MANN V. WINSTON-SALEM STATE UNIVERSITY ET AL
Filing
34
MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 9/14/2015. Defendant Winston-Salem State University's Motion to Dismiss (Doc. 12 ) and Defendant Janice Smith's Motion to Dismiss Pursuant to F.R.C.P. 12(b) (6) (Doc. 19 ) are GRANTED IN PART and DENIED IN PART as follows: (1) Plaintiff's first and second claims asserting Title VII claims against Defendant Smith are DISMISSED; (2) Plaintiff's third and fourth causes of action u nder § 1981 and § 1983 against Defendant WSSU are DISMISSED WITH PREJUDICE. All other requested forms of relief in Defendants' motions are DENIED WITHOUT PREJUDICE. Further ORDERED, that Plaintiff's claims f or (1) Hostile Work Environment and Wrongful Discharge in Violation of North Carolina Public Policy; (2) Negligent Retention and Supervision; and (3) Intentional Infliction of Emotional Distress are DISMISSED WITHOUT PREJUDICE at Plaintiff 9;s request pursuant to Fed. R. Civ. P. 41(a)(2). Further ORDERED that Plaintiff's Motion for Leave to Amend Complaint (Doc. 16 ) is GRANTED IN PART. Plaintiff is granted leave to amend her complaint but must comply with the ter ms of this Memorandum Opinion and Order. Plaintiff shall file her amended complaint within ten (10) days of the issuance of this Memorandum Opinion and Order. To avoid any confusion, the court directs that rather than filing the proposed amended complaint, Plaintiff file a new amended complaint that conforms to the terms of this Order. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELISSA J. MANN,
)
)
Plaintiff,
)
)
v.
)
)
WINSTON SALEM STATE UNIVERSITY, )
an agent of the State of North
)
Carolina, and JANICE SMITH,
)
individually,
)
)
Defendants.
)
1:14CV1054
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court are motions to dismiss filed by
Defendant Winston Salem State University (“WSSU”) and Defendant
Janice Smith (“Smith”) (collectively, “Defendants”).
19.)
(Docs. 12,
Plaintiff Melissa J. Mann (“Plaintiff”) opposes the
motions, (Docs. 18, 31), and Defendants have filed replies
(Docs. 28, 33).
Plaintiff seeks leave to file an Amended
Complaint, in which she eliminates three state law claims
contained in her initial complaint, adds a claim as to both
Defendants under 42 U.S.C. § 1983, asserts additional factual
allegations, and restates the remaining five claims against
Defendants.
(Doc. 16.)
Defendants have in turn responded in
opposition to Plaintiff’s motion for leave to amend, claiming
that allowing Plaintiff leave to amend her complaint will be
prejudicial and futile.
(Docs. 27, 29.) Plaintiff has filed a
reply (Doc. 32).
These matters are now ripe for adjudication in many
respects.
However, the procedural posture of this case, that
is, with pending motions to dismiss as well as a motion to
amend, which is objected to on the ground of futility, somewhat
complicates this matter.
The motion to dismiss encompasses
similar issues to those raised in the objections to the motion
to amend.
In the interests of justice, judicial economy, and in an
effort to address the issues in a coherent manner, this court
finds that it is appropriate to address the motions to dismiss
and the motion to amend in this Memorandum Opinion and Order.
To the extent this court finds certain claims sufficiently pled
to proceed, this court will allow the motion to amend.
To the
extent this court finds certain claims deficient, and where such
deficiencies are not resolved by the proposed amendment, this
court will grant the motions to dismiss and deny the motion to
amend.
In light of this procedure, this court recognizes that
Defendants may be deprived of moving to dismiss claims in the
Amended Complaint to the extent grounds exist to support such a
motion.
As a result, to the extent this court denies in part
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the motions to dismiss, this court will deny the motions without
prejudice such that Defendants may, but are not required to,
move to dismiss on grounds not raised in response to the
original complaint.
For the reasons stated herein, this court will grant
Defendants’ motions to dismiss in part and deny them in part.
This court finds that re-pleading the dismissed claims would be
futile and therefore will deny Plaintiff’s request for leave to
amend as to those claims.
Nonetheless, Plaintiff will be
granted leave to amend the remaining items.
I.
BACKGROUND
Plaintiff states several causes of action based generally
upon alleged employment discrimination by her employer, WSSU.
Plaintiff has been an Assistant Professor of Management at WSSU
since August 2010. (Complaint (“Compl.”) (Doc. 1) ¶ 17.)
Plaintiff is Caucasian and asserts that WSSU has a “longstanding
culture and problem with harassment of non-African American
Employees at [WSSU] by certain members of the School of
Business . . . .”
(Id. ¶¶ 14, 18.)
Plaintiff asserts that she
has been subjected to various forms of intentional
discrimination by a tenured, full professor within her
department, Defendant Smith.
(See Compl. (Doc. 1).)
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Plaintiff asserts that Smith has created a hostile work
environment and has used her position as a member of the
university’s tenure committee and her leadership within the
School of Business to discriminate against Plaintiff.
(See id.
at 18 (alleging that Smith told Plaintiff that Smith was “the
one who ultimately controls the Plaintiff’s future” at WSSU);
see also id. ¶ 44 (recounting an instance where Plaintiff
believed Smith was implying that if Plaintiff wanted tenure, she
would need to stop associating with other white faculty who had
complained about Smith).)
Nonetheless, Plaintiff recognizes in
her complaint that “[a]t no point has Dr. Smith had any
authority to remove the Plaintiff from any appointed position.”
(Id. ¶ 71.)
Plaintiff contends that Smith made remarks that Plaintiff
“would not understand the needs of a historically black college
or university student as she was not a member of a protected
class,” (id. ¶ 28), that Smith sent a “string of hostile false
and derogatory emails” about Plaintiff to other members of the
faculty, (id. ¶ 31), and that “[d]uring the entire time
Plaintiff has worked for WSSU, Dr. Smith has regularly glared
at, yelled at, demeaned, threatened, put down, dismissed and
otherwise aggressively bullied” Plaintiff.
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(Id. ¶ 34.)
Plaintiff asserts that WSSU was aware of the hostile work
environment created by individual professors, including Smith,
but did not take sufficient measures to address these actions.
(See id. ¶¶ 25, 27 (alleging that Plaintiff was verbally
“accosted” in front of her students by Gloria Clark, a friend of
Defendant Smith, but despite being notified of this incident,
administrators took no disciplinary action against Dr. Clark);
see also id. ¶¶ 45-48 (providing other instances of areas where
Plaintiff felt the administration should have acted).)
Plaintiff admits that WSSU took remedial steps to rectify any
discriminatory behavior at various points.
For instance,
Plaintiff concedes that WSSU removed Smith from any discussion
of Plaintiff’s personnel matters, and “[w]ithout Dr. Smith’s
input into the re-evaluation process, Plaintiff was reappointed
[as an assistant professor] on a 7-0 vote.”
(See id. ¶ 49.)
However, Plaintiff implies that WSSU did not do enough to
forestall the hostile work environment that was developing.
(See id. ¶¶ 31-32 (“Despite th[e] admonition [to Smith to stop
sending such ‘venomous content’ in her emails], administration
did nothing else to prevent the continued harassment of the
Plaintiff by Dr. Smith following these emails.”).)
As for Plaintiff’s retaliation claim, Plaintiff contends
that the harassment she endured “intensified into retaliation”
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when Plaintiff lodged her EEOC complaint with an Equal
Employment Opportunity official.
(Id. ¶ 75.)
Plaintiff implies
that she began opposing discrimination as early as 2011, when
she had several conversations with Ed Haynes, an Equal
Employment Opportunity Commission officer, and participated in a
focus group organized to address diversity issues at WSSU.
¶¶ 37, 39.)
2011.
(Id.
However, Plaintiff did not file an EEOC charge in
(Id. ¶ 42.)
Plaintiff filed her “EEOC complaint . . .
with the University EEOC officer” on August 27, 2014.
(See id.
¶ 75.)
Plaintiff does not allege that she has been terminated
based on her race or in retaliation for a protected activity,
but she claims she has been subjected to other adverse
employment actions.
Plaintiff claims that she “was passed over
for a pay raise while other individuals who upon information and
belief are African-American and who are less qualified to
receive a pay raise have received a raise,” (id. ¶ 78), that she
“was denied reappointment in 2010 at the department level based
on the conduct of the agents and servants of WSSU . . . and
Defendant Smith,” (id. ¶ 80(a)), that she has been
“remove[d] . . . from oversight of a student group,” (id. ¶ 70),
that a program she developed has been placed “on hold” since the
fall of 2014, (id. ¶ 76), and that Plaintiff’s students have
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been denied access to the WSSU writing lab, even though other
professors’ students have been allowed to use the facility,
(Id. ¶ 77.)
II.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure
allows a party to make a motion to dismiss due to the opposing
party’s failure to state a claim upon which relief can be
granted.
Fed. R. Civ. P. 12(b)(6).
“When there are well-
pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to
an entitlement to relief.”
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 679
The burden remains on the party making the claim “to
allege facts sufficient to state all the elements of
[Plaintiff’s] claim,” Bass v. E.I. DuPont de Nemours & Co., 324
F.3d 761, 765 (4th Cir. 2003), and “to raise a reasonable
expectation that discovery will reveal evidence” of the
misconduct alleged, see Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007).
Granting a motion under Rule 12(b)(6) is proper when the
complaint’s factual allegations, read as true, fail as a matter
of law to state a plausible claim for relief.
678.
Iqbal, 556 U.S at
In determining if a claim has “facial plausibility,” a
court is not required to accept “[t]hreadbare recitals of the
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elements of a cause of action supported by mere conclusory
statements,” id.; unsupported legal allegations, Revene v.
Charles County Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989); legal
conclusions couched as factual allegations, Papasan v. Allain,
478 U.S. 265, 286 (1986); or conclusory factual allegations
devoid of any reference to actual events. United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
III. MOTIONS TO DISMISS
In her complaint, Plaintiff asserts federal law claims
based on violations of Title VII and 42 U.S.C. § 1981, along
with state law claims of hostile work environment/wrongful
discharge in violation of North Carolina public policy,
negligent retention and supervision, and intentional infliction
of emotional distress.
Through her motion to amend, Plaintiff
seeks to voluntarily dismiss the state law claims, amend the
federal law claims, and add a 42 U.S.C. § 1983 claim.
This
court will dismiss the state law claims as Plaintiff suggests
and will allow Plaintiff to amend certain factual allegations
within her complaint.
However, because aspects of Plaintiff’s
federal claims are clearly deficient based on procedural or
substantive defects, this court will dismiss several parts of
Plaintiff’s federal claims before turning to Plaintiff’s motion
for leave to amend.
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A.
§ 1981 and § 1983 Claims Against State Agency
In both her original complaint and in her proposed amended
complaint, Plaintiff has stated a cause of action against WSSU
under 42 U.S.C. § 1981.
(See Compl. (Doc. 1) ¶¶ 89-93; Pl.’s
Mem. in Supp. of Mot. for Leave to Am. Compl. & to Dismiss
Certain Claims without Prejudice, Ex. 1, First Amended Complaint
(“Proposed Am. Compl.”) (Doc. 17-1) ¶¶ 92-97.)
agency of the State of North Carolina.
WSSU is an
See N.C. Gen. Stat.
§ 116–4 (naming WSSU as one of the constituent institutions of
the University of North Carolina system); Huang v. Board of
Governors of Univ. of N.C., 902 F.2d 1134, 1139 n.6 (4th Cir.
1990) (recognizing the Board of Governors of the University of
North Carolina as an alter ego of the State of North Carolina);
(see also Compl. (Doc. 1) at 1 (recognizing that WSSU is a
“member of the University of North Carolina Group of
Universities”).)
The Supreme Court has held that “the express
cause of action for damages created by § 1983 constitutes the
exclusive federal remedy for violation of the rights guaranteed
in § 1981 by state governmental units . . . .” See Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). As such,
Plaintiff cannot assert a cause of action under § 1981 against
WSSU, and this court must dismiss Plaintiff’s § 1981 claim
against WSSU.
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Even if Plaintiff had asserted a cause of action under
§ 1983 against WSSU, as she attempts to add in her proposed
amended complaint, (see Proposed Am. Compl. (Doc. 17-1)
¶¶ 98-105), Plaintiff’s § 1983 claim would also be dismissed.
Because WSSU is an agency of the State of North Carolina, it is
not a “person” within the meaning of § 1983 and thus does not
fall within the purview of § 1983.
See Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 64 (1989).
Moreover, even if WSSU
qualified as a “person,” it would be protected from suit under
§ 1983 by the Eleventh Amendment.
See Quern v. Jordan, 440 U.S.
332, 341 (1979); see also Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course,
that in the absence of consent a suit in which the State or one
of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment.”). But see Fitzpatrick v.
Bitzer, 427 U.S. 445, 457 (1976) (finding that states are not
protected by the Eleventh Amendment from suit under Title VII);
Stewart v. Va. Commonwealth Univ., 414 Fed. Appx. 555, 556 (4th
Cir. 2011) (same).
Plaintiff asserts that she has met the exception to the
Eleventh Amendment set out by the Supreme Court in Ex parte
Young, 209 U.S. 123 (1908).
Dismiss (Doc. 18) at 4.)
(See Pl.’s Resp to WSSU’s Mot. to
However, because Plaintiff named WSSU
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as a defendant in this action rather than naming a state
official as a defendant, Ex parte Young does not apply, and
Plaintiff’s claim against WSSU continues to be barred by the
Eleventh Amendment.
Cir. 1998).
See Lynn v. West, 134 F.3d 582, 587 (4th
Similarly, because Plaintiff has not named a state
official acting in his or her official capacity as a defendant,
Plaintiff cannot seek monetary damages under § 1983 within the
purview of Maine v. Thiboutot, 448 U.S. 1, 3 (1980).1
For these reasons, this court will dismiss Plaintiff’s
§ 1981 claim against WSSU.
Moreover, this court finds it would
be futile for Plaintiff to restate her § 1981 claim against WSSU
or to include a § 1983 claim against WSSU in her amended
complaint, and as a result, Plaintiff is not granted leave to
amend her complaint in this manner.
B.
Title VII Claims Against Individual Defendant
Plaintiff has stated multiple causes of action under Title
VII against Smith in her individual capacity.
Compl. (Doc. 17-1) at 1, 4, 22.)
(See Proposed Am.
Smith contends that there is
1
Smith does not argue that the same procedural issue bars
Plaintiff’s claims against Smith under § 1981 and § 1983.
Instead, Smith contends the motion should be dismissed for
failure to state a claim. (See Def. Smith’s Mem. of Law Supp.
Mot. to Dismiss (“Def. Smith’s Mem.”) (Doc. 20) at 10-13.)
However, for the reasons set forth below, this court will not
dismiss Plaintiff’s § 1981 and § 1983 claims against Smith at
this time. See infra Part III.D.
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no basis for a Title VII claim against her because any civil
liability under Title VII is limited to that of Plaintiff’s
employer, WSSU.
(See Def. Smith’s Mem. (Doc. 20) at 8-10.)
This court agrees.
Title VII does not provide for causes
of action against individual defendants who are not Plaintiff’s
employer.
See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180
(4th Cir. 1998); see also 42 U.S.C. § 2000e-2 (“It shall be an
unlawful employment practice for an employer . . . .” (emphasis
added)).
Although Plaintiff has alleged that Smith had some
authority to determine whether Plaintiff was reappointed,
Plaintiff has not alleged that Smith was her employer, making it
necessary for this court to dismiss all Title VII claims against
Smith.
WSSU may ultimately be held responsible for Smith’s
actions that allegedly created a hostile work environment or
allegedly led to an adverse employment action, see Lissau, 159
F.3d at 181-82, but Plaintiff cannot maintain a Title VII action
directly against Smith as an individual defendant.2
2
WSSU does not argue that the same procedural issue bars
Plaintiff’s claims against WSSU under Title VII. Instead, WSSU
contends the motion should be dismissed for failure to state a
claim or because the claims are barred by the statute of
limitations. (See WSSU’s Mem. of Law in Supp. of Mot. to
Dismiss (“Def. WSSU’s Mem.”) (Doc. 13) at 13-19.) However, for
the reasons set forth below, this court will not dismiss
Plaintiff’s Title VII claims against WSSU at this time. See
infra Part III.D.
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Therefore, all Title VII claims against Smith in her
individual capacity will be dismissed.
Furthermore, this court
finds it would be futile for Plaintiff to include any Title VII
claim against Smith based upon the allegations contained in the
proposed amended complaint, and Plaintiff is not granted leave
to amend her complaint in this manner.
C.
Merits of Plaintiff’s Claims (Title VII, § 1981 and
§ 1983)
Defendants also challenge the merits of Plaintiff’s
remaining claims - WSSU challenges the merits of the Title VII
claims and Smith challenges the merits of the § 1981 and § 1983
claims - arguing that they fail to state a claim upon which
relief can be granted.
WSSU asserts that Plaintiff’s Title VII
claims are time-barred, that the acts of WSSU employees were not
sufficiently severe or outrageous enough to be imputed to WSSU,
and that Plaintiff has failed to state a plausible claim for
racial discrimination or retaliation by WSSU.
Mem. (Doc. 13) at 13-19.)
(See Def. WSSU’s
Smith asserts that Plaintiff’s § 1981
and § 1983 claims should be dismissed for similar reasons.
(See
Def. Smith’s Mem. (Doc. 20) at 10-13.)
All of the issues cited by Defendants as to the merits of
Plaintiff’s remaining claims will require resolution of factual
matters - i.e., whether the acts complained of by Plaintiff are
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severe, whether the actions taken against Plaintiff would
discourage an individual from opposing discrimination in the
workplace so as to constitute retaliation, whether Plaintiff has
stated a claim for a continuing violation so as to make her
claims timely, and whether Defendant Smith had any authority
over Plaintiff.
Given the constraints of what this court is to
consider when deciding a motion to dismiss and the favorable
inferences it is to give Plaintiff’s asserted facts, this court
is not in a position to decide these matters at this time.
This court finds that Plaintiff has stated sufficient facts
to make out the elements for a case of discrimination and
retaliation in violation of federal law.
Plaintiff has set out
allegations of what Plaintiff considers adverse employment
actions, the actions and events that created a hostile work
environment, the role that Smith played in propagating this
hostile work environment or facilitating the adverse employment
actions, the ways in which WSSU should have been aware of this
activity, the dates that the events allegedly took place, and
the causal role that racial animus and retaliatory animus
allegedly played in these actions, along with circumstantial
evidence that could be used to infer animus.
See supra Part I.
These factual allegations are sufficient for this court to
find that Plaintiff has stated plausible claims of
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discrimination and retaliation under Title VII against WSSU and
under § 1981 and § 1983 against Smith.
See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515 (2002) (“[W]e hold that an
employment discrimination plaintiff need not plead a prima facie
case of discrimination . . . .”); see also Twombly, 550 U.S. at
569–70 (explaining that Swierkiewcz is consistent with more
recent case law requiring plausibility in Plaintiff’s
allegations).
Moreover, as discussed below, this court will
allow Plaintiff leave to amend her pleading on these claims, and
this further reinforces this court’s decision to deny
Defendants’ motions to dismiss to the extent they are based on
these fact-specific arguments.
Finally, as to timing, this court finds that Plaintiff has
set out allegations that, if proven, would show that her claims
are not time-barred under Title VII.
In this way, Plaintiff’s
allegations are not self-defeating, and this court will not
dismiss the claims as time-barred at this point.
Defendants
argue that any acts prior to December 15, 2013, are not
actionable and are time-barred.
Even assuming, without
deciding, that this is correct, Plaintiff alleges that her
students were denied access to the writing lab on November 13,
2014, and no action was taken in response to her complaints.
(See Proposed Am. Compl. (Doc. 17-1) ¶ 77.)
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Additionally, a
program launched by Plaintiff was put on hold, and at some
point, Plaintiff was “passed over for a pay raise while other
individuals who upon information and belief are African-American
and who are less qualified to receive a pay raise have received
a raise.
(See id. ¶ 78.)
While it is not entirely clear when
these actions took place, there appear to be allegations of
prohibited activity within the statutory period.
The timing of
these actions and determination of whether these allegations are
adverse employment actions and constitute unlawful
discrimination are all issues of fact that will have to be
resolved outside of the pleadings that are currently before this
court.
Even under Defendants’ interpretation of the law, it
appears a motion to dismiss is not the stage at which these
matter should be adjudicated.
Therefore, this court will not dismiss Plaintiff’s Title
VII claims against WSSU or her § 1981 and § 1983 claims against
Smith at this point.
D.
Claim for Punitive Damages
Defendants also ask this court to dismiss Plaintiff’s claim
for punitive damages.
(See Def. WSSU’s Mem. (Doc. 13) at 19-20;
Def. Smith’s Mem. (Doc. 20) at 16-18.)
This court first notes
that WSSU’s request is moot, as Plaintiff only directs her
punitive damages claim against Defendant Smith.
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(See Compl.
(Doc. 1) ¶¶ 117-21; Proposed Am. Compl. (Doc. 17-1) ¶¶ 106-10.)
Therefore, this court need not address whether it is appropriate
for Plaintiff to assert a punitive damages claim against WSSU.
In contrast, this court finds that Plaintiff has
sufficiently pled her claim for punitive damages against Smith.
Smith claims that Plaintiff has not alleged sufficient
“aggravated conduct” to justify an award of punitive damages.3
(Def. Smith’s Mem. (Doc. 20) at 18.)
To qualify for an award of
punitive damages under North Carolina law, a plaintiff must show
that the defendant committed “egregiously wrongful acts.”
Gen. Stat. § 1D-1.
N.C.
Plaintiff asserts that Smith has
“[v]iciously, maliciously and aggressively bull[ied],
harass[ed], defam[ed], and discriminat[ed] against Plaintiff,”
(see Compl. (Doc. 1) ¶ 119(a)), and Plaintiff has identified a
number of actions taken by Smith that, accepted as true, could
be considered “egregiously wrongful acts,” (see, e.g., id.
¶ 80).
It may be that Plaintiff will not be able to prove that
3
This court notes that Plaintiff seems to be asserting her
punitive damages claim based on state law, not § 1981 as Smith
seems to assert in her argument. (See Compl. (Doc. 1) ¶ 118
(citing N.C. Gen. Stat. § 1D-1).) Nonetheless, a prevailing
plaintiff is entitled under the common law to punitive damages
under certain circumstances in a cause of action under § 1981,
see Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 460 (1975),
and in a cause of action under § 1983, see Smith v. Wade, 461
U.S. 30, 56 (1983); Lowery v. Circuit City Stores, Inc., 206
F.3d 431, 441 (4th Cir. 2000).
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the conduct was sufficiently egregious so as to warrant punitive
damages, but at this stage, this court will not dismiss the
claim as a matter of law.
E.
State Law Claims
Plaintiff requests that this court dismiss the state law
claims without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2). (See Pl.’s Resp. to Def. WSSU’s Mot. to
Dismiss (Doc. 18) at 3; Pl.’s Resp. to Def. Smith’s Mot. to
Dismiss (Doc. 31) at 3.) Defendants have briefed why these
claims are meritless and argue that the claims should be
dismissed with prejudice.
The default for dismissal under Rule
41(a)(2) is for a claim to be dismissed without prejudice.
See
Fed. R. Civ. P. 41(a)(2) (“Unless the order states otherwise, a
dismissal under this paragraph (2) is without prejudice.”).
After reviewing the arguments of the parties, this court finds
no reason to depart from this general rule, and these state law
claims will be dismissed without prejudice.
IV.
LEAVE TO AMEND
This court finds that allowing Plaintiff leave to amend her
complaint in part is proper at this stage of the proceedings,
pursuant to the directive of Federal Rule of Civil Procedure
15(a) that this court “should freely give leave when justice so
requires.”
Fed. R. Civ. P. 15(a)(2).
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This court finds no
evidence of “‘undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, [or] undue prejudice to the
opposing party by virtue of allowance of the amendment’” that
would cause this court to deny the amendment.
See Davis v.
Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Defendants’ arguments against allowing Plaintiff leave to
amend her complaint largely relate to the alleged futility of an
amendment.
The Fourth Circuit has cautioned, “[u]nless a
proposed amendment may clearly be seen to be futile because of
substantive or procedural considerations, conjecture about the
merits of the litigation should not enter into the decision
whether to allow amendment.”
omitted).
Davis, 615 F.2d at 613 (citation
For the same reasons that caused this court not to
dismiss Plaintiff’s claims under Title VII, § 1981 and § 1983,
this court finds that amending those claims would not be clearly
futile.
As a result, this court will grant Plaintiff leave to
amend her complaint in part and will direct Plaintiff to file
her amended complaint within five days of the issuance of this
Order.
Although this court grants Plaintiff’s motion for leave to
amend in part, the issues raised earlier that led to this court
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dismissing several of Plaintiff’s claims as to each Defendant
are “substantive [and] procedural considerations” that make
aspects of Plaintiff’s proposed amended complaint “clearly . . .
futile.”
See id.
Therefore, this court will not grant leave
for Plaintiff to re-plead those claims.
V.
CONCLUSION
IT IS THEREFORE ORDERED that Defendant Winston-Salem State
University’s Motion to Dismiss (Doc. 12) and Defendant Janice
Smith’s Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) (Doc.
19) are GRANTED IN PART and DENIED IN PART as follows:
(1)
Plaintiff’s first and second claims asserting Title
VII claims against Defendant Smith are DISMISSED;
(2)
Plaintiff’s third and fourth causes of action under
§ 1981 and § 1983 against Defendant WSSU are DISMISSED WITH
PREJUDICE.
All other requested forms of relief in Defendants’ motions
are DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s claims for
(1) Hostile Work Environment and Wrongful Discharge in Violation
of North Carolina Public Policy; (2) Negligent Retention and
Supervision; and (3) Intentional Infliction of Emotional
Distress are DISMISSED WITHOUT PREJUDICE at Plaintiff’s request
pursuant to Fed. R. Civ. P. 41(a)(2).
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to
Amend Complaint (Doc. 16) is GRANTED IN PART.
Plaintiff is
granted leave to amend her complaint but must comply with the
terms of this Memorandum Opinion and Order.
Plaintiff shall
file her amended complaint within ten (10) days of the issuance
of this Memorandum Opinion and Order.
To avoid any confusion,
the court directs that rather than filing the proposed amended
complaint, Plaintiff file a new amended complaint that conforms
to the terms of this Order.
This the 14th day of September, 2015.
_______________________________________
United States District Judge
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