STARR v. TIWARI et al
Filing
46
MEMORANDUM OPINION AND ORDER, signed by JUDGE WILLIAM L. OSTEEN, JR on 2/27/2019, that for the foregoing reasons, this court finds that Defendants' motion to dismiss should be granted and Plaintiff's clai ms should be dismissed with prejudice. ORDERED that Plaintiff's Motion to Amend Complaint, (Doc. 15 ), is GRANTED. FURTHER that Plaintiff's Amended Complaint, (Doc. 17 ), Motion for Jury Trial, (Doc. 20 ), and Motion for the Court to Grant Recovery, (Doc. 31 ), are construed as motions to amend the complaint and are DENIED. FURTHER that Plaintiff's Motion to Amend Breech [sic] of Contract, (Doc. 24 ), and Motion to Amend Complaint, (Doc. 26 ), are DENIED. FURTHER tha t Plaintiff's Motion to Amend Breach of Contract Request, (Doc. 34 ), is construed as a motion to add a defendant and is DENIED. FURTHER ORDERED that Plaintiffs Motion to Add Party, (Doc. 36 ), is DENIED. FURTHER that Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b) (6), (Doc. 11 ), is GRANTED. FURTHER that the claims contained in the Complaint, (Doc. 2 ], and the Amended Complaint, (Doc. 15 ), are DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(6). FURTHER that Defendants' Motion for a Protective Order, (Doc. 18 ), Motion to Dismiss IIED Complaint, (Doc. 21 ), and Motion for a Pre-Filing Injunction, (Doc. 40 ), are DENIED AS MOOT. FURTHER that Plaintiff's Motion to Compel with Sanctions, (Doc. 25 ), Sealed Motion for Exam Report and Treatment, (Doc. 30 ), and Motion to Subpoena, (Doc. 38 ), are DENIED AS MOOT. As no further claims remain in this matter, a judgment shall be entered contemporaneously herewith for Defendants dismissing Plaintiffs claims with prejudice.(Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMIE STARR,
Plaintiff,
v.
SATYA TIWARI, SURYA, INC.,
and ALLEN PARKER,
Defendants.
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1:18CV219
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Currently before this court is Defendants’ joint Motion to
Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. 11.)
Defendants have also filed a Motion for Protective Order
limiting discovery, (Doc. 18), a Motion to Dismiss Plaintiff’s
intentional infliction of emotional distress (“IIED”) complaint,
(Doc. 21), and a Motion for a Prefiling Injunction, (Doc. 40).
In addition to her original complaint, (Complaint for
Employment Discrimination (“Compl.”) (Doc. 2)), Plaintiff has
filed the following: three motions to amend the complaint (Docs.
15, 24, 26); an amended complaint, (Doc. 17); a “motion for jury
trial”, (Doc. 20); and a “motion for court to grant recovery”,
(Doc. 31). Plaintiff has also moved to add Julie Watkins, (Doc.
34), and Carrie Ingalls, (Doc. 36), as defendants in this
matter. Finally, Plaintiff has filed the following discovery-
related motions: a motion to compel with sanctions, (Doc. 25); a
motion for a court-ordered medical examination of Defendant
Parker, (Doc. 30); and a motion to subpoena, (Doc. 38).
Because this court finds that none of Plaintiff’s timely
pleadings plausibly allege any unlawful activity by Defendants,
Defendants’ motion to dismiss will be granted and Plaintiff’s
various motions will be denied.
Further, this court believes that Plaintiff’s voluminous
filing record in this case represents an attempt to use the
federal judiciary as an outlet for petty personal grievances. To
deter Plaintiff from again using federal resources to reexamine
petty slights and negative social interactions, this court will
dismiss Plaintiff’s claims with prejudice.
I.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Jamie Starr is proceeding pro se and in forma
pauperis. (Doc. 1.) Plaintiff was employed by Defendant Surya,
Inc. (“Surya”) as a Sales Specialist responsible for accounts in
the state of Florida. (Pl.’s Mot. to Am. Compl. (“Am. Compl.”),
Ex. SS (Doc. 15-11) at 1.) Plaintiff began employment with Surya
on August 7, 2017. (Id.) Plaintiff reported to Allen Parker,
Sales Manager. (Id.) Surya terminated Plaintiff’s employment on
October 20, 2017. (Am. Compl. (Doc. 15) at 10.)
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In her original complaint, Plaintiff alleges employment
discrimination 1 by Defendants due to her gender, religion and age
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e–5, and the Age Discrimination in
Employment Act (the “ADEA”), 29 U.S.C. §§ 621–634. (Compl.
(Doc. 2) at 3.) As far as this court can discern, Plaintiff has
also alleged the following state law claims in her various
subsequent pleadings: breach of contract, (Am. Compl. (Doc. 15)
at 3); (Pl.’s Mot. to Am. Breach of Contract (“Pl.’s Mot. to
Am.”) (Doc. 24) at 1–2); defamation, (Am. Compl. (Doc. 15) at
1); negligence, (Pl.’s Am. Compl. (“IIED Compl.”) (Doc. 17) at
5); IIED, (IIED Compl. (Doc. 17) at 1); and negligent infliction
of emotional distress (“NIED”), (Pl.’s Mot. to Am. (Doc. 24–1)
at 3.) Plaintiff claims damages of over $2 million. (Doc. 31 at
2.)
1
Plaintiff also checked the box for retaliation. (Compl.
(Doc. 2) at 4.) While Plaintiff suggests she was retaliated
against for filing an EEOC charge, (Am. Compl. (Doc. 15) at 10),
Plaintiff has not produced evidence of when she filed this
charge and this court has no way to determine whether it was
filed before or after her termination. Plaintiff also appears to
argue that she suffered retaliation for complaints about the
conduct of a drunken Surya customer, but these actions are not
within the scope of Title VII because Plaintiff was not
complaining about discriminatory conduct by her employer. See
DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015).
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Plaintiff initially named Surya, Inc., Satya Tiwari (CEO),
and Allen Parker (Sales Manager) as Defendants. (Compl. (Doc.
2).) Plaintiff has since moved to add two additional
individuals, Julie Watkins and Carrie Ingalls, as defendants
(Docs. 34, 36.)
This court will first consider which of Plaintiff’s
numerous pleadings it may properly consider under the Federal
Rules of Civil Procedure. This court will next turn to the
original Defendants’ joint motion to dismiss Plaintiff’s
original federal claims. This court will then proceed to
evaluate any remaining valid state law claims. Finally, if any
claims remain after this analysis, this court will proceed to
evaluate Plaintiff’s discovery motions, (Docs. 25, 30, 38.)
II.
THRESHOLD ISSUES
A.
Sufficiency of the Complaint
This court will not, as Defendants urge at various points,
(see Doc. 12 at 6–9), dismiss Plaintiff’s claims outright as
violative of the pleading standards set forth in Fed. R. Civ. P.
Rules 8 and 10(b). Plaintiff’s pleading approach clearly runs
afoul of the Federal Rules. See Fed. R. Civ. P. 8(a)(2)
(pleading must contain “a short and plain statement of the
claim”) (emphasis added); Fed. R. Civ. P. 10(b) (stating that
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pleadings should be organized in numbered paragraphs and should
identify the specific facts on which each claim is based).
The pleading standards are relaxed for pro se plaintiffs.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating that pro
se complaints must be “liberally construed”); see also Haines v.
Kerner, 404 U.S. 519, 520–21 (1972). However, these plaintiffs
are still required to plead facts that fairly put the defendant
on notice of the nature of the claims and “contain more than
labels and conclusions.” Giarratano v. Johnson, 521 F.3d 298,
304 & n.5 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
This court finds it odd that Plaintiff, who apparently is
well-educated, was able to secure a relatively high-paying sales
job, has navigated the Equal Employment Opportunity Commission
(“EEOC”) filing process, has resorted to nearly indecipherable
stream-of-consciousness narratives in her various pleadings.
Plaintiff’s decision to devote space in her pleadings to compare
certain Defendants to Nazi leaders and to criticize unrelated
content posted on the website of Defendants’ legal counsel is
also deeply mystifying and frankly bizarre. (See Am. Compl.
(Doc. 15) at 18; Ex. EN (Doc. 15–12) at 1.)
However, this court notes that Defendants have not moved
for a more definite statement of the claims, which would
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certainly be warranted here, and have instead proceeded to
address the substance of Plaintiff’s allegations. Especially in
the pro se context, this court finds it preferable to address
Plaintiff’s claims under Rule 12(b)(6) rather than dismissing
them for failure to comply with federal pleading standards.
B.
Amendments to the Complaint
A party may amend any pleading as a matter of course, if
that pleading “is one to which a responsive pleading is
required,” within twenty-one days after service of the
responsive pleading or motion. Fed. R. Civ. P. 15(a)(1).
Defendants filed their original motion to dismiss on May 9,
2018, and Plaintiff filed her first motion to amend exactly
twenty-one days later on May 30, 2018. Therefore, this court
construes Plaintiff’s initial motion to amend, (Am. Compl. (Doc.
15)), as an amendment to the original complaint which is
permitted as a matter of course.
Outside of the twenty-one-day window, pleadings may be
amended “only with the opposing party's written consent or the
court's leave.” Fed. R. Civ. P. 15(a)(2). Defendants responded
to Plaintiff’s initial motion to amend on June 25, 2018. (Doc.
16.) Plaintiff subsequently filed an amended complaint on
July 23, 2018, (IIED Compl. (Doc. 17)); a “Motion for Jury
Trial” on July 30, 2018, which this court construes as an
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additional motion to amend the complaint, (Doc. 20); a “Motion
to Amend Breech [sic] of Contract” on August 23, 2018, (Pl.’s
Mot. to Am. (Doc. 24)); an additional motion to amend the
complaint on August 23, 2018, (Doc. 26); and a “Motion for the
Court to Grant Recovery” on October 1, 2018, (Doc. 31).
Plaintiff did not seek leave of the court to file any of these
pleadings, nor did Defendants consent to these pleadings.
To the extent that any of the pleadings identified above
other than Plaintiff’s initial motion to amend, (Am. Compl.
(Doc. 15)), allege new claims or facts or otherwise seek to
amend Plaintiff’s original complaint, these pleadings do not
comply with the time restrictions in Fed. R. Civ. P. 15(a)(2).
Plaintiff has also neglected to seek leave of the court to
amend. Plaintiff’s shotgun pleading approach is both prejudicial
to Defendants and wasteful of judicial time and resources. See,
e.g., Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.
1986) (stating that prejudice can result when a defendant is
forced to respond to new legal theories or gather new evidence).
Although the proposed amendments here were filed shortly after
the initial complaint, this court further finds that Plaintiff
has acted in bad faith by filing numerous amendments over a
short period of time without seeking permission. See Foman v.
Davis, 371 U.S. 178, 182 (1962) (listing “undue delay, bad faith
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or dilatory motive” as grounds for denying leave to amend).
Therefore, this court will not consider these subsequent
pleadings. 2
As best as this court can discern, Plaintiff’s initial
motion to amend alleges breach of contract and defamation
claims. In the interest of liberal construction, see Estelle,
429 U.S. at 106, this court will consider the breach of contract
and defamation claims asserted in Plaintiff’s initial motion to
amend as well as the federal claims asserted in Plaintiff’s
original complaint. However, this court will construe
Plaintiff’s pleadings containing claims for negligence, IIED and
NIED as additional motions to amend and will deny those motions
as untimely and prejudicial.
C.
Additional Defendants
Plaintiff has moved to add Julie Watkins, (Pl.’s Mot. to Add
Julie Watkins (“First Mot. to Add Def.”) (Doc. 34)), and Carrie
Ingalls, (Pl.’s Mot. to Add Party (“Sec. Mot. to Add Def.”)
2
Alternatively, this court finds that the intended
amendments are futile. First, the alleged factual basis for
Plaintiff’s claims consists of intentional, rather than
negligent, conduct and thus cannot support a claim for
negligence or NIED. Horne v. Cumberland Cty. Hosp. Sys., Inc.,
228 N.C. App. 142, 149, 746 S.E.2d 13, 19 (2013). Second,
Plaintiff fails to allege the “utterly intolerable” conduct
required to state an IIED claim. See, e.g., Hogan v. Forsyth
Country Club Co., 79 N.C. App. 483, 493–94, 340 S.E.2d 116, 122–
23 (1986).
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(Doc. 36)), as defendants in this case. As an initial matter,
this court determines that neither Watkins nor Ingalls is a
required party, see Fed. R. Civ. P. 19(a)(1), to any of
Plaintiff’s timely and authorized claims. Neither Watkins nor
Ingalls appear to assert any interest in this action, and this
court can “accord complete relief” on Plaintiff’s Title VII,
ADEA, breach of contract and defamation claims with the original
Defendants. Fed. R. Civ. P. 19(a)(1)(A).
The Federal Rules alternatively permit joinder of parties as
defendants when plaintiff’s “right to relief is asserted against
them jointly [or] severally,” when the right to relief against
all parties arises out of the same series of transactions, or
when “any question of law or fact common to all defendants will
arise in the action.” Fed. R. Civ. P. 20(a)(2); see also Saval
v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir. 1983) (stating that
claims must be “reasonably related” for parties to be joined
under Rule 20); Stephens v. Kaiser Found. Health Plan of the
Mid-Atl. States, Inc., 807 F. Supp. 2d 375, 382 (D. Md. 2011)
(finding that claims must have “a logical relationship to one
another”).
The claims against Watkins and Ingalls appear completely
unrelated to Plaintiff’s original properly-pleaded claims.
Plaintiff’s claim against Watkins is styled as a breach of
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contract claim but appears to allege breach of a contractual
agreement between Watkins and Defendant Surya regarding a third
party, Kristine El Kouri. (First Mot. to Add Def. (Doc. 34) at
4.) The breach of contract claim alleged in Plaintiff’s first
amended complaint, however, relates to provisions of the Surya
employee handbook that may have formed part of Plaintiff’s
employment contract with Defendant Surya. (See Am. Compl. (Doc.
15) at 3.) The claim against Watkins is not in any way relevant
to that breach of contract claim, and Plaintiff’s motion to add
Watkins as a defendant will be denied.
Plaintiff’s claim against Carrie Ingalls is even more
puzzling, as Ingalls appears to be a third-party guest who
attended an event at one of Surya’s facilities and allegedly
mistreated Plaintiff at this event. (Sec. Mot to Add. Def. (Doc.
36) at 1–2.) While Plaintiff attempts to connect Ingalls’
alleged behavior to Surya’s negligent over-serving of alcohol at
the event, (id. at 3), this claim is simply in no way relevant
to the employment discrimination claims in Plaintiff’s original
complaint or to the breach of contract and defamation claims in
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Plaintiff’s first amended complaint. Therefore, Plaintiff’s
motion to add Ingalls as a defendant will also be denied. 3
D.
Defendant-Specific Issues
Because Plaintiff has alleged a multitude of facts and
claims against Defendants with little effort to differentiate
among individual conduct, this court must briefly address
limitations applicable to Plaintiff’s federal claims.
Plaintiff names individuals Satya Tiwari and Allen Parker
as defendants in her Title VII and ADEA claims. (See Compl.
(Doc. 2).) However, it is well-established that no person can be
liable for a Title VII violation in his or her individual
capacity. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180–
81 (4th Cir. 1998) (“We join these courts and reiterate that
supervisors are not liable in their individual capacities for
Title VII violations.”). Therefore, Plaintiff’s Title VII and
ADEA claims against Defendants Tiwari and Parker, in their
individual capacities, will be dismissed. Plaintiff may bring
these claims only against Defendant Surya.
3
While Plaintiff’s motions to add defendants might also be
construed as additional motions to amend the complaint, this
court notes simply that doing so would produce the same outcome
because these motions are untimely and prejudicial. See Fed. R.
Civ. P. 15(a); Oroweat Foods, 785 F.2d at 509–10.
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E.
Subject-Matter Jurisdiction and Applicable Law
As to Plaintiff’s properly-pleaded state law claims, breach
of contract and defamation, this court finds based on the record
that it has supplemental jurisdiction over these claims.
Plaintiff indicates on her civil cover sheet that the “Basis of
Jurisdiction” is “Federal Question,” (see Doc. 3), which is
certainly true as to the Title VII and ADEA claims. When a
federal court has federal question jurisdiction over some
claims, it may exercise supplemental jurisdiction over all
related claims that “form part of the same case or controversy.”
See 28 U.S.C. § 1367; see also Hinson v. Norwest Fin. S.C.,
Inc., 239 F.3d 611, 616 (4th Cir. 2001) (observing that the
district court had discretion to exercise supplemental
jurisdiction and could retain or remand to state court any state
law claims after all federal claims were dismissed).
Plaintiff’s properly-pleaded state claims all appear to
relate generally to the same factual nexus as Plaintiff’s
federal claims – a series of incidents that occurred during
Plaintiff’s approximately three-month employment with Surya and
alleged mistreatment by Plaintiff’s immediate supervisor,
Defendant Parker. Therefore, these claims are all part of the
same case or controversy and this court may properly exercise
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supplemental jurisdiction over the state law breach of contract
and defamation claims.
A federal court sitting in diversity or supplemental
jurisdiction generally applies the relevant substantive law of
the state in which the court sits, while applying federal
procedural law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72–73,
79–80 (1938); Hanna v. Plumer, 380 U.S. 460, 465–66 (1965); see
also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726
(1966) (holding that federal courts are “bound to apply state
law” to pendant claims); In re Exxon Valdez, 484 F.3d 1098, 1100
(9th Cir. 2007) (finding that Erie’s central holding applies to
supplemental jurisdiction cases).
This court will first evaluate Plaintiff’s federal claims
under Title VII and the ADEA. If this court finds that the
federal claims should be dismissed, this court will next
consider whether the remaining properly-pleaded state law claims
(breach of contract and defamation) should be remanded or
whether this court should evaluate these claims, applying North
Carolina substantive law.
III. STANDARD OF REVIEW
Under federal law, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). To be facially plausible, a claim
must “plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable” and must
demonstrate “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556–57).
When ruling on a motion to dismiss, a court must accept the
complaint’s factual allegations as true. Id. Further, “the
complaint, including all reasonable inferences therefrom, [is]
liberally construed in the 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).
Nevertheless, the factual allegations must be sufficient to
“raise a right to relief above the speculative level” so as to
“nudge[] the[] claims across the line from conceivable to
plausible.” Twombly, 500 U.S. at 555, 570; see also Iqbal, 556
U.S. at 680; Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (applying the Twombly/Iqbal standard to evaluate the legal
sufficiency of pleadings). A court cannot “ignore a clear
failure in the pleadings to allege any facts which set forth a
claim.” Estate of Williams-Moore, 335 F. Supp. 2d at 646.
Consequently, even given the deferential standard allocated to
pleadings at the motion to dismiss stage, a court will not
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accept mere legal conclusions as true and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at
678.
Employment discrimination complaints must meet the
Twombly/Iqbal plausibility standard; however, the plaintiff is
not required to make out a prima facie case 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., State Highway Admin., 780 F.3d
582, 584–85 (4th Cir. 2015). The plaintiff is, however, required
to plead facts that permit the court to reasonably infer each
element of the prima facie case, including less favorable
treatment than similarly-situated employees outside of the
protected class. McCleary-Evans, 780 F.3d at 585; see also
Iqbal, 556 U.S. at 682–83 (plaintiff must plead facts supporting
reasonable inference of discriminatory intent).
IV.
TITLE VII EMPLOYMENT DISCRIMINATION
Plaintiff brings her employment discrimination claims in
part under Title VII of the Civil Rights Act of 1964. The
enforcement provisions of Title VII state that “[a] charge under
this section shall be filed within one hundred and eighty days
after the alleged unlawful employment practice occurred.” 42
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U.S.C. § 2000e-5(e)(1). Once the EEOC issues a right to sue
letter, the plaintiff must file suit in a federal court within
ninety days. § 2000e-5(f)(1). Here, it is unclear exactly when
Plaintiff filed her EEOC charge. Plaintiff received a right to
sue letter from the EEOC on December 22, 2017, (Compl., Ex. D
(Doc. 2-4)), and filed her complaint in this matter within
ninety days on March 16, 2018. (Compl. (Doc. 2).) Because
Plaintiff’s employment with Surya only commenced on August 7,
2017, any alleged discriminatory acts must have occurred within
180 days prior to the initial EEOC filing date. Therefore, this
court finds that Plaintiff has complied with Title VII’s
statutory filing requirements.
The elements of a Title VII employment discrimination claim
are: “(1) membership in a protected class; (2) satisfactory job
performance; (3) adverse employment action; and (4) different
treatment from similarly situated employees outside the
protected class.” Coleman v. Md. Ct. App., 626 F.3d 187, 190
(4th Cir. 2010); see also Gerner v. Cty. of Chesterfield, 674
F.3d 264, 266–68 (4th Cir. 2012) (gender); Adams v. Trustees of
the Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir. 2011)
(religion).
Items 1 to 3 of the prima facie claim are identical for
both gender and religion. This court finds that Plaintiff has
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properly demonstrated items 1 to 3 of a prima facie
discrimination claim. Both gender and religion are protected
grounds under Title VII. See 42 U.S.C. § 2000e–2(a)(1).
Plaintiff has alleged that she is Jewish. (Am. Compl. (Doc. 15)
at 14.)
Adverse employment actions include any “acts or harassment
[that] adversely effected ‘the terms, conditions, or benefits’
of the plaintiff's employment.” Von Gunten v. Maryland, 243 F.3d
858, 865 (4th Cir. 2001) (quoting Munday v. Waste Mgmt. of N.
Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997)), abrogated on
other grounds by Burlington N. and Santa Fe Ry. Co. v. White,
548 U.S. 53, 62, 66–68 (2006) 4; see also Boone v. Goldin, 178
F.3d 253, 256 (4th Cir. 1999). However, the Supreme Court has
also recognized that Title VII encompasses hostile or offensive
workplace comments when “the discriminatory conduct was so
severe or pervasive that it created a work environment abusive
4
Von Gunten was brought under Title VII’s anti-retaliation
provision, and the Fourth Circuit held that the adverse
employment action standard applied to retaliation claims. The
Supreme Court subsequently ruled, in response to a circuit split
on the issue, that retaliation claims should be evaluated under
a different, lower standard than discrimination claims.
Burlington No. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67
(2006). However, to the extent that Von Gunten defines an
“adverse employment action,” it remains relevant for nonretaliatory Title VII claims to which this standard still
applies.
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to employees because of their race, gender, religion, or
national origin.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21–22 (1993); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,
331-32 (4th Cir. 2003) (holding that Title VII applied where a
female employee was “the individual target of open hostility
because of her sex,” and finding it relevant that the offensive
conduct was not aimed at any male employees); see also Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60–61 (1986) (describing
sexually hostile and abusive workplace conduct that rose to a
level cognizable under Title VII, including the touching and
fondling of female employees by a male supervisor).
Plaintiff has alleged both that she was terminated by
Defendant Surya and treated unequally in the terms of her
employment. (Compl. (Doc. 2) at 4.) This court finds that
Plaintiff has at least conceivably alleged a hostile work
environment. (See Compl., Ex. A (Doc. 2–1) at 5 (alleging
“abusive, threatening and hostile, volatile, aggressive” conduct
by Defendant Parker, Plaintiff’s immediate supervisor.))
Finally, Plaintiff alleges satisfactory job performance at
the time of her termination. (See id. at 8.) This court will
next address the question of whether Plaintiff’s termination or
the alleged hostile work environment can plausibly be attributed
to discriminatory conduct by Defendant Surya.
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A.
Gender
To create a plausible inference of gender-based
discrimination, a plaintiff must plead facts suggesting that the
adverse treatment was due to a plaintiff’s gender. A plaintiff
can do so by identifying similarly-situated male employees who
either were not fired or were not subject to the same hostile
workplace behavior. See Gerner, 674 F.3d at 266 (employer
offered male employees more favorable severance packages than it
did to female plaintiff).
Here, Plaintiff describes numerous alleged abusive and
hurtful comments by her male supervisor, Defendant Parker.
However, there is simply nothing in Plaintiff’s allegations to
suggest that Defendant Parker treated similarly-situated male
employees more favorably. 5 Plaintiff provides merely the
conclusory allegation that Defendant Parker “would of [sic]
NEVER of treated a man this way.” (Compl., Ex. A (Doc. 2–1) at
7.) This bald assertion, completely unsupported by facts, cannot
support Plaintiff’s claim. Coleman, 626 F.3d at 190–91.
Additionally, Plaintiff appears to suggest that Defendant Parker
was in fact friendly and close with a female co-worker. (See
5
Plaintiff does identify a single male co-worker, Eric
Nyman, (see Am. Compl., Ex. EN (Doc. 15–12) at 1), but suggests
that Defendant Parker was also antagonistic toward Nyman.
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Compl., Ex. A (Doc. 2–1) at 2.) Plaintiff has not alleged any
facts that permit this court to draw the inference that she was
harassed or terminated because of her gender. Therefore,
Plaintiff’s gender-based Title VII allegations fail to state a
claim and will be dismissed.
B.
Religion
To properly plead religion-based employment discrimination,
a plaintiff must show either disparate treatment or failure to
accommodate religious practices. See generally Chalmers v. Tulon
Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996). This court
finds no allegation that Plaintiff sought to actively observe
any aspect of her Jewish faith during working hours. Defendant
Surya cannot fail to accommodate that which is not requested.
Therefore, Plaintiff can only potentially make out a disparate
treatment claim.
As with Plaintiff’s gender claim, Plaintiff must show that
she was treated less favorably than co-workers who did not share
the same religion. See Netter v. Barnes, 908 F.3d 932, 939 (4th
Cir. 2018) (stating that “a plaintiff seeking to prove unlawful
discrimination in employment will generally need to produce
evidence of comparators, or similarly-situated employees of a
different . . . religion”).
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Plaintiff’s religious discrimination claim is based on an
inquiry by Defendant Tiwari into her religious beliefs and
disparaging comments allegedly made by supervisors, co-workers,
and third parties 6 regarding her religion. (See, e.g., Am. Compl
(Doc. 15) at 13; Compl., Ex. B (Doc. 2–2) at 1.) However,
Plaintiff again proffers no facts whatsoever regarding the
treatment of non-Jewish colleagues. Further, the only
religiously-motivated comment that can possibly be attributed to
any Defendant is Defendant Tiwari’s inquiry about Plaintiff’s
religion at her review. (Am. Compl. (Doc. 15) at 13.) While this
question may be inappropriate, it is a far cry from the level of
behavior that might create a hostile work environment for Title
VII purposes. See Meritor, 477 U.S. at 60–61. It is impossible
for this court to infer that any adverse actions were due to
religious discrimination and this claim will also be dismissed.
6
Some of these alleged statements, including apparent
mocking of the Yiddish language, seem to have been made not by
Defendant Surya or any of its employees or agents, but rather by
a Surya customer who attended an event at the company’s
warehouse. (See Am. Compl. (Doc. 15) at 6.) As this woman was
not an agent nor in any way affiliated with the company, this
court finds no basis for imputing Title VII liability to the
company based on her alleged actions. See 42 U.S.C. § 2000e(b)
(defining “employer” as “a person engaged in an industry
affecting commerce who has fifteen or more employees”).
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V.
ADEA
To make out an ADEA claim, Plaintiff must show that she is
a member of the class of persons the ADEA is designed to
protect: individuals over the age of forty. 29 U.S.C. § 631(a);
see also Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619,
627–28 (4th Cir. 2015) (stating that an ADEA plaintiff must show
membership in the protected class). Here, Plaintiff presents no
evidence that she is over the age of forty. This deficiency is,
of course, fatal to Plaintiff’s ADEA claim and the claim will be
dismissed.
Further, the remainder of the ADEA analysis is similar in
nature to the Title VII analysis, in that Plaintiff must show
she was treated less favorably than co-workers under the age of
forty. See Goode, 807 F.3d at 627. Plaintiff provides no factual
basis for this inference, only conclusorily alleging that “I
think it was my age as to why I was treated that way.” (Compl.,
Ex. B (Doc. 2–2) at 1.) Thus, Plaintiff fails to state a viable
ADEA claim.
VI.
REMAINING STATE LAW CLAIMS
As this court has determined that all of Plaintiff’s
federal-law claims should be dismissed, it must now consider
whether to evaluate any remaining properly-pleaded state law
claims (over which this court has supplemental jurisdiction) or
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remand these claims to North Carolina state court. See CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 357 (1988) (stating that
courts have discretion to remand leftover supplemental
jurisdiction claims). In making this determination, this court
should consider “convenience and fairness to the parties, the
existence of any underlying issues of federal policy, comity,
and considerations of judicial economy.” Shanaghan v. Cahill,
58 F.3d 106, 110 (4th Cir. 1995).
Because this court finds it expedient to the swift
resolution of this dispute to consider all claims in a single
ruling rather than sever certain claims for further proceedings,
it will evaluate Plaintiff’s breach of contract and defamation
claims.
A.
Breach of Contract
Under North Carolina law, “unilaterally promulgated
employment manuals or policies do not become part of the
employment contract unless expressly included in it.” Walker v.
Westinghouse Elec. Corp., 77 N.C. App. 253, 259–60, 335 S.E.2d
79, 83–84 (1985); see also Salt v. Applied Analytical, Inc., 104
N.C. App. 652, 656–57, 412 S.E.2d 97, 99–101 (1991).
Here, Plaintiff’s breach of contract claim appears to
relate to Surya’s employee handbook. (Am. Compl. (Doc. 15) at
3-4.) The handbook required each employee to sign upon receipt
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acknowledging “that neither the handbook nor its contents are an
expressed [sic] or implied contract regarding my employment.”
(Am. Compl., Ex. HB-1 (Doc. 15–2) at 44.) Because the handbook
was expressly excluded from Plaintiff’s employment contract,
Plaintiff may not bring a breach of contract action under the
handbook in North Carolina. Plaintiff’s breach of contract
allegations will be dismissed for failure to state a claim. 7
This court does not understand Plaintiff to allege that she
had any direct contractual agreement with either Defendant
Parker or Defendant Tiwari. Absent a contract, Plaintiff has no
viable claim against these Defendants.
B.
Defamation
To state a claim for defamation under North Carolina
law, “a plaintiff must allege that the defendant caused injury
to the plaintiff by making false, defamatory statements of or
concerning the plaintiff, which were published to a third
person.” Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29,
7
Plaintiff also appears to allege breach of contract in one
of her motions to amend, (see Pl.’s Mot. to Am. (Doc. 24)), but
this court cannot discern any basis for this second breach of
contract claim and the motion is also untimely and unauthorized,
as previously noted. Plaintiff refers to a “gag order” and
suggests that other Surya employees breached agreements with the
company, (id. at 4), but alleges no contractual agreement
between herself and any Defendant. Therefore, this claim
similarly fails to meet the 12(b)(6) standard.
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568 S.E.2d 893, 897 (2002). A certain set of statements, such as
those regarding sexual diseases or crimes of “moral turpitude,”
are considered defamatory per se and do not require the
plaintiff to prove malicious intent or show damages. Williams v.
Rutherford Freight Lines, Inc., 10 N.C. App. 384, 387–88, 179
S.E.2d 319, 322 (1971). Other statements that are less clearly
defamatory may still support a defamation claim but require the
plaintiff to prove intent and damages – these statements are
called libel per quod. Daniels v. Metro Magazine Holding Co.,
L.L.C., 179 N.C. App. 533, 538, 634 S.E.2d 586, 590 (2006).
It is a prerequisite to any defamation claim that the
alleged defamatory statement can reasonably be viewed as stating
an actual fact, rather than a subjective opinion, about the
plaintiff. See Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590.
“Rhetorical hyperbole and expressions of opinion not asserting
provable facts are protected speech” and cannot form the basis
for a defamation claim. Id.; see also Milkovich v. Lorain
Journal Co., 497 U.S. 1, 18–21 (1990) (explaining the difference
between statements that are reasonably interpreted as stating a
fact about a certain individual and those that are pure opinion
or hyperbole). For example, “unlike the statement, ‘In my
opinion Mayor Jones is a liar,’ the statement, ‘In my opinion
Mayor Jones shows his abysmal ignorance by accepting the
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teachings of Marx and Lenin,’ would not be actionable.”
Milkovich, 497 U.S. at 20.
To determine whether a statement asserts facts or is mere
opinion or hyperbole, courts “consider whether the language used
is loose, figurative, or hyperbolic language, as well as the
general tenor of the [conversation].” Daniels, 179 N.C. App. at
540, 634 S.E.2d at 590 (quoting Milkovich, 497 U.S. at 21)
(internal citations omitted).
Here, Plaintiff’s allegations center on certain disparaging
remarks that Defendant Parker allegedly made to other Surya
sales representatives regarding Plaintiff, including the
statement that “I got rid of that nonsense” after Plaintiff was
fired. (Am. Compl. (Doc. 15) at 11.) Plaintiff does not provide
any other specific statements, alleging only that Defendant
Parker “shared the gossip.” 8 (Id. at 10.) The statement “I got
rid of that nonsense” is not only hyperbolic, but also can be
reasonably interpreted only as stating Defendant Parker’s
personal, subjective opinion about Plaintiff rather than any
8
Without knowing the specific content of these alleged
communications, this court is unable to determine whether they
meet the legal standard for defamation. An amorphous allegation
that others are gossiping about you does not, of course, give
rise to any legal remedy.
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provable fact. Therefore, this statement is not actionable and
Plaintiff fails to state a claim for defamation. 9
VII. CONCLUSION
For the foregoing reasons, this court finds that
Defendants’ motion to dismiss should be granted and Plaintiff’s
claims should be dismissed with prejudice.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Amend
Complaint, (Doc. 15), is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint,
(Doc. 17), Motion for Jury Trial, (Doc. 20), and Motion for the
Court to Grant Recovery, (Doc. 31), are construed as motions to
amend the complaint and are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend
Breech [sic] of Contract, (Doc. 24), and Motion to Amend
Complaint, (Doc. 26), are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend
Breach of Contract Request, (Doc. 34), is construed as a motion
to add a defendant and is DENIED.
9
To the extent that Plaintiff alleges defamation by
Defendant Surya through its agent Defendant Parker, see, e.g.,
Long v. Vertical Techs., Inc., 113 N.C. App. 598, 602, 439
S.E.2d 797, 801 (1994), this claim must fail for the same
reasons set forth herein. Plaintiff alleges no potentially
defamatory statements by Defendant Tiwari.
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IT IS FURTHER ORDERED that Plaintiff’s Motion to Add Party,
(Doc. 36), is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), (Doc. 11), is GRANTED.
IT IS FURTHER ORDERED that the claims contained in the
Complaint, (Doc. 2), and the Amended Complaint, (Doc. 15), are
DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(6).
IT IS FURTHER ORDERED that Defendants’ Motion for a
Protective Order, (Doc. 18), Motion to Dismiss IIED Complaint,
(Doc. 21), and Motion for a Pre-Filing Injunction, (Doc. 40),
are DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel
with Sanctions, (Doc. 25), Sealed Motion for Exam Report and
Treatment, (Doc. 30), and Motion to Subpoena, (Doc. 38), are
DENIED AS MOOT.
As no further claims remain in this matter, a judgment
shall be entered contemporaneously herewith for Defendants
dismissing Plaintiff’s claims with prejudice.
This the 27th day of February, 2019.
____________________________________
United States District Judge
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