Miller v. Amcare Group, Llc

BRIEF re MOTION to Dismiss and Motion for Sanctions

M.D.N.C.May 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Civil Action No. 1:17-CV-90 STACEY MILLER, Plaintiff, v. AMCARE GROUP, LLC and JAMES WEEKS, Defendants. BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AND MOTION FOR SANCTIONS NOW COME Defendants AmCare Group, LLC (“AmCare”) and James Weeks (“Weeks”) through counsel, and hereby submit this Brief in Support of their Motion to Dismiss Claims and Motion for Sanctions. Nature of the Matter Before the Court This civil action is a workplace discrimination complaint brought by the Plaintiff Stacey Miller (“Miller”) related to her former employment at AmCare Group, LLC. Miller’s primary claim is that she was a victim of sexual harassment in violation of Title VII and North Carolina General Statute § 143-422.1. She also asserts supplemental state law claims for negligent retention and emotional distress that are based solely upon the same sexual harassment allegations. For the reasons outlined below, Plaintiff’s sexual harassment claims are subject to dismissal as a matter of law because neither defendant is an “employer” under the applicable statute. Her negligent retention and emotional distress claims fail as a matter of law because they are wholly derivative of her Title VII Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 1 of 22 2 claim and because she fails to make sufficient allegations in her unverified Complaint to support them. Statement of Relevant Procedural Facts Miller filed her unverified Complaint in the Superior Court for Guilford County, North Carolina on December 22, 2016. [D.E. 1-1.] Defendants removed the lawsuit to this Court on February 1, 2017 [D.E. 1.], and filed their joint Answer on February 7, 2017 [D.E. 7]. Miller asserts in her Complaint that she has “completed all jurisdictional prerequisites” to bringing suit. [D.E. 3, ¶ 12.] She filed a charge with the Equal Employment Opportunity Commission on September 6, 2016 (attached hereto as Exhibit A), which the Commission hastily dismissed only twenty-two (22) days later on September 28, 2016, with a Dismissal and Notice of Rights letter (attached hereto as Exhibit B).1 Alleged Facts In the light most favorable to Miller, the following summarizes her factual contentions in her unverified Complaint [D.E. 3]: (1) AmCare employed Miller as an executive assistant “for several years.” (Complt. ¶ 4). 1 Since these authentic materials are referenced and relied upon in the Complaint, the Court can consider these attachments without converting this motion to dismiss to a summary judgment motion. Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004). Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 2 of 22 3 (2) “Shortly after her initial training2” Miller began to experience sexual harassment from Weeks, including “inappropriate sexual comments,” “coming to her personal residence uninvited,” “inappropriate telephone calls and text messages,” and “harassment on the job.” (Complt. ¶ 5). (3) Miller expressed her objections to Weeks, but the conduct did not stop until April, 2016. (Complt. ¶ 5). (4) After April 2016, Plaintiff “began to experience retaliation” in the form of reduced work-related communications with Weeks, reduced responsibilities, an assignment to train a new assistant, and a relocation of her office. (Complt. ¶ 6). (5) Miller was placed on administrative leave on August 9, 2016 and terminated on September 1, 2016. (Complt. ¶ 7). (6) AmCare was aware of Weeks’ alleged bad conduct, continued to retain him, and failed to prevent or correct sexual harassment. (Complt. ¶ 8). (7) Unidentified “managers to whom she reported” were AmCare’s agents. (Complt. ¶ 9). AmCare was aware of these unnamed individuals’ conduct and “accepted or acquiesced in the manner in which they performed their duties.” (Complt. ¶ 14). (8) AmCare negligently retained Weeks and other unnamed corporate agents because: (i) failed to train company employee and agents “in the methods of investigating concerns about sexual harassment” and in “the application of anti-harassment policies”; 2 This allegation in Plaintiff’s Complaint differs from the allegation in her Charge of Discrimination concerning the timing the alleged harassment began. See Exh. 1 (“On or around July 1, 2015, the CEO began sexually harassing me ….). Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 3 of 22 4 (ii) did not supervise employees’ alleged sexual harassment; and (iii) retained Weeks, even though the Company knew he had (allegedly) “sexually harassed” Plaintiff. (Complt. ¶¶ 15, 20). (9) Weeks was acting in the course of his employment when he: (i) “caused personal injury to the Plaintiff by the unwelcome touching of her person”; (ii) trespassing on her personal property; (iii) making unspecified “comments and advances” upon her. (Complt. ¶ 18). (10) Because of Weeks Plaintiff experienced a “constant sense of fear and apprehension while working” and “many sleepless nights in anticipation of harassment the next business day.” (Complt. ¶ 18). Questions Presented I. Has Plaintiff offered sufficient factual allegations in her Complaint that AmCare and Weeks are “employers,” under the statutory definitions of Title VII and the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 et seq., such that her sexual harassment claims survive 12(b)(6) scrutiny? II. Has Plaintiff offered sufficient factual allegations in support of her claims for emotional distress or has she failed to state a claim upon which relief can be granted? III. Has Plaintiff offered sufficient factual allegations in support of her claims for negligent retention or has she failed to state a claim upon which relief can be granted? Standard of Review 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 Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 4 of 22 5 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) (citations omitted). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level” such that they “raise a reasonable expectation that discovery will reveal evidence of [the claim or element].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Eastern Shore Markets, Inc. v. J.D. Associates Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). Complaints that contain legal conclusions without supporting factual averments are insufficient to state a claim on which relief can be based. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). ARGUMENT I. Plaintiff’s Sexual Harassment Claims Fail as A Matter of Law Because She Has Not Alleged Sufficient Facts to Show that AmCare is an “Employer” Subject to Title VII or N.C. Gen. Stat. § 143.422.1 The threshold “employer” requirement for the application of Title VII and North Carolina Equal Employment Practices Act (“NCEEPA”) is an element of a plaintiff’s claim for relief. See, e.g., Arbaugh v. Y& H Corp., 546 U.S. 500, 512 (2006). Whether that threshold requirement is met may be challenged in a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) or a Motion for Summary Judgment under Rule 56. See Sturdivant v. K & S Sanitation Service, Inc., No. 3:11-cv-136-RJC-DSC, 2011 WL 5237747, *1 (W.D.N.C. Oct. 24, 2011) (dismissing Title VII sexual harassment claim under Rule Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 5 of 22 6 12(b)(6) where Complaint did not allege that defendant met the fifteen-employee requirement); Anthony v. Alorica, Inc., 2009 WL 648945, *2-3 (D. Kan. Mar. 12, 2009) (plaintiff failed to state a claim when she did not allege in her complaint that the defendants constituted an “employer” within the meaning of Title VII); Quitoriano v. Raff & Becker, LLP, 675 F. Supp. 2d 444, 453 (S.D.N.Y.2009) (granting a motion to dismiss a Title VII claim where the plaintiff failed to allege that the defendant had employed fifteen or more employees). AmCare cannot be subject to a Title VII or North Carolina Equal Employment Practices Act (“NCEEPA”) employment discrimination claim. Employers are subject to liability under Title VII only if, at the time of the alleged discrimination, they meet the statutory definition of “employer.” Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 205 (1997). Title VII defines employer as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b). Thus, employers with less than fifteen employees are considered exempt from Title VII’s requirements. Depaoli v. Vacation Sales Assocs., L.L.C., 489 F.3d 615, 622 (4th Cir. 2007). Likewise, the NCEEPA is only applicable to those employers that “regularly employ 15 or more employees.” N.C. Gen. Stat. § 143-422.2 (b). Here, Miller does not allege sufficient facts to suggest that AmCare employs the requisite number of employees for Title VII and NCEEPA to apply. Instead, she states the following legal conclusion in her unverified Complaint: “Defendant corporation is an Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 6 of 22 7 employer within the definition of Title VII of the Civil Rights Act of 1991, as amended[,] and with the definition of N.C.G.S. § 143-422.1 et seq.” [D.E. 3, ¶4]. This statement is a legal conclusion, which Defendants noted in their Answer. [D.E. 7, ¶4]. The Court is to disregard conclusions of law in a Complaint when assessing a motion to dismiss. Iqbal at id. Accordingly, in the absence of alleged “facts” that AmCare meets the applicable statutory definitions for “employer,” Plaintiff’s Title VII and NCEEPA claims fail. Alternatively, in the event the Court finds that Plaintiff has made adequate factual allegations concerning the number of employees in AmCare’s employ, then AmCare seeks summary judgment3 on Title VII and NCEEPA based upon that Affidavit of James Weeks (attached hereto as Exhibit C). As Weeks’ affidavit makes clear, AmCare has never employed the number of employees necessary to make Title VII and the NCEEPA applicable. It is also unclear from the Complaint whether Plaintiff asserts her Title VII and NCEEPA claims against Weeks. Cf. D.E. 3, ¶¶ 4, 8, 9 (“Defendant corporation,” “corporate defendant”) and ¶¶ 11 (“The conduct of Defendants . . . .”) (emphasis added). To the extent she does assert a claim against Weeks (which Defendants deny), these claims also fail as a matter of law. There are no pleaded facts to show that Weeks is an 3 Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Factual disputes about immaterial matters are irrelevant to a summary judgment determination. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant need only point to those portions of the record which demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex at 323. The plaintiffs' unverified complaint cannot serve as an affidavit opposing summary judgment. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (citing Davis v. Zahradnick, 600 F.2d 458, 459–60 (4th Cir.1979)) (explaining that only a verified complaint based on personal knowledge can serve as an affidavit opposing summary judgment). Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 7 of 22 8 “employer,” and, in any event, individuals are not usually liable under Title VII as a general rule. See Burnette v. Austin Med., Inc., 1:11CV52, 2011 WL 1769445, at *4 (W.D.N.C. Apr. 14, 2011), report and recommendation adopted, 1:11CV52, 2011 WL 1754166 (W.D.N.C. May 9, 2011); Brown v. Minichbauer, 1:13CV474, 2014 WL 12493189, at *1 (M.D.N.C. Apr. 16, 2014), aff'd, 585 Fed. Appx. 261 (4th Cir. 2014). Finally, Plaintiff’s NCEEPA clam also fails as a matter of law for another independent reason. In Smith v. First Union Nat. Bank, 202 F.3d 234 (4th Cir. 2000), the Fourth Circuit held that there was no private cause of action under North Carolina law for sexual harassment under § 143-222.2. The Circuit stated that absent a clear indication from the North Carolina courts or legislature “it would be inappropriate for a federal court to create a private right of action under § 143-422.2.” See also McLean v. Patten Communities, Inc., 332 F.3d 714, 719 (4th Cir. 2003); accord, Barber v. The Family Center, Inc., 2006 WL 3246608 (W.D.N.C. 2006). Accordingly, Plaintiff’s state-law sexual harassment claim arising under the NCEEPA fails, also. II. Plaintiff’s Tort Law Claims Derive from her Title VII Allegations and Should Be Dismissed Pursuant to Rule 12(b)(6) A. Derivative State Law Claims Fail as a Matter of Law When a plaintiff asserts supplemental state law claims based on the same conduct underlying a federal Title VII claim, those state law claims are preempted and should be dismissed. See Rhodes v. Johnson, No. 3:13-cv-00109-MOC-DSC, 2014 WL 2531594, *9 (W.D.N.C. June 5, 2014) (collecting cases). Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 8 of 22 9 That is precisely the case here. Plaintiff’s negligent retention claim against AmCare and her emotional distress claims against both Defendants parrot the factual allegations she asserts for her (failed) Title VII claim. This is plain from the face of the Complaint. The negligent retention claim alleges that AmCare: (i) failed to train company employee and agents “in the methods of investigating concerns about sexual harassment” and in “the application of anti-harassment policies”; (ii) did not supervise employees’ alleged sexual harassment; and (iii) retained Weeks, even though the Company knew he had (allegedly) “sexually harassed” Plaintiff. [D.E. 3, ¶ 15]. These echo her Title VII allegations. See D.E. 3, ¶ 8 (“corporate Defendant failed to take reasonable action to prevent the subject sexual harassment”). Likewise, her emotional distress allegations concern the same purported conduct giving rise to her Title VII claim. Cf. Id. at ¶ 18 (“unwelcome touching,” trespass on personal property, “creating a stressful and hostile work environment due to his comments and advances”); ¶ 20 (defendants failed to prevent employees from making physical contact with her and failed “to properly train its employees against sexual harassment.”) with ¶ 5 (inappropriate comments, trespass, “harassment on the job”). Rhodes and principles of judicial economy counsel that these derivative state law claims, which are substantively the same as Miller’s Title VII and NCEEPA claims, be dismissed. B. Plaintiff’s Emotional Distress Claims Fail Plaintiff’s intentional and negligent infliction of emotional distress claims also fail as a matter of law because she has failed to plead sufficient facts to sustain these claims. Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 9 of 22 10 1. The IIED Claim Fails Because the Conduct Alleged is Not “Outrageous” under North Carolina Law and Plaintiff’s Alleged Distress is Not Sufficiently Severe In order to state an IIED claim under North Carolina law, a plaintiff must allege “(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). This requires the plaintiff to allege “conduct [that is] 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, disc. rev. denied, 317 N.C. 334, 346 S.E.2d 140 (1986). North Carolina courts have “set a high threshold for a finding that conduct” meets this standard. Dodson v. J.C. Penny Co., 134 N.C. App. 573, 578, 521 S.E.2d 710, 715 (1999), rev’d on other grounds, 352 N.C. 77, 530 S.E.2d 829 (2000). This “standard of course excludes a great deal of conduct that is undoubtedly very bad and is properly considered reprehensible” but which is not actionable. Walker v. Sullair Corp., 946 F.2d 888 at *3 (4th Cir. 1991) (unpublished). Whether the conduct alleged in a complaint meets the extreme and outrageous standard is a question of law for the Court to decide. Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). In the employment setting, the conduct cited to support an IIED claim must be particularly outrageous; rarely are there facts sufficient to meet this threshold. Wilson v. Southern Nat'l Bank, 900 F. Supp. 803, 811-812 (W.D.N.C. 1995), aff'd, 92 F.3d 1184 (4th Cir. Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 10 of 22 11 1996). For example, acts of unlawful discrimination are not necessarily “extreme and outrageous” for purposes of stating a claim for IIED. Faulkner v. Tyco Electronics Corp., 552 F. Supp. 2d 546, 558 (M.D.N.C. 2008). There are many cases where an employee’s factual allegations fall far short of the high threshold recognized by courts applying North Carolina law: • Wilson v. Southern Nat’l Bank, 900 F. Supp. 803, 807-09 (W.D.N.C. 1995): Plaintiff alleged that (1) a male co-worker put his hand on her hip, licked his lips and said, “umm . . . I’d like to have some of that”; (2) co-workers would hike their pants up to show the outline of their genitals; (3) employees brought “dirty cartoons” to work; (4) a younger co-worker told her that he “preferred older women”; (5) a coworker whacked the plaintiff on her hip with a clipboard while singing a song about “hips and butts” which caused plaintiff to start crying; (6) plaintiff felt co-workers were teasing her because she complained to management; (7) after the co-workers were reprimanded, a female co-worker would close plaintiff’s office door and ask her questions about what she was doing and why she did not talk to the reprimanded co-workers. Held: Plaintiff’s allegations constituted a “frivolous claim” thereby warranting summary judgment in favor of the defendant. Id. at 812. • Guthrie v. Clegg’s Termite and Pest Control, 152 N.C. App. 15, 24, 567 S.E.2d 403, 410 (2002): Plaintiff alleged that (1) a co-worker held her from behind and “touched or rubbed her neck and shoulders”; (2) a co-worker threw potting soil and water on plaintiff while she was planting flowers while simultaneously remarking that he had “always wanted to see her in a wet T shirt”; (3) co-worker placed a Styrofoam “peanut” between the legs of a naked man statuette plaintiff had displayed at work and asked her “how she liked it.” Held: Plaintiff’s allegations were insufficient to demonstrate “atrocious” and “utterly intolerable” behavior essential to a claim for IIED. Id. • Coremin v. Sherrill Furniture Company, 170 N.C. App. 697, at *3, 614 S.E.2d 607 (2005) (unpublished): Plaintiffs (husband and wife) complained that the chief operating officer of the Company (1) touched the wife’s hair, shoulders, and small of her back; (2) told the wife that she had a great figure for her appetite and told her husband that he liked her legs; (3) after the wife blew dust off a catalog, said to the husband that he did not know the wife “gave blow jobs”; (4) stood below the wife with his face near her buttocks; (5) rubbed a magazine picture of a naked Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 11 of 22 12 woman over his crotch at a company party. Held: Plaintiffs’ failed to present evidence sufficient to establish the “extreme and outrageous” element of their IIED claim. Id. Miller’s allegations of “extreme and outrageous” conduct fall well short of what courts require. Here, Miller alleges that Weeks engaged in “unwelcome touching,” trespass on personal property, “creating a stressful and hostile work environment due to his comments and advances and that AmCare failed to prevent employees from making physical contact with her and failed “to properly train its employees against sexual harassment.” As a matter of law, such conduct does not rise to the level of outrageous, extreme, or utterly atrocious behavior required to successfully assert an IIED claim. Miller’s IIED claim also fails because her allegations do not provide sufficient allegations to show that she suffered “severe” emotional distress. Whether Miller’s forecasted evidence may establish severe emotional distress is a question of law for the court. Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22, 28 (N.C. 1992) (citing Restatement (Second) of Torts § 46 cmt. j (1965)). Severe emotional distress is “any 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.” Wilkerson, 748 S.E.2d at 159 (quoting Johnson, 395 S.E.2d at 97). North Carolina sets a high threshold on this element, too. “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Waddle, 414 S.E.2d at 27–28 (quoting Restatement (Second) of Torts § 46 cmt. j (1965) (emphasis omitted)). Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 12 of 22 13 Here, Plaintiff has merely asserted that she suffers from emotional distress, and provided a few rote examples of her alleged manifestations of stress, including “constant sense of fear and apprehension while working,” “sleepless nights,” “reduction in self- esteem,” “ongoing depression,” and “ongoing anxiety.” [D.E. 3, ¶¶ 18, 20]. The specificity of these accusations, however, does not compensate for the fact that she does not allege that any medical professional has diagnosed her with any specific disorder or prescribed any course of treatment. Nor does she include any specific, factual allegations regarding when or how often she has suffered from the alleged distress. Without more specific factual allegations regarding her alleged distress, Plaintiff’s claim cannot survive the motion to dismiss. See, e.g., Johnson, 327 N.C. at 304, 395 S.E.2d at 97 (“mere fright or temporary anxiety” is insufficient to support a claim for intentional infliction of emotional distress). Indeed, North Carolina courts require more specific allegations to establish a severe and disabling emotional or mental condition which is generally recognized and diagnosed by trained professionals. See Reaves v. JP Morgan Chase Bank, N.A., 1:13CV192, 2014 WL 6810771, at *5 (M.D.N.C. Dec. 2, 2014), report and recommendation adopted sub nom. Reaves v. JP Morgan Chase Bank, N.A., 1:13CV192, 2015 WL 687083 (M.D.N.C. Feb. 18, 2015) (citing Horne v. Cumberland County Hosp. Sys., 746 S.E.2d 13, 20 (N.C. Ct. App. 2013)). For this additional, independent reason Plaintiff’s IIED claim fails. 2. Miller’s NIED Claim Also Fails as Matter of Law “Under North Carolina law, to state a claim for negligent infliction of emotional Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 13 of 22 14 distress, Plaintiff must allege and prove that Defendants negligently engaged in conduct that was reasonably foreseeable to cause Plaintiff severe emotional distress and that this conduct did in fact cause [plaintiff] to suffer severe emotional distress.” Swaim v. Westchester Academy, Inc., 170 F. Supp. 2d 580, 584 (M.D.N.C. 2001) (citing Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990)); see also Hugger v. Rutherford Inst., 63 F. App’x 683, 690 (4th Cir. 2004). Plaintiff’s threadbare NIED claim fails to make the requisite allegations for a negligence claim. First, as explained above, Plaintiff has not made sufficient allegations concerning the severity of her emotional distress. For this reason, her NIED claim fails. Holloway v. Wachovia Bank & Trust Co., N.A ., 339 N.C. 338, 452 S.E.2d 233, 243 (N.C. 1994) (failure to plead the requisite level of emotional distress required is also fatal to Plaintiff’s NIED claim). Second, Miller’s NIED claim contains no allegations about “foreseeability.” In the absence of such allegations, her claim fails. Gardner v. Gardner, 334 N.C. 662, 667, 435 S.E.2d 324, 328 (1993) (requiring allegations and proof of foreseeability). Finally, with the exception of a few rote statements about “negligence,” Plaintiff’s NIED claim is premised upon the alleged intentional conduct outlined earlier in the Complaint that she asserts in support of her Title VII claim. This will not do. “Without question, basing a claim upon intentional conduct and simply labeling it as negligent is untenable as an attempt to state a cause of action for negligence. This manner of pleading Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 14 of 22 15 and proving negligent infliction of emotional distress has repeatedly been held to be deficient.” Riepe v. Sarstedt, Inc., 5:09-CV-00104, 2010 WL 3326691, at *4–5 (W.D.N.C. Aug. 23, 2010). Mitchell v. Lydall, Inc., 1994 U.S. App. LEXIS 2177, at *9- 10, 1994 WL 38703 (4th Cir. Feb. 10, 1994) (affirming dismissal of NIED claim because the complaint contained “merely a single, conclusory allegation that Lydall was negligent; the material factual allegations charge[d] nothing but intentional acts”); Bratcher v. Pharm. Prod. Dev., Inc., F. Supp. 2d 533, 545 (E.D.N.C. 2008) (granting motion to dismiss because the employee's NIED claim did not involve negligent conduct, but instead the complaint stated that she suffered due to “the willful, wanton and malicious conduct of the Defendant's lack of intervention”); Wilson v. Gaston Cty., 3:13- CV-58-GCM, 2013 WL 1891276, at *4–5 (W.D.N.C. May 6, 2013) (accord). For these reasons, Plaintiff’s NIED claim should be dismissed pursuant to Rule 12(b)(6). B. Plaintiff’s Negligent Retention Claim Fails Plaintiff’s negligent retention claim against AmCare fails because it is derivative of her failed Title VII claim. It also fails because the factual allegations in her unverified Complaint are insufficient. In order to state a claim for negligent retention of an employee, a plaintiff must show “(1) the specific negligent act on which the action is founded ... (2) incompetency, by inherent unfitness or previous specific acts of negligence from which incompetency may be inferred; and (3) either actual notice to the master of such unfitness or bad habits or constructive notice, by showing that the master could have known the facts had he Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 15 of 22 16 used ordinary care in ‘oversight and supervision,’ ...; and (4) that the injury complained of resulted from the incompetency proved.” Foster v. Nash-Rocky Mount County Bd. of Educ., 665 S.E.2d 745, 750 (N.C. App. 2008), citing Medline v. Bass, 327 N.C. 587, 591, 398 S.E.2d 460, 462 (1990). Here, Plaintiff has not satisfied the first prong. Her (failed) Title VII and NCEEPA claims for sexual harassment claim cannot serve as the underlying tort for this claim. McLean v. Patten Communities, Inc., 332 F.3d 714, 720 (2003). Under North Carolina law, “the tortious act [to support a negligent retention claim] must be a common law tort.” Davis v. Gregory Poole Equip. Co., 2:14-CV-12-BO, 2015 WL 8484261, at *4 (E.D.N.C. Dec. 8, 2015) (citing McClean). Jackson v. FKI Logistex, 608 F. Supp. 2d 705, 708 (E.D.N.C. 2009) (“[T]he Fourth Circuit concluded in McLean that North Carolina law requires a common-law tort to underly a negligent retention and supervision claim.”). By definition, a violation of Title VII is not a common law tort. Her state law sexual harassment claims do not suffice, either, as the Fourth Circuit has held that the NCEEPA does not create a private cause of action for sexual harassment or retaliation. McLean at 719; Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir.2000). The only other tortious conduct Miller alleges stems from her claims for intentional and negligent infliction of severe emotional distress. Since that underlying tort (especially as to AmCare) should also be dismissed, this claim may not go forward. Waddles v. Sparks, 331 N.C. 73, 87, 414 S.E.2d 22, 29 (1992) (“An essential element of a claim for negligent retention of an employee is that the employee committed a tortious Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 16 of 22 17 act resulting in plaintiffs' injuries.”); Hogan, 79 N.C. App. at 496-97, 340 S.E.2d at 124- 25 (where evidence does not establish that employee of defendant committed tortious act alleged, plaintiff may not maintain action against defendant employer based on negligent retention). “In other words, North Carolina courts will not hold an employer vicariously liable unless an employee has committed a cognizable [tort] against the plaintiff.” Hartsell v. Duplex Products, Inc., 123 F.3d 766, 774 (4th Cir. 1997). Plaintiff’s case is like both Ennett v. Cumberland Cty. Bd. of Educ., 698 F. Supp. 2d 557, 562 (E.D.N.C. 2010) and Baldwin v. Tradesmen Int'l, Inc., 5:12-CV-00116-FL, 2013 WL 1192314, at *7 (E.D.N.C. Mar. 22, 2013) (applying McLean), aff'd sub nom. Freitas v. Tradesmen Int'l, Inc., 533 Fed. Appx. 346 (4th Cir. 2013). In those decisions, the Eastern District dismissed each plaintiff’s negligent supervision/retention claim after also dismissing each plaintiff’s Title VII and other negligence claims. Just as in those cases, Plaintiff here has failed to sufficiently plead a tortious act that would support her negligent retention claim; accordingly, that negligent retention should also be dismissed. III. Rule 11 Sanctions are Warranted Rule 11 of the Federal Rules of Civil Procedure states that a party must certify that his claims are (1) not presented for improper purpose, such as to harass or delay; (2) that the legal contentions are warranted under existing law or under a non-frivolous argument for the extension of the law; and (3) that the allegations have factual support. Rule 11(b). The Rule authorizes a court to impose sanctions for any violation. Rule 11(c). Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 17 of 22 18 The goal of Rule 11 sanctions is to deter frivolous actions, which waste the court’s resources and put the opposing party to the unnecessary expense of defending meritless claims. See In re Kuntsler, 914 F.2d 505, 522-23 (4th Cir. 1990) (“[I]t is clear that the primary, or ‘first’ purpose of Rule 11 is to deter future litigation abuse”), cert. denied, 499 U.S. 969 (1991). The Rule imposes an objective standard on litigants to ascertain the merits of their claim, even if the claims are not filed in bad faith. See Manning v. Maloney, 787 F. Supp. 433, 439-440 (M.D. Pa. 1992) aff’d, 980 F.2d 722 (3rd Cir. 1992). A party’s factual contentions must be based in good faith on a reasonable factual inquiry in order to avoid Rule 11 sanctions. Jones v. Int’l Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995). Here, Miller and her counsel exhibited a cavalier and irresponsible attitude towards AmCare by advancing and continuing to pursue frivolous Title VII and NCEEPA claims. The objective fifteen-employee requirement necessary to pursue these claims was easily ascertainable after even a cursory inquiry by Miller and her experienced employment attorney. Nevertheless, that inquiry was never undertaken before Plaintiff filed suit – even though EEOC dismissed her underlying charge a mere three weeks after she filed it. More egregious, however, is Plaintiff’s refusal to dismiss the Title VII and NCEEPA claims after Defendants informed her that these claims where wholly non-viable. Indeed, Defendants informed Plaintiff’s counsel of the fatal flaw in her client’s Title VII and NCEEPA claims on at least two occasions. See correspondence dated March 30, 2017 and April 7, 2017 (attached hereto as Exhibits D and E). Plaintiff Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 18 of 22 19 and counsel have taken no steps to address these meritless claims that appear in Miller’s unverified Complaint. Miller’s insistence on continuing this lawsuit has forced Defendants to incur substantial, unnecessary costs. Miller forced Defendants to file its responsive pleadings, even though the EEOC previously had informed her verbally, and in writing, that her Charge failed. Next, Miller continued with this action even after being informed that her claim was frivolous and that Defendants would seek sanctions. In this case, Miller has committed a worse error than merely failing to investigate her claims; she filed and then maintained this lawsuit in the face of objective evidence that demonstrated that her claims were untimely and meritless. Accordingly, sanctions are warranted under Rule 11, and Defendants should receive some reimbursement from Miller to offset the unnecessary defense costs she has caused them to incur. Conclusion WHEREFORE Defendants AmCare Group, LLC and James Weeks seek dismissal of Plaintiff’s claims and the imposition of sanctions related to Plaintiff’s assertion and pursuit of frivolous sexual harassment claims. This the 3rd day of May, 2017. SMITH MOORE LEATHERWOOD LLP /s/ George J. Oliver George J. Oliver N.C. State Bar No. 5774 jerry.oliver@smithmoorelaw.com Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 19 of 22 20 Eric A. Snider N.C. State Bar No. 43378 eric.snider@smithmoorelaw.com P.O. Box 27525 Raleigh, NC 27611 Telephone: (919) 755-8700 Facsimile: (919) 755-8800 Attorneys for Defendants Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 20 of 22 21 CERTIFICATE OF COMPLIANCE The undersigned counsel for Defendants certifies that the foregoing brief is less than 9,000 words as reported by the word-processing software. This the 3rd day of May 2017. /s/ George J. Oliver George J. Oliver Case 1:17-cv-00090-UA-JLW Document 15 Filed 05/03/17 Page 21 of 22 22 CERTIFICATE OF SERVICE I hereby certify that on May 3, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. Nancy P. Quinn The Quinn Law Firm 315 Spring Garden St., Suite 1D Greensboro, NC 27401 /s/ George J. Oliver George J. Oliver N.C. 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