Teal v. Ellis et al

Filing 40

ORDER granting in part and denying in part 31 Motion for Summary Judgment. Signed by Chief Judge Frank D. Whitney on 12/16/2013. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00169-FDW-DCK
KOREE TEAL,
Plaintiff,
vs.
CB RICHARD ELLIS,
Defendant.

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ORDER

THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment
(Doc. No. 31). Plaintiff, who appears pro se in this matter, requested additional time to respond
to the motion (Doc. No. 33), which the Court granted (Doc. No. 35). That order granting an
extension also provided a notice in accordance with Roseboro v. Garrison, 582 F.2d 309 (4th Cir.
1975), as to the burden she carries in responding to the instant motion. Plaintiff subsequently
submitted a response to the motion (Doc. No. 37), which included documents to support her
opposition to the instant motion. Defendant replied (Doc. No. 38), and this matter is now ripe
for disposition. For the reasons that follow, Defendant’s Motion is GRANTED IN PART and
DENIED IN PART.
Plaintiff’s Amended Complaint, based upon two separate but related filings before the
Equal Employment Opportunity Commission, sets forth four claims against Defendant: (1)
discriminatorily hostile or abusive work environment because of her religion in violation of Title
VII of the Civil Rights Act of 1964; (2) retaliation under Title VII; (3) negligence; and (4)
intentional infliction of emotional distress.

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The Court has reviewed the pleadings, evidence submitted by the parties, and applicable
law relative to Plaintiff’s Title VII claims for hostile work environment and retaliation. Notably,
Plaintiff’s filings are rife with inadmissible hearsay, and accordingly, the Court has excluded
those documents from consideration.

Nevertheless, the Court finds that sufficient—albeit

minimal—evidence exists in the record to show a genuine dispute as to these two Title VII
claims. Accordingly, the Court will DENY summary judgment on Plaintiff’s claims for hostile
work environment and retaliation.
As to Plaintiff’s remaining claims for negligence and intentional infliction of emotional
distress, the Court finds that Defendant is entitled to summary judgment on these claims for the
reasons stated in Defendant’s filings (Docs. Nos. 32, 38). Put simply, Plaintiff’s claim for
negligence, which relies wholly on her Title VII claims, fails because “Title VII discrimination,
harassment, and/or retaliation cannot serve as the ‘underlying tort’ in support of a claim for
negligent retention and supervision.”

Bond v. Rexel, Inc., 5:09-CV-122, 2011 WL 1578502

(W.D.N.C. Apr. 26, 2011) (citing McLean v. Patten Communities, Inc., 332 F.3d 714, 719 (4th
Cir.2003) (holding that neither retaliation nor harassment are “common law torts,” and therefore
cannot constitute prima facie element of tortious acts” for purposes of a negligent supervision
claim)).
In addition, Plaintiff’s claim for intentional infliction of emotional distress (as well as
negligent infliction of emotional distress, to the extent Plaintiff attempts to assert such a claim)
fails because Plaintiff has not presented or forecast any evidence to show she suffered severe
emotional distress. It is well-settled that:
[A] plaintiff must establish that he or she suffered severe emotional distress. See
Waddle v. Sparks, 331 N.C. 73, 83, 414 S.E.2d 22, 27 (1992). Severe emotional
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distress means “‘any . . . type of severe and disabling emotional or mental
condition which may be generally recognized and diagnosed by professionals
trained to do so.’” Id. (quoting Johnson, 327 N.C. at 304, 395 S.E.2d at 97). In
contrast, a plaintiff who suffers from temporary anxiety or mere fright not
amounting to severe emotional distress will not recover under a claim for
intentional or negligent infliction of emotional distress. Johnson, 327 N.C. at 303–
04, 395 S.E.2d at 97.
Mullis v. Mechanics & Farmers Bank, 994 F. Supp. 680, 689 (M.D.N.C. 1997). Even if the
Court were to consider Plaintiff’s only proffered piece of evidence to support her claim for
emotional distress (which is inadmissible because it is unauthenticated), it appears as though
Plaintiff sought treatment for anxiety from “ExpressMed Concord Mills” on August 2, 2011,
near the time of the filing of her first EEOC charge. (Doc. No. 37-2, p. 19). Notably, the same
document demonstrates that “Her anxiety disorder was originally diagnosed 1 year ago,” which
is approximately six months prior to Plaintiff beginning her employment with Integra and
Defendant on February 2, 2011, and long before the alleged discriminatory acts allegedly took
place. Id. Accordingly, Defendant is entitled to summary judgment on Plaintiff’s claim for
intentional infliction of emotional distress (and negligent infliction of emotional distress, to the
extent Plaintiff asserts such a claim).
This matter is currently set for trial on the Court’s January 6, 2014, docket. The Court
hereby ORDERS the trial in this matter be continued until the May 5, 2013, mixed trial term.
A pretrial conference shall take place during the Court’s motions term of April 7-18, 2014, at a
date and time to be later set by the Court. The joint pretrial submission prepared in accordance
with this Court’s standing orders and the Case Management Plain in place (Doc. No. 19) shall be
filed by April 2, 2014.

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Furthermore, the Court recently established a Pro Se Settlement Assistance Program for
the Western District of North Carolina to provide civil pro se litigants with limited advice and
representation at mediated settlement conferences. More information regarding the program can
be found on the Court’s website http://www.ncwd.uscourts.gov/pro-se-settlement-assistanceprogram.
This program was instituted after the filing of this case, and the Court finds that the
parties in this case should be given the opportunity to participate in the program. Accordingly,
the Clerk of Court shall send the pro se Plaintiff a Notice of Availability of the Settlement
Assistance Program; and Plaintiff shall return the completed Notice form to the Clerk of Court in
Charlotte within fourteen (14) days of this Order.
IT IS THEREFORE ORDERED that:
(1)

Defendant’s Motion for Summary Judgment (Doc. No. 31) is GRANTED IN
PART and DENIED IN PART as stated herein;

(2)

The Clerk of Court shall send the pro se Plaintiff a Notice of Availability of the
Settlement Assistance Program;

(3)

Plaintiff shall return the completed Notice form to the Clerk of Court in Charlotte
within fourteen (14) days; and

(4)

This matter is continued from the Court’s January 6, 2013, docket and shall be
calendared for trial during the mixed term beginning May 5, 2013.

IT IS SO ORDERED.
Signed: December 16, 2013

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