Fisher v. Walgreens

MEMORANDUM in Support re MOTION to Dismiss Plaintiff's Amended Complaint

W.D.N.C.September 22, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION DR. CYNTHIA FISHER, Plaintiff, v. WALGREENS, Defendant. ) ) ) ) ) ) ) ) ) ) C.A. No. 1:17-cv-00225-MOC-DLH MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT COMES NOW Defendant Walgreen Co.1 (“Defendant” or “Walgreens”), by and through undersigned counsel, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and respectfully submits this Memorandum in Support of its Motion to Dismiss Plaintiff Cynthia Fisher’s (“Plaintiff”) Amended Complaint. For the reasons set forth below, Defendant respectfully requests complete dismissal of Plaintiff’s lawsuit against it with prejudice. I. INTRODUCTION Plaintiff was formerly employed by Walgreens as a pharmacist in North Carolina. (Doc. 1-2, pg. 13; Exhibit 1). Her employment was terminated in August 2015, nearly two years before she filed the instant action. (Doc. 1-2, pg. 4). On July 19, 2017, Plaintiff filed this lawsuit in the General Court of Justice, Superior Court Division for Cleveland County, North Carolina. (Doc. 1-1). On August 3, 2017, Plaintiff filed an Amended Complaint (“Complaint”). (Doc 1-2). Defendant removed the case to this Court on August 17, 2017. (Doc. 1). 1 Improperly identified in the Complaint and Amended Complaint as “Walgreens.” Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 1 of 27 2 In this lawsuit, Plaintiff asserts multiple causes of action arising from her employment with, and separation from, Walgreens. As set forth below, all of Plaintiff’s claims should be dismissed with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6). In Counts I, II, III, IV, V, and VI, Plaintiff alleges that Walgreens violated Title VII of Civil Rights Act of 1964 (“Title VII”). Plaintiff’s Title VII claims should be dismissed pursuant to Rule 12(b)(1) because Plaintiff failed to exhaust her administrative remedies under Title VII and, therefore, the Court lacks subject matter jurisdiction over these claims. Further, Plaintiff’s Complaint fails to state a claim under Title VII upon which relief can be granted; thus, dismissal is also appropriate pursuant to Rule 12(b)(6). In Counts I, II, III, IV, V, and VI, Plaintiff alleges that she was subjected to discrimination and retaliation under the Americans with Disabilities Act of 1990 (“ADA”). Plaintiff also claims that she was subjected to a hostile work environment. Plaintiff’s ADA claims should be dismissed pursuant to Rule 12(b)(6) because her Complaint fails to set forth sufficient factual allegations accepted as true to plausibly establish discrimination, retaliation, or a hostile work environment under the ADA. In Count V, Plaintiff alleges violation of federal and state unfair and deceptive trade practice laws. Plaintiff’s federal claim fails outright as the Federal Trade Commission Act (15 U.S.C. § 45) – which prohibits “unfair or deceptive acts or practices in or affecting commerce” – does not provide a private cause of action. Plaintiff’s state law claim fares no better as she purports to redress a run-of-the-mill employment dispute under the statute – an attempt North Carolina federal and states courts have repeatedly and uniformly rejected. In Count VII, Plaintiff asserts claims for defamation. First, Plaintiff alleges that she was subjected to slander per se. This claim should be dismissed pursuant to Rule 12(b)(6) because it Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 2 of 27 3 is facially time-barred and because Plaintiff does not allege publication, an essential element of the tort. Second, Plaintiff asserts a claim for libel. This claim, however, is based on alleged statements made by Walgreens to the Equal Employment Opportunity Commission (“EEOC”) and to the North Carolina Department of Commerce, Division of Employment Security in connection with Plaintiff’s unemployment proceeding and, thus, are absolutely privileged. Finally, in Count IV, Plaintiff asserts a claim for intentional infliction of emotional distress. As a matter of law, Plaintiff has not alleged extreme or outrageous conduct or severe emotional distress such that her claim can survive 12(b)(6) scrutiny. For all of these reasons, Defendant moves for complete dismissal of Plaintiff’s Complaint with prejudice.2 II. COMPLAINT ALLEGATIONS3 Plaintiff was initially employed with Walgreens from 2004 to 2007. (Doc. 1-2, pg. 15). In November 2007, Plaintiff left to open her own pharmacy, “Fisher Rx Direct.” Id. at 4, 7, 11. According to Plaintiff, Plaintiff’s mother stole drugs from the pharmacy at Fisher Rx Direct and was subsequently incarcerated for “drug conspiracy charges.” Id. at 4-6, 9. As the pharmacy manager of Fisher Rx Direct, Plaintiff was also disciplined by the North Carolina Board of Pharmacy (“NCBOP”). Id. at 7-9. In 2013, Plaintiff again became employed with Walgreens as a pharmacist in North Carolina. Id. at 5, 13; Exhibit 1. During her second period of employment with Walgreens, Plaintiff alleges that Walgreens discovered that her mother went to jail for stealing from Fisher Rx Direct. (Doc. 1-2, pg. 5). Specifically, Plaintiff alleges that Matt Lyall, the “district 2 Plaintiff’s Complaint also requests relief for “Unknown Claims.” (Doc. 1-2, pg. 17). As these claims are not articulated with any specificity, either legally or factually, they fail to state claims upon which relief can be granted. 3 Given the voluminous and confusing nature of Plaintiff’s Complaint, Defendant does not attempt to recite all of Plaintiff’s various factual allegations here. To the extent additional factual allegations are relied upon in discussion of Plaintiff’s legal causes of action, they are set forth below as part of that discussion. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 3 of 27 4 pharmacy supervisor,” found out that Plaintiff’s mother stole from her pharmacy and “started scrutinizing” her work to try and intimidate Plaintiff and get her “to quit.” Id. at pg. 4, 6. In December 2014, Plaintiff was called into a meeting with Mike Remiller, a “loss prevention officer,” and Mr. Lyall at the district office. Id. at 4, 6, 10. During the meeting, Plaintiff alleges that she was accused of being a “thief” and a “drug addict.” Id. at 4, 6, 9-10, 17. Plaintiff also alleges that she was “verbally attack[ed]” and asked “if there was something wrong with” her and if she had a relative who stole from the pharmacy she owned. Id. at 4, 10-11. Plaintiff claims she was also told that, since she did not make it with Walgreens the first time, she “probably would not succeed this time.” Id. at 4, 6. Plaintiff alleges that she offered to take drug and lie detector tests, but Mr. Lyall “indicated they did not need to do that.” Id. at 6. Plaintiff further alleges that, on August 19, 2015, Plaintiff again met with Mr. Remiller and another Walgreens employee, James Satterfield. Id. at 7, 11. Plaintiff alleges that she asked to record the meeting, and Mr. Remiller told her it was against the law. Id. at 13-14. Plaintiff, who has a law degree, also asked to bring a licensed attorney to the meeting. Id. at 16. She was allegedly told that this was against Walgreens’ policy. Id. According to Plaintiff, Plaintiff was asked if her mother was still incarcerated and she responded that she was not. Id. at 11. During the meeting, Plaintiff alleges that she told Mr. Satterfield and Mr. Remiller: “I will not refill emergency maintenance prescriptions according to NC law but I will refill emergency maintenance prescriptions according to Walgreens policy.” Id. at 11. Mr. Remiller told Plaintiff that it would be better if she resigned. Id. Plaintiff asked if her employment would be terminated, and she was again allegedly told it would be better if she resigned. Id. at 11-12. Plaintiff’s employment was terminated six days later. Id. at 11-12. Plaintiff was terminated “for no [sic] following NC law when filling NC emergency refills for maintenance Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 4 of 27 5 medications.” Id. at 17. Plaintiff alleges, however, that Mr. Lyall verified she was “filling the emergency refills for medications correctly based on NC law.” Id. Plaintiff alleges that she has a hearing disability. Id. at 6. Plaintiff is not deaf, but “background noise does seem to be a major problem.” Id. Plaintiff let Mr. Lyall know that she may be seen as “unfriendly” because of her impairment. Id. According to Plaintiff, Plaintiff usually told people she had a hearing disability, and Mr. Lyall told her to do that. Id. Plaintiff did not like handling the drive-through window because of her hearing disability. Id. at 7. In the Complaint, Plaintiff alleges that she was discriminated against and/or mistreated for a myriad of reasons, including, inter alia, because (1) she has a law degree; (2) her mother is an “ex-convict”; (3) she has a hearing disability; (4) of her age4; (5) she left Walgreens to start her own business; (6) she received disciplinary action from the NCBOP; and (7) she asked to have a licensed attorney at the August 2015 meeting. Id. 4-5, 7-9, 12, 15. III. LEGAL ANALYSIS A. Standards of Review i. Federal Rule of Civil Procedure 12(b)(1) Rule 12(b)(1) provides for dismissal where the court lacks jurisdiction over the subject matter of the lawsuit. In determining whether jurisdiction exists, the court may consider the pleadings, as well as outside evidence. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citations omitted). “The district court should apply the 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 fact exists.” Id. (citations omitted). “The moving party should prevail only if the material jurisdictional facts 4 Because Plaintiff’s Complaint does not include a claim under the Age Discrimination in Employment Act of 1967 (“ADEA”) or any applicable state law, this allegation is not further addressed. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 5 of 27 6 are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (citations omitted). When the court considers its subject matter jurisdiction, the burden of proof is on the plaintiff. Id. (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A plaintiff’s failure to exhaust administrative remedies under federal anti-discrimination laws is properly the subject of a motion to dismiss under Rule 12(b)(1). See Brodrick v. Napolitano, No. 3:09-CV-450- FDW-DSC, 2010 WL 3397461, at *4 (W.D.N.C. Aug. 25, 2010); Harris v. XLC Staffing, No.1:10-CV-313, 2011 WL 2580298, at *2-3 (M.D.N.C. June 28, 2011). ii. Federal Rule of Civil Procedure 12(b)(6) Rule 12(b)(6) permits courts to dismiss meritless cases that waste judicial resources and result in unnecessary discovery. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). When reviewing a motion to dismiss under Rule 12(b)(6), the court must accept the complaint’s factual allegations as true and construe the complaint in the light most favorable to the non-moving party. Estate Const. Co. v. Miller & Smith Holding Co., Inc., 14 F.3d 213, 217-18 (4th Cir. 1994) (citation omitted). However, the Court is not bound by a plaintiff’s legal conclusions as the purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the Complaint. Id. at 218; Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994) (citation omitted). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, to avoid dismissal at the pleading stage, the complaint must contain well-pleaded factual allegations that plausibly give rise to an entitlement to relief. Id. The Supreme Court’s decisions in Twombly and Iqbal emphasize that even under a notice pleading regime, a complaint must contain sufficient evidentiary facts to raise a plausible – as opposed to just possible – inference that the plaintiff is entitled to relief. Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678- Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 6 of 27 7 80. In doing so, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Additionally, the Complaint must contain more than “an unadorned, the-defendant- unlawfully-harmed-me accusation.” Id. Thus, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the Complaint should be dismissed. Id. at 679. iii. Plaintiff’s Pro Se Status It is well established that a pro se litigant’s complaint must be liberally construed. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016) (citing Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015)). “Nevertheless, the requirement of liberal construction does not mean that th[e] court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court.” Burns v. Dalton, No. 517CV01295RMGKDW, 2017 WL 3491852, at *1 (D.S.C. July 28, 2017), report and recommendation adopted, No. CV 5:17-1295-RMG, 2017 WL 3493130 (D.S.C. Aug. 14, 2017) (Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)). In reviewing a pro se complaint, “[a] court may not rewrite pleadings to include claims that were never presented, construct the plaintiff’s legal arguments for her, or ‘conjure up questions never squarely presented.’” Jacobs v. IRS, No. CIV.A. 4:06-599, 2007 WL 895782, at *2 (D.S.C. Mar. 21, 2007), aff’d sub nom. Jacobs v. I.R.S., 234 F. App’x 171 (4th Cir. 2007) (internal citations and quotations omitted). Likewise, the Court is “not obliged to ferret through a complaint, searching for viable claims.” Chitty v. Liberty Univ., No. 6:13CV00043, 2013 WL 3877664, at *1, n.3 Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 7 of 27 8 (W.D. Va. July 25, 2013) aff’d, 547 F. App’x 299 (4th Cir. 2013) (citing Holsey v. Collins, 90 F.R.D. 122 (D. Md. 1981)).5 B. Plaintiff’s Title VII Claims Should Be Dismissed In Counts I, II, III, IV, V, and VI of the Complaint, Plaintiff alleges that Defendant violated Title VII with respect to her employment. All of Plaintiff’s Title VII claims should be dismissed because she failed to exhaust her administrative remedies, depriving the Court of subject matter jurisdiction over the same. Before bringing a civil suit under Title VII, a litigant must first file an administrative charge with the EEOC. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C.A. § 2000e-5(f)(1)). “The filing of an administrative charge . . . ‘is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit.’ Rather, the charge itself serves a vital function in the process of remedying an unlawful employment practice.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) (quoting Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005)). When a plaintiff fails to exhaust administrative remedies, the court is deprived of subject matter jurisdiction and must dismiss the unexhausted claim. Jones, 551 F.3d at 300-301 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)) (explaining that when claims are unexhausted under federal anti-discrimination laws “‘the only function remaining to the court [wa]s that of announcing the fact and dismissing the cause[s].’”). It is well established that “[t]he allegations filed with the EEOC define the scope of any subsequent civil claims.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962–63 (4th 5 It should be noted that, while Plaintiff is proceeding pro se, she notes in her Complaint that she has a law degree. (Doc. 1-2, pg. 12). Therefore, the propriety of applying traditional notions of liberal construction is arguable. See Kerr, 824 F.3d at 72 (noting that the Fourth Circuit “has not determined whether a pro se plaintiff who is also an attorney receives the benefit of this liberal construction”, but reviewing complaint liberally “[o]ut of an abundance of caution”). It also appears that Plaintiff is by no means an inexperienced litigant as a public internet search reveals that she is the author of a book entitled “My Life As A Pro Se Plaintiff: Representing Yourself in Court.” Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 8 of 27 9 Cir. 1996) (citation omitted); see also Chacko, 429 F.3d at 509 (“the factual allegations made in formal litigation must correspond to those set forth in the administrative charge.”). A charge must be “‘sufficiently precise to identify the parties, and to describe generally the action or practices complained of.’” Chacko, 429 at 508 (quoting 29 C.F.R. § 1601.12(b)). “Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.” Evans, 80 F.3d at 963 (citations omitted). In this case, Plaintiff has failed to exhaust administrative remedies under Title VII and, thus, cannot pursue these claims before the Court. Plaintiff’s EEOC Charge, designated as Charge No. 430-2016-00901, is attached hereto as Exhibit 1. Because Defendant moves for dismissal pursuant to Rule 12(b)(1), the Court may consider matters outside the pleadings, including Plaintiff’s EEOC Charge. Stevenson v. Bost, 5:10-CV-487-FL, 2011 WL 2181735, at *7 (E.D.N.C. June 3, 2011) (considering EEOC charge attached to defendants’ 12(b)(1) motion to dismiss in considering whether plaintiff exhausted administrative remedies). In the Charge, Plaintiff checked the boxes for “retaliation” and “disability.” (Exhibit 1). She did not check any boxes for characteristics protected under Title VII. Id. In the “particulars” section of the Charge, Plaintiff alleged that she was subjected to a “hostile work environment” because of her “association with a disabled family member” and “regarded as disabled.” Id. Plaintiff’s Charge concluded by stating: “I believe I have been discriminated against because of a disability and for opposing practices in violation of Title I of the Americans with Disabilities Act of 1990.” Id. Notably, Plaintiff failed to make allegations in the “particulars” section of the Charge relating to any type of discrimination protected by Title VII. Id. As a result, Plaintiff failed to exhaust her administrative remedies under Title VII, and this Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 9 of 27 10 Court lacks subject matter jurisdiction over Plaintiff’s Title VII claims. Dismissal is, therefore, appropriate under Rule 12(b)(1). Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999) (affirming dismissal of Title VII claim where plaintiff failed to make any reference to Title VII or check any box for a characteristic protected by Title VII in the Charge).6 Moreover, even if Plaintiff had exhausted her administrative remedies, her Title VII claims should be dismissed under Rule 12(b)(6). Plaintiff’s Complaint does not include any discernable allegations to support a claim that she was discriminated or retaliated against based on any characteristic protected by Title VII. While Plaintiff repeatedly alleges in the Complaint that she was discriminated against based on her association with her mother because Plaintiff’s mother was incarcerated and became an “ex-convict” (See Doc. 1-2, pg. 4-9), Plaintiff’s mother’s incarceration and her status as an “ex-convict” are not protected classes under Title VII such that Plaintiff can state an associational discrimination claim thereunder. See 42 U.S.C. § 2000e-2; see also Manley v. Invesco, 555 F. App’x 344, 348 (5th Cir. 2014) (“Persons with criminal records are not a protected class under Title VII . . .”); Gillum v. Nassau Downs Reg’l Off Track Betting Corp. of Nassau, 357 F. Supp. 2d 564, 569 (E.D.N.Y. 2005) (citation omitted) (“Plaintiff’s status as a convicted felon is not a protected class under Title VII”). Thus, even if these claims were properly before the Court, dismissal is appropriate under Rule 12(b)(6). C. Plaintiff’s ADA Claims Should Be Dismissed In Counts I, II, III, IV, V, and VI, Plaintiff alleges that Walgreens violated the ADA. As best can be determined, Plaintiff alleges that she was subjected to discrimination on the basis of a hearing disability and subjected to retaliation for various reasons. Plaintiff also alleges that she 6 Notably, due to the passing of the 180-day period in which Plaintiff may properly file a charge with the EEOC from the last act of discrimination (which Plaintiff alleges occurred on August 25, 2015), Plaintiff is now barred from timely filing a charge under Title VII originating from the facts and events at issue in the present matter. (Exhibit 1). As a result, dismissal with prejudice is appropriate. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 10 of 27 11 experienced a hostile work environment. Plaintiff’s ADA claims should be dismissed for failure to state a claim upon which relief can be granted. FED.R.CIV.P. 12(b)(6). i. ADA Discrimination In the Complaint, Plaintiff alleges that she was discriminated against on the basis of a hearing disability. (Doc. 1-2, pg. 4-5).7 However, other than making that legal conclusion – which is not entitled to any credit at the 12(b)(6) stage – Plaintiff does not offer factual allegations to support the same. Review of Plaintiff’s sixteen (16) page single-spaced Complaint reveals only the following allegations that have any possible relation to Plaintiff’s alleged hearing disability or discrimination on that basis: (1) “I did let Matt Lyall know that some people might see me as unfriendly because I have a hearing disability.” (2) “I told people I worked with that I had a hearing disability for each store I worked. Matt Lyall told me to do that, and I usually told people that that I had a hearing disability.” (3) “I do have the proof from my hearing doctor, to verify that I do have a hearing disability. I am not deaf but background noise does seem to be a major problem, and the drive thru caused me problems because of my hearing disability.” (4) “I did not like handling the drive thru because of my hearing disability.” (5) “Lena Abernethy and Melanie Moore fill emergency maintenance medication the exact way I do according to NC law and Lena Abernethy and Melanie Moore are still employed by Walgreens . . . . I was treated differently because of the actions of my mother, I used to work for Walgreens before and left to start Fisher Rx Direct, my age and my hearing disability.” (Doc. 1-2, pg. 5-7). Plaintiff’s allegations do not offer sufficient factual content to nudge her claims across the line from conceivable to plausible. Iqbal, 556 U.S. at 680. As an initial matter, Plaintiff’s 7 Plaintiff’s EEOC Charge does not describe alleged disability discrimination on the basis of a hearing impairment as is now alleged. Thus, it appears that Plaintiff has not exhausted her administrative remedies in this regard. However, because Plaintiff’s EEOC Charge and Complaint allegations are less than clear and dismissal is nevertheless warranted for failure to state a claim upon which relief can be granted, Defendant preserves but does not challenge Plaintiff’s ADA discrimination claim on this basis at this time. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 11 of 27 12 allegations that she (1) had a hearing disability and (2) informed Walgreens of the same, do not conceivably establish disability-based discrimination. Likewise, Plaintiff’s allegation that she did not like to work the drive-through window as a result of her hearing disability falls short, particularly as there is no allegation that Plaintiff communicated this fact to Walgreens. Finally, although Plaintiff alleges that two Walgreens employees (Lena Abernethy and Melanie Moore) were treated more favorably, Plaintiff offers no allegations to suggest that either employee was outside the protected class or similarly situated to Plaintiff such that this allegation could plausibly support a discrimination claim under the ADA without pure speculation. Under applicable pleading standards, the Complaint’s complete dearth of factual content regarding any disability-based discrimination entitles Defendant to dismissal of Plaintiff’s ADA discrimination claim. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949) (“bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.”).8 ii. ADA Retaliation Plaintiff also alleges that she was subjected to retaliation. (Doc. 1-2, pg. 14-16). To the extent said claim is asserted under the ADA specifically, it fails for want of factual allegations sufficient to survive dismissal. On Page 16 of the Complaint, Plaintiff alleges that she was retaliated against because: (1) she asked for an attorney to be present in a meeting with Walgreens employees; (2) her mother was an ex-convict; (3) Plaintiff has a consent order with the NCBOP because of the “illegal” 8 To the extent Plaintiff attempts to support an ADA claim by claiming association with her mother (See Doc. 1-2, pg. 5), again, Plaintiff’s mother’s incarceration and status as an “ex-convict” are not protected characteristics under the ADA. Tyndall v. Nat’l Educ. Centers, Inc. of California, 31 F.3d 209, 214 (4th Cir. 1994) (quoting 42 U.S.C. § 12112(b)(4) (“The ADA prohibits employers from taking adverse employment action ‘because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.’”) (emphasis added). Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 12 of 27 13 actions of her mother; (4) Plaintiff used to work for Walgreens and left to start another pharmacy; and (5) to keep Plaintiff from filing a lawsuit. (Doc. 1-2, pg. 16). On their face, only two of these reasons – items (1) and (5) – could potentially implicate the ADA. However, in review of the entire context of the Complaint, neither allegation sufficiently qualifies as protected activity so as to state an ADA retaliation claim. It is axiomatic that only activity done to oppose discrimination protected by the statute in question is protected. 42 U.S.C. § 12203 (“No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . ”) (emphasis added). Thus, in cases where a plaintiff retains an attorney, and has that attorney notify the employer of the plaintiff’s intent to seek redress, a litigant can show protected oppositional activity. Johnson v. Portfolio Recovery Assocs., LLC, 682 F. Supp. 2d 560, 579 (E.D. Va. 2009). However, allegations that fall short of such a showing can be insufficient to state a claim. For example, where an employee does not allege that the attorney was hired to oppose unlawful practices under the relevant statute, no protected activity is established. Ambers v. Vill. Family Serv. Ctr., Inc., 329 F. Supp. 2d 1046, 1051 (D.N.D. 2004) (citation omitted) (finding that since employee “did not hire an attorney to oppose age discrimination, she did not engage in protected activity.”). Likewise, where a plaintiff fails to provide details as to why the attorney was hired or to allege that she notified the employer that she intended to seek redress for alleged acts made unlawful by the statute, protected oppositional activity is not established. Johnson, 682 F. Supp. 2d at 579. With these parameters in mind, Plaintiff does not set forth allegations that establish she engaged in activity protected by the ADA. While Plaintiff alleges that she asked to have an attorney present at a meeting with Walgreens employees, there is no allegation anywhere in the Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 13 of 27 14 Complaint as to the reason Plaintiff asked to have the attorney present or whether that reason was communicated to Defendant. Likewise, there is no allegation in the Complaint that Plaintiff informed anyone at Walgreens that she intended to have an attorney present to redress rights protected by the ADA.9 Although Plaintiff speculates that she was terminated to keep her from filing a lawsuit and that she told Mr. Satterfield that she would be “filing a lawsuit” on the day of her termination, these allegations are also devoid of any connection to an attempted exercise of rights under the ADA. As a result, Plaintiff’s ADA retaliation claim, to the extent so asserted, should be dismissed. Id. (finding complaint failed to show protected activity under federal anti- discrimination law where it did not allege litigant hired an attorney to redress rights under the statute and employer was so informed). iii. ADA Hostile Work Environment In addition to discrimination and retaliation claims, Plaintiff alleges that she was subjected to a hostile work environment from December of 2014 until her termination in August 2015. (Doc 1-2, pg. 4). To the extent asserted under the ADA specifically, Plaintiff’s hostile work environment claim should be dismissed as insufficiently pled. In order to survive dismissal, a plaintiff must “[a]t a minimum . . . allege sufficient facts to support the inference that [s]he is a ‘qualified individual with a disability,’ and also must allege sufficient facts to connect . . . harassment to h[er] disability.” Patten v. HCL Am., Inc., No. 5:16-CV-47-FL, 2016 WL 1267165, at *2 (E.D.N.C. Mar. 31, 2016) (citing Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). “Although plaintiff’s complaint need not address every element of the prima facie case, plaintiff retains the burden to allege facts, rather than mere ‘labels and conclusions.’” Id. (internal quotation and citation omitted). 9 While Plaintiff also alleges that “I let James Satterfield know that I had a law degree and he let me know he had an issue with that,” there is still no connection to an alleged redress of rights under the ADA alleged. (Doc. 1-2, pg. 16). Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 14 of 27 15 In this case, Plaintiff’s Complaint is devoid of allegations relating alleged hostile or offensive behavior by anyone to her hearing disability, the apparent basis for her disability-based claims. Instead, as set forth above, Plaintiff’s Complaint contains a handful of largely innocuous factual allegations relating to her alleged disability. See supra pg. 9. Despite the voluminous nature of Plaintiff’s Complaint, Plaintiff simply does not set forth factual allegations plausibly connecting any alleged harassment to her disability such that she can set forth a claim for an actionable disability-based hostile work environment claim. To the contrary, she alleges instead Walgreens “created a hostile work environment to try and get me to quit because of my mother’s incarceration’s [sic] and then my mother became an ex-convict.” (Doc. 1-2, pg. 7). As a result, this claim, like Plaintiff’s ADA discrimination and retaliation claims, should be dismissed. Patten, 2016 WL 1267165, at *3 (internal quotation omitted) (dismissing pro se plaintiff’s ADA harassment claim pursuant to Rule 12(b)(6) where, among other things, plaintiff failed to connect alleged remarks and scrutiny to his alleged, but non-specific disability, explaining “[w]ithout a minimal degree of factual adornment, plaintiff’s allegations do not ‘nudge [his] claim across the line from conceivable to plausible’”).10 D. Plaintiff’s “Federal Unfair and Deceptive Trade Practices” Act Claim Should Be Dismissed In Count V, Plaintiff alleges that Walgreens violated the “Federal Unfair and Deceptive Trade Practice Act.” Although Plaintiff does not provide any statutory citation for her claim, Defendant assumes that she intends to refer to the Federal Trade Commission Act, 15 U.S.C. § 10 As noted in Defendant’s Notice of Removal, Plaintiff alleges that Defendant violated the Civil Rights Act of 1991. However, absent a viable claim under either Title VII or the ADA, no independent cause of action for violation of the Civil Rights Act of 1991 exists. See Drake v. City & Cty. of Denver, 953 F. Supp. 1150, 1156 (D. Colo. 1997), aff’d sub nom. Drake v. Colorado State Univ., 161 F.3d 17 (10th Cir. 1998) (explaining, “the Civil Rights Act of 1991 merely augments the remedies available to individuals under existing civil rights statutes; it does not create an independent cause of action.”). As a result, to the extent that all of Plaintiff’s Title VII and ADA claims are dismissed, no independent violation of the Civil Rights Act of 1991 would remain. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 15 of 27 16 45, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” However, the Federal Trade Commission Act does not provide a private cause of action. Gutierrez v. E. Beach Bay-Marine Marina, Inc., No. 2:14CV476, 2015 WL 13064927, at *4 (E.D. Va. Sept. 23, 2015), aff’d sub nom. Gutierrez v. E. Beach-Bay Marine Marina, Inc., 639 F. App’x 179 (4th Cir. 2016). As a result, this claim can be summarily dismissed. Id. (assuming pro se Plaintiff intended to state a claim under 15 U.S.C. § 45 where violation of the “Deceptive Trade Practices Act” was alleged, but no citation was provided, and dismissing claim for lack of private cause of action); see also Carias v. Harrison, No. 5:13-CT-3264-FL, 2016 WL 1171544, at *8 (E.D.N.C. Mar. 23, 2016) (finding, “To the extent plaintiff alleges claims pursuant to the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45(a)(1), he fails to state a claim because the FTCA does not include a private right of action.”). E. Plaintiff’s North Carolina Unfair and Deceptive Trade Practices Act Claim Should be Dismissed In Count V of the Complaint, Plaintiff also alleges that Defendant violated North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75–1.1. This claim fails, however, because it is well established that the UDTPA does not apply to general employment disputes as Plaintiff presents here. “‘To prevail on a claim of unfair and deceptive trade practices, a plaintiff must show: (1) . . . an unfair or deceptive act or practice; (2) in or affecting commerce; and (3) that plaintiff was injured thereby.’” Esposito v. Talbert & Bright, Inc., 181 N.C. App. 742, 746, 641 S.E.2d 695, 697 (2007) (quoting Strickland v. Lawrence, 176 N.C. App. 656, 665, 627 S.E.2d 301, 207 (2006)). The determination as to whether an act or practice is unfair or deceptive under the UDTPA is a question of law for the Court. Smith v. Waverly Partners, LLC, No. 3:10-CV-28, 2011 WL 1655592, at *4 (W.D.N.C. Apr. 29, 2011) (citation omitted). Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 16 of 27 17 The “primary purpose” of the UDTPA is to provide a “‘private cause of action for consumers.’” Durling v. King, 146 N.C. App. 483, 488, 554 S.E.2d 1, 4 (2001) (emphasis added) (quoting Gray v. N.C. Underwriting Ass’n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000)); Bonham v. Wolf Creek Acad., 767 F. Supp. 2d 558, 573-74 (W.D.N.C. 2011) (“The UDTPA is, without doubt, a scheme regulating conduct between buyers and sellers and between businesses.”). As a matter of well-established law, “employer-employee relationships do not fall within the intended scope of” the UDTPA. Buie v. Daniel Int’l, 56 N.C. App. 445, 448, 289 S.E.2d 118, 119-20 (1982), disc. review denied, 305 N.C. 759 (1982); see also HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 593 (1991). To this end, North Carolina appellate courts have consistently held that disputes between employers and employees will generally not give rise to viable Chapter 75 claims. Kinesis Advert., Inc. v. Hill, 187 N.C. App. 1, 21, 652 S.E.2d 284, 298 (2007) (“We have consistently held that the employer/employee relationship does not fall within the intended scope and purpose of the Unfair and Deceptive Trade Practices Act.”); Buie, 56 N.C. App. at 448, 289 S.E.2d at 119-120 (“Unlike buyer-seller relationships, we find that employer-employee relationships do not fall within the intended scope of G.S. 75- 1.1.”). As a result, given the “presumption against unfair and deceptive practice claims as between employers and employees,” our Court of Appeals has explained that an employee “must make a showing of business related conduct that is unlawful or of deceptive acts that affect commerce beyond the employment relationship” to survive dismissal. Gress v. Rowboat Co., Inc., 190 N.C. App. 773, 776, 661 S.E.2d 278, 282 (2008). Here, Plaintiff has alleged no facts which would remove her claim from the general rule that employer-employee relationships fall outside the scope of the UDTPA. In fact, she is explicitly relying on the employment relationship to support her claim, stating: “employee Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 17 of 27 18 relationships are covered under the NC . . . Unfair and Deceptive Trade Practice Act” and “the employer-employee relationship that I had with Walgreens did affect commerce.” (Doc. 1-2, pg. 13). Further, Plaintiff’s unfair and deceptive claim is purportedly based on alleged “lies” made to Plaintiff by Mr. Remiller and Mr. Satterfield in connection with a meeting regarding her employment. (Doc. 1-2, pg. 6, 13-14). Thus, Plaintiff simply presents a general employment- based claim, which is exactly the type of claim North Carolina courts have found not to be protected by the UDTPA. See Johnson v. Wal-Mart Stores E., L.P., 3:10CV659-MOC, 2011 WL 2183155, at *6 (W.D.N.C. June 6, 2011) (granting 12(b)(6) motion and dismissing employee’s UDTPA claim where employee claimed that Wal-Mart violated Chapter 75 with respect to his termination, explaining, “The UDTPA is not, however, appropriate for resolving employment disputes.”). Consequently, Plaintiff’s UDTPA claim should be dismissed. F. Plaintiff’s Defamation Claims Should Be Dismissed In Count VII, Plaintiff alleges that she was subject to defamation in the form of slander per se and libel. Plaintiff’s slander per se claim fails because it is facially time-barred and fails to state a claim upon which relief can be granted. Plaintiff’s libel claim should also be dismissed because it is based on statements allegedly made by Walgreens to the EEOC and the North Carolina Department of Commerce, Division of Employment Security (“DES”) in connection with Plaintiff’s unemployment claim, both of which are absolutely privileged. To state a claim for defamation, a plaintiff must allege “the defendant made a false and 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, No. 5:05CV26, 2006 WL 322607, at *3 (W.D.N.C. Feb. 10, 2006) (citing Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 356, 595 S.E.2d 778, 783 (2004)). North Carolina recognizes two types of defamation: libel and slander. Elina Adoption Servs., Inc. v. Carolina Adoption Servs., Inc., Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 18 of 27 19 No. 1:07cv169, 2008 WL 4005738, at *4 (M.D.N.C. Aug. 25, 2008) (citing Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 897 (2002)). Libel provides a cause of action for false, written publication, while slander provides a cause of action for false oral communication. Id. (citing Barker v. Kimberly-Clark Corp., 136 N.C. App. 455, 459, 524 S.E.2d 821, 824 (2000)). Under N.C. Gen. Stat. § 1-54, the statute of limitations for defamation, including libel and slander, is one year. See also Bailiff v. Davenport Transp., Inc., No. 3:13- CV-308-GCM, 2013 WL 6229150, at *5 (W.D.N.C. Dec. 2, 2013) (“the statute of limitations in North Carolina for a defamation action is one year from the date the action accrues.”). i. Defamation Per Se Plaintiff alleges that she experienced defamation per se when two Walgreens employees, Mike Remiller and Matt Lyall, “imputed criminal behavior to me by calling me a thief and a drug addict” and eventually terminating her employment. (Doc. 1-2, pg. 17). This claim fails because it is time-barred and because Plaintiff does not allege the statements were published to anyone other than herself. As noted above, the statute of limitations for defamation, including slander, is one year. N.C. Gen. Stat. § 1-54. In her Complaint, Plaintiff identifies the meeting where she was allegedly called a “thief” and a “drug addict” as occurring in December 2014. (Doc. 1-2 at pg. 4, 5-6, 10). Plaintiff alleges that her employment was terminated in August 2015. Id. at 4. Plaintiff filed her original Complaint July 19, 2017, well over a year after the alleged statements were made and the termination occurred. (Doc. 1-1). As a result, Plaintiff’s defamation per se claim is untimely. Even if Plaintiff had timely filed her claim, it is still subject to dismissal for failure to state a claim. “‘To be actionable, a defamatory statement must be false and must be communicated to a person or persons other than the person defamed.’” Esancy, 2006 WL Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 19 of 27 20 322607, at *3 (quoting Andrews v. Elliot, 109 N.C. App. 271, 274 426 S.E.2d 430, 432 (1993)). In this case, Plaintiff is very clear in her allegation that the alleged defamatory statements of her being a “thief” and “drug addict” were made to her personally. (Doc. 1-2, pg. 17: “I suffered defamation under the slander per se rule because Mike Remiller and Matt Lyall imputed criminal behavior to me by calling me a thief and a drug addict.”); (Doc. 1-2 at pg. 6: “I had no clue that what was going on until they directly accused me of theft and being a drug addict without proof . . . This was when both men backed down from accusing me of being a thief and drug addict”); (Doc. 1-2, pg. 9: “Matt Lyall and Matt Remiller did accuse me of being a thief and a drug addict.”) (emphasis added). Likewise, while Plaintiff claims that her “termination” was defamatory, there is no allegation in the Complaint that Walgreens published defamatory statements concerning her termination to anyone (other than the EEOC and DES as discussed below).11 As a result, Plaintiff’s claim is not only time-barred, but fails to allege publication, sufficient to state a claim. ii. Libel Plaintiff’s libel claim fares no better. As the basis for her claim, Plaintiff appears to allege that Walgreens’ communication of the reason for her termination to the EEOC and DES amounts to libel. Any such statements, however, are absolutely privileged and cannot form the basis of a libel claim. North Carolina law is clear that statements made by a defendant in quasi-judicial proceeding are entitled to an “absolute privilege” and cannot subject the defendant to liability for libel or slander. Smith v. McDonald, 895 F.2d 147, 149 (4th Cir. 1990) (citation omitted). This 11 To the extent Plaintiff alleges that the actual act of her termination was defamatory, “non-verbal conduct is generally immune from claims of defamation.” Curry v. Philip Morris USA, Inc., No. 3:08CV609, 2010 WL 431692, at *5 (W.D.N.C. Feb. 4, 2010) (citing Shillington v. K-Mart Corp., 402 S.E.2d 155, 159 (N.C. App. 1991)). Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 20 of 27 21 includes statements made by an employer in the course of an EEOC investigation. Kingsdown, Inc. v. Hinshaw, No. 14 CVS 1701, 2015 WL 1441826, at *11 (N.C. Super. Mar. 25, 2015) (“[a]n EEOC investigation . . . has regularly been recognized as a quasi-judicial proceeding in which an absolute privilege applies.”); Clausell v. Bayer Corp., No. 5:15-CV-50-BO, 2015 WL 5146704, at *8 (E.D.N.C. Sept. 1, 2015) (granting motion to dismiss defamation claims for failure to state a claim where said claims were based on statements made by employer during EEOC investigation). Accordingly, Plaintiff’s libel claim based upon statements allegedly made to the EEOC regarding her termination should be dismissed. The same is true with respect to alleged statements made to DES in the course of Plaintiff’s claim for unemployment compensation benefits. N.C. Gen Stat. § 96-4(x)(5) is very clear with respect to the protection afforded information provided by employers to DES. It states in relevant part: All letters, reports, communication, or any other matters, either oral or written, including any testimony at any hearing, from the employer or employee to each other or to the Division or any of its agents, representatives, or employees, which letters, reports, or other communication shall have been written, sent, delivered, or made in connection with the requirements of the administration of this Chapter, shall be absolutely privileged communication in any civil or criminal proceedings except proceedings pursuant to or involving the administration of this Chapter and except proceedings involving child support and only for the purpose of establishing the payment and amount of unemployment compensation benefits. N.C. Gen. Stat. Ann. § 96-4(x)(5) (emphasis added). As a result, any libel claim on the basis of statements allegedly made to DES in connection with Plaintiff’s unemployment claim should be dismissed. See Howard v. Food Lion, Inc., 232 F. Supp. 2d 585, 598 (M.D.N.C. 2002) (dismissing defamation claim for statement made by employer during unemployment proceeding under former version of statute found at N.C. Gen. Stat. § 96-4(t)(5), which provided “all letters, Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 21 of 27 22 reports, or other communication ... written, sent, delivered, or made in connection with the requirements of the administration … shall be absolutely privileged communication”).12 G. Plaintiff’s IIED Claim Should Be Dismissed In Count IV of the Complaint, Plaintiff attempts to set forth a claim for intentional infliction of emotional distress (“IIED”). Accepting Plaintiff’s allegations as true for the purposes of this motion, they do not state a claim for IIED given the high bar applied to these claims under North Carolina law. The essential elements of an IIED claim are: (1) extreme and outrageous conduct by the defendant; (2) which is intended to and did in fact cause; (3) severe emotional distress. Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). “The standard for what constitutes extreme and outrageous behavior in North Carolina is ‘a stringent one.’” Harwood v. CFT Auto Inv’rs, LLC, No. 3:15-CV-614-RJC-DSC, 2016 WL 3438039, at *3 (W.D.N.C. May 18, 2016), report and recommendation adopted, No. 315CV00614RJCDSC, 2016 WL 3381268 (W.D.N.C. June 14, 2016) (citing Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992)). To establish actionable conduct, a litigant must show that the challenged actions were sufficiently extreme and outrageous as to exceed all bounds of decency and be regarded as atrocious and intolerable in a civilized society. Jackson v. Blue Dolphin Commc’ns of N. Carolina, L.L.C., 226 F. Supp. 2d 785, 793-94 (W.D.N.C. 2002) (citations omitted). Whether conduct meets this standard is a question of law for the Court to decide. Id. (citing Lenins v. K–Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990)). The “stringent” standard applied to IIED claims generally also applies in the employment context. See Harwood, 2016 WL 3438039, at *3 (citing Moody-Williams v. LipoScience, 953 F. 12 Notably, Plaintiff’s libel claims are also likely time-barred. However, because the dates of the alleged statements are not included on the face of the Complaint, and mindful of the Court’s purview at this stage, Walgreens preserves, but does presently pursue, dismissal based on the statute of limitations. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 22 of 27 23 Supp. 2d 677, 682 (E.D.N.C. 2013)) (“In the employment context, extreme and outrageous conduct is an ‘extremely rigorous standard.’”). “It is extremely rare for North Carolina courts to find conduct in the employment context that rises to this level of outrageousness.” Thomas v. N. Telecom, Inc., 157 F. Supp. 2d 627, 635 (M.D.N.C. 2000) (citations omitted). To this end: A termination, allegedly in violation of federal law alone, does not constitute extreme and outrageous conduct. Conduct that is considered “intemperate” will not ordinarily be sufficient to state a claim for intentional infliction of emotional distress. Further, under North Carolina law, acts of discrimination are not necessarily ‘extreme and outrageous.’ Jackson, 226 F. Supp. 2d at 794 (quotations and citations omitted). Applying this standard, courts have rejected claims for want of extreme or outrageous conduct at the 12(b)(6) stage under varying fact patterns in the employment context. See Thomas, 157 F. Supp. 2d at 635 (finding that plaintiff failed to establish extreme and outrageous conduct “as a matter of law” where, inter alia, she was given an excessive workload compared to coworkers, she allegedly suffered a hostile work environment, and experienced a retaliatory discharge); Salih El Bey v. Battery Servs., Inc., No. 3:04-CV-126, 2007 WL 295331, at *2 (W.D.N.C. Jan. 29, 2007) (finding that alleged termination of employee because of his race and national origin was not extreme and outrageous conduct sufficient to state an IIED claim). In this case, Plaintiff’s IIED claim appears to be based on statements made during a meeting in December 2014, statements made during a meeting in August 2015, and her termination from employment. (Doc. 1-2, pg. 10-12). According to Plaintiff, she was treated “horribly” during a December 2014 meeting where she was “verbally attack[ed]”, accused of being a “thief or drug addict” and asked “if there was something wrong with [plaintiff]” or if she had a relative who stole from a former pharmacy Plaintiff owned. (Doc. 1-2, pg. 10-11). Plaintiff goes on to allege that in an August 2015 meeting she was told it “would be better if [she] resigned” and felt that Walgreens employees in the meeting where trying to “intimidate” Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 23 of 27 24 her into quitting. Id. at 11-12. Finally, Plaintiff alleges that her employment was terminated six days after the August 2015 meeting. Id. at 12. Even accepting Plaintiff’s allegations as true, alleged verbal mistreatment during the December 2014 meeting, including being called a “thief and drug addict,” does not amount to extreme and outrageous conduct. Payne v. Whole Foods Mkt. Grp., Inc., 812 F. Supp. 2d 705, 710 (E.D.N.C. 2011), aff’d, 471 F. App’x 186 (4th Cir. 2012) (finding: “‘ostracism, targeted criticism, false and anonymous accusation, and periodic intentional efforts to overwhelm [plaintiff] with work” was not extreme and outrageous conduct); Kargarian v. AutoZoners, LLC, No. 3:12-CV-144-MOC-DSC, 2012 WL 4753301, at *9 (W.D.N.C. Sept. 13, 2012), report and recommendation adopted, No. 3:12CV144, 2012 WL 4753300 (W.D.N.C. Oct. 4, 2012) (allegations that plaintiff was subjected to culturally offensive remarks, ethnic slurs, and jokes did not constitute extreme and outrageous conduct) (citing Hogan v. Forsyth Country Club Co., 340 S.E.2d 116, 123 (N.C. App. 1986) (“finding no extreme or outrageous conduct where a supervisor screamed at employees, called them names, cursed at them, disrupted their work, threw menus at them, refused to grant pregnancy leave, and terminated an employee who left work due to labor pains”)). Likewise, telling Plaintiff it would be better if she resigned, which Plaintiff alleges that she felt was intimidating, does not amount to extreme and outrageous conduct. Harwood, 2016 WL 3438039, at *1 (finding that alleged threats and intimidation by manager during internal audit were insufficient to show extreme and outrageous conduct); Hogan, 79 N.C. App. 483 at 493 (explaining that IIED liability does not “extend to mere insults, indignities, threats”). Finally, Plaintiff’s termination, even if alleged to have violated federal anti-discrimination law, is not alone enough to state a claim. Jackson, 226 F. Supp. 2d at 794; Thomas, 157 F. Supp. 2d at Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 24 of 27 25 635. As a result, Plaintiff’s IIED claim should be dismissed by the Court as a matter of law for want of a showing of extreme or outrageous conduct. Even assuming Plaintiff could show extreme and outrageous conduct (she cannot), Plaintiff’s Complaint does not put forth sufficient factual allegations to establish element three, severe emotional distress. “To show severe emotional distress, a plaintiff must ‘do more than simply state that he has suffered severe emotional distress; there must be evidence that he has suffered from an emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.’” Payne, 812 F. Supp. 2d at 710 (quoting May v. City of Durham, 136 N.C. App. 578, 525 S.E.2d 223, 230 (2000)) (emphasis added). Allegations of fear, embarrassment or humiliation are insufficient to state a claim. Id. (citing Kaplan v. Prolife Action League of Greensboro, 111 N.C. App. 1, 431 S.E.2d 828, 838 (1993)). Here, Plaintiff alleges that she felt “shell shocked” following the December 2014 and August 2015 meetings. (Doc. 1-2, pg. 12). She further alleges that she felt “frustrated.” Id. pg. 12-13. These allegations fall far below what is necessary to set forth a claim for severe emotional distress. Payne, 812 F. Supp. 2d at 710 (allegations that plaintiff felt “embarrassed, stigmatized, smeared, dirtied, sullied, robbed, etc.” were insufficient to state a claim for severe emotional distress at the motion to dismiss stage). Consequently, Plaintiff’s IIED claim fails on two essential elements and should be dismissed. IV. CONCLUSION For a host of reasons set forth above, Plaintiff’s Complaint should be dismissed under Rules 12(b)(1) and 12(b)(6). Defendant, therefore, respectfully requests complete dismissal of Plaintiff’s Complaint with prejudice. Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 25 of 27 26 Dated this the 22nd day of September, 2017. Respectfully submitted, /s/Kelly S. Hughes N.C. Bar No. 33439 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 201 South College Street, Suite 2300 Charlotte, North Carolina 28244 Telephone: 704.342.2588 Facsimile: 704.342.4379 E-mail: kelly.hughes@ogletree.com /s/Elizabeth R. Gift N.C. Bar No. 44331 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 201 South College Street, Suite 2300 Charlotte, North Carolina 28244 Telephone: 704.342.2588 Facsimile: 704.342.4379 E-mail: elizabeth.gift@ogletree.com Attorneys for Defendant Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 26 of 27 27 CERTIFICATE OF SERVICE I, Kelly S. Hughes, hereby certify that I have this day electronically filed the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system. I also certify that I have served a copy of the same via United States Mail and via Certified Mail, return receipt requested, properly addressed and with the correct amount of postage affixed thereon, to: Cynthia Fisher Plaintiff Pro Se 1402 Lenoir Drive Unit B Shelby, North Carolina 28150 Dated this the 22nd day of September, 2017. /s/Kelly S. Hughes N.C. Bar No. 33439 Attorney for Defendant OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 201 South College Street, Suite 2300 Charlotte, North Carolina 28244 Telephone: 704.342.2588 Facsimile: 704.342.4379 E-mail: kelly.hughes@ogletree.com Case 1:17-cv-00225-MOC-DLH Document 6 Filed 09/22/17 Page 27 of 27