United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, Sr., District Judge.
Plaintiff Safiya High ("Plaintiff"), proceeding pro se, filed this action alleging various claims of discrimination based on race and retaliation. Before this court are two motions made by Defendant Genesis Healthcare LLC ("Defendant"): (1) Defendant's partial motion to dismiss Plaintiff's claims under the Whistleblower Protection Act pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. 20), and (2) Defendant's Motion to Strike Plaintiff's Reply to Defendant's Answer and Affirmative Defenses and Plaintiff's Affidavit (Doc. 26). Plaintiff has responded in opposition to the motion to strike (Doc. 29), and the deadline has elapsed for Defendant to submit a reply. Both motions are now ripe for adjudication.
For the following reasons, Defendant's motion to dismiss Plaintiff's Whistleblower Protection Act claim will be granted and Defendant's motion to strike will be granted in part and denied in part.
Plaintiff filed this action on March 27, 2014, and subsequently filed an amended complaint (Doc. 17) on June 18, 2014, alleging discrimination based upon race and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended ("Title VII"); and alleging violations of the Whistleblower Protection Act, 5 U.S.C. §§ 2301, et seq., as amended.
On August 6, 2014, Defendant filed its "Partial Motion to Dismiss Plaintiff's Amended Complaint." (Doc. 20.) Plaintiff was mailed a Roseboro Letter, advising her of her right to respond to Defendant's Motion to Dismiss. (Doc. 23.) The time has expired for Plaintiff to respond to Defendant's Partial Motion to Dismiss. Nevertheless, it appears to this court that Plaintiff was attempting to respond to Defendant's Motion to Dismiss in filing her Reply. (See Pl.'s Mem. of Law in Supp. of Mot. in Opp'n of Def.'s Mot. to Strike (Doc. 30) at 2.) Recognizing that Plaintiff is proceeding pro se, this court will grant some latitude and consider Plaintiff's arguments in her Reply to the extent her arguments oppose Defendant's Partial Motion to Dismiss.
Also on August 6, 2014, Defendant filed its Answer to Plaintiff's First Amended Complaint. (Doc. 22.) Plaintiff then filed a Reply to Defendant's Answer and Affirmative Defenses (Doc. 24) with an accompanying affidavit prepared by Plaintiff (Doc. 25). Defendant subsequently filed a Motion to Strike both Plaintiff's Reply and Plaintiff's Affidavit (Doc. 26), and Plaintiff has responded (Doc. 29).
A. Motion to Dismiss
This court first considers Defendant's motion to dismiss Plaintiff's Whistleblower Protection Act claim for failure to state a claim, pursuant to Rule 12(b)(6).
"To survive a motion to dismiss, 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 Atlantic Corp. V. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible provided the plaintiff provides enough factual content to enable the court to reasonably infer that the defendant is liable for the misconduct alleged. Id . The pleading setting forth the claim must be "liberally construed" in the light most favorable to the non-moving party, and allegations made therein are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the "requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege any facts [that] set forth a claim." Estate of Williams-Moore v. Alliance One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004).
In her amended complaint, Plaintiff claims that Defendant failed to "process her whistle complaint in violation of the Whistleblower Protection Act, 5 U.S.C. 2301." (Am. Compl. (Doc. 17) ¶ 78.) Defendant responds that, because Plaintiff is not a federal employee nor is Defendant a federal employer, Plaintiff's Whistleblower Act claim must be dismissed. (Mem. of Law in Supp. of Def.'s Mot. to Dismiss Pl.'s First Am. Compl. (Doc. 21) at 1.) This court agrees.
The Whistleblower Protection Act was created to protect federal employees who work for the federal government and report agency misconduct. See Whistleblower Protection Act of 1989, Pub. L. 101-12, § 2 (codified as amended at 5 U.S.C. § 2302(b)(8)). The Whistleblower Protection Act only protects employees in a "covered position" within an "agency, " meaning that only employees of an executive branch agency or the Government Printing Office are protected from retaliation based on disclosure of information. See 5 U.S.C. § 2302(a)(2)(A)-(C). In contrast, employees that work for private companies are not protected by the Whistleblower Protection Act. See Jurgensen v. Fairfax Cnty., Va., 745 F.2d 868, 871 (4th Cir. 1984) (recognizing that the federal Whistleblower Protection statute did not apply to an individual who was not a federal employee).
In this case, Plaintiff has not alleged that Defendant is a government agency within the meaning of the Whistleblower Protection Act. Instead, Plaintiff alleges that Defendant is a privately-owned Delaware limited liability company. (Am. Compl. (Doc. 17) ¶ 6.) Additionally, Plaintiff has not alleged that she was in a "covered position" that qualifies for protection under the Whistleblower Protection Act. This court assumes as true that Plaintiff made complaints about her ...