United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's
Motion to Dismiss, (Doc. No. 15), and the related pleadings;
the Magistrate Judge's Memorandum and Recommendation
(“M&R”), (Doc. No. 22); Defendant's
Objections to the Magistrate Judge's M&R, (Doc. No.
23); Plaintiff's Objections to the Magistrate Judge's
M&R, (Doc. No. 24); Plaintiff's Response to
Defendant's Objections to the Magistrate Judge's
M&R, (Doc. No. 26); and Defendant's Response to
Plaintiff's Objections to the Magistrate Judge's
M&R, (Doc. No. 28).
Arcangela Mazzariello (“Plaintiff”) initiated
this action with the filing of a “Verified
Complaint” (Doc. No. 1-1) (the “Complaint”)
in the Superior Court of Mecklenburg County, North Carolina,
Case No. 16-CVS-20211, on November 7, 2016.
“Defendant's Notice Of Removal, ” (Doc. No.
1), was filed by Defendant Atlantic Coast Waterproofing, Inc.
(“Atlantic Coast”) on December 8, 2016. On
December 15, 2016, Defendant Atlantic Coast filed its
“Answer And Affirmative Defenses.” (Doc. No. 6).
January 18, 2017, Plaintiff filed her “Amended
Complaint.” (Doc. No. 14). The Amended Complaint
asserts causes of action against Atlantic Coast for: (1)
racial discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended by the Civil Rights Act of
1991 (“Title VII”); (2) sex discrimination in
violation of Title VII; (3) age discrimination in violation
of the Age Discrimination in Employment Act of 1967, as
amended (the “ADEA”); (4) violation of North
Carolina Retaliatory Employment Discrimination Act (“NC
REDA”); (5) wrongful discharge in violation of public
policy (sex discrimination); (6) wrongful discharge in
violation of public policy (race discrimination); (7)
wrongful discharge in violation of public policy (age
discrimination); (8) wrongful discharge in violation of
public policy against employing illegal aliens; and (9)
punitive damages under North Carolina common law.
(Id. at 12-20). In addition, the Amended Complaint
asserts causes of action against Defendant Federico Jaramillo
(“Jaramillo”), individually, for: (1) intentional
infliction of emotional distress (“IIED”); (2)
assault; (3) battery; and (4) punitive damages under North
Carolina common law. (Id. at 20-23).
support of her claims against Defendant Jaramillo, Plaintiff
alleges the following facts in her Amended Complaint.
Plaintiff is a Caucasian female over the age of forty
(Id. at ¶ 14) who was hired by Atlantic Coast
in 2014 for the position of CEO (Id. at ¶¶
15-16). Plaintiff's duties as CEO included, but were not
limited to: navigating an IRS audit of Atlantic Coast;
reducing financial waste; and bringing Atlantic Coast into
compliance with local, State, and Federal laws and
regulations. (Id. at ¶ 20). Initially,
Plaintiff reported only to Adan Jaramillo, who Plaintiff
alleges was the “official” owner of Atlantic
Coast. (Id. at ¶ 17). Defendant Jaramillo
initially worked on jobsites and reported to Plaintiff.
(Id. at ¶ 18). Upon information and belief,
Plaintiff alleges Defendant Jaramillo does not have legal
residency and therefore was not listed as an
“official” owner of Atlantic Coast. (Id.
at ¶ 19).
relationship with Defendants began to sour when Plaintiff
discovered Defendant Jaramillo was diverting company money
for personal use. (Id. at ¶ 27-28). When
Plaintiff confronted Defendant Jaramillo about his misuse of
company funds, Defendant Jaramillo bragged that he took money
from the company on a regular basis and told Plaintiff she
was not smart enough to figure out how he was doing it.
(Id. at ¶ 29).
time, Defendant Jaramillo assumed more authority within
Atlantic Coast and changed the organizational structure so
that Plaintiff reported to both Defendant Jaramillo and Adan
Jaramillo. (Id. at ¶ 30). Defendant Jaramillo
made it well known to others that he disliked Plaintiff for
many reasons, including but not limited to Plaintiff's:
close audits of the company's finances; insistence on
compliance with local, State, and Federal laws; refusal to
certify immigration compliance; not being of Latin descent;
being “too old”; and being a female.
(Id. at ¶ 31). Additionally, Defendant
Jaramillo told co-workers that Plaintiff would not succeed
because she was “too old” and a
“gringa.” (Id. at ¶ 59). Plaintiff
told Defendants that she found this term offensive and
insisted they stop, but Defendants persisted. (Id.
at ¶¶ 61-63).
several occasions, Defendant Jaramillo stormed into
Plaintiff's office and banged on Plaintiff's desk,
screaming in her face threats that “he would do
whatever he wanted.” (Id. at ¶ 32).
During these confrontations, Defendant Jaramillo would thrust
his face so close to Plaintiff's that when he yelled at
her, spit from his mouth would spatter her face.
(Id. at ¶ 33). Plaintiff expressed her
disapproval of this behavior directly to Defendant Jaramillo
and he refused to stop. (Id. at ¶ 35).
Plaintiff alleges these confrontations terrified her and
caused her to fear that Defendant Jaramillo would cause
bodily harm to her and her coworkers. (Id. at ¶
order for Atlantic Coast to qualify for government contracts,
Plaintiff had to verify that no illegal aliens owned any part
of Atlantic Coast. (Id. at ¶ 44). Plaintiff
reported her concerns to Adan Jaramillo about providing this
verification because she doubted the immigration status of
Defendant Jaramillo, who had become an owner of Atlantic
Coast. (Id. at ¶ 45). Defendants took no
actions to address Plaintiff's concerns, but Defendant
Jaramillo changed Plaintiff's job description and
required her to work on job sites four days a week.
(Id. at ¶ 46).
November 4, 2015, Plaintiff was injured at work while helping
another employee clean a floor mat. (Id. at ¶
48). Defendant Atlantic Coast and Defendant Jaramillo told
Plaintiff she could not file a worker's compensation
claim because “points would be assessed, ” but
Plaintiff insisted on reporting the claim anyways.
(Id. at ¶ 52).
November 24, 2015, Plaintiff informed Adan Jaramillo that she
could not certify payroll because some employees did not have
proper documentation establishing both employment
authorization and identity. (Id. at ¶ 55).
Additionally, Plaintiff informed Adan Jaramillo that she was
no longer comfortable signing the affidavits required for
Atlantic Coast to qualify for government contracts.
(Id. at ¶ 57). The next day, November 25, 2015,
Defendants terminated Plaintiff from Atlantic Coast.
(Id. at ¶ 64).
Federico Jaramillo's Renewed Motion To Dismiss, ”
(Doc. No. 15), and “Memorandum Of Law In
Support…, ” (Doc. No. 16), were filed on January
18, 2017. Defendant Jaramillo seeks dismissal of all
Plaintiff's claims against him pursuant to Fed.R.Civ.P.
12(b)(6). See (Doc. Nos. 15 and 16).
“Plaintiff's Memorandum Of Law In Response…,
” (Doc. No. 20), was filed February 7, 2017; and
“Defendant Federico Jaramillo's Reply In
Support…, ” (Doc. No. 21), was filed on February
14, 2017. Defendant Jaramillo's motion is ripe for