United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court upon Defendant's Motion to
Dismiss (Doc. No. 8) pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure. Because Plaintiff
appears pro se, the Court issued a Roseboro
notice (Doc. No. 12) informing Plaintiff of the burden she
carries in responding to Defendant's Motion. Plaintiff
has responded (Doc. No. 10 and 14), and this matter is now
ripe for review. For the reasons stated below, the Court
GRANTS in part and DENIES in part Defendant's Motion to
Dismiss (Doc. No. 8).
is a former employee of the Mecklenburg County Health
Department, where she worked as a WIC Clinician for more than
nine years. She states both that she was wrongfully
terminated and that she was forced to resign on November 29,
2016. She complains she was subject to discrimination,
harassment, and retaliation for trying to address an unsafe
work environment that led to her two work-related injuries.
She also claims she was discriminated against on the basis of
her religion and her national origin, that she is in constant
pain due to her injuries, and that she cannot collect
unemployment because of a document she “was forced to
sign on false pretenses.”
to her Complaint, Plaintiff filed charges with the Equal
Employment Opportunity Commission (“EEOC”) in
mid-March 2017 and received a “Notice of Right to
Sue” letter on April 26, 2017. (Doc. No. 1, p. 3). On
July 24, 2017, Plaintiff filed the instant Complaint. (Doc.
No. 1). She purports to bring claims under the Retaliatory
Employment Discrimination Act, the Whistleblower Protection
Act, Title VII of the Civil Rights Act of 1964, and the
Occupational Safety and Health Act of North Carolina.
August 14, 2017, this Court dismissed Plaintiff's claims
under the Whistleblower Protection Act and the Occupational
Safety and Health Act of North Carolina for failure to state
a claim upon which relief may be granted. (Doc. No. 3).
Defendant, on September 19, 2017, filed a Motion to Dismiss
Plaintiff's remaining complaints pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. No. 8). Plaintiff has responded (Doc. No. 10
and 14), and this motion is now ripe.
STANDARD OF REVIEW
has the burden of proving that subject matter jurisdiction
exists. See Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
The existence of subject matter jurisdiction is a threshold
issue the court must address before considering the merits of
the case. Jones v. Am. Postal Workers Union, 192
F.3d 417, 422 (4th Cir. 1999). When a defendant challenges
subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1), “the district court is to regard the
pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Richmond, 945 F.2d at 768. The district court should
grant the Rule 12(b)(1) motion to dismiss “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Id. See also Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999).
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
“legal sufficiency of the complaint” but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D.
Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000). A complaint attacked by a Rule 12(b)(6) motion to
dismiss will survive if it contains “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Robinson v. American Honda Motor Co.,
Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. The Supreme Court has also
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are
not necessary; the statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” In addition, when ruling
on a defendant's motion to dismiss, a judge must accept
as true all of the factual allegations contained in the
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(quoting Twombly, 550 U.S. at 555-56) (internal
Subject Matter Jurisdiction
contends that the Court lacks subject matter jurisdiction
over Plaintiff's Title VII and REDA claims. (Doc. No. 9,
p. 3). For the reasons set out below, the ...