Saniri v. Christenbury Eye Center, P.A. et al

Filing 41

ORDER denying 28 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Frank D. Whitney on 12/5/17. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00474-FDW-DSC
NILOUFAR SANIRI,

)
)
Plaintiff,
)
)
vs.
)
)
CHRISTENBURY EYE CENTER, P.A., )
JONATHAN CHRISTENBURY, M.D. and )
ELLIE PENA-BENARROCH,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court upon Defendants’ partial Motion to Dismiss (Doc. No.
28) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff
responded (Doc. No. 37), and Defendant replied to Plaintiff’s response (Doc. No. 39). This matter
is now ripe for review. For the following reasons, the Court DENIES Defendants’ Motion.

I. BACKGROUND
Plaintiff, Niloufar Saniri, is a former employee of Defendant, Christenbury Eye Center
(“CEC”). (Doc. No. 23, p. 2). Defendant, Jonathan Christenbury, M.D., is the majority shareholder
of CEC, and Defendant, Ellie Pena-Benarroch, is its Chief Operating Officer. Id. at 3.
On or about July 11, 2017, Plaintiff filed her action against Defendants in Mecklenburg
County Superior Court. (Doc. No. 1, p. 2). Defendants timely filed a Notice of Removal on August
11, 2017, asserting federal question jurisdiction. On October 3, 2017, Plaintiff filed her corrected
Amended Complaint stating the following eight causes of action: (1) violations of Title VII based
on sex, quid pro quo sexual harassment, hostile work environment based on sex, retaliation, and
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wrongful termination against CEC and Dr. Christenbury; (2) wrongful discharge in violation of
public policy based on sex against CEC and Dr. Christenbury; (3) assault against CEC and Dr.
Christenbury; (4) battery against Dr. Christenbury and CEC; (5) intentional infliction of emotional
distress against CEC and Dr. Christenbury; (6) intentional infliction of emotional distress against
Pena-Benarroch; (7) North Carolina Wage and Hour violations against all Defendants; and (8)
breach of contract against CEC and Dr. Christenbury. (Doc. No. 23, p. 36-53).
The claims stem from Plaintiff’s employment relationship with Defendants beginning at
an undisclosed time in the fall of year 2014. Id. at 23. Plaintiff alleges that she worked in a
marketing capacity with CEC but also performed personal assistant services for Dr. Christenbury
for which she was paid in cash. Id. During her tenure with CEC, Plaintiff alleges that she was
subjected to sexual harassment, hostile work environment, retaliation, intentional infliction of
emotional distress, and wrongful termination. Id. at 1. Plaintiff filed two charges of discrimination
with the Equal Employment Opportunity Commission (“EEOC”) and received notices of right to
sue on or about March 31, 2017. Id. at 4.
Defendants filed this Motion to Dismiss on October 31, 2017. (Doc. No. 28). Plaintiff
responded (Doc. No. 37), Defendants Replied (Doc. No. 39), and this motion is now ripe for
review.

II. STANDARD OF REVIEW
Plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The
existence of subject matter jurisdiction is a threshold issue the court must address before
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considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th
Cir. 1999). When a defendant challenges subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1), “the district court is to regard the pleadings as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Richmond, 945 F.2d at 768. The district court should grant the Rule 12(b)(1) motion
to dismiss “only if the material jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.” Id. See also Evans v. B.F. Perkins Co., 166 F.3d 642, 647
(4th Cir. 1999).
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the “legal sufficiency of the
complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992);
Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Robinson v.
American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id. The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not necessary; the statement need only
“give the defendant fair notice of what the . . . claim is and the
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grounds upon which it rests.” In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56) (internal
citations omitted).

III. ANALYSIS
A. Plaintiff’s Title VII claims against Dr. Christenbury survive.
a. Plaintiff did not fail to exhaust her administrative remedies as to Dr.
Christenbury.
Defendants argue that Plaintiff’s Title VII claims against Dr. Christenbury should be
dismissed pursuant to Rule 12(b)(1) because Plaintiff failed to exhaust her administrative remedies
as to him. (Doc. No. 29, p. 3). While Plaintiff did file two Charges of Discrimination with the
EEOC, Defendants argue that because Plaintiff did not name Dr. Christenbury as a party in either
of the two charges, the Title VII claims must be dismissed. Id. at 4. Plaintiff retorts that Dr.
Christenbury was adequately named as he was referenced by name multiple times in both charges.
(Doc. No. 37, p. 5). For the reasons that follow, the Court determines that the EEOC charges did
adequately name Dr. Christenbury.
An EEOC charge must sufficiently describe the alleged discriminatory acts and identify
the accused parties so as to (1) notify the EEOC and the employer of the scope of the allegations
and (2) provide an opportunity for voluntary compliance. Chacko v. Patuxent Inst., 429 F.3d 505,
508-510 (4th Cir. 2005). Title VII does not require procedural exactness, however, and because
EEOC charges are often filed by non-lawyer complainants, courts often construe the naming
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requirement liberally. See Kouri v. Todd, 743 F. Supp. 448, 451 (E.D. Va. 1990) (citing Alvarado
v. Board of Trustees, 848 F.2d 457, 460 (4th Cir. 1988)). An example of such is the “substantialidentity exception.” See, e.g., McDaniel v. Greyhound Lines, Inc., No. 3:08-CV-130-FDW, 2008
WL 2704774, at *1 (W.D.N.C. July 7, 2008). This exception allows unnamed respondents in the
EEOC charge to be held liable in civil actions where they have been given adequate notice by the
administrative charge. Id. Factors for determining substantial-identity include:
(1) Whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; (2)
whether, under the circumstances, the interests of a named party [party] are so
similar as the unnamed party’s that for the purposes of obtaining voluntary
conciliation and compliance it would be unnecessary to include the unnamed party
in the EEOC proceedings; (3) whether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the unnamed party; (4) whether the
unnamed party has in some way represented to the complainant that its relationship
with the complainant is to be through the named party.
Id.
The Court views the first and third factors as most significant to the case at bar. Even
though Dr. Christenbury’s name was not written in the “Name” box of the EEOC charges, his
name appears numerous times throughout the documents. And not only is his name referenced
numerous times, a brief reading of the charge particulars reveals that his alleged conduct was the
impetus for and central focus of Plaintiff’s charges. (Docs. Nos. 33-2 and 33-4). Furthermore, Dr.
Christenbury purportedly did receive actual notice of both charges and was even interviewed
during the EEOC investigation. (Doc. No. 37-1, p. 2-3.) Given the facts alleged, the Court
determines that substantial identity exists such that Dr. Christenbury was not prejudiced. See Kouri
v. Todd, 743 F. Supp. 448, 453 (E.D. Va. 1990) (holding that where a Title VII administrative
charge named only a corporate employer, but the core of the charge concerned an individual
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employee’s conduct, and the employee received notice and was not prejudiced, the technical
failure to name the employee in the EEOC charge did not bar subsequent civil action).
Accordingly, the Court rejects Defendants’ argument.

b. Dr. Christenbury could be held individually liable for a violation of Title
VII under a theory of piercing the corporate veil.
Defendants further argue that Dr. Christenbury cannot be individually liable for a violation
of Title VII because liability under Title VII extends only to employers. (Doc. No. 29, p. 5).
Plaintiff contends that Dr. Christenbury may be found individually liable under a theory of piercing
the corporate veil. (Doc. No. 37, p. 7). For the following reasons, this Court determines that
Plaintiff alleges sufficient facts to support a veil piercing theory.
In general, a supervisor may not be held liable in their individual capacity for Title VII
violations. Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180 (4th Cir. 1998). Given certain
circumstances, however, an individual can be held liable for Title VII violations under a corporate
veil piercing theory. Burnette v. Austin Med., Inc., No. 1:11CV52, 2011 WL 1769445, at *4
(W.D.N.C. Apr. 14, 2011), report and recommendation adopted, No. 1:11CV52, 2011 WL
1754166 (W.D.N.C. May 9, 2011) (citations omitted) (“an individual who is not a formal employer
of a plaintiff under the statute can, in limited circumstances, be a proper defendant under Title VII
under a piercing the corporate veil theory.”). A Title VII violation alone, however, is insufficient
to pierce the corporate veil; the party seeking to pierce must demonstrate that the defendant has
abused the corporate form and that piercing the corporate veil is necessary to prevent injustice or
fundamental unfairness. See id. at 5; see also DeWitt Truck Brokers, Inc. v. W. Ray Flemming

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Fruit Co., 540 F.2d 681, 687 (4th Cir.1976); see also Mayes v. Moore, 419 F.Supp.2d 775, 781
(M.D.N.C. 2006).
The question here is whether Plaintiff has alleged facts sufficient to support a veil piercing
theory. A court may disregard the corporate form and impose liability under the alter-ego theory
when (1) the shareholder dominates and controls the organization and (2) imposing such liability
is needed to avoid injustice. Mayes, 419 F.Supp.2d at 781. Courts have stated that fraud; gross
undercapitalization; failure to observe corporate formalities; siphoning of the corporation’s funds;
non-functioning of officers and directors; absence of corporate records; and the fact that the
corporation is merely a facade, are all relevant factors to be considered. See e.g., id. While the
plaintiff carries a heavy burden when attempting to pierce the corporate veil, North Carolina courts
recognize the equitable nature of alter ego theory, and as a result they do not focus on the presence
or absence of a particular factor, but instead apply the doctrine flexibly to avoid injustice. Avanti
Hearth Prod., LLC v. Janifast, Inc., No. 3:10-CV-00019-FDW, 2010 WL 3081371, at *5
(W.D.N.C. Aug. 6, 2010).
Plaintiff alleges, among other things, that Dr. Christenbury owns, operates, and controls
CEC; refers to himself as a “God” of LASIK during CEC staff meetings; has been fraudulently
transferring and hiding CEC’s assets in anticipation of litigation; and has a pattern of “using CEC
to shield himself from personal liability in order to commit unlawful acts.” (Doc. No. 23).
These allegations assert facts sufficient to support a plausible argument for piercing the
corporate veil and holding Dr. Christenbury personally liable for his alleged Title VII violations.
If after discovery, however, the evidence indicates that piercing the corporate veil is not

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appropriate, then Plaintiff’s Title VII claim against Dr. Christenbury would be subject to dismissal
at that time.

B. Plaintiff’s wrongful discharge in violation of public policy claims against CEC
and Dr. Christenbury survive.
a. Plaintiff properly states a claim for wrongful discharge in violation of
public policy as set forth in NCEEPA.
Defendants argue that Plaintiff’s wrongful discharge in violation of public policy
(“WDPP”) claim should be dismissed because North Carolina courts have repeatedly rejected
attempts by plaintiffs to bring wrongful discharge claims under the North Carolina Equal
Employment Practices Act (“NCEEPA”) based on allegations of retaliation. (Doc. No. 29, p. 7).
While the Fourth Circuit has held that there is no private right of action under the NCEEPA
for sexual harassment, it has determined that there is a private right of action under North Carolina
common law for violation of public policy, specifically the NCEEPA, when an employee is
discharged for refusing the sexual advances of her supervisor. See e.g., Smith v. First Union
National Bank, 202 F. 3d 234, 247 (4th Cir. 2000); McLean v. Patten Communities, Inc., 332 F.3d
714, 722 (4th Cir. 2003). In other words, the Fourth Circuit allows those claims that allege
wrongful discharge because of the plaintiff’s refusal of sexual advances from her supervisor but
disallows claims that merely allege sexual harassment and not wrongful discharge. See Townsend
v. Shook, 323 Fed. Appx. 245, 251 (4th Cir. 2009) (“The distinguishing feature between the claim
disallowed in Smith and the claim allowed in McLean, is that the claim allowed in McLean alleged
a wrongful discharge because of the plaintiff’s refusal of sexual favors to her supervisor, while the
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claim disallowed in Smith did not allege wrongful discharge, just sexual harassment.”).
Consequently, a claim of wrongful discharge under the NCEEPA is actionable, but any additional
state claims, separate from the claim of wrongful discharge, asserted under the NCEEPA should
be dismissed. Moore v. Time Warner Cable, Inc., No. CIV.3:09CV3-V, 2009 WL 3754225, at *5
(W.D.N.C. Nov. 5, 2009).
Here, Plaintiff asserts a claim for wrongful discharge in violation of public policy set forth
in NCEEPA based on sex against CEC and Dr. Christenbury. (Doc. No. 23, p. 39). This Court
finds that such a claim is consistent with claims allowed by the Fourth Circuit in McLean and this
Court in Chambers v. Ashley Furniture Industries, Inc. No. 3:10CV362-RJC-DSC, 2010 WL
4977102, at *5 (W.D.N.C. Nov. 9, 2010), report and recommendation adopted, No. 3:10-CV-362RJC-DSC, 2010 WL 4975495 (W.D.N.C. Dec. 1, 2010).
Accordingly, Plaintiff’s claim for wrongful discharge in violation of public policy based
on sex survives.
b. Dr. Christenbury can be held individually liable for a claim of wrongful
discharge in violation of public policy.
Defendants further argue that Plaintiff’s wrongful discharge claim fails because it cannot
be brought against Dr. Christenbury as an individual. (Doc. No. 29, p. 8).
While the NCEEPA does permit a claim of wrongful discharge, such claims must be
brought against employers, not supervisors or employees. See e.g., Di Wang v. WOW Brows, No.
1:14CV566, 2014 WL 5808370, at *2 (M.D.N.C. Nov. 7, 2014).
Plaintiff argues, however, that Dr. Christenbury is individually liable for this claim through
a theory of piercing the corporate veil. Because the Court determined above that Plaintiff has pled
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sufficient facts to support piercing the corporate veil, Plaintiff’s claim for wrongful discharge in
violation of public policy against Dr. Christenbury survives.

IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ partial Motion to Dismiss (Doc. No. 28)
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure is DENIED. As
stated above, Plaintiff alleges sufficient facts to support her claims such that dismissal is not
appropriate at this time. The Court’s ruling is without prejudice so that Defendants’ may reassert
their arguments at summary judgment following discovery.
IT IS SO ORDERED.

Signed: December 5, 2017

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