Tuttle v. Anuvia Prevention & Recovery et al

Filing 13

ORDER granting 4 Motion to Dismiss ; granting 6 Motion to Dismiss. Defendants McQuade, Snider, Smith and Anthony-Byng are DISMISSED. Counts Two (ADA), Three (harassment/hostile working environment) and Five (defamation) claims are DISMISSED.Counts One and Four of Plaintiffs Complaint remain a part of this action with respect to Defendant Anuvia. Signed by Senior Judge Graham Mullen on 7/29/2013. (Pro se litigant served by US Mail.)(blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13CV134-GCM
HANNAH FAYE TUTTLE,

)
)
Plaintiff,
)
)
vs.
)
)
ANUVIA PREVENTION & RECOVERY )
JO-ELLEN MCQUADE, LARRY SNIDER, )
PATRICIA SMITH and KIMBERLEY
)
ANTHONY-BYNG,
)
)
Defendants.
)
_________________________
)

ORDER

This matter is before the court upon the Defendants’ Motions to Dismiss [Doc. Nos. 4
and 6] Plaintiff’s Complaint. The pro se Plaintiff has filed a response in opposition to each
motion [Doc. Nos. 9 and 10]. The matter is now ripe for disposition.
I.

FACTUAL BACKGROUND

Plaintiff, Hannah Faye Tuttle, initiated this action by filing a pro se Complaint on March
1, 2013. [Doc. No. 1]. Plaintiff’s form Complaint includes eight single-spaced pages of
factual allegations and nineteen exhibits. Plaintiff named her employer Anuvia as well as
individual Anuvia employees, Jo-Ellen McQuade, Larry Snider, Patricia Smith, and
Kimberly Anthony-Byng,1 alleging violations of Title VII of the Civil Rights Act of 1964and
the Americans with Disabilities Act (ADA) as well as state law defamation.2

1

Incorrectly identified as “Kimberley” Anthony-Bing in Plaintiff’s Complaint. [Doc. No. 1].
Plaintiff’s Complaint also includes a Count alleging retaliation as to Defendant Anuvia. However, Defendant has
not moved for the dismissal of Counts 1 and 4 at this time.
2

1

II. LEGAL STANDARD
A. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal where the court lacks
jurisdiction over the subject matter of the lawsuit. In determining whether subject matter
jurisdiction exists, a court “is to regard the pleadings’ allegations as mere evidence on the issue,
and may consider evidence outside the pleadings without converting the proceedings to one for
summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co., v. United States, 945
F.2d 765, 768 (4th Cir. 1991) (citations omitted). When reviewing a motion to dismiss pursuant
to Rule 12(b)(1), “[t]he district court should apply the legal standard applicable to a motion for
summary judgment, under which the nonmoving party must set forth specific facts beyond the
pleadings to show that a genuine issue of material facts exists,” Id. (citations omitted). This,
when a court considers its subject matter jurisdiction, the burden of proof is on the plaintiff. See
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
B. 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s complaint.
See Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). When deciding a 12(b)(6) motion
to dismiss, a court must “accept as true all factual allegations” presented in the complaint. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 589 (2007). In order to survive a 12(b)(6) motion to
dismiss, the plaintiff’s complaint must contain more than mere legal conclusions. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). A complaint must plead facts sufficient to “raise a right to
relief above the speculative level” and to demonstrate that the claim is “plausible on its face.”
Twombly, 550 U.S. at 570. The claim is facially plausible when the factual content of the
complaint allows the court to “draw the reasonable inference that the defendant is liable for the

2

misconduct.” Iqbal, 556 U.S. at 678. Thus, if a complaint establishes a sufficient legal and
factual basis for the claims asserted the motion to dismiss will be denied.
The Fourth Circuit requires district courts to construe pro se complaints liberally to
ensure that valid claims do not fail merely for lack of legal specificity. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). Ensuring that form does not trump substance also requires
courts to “look beyond the face of the complaint to allegations made in any additional materials
filed by the plaintiff” to determine whether a pro se plaintiff can survive a motion to dismiss.
Garrett v. Elko, 1997 WL 457667, at *1 (4th Cir. 1997) (per curiam) (referencing Gordon, 574
F.2d at 1149-1151). However, this liberal construction need not extend to outright advocacy for
the pro se plaintiff. Gordon, 574 F.2d at 1151. Pro se plaintiffs, with the assistance of the
district court’s lenient eye, must still do more than a “formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (internal citations omitted).
III. ANALYSIS
A. Jurisdiction Over Individual Defendants
Under well-settled precedent, this Court lacks subject matter jurisdiction over Defendants
Jo-Ellen McQuade, Larry Snider, Patricia Smith and Kimberly Anthony-Byng in their individual
capacities because Title VII and ADA claims do not permit individual liability for employment
discrimination. See Jones v. Sternheimer, 387 Fed. App’s 366 (4th Cir. 2010) (stating that Title
VII and the ADA “do not provide for causes of action against defendants in their individual
capacities”); Lane v. Lucent Technologies, Inc., 388 F. Supp 2d 590 (M.D.N.C. 2005); Harvey v.
Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) (“holding that Title VII’s employer liability is
similar to the ADEA’s in that individuals acting as an employer’s “agents” are liable in that
individuals in their official capacities only,”). Accordingly, Plaintiff’s Title VII and ADA claims

3

against the individual Defendants are dismissed.
B. Exhaustion of Administrative Remedies
Next, the individual Defendants argue that Plaintiff’s EEOC Charge failed to name them,
therefore the Court lacks subject matter jurisdiction over these parties.
Before a plaintiff may file a Title VII or ADA claim, she must first file an administrative
charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1) (stating charge-filing
requirement for Title VII claims); 42 U.S.C. § 12117(a) (incorporating and applying Title VII’s
procedural requirements to ADA claims). This requirement is more than a procedural bar. The
Fourth Circuit has clarified that a plaintiff’s failure to file a charge with the EEOC and to exhaust
the EEOC’s administrative process “deprives the federal courts of subject matter jurisdiction
over the claim.” Jones v. Calvery Group, Ltd, 551 F.3d 297, 300 (4th Cir. 2009). Indeed, courts
in the Fourth Circuit have dismissed claims under Title VII and the ADA against individuals
who were not named as respondents in the charge of discrimination. See, e.g., Causey v. Balog,
162 F.3d 795, 800-02 (4th Cir. 1998); McDaniel v. Greyhound Lines, Inc., 2008 WL 2704774 at
*2 (W.D.N.C. July 7, 2008) (dismissing plaintiff’s Title VII action against individual defendants
not named in plaintiff’s EEOC charge); Monroe v. BellSouth Telecomms., Inc., 2003 WL
22037720 at *3 (M.D.N.C. Aug. 15, 2003) (dismissing pro se plaintiff’s ADA claims against
defendants not named in plaintiff’s EEOC charge).
Here, Defendants McQuade, Snider, Smith and Anthony-Byng were not named as
respondents in Plaintiff’s EEOC charge. Instead, the only respondent named by Plaintiff is
“Anuvia “Prevention & Recovery Center.” Although the Defendants McQuade, Snider and
Smith are referenced in the “particulars” section of Plaintiff’s charge, this is not sufficient to
exhaust Plaintiff’s administrative remedies with respect to these individuals as required by Title

4

VII or the ADA. See Miller v. Ingles, 2009 WL 4325218 at *9 (W.D.N.C.) (dismissing pro se
plaintiff’s claims under federal anti-discrimination laws for lack of subject matter jurisdiction
where individuals were named in “particulars” of the charge, but not as respondents).
Plaintiff does not deny that her EEOC charge failed to name Defendants McQuade,
Snider, Smith or Anthony-Byng. Rather she argues that she exhausted her administrative
remedies with respect to the individual Defendants because Defendant McQuade and Snider (1)
“were privy to all EEOC filings”; (2) attended EEOC mediation; (3) “knew of all facts associated
with the case”; and (4) “responded to the EEOC.” [Doc. No. 9 at 3-4].
The Fourth Circuit has explained that the purpose of the naming requirement is to put a
party on notice of a complaint. Causey, 162 F.3d at 800. Here, the fact that some of the
Defendants may have had knowledge of Plaintiff’s EEOC charge against the company does not
put them on notice that they could be personally liable for the alleged violations. Therefore,
Plaintiff’s Title VII and ADA claims are also dismissed for lack of subject matter jurisdiction
due to her failure to exhaust her administrative remedies with respect to the individual
Defendants.
C. Defamation Claim
Defendants contend that Plaintiff’s state law defamation cause of action should be
dismissed because Plaintiff has failed to allege sufficient facts to state a claim for relief. Plaintiff
alleges that on the day of her termination, she was waiting in the hallway when two clients asked
“what going on” (sic) [Doc. No. 1 at 8]. Plaintiff contends that Defendant Anthony-Byng
“loudly turned to the executive director’s office and said, ‘she’s out there speaking to clients, she
can’t do that.’” [Id.]
To state a claim for defamation, a plaintiff must allege “the defendant made a false and

5

defamatory statement of or concerning the plaintiff, which was published to a third person and
caused injury to the plaintiff’s reputation.” Esancy v. Quinn, 2006 WL 322607 at *3 (W.D.N.C.)
(citations omitted). Because the statement at issue was oral and not written, the Court will
construe Plaintiff’s defamation claims as slander. Elina Adoption Servs., Inc. v. Carolina
Adoption Servs., Inc., 2008 WL 4005738 at *4 (M.D.N.C.).
With respect to the allegedly defamatory statement, there is no allegation that Defendant
Anthony-Byng’s statement was published to any third party beyond Plaintiff’s conclusory
allegation that such statement was made “in front” of her clients. [Complaint at 11]. See Lee v.
AT&T Mobility Servs. LLC, 2013 WL 1246747 at *8 (noting that statement “which was made
loudly in defendant’s office” with “some possibility it could have been overheard by unnamed
passers-by was not ‘competent evidence from which the jury might find that there was a
publication of the alleged slanderous words.’”). Moreover, there is no allegation that Defendant
Anthony-Byng’s statement was false. Thomas v. Fulton, 2007 WL 4365660 at *2 (W.D.N.C.)
(finding plaintiff failed “to meet the standards of defamation” where, inter alia, he did not allege
statements were false).

Indeed, even in her response, Plaintiff does not allege that the statement

was false. Publication and falsity are essential to establishing a defamation claim. Neither is
sufficiently alleged here.
Next, even assuming Plaintiff has sufficiently alleged publication and falsity, the claim
still fails. When a plaintiff alleges that the defamation was oral, “the allegations in the complaint
must be sufficient to satisfy the elements of either slander per se or slander per quod.” Elina
Adoption Services, 2008 WL 40057 at *4. The Court has reviewed the oral statements at issue
and has determined they do not meet the definition of slander per se. Moore v. Cox, 341 F. Supp.
2d 570, 574 (M.D.N.C. 2004). “Slander per quod involves a spoken statement of which the

6

harmful character does not appear on its face as a matter of general acceptance, but rather
becomes clear “only in consequence of extrinsic, explanatory facts showing its injurious effect . .
. .” Donovan v. Fiumara, 114 N.C. App. 524, 527 (1994) (quoting Badame v. Lampke, 242 N.C.
755, 757 (1955)). In her response to the Motion to Dismiss, Plaintiff makes clear that her
defamation claim relies on explanatory circumstances and is thus, per quod. Slander per quod
requires the same elements of defamation per se, but further requires that a party plead special
damages and malice. Lee v. AT & T mobility Servs.LLC, 2013 WL 1246747 at *7-8 (E.D.N.C.)
(citations omitted).
With respect to malice, Plaintiff’s Complaint, does not contain facts supporting such an
allegation. See Beane v. Weiman Co., 5 N.C. App. 276, 277 (1969) (citing Strong’s North
Carolina Index 2d Libel and Slander) (“the false utterance may be such as to sustain an action
only when causing some special damage (per quod), in which case the malice and the special
damage must be alleged and proved). Although Plaintiff states in her response that Ms.
Anthony- Byng’s statement was intended to be “malicious,” Plaintiff is bound by the allegations
in her Complaint and cannot survive dismissal through allegations raised for the first time in her
response. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, Plaintiff’s Complaint does not contain allegations specifically setting forth
special damages or alleging that any such damage has resulted from Ms. Anthony-Byng’s
alleged statement. A review of Plaintiff’s Complaint reveals only a single allegation of any type
of harm attributed to Ms. Anthony-Byng’s purported statement. Specifically, Plaintiff states that
she “imagines” the statement, combined with her termination, “left a less than favorable
impression” of Plaintiff and that Anuvia’s “treatment” of her “has instilled fear that [her] career

7

and reputation has been severely damages.” [Doc. No. 1 at 11].3 This allegation falls short of
the requirement to set forth actual, special damages to Plaintiff’s profession for meeting the
requirements of a per quod action. Johnson, 86 N.C. App at 12 (explaining that, at a minimum,
plaintiff must allege some damage to his trade or business to avoid dismissal).
In short, Plaintiff has failed to sufficiently plead a claim for defamation as to Defendant
Anthony-Byng. Plaintiff has pled no defamation claim as to Defendants McQuade, Snider and
Smith.4 Because Defendant Anuiva’s liability for a defamatory statement made by an employee
depends on the underlying liability of the accused employee and because Plaintiff has not stated
a claim for defamation against any individual employee, Plaintiff’s defamation claim against
Defendant Anuvia will also be dismissed. See Poole v. Copland, Inc., 481 S.E.2d 88, 95 (N.C.
App. 1997) (“When an employer’s liability is solely derivative under a theory of vicarious
liability, such a respondeat superior or ratification, the liability of the employer cannot exceed
the liability of the employee.”), rev’d on other grounds, 498 S.E.2d 602 (N.C. 1998).
D. ADA Count as To Defendant Anuvia
Plaintiff alleges a claim for disability discrimination. In Support of her ADA claim
Plaintiff alleges that at an unidentified time, her supervisor, Defendant Smith, asked if Plaintiff’s
“anxiety disorder got in the way of educations”5 and that, at another unspecified time, Defendant

3

Although Plaintiff’s alleges that Anuvia’s “negligence, malice, blatant disregard for policy and discriminatory
practice and ultimate retaliation has left her in a position of severe distress both emotionally and financially, and has
severely damaged [her] career,” there is no allegation that Plaintiff suffered any pecuniary injury as a specific result
of Ms. Anthony-Byng’s statement. [Doc. No. 1 at 12].
4
In Plaintiff’s response to Anuvia’s motion, she states that she bases her defamation claim on an alleged statement
by Ms. Smith that Plaintiff violated HIPAA. [Doc. No. 10 at 5]. Plaintiff asserts that Ms. Smith told Ms. McQuade
and Ms. Anthony-Byng that Plaintiff violated HIPAA. Even if true, such statement does not given rise to
defamation under North Carolina law. Reikowski v. Int”l Innovation Co., 2013 W: 526489 at *3 (W.D.N.C.)
(statement made by an employee of a company to another employee of the same company is not considered
published to a third party)
5
An “education” was a part of Plaintiff’s job duties in meeting with clients at Anuvia. [Doc. No 1 at 5].

8

Smith stated in reference to Plaintiff: “I feel like I’m talking to a client right now.”6 [Doc. No. 1
at 6].
To establish a prima face case of ADA discrimination, a plaintiff must show: “(1) she is
within the ADA’s protected class; (2) she suffered an adverse employment action; (3) at the time
of the adverse employment action, she was performing her job at a level that met her employer’s
legitimate expectations; and (4) the adverse employment action occurred under circumstances
giving rise to a reasonable inference of unlawful discrimination.” Gray v. Walmart Stores, Inc.,
2011 WL 4368415 at *4 (E.D.N.C.). In an ADA termination case, a plaintiff must establish that
her employment was terminated “because of her disability.” EEOC v. Stowe-Pharr Mill Inc.,
216 F.3d 373, 377 (4th Cir. 2000).
The Court notes that outside of the alleged comments by Defendant Smith, Plaintiff does
not state that she believes any adverse action was taken against her because of any purported
disability. Instead, Plaintiff specifically alleges that “[t]here is no double in [my] mind if I were
a male employee or I had not reported my supervisor . . . I would still be employed there.” [Doc.
No. 1 at 12]. In the absence of any allegations that action was taken against the Plaintiff because
of her disability, and in view of her affirmative statement that her adverse employment action
was due to reasons unrelated to her disability, the Court concludes that Plaintiff has failed to
state a claim for relief under the ADA and that her ADA claim is therefore dismissed.
E. Harassment/Hostile Working Environment Count as to Anuvia
In count three of her Complaint, Plaintiff alleges a claim for hostile work
environment/harassment. [Doc. No. 1 at 6]. In support of her claim, Plaintiff cites the following
incidents”
6

Plaintiff explains that their clients “were severally mentally ill as well as chemically dependent.” [Doc. No. 1 at
6].

9



“On February 23, 2012, I was called into the executive director’s (Larry Snider)
office. At this time I was questioned as to whether I called Kristen [a coworker] a
bitch in December . . . I was extremely upset and said I felt as if my character was
being attacked.”



“On April 16, 2012, I was accused of getting information from Dionysios [a
coworker] . . . . Pat [plaintiff’s supervisor] continued accusing me of not doing
work for the education until I finally pulled up the educations . . . . I asked her, as
I had in the past, what specifically she was expecting of me . . . . and she replied
‘there’s nothing you can do, you’re not good at this, it isn’t for you’ and then
stated she wanted me to be more like Rick and Dionysios but that wouldn’t
happen. She left my office and I was very upset.”



“I was starting to be treated differently by my peers. Rick always copied and
gave us a duplicate of our client sign in sheets, he stopped giving one to me and
continued delivering the rest of the team theirs.



“On another occasion during lunch with the clients, I was informed by Pat and
Yvonne that I should attend Alcoholics Anonymous meetings, on my own time,
because I was expecting the clients to go and so I needed to experience what they
do. To my knowledge no other staff member was asked to do this.”

[Doc. No. 1 at 6-7].
Taking all of Plaintiff’s factual allegations as true, Plaintiff cannot state a claim
for relief for hostile work environment or sexual harassment. To begin, none of
Plaintiff’s allegations establish any conduct related to or based upon Plaintiff’s gender.
Indeed, the incidents Plaintiff cites in her Complaint include incidents with various

10

supervisors and coworkers, both male and female, which bear no discernible relation to
Plaintiff’s gender. See Bass v. E.O. DuPont de Nemours & Co., 324 F.3d at 765
(Plaintiff’s “complaint is full of problems she experienced with her co-workers and
supervisors. These facts, however, do not seem to have anything to do with gender, race,
or age harassment.”); Evans v. East Carolina University, 2008 WL 4772197 at *2
(E.D.N.C.) (finding that plaintiff’s “accounting of the problems he encountered with his
coworkers and supervisors” did “not have anything to do with” his gender or race)’
Averette v. Diasorin, Inc., 2011 WL 3667218 at *3 (W.D.N.C.) (stating “all of Plaintiff’s
allegations of ‘harassment’ do nothing more than establish that she did not get along with
her co-workers, not that the Defendant or anyone else harbored any sort of discriminatory
animus . . .”).
Next, even if Plaintiff’s had made allegations sufficient to connect the incidents
described in her Complaint to her gender, none of the alleged conduct is so severe or
pervasive as to have altered the conditions of her employment or to have created an
abusive atmosphere. The Fourth Circuit has “recognized that plaintiffs must clear a high
bar in order to satisfy the severe or pervasive test.” E.E.O.C. v. Sunbelt Rentals, Inc., 521
F.3d 306, 315 (4th Cir. 2008). In this vein, it is well established that “[c]omplaints
premised on nothing more than ‘rude treatment by [coworkers],” Baqir v. Principi, 434
F.3d 733, 747 (4th Cit. 2006), ‘callous behavior by [one’s] superiors,’ Bass, 324 F.3d at
765, or a ‘routine difference of opinion and personality conflict with [one’s] supervisor,”
Hawkins v. Pepsico, Inc., 203 F.3d 274, 276 (4th Cir. 2000), are not actionable under Title
VII.” Harrison v. Se Radiology, P.A., 2013 WL 633584 at *3 (M.D.N.C.).
Given this standard, Plaintiff does not state a plausible claim for relief on a hostile

11

work environment theory as the incidents she describes in her Complaint are not “the
type of severe or pervasive gender … based activities necessary to state a hostile work
environment claim.” Bass, 324 F.3d at 764; see also Knotts v. Univ. of N. Carolina at
Charlotte, 2011 WL 650493 at *6-8 (W.D.N.C.) (granting motion to dismiss plaintiff’s
hostile work environment claim where plaintiff alleged “two incidents where she was
subjectively offended by a statement of a co-worker or supervisor” and alleged “she was
reassigned duties, required to work alone, and that her supervisor observed her while she
worked.”). The Court has reviewed Plaintiff’s Complaint and concludes that Plaintiff has
failed to establish a hostile work environment claim and therefore Plaintiff’s third count
will be dismissed.
IV. ORDER
For the reasons stated herein, it is ORDERED that:
(1) Defendants’ Motion to Dismiss [Doc. No. 4] Plaintiff’s Complaint is GRANTED;
(2) Defendants McQuade, Snider, Smith and Anthony-Byng are DISMISSED;
(3) Defendant Anuvia Prevention and Recovery Center, Inc., Partial Motion to Dismiss
Plaintiff’s Complaint [Doc. No. 6] is GRANTED;
(4) Counts Two (ADA), Three (harassment/hostile working environment) and Five
(defamation) claims are DISMISSED.
(5) Counts One and Four of Plaintiff’s Complaint remain a part of this action with respect
to Defendant Anuvia.

12

SO ORDERED.

Signed: July 29, 2013

13