on which the
aggrieved person became aware of or, with reasonable diligence,
should have become aware of the alleged discriminatory practice
or prohibited conduct.”

N.C. Gen. Stat. § 168A-12.

must be brought within 180 days of that date.

The claim

Id.

Assuming

that July 20, 2011 – the latest date alleged in the complaint –
is

the

date

Nickles

discrimination,

her

PDPA

became
claim

2012 and is thus too late.
2.

aware

became

of

BOA’s

time-barred

in

alleged
January

It will therefore be dismissed.

IIED

Second, Nickles alleges that BOA intentionally inflicted
emotional distress on her.

(Doc. 3 ¶¶ 23-24.)

BOA contends

both that her IIED claim is untimely and that she fails to plead
several essential elements.

(Doc. 8 at 11-14.)

8

While a claim for IIED must be brought within three years
of the date the claim accrued, N.C. Gen. Stat. § 1-52; Fox v.
Sara Lee Corp., 709 S.E.2d 496, 498 (N.C. Ct. App. 2011), the
court

need

not
began

allegedly

determine
within

whether
the

Nickles’

statute

of

emotional

distress

limitations

period,

because, as BOA also contends, Nickles’ complaint fails to state
a claim nevertheless.

The essential elements of an IIED claim

are “(1) extreme and outrageous conduct, (2) which is intended
to

cause

and

another.”

does

cause

(3)

severe

emotional

distress

to

Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C. 1981);

see also Holloway v. Wachovia Bank & Trust Co., N.A., 452 S.E.2d
233, 240 (N.C. 1994).

Here, Nickles has failed to plead (1)

that BOA engaged in extreme and outrageous conduct, (2) that BOA
intended

to

cause

her

distress,

or

(3)

sufficient

facts

regarding her alleged severe emotional distress – all of which
are essential elements of an IIED claim.

(Doc. 8 at 11-14.)

The court need not address each of these grounds, because
Nickles’ claim fails at the very first element: extreme
outrageous conduct by BOA.
outrageous”

is

a

question

Whether conduct is “extreme and
of

law.

Foster

S.E.2d 526, 537 (N.C. Ct. App. 2007).
conduct

exceeds

“all

and

possible

bounds

“atrocious” and “utterly intolerable.”

v.

Crandell,

638

Extreme and outrageous
of

decency”;

it

is

Atkins v. WSF Dugan,

Inc., 106 F. Supp. 2d 799, 810 (M.D.N.C. 1999) (quoting Briggs
9

v. Rosenthal, 327 S.E.2d 308, 311 (N.C. Ct. App. 1985)).

North

Carolina law sets a “high threshold” for what constitutes such
conduct.

Chidnese v. Chidnese, 708 S.E.2d 725, 738 (N.C. Ct.

App. 2011) (citation omitted).
law

have

held

that

falsely

Courts applying North Carolina
reporting

child

abuse;4

falsely

accusing someone of adultery;5 spreading lies about an employee’s
professional ability;6 firing an employee for being “too old and
sick”

to

do

his

job;7

and

minor

sexual

constitute extreme and outrageous conduct.

harassment8

do

not

In contrast, they

have found that a police officer’s gratuitous beating of an
arrestee to the point of permanent physical damage;9 a hospital’s
refusal to provide medical services despite knowing it would
likely result in a patient’s death;10 and a private individual’s
pointing

of

a

gun

outrageous conduct.

at

someone11

can

constitute

extreme

and

Womack’s alleged comments might have been

4

Dobson v. Harris, 521 S.E.2d 710, 715 (N.C. Ct. App. 1999), rev’d on
other grounds, 530 S.E.2d 829 (N.C. 2000).
5

6

Poston v. Poston, 436 S.E.2d 854 (N.C. Ct. App. 1993).

Patel v. Scotland Mem’l
(M.D.N.C. Mar. 31, 1995).

Hosp.,

No.

3:94CV00284,

1995

7

319213

Atkins, 106 F. Supp. 2d at 810.

8

WL

Guthrie v. Conroy, 567 S.E.2d 403 (N.C. Ct. App. 2002).

9

Pruett v. Town of Spindale, N.C., 162 F. Supp. 2d 442, 447 (W.D.N.C.
2001).
10

Estate of Williams-Moore v. Alliance One Receivables Mgmt., Inc.,
335 F. Supp. 2d 636, 650-51 (M.D.N.C. 2004).
11

Holloway, 452 S.E.2d at 233.

10

hurtful

and

offensive,

but

under

North

Carolina

law

the

allegations of the complaint do not even approach the level of
“extreme and outrageous” conduct necessary to state a claim.
Having failed to satisfy an essential element, Nickles’ IIED
claim must be dismissed.
3.

Defamation

Third, Nickles alleges that BOA, through Womack, defamed
her by stating that she was unable to perform the job of a bank
teller.

(Doc. 3 ¶¶ 25-28.)

BOA again asserts that Nickles’

claim is untimely and that she fails to plead several essential
elements of the claim.

(Doc. 8 at 9-11.)

In response, Nickles

reasserts her claim but does not address BOA’s arguments.

(Doc.

11 at 3.)
A plaintiff must bring a defamation claim within one year
of

the

date

the

claim

accrues,

publication of the defamatory words.

which

is

the

date

of

the

N.C. Gen. Stat. § 1-54(3);

Horne v. Cumberland Cnty. Hosp. Sys., Inc., 746 S.E.2d 13, 20
(N.C. Ct. App. 2013).

Here, the allegedly defamatory words were

uttered on July 20, 2011.

Thus, Nickles’ claim for defamation

expired on July 20, 2012, and her current claim is more than a
year late.12
12

Even if the one-year tolling provision of North Carolina Rule of
Civil Procedure 41 were to apply to her state-law defamation claim
(see Doc. 7 in case 1:13cv798), it would still be time-barred.
Nickles first brought her defamation claim in her second lawsuit,
filed on September 19, 2013.
(Compare Doc. 3 in case 1:12cv754

11

In addition, it is apparent that Nickles’ defamation claim
fails to state a claim upon which relief can be granted.
claim

for

defamation

under

North

Carolina

law

A

requires

allegations that the defendant “caused injury to the plaintiff
by

making

false,

defamatory

statements

of

or

concerning

plaintiff, which were published to a third person.”

the

Boyce &

Isley, PLLC v. Cooper, 568 S.E.2d 893, 897 (N.C. Ct. App. 2002).
Here,

Nickles’

allegations

as

to

statements

(i.e.,

that

she

“didn’t fit” and she “had to use the TYY, a telephone for the
deaf and hard of hearing” and Womack felt she could not “wait on
customers at the front and the drive through lane” (Doc. 3 ¶¶ 89)) are not defamatory, and any alleged actions (as opposed to
utterances) cannot serve as the basis of a claim.
568 S.E.2d at 897-98.

See Boyce,

Further, there is no allegation that the

alleged statements were published.

Defamatory words are only

“published” when heard, read, or otherwise made available to a
third person.

See id.; Fieldcrest Cannon, Inc. v. Fireman’s

(complaint filed June 19, 2012, in state court, with no defamation
claim) with Doc. 2 in case 1:13cv798 (complaint filed September 19,
2013, in federal court, with a defamation claim).) At that point, her
defamation claim was already time-barred, and there was no statute of
limitations to toll. The defamation claim in the second suit did not
“relate back” to the first suit, in which the defamation claim would
have been timely, because under North Carolina law, “the Rule 41(a)
tolling of the applicable statute of limitations applies only to the
claims in the original complaint, and not to other causes of action
that may arise out of the same set of operative facts.”
Losing v.
Food Lion, L.L.C., 648 S.E.2d 261, 265 (N.C. Ct. App. 2007), disc.
review denied, 659 S.E.2d 735 (N.C. 2008).
Because Nickles did not
bring a defamation claim in her first lawsuit, there was nothing to
which the claim in her second suit could relate back.

12

Fund Ins. Co., 477 S.E.2d 59, 69 (N.C. Ct. App. 1996).
alleges only that Womack’s comments were made to her.

Nickles
For a

host of reasons, therefore, this claim fails.
III. CONCLUSION
For

the

reasons

stated,

the

court

finds

that

Nickles’

federal claims are barred by the doctrine of res judicata and
her state-law claims fail.
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss
(Doc.

7)

is

GRANTED,

and

Nickles’

complaint

(Doc.

3)

DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
May 23, 2014

13

is