Summary
invoking North Carolina's Equal Employment Protection Act ("NCEEPA") in interpreting a pro se Plaintiff's wrongful discharge claim
Summary of this case from Arbia v. Owens-Illinois, Inc.Opinion
No. 1:01CV00093
March 21, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Lamont Ijames ("Ijames"), proceeding pro se, filed this action against his former employer, Freightliner Corporation ("Freightliner" or "Company"), and his former supervisor, Jimmy Murdock ("Murdock"). Plaintiff alleges the following claims against Defendants: race discrimination and retaliation pursuant to 42 U.S.C. § 1983; race discrimination and retaliation pursuant to Article I, § 19 of the North Carolina Constitution; violation of public policy based on race discrimination and retaliation; intentional infliction of emotional distress; and negligent infliction of emotional distress. Plaintiff also implicitly asserts a claim of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII). Defendants Murdock and Freightliner ("Defendants") have moved the court to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated herein, Defendants' Motion to Dismiss plaintiff's claims will be granted in part and denied in part.
Plaintiff names Thomas Built Buses, Inc. as his employer. Although Thomas Built Buses is a wholly-owned subsidiary of Freightliner Corporation, plaintiff's employer was Freightliner. (Mem. Supp. Defs.' Mot. Dismiss at 2 n. 1.)
I. FACTUAL BACKGROUND
The facts as pleaded by Plaintiff are as follows. Plaintiff was employed by Freightliner. On or about February 9, 2000, Plaintiff filed a complaint with the Company's Human Resources Department against Defendant Murdock and was informed that an investigation would be conducted. The next day, Plaintiff was informed that an investigation was not needed.
On March 11, 2000, Defendant Murdock, a supervisor at the Company, told Plaintiff and a co-worker that they would lose their jobs if their production decreased. Plaintiff met with Meredith Wagoner Morris, Tommy Yaraborough ("Yaraborough"), and Defendant Murdock that day. Defendant Murdock informed plaintiff that because Plaintiff requested a meeting with Yaraborough, he was terminated from the Company. Also, on March 11, 2000, Defendant Murdock denied Plaintiff's request to leave work early. Upon plaintiff's response, Plaintiff was escorted off the premises. plaintiff's employment with the Company ended on March 13, 2000. (Compl. ¶ 25.)
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 20, 2000, (id. ¶ 7), alleging a claim of racial discrimination against Defendants. (Mem. Supp. Defs.' Mot. Dismiss Ex. A.) The EEOC dismissed the charge and issued Plaintiff a right-to-sue letter on September 28, 2000, stating that the EEOC could not investigate Plaintiff's charge because it was not filed within the time limit required by law. (Id. Ex. B.) Plaintiff initiated this civil action on January 23, 2001.
In his response to Defendants' Motion to Dismiss, Plaintiff alleged for the first time that "Ms. Mackie an investigator of the EEOC had violated this] rights . . . [by] refusing to allow [him] to file a charge within the month of April of 2000." (Pl.'s Resp. Dismissal.) Plaintiff also stated that on September 20, 2000, he informed Mike Whitlow ("Whitlow"), the enforcement manager of the EEOC, that Ms. Mackie refused to allow him to file a charge. Whitlow told Plaintiff that the EEOC shreds all sign-in logs after 60 days. Whitlow then allowed plaintiff to file a charge of discrimination.
At the request of the court, Defendants submitted the affidavit of Denene Burnette ("Burnette"), formerly Denene Mackie, who was previously employed in the Greensboro office of the EEOC. Burnette averred that while she had no specific recollection of plaintiff Ijames, she specifically denied the allegation that she refused to allow him to file an EEOC charge because during her employment at the EEOC, she never refused to allow any person to submit an EEOC charge. (Burnette's Aff.)
II. DISCUSSION
Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted. A motion to dismiss tests the legal sufficiency of the plaintiff's complaint. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224, 1227 (M.D.N.C. 1996). A motion to dismiss may not be granted unless "it can be said that on the claim as pleaded the claimant can prove no set of facts that would entitle [him] to relief." Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995). In considering a motion to dismiss, the court must accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Fourth Circuit has stated that "[u]nder the liberal rules of federal pleading, a complaint should survive a motion to dismiss if it sets out facts sufficient for the court to infer that all the required elements of the cause of action are present." Wolman v. Tose, 467 F.2d 29, 33 n. 5 (4th Cir. 1972). Although courts hold pleadings drafted by pro se complainants to a less stringent standard,Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972), courts do require a pro se complaint to contain enough information to substantiate the alleged claims.
A. Title VII Claim for Racial Discrimination and Retaliation
Plaintiff alleges that this "action is instituted . . . to recover for discrimination and retaliation committed by Defendants in the course of employment, in violation of Title VII of the Civil Rights Act of 1964." (Compl. ¶ 1.) According to the charge of discrimination, Defendants violated Plaintiff's Title VII rights because of his race, black. (Mem. Supp. Defs.' Mot. Dismiss Ex. A.)
In support of Defendants' motion to dismiss, Defendants have submitted as exhibits copies of the charge of discrimination and the right-to-sue letter. In deciding a Rule 12(b)(6) motion, the court may consider the facts stated in the complaint and the documents attached to the complaint. See Abadian v. Lee, 117 F. Supp.2d 481, 485 (D. Md. 2000). The court may also consider documents referred to in the complaint and relied upon by plaintiff in bringing the action. See id. (citingBiospherics, Inc. v. Forbes, Inc., 989 F. Supp. 748, 749 (D. Md. 1997),aff'd, 151 F.3d 180 (4th Cir. 1998)). In the present case, the court can consider Defendants' exhibits without having the motion to dismiss converted into one for summary judgment under Federal Rule of Civil Procedure 56. Plaintiff's complaint refers to both the charge of discrimination and the right to sue letter. Furthermore, these documents are central to Plaintiff's claim in that Plaintiff must rely on these documents to establish that he has exhausted his administrative remedies under Title VII.
1. Title VII Liability of Defendant Murdock
The court notes as a preliminary matter that only employers are liable for illegal acts of employment discrimination against employees under Title VII. See Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998). Individual supervisors, such as Defendant Murdock, have no personal liability under Title VII because they are not employers within the meaning of Title VII. See id. Therefore, plaintiff's Title VII claims for discrimination and retaliation against Defendant Murdock will be dismissed with prejudice.
2. Racial Discrimination
With respect to Plaintiff's remaining Title VII claim for racial discrimination against Defendant Freightliner, Defendant contends that this claim should be dismissed for failure to exhaust administrative remedies. Before filing a civil suit alleging violations of Title VII, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC within 180 days of the alleged act of discrimination. See 42 U.S.C. § 2000e-5(e); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000); Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999). Plaintiff alleges in his complaint that he was discharged by Defendant Freightliner on March 13, 2000. He states that he filed a charge of discrimination with the EEOC on September 20, 2000, alleging racial discrimination by his former employer. Thus, by plaintiff's own admission, more than 180 days elapsed between the date Plaintiff was discharged and the date Plaintiff filed the EEOC charge. The EEOC also issued Plaintiff a right-to-sue letter, noting that Plaintiff's charge could not be investigated because it was not filed within the time limit required by law. Based on these findings, the court would typically grant a defendant's motion to dismiss for failure to exhaust administrative remedies.
However, in his response, Plaintiff alleged for the first time that "Ms. Mackie an investigator of the EEOC had violated [his] rights . . . [by] refusing to allow [him] to file a charge within the month of April of 2000." (Pl.'s Resp. Dismissal.) Plaintiff could not verify that he attempted to file a charge in April because the EEOC shreds all sign-in logs after 60 days.
At the request of the court, Defendants submitted the affidavit of Denene Burnette, who was previously employed in the Greensboro office of the EEOC. Burnette averred that while she had no specific recollection of plaintiff, she specifically denied that she refused to allow him to file an EEOC charge because she never refused to allow any person to submit an EEOC charge. (Burnette Aff.)
Although Plaintiff has not argued that the EEOC's alleged failure to allow him to file a charge of discrimination should invoke application of one of the equitable exceptions to Title VII's exhaustion requirements, estoppel or equitable tolling, the court has considered these doctrines and finds that limited discovery is necessary to determine whether there is any reasonable basis to conclude that Plaintiff attempted to timely submit a charge of discrimination to the EEOC. Equitable tolling applies where "the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action." English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). Equitable estoppel applies where, "despite the plaintiff's knowledge of the facts, the defendant engages in intentional misconduct to cause the plaintiff to miss the filing deadline." Id. In Title VII cases, courts have extended these equitable doctrines to apply where the plaintiff alleges that they were misled by the EEOC rather than the defendant. See, e.g., Johnson v. Al Tech Specialities Steel Corp., 731 F.2d 143, 146 (4th Cir. 1984) (finding that an EEOC official's erroneous advice about filing deadline, when substantiated, could be basis for equitable tolling); Waiters v. Robert Bosch Corp., 683 F.2d 89, 92 (4th Cir. 1982) (finding that Title VII's limitation period should be tolled when the plaintiff's late filing resulted from the delay of the complaint once it reached the EEOC's office); Citicorp Person-to-Person Fin. Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981) (finding that "a clear violation of [a] regulation by [the] EEOC might warrant the finding of a tolling effect")
Therefore, the court will deny Defendant Freightliner's motion to dismiss Plaintiff's Title VII claim for racial discrimination in order to permit further discovery to determine whether there is any reasonable basis to conclude that Plaintiff timely submitted a charge of discrimination to the EEOC.
3. Retaliation
Plaintiff also alleges a Title VII claim against Defendant Freightliner for retaliation. As an initial matter, the court must address the scope of plaintiff's Title VII claim. The scope of a civil action is limited to those claims that are stated in the initial EEOC charge, claims that are "reasonably related" to the EEOC charge, and claims that could be expected to follow from a "reasonable administrative investigation" of the EEOC charge. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000); Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
In this case, plaintiff's EEOC charge indicates it is based solely on racial discrimination. Specifically, plaintiff checked only the box for "race" when responding to a question about the type of discrimination he faced, and the narrative in the EEOC charge refers only to discrimination because of Plaintiff's race. (Mem. Supp. Defs.' Mot. Dismiss Ex. A.) However, Plaintiff's complaint alleges that Defendant Freightliner discriminated and retaliated against him. (Compl. ¶ 1.) plaintiff's allegation of retaliation set forth in his complaint is not "reasonably related" to Plaintiff's discrimination charge. See, e.g., Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222-23 (8th Cir. 1994) (holding that racial discrimination claims were not related to retaliation claim where plaintiff marked only the retaliation box and narrative section did not list facts raising issue of discrimination);cf. Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998) (holding that sexual harassment claim was not related to retaliation claim where plaintiff checked only the retaliation box and narrative section contained no reference to sexual harassment). Furthermore, administrative investigation of retaliation could not reasonably be expected to occur in light of plaintiff's sole charge of race discrimination. See Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132-33 (4th Cir. 2002) (holding that investigation of retaliation, color, and sex discrimination could not reasonably be expected to occur in light of plaintiff's sole charge of race discrimination, and the investigation of the complaint did not touch on any matters other than race discrimination). Therefore, because the scope of plaintiff's complaint exceeds the limits set by the allegations in Plaintiff's EEOC charge, the court must dismiss Plaintiff's retaliation charge for failure to exhaust administrative remedies.
B. Title 42, United States Code, Section 1983
Plaintiff alleges that Defendant Murdock deprived him of his Fourteenth Amendment rights while "acting under color of state and local laws." (Compl. ¶ 15.) plaintiff also contends that Defendant Freightliner is liable for Murdock's actions because the "violations arose from the Company's official action, policy or custom in condoning and failing to address discrimination." (Id. ¶ 16.) Defendants argue that plaintiff's claim should be dismissed because Plaintiff fails to allege any State action. Section 1983 provides that:
[e]very person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. Liability under § 1983 only extends to individuals acting under color of law. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 985 (1999). Cases construing § 1983 have treated the "under color" of law language as equivalent to the "state action" requirement under the Fourteenth Amendment. See Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 215 (4th Cir. 1993) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769 (1982)). Thus, conduct is only actionable under § 1983 when it is "fairly attributable to the state." United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995); see also American Mfrs., 526 U.S. at 50, 119 S.Ct. at 985 (stating that "the under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'"). The Fourth Circuit has stated that conduct by a private entity may be fairly attributable to the state (1) when a sufficiently close nexus exists between a regulated entity and a state such that the actions of the regulated entity are fairly treated as those of the state; (2) when the state has exercised coercive power or has provided such significant encouragement that the action must be deemed that of the state; and (3) when the private entity has exercised powers that are traditionally the exclusive prerogative of the state. See Mentavlos v. Anderson, 249 F.3d 301, 313 (4th Cir. 2001) (citingHaavistola, 6 F.3d at 215). With respect to pleading requirements, "[c]onclusory allegations that [a party) acted under color of state law will not suffice." Wolfe v. Bias, 601 F. Supp. 426, 428 (S.D. W. Va. 1984) (citing District 28, United Mine Workers of America v. Wellmore Coal Corp., 609 F.2d 1083, 1086 (4th Cir. 1979)).
In the present case, Plaintiff's complaint fails to allege any facts which would support his contention that Defendant Murdock, an employee of a private corporation, acted under color of state law, or that the conduct of Defendants Murdock and Freightliner could be "fairly attributable to the state." Plaintiff has also failed to further explain this conclusory allegation in his response. Accordingly, this court finds that Plaintiff Ijames has not alleged facts sufficient to maintain a claim under § 1983 and, therefore, his claim based on § 1983 will be dismissed.
C. Violation of the North Carolina Constitution
Plaintiff alleges that Defendants violated his rights under Article I, Section 19 of the North Carolina Constitution. Specifically, plaintiff alleges that Defendant Murdock, "acting under color of state and local laws, denied to Plaintiff his state constitutional rights to be free from discrimination and retaliation." (Compl. ¶ 20.) Plaintiff contends that Defendant Freightliner is liable for Defendant Murdock's actions because the "violations arose from the Company's official actions, policy or custom in condoning and failing to address discrimination. (Id. ¶ 21.) Defendants argue that Plaintiff's claim should be dismissed because Plaintiff has failed to allege state action.
Article I, Section 19 of the North Carolina Constitution, is considered the equivalent of the due process clause of the United States Constitution. See Buchanan v. Hight, 133 N.C. App. 299, 305, 515 S.E.2d 225, 230 (1999). Similar to a § 1983 claim under the United States Constitution, a claim under the North Carolina Constitution requires state action. See Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992) ("The civil rights guaranteed by the Declaration of Rights in Article I of our Constitution are individual and personal rights entitled to protection against state action."). The North Carolina Constitution is not intended to protect its citizens' rights from the actions of other individuals. See id. at 787-88, 289 S.E.2d at 293.
Plaintiff's complaint fails to allege any facts that indicate Defendants Murdock or Freightliner are governmental or state actors. Therefore, Plaintiff's claim for violation of his rights under the North Carolina Constitution will be dismissed.
D. Wrongful Discharge in Violation of Public Policy
Plaintiff next alleges that on March 13, 2000, he was discharged by virtue of Defendants' racial discrimination and retaliation. Plaintiff contends that his wrongful discharge was "in violation of the public policy of the State of North Carolina." (Compl. ¶¶ 24-26.)
1. Defendant Murdock
An action for wrongful discharge will lie against only an employer and not against an individual employee. See Cox v. Indian Head Indus., Inc., 187 F.R.D. 531, 536 (W.D.N.C. 1999) (citing Lorbacher v. Housing Auth. of City of Raleigh, 127 N.C. App. 663, 671. 493 S.E.2d 74, 79 (1997)); Chung v. BNR, Inc./Northern Telecom, Inc., 16 F. Supp.2d 632, 634 (E.D.N.C. 1997). Defendant Murdock's motion to dismiss Plaintiff's wrongful discharge claim will be granted.
2. Defendant Freightliner
Plaintiff fails to identify the basis for his allegation that Freightliner violated North Carolina's public policy against employment discrimination or retaliation. However, construing the complaint in the light most favorable to Plaintiff, his wrongful discharge action could be interpreted as invoking North Carolina's Equal Employment Protection Act (NCEEPA), which articulates a policy against racial discrimination in employment. See N.C. Gen. Stat. § 143-422.2.
North Carolina strictly adheres to the employment-at-will doctrine pursuant to which an employee may be discharged "for no reason, or for an arbitrary or irrational reason." Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (1985)). North Carolina courts, however, have recognized a limited exception to that doctrine to protect employees who are terminated in violation of public policy. The North Carolina Supreme Court has stated that "public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes." Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). The NCEEPA declares that the "public policy of this State" is to prohibit employment discrimination on the basis of race by employers who have 15 or more employees. See N.C. Gen. Stat. § 143-422.2.
It appears from Plaintiff's pro se complaint that Plaintiff is alleging two claims of wrongful discharge in violation of North Carolina's public policy, as set forth in NCEEPA. First, Plaintiff alleges a claim of racial discrimination in violation of public policy. (Compl. ¶¶ 24-25.) Second, Plaintiff alleges a claim of retaliatory discharge in violation of public policy. (Id.) Plaintiff's claim for retaliatory discharge will be dismissed. Federal courts in this circuit have held that there is no public policy exception for retaliatory discharge. See, e.g., Stout v. Kimberly Clark Corp., 201 F. Supp.2d 593, 607 (M.D.N.C. 2002); Mullis v. Mechanics Farmers Bank, 994 F. Supp. 680, 688 (M.D.N.C. 1997);Leach v. Northern Telecom, Inc., 141 F.R.D. 420, 426 (E.D.N.C. 1991). Furthermore, the NCEEPA does not express a public policy with respect to retaliation for opposition to any form of discriminatory practice. See N.C. Gen. Stat. § 143-422.2. Thus, the court will dismiss Plaintiff's claim for retaliatory discharge in violation of public policy.
The court now turns to Plaintiff's claim that Defendant Freightliner discharged him in violation of North Carolina's public policy against racial discrimination. Defendant Freightliner first contends that Plaintiff failed to state a claim because Plaintiff stated in his complaint that it is the public policy of North Carolina that "employees of local government be free from discrimination" in employment. (Compl. ¶ 24.) Defendant Freightliner asserts that Plaintiff was not an employee of local government but was instead an employee of Freightliner, a private corporation, and thus, Plaintiff relies on public policy that does not pertain to him. This argument is not persuasive. Although Plaintiff, acting pro se, did make an incorrect statement, Plaintiff does allege that it is "contrary to the public policy of the State of North Carolina to discriminate or retaliate against an employee of Thomas Built Buses, Inc., based on his color." (Id.) Plaintiff's EEOC charge, which is incorporated by reference in the complaint, also alleges sufficient facts to support plaintiff's claim that he was discriminated against because of his race.
Defendant Freightliner also contends that Plaintiff's claim should be dismissed because North Carolina does not recognize a claim for "constructive wrongful discharge." (Mem. Supp. Defs.' Mot. Dismiss at 12.) Defendant's contention is misplaced, however, because Plaintiff's EEOC charge states that Plaintiff was "discharged by [his] immediate Supervisor," and "[a]nother Black coworker along with [Plaintiff] were discharged on 03-13-00." (Mem. Supp. Defs.' Mot. Dismiss Ex. A.)
Therefore, the court will deny Defendant Freightliner's motion to dismiss Plaintiff's claim for wrongful discharge in violation of North Carolina's public policy against racial discrimination.
E. Intentional Infliction of Emotional Distress
Plaintiff next asserts a claim for intentional infliction of emotional distress based upon alleged racial discrimination and retaliation by Defendants. (Compl. ¶¶ 29-32.) To state a claim for intentional infliction of emotional distress in North Carolina, Plaintiff must properly allege facts showing "1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress." Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). "The claimant's burden of proof is a high one." Ausley v. Bishop, 133 N.C. App. 210, 220, 515 S.E.2d 72, 79 (1999)
Defendants assert that as a matter of law none of the conduct alleged by Plaintiff was sufficiently extreme and outrageous to satisfy the first element of his intentional infliction of emotional distress claim. See Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990). To be considered "extreme and outrageous" the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123 (1986) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)). A plaintiff must prove that the defendant's conduct exceeded "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." See Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311 (1985) Furthermore, it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to support a claim of intentional infliction of emotional distress. See Wilson v. Southern Nat'l Bank of N.C., Inc., 900 F. Supp. 803, 811-12 (W.D.N.C. 1995).
The court finds that Plaintiff has failed to allege sufficient facts to state a claim for intentional infliction of emotional distress. Even taking all of Plaintiff's allegations as true, Plaintiff's grievances primarily concern facially neutral employment related statements which Plaintiff subjectively feels were due to racial animus. Essentially, Plaintiff alleges: (1) the Company made a decision that an internal investigation was not needed; (2) Defendant Murdock denied Plaintiff's request to leave work early, and Plaintiff was escorted off the Company's premises after Plaintiff made a certain response to Defendant Murdock; (3) Plaintiff's supervisor told him that he would be discharged from the Company for requesting a meeting with his supervisor's boss; and (4) Plaintiff's supervisor told him that he would lose his job if he did not meet production goals. (Compl. ¶¶ 9-12.) These alleged statements, while displeasing to Plaintiff, are not so outrageous or extreme that they go "beyond all possible bounds of decency" or are "utterly intolerable in a civilized community." Hogan, 79 N.C. App. at 493, 340 S.E.2d at 123. Even if the court found that the comments and actions taken with respect to Plaintiff were completely unjustified, Defendants' actions would still fall short of the level of conduct required to state a claim for intentional infliction of emotional distress under North Carolina law. See. e.g., Pandasani v. Rack Room Shoes, Inc., 912 F. Supp. 187, 192 (M.D.N.C. 1996) (conduct was not "extreme and outrageous" where the plaintiff alleged the defendant gave him negative performance evaluations, denied him promotions given to others, denied him training, and discharged him); Hogan, 79 N.C. App. at 493, 340 S.E.2d at 122-23 (conduct was not "extreme and outrageous" where the defendant screamed and shouted at the plaintiff, threw menus at the plaintiff, and interfered with the plaintiff's ability to supervise others); Trought v. Richardson, 78 N.C. App. 758, 763, 338 S.E.2d 617, 620 (1986) (conduct was not "extreme and outrageous" where the plaintiff alleged that her employer fired her for refusing to violate company procedures and where defendant informed its employees plaintiff was discharged for lack of credibility).
Because Plaintiff has failed to allege facts sufficient to establish extreme and outrageous conduct on the part of Defendants, Plaintiff has failed to state a claim for intentional infliction of emotional distress. Therefore, Defendants' motion to dismiss this claim will be granted.
F. Negligent Infliction of Emotional Distress
Plaintiff's claim for negligent infliction of emotional distress is based upon alleged racial discrimination and retaliation by Defendants. (Compl. ¶¶ 33-39.) Under North Carolina law, to state a claim for negligent infliction of emotional distress a plaintiff must show that (1) a defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress, and (3) the conduct did in fact cause the plaintiff to suffer severe emotional distress. Fields v. Day, 131 N.C. App. 525, 526, 509 S.E.2d 790, 791 (1998).
Defendants challenge Plaintiff's claim of negligent infliction of emotional distress with two arguments: (1) because the conduct Plaintiff alleges falls short of "extreme and outrageous" behavior for the purposes of intentional infliction of emotional distress, a negligent infliction claim automatically fails as well and (2) plaintiff alleges nothing more than intentional acts of discrimination and retaliation by Defendants, therefore, Plaintiff has not as a matter of law alleged any negligent acts to support a claim of negligent infliction of emotional distress.
First, Defendants argue that Plaintiff's negligent infliction claim should be barred because when conduct is not extreme and outrageous for the purposes of intentional infliction of emotional distress, a negligent infliction of emotional distress claim fails as well. Defendants rely onLorbacher v. Housing Auth. of City of Raleigh, 127 N.C. App. 663, 493 S.E.2d 74 (1997) to support this argument. In Lorbacher, the North Carolina Court of Appeals stated:
We are not aware of any case specifically holding that the level of conduct required for an intentional infliction of emotional distress claim is the same as that required for a negligence action. We find no principled distinction however for employing a higher or lower threshold for one over the other. Therefore, our conclusion that defendant's conduct was not extreme and outrageous with respect to plaintiff's intentional infliction of emotional distress claim also precludes any claim for negligent infliction of emotional distress.Id. at 677, 493 S.E.2d at 82. However, the Supreme Court of North Carolina more recently held that to state a claim for negligent infliction of emotional distress "an allegation of ordinary negligence will suffice." McAllister v. Ha, 347 N.C. 638, 645, 496 S.E.2d 577, 583 (1998) (quoting Johnson v. Ruark Obstetrics Gynecology Assoc., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990)). Thus, this court declines to dismiss Plaintiff's claim for negligent infliction of emotional distress on the ground that he has failed to allege facts that could be construed as "extreme and outrageous" conduct.
Instead, this court will dismiss Plaintiff's claim for negligent infliction of emotional distress because Plaintiff has failed to allege facts sufficient to show that Defendants engaged in any negligent acts. Defendants cite an unpublished Fourth Circuit case supporting their argument. In Mitchell v. Lydall. Inc., the court held that a plaintiff must allege actual acts showing negligence by the defendant, and where the "complaint contains merely a single, conclusory allegation that [defendant] was negligent," a dismissal of the claim is proper. Id., 16 F.3d 410, 1994 WL 38703, *3 (4th Cir. Feb. 10, 1994). The court reached this conclusion because the plaintiff's complaint merely alleged intentional acts of discrimination by the defendant, such as failure to accommodate the plaintiff's disability and discriminatory discharge. See id.
This court finds the reasoning of Mitchell persuasive. Like the plaintiff in Mitchell, Plaintiff Ijames' complaint contains a single conclusory allegation that Defendant Murdock "was negligent in carrying out his duties." (Compl. ¶ 35.) Furthermore, the complaint only cites intentional acts of alleged discrimination and retaliation by Defendants, such as denying Plaintiff's request to leave work early and discharging Plaintiff. Plaintiff's factual allegations charging intentional acts by Defendants are insufficient to support a claim of negligent infliction of emotional distress.
Plaintiff has failed to allege any facts to support the first element of a negligent infliction of emotional distress claim. Therefore, Plaintiff has failed to state a claim for negligent infliction of emotional distress, and the motion to dismiss this claim will be granted.
IT IS ORDERED AND ADJUDGED that Defendants Murdock and Freightliner's Motion to Dismiss Plaintiff's § 1983 claim, North Carolina Constitution claim, intentional infliction of emotional distress claim, and negligent infliction of emotional distress claim are granted with prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant Murdock's Motion to Dismiss Plaintiff's Title VII claim and wrongful discharge in violation of public policy claim are granted with prejudice
IT IS FURTHER ORDERED AND ADJUDGED that Defendant Freightliner's Motion to Dismiss plaintiff's Title VII retaliation claim and claim for retaliatory discharge in violation of public policy are granted with prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant Freightliner's Motion to Dismiss plaintiff's Title VII claim for racial discrimination and claim for wrongful discharge in violation of North Carolina's public policy against racial discrimination are denied.
IT IS FURTHER ORDERED AND ADJUDGED that the parties shall bifurcate discovery to permit an initial, abbreviated round of discovery on the limited question of whether there is any reasonable basis to conclude that Plaintiff timely submitted a charge of discrimination to the EEOC.