United States District Court, E.D. North Carolina, Eastern Division
JASMAN J. SMITH, Plaintiff,
TERRI L. PARKER, Town Manager, TOWN OF WINTERVILLE, and WINTERVILLE TOWN COUNCIL, Defendants.
W. FLANGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' partial motion
to dismiss pursuant to Federal Rules of Civil Procedure 12
(b)(1) and 12(b)(6). (DE 15). The issues raised are ripe for
ruling. For the following reasons, the court grants
defendants' partial motion to dismiss as set forth
OF THE CASE
proceeding pro se, commenced this action against her
former employer, the Town of Winterville
(“Winterville”), the town manager Terri L. Parker
(“Parker”), and the Winterville Town Council
(“Council”) on January 31, 2017, asserting claims
for discrimination, denial of promotion, wrongful
termination, and retaliation based on race, disability, and
pregnancy, in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”) and the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq.,
(“ADA”) and pursuant to 42 U.S.C.§ 1983
March 29, 2017, defendants filed the instant partial motion
to dismiss, asserting that 1) plaintiff's claims for
pregnancy discrimination, violation of the ADA, and for
failure to promote should be dismissed for lack of subject
matter jurisdiction and for failure to state a claim and 2)
plaintiff's § 1983 claim should be dismissed for
failure to state a claim, and 3) claims against Terri Parker,
in her individual and official capacities, and claims against
Winterville Town Council cannot be maintained. On April 21,
2017, plaintiff filed a response in opposition to the instant
motion, including over 200 pages of exhibits, labeled
exhibits 1-31, that include the charges filed by plaintiff
with the Equal Employment Opportunity Commission
(“EEOC”),  various work-related emails, newspaper
articles, work documents, medical correspondence, and
employment information. Defendants replied on May 4, 2017.
facts alleged in the complaint may be summarized as follows.
was hired as an executive assistant for defendant Winterville
in December 2008. (Compl. (DE 1-1) at 1). In August 2010,
plaintiff was placed on bed rest due to pregnancy.
(Id.) Plaintiff was on maternity leave until
November 2010. (Id.) After her return from maternity
leave, defendant Parker suggested plaintiff stay home with
her child and discouraged plaintiff from becoming the town
clerk. (Id.) Plaintiff was promoted to the position
of town clerk. (Id.)
her time working for defendant Winterville, plaintiff was
accused of being “entitled” and called
“gal” and was not allowed to apply for a
scholarship for a master's clerk certification, was told
her professional certifications and aspirations to pursue a
master's degree were “pieces of paper, ” was
denied access to her personnel file, was strictly monitored
while in the office, was told she had to be gracious to
others, and was not allowed to supervise staff. (Id.
at 3). Additionally, plaintiff, who is black, was treated
differently from white co-workers in that she was disciplined
for being late, forced to submit original doctor notes, was
questioned as to why she attended a meeting with a black
council member, and forced to write a report regarding the
was placed on a performance improvement plan in March 1,
2016. (Id. at 1) Plaintiff denies that there were
issues with her performance. (Id.) Plaintiff filed a
grievance with regard to the performance improvement plan and
later requested information regarding the status of the
performance improvement plan. (Id.) She was informed
it was under review. (Id.)
22, 2016, plaintiff filed her first her first charge with the
EEOC asserting race-based discrimination in violation of
Title VII in that she has been denied career enhancement
opportunities, treated less favorably, and information
related to her position has been withheld from her, resulting
in her being placed on a performance improvement plan.
(Id. at 4).
27, 2016, defendant Winterville issued a pre-disciplinary
letter to plaintiff suspending plaintiff with pay and held a
predisciplinary conference with her the following day.
(Id. at 1) Plaintiff was terminated from her
employment on July 5, 2016 for insubordination.
(Id.) Plaintiff has not been allowed to retrieve her
personal items from the office. (Id.)
August 2, 2016, plaintiff filed her second charge with the
EEOC, asserting that her termination from employment was the
result of race-based discrimination and retaliation in
violation of Title VII. (Id. at 6).
November 2, 2016, regarding both of plaintiff's charges,
the EEOC closed its investigation and issued a notice of
right to sue. (Id. at 5, 7). This ...