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Mazzariello v. Atlantic Coast Waterproofing, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

September 8, 2017

ARCANGELA MAZZARIELLO, Plaintiff,
v.
ATLANTIC COAST WATERPROOFING, INC., and FEDERICO JARMILLO, Defendants.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE

         THIS 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).

         I. BACKGROUND

         Plaintiff 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).

         On 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).

         In 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).

         Plaintiff's 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).

         Over 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).

         On 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 ¶ 34).

         In 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).

         On 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).

         On 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).

         “Defendant 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 review.

         II. ...


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