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Nickles v. Bank of America Corp.

United States District Court, M.D. North Carolina

May 23, 2014



THOMAS D. SCHROEDER, District Judge.

Plaintiff Dianne G. Nickles brought this action pro se in Guilford County (North Carolina) Superior Court, alleging that Defendant Bank of America Corp. ("BOA") discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the North Carolina Persons with Disabilities Protection Act ("PDPA"), [1] N.C. Gen. Stat. § 168A-1 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (Doc. 3.) Nickles also alleges intentional infliction of emotional distress ("IIED") and defamation under North Carolina law. (Id. at 4.) BOA timely removed the action to this court (Doc. 1) and now seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) on several bases. (Docs. 7, 8.) Nickles has responded (Doc. 11), and BOA has replied (Doc. 12). For the reasons set forth below, BOA's motion will be granted.


The facts, viewed in the light most favorable to Nickles, are as follows:

Nickles has been severely hearing impaired since she was eight years old. (Doc. 3 ¶¶ 5, 10.) She was fitted with a hearing aid at the age of ten. (Id. ¶ 10.) From the time she was a child, she could wait on customers at her parents' grocery store and count change back to customers. (Id.) She has twenty years of banking experience and has worked as a teller, head teller, and vault and ATM teller. (Id. ¶¶ 11, 13.)

Nickles applied for several jobs and secured an interview with BOA on October 31, 2006. (Id. ¶ 6.) She was interviewed by Betty Womack, Vice President, and Gloria Baker, Assistant Manager. (Id.) The interview went very well, but Nickles did not get the job. (Id.) Nearly five years later, on July 20, 2011, Nickles went back to discuss jobs with Womack at BOA. (Id. ¶ 7.) Womack told her there were no job openings at the Adams Farm Branch of BOA. (Id.) Nickles asked why she had not gotten the job in 2006, and Womack informed her that "it was because [Nickles] didn't fit into the Adams Farm Branch." (Id. ¶ 8.) When Nickles asked her to explain further, Womack said, "it was because Nickles had to use the TYY, a telephone for the deaf and hard of hearing[, ] and also [Womack] didn't feel that Nickles could wait on customers at the front and the drive through lane." (Id. ¶ 9.)

Nickles filed a complaint with the U.S. Equal Employment Opportunity Commission ("EEOC") on December 8, 2011. (Id. ¶ 14.) The EEOC mailed her a right-to-sue letter on March 24, 2012. (Id. ¶ 16.) She filed the present complaint on January 31, 2014, in Guilford County Superior Court. (Id. at 1.)


A. Standard of Review

A court must construe pro se litigants' complaints liberally, thus permitting a potentially meritorious case to develop if one is present. Hill v. Braxton , 277 F.3d 701, 707 (4th Cir. 2002) (citing Haines v. Kerner , 404 U.S. 519, 520 (1972)). However, this does not require that the court become an advocate for the unrepresented party. Weller v. Dep't of Soc. Servs. , 901 F.2d 387, 391 (4th Cir. 1990). "Only those questions which are squarely presented to a court may properly be addressed." Id.

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (quoting Twombly , 550 U.S. at 557). A 12(b)(6) motion to dismiss "challenges the legal sufficiency of a complaint considered with the assumption that the facts alleged are true." Francis v. Giacomelli , 588 F.3d 186, 192 (4th Cir. 2009) (internal citations omitted).

B. Federal Claims: ADA and ADEA

BOA contends that Nickles' federal claims are barred by res judicata.[2] "Under the doctrine of res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.'" Andrews v. Daw , 201 F.3d 521, 524 (4th Cir. 2000) (quoting Montana v. United States , 440 U.S. 147, 153 (1979)). "When entertaining a motion to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact." Q Int'l Courier, Inc. v. Smoak , 441 F.3d 214, 216 (4th Cir. 2006) (citing Andrews , 201 F.3d at 524 n.1).[3]

Nickles first filed a complaint based on these same factual allegations supporting her ADA and ADEA claims in Guilford County Superior Court on June 19, 2012. (See Doc. 3 in case 1:12cv754.) BOA removed the case to this court on July 20, 2012. (Doc. 1 in case 1:12cv754.) The action ended when Nickles filed a notice of ...

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