HALL v. ROCKINGHAM COUNTY et al

Filing 24

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 09/27/2016; that Defendants' Partial Motion to Dismiss (Doc. 16 ) is GRANTED IN PART AND DENIED IN PART and that Plaintiff's first cause of action for sex discrimination under Title VII to the extent it is based upon disparate treatment, fourth cause of action for substantive age discrimination under the ADEA, and ninth and tenth causes of action for both intentional and negligent infliction of emotional distress are DISMISSED. FURTHER ORDERED that Defendants' Partial Motion to Dismiss (Doc. 8 ) is DISMISSED AS MOOT. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LYDIA SUSAN HALL,
Plaintiff,
v.
ROCKINGHAM COUNTY, THE BOARD
OF COUNTY COMMISSIONERS OF
ROCKINGHAM COUNTY, and
DAVID L. WHICKER,
Defendants.

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1:15CV938

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Partial Motion to Dismiss
Plaintiff’s Amended Complaint filed by Defendants Rockingham
County (“the County”) and David L. Whicker (“Defendant Whicker”)
(collectively, “Defendants”). 1 (Doc. 16.) Plaintiff Lydia Susan
Hall (“Plaintiff”) has responded (Doc. 22), and Defendants have
replied. (Doc. 23.) This matter is now ripe for resolution, and

1

This court notes that Plaintiff has filed an Amended
Complaint (Doc. 14) which is currently the operative pleading,
and renders the original Complaint (Doc. 1) of no legal effect.
See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir.
2001). However, The Board of County Commissioners of Rockingham
County, who was listed as a defendant in the original Complaint,
is not named as a defendant in the Amended Complaint. As
Plaintiff amended her complaint voluntarily, she has waived any
claims against Defendant Board of County Commissioners. Id.

for the reasons stated herein, Defendants’ motion to dismiss
will be granted in part and denied in part.
I.

BACKGROUND
Plaintiff was employed by Defendant Rockingham County for

26 years, from August 8, 1988, until September 30, 2014.
(Amended Complaint (“Am. Compl.”) (Doc. 14) ¶ 8.) From 2002
until May 28, 2014, Plaintiff was employed as the Director of
911 Communications. (Id. ¶ 11.)
Plaintiff alleges that she was a leader in the field of 911
communications in the County, receiving several awards related
to the quality of her work in 2010 and 2011. (Id. ¶¶ 19-21.)
Sometime in March of 2014, the County Manager gave Defendant
Whicker supervisory power over the 911 Communications
Department, including Plaintiff. (Id. ¶ 23.) Plaintiff alleges
that Defendant Whicker was given this position despite the
County Manger’s knowledge that Defendant Whicker had previously
subjected Plaintiff to “sexist, hostile, and . . .
discriminatory behavior” and despite the fact that he had no
prior experience or qualifications in the field. (Id. ¶¶ 24-25.)
Plaintiff also contends that the County knew or should have
known that Defendant Whicker’s previous employment had ended due
to charges of improper conduct, including sexual harassment of a

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female employee. (Id. ¶¶ 27-28.) Plaintiff contends that
Defendant Whicker was given this position because “the County
Manager did not want to have to deal with the management and
funding issues associated with the 911 PSAP Consolidation
Project, and he did not trust a female to oversee and handle the
project.” (Id. ¶ 26.)
Plaintiff alleges that Defendant Whicker has a history of
harassment and hostility towards her, including “belittling her
in front of colleagues; interrupting and speaking over her
during meetings, . . . ridiculing her opinions and limiting her
opportunities to speak; and in other ways treating her in an
undignified, unprofessional, and unlawful manner.” (Id. ¶ 41.)
Plaintiff contends that once Defendant Whicker was appointed to
a supervisory role over her, this pattern of treatment worsened.
Defendant Whicker’s alleged actions towards Plaintiff include
“frequent inappropriate gestures, as well as aggressive and
threatening body language in close proximity to Plaintiff, such
as puffing out his chest, raising and flapping his arms,
slapping his hands on the table, and/or angrily throwing his
backpack on the floor.” (Id. ¶ 48.) This behavior was not
exhibited towards male employees, and Plaintiff alleges that she
“feared that [Defendant Whicker] might hit her or strike her in

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some manner.” (Id.) Defendant Whicker also required Plaintiff to
attend weekly one-on-one meetings with him, to which he was
frequently late or absent entirely. (Id. ¶¶ 45-46.) The Amended
Complaint also contains a variety of other allegations regarding
Defendant Whicker:
•

On more than one occasion, Plaintiff observed him

apply a liquid to his lips and gums from an unlabeled vial,
which Defendant Whicker contended was allergy medication, a
contention which Plaintiff claims was never verified;
•

Defendant Whicker repeatedly referred to Plaintiff as

“File Queen,” despite knowing that she disliked this term;
•

Defendant Whicker made age-related remarks to

Plaintiff, and suggested that Plaintiff retire on more than one
occasion;
•

Defendant Whicker told Plaintiff that she should “be

at home where she belonged” like his wife was; and
•

Defendant received lower pay and fewer benefits than

her male counterparts. 2

2

This court agrees with Defendants that a disparate pay
claim was not asserted in Plaintiff’s EEOC complaint, and
Plaintiff has not disputed that. However, this court is of the
opinion that those allegations can be considered in assessing
the “intolerability” of the working conditions Plaintiff was
faced with.
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(Am. Compl. (Doc. 14) ¶¶ 50-59.)
On May 14, 2014, after Defendant Whicker showed up over an
hour late to a scheduled one-on-one meeting, and exhibited
hostile and harassing behavior, Plaintiff made an oral complaint
to the County’s Human Resources Department. (Id. ¶¶ 64-65.)
Plaintiff alleges that she sought medical treatment after the
meeting, but that the County nurse was not available, and she
obtained treatment from a non-County health care provider the
next day for anxiety and depression. (Id. ¶¶ 66-67.) She was
given a written complaint form by Human Resources, which she
submitted on May 31, 2014. (Id. ¶ 70.) Human Resources
apparently investigated Plaintiff’s claim in September of 2014,
but Plaintiff contends that the investigation and resulting
report demonstrate that the County did not take her allegations
seriously, and no substantive action was taken other than
Defendant Whicker being placed in the “Becoming a Totally
Responsible Person Leadership Course,” with no other discipline.
(Id. ¶¶ 71-78.)
Plaintiff also contends that, although she “maintained an
exemplary employment record,” Defendant Whicker gave her a
performance improvement plan (“PIP”) during a meeting on May 27,
2014, two weeks after she complained to Human Resources. (Id.

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¶¶ 29-31.) The PIP contained charges of “insubordination and
inappropriate behavior,” conduct that was “conducive to creating
an environment of fear and distrust,” as well as statements that
Plaintiff “readily attribut[ed] blame/avoid[ed] taking
responsibility for required job duties” and “fail[ed] in
performance of duties,” all allegations which Plaintiff contends
are false and malicious. (Id. ¶ 33.) The PIP contained
corrective actions for these alleged deficiencies, which
Plaintiff contends were unreasonable and “designed to set [her]
up for failure.” (Id. ¶¶ 34-35.)
Finally, Plaintiff contends that, during her employment
with the County, she was treated differently from male
employees. She alleges that she was not paid the same as several
identified male employees in comparable management-level
positions, that she was expected to be more independent and
self-sufficient than male counterparts, who had administrative
assistants to help with their duties. (Id. ¶¶ 54-55.) Plaintiff
alleges that she was underpaid compared to male counterparts
with fewer years of service and fewer responsibilities, and that
she was never given a County-owned vehicle, unlike male
counterparts. (Id. ¶¶ 58-59.)

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As a result of these combined factors, Plaintiff alleges
that she suffered “ever-increasing levels of stress, anxiety,
depression, and insomnia,” and that on May 28, 2014, Plaintiff’s
doctor determined that she needed to take medical leave from her
employment. (Id. ¶¶ 62-63, 69.) Plaintiff alleges that at the
time she went on disability leave, she had intended to work for
the County for “at least another ten (10) years,” but was
prevented from doing so by the actions of Defendants. (Id.
¶ 80.) Plaintiff ultimately began disability retirement
effective October 1, 2014. (Id. ¶ 11.) Plaintiff filed an Equal
Employment Opportunity Commission (“EEOC”) Charge of
Discrimination on October 27, 2014, alleging that she was
discriminated against, subjected to a hostile work environment,
harassed, disciplined, and forced to retire due to her race,
sex, and age. (See Defs.’ Mem. of Law in Supp. of Partial Mot.
to Dismiss (“Defs.’ Br.”), Ex. 1, EEOC Complaint (Doc. 17-1).)
II.

LEGAL STANDARD
“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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible

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provided the plaintiff provides enough factual content to enable
the court to reasonably infer that the defendant is liable for
the misconduct alleged. Id. The pleading setting forth the claim
must be “liberally construed” in the light most favorable to the
nonmoving party, and allegations made therein are taken as true.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, “the
requirement of liberal construction does not mean that the court
can ignore a clear failure in the pleadings to allege any facts
[that] set forth a claim.” Estate of Williams-Moore v. Alliance
One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004).
Rule 12(b)(6) protects against meritless litigation by
requiring sufficient factual allegations “to raise a right to
relief above the speculative level” so as to “nudge[] the[]
claims across the line from conceivable to plausible.” Twombly,
500 U.S. at 555, 570; see Iqbal, 556 U.S. at 662. Under Iqbal,
the court performs a two-step analysis. First, the court
separates factual allegations from allegations not entitled to
the assumption of truth (i.e., conclusory allegations, bare
assertions amounting to nothing more than a “formulaic
recitation of the elements”). Iqbal, 556 U.S. at 681. Second,
the court determines whether the factual allegations, which are

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accepted as true, “plausibly suggest an entitlement to relief.”
Id. “At this stage of the litigation, a plaintiff's well-pleaded
allegations are taken as true and the complaint, including all
reasonable inferences therefrom, are liberally construed in the
plaintiff's favor.” Estate of Williams-Moore, 335 F. Supp. 2d at
646.
III. ANALYSIS
The Amended Complaint contains eleven causes of action: (1)
Title VII Sex Discrimination; (2) Retaliation in violation of
Title VII; (3) Constructive Discharge in violation of Title VII;
(4) Age Discrimination in Employment Act (“ADEA”); (5) ADEA Age
Discrimination based on a hostile work environment; (6)
Retaliation in violation of the ADEA; (7) Constructive Discharge
in violation of the ADEA; (8) a procedural due process violation
under 42 U.S.C. § 1983; (9) Intentional Infliction of Emotional
Distress; (10) Negligent Infliction of Emotional Distress; and
(11) Negligent Hiring, Retention and Supervision. (Am. Compl.
(Doc. 14) ¶¶ 83-170.) Defendants have now moved to partially
dismiss the complaint, raising issues as to every cause of
action except Plaintiff’s Fifth Claim for Relief for age
discrimination under the ADEA based on a hostile work

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environment, and Eleventh Claim for Relief for negligent hiring,
retention, and supervision.
A.

Plaintiff’s Claims for Constructive Discharge under
Title VII (Third Claim for Relief) and the ADEA
(Seventh Claim for Relief)

Defendants first move to dismiss Plaintiff’s causes of
action for constructive discharge under both Title VII of the
Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq.,
and the ADEA, codified at 29 U.S.C. § 621 et seq. The standard
for constructive discharge under both statutes is the same:
Plaintiff must show (1) that the employer’s actions were
deliberate, and (2) that those actions created working
conditions that were intolerable. See Martin v. Cavalier Hotel
Corp., 48 F.3d 1343, 1354 (4th Cir. 1995); Bristow v. Daily
Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985). In order for
an employer’s actions to be deemed “deliberate,” the Fourth
Circuit requires that they be “intended by the employer as an
effort to force the employee to quit.” Cavalier Hotel, 48 F.3d
at 1354 (internal quotation marks and citations omitted). In
assessing the deliberateness of actions, specific proof of
intent is not required, and an employer “must necessarily be
held to intend the reasonably foreseeable consequences of its
actions.” Id. at 1355 (internal quotation marks and citations

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omitted). Intent can also be inferred “through circumstantial
evidence, including a failure to act in the face of known
intolerable conditions.” Bristow, 770 F.2d at 1255.
In order to show the second element, intolerability of the
conditions, working conditions must be “so intolerable that a
reasonable person would have felt compelled to resign.” Pa.
State Police v. Suders, 542 U.S. 129, 147 (2004). “An employee
is protected from a calculated effort to pressure him into
resignation through the imposition of unreasonably harsh
conditions, in excess of those faced by his co-workers. He is
not, however, guaranteed a working environment free of stress.”
Bristow, 770 F.2d at 1255. “Dissatisfaction with work
assignments, a feeling of being unfairly criticized, or
difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign.” Carter
v. Ball, 33 F.3d 450, 459 (4th Cir. 1994).
On the deliberateness prong, Plaintiff has alleged enough
to show that Defendants’ conduct was intended to make her
resign. The Amended Complaint contends that on multiple
occasions Defendant Whicker suggested either that Plaintiff
retire or that her place was “at home.” (Am. Compl. (Doc. 14)
¶¶ 52-53.) This, combined with the ongoing and consistent

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harassment and scrutiny placed on her job performance, conduct
not shown towards other employees, suffices to demonstrate a
deliberate intent by Defendant Whicker to force her exit.
Further, the Amended Complaint alleges that the County placed
Defendant Whicker in a supervisory role over Plaintiff despite
knowledge of past instances of harassment, both towards
Plaintiff and other women, and that when Plaintiff complained to
Human Resources, only a cursory review was done and little
effort was made to discipline Defendant Whicker. (Id. ¶¶ 24,
71-72, 74.) Plaintiff was then issued an allegedly unfair and
impossible-to-meet PIP two weeks after her complaint, lending
credence to the inference that, if the PIP was not related
directly to Plaintiff’s actions in complaining to HR, the County
was at best indifferent to her ongoing problems with Defendant
Whicker, and did not work to solve them. (Id. ¶¶ 30-35.) Taken
together, these allegations suffice to meet the first prong of
the test. See Cavalier Hotel, 48 F.3d at 1355.
Plaintiff also alleges enough at this stage to plausibly
show her working conditions were intolerable. First, while
Plaintiff alleges matters such as disrespectful and
unprofessional mistreatment including an “unachievable and
draconian PIP,” the absence of administrative support, or

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“public ridicule,” (Am. Compl. (Doc. 14) ¶¶ 41, 102, 104), these
allegations of harassment by a single individual might not be
enough to rise to the level of intolerable conditions. See,
e.g., Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994).
However, Plaintiff also alleges she was physically intimidated
by Defendant Whicker, and allegedly subjected to sexist remarks,
such as, being told her place as a female was “at home,” and
being referred to as the “File Queen.” (Am. Compl. (Doc. 14) ¶¶
48, 50-53.) Plaintiff alleges an “unachievable . . . PIP.” (Id.
at 104.) Plaintiff further alleges that she was treated
differently from her male peers in that she was paid less, given
fewer benefits, had different working conditions in terms of
support (more self-sufficient), and that Defendant Whicker was
promoted above her because she was a woman, despite his lack of
qualifications in comparison to hers. (Id. ¶¶ 25, 54-59.) At
this pleadings stage, this court is not able to simply weigh
these conditions individually, but instead must also analyze the
plausibility of the allegations in light of the cumulative
effect alleged by Plaintiff. See, e.g., Chertkova v. Conn. Gen.
Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996).
Taken together, these allegations go beyond the
“frustrations, challenges and disappointments” that naturally

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“inhere in the nature of work.” Bristow, 770 F.2d at 1255.
Rather than merely being subjected to extra scrutiny, unfair
judgment in her work quality, or generally rude behavior,
Plaintiff alleges that she was singled out for targeted public
and private harassment based on her age and sex, was subjected
to unfair scrutiny in her work above that of her co-workers, and
was not only passed over for a promotion in favor of someone
less qualified, but was passed over for someone with a history
of harassment, who was put directly in charge of her. Such
allegations, at this stage, suffice to show intolerable
conditions. 3 See, e.g., Amirmokri v. Baltimore Gas & Elec. Co.,
60 F.3d 1126, 1133 (4th Cir. 1995) (employee showed intolerable
conditions where he alleged he was subjected to epithets about
his Iranian heritage and embarrassed publicly by coworkers);
Mitchell v. Bandag, Inc., 147 F. Supp. 2d 395, 430-04 (E.D.N.C.
1998) (noting that situations such as repeated failure to

3

This court notes that at the 12(b)(6) stage, Plaintiff’s
allegations must be taken as true, and the court will not weigh
the merits of any claim. See Johnson v. Portfolio Recovery
Assocs., LLC, 682 F. Supp. 2d 560, 567 (E.D. Va. 2009) (“A
12(b)(6) motion . . . ‘does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.’” (quoting Republican Party of N.C. v. Martin, 980
F.2d 943, 952 (4th Cir. 1992)). While the County may eventually
put forward justifications for its decisions or evidence that
some or all of the allegations are not true, at this stage,
Plaintiff has met her burden.
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promote and simultaneous promotion of less qualified
individuals, or where plaintiff has the belief that there is no
chance for advancement or fair treatment suffice to show
intolerable conditions); Rodgers v. Western-Southern Life Ins.
Co., 12 F.3d 668 (7th Cir. 1993) (holding that racially charged
insults from a supervisor created intolerable working
conditions).
Plaintiff has alleged sufficient facts to meet both
elements of constructive discharge, and as such, Defendants’
motion to dismiss these claims will be denied.
B.

Plaintiff’s Claims for Retaliation under Title VII
(Second Claim for Relief) and the ADEA (Sixth Claim
for Relief)

Defendants next move to dismiss Plaintiff’s claims for
retaliation, which she brings under both Title VII and the ADEA.
The allegations center on the issuance of the PIP to Plaintiff
just under two weeks after she made a complaint to her Human
Resources Department regarding Defendant Whicker’s conduct. In
order to establish a prima facie case for retaliation under
either statute, a Plaintiff must prove: “(1) that she engaged in
a protected activity; (2) that her employer took an adverse
employment action against her; and (3) that there was a causal
link between the two events.”

See Boyer-Liberto v.

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Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015); Baqir v.
Principi, 434 F.3d 733, 747 (4th Cir. 2006).
Defendants do not dispute that Plaintiff’s complaint to the
Human Resources Department was a protected activity, and this
court finds that it was. 4
However, Defendants do contest whether Plaintiff suffered
an “adverse employment action.” In the context of a retaliation
claim under Title VII or the ADEA, an adverse employment action
“is not limited to discriminatory actions that affect the terms
and conditions of employment,” as it is in a substantive
discrimination action. Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 64 (2006). Rather, “a plaintiff must show
that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68 (internal

4

The Amended Complaint shows that in her complaint to Human
Resources, Plaintiff alleged discrimination and harassment based
upon her age and gender. (Am. Compl. (Doc. 14) ¶¶ 49, 65, 73.)
This court finds that, on the facts alleged, Defendant has
alleged both a subjective and an objectively reasonable belief
that her treatment violated both Title VII and the ADEA as
required by the standard. See EEOC v. Navy Fed. Credit Union,
424 F.3d 397, 406 (4th Cir. 2005); Johnson v. Mechs. & Farmers
Bank, 309 F. App’x 675, 685 (4th Cir. 2009). As such, her
complaint to Human Resources was a protected activity for
purposes of this analysis.
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quotation marks and citations omitted); Kessler v. Westchester
Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 207-09 (2d Cir. 2006)
(applying the same standard to ADEA claims).
Defendants contend that the County’s actions amount to mere
criticism of Plaintiff and her job performance, and that
negative performance evaluations are insufficient to constitute
a “materially adverse” action in the eyes of a reasonable
employee. However, Defendants’ cited support for that
proposition is distinguishable from the circumstances alleged in
Plaintiff’s Complaint. For example, many of the cases address
negative performance evaluations in the context of a substantive
discrimination claim, which, as noted above, has a heightened
standard compared to retaliation claims. See, e.g., Eady v.
Veolia Transp. Servs., Inc., 609 F. Supp. 2d 540 (D.S.C. 2009);
Pulley v. KPMG Consulting, Inc., 348 F. Supp. 2d 388 (D. Md.
2004).
Further, the Amended Complaint contains allegations that go
beyond mere criticism of Plaintiff’s work, or suggestions for
improvement, alleging not only that the allegations in the PIP
were false and malicious, but that it also enforced work
standards that were impossible to meet. Taking the allegations
as true, this court finds that the imposition of “impossible to

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meet” working standards, based upon false allegations made by a
harassing supervisor, is materially adverse such that it would
dissuade a reasonable employee from making or supporting a
charge of discrimination. Burlington, 538 U.S. at 68.

As such,

Plaintiff has met the second element of retaliation.
Finally, Plaintiff has alleged enough at this stage to show
a causal link between her protected activity and the adverse
employment action. The burden of showing a causal nexus is “not
onerous.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Evidence that the alleged adverse action occurred
shortly after the employer became aware of the protected
activity is sufficient to satisfy the burden of making a prima
facie case of causation. Dowe v. Total Action Against Poverty,
145 F.3d 653, 657 (4th Cir. 1998) (internal quotations omitted).
However, the Fourth Circuit has expressly declined to determine
“how close a temporal connection must [there be] for . . . a
causal nexus [to exist].” Brockman v. Snow, 217 F. App’x 201,
207 (4th Cir. 2007).
Here, Plaintiff alleges that she complained to the Human
Resources Department on May 14, 2014, that Defendant Whicker
learned of her complaint afterwards, and that she was issued the
allegedly malicious, false, and impossible to meet PIP on

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May 27, 2014, thirteen days later. (Am. Compl. (Doc. 14) ¶¶ 33,
37-38.) This court finds that the temporal proximity of the PIP
to her initial complaint, combined with the allegations that she
had an “exemplary employment record” up until Defendant Whicker
became her supervisor, is enough at this stage to allege a
causal link.
Plaintiff has alleged sufficient facts to show a prima
facie case of retaliation under both Title VII and the ADEA, and
Defendants’ motion to dismiss those claims will be denied.
C.

Plaintiff’s ADEA Age Discrimination Claim (Fourth
Claim for Relief)

Defendants also seek to dismiss Plaintiff’s substantive
ADEA age discrimination claim. To sufficiently allege such a
claim, Plaintiff must show: “(1) that [s]he is a member of a
protected class, (2) who suffered an adverse employment action,
(3) despite satisfactorily meeting the employer's legitimate
expectations at the time of the adverse action, and (4) that
[s]he has been treated less favorably than persons not members
of the protected class.” Ramos v. Molina Healthcare, Inc., 963
F. Supp. 2d 511, 522 (E.D. Va. 2013), aff’d, 603 F. App’x 173
(2015) (citing O'Connor v. Consol. Coin Caterers Corp., 517 U.S.
308, 312-13 (1996)).

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Even assuming Plaintiff has adequately alleged the other
three elements, as noted above, an adverse employment action
under the substantive provision of the ADEA is subject to a
stricter standard than the retaliation provision, and Plaintiff
has not met that standard here. An adverse employment action
under the substantive provision requires an action that
“constitutes 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, 524 U.S. at 761.
Defendants’ cited cases carry more weight as to this claim, and
show that the PIP was not an adverse employment action because
it did not “cause[] any change whatsoever in plaintiff’s job,
pay, or benefits or in [her] employment status.”

See, e.g.,

Eady, 609 F. Supp. 2d at 556. For example, Plaintiff does not
allege that the PIP caused her to “receive[] lower pay, [be]
demoted, [be] passed over for a promotion, fail[] to receive a
bonus, or [be] given significantly different responsibilities.”
Jensen-Graf v. Chesapeake Employers’ Ins. Co., 616 F. App’x 596,
598 (4th Cir. 2015). As such, the PIP was not an adverse
employment action for purposes of a substantive ADEA age
discrimination claim.

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Because she fails to state an essential element of the
claim, Plaintiff has failed to state a cause of action, and
Defendants motion to dismiss as to this claim will be granted.
D.

Plaintiff’s § 1983 Procedural Due Process Claim
(Eighth Claim for Relief)

Defendant also moves to dismiss Plaintiff’s claim for a due
process violation pursuant to 42 U.S.C. § 1983. “Procedural due
process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within
the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In
order to state a claim for a due process violation, a
plaintiff's allegations must implicate a protected liberty or
property interest, as well as a deprivation of that interest by
some form of state action. See Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 167, 172 (4th Cir. 1988)
Both parties assume arguendo that Plaintiff’s continued
employment was a constitutionally protected property interest
under section 1983, and this court finds that it was. Under
North Carolina law, an employee has a protected “property”
interest in continued employment only if the employee can show a
legitimate claim to continued employment under a contract, a
state statute or a local ordinance. Peace v. Emp’t Sec. Comm’n,

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349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998). The North
Carolina General Assembly created, by enactment of the State
Personnel Act, a constitutionally protected “property” interest
in the continued employment of a “career State employee.” N.C.
Gen. Stat. § 126–35. The act applies to State employees, as well
as, among others, “employees of . . . [l]ocal emergency
management agencies that receive federal grant-in-aid funds.”
N.C. Gen. Stat. § 126–5(a)(2)(d).
Here, Plaintiff has alleged that she was employed as the
Director of 911 Communications, which is a local emergency
management agency that receives federal grant-in-aid funds. 5

As

such, she had a protected property interest in continued
employment under North Carolina law.
Defendants contend, however, that Plaintiff cannot show any
state action, because she was not actually discharged from her
employment. Plaintiff does not contend that she was actually
terminated by Defendants, and admits that she instead went on
medical leave, and then retired. However, if Plaintiff’s
decisions to go on medical leave and subsequently retire were so
involuntary that they amounted to constructive discharge, they

5

The Amended Complaint specifically alleges the receipt of
at least one federal grant for the 911 PSAP Consolidation
Project. (See Am. Compl. (Doc. 14) ¶ 21.)
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would qualify as a state action for purposes of this inquiry.
See Stone, 855 F.2d at 173 (“If, on the other hand, [a
plaintiff’s] ‘resignation’ was so involuntary that it amounted
to a constructive discharge, it must be considered a deprivation
by state action triggering the protections of the due process
clause.”). As noted above, Plaintiff has alleged a facially
plausible case for constructive discharge, in that she has
plausibly alleged a reasonably person would have felt compelled
to resign by the actions and inactions of Defendants. Thus, at
this stage, she has plausibly alleged both a property interest
and deprivation of that property interest by state action.
Defendants’ motion to dismiss will be denied as to this claim.
E.

Negligent Infliction of Emotional Distress (Tenth
Claim for Relief)

Next, Defendants move to dismiss Plaintiff’s claim for
negligent infliction of emotional distress. In order to state a
claim for negligent infliction of emotional distress, Plaintiff
must plausibly allege that (1) the defendant negligently engaged
in conduct; (2) it was reasonably foreseeable that such conduct
would cause the plaintiff severe emotional distress; and (3) the
conduct caused plaintiff severe emotional distress. Sheaffer v.
County of Chatham, 337 F. Supp. 2d 709, 733 (M.D.N.C. 2004).

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Defendant Whicker argues that Plaintiff’s claim against him
fails because she has alleged only intentional conduct, which
cannot form the basis of a claim for negligent infliction of
emotional distress. The County moves to dismiss on the basis
that the claim is barred by the exclusivity provision of the
Worker’s Compensation Act,
It is well-settled in the Fourth Circuit that allegations
of intentional conduct are insufficient to form the basis of a
negligent infliction of emotional distress claim. See Barbier v.
Durham Cnty. Bd. of Educ., 225 F. Supp. 2d 617, 631 (M.D.N.C.
2002). Although Plaintiff claims that her allegations against
Defendant Whicker detail negligent acts, the Amended Complaint
reflects otherwise. Plaintiff claims that she was “the target”
of Defendant Whicker’s hostility because of her sex and age, and
that the PIP was instituted maliciously and in retaliation for
her complaint to HR. (See Am. Compl. (Doc. 14) ¶¶ 88, 95, 117,
124.) These allegations describe conduct that was intentional,
and thus cannot form the basis of a claim for negligent
infliction of emotion distress. See Sheaffer, 337 F. Supp. 2d at

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734. As such, Plaintiff’s claim for negligent infliction of
emotional distress against Defendant Whicker will be dismissed. 6
As for her claim against the County, Plaintiff alleges that
the County was negligent in that it “permit[ed] Defendant
Whicker to engage in hostile and demeaning conduct towards
Plaintiff . . . [and] fail[ed] to investigate Plaintiff’s
mistreatment by Defendant Whicker, which was known or should
have been known to the County . . . .” (Am. Compl. (Doc. 14)
¶ 157.) Thus, Plaintiff alleges two theories of liability as to
the County: one under respondeat superior, and another for
direct liability due to failure to investigate her claims.
As to Plaintiff’s theory of respondeat superior, as noted above,
Plaintiff has failed to state a claim for negligent infliction
of emotional distress against Defendant Whicker. As such, there
is no underlying claim for which the County can be liable under
a theory of respondeat superior, and that claim will be
dismissed.

Any liability on the part of the County for

6

The court notes that the dismissal is the result of the
way Plaintiff has chosen to make these allegations. By choosing
to frame Defendants’ actions as intentional, she has necessarily
taken them out of the realm of negligence. The result is not
that Plaintiff is barred from recovery for the alleged actions,
but rather that her remedy will lie under a different theory.
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Defendant Whicker’s actions will lie under one of Plaintiff’s
other causes of actions.
As to Plaintiff’s claim that the County is liable by way of
its own negligence for failing to investigate, either before or
after her complaint to Human Resources, that claim is barred by
the exclusivity provision of the Workers’ Compensation Act. 7 The
Workers’ Compensation Act is the exclusive remedy for accidents
which arise out of an employment and are sustained in the course
of employment. See Shaw v. Goodyear Tire & Rubber Co., 225 N.C.
App. 90, 102, 737 S.E.2d 168, 177 (2013). Just as in Shaw,
Plaintiff's injury was caused by an accident as the County’s
failure to properly deal with Defendant Whicker’s mistreatment
of Plaintiff and subsequent mishandling of her complaint was “an
unlooked for and untoward event which is not expected or
designed by the injured employee.” Id. at 178. Plaintiff's
injury arose out of her employment in that both the risk that an

7

Plaintiff attempts to distinguish Shaw by arguing that she
alleges negligence for failure to investigate her mistreatment
at the hands of Defendant Whicker prior to her formal complaint
to Human Resources, while the Court in Shaw dealt only with the
mishandling of a complaint that had already been filed. (See
Pl.’s Mem. in Opp’n to Defs.’ Partial Mot. to Dismiss (Doc. 22)
at 18.) This court finds that distinction unavailing, in that an
employer’s negligence in investigating harassment before it is
complained about, to the extent it is negligence at all, still
“arises out of the employment” for purposes of the statute.
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employer failing to properly supervise a workplace, and the risk
that an employer may fail to properly handle a complaint “is a
natural and probable consequence or incident of the employment
and a natural result of one of its risks, so that there is some
causal relation between the injury and the performance of some
service of the employment.” Id. Plaintiff's injury was sustained
during the course of employment in that the mishandling of her
complaints occurred while Plaintiff was working for the County.
Id.

As such, her claims against the County itself for negligent

infliction of emotional distress are barred by the Workers’
Compensation Act and will be dismissed for lack of jurisdiction.
F.

Plaintiff’s Claim for Intentional Infliction of
Emotional Distress (Ninth Claim for Relief)

Plaintiff also brings a cause of action against Defendant
Whicker for intentional infliction of emotional distress. Under
North Carolina law, intentional infliction of emotional distress
consists of the following elements: “(1) extreme and outrageous
conduct, (2) which is intended to and does cause (3) severe
emotional distress . . . .”

Dickens v. Puryear, 302 N.C. 437,

452, 276 S.E.2d 325, 335 (1981). A claim may also lie where the
defendant’s actions show “a reckless indifference to the
likelihood that they will cause severe emotional distress.” Id.
Extreme and outrageous conduct exists “when a defendant's

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conduct exceeds all bounds usually tolerated by decent
society[.]” Watson v. Dixon, 130 N.C. App. 47, 52–53, 502 S.E.2d
15, 19–20 (1998), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000)
(internal citations omitted) (defendant engaged in extreme and
outrageous conduct when he “frightened and humiliated
[plaintiff] with cruel practical jokes, which escalated to
obscene comments and behavior of a sexual nature, . . . finally
culminating in veiled threats to her personal safety.”). The
conduct at issue must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Briggs v. Rosenthal, 73
N.C. App. 672, 677, 327 S.E.2d 308, 311 (1985).
Plaintiff has failed to allege extreme and outrageous
conduct sufficient to state a cause of action. Taken as true,
the alleged actions of Defendant Whicker were boorish, sexist,
and disrespectful. However, North Carolina law requires more to
state a claim. Courts find extreme and outrageous conduct in
situations only in extreme circumstances, such as explicit and
physical sexual harassment or graphic language, or threats and
actual acts of violence.

See, e.g., Brown v. Burlington Indus.,

Inc., 93 N.C. App. 431, 378 S.E.2d 232 (1989); McLain v. Taco

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Bell Corp., 137 N.C. App. 179, 181, 527 S.E.2d 712, 715 (2000);
Poole v. Copland, Inc., 348 N.C. 260, 498 S.E.2d 602 (1998).
Here, Plaintiff alleges that Defendant Whicker unfairly and
falsely criticized her work, made sexist comments, harassed her
verbally, made movements that were physically intimidating, and
belittled her in front of others. (Am. Compl. (Doc. 14) ¶¶ 41,
45-48, 50-52.) These allegations fall short of alleging conduct
that “go beyond all possible bounds of decency” or are “utterly
intolerable in a civilized society.” See Swaim v. Westchester
Acad., Inc., 208 F. Supp. 2d 579, 589 (M.D.N.C. 2002). Because
Plaintiff fails to sufficiently allege an element of the claim,
her claim for intentional infliction of emotional distress will
be dismissed.
G.

Plaintiff’s Claim for Disparate Treatment (First Claim
for Relief)

Finally, Defendants contend, and Plaintiff does not appear
to contest, that her claim for sex discrimination under Title
VII must be dismissed to the extent it alleges a claim based
upon disparate treatment, because that charge was not raised in
Plaintiff’s EEOC complaint.
As a prerequisite to bringing suit, an individual alleging
discrimination in violation of Title VII must first file an
administrative charge with the EEOC within a certain time of the

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unlawful act. See 42 U.S.C. § 2000e-5(b), (e)(1), (f)(1). The
administrative process serves the role of “focusing the formal
litigation it precedes” in that “[i]f the claims raised under
Title VII exceed the scope of the EEOC charge and any charges
that would naturally have arisen from an investigation thereof,
they are procedurally barred.” Chacko v. Patuxent Inst., 429
F.3d 505, 509 (4th Cir. 2005) (internal citations and quotations
omitted). While the court is to construe administrative
complaints liberally, a claim will “typically be barred if the
administrative charge alleges one type of discrimination - such
as discriminatory failure to promote - and the claim encompasses
another type - such as discrimination in pay and benefits.” Id.
(citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,
963-64 (4th Cir. 1996); Lawson v. Burlington Indus., Inc., 683
F.2d 862, 863-64 (4th Cir. 1982)).
Here, Plaintiff’s EEOC charge alleges:
I believe that I was discriminated against, subjected
to a hostile work environment, harassed, disciplined
and forced to retire due to my race (White) and sex
(Female) in violation of Title VII of The Civil Rights
Act of 1964, as amended, and due to my age (52) in
violation of The Age Discrimination in Employment Act
of 1967, as amended.
(See Defs.’ Br., Ex. 1, EEOC Complaint (Doc. 17-1).) Nowhere in
the allegations does Plaintiff allege that she was given

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disparate treatment regarding her compensation, benefits, or job
responsibilities, as she does in her first cause of action. (See
Am. Compl. (Doc. 14) ¶ 87.) This claim falls outside the scope
of her EEOC charge, is therefore procedurally barred, and must
be dismissed.
As such, to the extent Plaintiff alleges a claim for
disparate treatment in violation of Title VII, that claim will
be dismissed.
IV.

CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that

Defendants’ Partial Motion to Dismiss (Doc. 16) is GRANTED IN
PART AND DENIED IN PART and that Plaintiff’s first cause of
action for sex discrimination under Title VII to the extent it
is based upon disparate treatment, fourth cause of action for
substantive age discrimination under the ADEA, and ninth and
tenth causes of action for both intentional and negligent
infliction of emotional distress are DISMISSED.
IT IS FURTHER ORDERED that Defendants’ Partial Motion to
Dismiss (Doc. 8) is DISMISSED AS MOOT.
This the 27th day of September, 2016.

_______________________________________
United States District Judge
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