United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion to
dismiss for failure to state a claim. (DE 11). Pursuant to 28
U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge, Robert T. Numbers, II,
entered a memorandum and recommendation
(“M&R”), wherein it is recommended that the
court grant defendant's motion in part. With no
objections filed, the court adopts the recommendation in the
M&R, and grants defendant's motion in part.
a black woman employed as a paralegal in defendant's
office, commenced this action July 15, 2016, pursuant to
Title VII of the Civil Rights of 1964 (“Title
VII”), asserting claims of race discrimination, hostile
work environment, and retaliation based upon plaintiff's
filing a charge complaining of same with the United States
Equal Employment Opportunity Commission (“EEOC”).
Roy Cooper (“Cooper”), former defendant in this
matter, and defendant moved to dismiss plaintiff's claims
of race discrimination on the ground that plaintiff's
claims are time-barred and fail to state a claim upon which
relief can be granted. (DE 11).
of responding to the motion, plaintiff, outside the time
period for amendment as a matter of course, moved to amend
her complaint. (DE 19). Following response in opposition to
her motion, plaintiff filed an amended motion to amend the
complaint. (DE 23). Plaintiff attached amended complaints to
both filings. (DE 19-1; DE 25). The first amended complaint
omitted Cooper as a defendant, added as defendant Josephine
Tetteh, in her individual and official capacity as a North
Carolina assistant attorney general, and added a claim of
intentional infliction of emotional distress. The second
amended complaint named only the above-captioned defendant
and added a claim of negligent infliction of emotional
distress. Both amended complaints amplified plaintiff's
original claims under Title VII and gave expanded recitation
of the facts giving rise to the case.
M&R recommends dismissal of all claims except for
plaintiff's Title VII claim for retaliation. By order
issued simultaneously with the M&R, the magistrate judge
denied the motion to amend except as to plaintiff's claim
of retaliation, final amendment to the caption, and expanded
recitation of the facts, as set forth in the second amended
complaint. Neither party objected to the M&R, and the
time to do so has elapsed.
court incorporates herein section I of the M&R, where
that section accurately summarizes the facts alleged in the
second amended complaint.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). Therefore, where the parties lodged no objections
in this matter, the court reviews for clear error.
careful review of the record, the court finds no clear error
in the determination of the magistrate judge. Plaintiff's
claims of race discrimination and hostile work environment
must be dismissed because they are time-barred where
plaintiff did not initiate this action within 90 days of
receiving notice of right to sue from the EEOC. See
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-52
(1984). Plaintiff's claims of intentional and negligent
infliction of emotional distress must be dismissed where
plaintiff has failed to plead extreme and outrageous conduct
- an essential element of those claims. See Holloway v.
Wachovia Bank & Trust Co., N.A., 339 N.C. 338, 351
(1994). Plaintiffs claim of retaliation may proceed where
plaintiff has pleaded that she engaged in protected activity
by filing an EEOC charge, that defendant took an adverse
employment action by giving plaintiff additional job duties,
and that said adverse employment action was sufficiently
proximate in time to the protected activity to support an
inference that a causal link exists between the protected
activity and the adverse employment action. See
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271
(4th Cir. 2015).
the court adopts the M&R as its own, dismisses plaintiffs
claims of race discrimination, hostile work environment,
intentional infliction of emotional distress, and negligent
infliction of ...