United States District Court, W.D. North Carolina
NARESH C. ARORA, SUDHA ARORA Plaintiffs,
REUBEN DANIELS, JR., et. al, Defendants.
C. Mullen, United States District Judge
MATTER is before the Court upon four Motions to
Dismiss and a Motion to Strike Answer. The Motions are fully
briefed and are ripe for decision.
Mr. Arora's Employment Before March 17, 2015
to the Complaint, Mr. Naresh Arora and Mrs. Sudha Arora
(“Plaintiffs” or “the Aroras”) are
originally from India. In 2014, Mr. Arora signed a one-year
employment contract with Rowan-Cabarrus Community College
(“RCCC”) and began working as Chair of the
Electronics Engineering Technology Program on August 11,
2014. Mrs. Arora was not employed by or a student enrolled at
RCCC. Van Madray was Mr. Arora's direct supervisor at
RCCC. Stephen M. Cathcart,  Nekita Eubanks, and Tina M.
Haynes were employees of RCCC in the Human Resources
Department during the relevant time period.
allege that in October 2014, Mr. Arora informed Madray in
writing that he had been discriminated against by his peers
and that Madray did not respond or attempt to address the
situation. On January 8, 2015, Plaintiffs allege Madray
changed Mr. Arora's course assignments in violation of
RCCC policy in order to suit the needs of a white employee.
In response, Mr. Arora filed a written discrimination
complaint against Madray to Eubanks on January 12. After
meeting with Mr. Arora on January 14, Eubanks stated that
there was no merit to the discrimination complaint and did
not provide any further response. Plaintiffs allege that
Eubanks and Haynes then began to harass and discriminate
against Mr. Arora by scheduling meetings without giving Mr.
Arora time to prepare and setting them at times that
conflicted with Mr. Arora's schedule.
also allege that Madray, Eubanks, and Haynes asked Mr. Arora
to meet with them without providing him an agenda for the
meeting in advance. Mr. Arora was allegedly asked to meet
with them on January 9, 16, 20, and 29, and March 6, 2015,
but he refused because he believed they were going to fire
The March 17, 2015 Incident
was closed from March 7 through March 15 for spring break.
Plaintiffs allege that Mr. Arora notified Madray and Eubanks
on March 16 that he would not come to work on March 16 and 17
due to sickness.
allege that after Mr. Arora was absent from work on March 16
and 17, 2015, Madray asked defendant-police officers Damian
Josey,  Brett Wilhelm,  and Laura Smith
(collectively, the “Officers”) to go to his house
and check on his health. The Officers all were employed by
the City of Kannapolis. Plaintiffs allege that this was a
conspiracy between Madray and the Officers to kill Mr. Arora
or otherwise deprive him of his liberty by having him civilly
Officers went to the Aroras' apartment in Legacy Grand at
Concord Apartments (“Legacy Apartments”). When
Plaintiffs did not answer the door for the Officers, the
Officers used flashlights to look in Plaintiffs' car and
vandalized it in the process. The Officers also allegedly
sexually harassed Mrs. Arora by “looking through open
shutter windows of the apartment at night.” The
Officers then obtained duplicate keys to Plaintiffs'
apartment from Nancy Jenkins, the Legacy Apartments manager
at the time, and entered the apartment. Mr. Arora locked
himself in the bedroom, and the Officers told Mrs. Arora that
they wanted to check on Mr. Arora because he had not come to
work. When the Officers knocked on the bedroom door, Mr.
Arora called 911, and the 911 operator confirmed that the
Officers were there to check on him.
Officers then used the keys supplied by Jenkins to open the
bedroom door, handcuffed Mr. Arora, and ordered him to lie
face down. Josey allegedly used “racial slur words and
f* word again and again” and told Mr. Arora he was
under arrest. Josey began questioning Mr. Arora and Smith hit
him in the leg repeatedly. Mr. Arora refused to respond to
their questions. Smith and Wilhelm then began to search the
entire apartment and questioned the Aroras about certain
medicines or spices they found. Josey told Mr. Arora that if
he did not answer the Officers' questions, he would have
to go to the hospital. Josey and Wilhelm then called the 911
operator and told her that Mr. Arora was unconscious and
needed an ambulance.
Coyle and Karla Brown, Field Training Officers who worked for
Emergency Medical Services (“EMS”) of Cabarrus
County then arrived at Plaintiffs' apartment with an
ambulance, boarded Mr. Arora into the ambulance, and began
driving him to the hospital. Inside the ambulance, Mr. Arora
broke his silence and objected to the transport to the
hospital. Coyle and Brown allegedly refused to let him out
after repeated requests and prepared a report admitting that
there was no emergency requiring Mr. Arora to be taken to the
they arrived at Carolina Healthcare System NorthEast
(“the Hospital”), Plaintiffs allege that Mr.
Arora was guarded for at least half an hour by six security
guards and Concord Police Officers, who did not allow him
access to drinking water. Just after midnight, Dr. Melora T.
Driver told Mr. Arora that she would have to run some
diagnostic tests. Plaintiffs allege that the Officers and
Coyle and Brown instructed Dr. Driver to manufacture a mental
illness problem in order to send him to a mental institution.
When Mr. Arora asked to leave, Dr. Driver released him.
County EMS billed Plaintiffs $394.04 for the ambulance, which
it attempted to collect multiple times. On May 30, 2016,
notice was sent by Tonya Ligon of Cabarrus County EMS that if
the bill remained unpaid the amount owed would be offset by
Mr. Arora's state tax refund. On September 26, 2016, the
North Carolina Department of Revenue sent Mr. Arora a letter
stating that $380.45 had been paid to Cabarrus County EMS
from the Aroras' state income tax withholding.
Mr. Arora's Employment After March 17, 2015
allege that the March 17, 2015 incident caused traumatic
shock and resulted in “grave, long lasting serious
mental health and physical health problems.” As a
result, Mr. Arora was forced to take sick leave for medical
treatment. Although the Complaint is unclear on exactly which
dates the letters were sent, Plaintiffs allege that Haynes
and Eubanks sent three Written Warnings to Mr. Arora by mail
and email between April 20 and 29, 2015 for failing to show
up to work. (See Compl. at 14-15, 26-27)
April 29, 2015, Mr. Arora filed objections to the Written
Warnings. On May 6, 2015, Mr. Arora applied for leave under
the Family Medical Leave Act (“FMLA”). On May 8,
2015, Eubanks approved five weeks of FMLA leave, through June
12, 2015. On June 15, 2015, Mr. Arora requested an additional
five weeks of leave. Haynes replied on June 25, 2015, stating
that the request was denied because Mr. Arora had exhausted
the entire twelve weeks of statutory leave. The letter from
Haynes further stated that “With no additional leaves
available to you, your employment ends effective
Mr. Arora's EEOC Charge
further allege that Mr. Arora filed or attempted to file
charges of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) against
Defendants Madray and RCCC several times and that these
charges were improperly dismissed.
Plaintiffs claim that Mr. Arora submitted an intake
questionnaire to the EEOC on January 14, 2015, and was told
that the alleged facts do not rise to the level that the EEOC
would investigate. Second, on January 7, 2016, Mr. Arora
filed a new EEOC intake questionnaire, and a charge of
discrimination form was issued by the EEOC. On August 1,
2016, the EEOC sent a letter stating that the charge was
dismissed because it was filed more than 180 days from the
last alleged discriminatory action. The letter contained a
notice of the 90-day period to file a lawsuit. Third, on
November 7, 2016, Mr. Arora filed another EEOC charge. This
charge was also dismissed as untimely on November 23, 2016 by
the EEOC. Mr. Arora was notified of the dismissal through a
letter sent by Reuben Daniels, Jr., Director of the Charlotte
office of the EEOC. And fourth, Plaintiffs allege that Mr.
Arora corrected the errors from previous forms and submitted
an amended EEOC Form 5 on January 27, 2017.
filed this Complaint on March 17, 2017, alleging seven counts
against Daniels, the EEOC, Madray, Cathcart, Eubanks, Haynes,
Josey, RCCC, Jenkins, Legacy Apartments, Wilhelm, Smith, City
of Kannapolis, Coyle, Brown, Ligon, County of Cabarrus, 911
Operators of Cabarrus County, County of Cabarrus, Driver,
Carolina Healthcare System Northeast, and John/ Jane Does
groups of Defendants have filed motions to dismiss pursuant
to Rule 12(b)(1), 12(b)(5), and 12(b)(6), as discussed below.
Plaintiff has also filed a motion to strike portions of the
answers filed by Defendants City of Kannapolis, Josey, Smith,
Wilhelm, County of Cabarrus, and Tonya Ligon.
STANDARD OF REVIEW
faced with a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction, a court must first determine
whether the defendant is alleging a lack of jurisdiction
based on the face of the Complaint or as a factual matter.
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009). Different standards of review apply to the two
scenarios. Id. “[W]hen a defendant asserts
that the complaint fails to allege sufficient facts to
support subject matter jurisdiction, the trial court must
apply a standard patterned on Rule 12(b)(6) and assume the
truthfulness of the facts alleged.” Id. at
193. But, “when the defendant challenges the veracity
of the facts underpinning subject matter jurisdiction, the
trial court may go beyond the complaint, conduct evidentiary
proceedings, and resolve the disputed jurisdictional
facts.” Id. Plaintiffs bear the burden of
proving that subject matter jurisdiction exists. Evans v.
B.F. Perkins Co., a Div. of Standex Int'l Corp., 166
F.3d 642, 647 (4th Cir. 1999).
respect to a motion to dismiss under Rule 12(b)(5) for
insufficient service of process, “the plaintiff bears
the burden of establishing the validity of service pursuant
to Rule 4.” O'Meara v. Waters, 464
F.Supp.2d 474, 476 (D. Md. 2006). This is because
“[b]efore a federal court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.” Omni Capital
Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484
U.S. 97, 104 (1987). “When there is actual notice,
every technical violation of the rule or failure of strict
compliance may not invalidate the service of process. But the
rules are there to be followed, and plain requirements for
the means of effecting service of process may not be
ignored.” Armco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).
faced with a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must
“accept as true all well-pleaded allegations and . . .
view the complaint in a light most favorable to the
plaintiff.” Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The Court “assume[s]
the veracity” of these factual allegations, and
“determine[s] whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). However, the court “need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Mkts., Inc. v.
J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000).
Thus, to survive a motion to dismiss, the plaintiff must
include within his complaint “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
the Fourth Circuit requires district courts to construe
pro se complaints liberally to ensure that valid
claims do not fail for lack of legal specificity. Gordon
v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). Ensuring that form does not trump substance also
requires courts to “look beyond the face of the
complaint to allegations made in any additional materials
filed by the plaintiff” to determine whether a pro
se plaintiff can survive a motion to dismiss.
Garrett v. Elko, 120 F.3d 261, * 1 (4th
Cir. 1997) (per curiam table decision) (referencing
Gordon, 574 F.2d at 1149-51). However, this liberal
construction need not extend to outright advocacy for the
pro se plaintiff. Gordon, 574 F.2d at 1151.
Pro se plaintiffs, with the assistance of the
district court's lenient eye, must still do more than a
“formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (internal
citations omitted). Like plaintiffs who are represented by
counsel, a pro se plaintiff must still “allege
facts sufficient to state all the elements of [the]
claim.” Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003). In
light of Twombly and Bass, conclusory
statements with insufficient factual allegations, even when
asserted by pro se plaintiffs, will simply not
Motion to Dismiss: RCCC Defendants
Madray, Cathcart, Eubanks, Haynes, and RCCC (collectively,
the “RCCC Defendants”) jointly filed a partial
motion to dismiss under Rules 12(b)(1) and 12(b)(2). (Doc.
initial matter, Plaintiffs requested in their response that
the Court strike this motion as procedurally improper and
sanction the attorney representing the RCCC Defendants
because the Federal Rules of Civil Procedure do not provide
for a “partial motion to dismiss.” Plaintiffs
also allege that the filing of this motion amounts to wire
fraud and mail fraud. The Court finds that this motion is
properly before the Court and that no sanctions are
warranted. By styling the motion as a “partial motion
to dismiss, ” the RCCC Defendants are merely filing a
motion to dismiss with respect to some of the claims
contained in the Complaint. Further, the arguments contained
in the partial motion to dismiss are in no way frivolous or
an obstruction of justice.
the Court denies this request to strike and for sanctions and
turns to the merits of the partial motion to dismiss.
Title VII Claim (Second Count)
Plaintiffs do not identify it as a separate count, the
Complaint in passing states under the Second Count that Mr.
Arora's termination violated Title VII. (Compl., ¶
123). The RCCC Defendants initially moved for the Court to
dismiss this claim for lack of subject matter jurisdiction.
In their response, Plaintiffs stated that they “had not
alleged Title VII claim.” (Doc. No. 28, at 4).
to the extent that the Complaint contains an allegation of a
violation of Title VII against the RCCC Defendants, the Court
finds that Plaintiffs have abandoned the claim and it must
therefore be dismissed.
Employment-Related Procedural Due Process Claim (Second
RCCC Defendants next move to dismiss the employment-related
procedural due process claims filed against them under 42
U.S.C. § 1983.
Fourteenth Amendment, in relevant part, provides that
“no state shall make or enforce any law which shall . .
. deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. Amend. XIV, § 1.
Congress, through 42 U.S.C. § 1983, created a private
cause of action for individuals who have been deprived of
their rights under the Constitution and laws of the United
States to seek relief against state actors. In order to
succeed on a § 1983 due process claim, a public employee
must show (1) “that he has a constitutionally protected
‘liberty' or ‘property' interest, ”
and (2) “that he has been ‘deprived' of that
protected interest by some form of ‘state
action.'” Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 167, 172 (4th Cir. 1988).
Plaintiffs appear to allege that Mr. Arora had a property
interest in the RCCC Defendants following proper procedure
with respect to the scheduling of meetings and the Written
Warnings he received. Plaintiffs provide no legal authority
supporting this claim as it pertains to the meeting requests
and letters themselves, and the Court finds none. Thus, to
the extent that the Complaint alleges a violation of
procedural due process in the meetings and letters, such a
claim must be dismissed. Plaintiffs also, however, allege a
procedural due process claim with respect to the termination
of Mr. Arora's employment with RCCC. This must be
discussed in more depth.
Plaintiffs allege that Mr. Arora had a property interest in
his continued employment with RCCC. The Complaint alleges
that Mr. Arora was a “Permanent (Covered) Civil Service
Employee” who “could not be terminated without
cause.” (Compl., at 2-3). Further, as alleged, the
contract stated that Mr. Arora's position was for a
one-year term which would not have expired until August 2015.
Thus, assuming the allegations of the Complaint to be true,
there is “no question” that Mr. Arora had a
constitutionally protected property interest in his continued
employment with RCCC, at least through the duration of his
contracted term of employment. See Stone, 855 F.2d
also allege that Mr. Arora had a liberty interest that was
violated by his termination. The Supreme Court has held that
interests of liberty may be implicated where a charge is made
against an employee “that might seriously damage his
standing and associations in his community” or that
might impose on an employee “a stigma or other
disability that foreclose[s] his freedom to take advantage of
other employment opportunities.” Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 573 (1972). However,
Plaintiffs have not alleged any facts supporting such a
deprivation arising from Mr. Arora's termination. Thus,
as the Supreme Court stated in Roth, while some
employment cases might implicate a liberty interest,
“this is not such a case.” Id.
Plaintiffs allege that Mr. Arora was deprived of his property
rights by state actors (the RCCC Defendants) without due
process. The RCCC Defendants contend, however, that the fact
that Mr. Arora received due process before his termination is
clear from the face of the Complaint. The Complaint alleges
that Madray, Eubanks, and Haynes attempted to meet with Mr.
Arora on multiple occasions between January and March, 2015,
and sent him three Written Warning letters during his period