BLAKNEY v. NORTH CAROLINA A&T STATE UNIVERSITY et al
Filing
18
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR. on 3/20/2019. Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(2), and 12( b)(6) (Doc. 7 ) is GRANTED IN PART AND DENIED IN PART. Defendants' motion to dismiss Plaintiff's claims pursuant to Rules 12(b)(1) and 12(b)(2) is DENIED, and Defendants' motion to dismiss Plaintiff's claims pursuant to Rule 1 2(b)(6) is GRANTED IN PART AND DENIED IN PART, in that: (1) Defendants' motion to dismiss all claims against Defendant Wagner is GRANTED, (2) Defendants' motion to dismiss Plaintiff's second, third, fourth, and fifth claims for relief is GRANTED, and (3) Defendants' motion to dismiss Plaintiff's first claim for relief is DENIED. FURTHER that Plaintiff's motion for leave to amend her Complaint (see Doc. 14 at 2) is DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SANDRA G. BLAKNEY,
Plaintiff,
v.
NORTH CAROLINA A&T STATE
UNIVERSITY and DR. DAVID
WAGNER,
Defendants.
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1:17CV874
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Currently before this Court is Defendants’ Motion to
Dismiss Plaintiff’s Complaint, alleging violations of the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621 et seq., and Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., among other claims. (See
Doc. 7.) Defendants have filed a brief in support of their
motion, (Doc. 8); Plaintiff has responded in opposition, (Doc.
14); and Defendants have replied, (Doc. 17). For the reasons
that follow, this court finds that Defendants’ motion to dismiss
should be granted in part and denied in part. To the extent that
Plaintiff has asked this court for leave to amend her Complaint,
that request will be denied.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts, construed in the light most favorable to
Plaintiff, are as follows.
Defendant North Carolina A&T State University (“N.C. A&T”)
is part of the University of North Carolina state school system,
a state agency. (See Verified Compl. (“Compl.”) (Doc. 4) ¶ 2.) 1
Beginning in February 2014 and continuing through December 31,
2016, N.C A&T employed Plaintiff as a nurse in its student
health center. (Id. ¶¶ 1, 4; see Defs.’ Mot. to Dismiss, Ex. 1
(Doc. 7-1).) 2 It is undisputed that Plaintiff turned forty years
1
Though styled a Verified Complaint, Plaintiff has not
presented to this court any verification.
2
Defendants attached Plaintiff’s November 10, 2016
resignation letter to their motion to dismiss, arguing that this
court may consider it at this stage of the proceedings because
Plaintiff incorporated it by reference into the Complaint. (See
(Defs.’ Mem in Supp. of Mot. to Dismiss (“Defs.’ Br.”) (Doc. 8)
at 6 n.4.) Plaintiff then attached to her response an affidavit
and exhibits, which she argues demonstrate her compliance with
certain jurisdictional requirements. (Pl.’s Br. in Opp’n to Mot.
to Dismiss (“Pl.’s Br.”) (Doc. 14) at 1-2; Affidavit of Sandra
Blakney (“Blakney Aff.”), Exs. 1, 2 (Doc. 13-1).) Plaintiff
failed to allege in her Complaint certain facts contained in
these exhibits and therefore separately moves this court for
leave to amend her Complaint to include those additional facts.
(Pl.’s Br. (Doc. 14) at 1-2.)
This court will consider these documents without converting
Defendants’ motion to one for summary judgment. See Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(directing courts to consider documents incorporated by
reference into the complaint); see also Goines v. Valley Cmty.
(Footnote continued)
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of age prior to beginning employment with N.C. A&T. (See Compl.
(Doc. 4) ¶ 1.)
Beginning in August 2015, N.C. A&T employed Defendant David
Wagner (“Defendant Wagner” or “Dr. Wagner”) as the Physician
Director of its student health center. (Id. ¶¶ 3, 5; see Blakney
Aff., Ex. 1 (Doc. 13-1) at 4.) 3 Plaintiff alleges that Dr. Wagner
is a citizen and resident of Guilford County, North Carolina.
(Compl. (Doc. 4) ¶ 3).
Plaintiff alleges that Defendant Wagner’s position as
Physician Director required him to evenly split his time between
Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citations
omitted) (directing courts to consider documents submitted by
movant at motion to dismiss stage so long as the documents were
integral to the complaint and authentic); Kerns v. United
States, 585 F.3d 187, 192-93 (4th Cir. 2009) (permitting the
court to look outside the complaint to resolve jurisdictional
facts).
This court summarily denies Plaintiff’s motion for leave to
amend the Complaint as moot regarding her age discrimination
claim and as futile to the other claims. Even considering the
additional facts contained in the exhibits, this court would
find that Plaintiff has failed to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure
12(b)(6). See Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462,
471 (4th Cir. 2011) (citation omitted) (“Futility is apparent if
the proposed amended complaint fails to state a claim under the
applicable rules and accompanying standards . . . .”).
3
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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administrative and clinical work. (Id. ¶ 6.) Defendant Wagner,
however, allegedly delegated his clinical work to nurse
practitioners. (See id. ¶¶ 10-12.) Clinical work included
patient intake, to which Plaintiff often attended. (See id.
¶¶ 7, 9.) During Plaintiff’s shift, she and one other colleague,
Frances Cole (who is over seventy years old), were the only
nurses attending to patient intake. (See id. ¶¶ 7-8.)
Defendant Wagner insisted that the patient-intake process
take no longer than twenty minutes, a new requirement that he
formally implemented in June 2016. (See id. ¶¶ 16, 20; Blakney
Aff., Ex. 1 (Doc. 13-1) at 4.) Plaintiff took issue with this
demand, asserting to Dr. Wagner at the time and in her Complaint
now, that the twenty-minute intake window was not feasible given
her other duties and because there were only two nurses
performing intake. (See Compl. (Doc. 4) ¶¶ 18-21, 40.) Plaintiff
alleges that Dr. Wagner “erroneously asserted” that only a check
of the vital signs needed to be performed within twenty minutes
but that the nurse practitioners “directed that Blakney assess
the patient’s vital signs, allergies, medications . . . among
other tasks” within twenty minutes. (See id. ¶¶ 46-47.)
Before N.C. A&T hired Dr. Wagner, Plaintiff had never been
disciplined at work. (Id. ¶ 14.) She alleges that Defendant
Wagner caused her performance review to be downgraded in the
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spring of 2016. (Id. ¶¶ 22-24.) Plaintiff’s April 4, 2016
evaluation noted her work as “outstanding.” (Id. ¶ 22.) 4
Defendant Wagner allegedly stated at some point thereafter that
Plaintiff’s evaluation should be changed because “nobody is
outstanding.” (Compl. (Doc. 4) ¶ 23.) Plaintiff’s next
evaluation, on May 15, 2016, was allegedly “downgraded” at
Defendant Wagner’s direction to “very good,” noting a need to
“pay attention to detail.” (See id. ¶ 24; Blakney Aff., Ex. 1
(Doc. 13-1) at 4.) 5
Besides the new intake procedure, Plaintiff had additional
difficulties with Defendant Wagner. Plaintiff alleges that,
shortly after he started as Physician Director, Dr. Wagner made
“comments of a sexual nature that caused [P]laintiff to be
uncomfortable.” (Compl. (Doc. 4) ¶ 5.) On one specific occasion,
Plaintiff allegedly informed Defendant Wagner that he was using
too much lubricant on a patient during a vaginal examination, to
which Dr. Wagner responded by telling the patient that he was
“going to use less lubricant; if you experience pain, it is
Blakney’s fault.” (Id. ¶¶ 28-29.)
4
Plaintiff adds, in her responsive brief, that she was
rewarded with a raise following this evaluation. (Pl.’s Br.
(Doc. 14) at 4.)
5
Plaintiff again adds, in her responsive brief, that this
downgrade caused her to lose the raise that she had earned.
(Pl.’s Br. (Doc. 14) at 4.)
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On August 18, 2016, Plaintiff and one of her supervisors
met with N.C. A&T’s Assistant Dean of Student Affairs, Marc
Williams, to discuss Blakney’s concerns about Dr. Wagner,
“including his inappropriate sexual comments.” (Id. ¶ 30.) On
August 25, 2016, Defendant Wagner verbally warned Plaintiff
about her alleged “failure to perform intake for all patients
within a twenty-minute time window.” (Id. ¶ 31.)
On September 9, 2016, Dr. Wagner issued a written warning
threatening Plaintiff with dismissal due to “[fifteen] incidents
of patient intake taking longer than twenty minutes.” (Id. ¶ 32;
Pl.’s Br. (Doc. 14) at 4 n.2.) Plaintiff alleges that the
September 9th written warning cost her a raise, was forwarded to
the human resources department, and might have become part of
her official personnel file. (Compl. (Doc. 4) ¶¶ 34, 36.) 6 The
September 9th warning demanded “a 100% improvement in intake
within 60 days.” (Compl. (Doc. 4) ¶ 37.) When Plaintiff received
that warning, Dr. Wagner verbally warned Plaintiff about her
patient-intake shortcomings as well. (Id. ¶ 38.) Dr. Wagner also
told Plaintiff that she should have raised her concerns with him
instead of Assistant Dean Williams. (Id. ¶ 35.) Plaintiff
6
Plaintiff’s charge of discrimination with the United
States Equal Employment Opportunity Commission (“EEOC”) states
that the August 25th warning cost her the annual raise, not the
September 9th written warning. (See Blakney Aff., Ex. 1 (Doc.
13-1) at 4.) The court credits the allegation in the Complaint.
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responded that completing one-hundred percent of patient intakes
within twenty minutes was not possible. (Id. ¶¶ 39-40.) Dr.
Wagner told her that the “higher-ups” were complaining about the
intake times. (Id. ¶ 43.) Plaintiff informed him that she would
speak with the higher-ups about it, and Dr. Wagner allegedly
responded in a threatening tone: “you’ve already been up there,
haven’t you.” (Id. ¶¶ 44-45.)
Plaintiff alleges that she was not the only nurse to
receive a written warning on September 9th for a failure to
check in one-hundred percent of patients within twenty minutes.
(Id. ¶ 33.) She alleges, however, that a lone male nurse did not
receive such warning. (See id.) Those who did, including Ms.
Cole, allegedly spoke with N.C. A&T’s human resources department
regarding Dr. Wagner’s intake policy. (See id. ¶¶ 48-49.)
Plaintiff asserts that human resources responded by asking Ms.
Cole when she planned on retiring, (id. ¶ 50), and apparently
noted that one of the younger nurses was excelling at patient
intake, (id. ¶¶ 51-52).
Plaintiff spoke to Assistant Dean Williams again on
September 15, 2016. (Blakney Aff., Ex. 1 (Doc. 13-1) at 9.)
Assistant Dean Williams informed Plaintiff that he had told
Defendant Wagner that Plaintiff had come to see him (Williams).
(Id.) Williams also asked Plaintiff to take her complaints
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directly to Defendant Wagner in the future. (Id.) Plaintiff told
Williams that she had spoken directly with Defendant Wagner, but
she would not continue to do so because of his “disrespectful,
arrogant attitude.” (Id.) 7
In mid-September 2016, sometime after the September 9th
warning, Plaintiff filed a formal grievance with N.C. A&T
“regarding her issues with Wagner.” (See Compl. (Doc. 4) ¶ 53.)
On October 17, 2016, Plaintiff received a follow-up letter to
the September 9th warning, informing her that she was performing
at least ninety-percent of her intakes within the twenty-minute
window. (Id. ¶ 54.)
On October 26, 2016, Plaintiff sent a follow-up email about
her formal grievance. (Id. ¶ 55.) Someone responded on
October 27, 2016, stating that an investigative report would be
completed by October 28, 2016. (Id. ¶ 56.) Plaintiff alleges
that no response was communicated to her on October 28th. (Id.
¶ 57.) Instead, she claims that she received a response at some
unalleged time. (Id. ¶ 63.) It was dated November 7, 2016 and
delivered to an employee mailbox that Plaintiff rarely used and
not otherwise transmitted to her. (Id. ¶¶ 63, 65.) N.C. A&T
7
Plaintiff does not allege these facts in the Complaint,
but they are contained in an Equal Employment Opportunity
(“EEO”) intake form from the North Carolina Office of State
Human Resources. (Blakney Aff., Ex. 1 (Doc. 13-1) at 6-9.)
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indicated in the review that Dr. Wagner’s behavior towards
Plaintiff was unacceptable and could create a hostile work
environment if it continued. (See id. ¶ 64.)
On or around November 10, 2016, Plaintiff noticed her
resignation, effective December 31, 2016. (Id. ¶ 62; Defs.’ Mot.
to Dismiss, Ex. 1 (Doc. 7-1).) She alleges that she resigned
because she feared termination, which allegedly would have
caused her to lose her retirement benefits. (Compl. (Doc. 4)
¶¶ 58, 62.) Plaintiff asserts that, had she been aware of the
November 7th response by the time she resigned, “she may have
decided” not to. (Id. ¶ 70.) Plaintiff claims that she was
replaced by a younger and less-qualified certified medical
assistant. (Id. ¶¶ 66-67.) She vaguely alleges that at least one
of her supervisors “advised” that Defendant Wagner intended to
replace the older nurses with younger ones. (Id. ¶ 69.)
Plaintiff alleges generally that Defendant Wagner, as an
agent of Defendant N.C. A&T, and whose alleged misconduct N.C.
A&T ratified, acted “intentionally, with malice, spi[t]e and ill
will towards plaintiff in retaliation for her protected activity
of approaching Dean Williams.” (Id. ¶¶ 59-61.) As a result,
Plaintiff alleges that she suffered a loss in income, the loss
of her health insurance through N.C. A&T, and a reduction in
Social Security and retirement benefits. (Id. ¶ 71.)
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On November 28, 2016, Plaintiff filed a charge of
discrimination with the EEOC. (Blakney Aff. (Doc. 13-1) ¶ 3; Ex.
1 (Doc. 13-1) at 4.) The EEOC charge did not identify Dr. Wagner
by name but described a “new Student Health Center Director,”
(see Ex. 1 to Blakney Aff. (Doc. 13-1) at 4), and an EEO intake
form from the North Carolina Office of State Human resources did
identify Dr. Wagner in a narrative section, (id. at 8-9). (It is
unclear to this court if that EEO form was presented to the EEOC
as well and/or filed with the North Carolina Office of State
Human Resources.) On or around, but not before, December 20,
2016, Plaintiff received a dismissal and notice of rights from
the EEOC, dated December 19, 2016. (See Blakney Aff. (Doc. 13-1)
¶ 4; Ex. 1 (Doc. 13-1) at 5.)
On March 20, 2017, Plaintiff initiated this action in
Guilford County Superior Court by applying for an extension of
time to file a complaint, which was granted on the same day,
giving Plaintiff until April 10, 2017 to file a complaint.
(Blakney Aff. (Doc. 13-1) ¶ 5; Ex. 2 (Doc. 13-1) at 11.)
Plaintiff attached to that application the December 19, 2016
EEOC right-to-sue notice setting forth that she had ninety days
to sue from receipt. (Blakney Aff., Ex. 2 (Doc. 13-1) at 12.)
The application for an extension of time to file a complaint
also failed to identify Dr. Wagner. (See id. at 11.) A civil
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summons to be served on N.C. A&T with the order extending time
to file a complaint was also prepared on March 20, 2017. (Id. at
13.) The civil summons did not identify Defendant Wagner. (Id.) 8
Plaintiff filed her complaint in Guilford County Civil Superior
Court on April 10, 2017. (See Doc. 1-1 at 15.)
On September 29, 2017, Defendants petitioned this court for
removal pursuant to 28 U.S.C. § 1441(a). (Doc. 1 at 1-2.) On
October 26, 2017, Defendants moved to dismiss for lack of
subject-matter jurisdiction, lack of personal jurisdiction, and
for failure to state a claim under Federal Rules of Civil
8
Generally, failure to name a party in an EEOC charge means
that a plaintiff did not exhaust administrative remedies as to
that party. See Alvarado v. Bd. of Trs. of Montgomery Cmty.
Coll., 848 F.2d 457, 458-59 (4th Cir. 1988); see also Causey v.
Balog, 162 F.3d 795, 800 (4th Cir. 1998) (quoting 42 U.S.C. §
2000e–5(f)(1); 29 U.S.C. § 626(e)) (“The individual defendants
are not subject to personal liability because they were not
named as respondents in any of Causey's EEO charges. . . . Under
Title VII and the ADEA, a civil action may be brought only
‘against the respondent named in the charge.’”).
One exception to this rule is the “substantial-identity”
exception, which permits a plaintiff to sue in district court
previously unnamed defendants that are substantially or
functionally identical to named ones. Mayes v. Moore, 419 F.
Supp. 2d 775, 783 (M.D.N.C. 2006). Assuming (without finding)
that Plaintiff could meet the substantial-identity exception
because of the similar interests at stake, the lack of
prejudice, and the employer-employee relationship between the
co-defendants, see id., this court proceeds with the claims
against Defendant Wagner because they will ultimately be
dismissed and because Defendants have not raised the issue.
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Procedure 12(b)(1), 12(b)(2), and 12(b)(6), respectively.
(Defs.’ Mot. to Dismiss (Doc. 7) at 1.)
II.
CLAIMS FOR RELIEF
Plaintiff appears to bring each claim against both
Defendants. She sues Defendant Wagner in his individual and
official capacity as an agent of N.C. A&T, (Compl. (Doc. 4) at
1.)
Plaintiff’s first two claims for relief allege age and sex
discrimination in violation of the ADEA and Title VII,
respectively. (Id. ¶¶ 72-87.) In each of her first two claims
for relief, Plaintiff seeks compensatory damages, as well as
declaratory and injunctive relief, including reinstatement. (Id.
¶¶ 77-79, 85-87.)
Plaintiff’s third claim for relief alleges that Defendants
retaliated against Plaintiff, specifically by means of the
August 25, 2016 verbal warning and the September 9, 2016 written
warning, for engaging in the protected activity of meeting with
Assistant Dean Williams. (See id. ¶¶ 88-92.) Plaintiff alleges
that the retaliation, taken together with the alleged untimely
response to her formal grievance, caused her to lose confidence
in the meaningfulness of the administrative remedies available
to her, and she “concluded that she would be discharged and lose
her retirement benefits if she did not immediately resign.” (Id.
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¶ 91.) In her third claim for relief, Plaintiff seeks monetary
damages and declaratory and injunctive relief, including
reinstatement. (Id. ¶ 92.)
Plaintiff’s fourth claim for relief alleges an
“interference with administrative remedies.” (Id. at 8.)
Plaintiff alleges that she should not be required to exhaust
administrative remedies because they are futile, (id. ¶¶ 93-98);
yet also claims that she filed a timely charge of discrimination
with the EEOC, received a right-to-sue letter, and complied with
the requisite timeline in filing this action, (id. ¶¶ 97-98).
And finally, Plaintiff’s fifth claim for relief alleges punitive
damages. (Id. ¶¶ 99-100.) 9
III. STANDARD OF REVIEW
Defendants move to dismiss the Complaint under Federal Rule
of Civil Procedure 12(b)(6). To survive a Rule 12(b)(6) motion,
“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 plausible on its face if “the plaintiff pleads factual
content that allows the court to draw the reasonable inference
9
In her prayer for relief, Plaintiff also asks this court
to treble any damages resulting from a violation of N.C. Gen.
Stat. § 126 et seq. (Compl. (Doc. 4) at 8-9.)
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that the defendant is liable” and demonstrates “more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556–57). When
ruling on a motion to dismiss, this court accepts the
complaint’s factual allegations as true. Iqbal, 556 U.S. at 678.
Further, this court liberally construes “the complaint,
including all reasonable inferences therefrom, . . . in
plaintiff’s favor.” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004) (citation omitted). This court does not, however, accept
legal conclusions as true, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
Employment discrimination complaints must meet this
plausibility standard; however, the plaintiff is not required to
make out a prima facie case of discrimination or satisfy any
heightened pleading requirements at the motion to dismiss stage.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McClearyEvans v. Md. Dep’t of Transp., 780 F.3d 582, 584–85 (4th Cir.
2015). The plaintiff need only plead facts that permit the court
to reasonably infer each element of the prima facie case.
McCleary-Evans, 780 F.3d at 585; see also Coleman v. Md. Ct. of
App., 626 F.3d 187, 191 (4th Cir. 2010) (stating that a
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complaint must “assert facts establishing the plausibility” that
plaintiff was terminated based on race). If a plaintiff makes
such a showing, the claim will usually survive a motion to
dismiss, and the burden then shifts to the defendant to provide
a legitimate, nondiscriminatory reason for the disparate
treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).
Defendants also move to dismiss the Complaint for lack of
subject-matter and personal jurisdiction pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(2), respectively.
Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff
must prove by a preponderance of the evidence the existence of
subject-matter jurisdiction. See Demetres v. East West Constr.,
Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may
challenge subject-matter jurisdiction facially or factually. See
Kerns, 585 F.3d at 192. In a facial challenge, a defendant
asserts that the allegations, taken as true, are insufficient to
establish subject-matter jurisdiction. See id. In a factual
challenge, a defendant asserts that the jurisdictional
allegations are false, and the court may look beyond the
complaint to resolve the disputed jurisdictional facts without
converting the motion to one for summary judgment. Id. at 19293.
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Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff
must ultimately prove by a preponderance of the evidence that
this court’s personal jurisdiction over a defendant is proper.
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). A plaintiff
need only “make a prima facie showing of a sufficient
jurisdictional basis in order to survive the jurisdictional
challenge.” Id. (citation omitted).
IV.
ANALYSIS
A.
Jurisdictional Issues
Before filing suit under the ADEA or Title VII, a plaintiff
must file a charge of discrimination with the EEOC within 180
days of the alleged unlawful discrimination. 29 U.S.C. § 626(d)
(ADEA); 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1) (Title VII).
The EEOC charge must be in writing and signed under oath. Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing
Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002)). An EEOC
charge need not be painstakingly precise but should describe
generally the alleged discriminatory conduct. See Jones, 551
F.3d at 300 (citations omitted). Any claims brought in a
subsequent lawsuit must be reasonably related to those in the
EEOC charge or able to be “developed by reasonable investigation
of the original complaint.” Chacko v. Patuxent Inst., 429 F.3d
505, 506 (4th Cir. 2005) (citation omitted).
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After filing the EEOC charge, a plaintiff must wait at
least sixty days before initiating a civil action. 29 U.S.C.
§ 626(d)(1). If the EEOC investigates and then dismisses the
charge, then a plaintiff has ninety days from the giving of
notice of such dismissal by the EEOC to file suit. 29 U.S.C.
§ 626(e); 42 U.S.C. § 2000e-5(f)(1).
A plaintiff’s failure to exhaust administrative remedies
concerning an ADEA or a Title VII claim “deprives the federal
courts of subject matter jurisdiction over th[at] claim.” Jones,
551 F.3d at 300-01 (citing Davis v. N.C. Dep’t of Corr., 48 F.3d
134, 138-40 (4th Cir. 1995) (Title VII); Vance v. Whirlpool
Corp., 707 F.2d 483, 486-89 (4th Cir. 1983) (ADEA)).
This court assumes (Defendants advance no substantive
argument) that Defendants challenge this court’s subject-matter
jurisdiction based on a failure to exhaust administrative
remedies and/or that Plaintiff’s claims are untimely. Courts
generally treat such a challenge as a factual one. See, e.g.,
Belyakov v. Med. Sci. & Computing, 86 F. Supp. 3d 430, 440 (D.
Md. 2015) (“[The defendant] asserts a factual challenge that
[the plaintiff] has not, in fact, exhausted his administrative
remedies as he initially claimed.”). Accordingly, this court may
look beyond the pleadings to make its determination, including
to the exhibits attached to the parties’ submissions.
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Aside from the potential misstep as to Defendant Wagner,
see supra at 11 n.8, and in the absence of any argument from
Defendants, Plaintiff appears to have exhausted her
administrative remedies, at least as to Defendant N.C. A&T. She
filed her EEOC claim on November 28, 2016, within 180 days of
the alleged discriminatory acts. 10 She signed the EEOC charge
under penalty of perjury. (Blakney Aff., Ex. 1 (Doc. 13-1) at
4.) And Plaintiff followed the appropriate timeline in the
interim between the EEOC charge and the initiation of this
lawsuit by seeking, within ninety days of receipt of the EEOC’s
notice on December 20, 2016 at the earliest, an extension of
time to file a complaint on March 20, 2017.
Turning to Defendants’ apparent challenge to this court’s
personal jurisdiction, frankly, this court does not see the
basis for Defendants’ challenge. Plaintiff has alleged that
Defendant Wagner is a citizen and resident of Guilford County,
North Carolina, employed at the relevant time by Defendant N.C.
A&T, a component member of the University of North Carolina,
which is a North Carolina state agency.
Therefore, this court is satisfied at this time that it has
subject-matter jurisdiction of this case and personal
jurisdiction over these Defendants. The court will proceed to
10
But see infra at 37 n.19.
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analyze Defendants’ motion to dismiss as one brought pursuant to
Federal Rule of Civil Procedure 12(b)(6).
B.
Defendant Wagner
This court finds that the ADEA and Title VII claims against
Defendant Wagner should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6). Employees, even supervisory ones, are
not liable in their individual capacities for ADEA or Title VII
violations. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 51011 (4th Cir. 1994) (ADEA); Lissau v. S. Food Serv., Inc., 159
F.3d 177, 178 (4th Cir. 1998) (Title VII).
A plaintiff may pursue age discrimination and sexual
harassment claims under the ADEA and Title VII against her
employer. See 29 U.S.C. § 623(a); 42 U.S.C. § 2000e-2(a). The
ADEA defines “employer” to include persons “engaged in an
industry affecting commerce” and employing twenty or more
persons. 29 U.S.C. § 630(b). The ADEA’s definition of “employer”
also includes “any agent of such a person.” Id. Title VII’s
definition of “employer” is similar and also includes “any agent
of such a person.” 42 U.S.C. § 2000e(b). Plaintiff latches on to
this agent reference, suing Defendant Wagner in his individual
capacity and official capacity as N.C. A&T’s agent.
The Fourth Circuit, however, has found that the inclusion
of an employer’s agent in the definition of employer under the
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ADEA and Title VII merely reflects “‘an unremarkable expression
of respondeat superior – that discriminatory personnel actions
taken by an employer’s agent may create liability for the
employer.’” Lissau, 159 F.3d at 180 (emphasis added) (quoting
Birkbeck, 30 F.3d at 510). Further, even “[e]mployees with
authority to make discharge decisions for an employer generally
are . . . not individually liable as an employer’s ‘agent.’”
Lane v. Lucent Techs., Inc., 388 F. Supp. 2d 590, 595 (M.D.N.C.
2005) (citation omitted).
Plaintiff attempts to rely on the Supreme Court’s decision
in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), to
save her claims against Defendant Wagner. Plaintiff argues that
the Fourth Circuit’s precedent is in tension with that decision.
(Pl.’s Br. (Doc. 14) at 17.) This court disagrees. One of the
Supreme Court’s holdings in Vinson – actually quoted by
Plaintiff, (Pl.’s Br. (Doc. 14) at 17) – was that “the Court of
Appeals erred in concluding that employers are always
automatically liable for sexual harassment by their
supervisors.” Vinson, 477 U.S. at 72 (citation omitted). This
court fails to see any tension between the cases; rather, the
cases strike this court as harmonious. In Vinson, before
remanding the case, the Supreme Court considered and analyzed
several possible rules of employer liability, not employee
-20-
liability. See id. at 69-73. The Fourth Circuit’s later
pronouncement that Congress defining “employer” to include an
agent was “an unremarkable expression of respondeat
superior . . . [,]” Birkbeck, 30 F.3d at 510, is consistent with
the Supreme Court’s analysis. While the doctrine of respondeat
superior might make an employer liable for the acts of its
employees, supervisors, and agents, it does not follow, as
Plaintiff would have it, that an employee is liable under the
ADEA or Title VII for those same acts.
Plaintiff alleges that N.C. A&T was her (and Dr. Wagner’s)
employer, and she may not bring the ADEA or Title VII claims
against Defendant Wagner in his individual capacity. Defendant
Wagner’s potential liability, therefore, must be premised upon
his role as an agent of a state agency, and any potential
recovery against him only in his official capacity, see Harvey
v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) – to the extent
that the Fourth Circuit has not foreclosed that option, compare
Hoffman v. Baltimore Police Dep't, 379 F. Supp. 2d 778, 780 n.2,
790 (D. Md. 2005) (relying on Lissau to dismiss Title VII claims
against defendant in his official capacity), with Scannell v.
Bel Air Police Dep't, 968 F. Supp. 1059, 1067 (D. Md. 1997)
(collecting cases) (“[A] long line of authority makes plain that
individuals may be sued in their official capacity if they are
-21-
substantially identified with the defendant organization named
in the EEOC charge.”). 11
Plaintiff attempts to sue Defendant Wagner in his official
capacity as an agent of N.C. A&T. Supervisory employees may be
sued in their official capacities as agents of their state
employer, i.e., not as state officials themselves (which Dr.
Wagner is not). See Turner v. Randolph Cty., 912 F. Supp. 182,
185 (M.D.N.C. 1995) (citing Sauers v. Salt Lake Cty., 1 F.3d
1122, 1125 (10th Cir. 1993)); see also Bryant v. Locklear, 947
F. Supp. 915, 918 (E.D.N.C. 1996) (citation omitted) (stating
that an individual may be sued in his official capacity “if he
or she serves in a supervisory position and exercises
significant control over the plaintiff’s hiring, firing or
condition of employment”).
Plaintiff does not allege that Defendant Wagner was her
supervisor. In fact, on her EEO intake form from the North
Carolina Office of State Human Resources, Plaintiff indicated
11
The Fourth Circuit’s holding in Lissau is limited to
supervisors in their individual capacities, but the Fourth
Circuit’s analysis seems to foreclose liability against
supervisors in any capacity. See Lissau, 159 F.3d at 180-81; see
also Huff v. Sw. Virginia Reg'l Jail Auth., Civil Action No.
1:08cv00041, 2009 WL 395392, at *6 (W.D. Va. Feb. 17, 2009),
adopted by, Civil Action No. 1:08cv00041, 2009 WL 674388 (W.D.
Va. Mar. 12, 2009) (“[T]he ‘official capacity’ to which
[plaintiff] refers is exactly the capacity that the Lissau court
found insufficient to confer liability under Title VII.”).
-22-
Defendant Wagner was not her supervisor. (See Blakney Aff.,
Ex. 1 (Doc. 13-1) at 6.) She explicitly refers to others as her
supervisors – e.g., she visited Assistant Dean Williams,
“together with her supervisor,” (Compl. (Doc. 4) ¶ 30); “Lavicia
Jeter, A&T’s Clinic Supervisor,” (id. ¶ 69); “Blakney’s
supervisor said that she would keep Blakney’s overall evaluation
as ‘outstanding,’” (id. ¶ 25). And Plaintiff addressed her
resignation letter to “Ms. P. Webb FNP – Clinical Director [and]
Ms. L. Jeter – Supervisor.” (Defs.’ Mot. to Dismiss, Ex. 1 (Doc.
7-1).) On the other hand, Plaintiff plausibly alleges that Dr.
Wagner might have had some control over her termination or
condition of employment. (See, e.g., Compl. (Doc. 4) ¶ 32
(“Wagner issue[d] to Blakney a written warning . . .
threaten[ing] plaintiff with dismissal.”).)
Nevertheless, even assuming arguendo that Plaintiff has
sufficiently alleged supervisory authority by Dr. Wagner to make
him amenable to an official-capacity suit, such a claim would
ultimately fail because it “would be wholly duplicative of
Plaintiff’s suit against the State of North Carolina.” Johnson
v. North Carolina, 905 F. Supp. 2d 712, 721 (W.D.N.C. 2012). In
Kentucky v. Graham, the Supreme Court noted that, “[o]fficialcapacity suits . . . ‘generally represent only another way of
pleading an action against an entity of which an officer [or
-23-
employee] is an agent.’” 473 U.S. 159, 165-66 (1985) (quoting
Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 690 n.55
(1978)). Therefore, “[a]s long as the government entity receives
notice and an opportunity to respond, an official-capacity suit
is, in all respects other than name, to be treated as a suit
against the entity.” Graham, 473 U.S. at 167 (citation omitted).
Here, Plaintiff has sued her state employer, N.C. A&T, and N.C.
A&T has received notice and responded.
In sum, Plaintiff’s ADEA and Title VII claims for relief
against Defendant Wagner – which, as will be explained, are
Plaintiff’s first through third claims – will be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6). See Lane,
388 F. Supp. 2d at 595, 601 (granting individual defendants’
motions to dismiss for failure to state a claim where defendants
argued there was no individual liability under the ADEA or Title
VII).
C.
Constructive Discharge
Plaintiff’s fundamental claim against N.C. A&T is
constructive discharge, and this court will consider it first.
Courts generally consider constructive discharge claims separate
and apart from the umbrella of the discrimination claim under
which they are covered because of the different analysis
involved. See, e.g., Williams v. Giant Food Inc., 370 F.3d 423,
-24-
434 (4th Cir. 2004); Martin v. Scott & Stringfellow, Inc., 643
F. Supp. 2d 770, 782 (E.D. Va. 2009).
A plaintiff can assert a claim arising from the loss of her
job under the ADEA and Title VII without showing that her
employer actually discharged her. Constructive discharge occurs
when “an employer deliberately makes an employee’s working
conditions intolerable and thereby forces [her] to quit [her]
job.” Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th
Cir. 1985) (citations and internal quotation marks omitted). A
plaintiff must, therefore, prove two elements, which are the
same in the ADEA and Title VII contexts: “deliberateness of the
employer’s action, and intolerability of the working
conditions.” Id. However, “[b]ecause the claim of constructive
discharge is so open to abuse by those who leave employment of
their own accord, this Circuit has insisted that it be carefully
cabined.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180,
187 (4th Cir. 2004) (citation and internal quotation marks
omitted).
“Deliberateness exists only if the actions complained of
‘were intended by the employer as an effort to force the
employee to quit.’” Bristow, 770 F.2d at 1255 (quoting E.E.O.C.
v. Fed. Reserve Bank of Richmond, 698 F.2d 633, 672 (4th Cir.
1983)). A plaintiff must allege an “employer’s specific intent
-25-
to force [her] to leave,” which can be shown by direct evidence
or inferred through circumstantial evidence. Bristow, 770 F.2d
at 1255 (citations omitted). Difficult working conditions do not
suffice to show an employer’s intent, especially where “all
employees are treated identically.” Id. (citation omitted). An
employee can also establish the intent element by showing that
her resignation was a “reasonably foreseeable consequence” of
the alleged discrimination. See Martin v. Cavalier Hotel Corp.,
48 F.3d 1343, 1355-56 (4th Cir. 1995).
As part of a prima facie ADEA or Title VII claim, a
plaintiff must plausibly allege adverse employment action on the
basis of unlawful age or sex discrimination. See Henson v.
Liggett Grp., Inc., 61 F.3d 270, 274 (4th Cir. 1995); Honor, 383
F.3d at 189. Plaintiff alleges facts that might allow the court
to infer N.C. A&T’s specific intent to force Plaintiff to resign
based on unlawful age discrimination but not on sex
discrimination. Her constructive discharge allegation
nevertheless fails because she does not plausibly allege
intolerable working conditions.
As to an intent based on sex bias, Defendant Wagner’s
lubrication statement, while unpleasant, does not suggest any
sex bias. It was not discriminatory in any manner, and it was
directed to a patient, not Plaintiff. Plaintiff asserts in her
-26-
response brief that the younger nurse who was excelling at
intakes was a male, (Pl.’s Br. (Doc. 14) at 17), 12 and she
alleges in the Complaint that the male nurse was not written up
on September 9th, when the other nurses were. (See Compl. (Doc.
4) ¶ 33.) Even if this court credits the first allegation,
Plaintiff does not allege that the male nurse was not excelling
at patient intakes or that she was performing consistently with
the male nurse. The Complaint contains no other allegations
regarding sexual discriminatory intent, motivation, or actions.
The allegations supporting an intent based on age bias are
a closer call. While none of Defendant Wagner’s direct comments
to Plaintiff had anything to do with age, at this stage of the
proceedings, the court credits Plaintiff’s allegation that she
was advised of Defendant Wagner’s intent to replace the older
nurses with younger ones. 13 While the allegation is somewhat
12
Plaintiff asserts for the first time in her response
brief not only that the younger nurse excelling at intake was a
male nurse, but also that he was “falsifying the records.”
(Pl.’s Br. (Doc. 14) at 17.) This court does not credit such a
noteworthy and unsupported allegation when not alleged in the
Complaint. See Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d
173, 181 (3d Cir. 1988) (reiterating that a complaint may not be
amended by responsive briefs to a motion to dismiss).
13
Although this allegation might be inadmissible hearsay at
trial, the court does not weigh the facts at this stage of the
proceedings and draws all inferences in favor of Plaintiff. See
In re Bristol Myers Squibb Co. Sec. Litig., 586 F. Supp. 2d 148,
171 n.9 (S.D.N.Y. 2008).
-27-
vague and lacking in context, it is enough to cause the court
not to find one way or the other on the issue, which it need not
do because Plaintiff has failed to plausibly allege her working
conditions were intolerable.
The intolerability of working conditions is measured by
“the objective standard of whether a ‘reasonable person’ in the
employee’s position would have felt compelled to resign.”
Bristow, 770 F.2d at 1255 (citations omitted). “Thus, the law
does not permit an employee’s subjective perceptions to govern a
claim of constructive discharge.” Id. The law protects an
employee “from a calculated effort to pressure [her] into
resignation through the imposition of unreasonably harsh
conditions, in excess of those faced by [her] co-workers.” Id.
The caselaw suggests that the working conditions must be
truly unbearable. In Reed v. Airtran Airways, for example,
another district court in this circuit found that plaintiff had
plausibly alleged an objectively intolerable work environment.
531 F. Supp. 2d 660, 667 (D. Md. 2008) (dismissing plaintiff’s
ADEA constructive discharge claim nevertheless because she
failed to “plausibly allege that AirTran deliberately made [her]
working conditions intolerable based on her age”). There,
plaintiff had alleged numerous incidents of verbal and physical
abuse, “including supervisors and coworkers yelling at
-28-
[plaintiff] in front of other employees and customers, mocking
her during an annual review, throwing a stapler at her, hitting
her with a baggage cart, tossing her badge at her, and berating
her when she complained.” Id. The plaintiff had also alleged
several incidents of graffiti on her car and front door –
cumulatively leading to the court’s finding that plaintiff
“legitimately feared for her safety if she returned to work,
thus rendering her working conditions objectively intolerable.”
Id.; see also Giant Food, 370 F.3d at 434 (affirming district
court’s finding that supervisors yelling at plaintiff, telling
her she was a bad manager, chastising her in front of customers,
giving her poor evaluations, and requiring her to work with an
injured back did not establish objectively intolerable working
conditions); McMillian v. Lab. Corp. of Am., 399 F. Supp. 2d
670, 673 (M.D.N.C. 2005) (denying motion to dismiss constructive
discharge claim where plaintiff alleged that he had a disability
impairing his ability to drive at night, which defendants knew
about and allegedly required him to drive at night anyway).
A fundamental problem with Plaintiff’s constructive
discharge theory is that she alleges that she resigned because
of her subjective fear that she would lose her retirement
benefits if she were terminated, not because of objectively
intolerable working conditions. Defendants argue that her
-29-
alleged fear is without basis because retirement benefits are
only forfeited under North Carolina law in limited
circumstances, which are not relevant here. (See (Defs.’ Reply
to Pl.’s Resp. (“Defs.’ Reply Br.”) (Doc. 17) at 4 (citing N.C.
Gen. Stat. § 135-18.10A).) Regardless of the authorities cited
by Defendants, however, Plaintiff alleges no facts to allow the
court to infer that, even if she were terminated, she would have
lost her benefits, and Plaintiff presents no legal authority to
support her speculative conclusions. Plaintiff’s allegations in
this regard are legal conclusions this court is not bound to
accept as true at this stage of the proceedings. See Iqbal, 556
U.S. at 678. Further, even if this court found Plaintiff’s
subjective belief as to this legal conclusion supported by
factual allegations (it does not), an employee’s subjective fear
that she will be terminated, whether due to her age, sex, or
otherwise, does not create an objectively intolerable work
environment. See Alba v. Merrill Lynch & Co., 198 F. App’x 288,
294-95 (4th Cir. 2006) (citing Honor, 383 F.3d at 183-87; Giant
Food, 370 F.3d at 434) (affirming summary judgment for defendant
on ADEA constructive discharge claim where employer allegedly
threatened plaintiff with loss of retirement benefits if he
refused to retire).
-30-
Further, this court does not find that Plaintiff’s work
environment was objectively intolerable. Her claims stem from
Defendant Wagner’s comments, the implementation of the twentyminute intake policy, and the related consequences arising from
her inability to comply with such policy. For the reasons
already provided, this court does not find Defendant Wagner’s
comments rise to the level of creating an intolerable
workplace. 14 And Plaintiff’s own allegations establish that the
allegedly harsh policy with which she was forced to comply was
not more burdensome than that faced by her co-workers. See
Bristow, 770 F.2d at 1255. To the extent that Plaintiff alleges
her situation was unique because she and only one other nurse
were responsible for patient intakes during her shift, that
still leaves one similarly situated employee facing equally
harsh conditions, and any significance to the uniqueness of
Plaintiff’s situation is belied by the alleged fact that the
other nurses (i.e., those not on Plaintiff’s shift), were
written up for intake deficiencies as well. In addition, without
more, the alleged inquiry by N.C. A&T into Ms. Cole’s planned
14
Plaintiff also alleges that Defendant Wagner told her
that she “was in the wrong profession if she thought that she
would not have to come to work [on a snow day],” (Compl. (Doc.
4) ¶ 26), and that, if Plaintiff made a mistake, Defendant
Wagner would inform the patient, (id. ¶ 27). These comments are
not contributory to an intolerable work environment (or
discriminatory).
-31-
retirement creates no inference of intolerable working
conditions.
Plaintiff’s resignation letter, which this court has
already found it proper to consider, see supra at 2 n.2, does
not further her allegations. In that letter, Plaintiff wrote:
“After careful consideration, I have made the decision to resign
in order to retire. Working for N.C. A&T . . . was the dream job
that I thought that I always wanted.” (Defs.’ Mot. to Dismiss,
Ex. 1 (Doc. 7-1).) Without finding that the letter undermines
Plaintiff’s allegations, thereby improperly weighing the
evidence, the court notes that the letter further explains the
limited nature of Plaintiff’s allegations as to an intolerable
workplace.
Even at this motion to dismiss stage, construing the facts
in the light most favorable to Plaintiff, Plaintiff has failed
to allege facts that allow the court to reasonably infer an
objectively intolerable workplace. Plaintiff has simply failed
to allege that a reasonable person would have found Plaintiff’s
job, as it existed after N.C. A&T hired Dr. Wagner, intolerable.
While Plaintiff alleges that her working conditions were
stressful and at times unpleasant, they cannot reasonably be
described as sufficiently intolerable to support a finding that
-32-
Plaintiff has plausibly alleged constructive discharge under the
ADEA or Title VII.
To the extent that Plaintiff’s first three claims for
relief under the ADEA and Title VII rely on a theory of
constructive discharge, they will be dismissed.
D.
Age Discrimination Claim against N.C. A&T 15
The ADEA makes it “unlawful for an employer . . . to
discharge . . . or otherwise discriminate against any individual
[who is at least forty years of age] with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual's age.” 29 U.S.C. §§ 623(a)(1),
631(a).
Bearing in mind that a plaintiff at this stage is only
required to plausibly allege an ADEA violation, she can do so by
plausibly alleging either (i) “direct or indirect evidence
relevant to and sufficiently probative of the issue,” or (ii)
the “judicially created proof scheme originally used in the
Title VII context in McDonnell Douglas Corp. v. Green . . . and
subsequently adapted for use in ADEA cases.” Burns v. AAFMcQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (citations and
15
The ADEA did not abrogate state sovereign immunity; Title
VII did. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). North
Carolina has waived immunity to ADEA claims by its state
employees. N.C. Gen. Stat. § 143-300.35(a)(2).
-33-
internal quotation marks omitted). 16 It is unclear to this court
under which avenue Plaintiff intends to proceed. 17 Based on the
parties’ briefing, the parties appear to assume that Plaintiff
relies upon the McDonnell Douglas avenue. That is, they appear
to assume that Plaintiff does not allege direct or indirect
evidence that N.C. A&T discriminated against her on the basis of
age sufficiently probative to survive a motion to dismiss. In
light of the uncertainty, this court will address the
allegations under both methods.
In the ADEA context, direct evidence is evidence “that the
employer announced, or admitted, or otherwise unmistakably
indicated that age was a determining factor” in an adverse
employment action. Cline v. Roadway Express, Inc., 689 F.2d 481,
16
The Supreme Court “has not squarely addressed whether the
McDonnell Douglas [Title VII] framework . . . also applies to
ADEA actions.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000). Because, as in Reeves, the parties here do
not dispute the issue, id., and because courts generally apply
the McDonnell Douglas framework in the ADEA context, this court
does so here. But cf. Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 174 (2009) (holding that, in an alleged mixed-motives
discrimination claim under the ADEA, the burden of persuasion
never shifts to the defendant).
17
To the extent that Plaintiff attempts to allege a claim
of hostile work environment, this court finds summarily that
Plaintiff’s allegations fail to allow the court to reasonably
infer that any alleged harassment was sufficient to meet the
“high bar [needed] to satisfy the severe or pervasive test” in
establishing a hostile work environment claim under the ADEA or
Title VII. See E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306,
315 (2008).
-34-
485 (4th Cir. 1982). “If believed, direct evidence would prove
the existence of a fact . . . without any inference or
presumptions.” Gaines v. McDonald, 152 F. Supp. 3d 464, 470
(M.D.N.C. 2015) (citation and internal quotation marks omitted).
Plaintiff’s allegation that her supervisor advised that Dr.
Wagner intended to replace the older nurses with younger ones
could be direct evidence probative of the issue. Even taking the
allegation as true at this motion to dismiss stage, however,
without any context as to the timing of the statement or the
relationship between Dr. Wagner’s intent, the supervisor’s
advisement of such intent, and any actions as to Plaintiff, the
court is unable to find that the isolated allegation is direct
evidence of discrimination. See McCray v. Pee Dee Reg'l Transp.
Auth., 263 F. App'x 301, 306 (4th Cir. 2008) (certain citations
omitted) (citing Birkbeck, 30 F.3d at 511-12) (“While isolated
statements can constitute direct evidence of discrimination, the
statements must be contemporaneous to the adverse employment
action.”). The allegation requires the presumption that Dr.
Wagner was a decision maker and an inference of causation
between the adverse employment action and Dr. Wagner’s intent
(which Plaintiff might ultimately be able to show at a later
stage). See Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152-53
(8th Cir. 2007) (finding that vice president’s statement that he
-35-
“intended to hire ‘young studs’ to replace the older sales
people” was not direct evidence because plaintiff had not
demonstrated a specific link between the comments and his
termination).
While Dr. Wagner’s alleged intent, taken together with the
indirect evidence regarding the inquiry into Ms. Cole’s
retirement and that a younger nurse was said to be excelling at
the intakes, are cumulatively somewhat probative of the issue,
the court ultimately concludes, drawing all reasonable
inferences in Plaintiff’s favor, that Plaintiff’s age
discrimination claim is plausibly alleged under the framework
put forth by Plaintiff, relying on circumstantial evidence. See
Bodkin v. Town of Strasburg, 386 F. App'x 411, 413 (4th Cir.
2010) (citing Reeves, 530 U.S. at 142; Mereish v. Walker, 359
F.3d 330, 334 (4th Cir. 2004)) (“ADEA claims sought to be proven
using circumstantial evidence are analyzed under the burdenshifting framework established in McDonnell Douglas.”).
Under the ADEA, a plaintiff can establish a prima facie
case of age discrimination by showing that: (i) she was a member
of the protected age group by being at least forty years old;
(ii) she suffered an adverse employment action; (iii) at the
time of such adverse employment action(s), she was performing
her job at a level that met her employer’s legitimate
-36-
expectations; and (iv) if discharged or demoted, her position
remained open or she was replaced by someone of comparable
qualifications that was substantially younger; if not
discharged, that she was treated worse than similarly situated
and substantially younger workers. 18 See Burns, 96 F.3d at 731;
McMillian, 399 F. Supp. 2d at 673. Finally, to establish an ADEA
claim, “a plaintiff must prove [at trial] that age was the ‘butfor’ cause of the employer's adverse decision[,]” Gross, 557
U.S. at 176 (citation omitted); however, at the motion to
dismiss stage, Plaintiff need only allege that the adverse
employment action was motivated by age. See Shenton v. Aerojet
Rocketdyne, Inc., Case No. 3:18-cv-00038, 2018 WL 4289326, at *3
& n.3 (W.D. Va. Sept. 7, 2018) (certain citations omitted)
(citing Duffy v. Belk, 477 F. App’x 91, 96 (4th Cir. 2012)).
18
In the ADEA context, the replacement employee or the
comparator employee need not be outside the protected class,
i.e., younger than forty, so long as she is substantially
younger. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,
312 (1996); see also Laber v. Harvey, 438 F.3d 404, 430 (4th
Cir. 2006) (citation omitted). The parties dispute whether the
replacement employee needs to be comparably qualified. (Even
though Plaintiff’s own cited authority contains the requirement.
(Pl.’s Br. (Doc. 14) at 12 (citing Hill v. Lockheed Logistics
Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)).)) Only one of
the alleged adverse employment actions relates to discharge or
demotion, and the court has already concluded that Plaintiff’s
constructive discharge claim will not survive the motion to
dismiss. Therefore, the court need not address any replacement
employee’s qualifications.
-37-
Plaintiff satisfies the first element; she was forty years
old during the relevant time and is thus a member of a protected
class under the ADEA, see 29 U.S.C. § 631(a). The remaining
three elements require more analysis.
1.
Adverse Employment Actions
Construing the Complaint in the light most favorable to
Plaintiff, she alleges a few potentially adverse employment
actions from May 2016 to November 2016. Plaintiff specifically
asserts that the following are adverse employment actions: (i)
the May 15, 2016 performance downgrade; 19 (ii) the August 25,
2016 verbal warning; (iii) the September 9, 2016 written
19
There is an issue of timeliness with the May 15, 2016
downgrade because Plaintiff did not file her EEOC charge within
180 days of that downgrade, and she did not allege continuing
discrimination in the EEOC charge. (See Blakney Aff., Ex. 1
(Doc. 13-1) at 4.) Nevertheless, the court addresses the
downgrade and finds it was not an adverse employment action.
-38-
warning; (iv) the failure to respond on October 28, 2016; 20 and
(v) the November 10, 2016 constructive discharge. (Pl.’s Br.
(Doc. 14) at 2.) This court has already found that Plaintiff has
not sufficiently alleged constructive discharge, and therefore
she has not sufficiently alleged an adverse employment action
under that theory. It will now consider the performance
downgrade and verbal and written warnings.
An adverse employment action is discriminatory conduct that
negatively affects the “terms, conditions, or benefits” of
employment. Munday v. Waste Mgmt. of N.A., Inc., 126 F.3d 239,
20
The court comprehends Plaintiff’s allegation regarding
the timeliness of N.C. A&T’s investigative response to be that
Plaintiff might not have resigned if the response was delivered
on October 28th. The court considered the alleged adverse
employment action of the untimely response in finding that
Plaintiff has failed to sufficiently allege her constructive
discharge claim. Absent an allegation that it was otherwise
obligated to respond by a deadline, this court sees no
independent significance to the timeliness of N.C. A&T’s
response. Relatedly, the court notes Plaintiff’s allegation that
N.C. A&T delivered the report to an employment mailbox, but the
Complaint contains no allegation that such delivery was improper
or meant to evade Plaintiff’s attention, as opposed to merely
inconvenient. Plaintiff’s failure to plead a date certain as to
when she received the investigative report also leaves the court
pondering why Plaintiff could not have rescinded her
resignation, not effective December 31, 2016, after she received
the investigation report.
-39-
243 (4th Cir. 1997). 21 Typically, “[a]n adverse action is one
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.’” Hoyle v. Freightliner, LLC,
650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Merely because an
employee disagrees with or finds an employer’s decision
unappealing does not make it an adverse employment action. See,
e.g., Von Gunten v. Md., 243 F.3d 858, 867 (4th Cir. 2001),
abrogated by, Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006).
Action less severe than discharge or demotion can qualify.
For example, a downgrade of a performance evaluation can be
actionable when it alters the terms or conditions of employment.
See, e.g., James v. Booz–Allen & Hamilton, Inc., 368 F.3d 371,
377 (4th Cir. 2004) (citation omitted). However, “absent
demotion, firing, or the failure to hire and promote, other
adverse employment actions must generally impact an employee's
21
Munday involved an alleged adverse employment action in
the Title VII context, but the analysis of what constitutes an
adverse employment action is the same in the Title VII and ADEA
contexts. See, e.g., Wilson v. City of Chesapeake, 290 F. Supp.
3d 444, 457-61 (E.D. Va.), aff'd, 738 F. App'x 169 (4th Cir.
2018).
-40-
pay, potential for continued employment, or likelihood of
promotion within the organization.” Wilson, 290 F. Supp. 3d at
457; see also Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir.
1999) (concluding that, “absent any decrease in compensation,
job title, level of responsibility or opportunity for
promotion,” an adverse employment action must have a significant
detrimental effect on a plaintiff).
Plaintiff asserts that the May 15th performance downgrade,
the August 25th verbal warning, and the September 9th written
warning were adverse employment actions under the ADEA.
A downgrade of a work evaluation can affect a term,
condition, or benefit of employment “if it has a tangible effect
on the terms or conditions of employment.” James, 368 F.3d at
377 (citations omitted). To amount to an adverse employment
action, the employer subsequently must use the downgraded
evaluation to “detrimentally alter the terms or conditions of
the recipient’s employment.” Id. (citations and internal
quotation marks omitted). “An evaluation merely causing a loss
of prestige or status is not actionable.” Id. (citation
omitted).
Here, Plaintiff alleges that her performance evaluations
were more than satisfactory until N.C. A&T employed Dr. Wagner.
She alleges she had never received a warning in any form prior
-41-
to Defendant Wagner’s arrival. Her April 4, 2016 review was
outstanding, despite Defendant Wagner having been employed by
N.C. A&T for approximately eight months. Shortly thereafter,
Defendant Wagner told Plaintiff that “nobody is outstanding” and
apparently caused her next evaluation to be downgraded to “very
good,” noting that she needs to “pay attention to detail.”
(Compl. (Doc. 4) ¶¶ 23-24; see Blakney Aff., Ex. 1 (Doc. 13-1)
at 4.) Plaintiff avers that, because her supervisory personnel
informed her (at some unalleged time and in some unalleged
manner) that Defendant Wagner planned to replace the older
nurses with younger ones, that Defendant Wagner had a motive for
the otherwise unexplained performance downgrade. But Defendant
Wagner told Plaintiff why he allegedly caused her evaluation to
be downgraded: because he believed that nobody is outstanding in
the context of performance evaluations, a harsh, yet not
uncommon view for a manager to take, fairly or not. And
Plaintiff’s own allegations establish that she was not the only
one subject to this more demanding regime.
Further, Plaintiff argues in her brief facts not alleged in
her Complaint or contained in her EEOC papers. That is, that the
May 15th performance evaluation deprived her of a raise that she
had previously earned. (Pl.’s Br. (Doc. 14) at 2.) This court
generally would not consider such a significant allegation
-42-
raised for the first time in an opposition brief. See Zimmerman,
836 F.2d at 181 (3d Cir. 1988) (quoting Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)) (“[I]t is
axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss.”); cf. Barclay White Skanska,
Inc. v. Battelle Mem'l Inst., 262 F. App'x 556, 563 (4th Cir.
2008) (citations omitted) (“A plaintiff may not amend her
complaint through argument in a brief opposing summary
judgment.”) Without such allegation, Plaintiff fails to allege
that N.C. A&T used the downgraded evaluation to detrimentally
alter the terms and conditions of Plaintiff’s employment, and
actually alleges that her supervisor told her she would keep
Plaintiff’s overall evaluation as outstanding. See James, 368
F.3d at 377-78 (finding that a “highly effective” rating that
was one level below plaintiff’s previous annual evaluation yet
generally positive – and in connection with which plaintiff
still “received both a pay-raise and a bonus” – was not a review
that detrimentally altered the terms or conditions of his
employment). This court therefore finds that the May 15th
downgrade is not an adverse employment action.
Plaintiff alleges no facts to allow the court to reasonably
infer that N.C. A&T took any detrimental action altering the
terms or conditions of Plaintiff’s employment following the
-43-
verbal warning on August 25, 2016. Plaintiff asserts that it was
in retaliation for her meeting with Assistant Dean Williams, but
the court will address Plaintiff’s retaliation claim later. This
court finds that the August 25th verbal warning was not an
adverse employment action.
However, Plaintiff plausibly alleges that the September 9,
2016 written warning caused detrimental action. Plaintiff
alleges in the Complaint that the September 9th warning
threatened her with dismissal and caused N.C. A&T to deny her a
raise. This constitutes an action impacting Plaintiff’s pay and
potential for continued employment. See Wilson, 290 F. Supp. 3d
at 457. As such, this court finds that the September 9th written
warning qualifies as an adverse employment action.
2.
Job Performance
Plaintiff must plausibly allege that, at the time of the
adverse employment action, she was performing her job at a level
that met her employer’s legitimate expectations. See Burns, 96
F.3d at 731. There are two important factors. First, Plaintiff
must be satisfactorily performing her job duties “at the time of
the adverse employment action.” Bodkin, 386 F. App'x at 414
(citation omitted). Second, the decision maker’s perception of
the job performance is the one that matters. See Smith v. Flax,
618 F.2d 1062, 1067 (4th Cir. 1980).
-44-
Defendants argue that the Complaint fails to allege that
Plaintiff was performing at a level that met N.C. A&T’s
legitimate expectations. (Defs.’ Br. (Doc. 8) at 11.) Defendants
assert that this is best evidenced by Plaintiff’s admitted
inability to meet the twenty-minute standard. (Id.) Plaintiff
contends that her job performance met her employer’s reasonable
expectations, relying on her allegations of stellar job
performance before Dr. Wagner’s arrival and leading up to the
performance downgrade, as well as her overall evaluation
remaining outstanding immediately after the May 15th downgrade.
(Pl.’s Br. (Doc. 14) at 12-13, 15.) Plaintiff also argues that
that the twenty-minute intake window was an unreasonable
expectation. (Id. at 15.)
The court has already found that only the September 9th
written warning was an adverse employment action. Therefore,
while Plaintiff’s job performance was satisfactory until at
least May 2016, and likely until the twenty-minute procedure was
formally implemented in June 2016, the more relevant period of
this inquiry is around August and September 2016. See Bodkin,
386 F. App'x at 414. By that time, Plaintiff might not have been
performing her job duties at a level that met N.C. A&T’s
expectations, at least in its perception. See Smith, 618 F.2d at
1067.
-45-
But there appear to be fair questions as to whether the
expectations were legitimate and reasonable and whether
Plaintiff was failing to meet N.C. A&T’s expectations or those
solely of Defendant Wagner. This inquiry requires a resolution
of facts that is inappropriate at this stage. See Moser v.
Driller’s Serv., Inc., 988 F. Supp. 2d 559, 564 n.10 (W.D.N.C.
2013) (citing Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515–17
(4th Cir. 2006)) (“When the legitimate expectations of an
employer are at issue . . . both the employer and the employee
may present evidence of the expectations themselves and their
legitimacy.”). Therefore, the court cannot find that Plaintiff
has failed to plausibly allege that she was performing her job
at a level that met her employer’s legitimate expectations.
3.
Similarly Situated and Substantially Younger
Workers
Plaintiff must allege facts that allow the court to
reasonably infer that she “was treated more harshly than other
similarly situated younger employees.” See Alba, 198 F. App’x at
294 (citing Hill, 354 F.3d at 285; Cook v. CSX Transp. Corp.,
988 F.2d 507, 511 (4th Cir. 1993)). This inquiry involves
comparing a plaintiff’s treatment with the treatment of
substantially younger persons for similar conduct. Alba, 198 F.
App’x at 295; McMillian, 399 F. Supp. 2d at 673. That is, a
plaintiff must sufficiently allege that a comparator employee
-46-
engaged in similar conduct and that the employer treated the
comparator better than the plaintiff. See Alba, 198 F. App’x at
295.
Plaintiff alleges that N.C. A&T’s human resources
department told Ms. Cole (not Plaintiff) that one significantly
younger nurse was excelling at the new patient-intake process.
Plaintiff does not allege that the younger nurse engaged in
similar conduct, i.e., failed to meet the new intake procedures.
If in fact the younger nurse was excelling at the new intake,
then that might explain any disparate treatment, not an age
bias. If in fact the younger nurse was not excelling and was
failing to meet the patient intake at a similar rate as
Plaintiff, then that supports a claim of disparate treatment.
But, because of the inference of age bias created by the
allegation of Dr. Wagner’s discriminatory intent to replace the
older nurses with younger ones, these are inquiries better
suited for the summary judgment stage, and Plaintiff has alleged
enough here. See McMillian, 399 F. Supp. 2d at 674 (reiterating
that the McDonnell Douglas analysis “is a fact intensive
analysis . . . not normally suitable ground to cover in deciding
a motion to dismiss”). Given the age bias alleged, the court
declines to engage in a sua sponte analysis, or to credit
-47-
Defendants’ arguments concerning the non-discriminatory
justifications at this time.
Plaintiff has sufficiently alleged that the September 9th
written warning was an adverse employment action. The court sees
her satisfactory job performance as a factual issue not to be
resolved at this juncture. And the allegations regarding the
comparators, when coupled with the allegations of Dr. Wagner’s
discriminatory intent (which can be imputed to N.C. A&T at this
stage), are sufficient. Plaintiff has alleged enough to allow
this court to reasonably infer unlawful age discrimination.
Defendants’ motion to dismiss Plaintiff’s first claim for
relief under the ADEA will be denied as to the September 9th
written warning and resulting adverse actions, such as its
impact on Plaintiff’s compensation.
-48-
E.
Sex Discrimination Claim Against N.C. A&T 22
Title VII makes it an “unlawful employment practice” to
“discharge any individual, or otherwise to discriminate against
any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). As
under the ADEA, “[a] plaintiff may establish a discrimination
claim under Title VII through two avenues of proof.” Thomas v.
Delmarva Power & Light Co., 715 F. App’x 301, 302 (4th Cir.),
cert. denied, ____ U.S. ____, 139 S. Ct. 245 (2018) (citation
omitted). A plaintiff can proceed under the mixed-motive
22
Because Plaintiff did not respond to Defendants’ specific
argument to dismiss Plaintiff’s Title VII sex discrimination
claim, Defendants assert that this court should treat their
motion on this claim as uncontested. (Defs.’ Reply Br. (Doc. 17)
at 2.) They rely on Local Rule 7.3(k) and two unreported
decisions from this district. (Id.) One of those decisions, Page
v. Select Portfolio Servicing, Inc., was a Magistrate Judge’s
report and recommendation adopted by this court. No. 1:12CV900,
2013 WL 4679428, at *1 (M.D.N.C. Aug. 30, 2013), adopted by, No.
1:12CV900, 2013 WL 5462282 (M.D.N.C. Sept. 30, 2013). Defendants
misconstrue the Local Rules, the Magistrate Judge’s decision in
Page, and the court’s language – which Defendants selectively
quote – in Howell v. N.C. Cent. Univ., No. 1:16CV576, 2017 WL
2861133, at *9 (M.D.N.C. July 5, 2017), as requiring the court
to treat the specific issue as uncontested. Suffice it to say
that neither Local Rule 7.3(k) nor this court’s precedent
requires such a result.
-49-
framework, 23 establishing a claim of sex discrimination through
direct or circumstantial evidence that “discrimination motivated
the employer’s adverse employment decision.” Id. (citation and
internal quotation marks omitted). Or a plaintiff can proceed
under the McDonnell Douglas framework. Id. (footnote and
citation omitted).
Again, it appears to this court that Plaintiff is
proceeding under the latter framework, but, unlike the ADEA
claim, the court sees no allegations that sex discrimination was
a motivating factor in any alleged adverse employment actions.
Plaintiff alleges that the male nurse did not receive a written
warning on or around September 9th when other nurses did, and
thus was treated differently during the performance review
process. But she alleges no facts that allow the court to
reasonably infer that the basis for such treatment was at all
motivated by sexual discrimination. The court therefore,
proceeds on the assumption that Plaintiff is attempting to
plausibly allege her prima facie case under the McDonnell
Douglas framework.
23
In the non-retaliatory Title VII discrimination context,
a plaintiff need not establish that sex was the but-for cause of
the employer’s adverse decision, only a “motivating factor.”
Gross, 557 U.S. at 175 (citing 42 U.S.C. §§ 2000e-2(m) and
2000e-5(g)(2)(B)).
-50-
The analysis under Title VII is similar to that under the
ADEA, the only difference being that a plaintiff must plausibly
allege in the Title VII sex discrimination context different
treatment of a similarly situated employee that is actually
outside of the protected class. Coleman, 626 F.3d at 190. 24 Thus,
little analysis is needed, as the court incorporates the
analysis on the first three elements of Plaintiff’s ADEA
discrimination claim here.
Plaintiff satisfies the first element of the prima facie
case. As a woman, she is a member of a protected class. Garrow
v. Economos Props., Inc., 242 F. App’x 68, 70-71 (4th Cir. 2007)
(citation omitted). The court has already found that the
September 9th written warning was an adverse action, and that
the other alleged adverse actions were not. The court again
24
This court has already found that Plaintiff did not
sufficiently allege constructive discharge. Even if she had, the
court notes that any claim relying on the discharge as an
adverse employment action would likely fail in the Title VII
discrimination context for the additional reason that she fails
to allege that she was replaced by someone outside of the
protected class, i.e., a male. See Miles v. Dell, Inc., 429 F.3d
480, 486-89 (4th Cir. 2005) (collecting cases) (“[T]his rule is
so well-settled in this circuit that we have previously affirmed
dismissals under prong four without even issuing published
decisions”; yet noting exceptions to prong four not applicable
here); see also Alba, 198 F. App’x at 294 (applying the McDonnel
Douglas framework to a constructive discharge claim). Plaintiff
alleges that she was replaced with a much younger certified
medical assistant, but not that he was a man.
-51-
makes no finding of implausibility as to Plaintiff’s job
performance.
As to different treatment of similarly situated employees
outside of the protected class, Plaintiff alleges only that a
single male nurse was not written up when the other nurses were
on September 9, 2016. Plaintiff does not allege that the other
nurses who received written warnings were all female, but the
court can reasonably infer as much. As with the younger nurse
who was extolled as excelling at intake, 25 however, Plaintiff
fails to allege that the lone male nurse should have been
written up. She does not allege that he was failing to check in
100% of patients within twenty minutes or that he did not meet
the criteria for excelling. She later adds in her response brief
that the male nurse was falsifying records yet still noted as
excelling. (Pl.’s Br. (Doc. 14) at 17.) But the court declines
to credit an unsupported and conclusory allegation concerning
falsification of records that was not contained in the Complaint
or any of the EEOC documents. See Zimmerman, 836 F.2d at 181.
Further, there is no indication that N.C. A&T or any of the
25
The young nurse extolled as excelling and the male nurse
who was not written up appear to be the same person. (See Pl.’s
Br. (Doc. 14) at 17.)
-52-
supervisors were aware of any falsifications at the time of the
evaluations.
Unlike Plaintiff’s age-bias allegations that support an
inference of discriminatory intent, however, there are no
allegations regarding any intent or motivation based on sex bias
to buttress such an inference for Plaintiff’s Title VII sex
discrimination claim. Plaintiff’s second claim for relief
alleging discrimination under Title VII will be dismissed. 26
26
Alternatively, to the extent that Plaintiff attempts to
sufficiently establish a prima facie case of discriminatory
discipline to survive a motion to dismiss (a point that
Defendants raise as a precaution, (Defs.’ Br. (Doc. 8) at 1011)), she has failed to do so under the ADEA or Title VII. In
that context, a plaintiff must establish facts to allow this
court to reasonably infer that the prohibited conduct in which
she engaged was comparable in seriousness to misconduct of those
outside the protected class. Thomas, 715 F. App’x at 303 (citing
Hoyle, 650 F.3d at 336) (directing district courts to “compare
only discipline imposed for like offenses” and that “the
seriousness of the[] respective offenses must be clearly
established”). Aside from the unsupported and unalleged
assertion that a younger male nurse was falsifying records yet
noted as excelling at intake, Plaintiff fails to allege any
misconduct by those outside of the protected class.
-53-
F.
Retaliation 27
The ADEA and Title VII also prohibit retaliation by
employers against employees for opposing any unlawful employment
practices or for participating in any manner in any
investigation into discriminatory conduct under the ADEA or
Title VII. 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 2000e-3(a)
(Title VII).
To survive a motion to dismiss in the ADEA and Title VII
retaliation context, the burden is on the plaintiff to plausibly
allege that: (i) she engaged in a protected activity; (ii) an
employer took adverse employment action against her; and (iii)
there exists a causal link between the protected activity and
the adverse employment action. Laber, 438 F.3d at 432 (ADEA);
Coleman, 626 F.3d at 190 (citation omitted) (Title VII); see
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d
Cir. 2015). If a plaintiff makes such a showing then, under the
burden-shifting of McDonnell Douglas, an employer must proffer
“a legitimate, non-discriminatory reason” for the alleged
27
It is unclear from the Complaint under what authority
Plaintiff brings her retaliation claim. In her opposition brief,
she clarifies that she brings her retaliation claim under the
ADEA and Title VII. (Pl.’s Br. (Doc. 14) at 7-8.) The court will
construe Plaintiff’s retaliation clam as she clarifies. The
court thinks it likely (without finding) that a retaliation
claim brought under other authority against N.C. A&T might run
into sovereign immunity issues.
-54-
adverse employment action. Laber, 438 F.3d at 432 (citations
omitted). Generally, however, an employer’s legitimate, nondiscriminatory reason cannot be established from the face of the
complaint, and the court’s inquiry at this stage is merely
whether an alternative, non-discriminatory explanation renders
the allegations implausible. Woods v. City of Greensboro, 855
F.3d 639, 650, 652 (4th Cir.), cert. denied sub nom., City of
Greensboro v. BNT Ad Agency, LLC, ____ U.S. ____, 138 S. Ct. 558
(2017).
“[I]n the context of a retaliation claim, a ‘protected
activity’ may fall into two categories, opposition and
participation.” E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d
397, 406 (4th Cir. 2005). The conduct alleged here strikes the
court as oppositional. “The Fourth Circuit has articulated an
expansive view of what constitutes oppositional conduct,”
including informal complaints and grievances, and “voicing one’s
opinions in order to bring attention to an employer’s
discriminatory activities.” Royster v. Gahler, 154 F. Supp. 3d
206, 234 (D. Md. 2015) (internal quotation marks and citation
omitted). The oppositional activity must be directed to an
unlawful employment practice, whether that practice is actually
unlawful or one that an employee reasonably believes to be
unlawful. See DeMasters v. Carilion Clinic, 796 F.3d 409, 417
-55-
(4th Cir. 2015) (citations omitted). Thus, the “threshold for
oppositional conduct is not onerous.” Id. Rather, “‘[w]hen an
employee communicates to her employer a belief that the employer
has engaged in . . . a form of employment discrimination, that
communication virtually always constitutes the employee’s
opposition to the activity.’” Id. (quoting Crawford v. Metro.
Gov’t of Nashville and Davidson Cty., 555 U.S. 271, 276 (2009)).
Plaintiff asserts that the August 18, 2016 meeting with
Assistant Dean Williams was protected activity. Given the
expansiveness of protected activity, this court has little
trouble finding that this meeting between Plaintiff, a
supervisor, and Assistant Dean Williams constituted protected
activity, at least in the Title VII context. (The court notes
that there is not a single allegation that Plaintiff complained
to anyone about age discrimination.) While this court agrees
with Defendants that Plaintiff alleges very little concerning
the substance of the discussion with Assistant Dean Williams,
she alleges that she met with him to address her concerns about
sexual comments, which this court finds that she believed to be
discriminatory.
As to the second element, what constitutes an adverse
action in the ADEA and Title VII retaliation context is broader
than in the substantive ADEA and Title VII discrimination
-56-
context. See Burlington N. & Santa Fe, 548 U.S. at 64 (citation
omitted) (“[T]he antiretaliation provision, unlike the
substantive provision, is not limited to discriminatory actions
that affect the terms and conditions of employment.”). But not
all retaliation is actionable; rather, “a plaintiff must show
that a reasonable employee would have found the challenged
action materially adverse,” meaning that it “might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Id. at 68 (internal citation and quotation
marks omitted). The standard “is tied to the challenged
retaliatory act, not the underlying conduct that forms the basis
of the Title VII complaint.” Id. at 69.
Plaintiff asserts several adverse employment actions, many
taken by Defendant Wagner, against her in the retaliation
context: (i) the May 2016 evaluation downgrade from outstanding
to very good; (ii) the August 25, 2016 verbal warning; (iii) the
September 9, 2016 written warning, threatening Plaintiff with
dismissal and preventing a raise; and (iv) the constructive
discharge. (Pl.’s Br. (Doc. 14) at 8-9.) The court has already
found that the May performance downgrade, the August verbal
warning, and the constructive discharge were not adverse
employment actions in the ADEA and Title VII substantive
discrimination context and that the September 9th written
-57-
warning was. Because retaliatory adverse employment action
encompasses a broader range of conduct, the court necessarily
finds that the September 9th written warning was an adverse
employment action here as well. While a constructive discharge
can be an adverse action in the retaliation context, see Holsey
v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984), the showing
required is identical to that in the ADEA and Title VII
discrimination context, see id. Therefore, the court finds that
Plaintiff’s alleged constructive discharge was not an adverse
employment action in the retaliation context either. As to the
May downgrade and the August verbal warning, in this context as
well, “a reprimand, without some collateral consequence, cannot
be an adequate basis for a retaliation claim.” Wilson, 290 F.
Supp. 3d at 462 (quoting Emami v. Bolden, 241 F. Supp. 3d 673,
684-85 (E.D. Va. 2017)) (“A negative performance review,
alone . . . does not constitute a materially adverse action.”).
The court likewise finds that these were not adverse employment
actions in the retaliation context. The court will also find
that Plaintiff has not plausibly alleged the May 15th downgrade
and the August 25th warning were causally linked to Plaintiff’s
protected activity.
As to the causal-link element of a retaliation claim, a
plaintiff must allege facts to show, “at the very least, that
-58-
the defendant was aware of her engaging in protected activity.”
Constantine v. Rectors and Visitors of George Mason Univ., 411
F.3d 474, 501 (4th Cir. 2005). Courts often look to the temporal
proximity to infer a causal connection between the protected
activity and the retaliatory act. See, e.g., Royster, 154 F.
Supp. 3d at 234 (quoting Constantine, 411 F.3d at 501).
The Complaint adequately establishes N.C. A&T’s knowledge
of the protected activity. Plaintiff alleges that she took her
grievance to Assistant Dean Williams, while accompanied by an
immediate supervisor. Thus, at least two relatively senior N.C.
A&T employees had knowledge. The allegations that Defendant
Wagner threateningly stated, on or around September 9, 2016,
that Plaintiff had already met with her supervisors and that he
told Plaintiff that she should have brought her concerns to him,
not the Assistant Dean, establishes Defendant Wagner’s knowledge
by the time of the September 9th written warning.
As to temporal proximity, the Complaint alleges that
Plaintiff and one of her supervisors first met with Assistant
Dean Williams on August 18, 2016, to raise her concerns about
Defendant Wagner, including Wagner’s allegedly inappropriate
sexual comments. The Complaint alleges that Defendant Wagner
verbally warned Plaintiff regarding her intake deficiencies on
August 25, 2016, and the Complaint alleges that she was
-59-
threatened with dismissal via a written warning concerning the
same intake issues on September 9, 2016. Plaintiff alleges that
she had another conversation with Defendant Wagner on or around
the same date. The Complaint establishes sufficient temporal
proximity to plausibly allege a causal connection between the
protected activity and the September 9th adverse employment
action. See Constantine, 411 F.3d at 501 (finding allegations
suggesting a four-month lapse between protected activity and
retaliation adequate to survive a motion to dismiss). 28
Relevant caselaw suggests that the degree of temporal
proximity present in this case between the protected activity
and adverse action is sufficient by itself to allow Plaintiff’s
Title VII retaliation claim to proceed. Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (collecting cases) (“The cases
that accept mere temporal proximity between an employer's
knowledge of protected activity and an adverse employment action
as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be ‘very
close[.]’”); see also Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (quoting
28
To the extent that the May 15, 2016 downgrade could be
viewed as an adverse employment action, the court finds no
causal link between the protected activity on August 18, 2016,
and the downgrade that preceded it by three months.
-60-
Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)
(“This Court has held that evidence that the alleged adverse
action occurred shortly after the employer became aware of the
protected activity is sufficient to ‘satisf[y] the less onerous
burden of making a prima facie case of causa[tion].’”).
Nevertheless, this court is unable to plausibly infer the
requisite causal link between the protected activity and the
September 9th warning.
Plaintiff alleges that she went to see Assistant Dean
Williams on August 18th and that she – along with other nurses,
except for a lone male nurse – were written up for their intake
deficiencies on September 9th. The Complaint contains no
allegation that the other nurses had engaged in any type of
protected activity and thus significantly undercuts the causal
link. Plaintiff specifically alleges that the written warning
was regarding her failure to perform multiple patient intakes
under twenty minutes. She admittedly was unable to do that every
time (fair or not), and “[a] negative comment cannot have been
retaliatory if it was true . . . .” Wilson, 290 F. Supp. 3d at
462. It appears that Plaintiff was disciplined due to her
failure to comply with a procedure that was applicable to all
relevant employees, one demanding patient intake within twenty
minutes. See Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d
-61-
261, 272 (4th Cir. 2001) (citing Von Gunten, 243 F.3d at 869)
(“[T]erms, conditions, or benefits of a person’s employment do
not typically, if ever, include general immunity from the
application of basic employment policies or exemption from . . .
disciplinary procedures.”). 29 Although this factor, standing
alone, might be insufficient to undermine temporal proximity,
other allegations further undermine the inferences to be drawn
from temporal proximity.
It appears to this court from the Complaint that the new
intake procedure was a topic of consternation within the
relevant N.C. A&T community during the summer of 2016. Because
the adverse employment action taken against Plaintiff related to
issues that arose before her protected activity, it negates to
some extent the inferences drawn from the temporal proximity.
Cf. Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309
29
This court does not find this analysis inconsistent with
its finding that Plaintiff sufficiently alleged age
discrimination. An age bias might or might not have caused the
September 9th written warning to Plaintiff and others. Plaintiff
has plausibly alleged enough to allow the court to infer that it
could have. The court finds that Plaintiff’s protected activity
did not plausibly cause the September 9th written warning, thus
rendering Plaintiff’s allegations implausible. Further, there
are no allegations that allow the court to plausibly infer that
the protected activity related to age discrimination. Plaintiff
only alleges that she spoke with Assistant Dean Williams to
express her concerns about Dr. Wagner and his inappropriate
sexual comments.
-62-
(4th Cir. 2006) (affirming summary judgment and noting that,
“[w]hile temporal proximity . . . can, in some cases, be used to
survive summary judgment, it does not suffice” where the actions
that led to the adverse employment action began before the
protected activity because “an inference of retaliation does not
arise”). 30
This court does not analyze any proffered explanations from
Defendants and/or decide any questions of pretext, inquiries
often inappropriate at this juncture. Rather, the court relies
solely on Plaintiff’s own allegations in finding that there is
no plausible inference of causality to be drawn from the face of
the Complaint. For the foregoing reasons, Plaintiff’s third
claim for relief alleging retaliation in violation of the ADEA
and Title VII will be dismissed.
G.
Remaining Claims
Plaintiff’s fourth claim for relief alleges interference
with administrative remedies. She asserts that her
administrative remedies are futile, she should not have to
30
To the extent that the August 25th warning could be
viewed as an adverse employment action in the retaliation
context (this court found it is not), Plaintiff does not allege
that Defendant Wagner knew about her meeting with Assistant Dean
Williams when Dr. Wagner verbally warned her on August 25th. A
defendant’s awareness of the protected activity is usually an
essential element of a retaliation claim. See Constantine, 411
F.3d at 501.
-63-
exhaust them, and Defendants interfered with her ability to
preserve them by their late provision of the investigation
report. Defendants assert that they are unaware of any cause of
action for interference with administrative remedies. (Defs.’
Br. (Doc. 8) at 23.)
It is unclear to this court what Plaintiff seeks in her
fourth claim for relief. Given this court’s finding that
Plaintiff exhausted administrative remedies, see supra at 17-18,
her fourth claim for relief will be dismissed.
In her fifth claim for relief, Plaintiff brings a claim for
punitive damages, specifically alleging that Defendant Wagner
acted intentionally and maliciously towards her. This court,
however, has already found that all claims against Defendant
Wagner should be dismissed. As to Defendant N.C. A&T, punitive
damages are not available, as Defendants argue, against a
government agency under the ADEA. Fariss v. Lynchburg Foundry,
769 F.2d 958, 967 n.11 (4th Cir. 1985) (citation omitted); see
29 U.S.C. § 626. Punitive damages are also not recoverable from
a government agency under Title VII. Williams v. Guilford Tech.
Cmty. Coll. Bd. of Trs., 117 F. Supp. 3d 708, 716 (M.D.N.C.
2015) (citing 42 U.S.C. § 1981a(b)(1)).
N.C. A&T is a constituent institution of the University of
North Carolina. N.C. Gen. Stat. §§ 116-2, 116-4. “The University
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of North Carolina is a state agency.” Bryant, 947 F. Supp. at
916 (citing Bd. of Governors of the Univ. of N.C. v. Dep’t of
Labor, 917 F.2d 812 (4th Cir. 1990)). Defendant N.C. A&T,
therefore, cannot be liable to Plaintiff for punitive damages
under the ADEA or Title VII. Plaintiff’s fifth claim for relief
will be dismissed.
V.
CONCLUSION
In light of the foregoing,
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss
Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1), 12(b)(2), and 12(b)(6), (Doc. 7), is GRANTED
IN PART AND DENIED IN PART. Defendants’ motion to dismiss
Plaintiff’s claims pursuant to Rules 12(b)(1) and 12(b)(2) is
DENIED, and Defendants’ motion to dismiss Plaintiff’s claims
pursuant to Rule 12(b)(6) is GRANTED IN PART AND DENIED IN PART,
in that: (1) Defendants’ motion to dismiss all claims against
Defendant Wagner is GRANTED, (2) Defendants’ motion to dismiss
Plaintiff’s second, third, fourth, and fifth claims for relief
is GRANTED, and (3) Defendants’ motion to dismiss Plaintiff’s
first claim for relief is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to
amend her Complaint, (see Doc. 14 at 2), is DENIED.
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This the 20th day of March, 2019.
_______________________________________
United States District Judge
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