United States District Court, E.D. North Carolina, Southern Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on Defendant's Motion to Dismiss the Complaint [DE-7] and Defendant's Motion to Dismiss the Amended Complaint [DE-14]. The issues have been fully briefed and are now ripe for ruling. For the reasons set forth below, Defendant's Motion to Dismiss the Complaint is DENIED as moot. Additionally, Defendant's Motion to Dismiss the Amended Complaint is ALLOWED to the extent that Plaintiff's claim for sexual harassment based on a hostile work environment is DISMISSED without prejudice, and the remainder of Plaintiff's claims are DISMISSED with prejudice.
I. STATEMENT OF THE CASE
On July 11, 2013, Plaintiff filed her Complaint, asserting that she was entitled to relief on five bases. Complaint [DE-l at pp. 7-8]. Defendant responded by filing a Motion to Dismiss the Complaint. [DE-7.] Plaintiff filed an Opposition [DE-13] and the Amended Complaint [DE-12]. In her Amended Complaint, Plaintiff has alleged the following:
Count One: The Defendant is liable to the Plaintiff for retaliating against her in violation of Title VII for opposing practices made unlawful pursuant to Title VII of the Civil Rights Act of 1964, and as amended in 1991.
Count Two: The Defendant is liable to the Plaintiff for disparate treatment due to gender discrimination and for subjecting her to sexual harassment, including a Hostile Work Environment, in violation of Title VII.
Count Three: The Defendant is liable to the Plaintiff for the Negligent Infliction of Emotional Distress.
Count Four: The Defendant is liable to the Plaintiff for the Intentional Infliction of Emotional Distress.
Count Five: The Defendant Company is liable to the Plaintiff for the Negligent Supervision and Retention of Superintendent Tommy Lowery.
Amended Complaint [DE-12 at p. 9.] Defendant filed its Motion to Dismiss the Amended Complaint [DE-14]. Plaintiff filed an Opposition [DE-16], to which Defendant filed a Reply [DE-17].
II. STATEMENT OF THE FACTS
The facts, as alleged by Plaintiff, are as follows: Plaintiff was employed by Defendant from December of 1995, until she was forced to resign on July 19, 2011. Am. Compl. ¶¶ 9, 17. Plaintiff is an African American female who resides in Robeson County, North Carolina. Id. ¶¶ 5, 13. Defendant is a company which employs more than 10, 000 people throughout the nation and operates in the production, processing and distribution of food and related products. Id. ¶ 7.
Superintendent Tommy Lowery (hereafter "Lowery") subjected Plaintiff to sexual harassment and disparate treatment on the basis of her gender. Id. ¶¶ 10, 11. Plaintiff complained directly to Lowery about his behavior. Id. ¶ 15. Plaintiff also complained verbally to other co-workers and Lowery's supervisor. Id. In approximately April of 2011, Plaintiff complained about Lowery's conduct to Human Resources Manager Jamie Pope. Am. Compl. ¶ 15.
In approximately March of 2011, Plaintiff requested a transfer to another department or city in an effort to get away from Lowery. Id. ¶ 14. Plaintiff was advised that there were no vacancies to facilitate the requested transfer. Id.
On July 18, 2011, Plaintiff made a written complaint to Human Resources. !d.¶ 15. Human Resources failed to conduct an investigation in response to her complaints and did ...