HOWELL v. NORTH CAROLINA CENTRAL UNIVERSITY et al
ORDER signed by JUDGE N. C. TILLEY, JR on 07/05/2017, that Defendants' Motion to Dismiss [Doc. # 17 ] is GRANTED. A judgment dismissing this action will be filed contemporaneously with this Order. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA CENTRAL
UNIVERSITY, and DEBRA SAUNDERSWHITE, GREG MARROW, LEON
LEWIS, CAMERON SEAY, BIJOY
SAHOO, SYBIL HENDERSON, MARK
STILEMEN, JOHN SMITH, SYLVIA
ANDERSON, EVA KRAUS, LYNK
BUTLER, DAPHINE RICHARDSON in
their individual capacity,
MEMORANDUM OPINION AND ORDER
Plaintiff Matthew Howell has alleged nine claims against Defendants North
Carolina Central University (“NCCU”) and Debra Saunders-White, Greg Marrow,
Leon Lewis, Cameron Seay, Bijoy Sahoo, Sybil Henderson, Mark Stilemen, John
Smith, Sylvia Anderson, Eva Kraus, Linc Butler1, and Daphine Richards2 in their
individual capacities (collectively with NCCU referred to as “Defendants”) related
to his former employment at NCCU. This matter is before the Court on
In their Motion to Dismiss, Defendants contend that, “[u]pon information and
belief, the proper spelling of Mr. Butler’s first name is ‘Linc.’” (Mot. to Dismiss at 1
Also in their Motion to Dismiss, Defendants refer to “Daphine Richards” as
among the Defendants moving to dismiss the Complaint, but do not note that
“Richards”, as opposed to Richardson, is the proper spelling of this particular
defendant’s name. Therefore, it is unclear whether this reference is a
typographical error or the true name of this Defendant.
Defendants’ Motion to Dismiss (“Motion”) [Doc. #17] pursuant to Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow,
the Motion is granted.
For purposes of evaluating a motion to dismiss, well-pled facts are accepted
as true and construed in the light most favorable to Howell. Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Howell is an
approximately forty-nine year old “African American and Indian” whose physical
appearance is that of a Caucasian and who is commonly referred to in the
workplace as Caucasian. (Compl. ¶¶ 6, 94 [Doc. #1].) On or about February 1,
2006, Howell accepted full-time employment at NCCU in its Information
Technology Services (“ITS”) Department as a computer consultant assigned to the
Helpdesk. (Id. ¶¶ 30, 31.)
On or about May 5, 2006, the Assistant Provost contacted the Helpdesk for
assistance with his computer that had been infected with spyware and
pornography. (Id. ¶ 32.) Howell was attending the Helpdesk at the time, began
working on the issues, and ultimately traced the path of the virus through NCCU’s
server and database. (Id.) He immediately contacted Greg Marrow, the Chief
Investigation Officer of the ITS Department, to inform him that pornography had
been downloaded on the computer server and NCCU computers. (Id. ¶ 33.) The
State of North Carolina investigated the breach and uncovered pornography, theft
of copy-righted material, and theft of honest services. (Id. ¶ 34.) At least one
manager was terminated, but no other managers were disciplined or jailed. (Id.)
Soon thereafter, on or about July 1, 2006, Howell received a 7 out of 7
performance score from Roger Daniels, the Information Technology Manager in the
ITS Department, and was reassigned to work as a field technician supporting the
campus faculty and staff. (Id. ¶ 35.) Yet, just one month later, on or about
August 1, 2006, Daniels gave Howell a letter stating that he was terminated from
employment and refused to provide a justification for the termination. (Id. ¶ 36.)
At an unspecified time, Howell filed a grievance “noting gender discrimination”
because Howell’s position was “transferred to a female staff employee.” (Id. ¶ 37.)
At the hearing for his grievance, though, Howell presented copies of pornography
“as evidence of his illegal termination.” (Id. ¶ 38.) “The recommendation was to
reinstate” Howell, but Marrow refused to do so, “stating that Mr. Howell’s
managers disliked him.” (Id.) The hearing ended in an impasse, so Howell filed the
paperwork for the second step of the mediation process and notified the North
Carolina State Auditors Hotline. (Id.)
“After further review,” the then-Chancellor of NCCU reinstated Howell and
awarded him back pay “and time.” (Id. ¶ 39.) Howell returned to work on or about
November 1, 2006 in the School of Business, “[a]t the suggestion of Human
Resource[s]” “for fear of retaliation working under” Marrow. (Id.) On or about that
same day, Daniels, Leon Lewis, Assistant Director of the ITS Department, and
Harry Monds, ITS Manager, met with Cameron Seay, Lead Professor of Computer
Information Systems in the School of Business, and Janius Montague, Director of
Information Technology in the School of Business. (Id. ¶ 40.) Although there are
no allegations of the reasons for or the substance of the meeting, Howell
contacted Human Resources and the North Carolina State Auditors Hotline
“immediately.” (Id.) At an unspecified time, Howell “discovered that ITS was still
selling movies3 and Mr. Seay also had downloaded movies on his servers.” (Id.
¶ 41.) Howell reported this information to the North Carolina Central Police and
the North Carolina State Auditors Hotline. (Id.)
On or about February 2, 2007, Howell was again terminated. (Id. ¶ 42.) He
contacted Human Resources and was directed to speak with NCCU’s attorney.
(Id.) In turn, Howell hired an attorney and “was asked to report back to work on
or about April 1, 2007.” (Id.) However, before he returned to work, on or about
March 20, 2007, Seay “sent several slanderous emails regarding Mr. Howell’s
return to the School of Business as IT support”, stating that Howell “made
inappropriate and sometimes lewd comments to faculty, staff and students.” (Id.
¶ 43.) Although Seay stated that this was documented, he provided no
documentation to Human Resources when asked to do so. (Id.) Two days later, on
or about March 22, 2007, Bijoy Sahoo, Dean of School of Business, “sent an email
threatening Mr. Howell and banning him from the Office of Business Services.” (Id.
Howell does not allege what type movies these were.
On or about April 1, 2007, Howell returned to work and reported to Sybil
Henderson in the School of Business. (Id.) At an unspecified time, he requested a
desktop audit to show his performance during the 2007-2008 period, but Daphine
Richardson, “EEO”, provided a false report of the audit which led to a negative
performance evaluation with no pay increase. (Id. ¶ 46.) Nevertheless, Henderson
did give Howell a pay raise on or about May 1, 2008 as part of the “career banding
raise across the system by the States Personnel.” (Id. ¶ 47.) However, not only
did he not receive the back pay as part of the “career banding raise”, but his pay
increase was $4,000 less than “[a]ll other employees” in the ITS Department. (Id.)
Howell filed a grievance, but, as of the date he filed his Complaint, had not
received a hearing, nor had his pay checks reflected the pay raise he did receive.
(Id.) “NCCU refused the back pay and equal pay settlement.” (Id.) After having
filed several grievances, Howell’s requests were ignored, and the grievances
“disappeared from his personnel file.” (Id. ¶ 48.) He attempted to meet with Mark
Stilemen, Human Resources Director, but to no avail. (Id.)
On or about June 1, 2009, “Henderson unduly scrutinized” Howell’s
telephone bill and apparently threatened to terminate him for theft of services. (Id.
¶ 49.) Yet, after Howell’s attorney contacted NCCU, Henderson stopped her
threat. (Id.) The following month, on or about July 1, 2009, Howell sent Sahoo a
letter “regarding the hostile work environment, incorrect pay raise and back pay”,
after which Howell received back pay for July. (Id. ¶ 50.) On or about October 1,
2009, Howell was transferred back to ITS. (Id. ¶ 51.)
Nearly four years later, on or about August 1, 2013, Howell “filed another
grievance regarding the hostile work environment and bullying against John Nancy
Smith, Chief Information Officer in the ITS Department.” (Id. ¶ 52.) Howell spoke
with Sylvia Anderson, Director of “EEO,” who ignored the grievance “regarding the
hostile work environment”, and Howell “did not receive a hearing within the
NCCU’s policy of forty-five days.” (Id.)
On or about May 5, 2014, Howell met with Eva Kraus, current Chief
Information Officer of the ITS Department4, and was given notice of Reduction in
Force (“RIF”), presumably terminating Howell. (Id. ¶ 53.) However, the following
day, Kraus created three new jobs and awarded some employees raises. (Id.) On
or about May 15, 2014, Howell filed a grievance about the RIF, and a hearing was
held on August 20, 2014 with Linc Butler, current5 Human Resources Director, and
Kraus present. (Id. ¶ 54.) Kraus would not offer Howell his previous position, and,
although he “had applied for all the jobs that had posted at NCCU during the
period6”, he was not hired. (Id.) He “immediately” filed for the second step in the
mediation policy. (Id.) On or about October 20, 2014, Howell “had a hearing” with
Kraus who, once again, would not offer him his previous position. (Id. ¶ 55.)
Howell told Kraus that several employees had been promoted and temporary
It is unclear if the allegation of “current Chief Information Officer” refers to
“current” as of May 5, 2014 or “current” as of the date that Howell filed his
See supra n.4.
It is unclear to what “period” Howell refers.
employees had been hired “contrary to the RIF regulations.” (Id. ¶¶ 53, 55.)
Approximately two months later, on or about December 22, 2014, Howell’s
grievance was denied. (Id. ¶ 55.)
On or about February 1, 2015, Howell received a letter from NCCU
informing him that he was not hired for the position for which he had applied7. (Id.
¶ 56.) The person who was hired for the position was more than thirty years
younger than Howell. (Id.) Three weeks later, on or about February 24, 2015, he
filed a grievance “alleging that he had RIF priority, and the RIF was harassment,
hostile working conditions, failure to follow Human Resources policy and state
policy, and age discrimination.” (Id.) On or about April 1, 2015, Howell’s “claim”
was denied, after which he filed “for a mediation” that was held on or about May
28, 2015 to no avail. (Id. ¶¶ 57, 58.) NCCU repeatedly failed to address Howell’s
grievances or concerns about pay and retaliatory harassment. (Id. ¶ 59.)
Howell filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”)8 in which, at least as he alleges in his
Complaint, he asserted age, race, and retaliation discrimination. (Id. ¶ 60.) On or
about March 8, 2016, he received his right to sue letter (Ex. 1 to Compl. [Doc. #11]), after which he filed the instant action. He has alleged (1) whistleblower
retaliation in violation of Title VII of the Civils Rights Act of 1964 (“Title VII”), (2)
It is unclear to what “position” Howell is referring.
Howell neither alleges the date that he filed his charge nor attaches a copy of his
charge to the Complaint.
race discrimination in violation of Title VII, (3) retaliation in violation of Title VII, (4)
age discrimination in violation of the Age Discrimination in Employment Act
(“ADEA”), (5) retaliation in violation of the ADEA, (6) gender discrimination in
violation of the “Gender Discrimination in Employment Act”, (7) violation of equal
protection pursuant to Fourteenth Amendment and 42 U.S.C. § 1981, (8) wrongful
discharge, and (9) violation of the North Carolina Wage and Hour Act.
Defendants first argue that Howell failed to exhaust his administrative
remedies as to his claims of race discrimination under Title VII and age
discrimination under the ADEA in Counts 2, 4, and 5, respectively. Title VII
prohibits employment discrimination on the basis of race, color, religion, sex, or
national origin, 42 U.S.C. § 2000e-2(a), and the ADEA prohibits employment
discrimination on the basis of age, 29 U.S.C. § 623. However, before instituting a
civil action alleging violations of Title VII or the ADEA, an individual must first file a
Charge of Discrimination with the EEOC or, in other words, exhaust his
administrative remedies. See 42 U.S.C. § 2000e-5 (Title VII); 29 U.S.C. § 626
(ADEA); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The
contents of the charge determine the “scope of the plaintiff’s right to file a federal
lawsuit”. Jones, 551 F.3d at 300; see also Chacko v. Patuxent Inst., 429 F.3d
505, 506 (4th Cir. 2005) (stating that the “charge frames the scope of future
litigation”). “Only those discrimination claims stated in the initial charge, those
reasonably related to the original complaint, and those developed by reasonable
investigation of the original complaint may be maintained in a subsequent Title VII
[or ADEA] suit.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th
Cir. 1996); see also Chacko, 429 F.3d at 506 (holding that a plaintiff fails to
exhaust his administrative remedies where the charge references “different time
frames, actors, and discriminatory conduct than the central factual allegations in
his formal suit”). Therefore, the Fourth Circuit Court of Appeals has found claims
that allege different bases for discrimination than were alleged in the charge or that
allege different types of discrimination than were alleged in the charge as barred.
Chacko, 429 F.3d at 509 (citing cases). “[A] failure by the plaintiff to exhaust
administrative remedies concerning a Title VII [or ADEA] claim deprives the federal
courts of subject matter jurisdiction over the claim.” Jones, 551 F.3d at 300-01.
In support of their argument, Defendants attached to their Motion a copy of
Howell’s Charge of Discrimination filed with the EEOC on August 20, 2015, (Ex. 1
to Mot. to Dismiss [Doc. #17-1]), and argue that the Court can properly consider
it, (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss (“Defs.’ Br. in Supp.”) at 5 n.2
[Doc. #18]). Howell argues otherwise, (Pl.’s Mem. Opposing Mot. to Dismiss
(“Pl.’s Br. in Opp’n”) at 2-3 [Doc. #20]), but nevertheless cites to the exhibit in his
brief, (id. at 4).
A court may consider a document attached to a motion to dismiss if it is
“integral to the complaint and there is no dispute about the document’s
authenticity.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir.
2016); see also Robinson v. Durham Pub. Sch. Bd. of Educ., No. 1:13CV652,
2014 WL 3894368, at *4 n.3 (M.D.N.C. Aug. 7, 2014) (considering an EEOC
Charge that the defendant attached to the motion to dismiss because the plaintiff
relied on the Charge for exhaustion of administrative remedies and the plaintiff did
not appear to contest the authenticity of the Charge as he relied on it in his
opposition to the motion to dismiss). Howell alleged that he filed a Charge with
the EEOC and thereafter received his right to sue letter, prerequisites to his filing
the instant action. In addition to his reliance on the Charge for that purpose, he
cited Defendants’ exhibit of the Charge in his opposition brief and did not contest
its authenticity. In support of the exhibit’s authenticity, the Charge number, 4332015-02775, is the same Charge number on Howell’s right to sue letter that he
attached to his Complaint. Therefore, the Court will consider the EEOC Charge
that Defendants attached to their Motion.
According to Defendants, Howell did not exhaust his administrative remedies
as to his claim in Count 2 of race discrimination in violation of Title VII. They
argue that he not only failed to check the box on his Charge for race
discrimination, but he also failed to raise the claim in the Charge. (Defs.’ Br. in
Supp. at 8.) Because “[t]here is no reference in the charge to any alleged actions
taken by NCCU or any of its employees that were based on race”, (id.),
Defendants conclude that the claim must be dismissed.
In response, Howell acknowledges that he checked the box for color
discrimination and described color discrimination in the Charge. (Pl.’s Br. in Opp’n
at 4.) He also argues that “it is undisputed that Defendants treated him unfairly
based on his color.” (Id.) Then, confusingly, he never mentions color again in his
brief and, instead, argues that he alleged in his Charge that “he was discriminated
against on the basis of his race”, (id. at 4-5), and erroneously cites to the
Complaint in support of those arguments9, (id. at 5).10
“Even though race and color clearly overlap, they are not synonymous.”
EEOC Compliance Manual, § 15-III at 15-6 (Apr. 19, 2006). In its Compliance
Manual, the EEOC explains that, while Title VII does not define “color”, courts and
the EEOC “read ‘color’ to have its commonly understood meaning – pigmentation,
complexion, or skin shade or tone.” § 15-III at 15-6. Compare id. with id. § 15-II at
15-3 (referencing five racial categories provided by the Office of Management and
Budget – American Indian or Alaska Native, Asian, Black or African American,
Native Hawaiian or Other Pacific Islander, and White – and one ethnic category –
Howell cites to the Complaint in support of arguments about similarly situated
“African American” employees and peers, suggesting that he made such
allegations in his Complaint, but he did not. Furthermore, he also includes in his
brief additional, unsupported statements about race that are also not alleged in the
He also requests that the Court “apply the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).” (Pl.’s Br. in Opp’n
at 4-5.) “In the employment context, however, a plaintiff need not establish a
prima facie case under McDonnell Douglas in order to survive a motion to dismiss.”
Miller v. Carolinas Healthcare Sys., 561 F. App’x 239, 241 (4th Cir. 2014)
Hispanic or Latino). “[C]olor discrimination occurs when a person is discriminated
against based on the lightness, darkness, or other color characteristic of the
person.” Id. The Fourth Circuit Court of Appeals has likewise explained, “Color
discrimination arises when the particular hue of the plaintiff’s skin is the cause of
the discrimination, such as in the case where a dark-colored African-American
individual is discriminated against in favor of a light-colored African-American
individual.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 n.5 (2002); see also
Williams v. Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (“Light-skinned blacks
sometimes discriminate against dark-skinned blacks, and vice versa, and either
form of discrimination is literally color discrimination.”).
Similar to Howell, the plaintiff in Jones v. Jefferson Parish, No. 12-2191,
2013 WL 871539, at *4 (E.D. La. Mar. 8, 2013), checked the boxes on his two
formal EEOC charges for discrimination based on color and retaliation, but, as is
relevant here, did not check the box for race. In the narrative, he never mentioned
race discrimination and concluded that he had “been discriminated against because
of [his] color, light skinned, and retaliated against for opposing practices made
illegal under Title VII.” Id. His attachments to the charge mentioned discrimination
“’based on color . . . as compared to darker employees’” but not discrimination
based on race. Id. The plaintiff subsequently filed a complaint against the
defendant-employer alleging, among other things, what could have been
interpreted as discrimination based on race and argued that the scope of his EEOC
charge and the related investigation were broad enough to include his claim of
race-based discrimination. Id. at *3. The court disagreed, found that he “clearly
never filed a charge of discrimination based on . . . race”, and dismissed the claim
because, assuming he did not abandon the claim by failing to brief the issue, he
failed to exhaust his administrative remedies as to that claim. Id. at *5. Cf., e.g.,
Bryant, 288 F.3d at 132 n.5 (finding that the plaintiff failed to exhaust his
administrative remedies as to his claim for color discrimination, among others,
because he only alleged race discrimination in his EEOC Charge and “did not
indicate that he was discriminated against on the basis of his skin color”, and, as
such, his Charge was “devoid of any hint that his particular skin tone motivated
the alleged discrimination”); Daniels v. James Lawrence Kernan Hosp., Inc., No.
No. WMN-15-255, 2015 WL 5735397, at *3 (D. Md. Sept. 29, 2015) (quoting
Bryant in support of dismissing the plaintiff’s color discrimination claim because
she stated in her charge that she was discriminated against due to “race, Black”
when she was terminated and three Caucasians were not and failed “to put forth a
specific allegation describing color discrimination or showing how color
discrimination was related to her allegation that she was discriminated against”
and describing the “[p]laintiff’s assertion that the text of her EEOC charge plainly
allege[d] discrimination on the basis of color” as “her conflation of race and color
discrimination”); Richardson v. HRHH Gaming Senior Mezz, LLC, 99 F. Supp. 3d
1267, 1273-74 (D. Nev. 2015) (dismissing the plaintiff’s color discrimination
claim, finding that the plaintiff’s charge was “devoid of allegations of
discrimination based on skin tone” and that he instead alleged that he was
discriminated against “because of [his] race, Black”, and concluding that because
there were no allegations in the charge that “would allow the EEOC to infer and
investigate a claim of color discrimination, [the] color discrimination is not like or
reasonably related to his EEOC charge”); Cooper v. Jackson-Madison Cty. Gen.
Hosp. Dist., 742 F. Supp. 2d 941, 950-51 (W.D. Tenn. 2010) (finding that the
plaintiff failed to exhaust his administrative remedy for color discrimination because
he alleged in his charge that he was discriminated against by an African-American
director because of his Caucasian race not “because he was, for example, a fairskinned Caucasian” and citing the EEOC’s compliance manual and Bryant, among
Here, represented by counsel at the time he filed his Charge with the EEOC,
Howell only checked the boxes for color and retaliation. (Ex. 1 at 1.) In relevant
part, he alleged in his narrative,
The petitioner experienced continuing violations of unlawful workplace
‘color-based discrimination’ against persons that appear white. Here,
the petitioner attests being part African American and part American
Indian. Color animus of NCCU is direct discrimination on this face by
NCCU against employees, such as the petitioner through his
employment. The animus statements of the NCCU Chancellor are
available . . . .
(Id. at ¶ 3.) He never checked the box for race, and, other than describing himself
as part African American and part American Indian as context for his color
discrimination claim, his factual allegations were not of race discrimination.
Instead, he specifically referred to and quoted “color-based discrimination”, defined
it as being “against persons that appear white”, and accused NCCU of direct
discrimination with its “[c]olor animus”. These allegations focus on “the particular
hue” of his skin. Based on these allegations, a reasonable investigation by the
EEOC would not have developed into an investigation of race discrimination.
Consequently, Howell failed to exhaust his administrative remedies as to his claim
of race discrimination. Therefore, to the extent that Howell alleges race
discrimination in Count 2, Defendants’ motion to dismiss the claim is granted.
To the extent that Howell has actually alleged a claim of color, rather than
race, discrimination in Count 2, the claim must still be dismissed for failure to state
a claim upon which relief can be granted. The Fourth Circuit Court of Appeals has
recognized that “[l]egal labels characterizing a claim cannot, standing alone,
determine whether it fails to meet” the pleading standard. Labram v. Havel, 43
F.3d 918, 920 (1995). This is true “[e]ven where such a label reflects a flat
misapprehension by counsel respecting a claim’s legal basis . . . so long as any
needed correction of legal theory will not prejudice the opposing party.” Id. “All
that is required is that the pleaded claim afford ‘the opposing party fair notice of
the nature and basis or grounds of the claim and a general indication of the type of
litigation involved.’” Id. Therefore, although Howell entitles Count 2 as race
discrimination in violation of Title VII, this mischaracterization, standing alone, will
not lead to the claim’s dismissal as long as Defendants are on notice of the actual
nature and bases for the claim of color discrimination.
Howell alleges, albeit incorrectly, that his EEOC Charge included a claim of
race discrimination and then, in Count 2, alleges that he “is an African-American
and American Indian male” whose “physical appearance is of Caucasian [sic]”.
(Compl. ¶¶ 60, 72.) He further alleges that he was “referred to at all relevant
times at NCCU as Caucasian”; “NCCU singled Mr. Howell out by his physical
appearance as a Caucasian male”; and “Defendants treated Mr. Howell less
favorably than similarly situated employees who are African-American and has [sic]
the physical appearance of an African American.” (Id. ¶¶ 72-74.) These
allegations, as well as his arguments in support of having alleged a race
discrimination claim, (see Pl.’s Br. in Opp’n at 4-5), conflate race and color
discrimination. Nevertheless, these allegations suggest, if anything, color
discrimination, a claim of which Defendants, or at least NCCU, had notice as a
result of Howell’s EEOC Charge and the EEOC’s related investigation. Accordingly,
and as evidenced by their arguments challenging a claim for color discrimination,
Defendants are not prejudiced by the Court’s interpreting these allegations as
asserting a claim of color discrimination. Yet, assuming arguendo that this claim is
not time-barred as Defendants argue, Defendants also argue that Howell has failed
to “include any facts to support a claim of color . . . discrimination”, (Defs.’ Br. in
Supp. at 11). The Court agrees.
To survive a Rule 12(b)(6) motion, the 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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556); see also McCleary-Evans v. Md. Dep’t of Transp.,
State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (noting that a
complaint must “contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face in the sense that the complaint’s factual
allegations must allow a court to draw the reasonable inference that the defendant
is liable for the misconduct alleged”). When evaluating whether the complaint
states a claim that is plausible on its face, the facts are construed in the light most
favorable to the plaintiff and all reasonable inferences are drawn in its favor. U.S.
ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir.
2014). Nevertheless, “labels and conclusions[,]” “a formulaic recitation of the
elements of a cause of action[,]” and “naked assertions . . . without some further
factual enhancement” are insufficient. Twombly, 550 U.S. at 557.
In support of Howell’s claim of color discrimination, he needs to have alleged
“facts to satisfy the elements of the cause of action created by that statute”,
McCleary-Evans, 780 F.3d at 585, that Defendants “discriminate[d] against [him]
with respect to his compensation, terms, conditions, or privileges of employment,
because of [his] . . . color . . . ”, 42 U.S.C. § 2000e-2(a)(1). He has not done so.
While he alleges that he did not receive the same pay increase as his colleagues
and that he was terminated several times, he has not alleged any facts to support
that Defendants took any of these actions, or any other actions, because of his
color. The only allegations about his color are either the allegations describing
himself, (Compl. ¶¶ 6, 72), general, unsupported, speculative references within
Count 2 to his being singled out and treated less favorably because of his physical
appearance, (id. ¶¶ 73, 74), or the unsupported, highly incendiary allegation within
Count 2 that “Defendants have a notorious reputation for discriminating against its
[sic] Caucasian employees in favor of its [sic] African American employees”, (id.
¶ 78). In sum, even if the Court were to construe Count 2 as a claim of color
discrimination in violation of Title VII, it must be dismissed for failure to state a
claim for which relief can be granted. There is no need to discuss Defendants’
additional challenge to the claim.
As they did with Howell’s claim of race discrimination, Defendants contend
that Howell failed to exhaust his administrative remedies as to his claims in Counts
4 and 5 of age discrimination and retaliation related to age discrimination. Not only
did he not mark the box on his EEOC Charge for age discrimination, but
Defendants argue that the Charge did not refer to age discrimination or retaliation
related to age discrimination. (Defs.’ Br. in Supp. at 14-15.) Therefore, according
to Defendants, the claims should be dismissed. (Id. at 15.)
It is difficult to discern if Howell’s brief in opposition to Defendants’ motion
includes a response to this particular challenge. (See Pl.’s Br. in Opp’n at 9-10.)
As Defendants suggest, though, (Defs.’ Reply Mem. of Law in Supp. of Mot. to
Dismiss at 7-8 [Doc. #21]), Howell apparently argues that Defendants should have
been on notice about his age discrimination claim because his February 2015
internal grievance about the Reduction in Force included a reference to age
discrimination, (see Pl.’s Br. in Opp’n at 10).
Filing an internal grievance that purportedly put Defendants on notice is not
the equivalent of exhausting administrative remedies under the ADEA. Instead,
Howell was required to file a charge with the EEOC alleging age discrimination.
(See supra § II at 8-9.) In his brief, he does not even argue that his Charge
included any allegation of age discrimination, which is understandable because he
could not successfully advance such an argument. Not only did he not check the
box for “age”, but he did not include any allegations of age discrimination in his
narrative that would have led a reasonable EEOC investigation to develop into an
investigation of age discrimination. His only reference to age in his EEOC charge is
in passing when he alleges that his June 2015 grievance and mediation hearing
was a “sham”, in part, because “[t]he mediation panel would only discuss age
discrimination which was not the only issue for this grievance”. (Ex. 1 to Mot. to
Dismiss at 6.) Therefore, because Howell has failed to exhaust his administrative
remedies as to age discrimination and retaliation based on age discrimination,
Defendants’ motion to dismiss Counts 4 and 5 is granted, and there is no need to
discuss Defendants’ other challenges to these claims.
Defendants also challenge Howell’s claim in Count 1 for “whistleblower
retaliation” in violation of Title VII. They argue that, although Title VII prohibits
retaliation against an employee for engaging in protected activity, Howell’s “alleged
‘whistleblowing activity’ related to his finding pornographic materials on NCCU’s
server and reporting that to his supervisor and State authorities” “clearly does not
constitute ‘protected activity’ under Title VII.” (Defs.’ Br. in Supp. at 9-10.)
Accordingly, they contend that this claim should be dismissed.
In response, Howell ignores Defendants’ argument that his alleged protected
activity is not the type of activity protected under Title VII. Instead, he simply
repeats his allegations as argument: he “reported illegal activity that was occurring
on the computers at NCCU and the illegal download of movies”, after which he
was harassed and ultimate terminated. (Pl.’s Br. in Opp’n at 9.11) He concludes by
arguing that he “was terminated from his employment or treated adversely by
Defendants because of his opposition to activity made unlawful under Title VII.”
As Defendants acknowledge, Title VII provides, in relevant part, “It shall be
an unlawful employment practice for an employer to discriminate against any of his
As he did when arguing in support of his Title VII race discrimination claim, (see
supra 11 n.10), Howell once again “ask[s] the Court to review the burden-shifting
framework of McDonnell Douglas Corp.”, 411 U.S. 792, and then argues that
Defendants have not met their burden. As explained above, though, this
framework is not appropriate for a motion to dismiss analysis.
employees or applicants for employment . . . because he has opposed any practice
made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e3(a) (referring to subchapter VI entitled “Equal Employment Opportunities”).
“[U]nlawful employment practice[s]” in subchapter VI are those that adversely
affect employment on the basis of an individual’s race, color, religion, sex, or
national origin. See 42 U.S.C. § 2000e-2 (emphasis added). It follows that activity
protected from retaliation under Title VII is either opposing an employer’s actions
taken on the basis of an individual’s race, color, religion, sex, or national origin or
participating in an investigation of such conduct. In fact, this type of retaliation is
what Howell alleges in Count 3.
However, although Howell repeatedly and only refers to Title VII in this claim
of whistleblower retaliation, Title VII does not protect the activity in which Howell
alleges he participated or opposed. In his Complaint, Howell alleges that he
“engaged in protected whistleblower activity by notifying his superior of
pornographic materials on the NCCU server and employees’ computer which
caused an investigation.” (Compl. ¶ 64.) “As a result of [his] discovery and
notification, [he] was retaliated against by several employees and transferred to
another Department. After being transferred to another Department, the same
protected activity was ongoing. [He] reported this activity again.” (Id. ¶ 65.)
After alleging his injuries, he alleges that he “would not have suffered all of the
adverse actions in the absence of his protected whistleblower conduct” and that
NCCU engaged in “unlawful whistleblower retaliation . . . in violation of Title VII”.
(Id. ¶¶ 67, 69.)
Howell’s mistaken conviction in his Complaint and his brief that his claim of
whistleblower retaliation may be brought according to Title VII does not doom the
claim, though. As previously explained, a claim should not be dismissed solely
because it is mislabeled and even when it “reflects a flat misapprehension by
counsel respecting a claim’s legal basis”, as long as the facts and claim alleged set
out a recognized violation of the law and the defendant is on “fair notice of the
nature and basis or grounds of the claim” and has “a general indication of the type
of litigation involved.” Labram, 43 F.3d at 920. Howell’s allegations fairly clearly
suggest that he is asserting retaliation in violation of what is referred to as North
Carolina’s Whistleblower Act, N.C. Gen. Stat. §§ 126-84 and 126-85, that
protects state employees who report to public bodies matters of public concern.
See Newberne v. Dep’t of Crime Control & Pub. Safety, 618 S.E.2d 201, 205-06
(N.C. 2005) (providing elements of a claim under the Whistleblower Act).
Were Howell to have plausibly alleged a claim of retaliation in violation of
North Carolina’s Whistleblower Act, which the Court is not determining, the claim
is time-barred because the Complaint was filed more than “one year after the
occurrence of the alleged violation” of the Act. See N.C. Gen. Stat. § 126-86; see
also Phillips v. N.C. A&T State Univ., No. 1:09CV227, 2009 WL 5215377, at *4
n.1 (M.D.N.C. Dec. 28, 2009) (finding that, had the plaintiff alleged a
whistleblower claim, it would have been barred by the statute of limitations
because he was terminated in February 2007 but did not file his complaint until
March 30, 2009). Howell filed his Complaint on June 5, 2016, well over a year
after his being denied on February 1, 2015 the last position for which he applied
after the reduction in force, (Compl. ¶ 56). Even were the final failed mediation on
May 28, 2015 to be considered whistleblower retaliation, (id. ¶ 58), that event
does not save the untimely assertion of the claim. Therefore, although Howell’s
whistleblower claim has been characterized as one recognized under North Carolina
law, it is ultimately barred by the statute of limitations, and Defendants’ motion to
dismiss Count 1 is granted. There is no need to discuss Defendants’ other
challenge to this claim.
Defendants also contend that Howell’s claim in Count 6 of gender
discrimination, entitled “Violation of the Gender Discrimination in Employment Act”
and brought pursuant to 29 U.S.C. §§ 621-634 (the ADEA), does not exist under
the ADEA. (Defs.’ Br. in Supp. at 16.) Howell does not respond to this challenge.
Pursuant to Local Rule 7.3(k), failure to respond permits the motion to dismiss to
be considered and decided as uncontested and ordinarily granted without further
notice. Not only does Rule 7.3(k) permit dismissal, but the law also requires
As Defendants argue, “the ADEA is intended specifically to protect
applicants and employees from discrimination on the basis of age, not gender.”
(Defs.’ Br. in Supp. at 16.) “Title VII is the proper vehicle for asserting a gender
discrimination claim.” (Id.) In support of Howell’s claim for a violation of the
“Gender Discrimination in Employment Act”, he alleges that he “is a male, and
therefore comes under the protection of the Gender Discrimination in Employment
Act, 29 U.S.C. §621-634.” (Compl. ¶ 102.) “Defendants were aware of [his]
gender”, and he was treated less favorably than similarly situated female
employees. (Id. ¶¶ 103, 104.) Despite the confounding pursuit of this claim under
the “Gender Discrimination in Employment Act” as found in 29 U.S.C. §§ 621623, which is actually the ADEA, it is clear that Howell is not bringing a claim
under the ADEA, but, instead, is more likely bringing a gender discrimination claim
under Title VII. Even if Count 6 were deemed to be a claim for gender
discrimination in violation of Title VII, see Labram, 43 F.3d at 920, it is apparent
from Howell’s EEOC charge that he did not exhaust his administrative remedies as
to gender discrimination. Not only did he not check the box for sex, but the only
reference to gender discrimination in the narrative is his allegation that he filed an
internal grievance in August 2006 for gender discrimination when a female was
given his job. (Ex. 1 at 1, 2 ¶ 2.) Were such an allegation sufficient to find that
Howell exhausted his remedies for gender discrimination, the claim is clearly timebarred, (see infra § IV). (See Compl. ¶ 37 (alleging that Howell filed an internal
grievance “noting gender discrimination” sometime around August 2006).)
Accordingly, Defendants’ motion to dismiss Count 6 is granted. There is no need
to discuss Defendants’ additional challenge to this claim.
Of Howell’s Title VII and ADEA claims, only his claim in Count 3 for
retaliation under Title VII thus far remains. Defendants argue that this claim is
time-barred because “all of the alleged discriminatory or retaliatory conduct
occurred beyond the 180 days of filing of Plaintiff’s EEOC Charge.” (Defs.’ Br. in
Supp. at 9.) Specifically, Defendants argue that because Howell filed his charge
on August 20, 2015, “any acts that occurred prior to February 21, 2015 fall
outside of the time limitation period.” (Id.)
In response, Howell argues the “where there is a state or local agency with
authority to grant relief, the charge must be filed, with state or local agency,
within three hundred (300) days after the alleged unlawful employment practice
occurred.” (Pl.’s Br. in Opp’n at 5.) This permits the inclusion of retaliatory
conduct dating back to October 24, 2014. (Id.) Apparently in the alternative,
Howell argues that his “attend[ing] mediation to no avail” on May 28, 2015 falls
within the 180 day filing period and is the date that he “was informed of the
discriminatory employment decision”. (Id. at 7-8.) He then proffers an argument
for equitable tolling because he “was induced to believe that he had to exhaust his
administrative remedies with his employer before seeking his claim with the
EEOC.” (Id. at 8.)
Title VII requires that “[a] charge under this section be filed within one
hundred and eighty days after the alleged unlawful employment practice
occurred . . . .” 42 U.S.C. § 2000e-5(e)(1). However, when a “person aggrieved”
by an unlawful employment practice “has initially instituted proceedings with a
State or local agency with authority to grant or seek relief from such practice . . .
such charge shall be filed by or on behalf of the person aggrieved within three
hundred days after the alleged unlawful employment practice occurred . . . .” Id.
In North Carolina, the Office of Administrative Hearings serves as “the State’s
deferral agency for cases deferred by the [EEOC] . . . as provided in . . . 42 U.S.C.
§ 2000e-5.” N.C. Gen. Stat. § 7A-759(a); see also Bratcher v. Pharm. Prod. Dev.,
Inc., 545 F. Supp. 2d 533, 543 (E.D.N.C. 2008) (explaining that the Office of
Administrative Hearings has subject matter jurisdiction over a charge made by a
Howell has neither alleged that he filed a charge with a state agency or more
specifically, the Office of Administrative Hearings, nor that the EEOC did so on his
behalf. Instead, he alleges that he filed internal grievances with NCCU, which
repeatedly failed to address the grievances, and, “[i]n light of all the above”, he
filed a charge with the EEOC. (Compl. ¶¶ 59, 60.) Although he cites the statute
prescribing a 300-day filing period, he actually does not advance an argument that
such a filing period applies in this case, nor could he based on his allegations.
Instead, the 180-day filing period applies.
“Equitable tolling applies where the defendant has wrongfully deceived or
misled the plaintiff in order to conceal the existence of a cause of action.” English
v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). It is “a narrow
limitations exception”, Olson v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir.
1990), and does “not extend to what is at best a garden variety claim of excusable
neglect”, Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Although
Howell argues that, “In this particular set of facts, Plaintiff was induced to believe
that he had to exhaust his administrative remedies with his employer before
seeking his claim with the EEOC”, (Pl.’s Br. in Opp’n at 8), he alleges no facts in
his Complaint to support such an assertion. Therefore, equitable tolling does not
apply here. See Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th Cir.
2004) (deeming the plaintiff’s equitable tolling argument abandoned on appeal but
then noting that “[i]n any event, we conclude that tolling is not appropriate here,
because Williams did not allege that Giant Food deceived or misled her about its
promotion selections ‘in order to conceal the existence of a cause of action’”).
Having determined that equitable tolling is not appropriate and that the 180day limitations period for filing a charge with the EEOC applies, the next question
is whether any of the alleged adverse employment actions are timely. “[E]ach
retaliatory adverse employment decision constitutes a separate actionable
‘unlawful employment practice’” such that a party “can only file a charge to cover
discrete acts that ‘occurred’ within the appropriate time period.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). A party must file a
charge with the EEOC within 180 days of the date that a discrete retaliatory act
occurred or, in other words, happened. Id. at 110. Discrete acts of retaliation
include termination, failure to promote, and denial of transfer. Id. at 114. “[T]he
filing period runs from the time at which the employee is informed of the allegedly
discriminatory employment decision, regardless of when the effects of that
decision come to fruition.” Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th
Cir. 1982) (citing Del. State Coll. v. Ricks, 449 U.S. 250 (1980)).
Because Howell filed his charge with the EEOC on August 20, 2015, a
retaliatory act had to have occurred on or after February 21, 2015. In his claim of
retaliation, Howell alleges that he was “threatened, slandered, subjected to
heightened scrutiny, negative evaluations, change in job duties, adversely negative
pay raise, harassed, and was ultimately terminated on four separate occasions”
apparently in retaliation for filing internal grievances. (Compl. ¶¶ 80-83.)
According to these allegations, the most recent retaliatory act would be his final
termination on May 5, 2014 as a result of the reduction in force, and that act is
time-barred. (See id. ¶ 53.) Even if the Court were to consider Howell’s February
1, 2015 receipt of the letter notifying him that he was not hired for the most
recent position for which he applied after the reduction in force, (id. ¶ 56), the
retaliation claim is still time-barred.
Howell argues that he was “informed of the discriminatory employment
decision on the 28th day of May, 2015”, (Pl.’s Br. in Opp’n at 8), the date that he
alleges mediation was held to no avail, (Compl. ¶ 58). He also refers to June 15,
2015 as a hearing date with Defendants, (Pl.’s Br. in Opp’n at 6), but there is no
allegation in his Complaint of Defendants doing anything after May 28, 2015,
(Compl. ¶ 58), much less on June 15, 2015. Nevertheless, even considering the
May 28, 2015 mediation, the claim is time-barred. “[T]he pendency of a
grievance, or some other method of collateral review of an employment decision,
does not toll the running of the limitations period.” Del. State Coll., 449 U.S. at
506. In addition, the grievance that formed the basis for that mediation was filed
in response to Howell’s receipt on February 1, 2015 of the letter informing him
that he was not hired for the position for which he applied. (Id. ¶ 56.) Therefore,
as of February 1, 2015, Howell was informed of the discriminatory act – the
failure to hire him, and that is the date that the filing period began to run,
regardless of when the effects of that decision came to fruition such as at the
conclusion of the internal grievance process. See Del. State Coll., 449 U.S. at 50506 (“[E]ntertaining a grievance complaining of the [discriminatory] decision does
not suggest that the earlier decision was in any respect tentative. The grievance
procedure, by its nature, is a remedy for a prior decision, not an opportunity to
influence that decision before it is made.)
In their Reply Brief, Defendants give Howell the benefit of having asserted a
continuing violation in an attempt to avoid the time bar, but argue that Howell has
not sufficiently alleged such a violation. (Defs.’ Reply Br. at 5-6 (citing Pl.’s Br. in
Opp’n at 6-7).) To the extent that Howell has alleged a continuing violation
separate from the discrete retaliatory acts Defendants are alleged to have
committed, such as Seay’s slanderous emails on March 20, 2007, Sahoo’s
threatening email on March 22, 2007, Richardson’s false desktop audit sometime
in 2007 or 2008, or Henderson’s undue scrutiny of Howell’s telephone usage on
June 1, 2009, none of Defendants’ acts is timely such that it could save a
continuing violation claim. See Nat’l R.R. Passenger Corp., 536 U.S. at 117
(permitting “the entire time period of the hostile environment” to be considered
“[p]rovided that an act contributing to the claim occurs within the filing period”).
Therefore, Defendants’ motion to dismiss Count 3 is granted, and there is no need
to discuss Defendants’ other challenges to this claim.
Defendants next argue that Howell’s equal protection claim in Count 7
brought pursuant to 42 U.S.C. § 1981 “must be dismissed because 42 U.S.C.
§ 1983 is the exclusive remedy against a state for a violation of a person’s
constitutional rights.” (Defs.’ Br. in Supp. at 16.) Although Defendants entitle this
section of their brief, “PLAINTIFF CANNOT STATE A SECTION 1981 CLAIM
AGAINST NCCU”, they conclude their legal argument by stating, “Plaintiff cannot
pursue a direction section 1981 claim against the State Defendants.” (Id. at 16, 17
(emphasis added).) Therefore, the argument is interpreted as one made by all
Defendants. Nevertheless, Howell fails to respond at all to this challenge.
Accordingly, as noted above, the claim can be dismissed pursuant to Local Rule
7.3(k); yet, addressing Defendants’ argument also supports dismissal.
The United States 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”. Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989); see also Googerdy v. N.C.
A&T State Univ., 386 F. Supp. 2d 618, 624-25 (M.D.N.C. 2005) (dismissing the
plaintiff’s claim brought pursuant to § 1981 against the defendant, an alter ego of
the State of North Carolina, because § 1983 provides the exclusive remedy against
state actors for violations of § 1981 rights). In Jett, the Court explained that,
while it had recognized a damages remedy as § 1981 and § 1982 applied to
private actors, it “had little choice but to hold that aggrieved individuals could
enforce this prohibition [on private actors’ violation of rights], for there existed no
other remedy to address such violations in the statute.” 491 U.S. at 731-32. But,
that “is manifestly not the case” with state actors’ alleged violation of rights
protected by § 1981. Id. at 732. Instead, the Court found “very strong evidence
that the 42d Congress that enacted the precursor of § 1983 thought that it was
enacting the first, and at that time the only, federal damages remedy for the
violation of federal constitutional and statutory rights by state governmental
actors.” Id. at 734. “Congress thought that the declaration of rights in § 1981
would be enforced against state actors through the remedial provisions of
§ 1983.” Id.
After Jett was decided, Congress passed the Civil Rights Act of 1991,
which added subsection (c) to § 1981, which reads, “The rights protected by this
section are protected against impairment by nongovernmental discrimination and
impairment under color of State law.” The Fourth Circuit Court of Appeals has
noted that it “do[es] not believe” that this amendment to § 1981 affects Jett’s
holding that, as against state actors, § 1983 provides the exclusive federal remedy
for violations of rights protected in § 1981 and that “the § 1983 requirement that
plaintiffs show an official policy or custom of discrimination also controls in
§ 1981 actions against state entities.” Dennis v. County of Fairfax, 55 F.3d 151,
156, 156 n.1 (1995) (citing Philippeaux v. N. Cent. Bronx. Hosp., 871 F. Supp.
640 (S.D.N.Y. 1994) as the “correct reading of the amendment”).
Here, NCCU is a constituent institution of the University of North Carolina
system, N.C. Gen. Stat. § 116-4, and an alter ego of the State of North Carolina,
see Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1138 (4th Cir.
1990); Roberson v. Dale, 464 F. Supp. 680, 689 (M.D.N.C. 1979). As such,
§ 1983 is the exclusive remedy against NCCU for alleged violations of rights
protected by § 1981.
As for the other defendants, who are sued in their individual capacities,
there is an “absence of controlling precedent on the specific question whether
§ 1981 claims against government officials in their personal capacities are
precluded”. Windsor v. Bd. of Educ. of Prince George’s Cty., Md., No. TDC-142287, 2016 WL 4939294, at *14 (D. Md. Sept. 13, 2016). District courts within
the Fourth Circuit have come down differently on this issue. Compare, e.g., Tucker
v. Sch. Bd. of the City of Va. Beach, No. 2:13CV530, 2014 WL 5529723, at *13
(E.D. Va. Oct. 31, 2014) (adopting recommendation to dismiss the plaintiff’s
§ 1981 claim against a state actor in her individual capacity because the plaintiff
should have brought the claim under § 1983) and James v. Univ. of Md., Univ.
Coll., No. PJM 12-2830, 2013 WL 3863943, at *2 (D. Md. July 23, 2013)
(holding that no cause of action existed under § 1981 against the state actor sued
in his individual capacity) with Windsor, 2016 WL 4939294, at *14 (declining to
dismiss the § 1981 claim against state actors sued in their individual capacities).
The Sixth Circuit Court of Appeals has directly addressed the issue and
“conclude[d] that § 1983 is the exclusive mechanism to vindicate violations of
§ 1981 by an individual state actor acting in his individual capacity.” McCormick v.
Miami Univ., 693 F.3d 654, 661 (2012). The court relied on the Jett Court’s
analysis of the legislative history of § 1981 and enactment of the precursor to
§ 1983. Id. As noted above, “prior to § 1983, there was no legislation that
provided a federal damages remedy against state actors who violated the law”,
and “Congress . . . enacted the precursor to § 1983 believ[ing] that it was
enacting the first and only federal damages remedy against state actors.” Id. The
logic that “the more specific and express cause of action contained in § 1983
provided a mechanism to address a violation of § 1981” such that there is no
private right of action under § 1981 against state actors “naturally extend[s] to the
context of individual state actors sued in their individual capacity.” Id. As the
McCormick court explained, “Section 1983’s express clause permitting these suits
obviates the need to imply the same right under the general provisions of § 1981.”
In concluding otherwise, the Windsor court interpreted Jett as addressing
issues involving the availability of liability resulting from respondeat superior and
criticized the McCormick court for focusing exclusively on Jett while making no
reference to the Civil Rights Act of 1991 and any effect it may have had on Jett’s
application. 2016 WL 4939294, at *13-14. As referenced above, though, the
Fourth Circuit Court of Appeals noted in Dennis that the Civil Rights Act of 1991
did not affect Jett’s admonition that § 1983 is the exclusive remedy against state
actors for violations of § 1981 and the requirements of a plaintiff to show
municipal liability. Furthermore, the Dennis court did not have occasion to
expound on the availability of § 1981 to suits against state actors in their
individual capacity, as the plaintiff sued his county employer, not individual state
With no controlling precedent, mixed lower court decisions as to a § 1981
remedy against individual state actors sued in their personal capacities, a Sixth
Circuit Court of Appeals opinion squarely on point finding no remedy under § 1981
against such state actors, and absolutely no response from Howell on the issue, it
is determined that Howell cannot maintain a § 1981 claim against the individual
defendants sued in their individual capacities. Therefore, Defendants’ motion to
dismiss Count 7 is granted, and there is no need to address Defendants’ other
challenge to the claim.
Next, Defendants argue that Howell’s claim in Count 8 of wrongful
discharge should be dismissed because the North Carolina Equal Employment
Practices Act (“NCEEPA”), N.C. Gen. Stat. § 143-422.1 et seq., does not create a
private right of action and that there is no individual liability for wrongful discharge.
(Defs.’ Br. in Supp. at 17, 19.) In addition, Defendants argue, at least in the
heading of section IV of their brief, that the claim is otherwise barred by the
Eleventh Amendment. (Id. at 17, 19.) In the body of section IV, though,
Defendants provide no argument in support of Eleventh Amendment immunity.
However, in a footnote to a previous section, Defendants argue the application of
the Eleventh Amendment not only to § 1981 claims, but to claims against a state
more generally. (Id. at 17 n.3.) As above, Howell does not respond to this
challenge. Accordingly, as noted above, the claim can be dismissed pursuant to
Local Rule 7.3(k); yet, addressing Defendants’ argument also supports dismissal.
While Defendants are correct that the NCEEPA does not provide a private
right of action, a plaintiff may do as Howell has done here and bring a claim for
wrongful discharge in violation of the NCEEPA. See, e.g., Smith v. First Union Nat’l
Bank, 202 F.3d 234, 247 (4th Cir. 2000) (explaining that neither appellate court in
North Carolina had recognized a private cause of action under the NCEEPA but that
“most courts have applied the NCEEPA only to common law wrongful discharge
claims or in connection with other specific statutory remedies”); Arbia v. OwensIll., Inc., No. 1:02CV111, 2003 WL 21297330, at *7 (M.D.N.C. June 4, 2003)
(stating that the NCEEPA does not provide a private right of action, but that North
Carolina state and federal courts have applied it to wrongful discharge claims).
Nevertheless, an action for wrongful discharge may be brought only against
an employer, not individuals in their individual capacities. Lorbacher v. Hous. Auth.
of City of Raleigh, 493 S.E.2d 74, 79 (N.C. Ct. App. 1997) (affirming dismissal of
the wrongful discharge claim “against the individual defendants as they were not
plaintiff’s employers for the purposes of a wrongful discharge claim”), implicitly
overruled on other grounds, Riley v. Debaer, 547 S.E.2d 831, 834-35 (N.C. Ct.
App. 2001). This is true even when the individual is a plaintiff’s supervisor.
Johnson v. North Carolina, 905 F. Supp. 2d 712, 726 (W.D.N.C. 2012)
(recognizing that “[p]ursuant to established North Carolina law”, a wrongful
discharge claim may be brought only against an employer, not the employer’s
agents); Di Wang v. WOW Brows, No. 1:14CV566, 2014 WL 5808370, at *2
(M.D.N.C. Nov. 7, 2014) (stating that wrongful discharge claims brought pursuant
to the NCEEPA can only be brought against employers, not supervisors or
employees); Arbia, 2003 WL 21297330, at *7 (stating the same and further
explaining that the “NCEEPA does not apply to an employer’s agents; rather,
employers are the only covered entity”). Here, only NCCU is alleged to have been
Howell’s employer. (See Compl. ¶ 6 (“From on or about the 1st day of February,
2006 until the 5th day of June, 2014, Mr. Howell was employed by Defendant
NCCU . . . .”).) Therefore, this claim fails against the other Defendants because
they are not alleged to have been Howell’s employer.
Additionally, the Eleventh Amendment protects NCCU from Howell’s
wrongful discharge claim. See, e.g., Hooper v. North Carolina, 379 F. Supp. 2d
804, 814 (M.D.N.C. 2005) (finding that sovereign immunity barred the plaintiff’s
wrongful discharge claim against NCCU, among others); Dai v. Univ. of N.C. at
Chapel Hill, No. 1:02CV224, 2003 WL 22113444, at *5 (M.D.N.C. Sept. 2,
2003) (finding that the plaintiff’s wrongful discharge claim brought pursuant to the
NCEEPA against the state actor-defendants was barred by the Eleventh
Amendment). Therefore, Defendants’ motion to dismiss Count 8 is granted.
Finally, Defendants challenge Howell’s claim in Count 9 that Defendants
violated the North Carolina Wage and Hour Act (“the Act”). They argue that the
Act does not apply to the State of North Carolina, its local agencies, or its
instrumentalities of government, including NCCU. (Defs.’ Br. in Supp. at 18.) As
with previous challenges, Howell does not respond. Accordingly, as noted above,
the claim can be dismissed pursuant to Local Rule 7.3(k); yet, addressing
Defendants’ argument also supports dismissal.
The Act provides, in relevant part, that “[e]very employer shall pay every
employee all wages and tips accruing to the employee . . . .” N.C. Gen. Stat. § 9525.6. Yet, except for several provisions not applicable here, the Act explicitly
exempts from its coverage “the State of North Carolina . . . or any State or local
agency or instrumentality of government . . . .” N.C. Gen. Stat. § 95-25.14(d).
NCCU is a constituent institution of the University of North Carolina System, N.C.
Gen. Stat. § 116-4, and, as such, is an alter ego of the State of North Carolina,
see Costello v. Univ. of N.C. at Greensboro, 394 F. Supp. 2d 752, 756 (M.D.N.C.
2005). Therefore, NCCU is exempted from the relevant provisions of the Act.
And, as noted above, NCCU is the only Defendant alleged to have been Howell’s
employer. Defendants’ motion to dismiss Count 9 is granted.
For the reasons stated herein, IT IS HEREBY ORDERED that Defendants’
Motion to Dismiss [Doc. #17] is GRANTED. A judgment dismissing this action will
be filed contemporaneously with this Order.
This the 5th day of July, 2017.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
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