United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM & RECOMMENDATION
L. HOWELL UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant's Motions to Dismiss. [# 19, #
21]. On January 8, 2018, Defendant filed a Notice of Removal
and included a copy of the summons and original complaint. [#
1 Ex. # 1, # 2]. On April 6, 2018, Plaintiff filed his
Amended Complaint alleging age discrimination and
retaliation, in violation of 29 U.S.C. § 621, et
seq.; wrongful discharge, in violation of N.C. Gen.
Stat. 143-422.2; intentional infliction of emotional
distress; and negligent infliction of emotional distress. [#
18]. On April 20, 2018, Defendant filed both Motions to
Dismiss. [# 19, # 21]. The District Court referred the
motions to this Court. Accordingly, Defendant's motions
are now before this Court for a Memorandum and Recommendation
to the District Court. The Court will recommend that the
District Court grant both of Defendant's Motions to
is Carolos Rodeia, a 61-year-old male of Portuguese descent
who has been diagnosed with depression, anxiety, and
“alcohol use disorder.” [Am. Compl. ¶¶
3, 5]. Plaintiff is a resident of Buncombe County, North
Carolina. [Id. at ¶ 3]. Defendant is Biltmore
Forest Country Club, Inc. (BFCC), a corporation headquartered
in Asheville, North Carolina. [Id. at ¶ 4].
in October 2002, Defendant employed Plaintiff as a server and
manager in its Men's Grill. [Id. at ¶ 6].
For many years Plaintiff was an excellent employee with
little exception. [Id. at ¶ 7]. In early 2015,
Defendant hired Hunter Cosgrove, a Caucasian male in his late
twenties. [Id. at ¶ 8]. Cosgrove worked as a
locker room supervisor. [Am. Compl. ¶ 8]. Cosgrove
harassed, belittled, and treated Plaintiff in a
“discriminatory manner.” [Id. at ¶
9]. Plaintiff reported Cosgrove to his supervisor John Rector
and to Defendant's Human Resources (HR). [Id. at
¶ 10]. HR took no corrective action. [Id.].
Throughout 2015, Cosgrove's behavior continued.
[Id. at ¶ 11].
December 2015, HR reprimanded Plaintiff for “behavior
that his Caucasian and younger colleagues also engaged in yet
escaped punishment.” [Id. at ¶ 12].
Additionally, Plaintiff was given extra work and denied any
support; Plaintiff's Caucasian and younger colleagues
were not treated this way. [Am. Compl. ¶ 13].
February 2016, Defendant gave Cosgrove supervisory authority
over Randy Smith. [Id. at ¶ 14]. Previously,
Smith would assist Plaintiff when Plaintiff was overworked
and understaffed. [Id.]. Once Cosgrove began
supervising Smith, Cosgrove “intentionally and
maliciously” prevented Smith from assisting Plaintiff.
[Am. Compl. ¶ 15]. In May 2016, Plaintiff's
work-related stress and anxiety began to interfere with his
sleeping and eating habits. [Id. at ¶ 16].
18, 2016, a coworker of Plaintiff berated Plaintiff for
duplicating work. [Id. at ¶ 17]. General
manager Calvin J. Bolling Jr. witnessed the event.
[Id. at ¶ 18]. Bolling high-fived the coworker,
which Plaintiff states gave “tacit approval of [the
coworker's] inappropriate conduct toward
Plaintiff.” [Id.]. Bolling did not defuse the
situation. [Id.]. Bolling did not treat
Plaintiff's Caucasian and younger colleagues this way.
[Am. Compl. ¶ 18].
25, 2016, Plaintiff received treatment for his workplace
anxiety. [Id. at ¶ 19]. Plaintiff was
prescribed medication. [Id.]. From July 29 to August
6, 2016, Plaintiff took a vacation in an attempt to assuage
his anxiety. [Id. at ¶ 20]. Upon returning,
Plaintiff found his work situation unchanged. [Id.].
On August 20, 2016, Plaintiff succumbed to pressure and
intentionally cut himself at work. [Id. at ¶
21]. Plaintiff states he cut himself due to his
“anxiety, depression, and stress due to the continued
discrimination.” [Am. Compl. ¶ 21]. The injury did
not require surgery or stitches. [Id. at ¶ 22].
the injury, Plaintiff was treated at Mission Hospital
Copestone for anxiety, depression, and related issues for 11
days. [Id. at ¶ 23]. Then, Plaintiff attended
four sessions of an employee assistance counseling program.
[Id.]. While in residence at Mission Hospital
Copestone, Dr. Gerry Travis, president of the Board of BFCC,
visited Plaintiff. [Id. at ¶ 24]. Plaintiff had
not requested Travis visit him. [Id. at ¶ 25].
Plaintiff overheard Travis discussing Plaintiff's medical
condition with the attending physician, including
Plaintiff's anxiety, depression, and alcohol abuse
disorder. [Am. Compl. ¶ 26]. Travis had no legitimate
purpose for visiting Plaintiff and asking about
Plaintiff's medical conditions. [Id.].
September 7, 2016, Plaintiff returned to work and again found
his work situation remained unchanged. [Id. at
¶ 27]. Hunter Cosgrove continued to “discriminate
against” Plaintiff. [Id.]. Defendant did not
discuss or offer a reasonable accommodation to Plaintiff.
[Id. ¶ 28]. Plaintiff states that at a minimum
Defendant could have removed Cosgrove and Plaintiff from each
other's work environment. [Id. ¶ 29].
January 4, 2017, Plaintiff received a negative performance
review. [Am. Compl. ¶ 30]. It was the first negative
review in Plaintiff's fourteen years working for
Defendant. [Id.]. Plaintiff states he acknowledged
the review only because he did not fully understand it due to
his limited English ability. [Id. at ¶ 31].
After taking the review home to analyze it with his wife,
Plaintiff wrote a rebuttal and submitted it to his
March 10, 2017, Cosgrove harassed Plaintiff about how to do
his job. [Id. at ¶ 32]. Plaintiff asked
Cosgrove to leave several times. [Id.]. Cosgrove
refused. [Am. Compl. ¶ 32]. This precipitated a verbal
confrontation. [Id.]. Immediately thereafter,
Cosgrove reported the incident to general manager Bolling.
[Id. at ¶ 33]. Plaintiff was suspended and
ultimately terminated. [Id.]. Cosgrove was neither
suspended nor terminated. [Id.]. Plaintiff alleges
that Defendant has now turned to targeting other older
employees. [Id. at ¶ 34].
15, 2017, Plaintiff filed a charge with the Equal Employment
Opportunity Commission (EEOC). [Am. Compl. ¶ 35].
Plaintiff attached a copy of the charge and incorporated it
into the Amended Complaint as Exhibit 1. [# 18 Ex. 1]. On
September 6, 2017, the EEOC issued Plaintiff a Right to Sue
letter. [Am. Compl. ¶ 36].
Rule of Civil Procedure 12(b)(1).
motion to dismiss based on Federal Rule of Civil Procedure
12(b)(1) addresses whether the court has subject-matter
jurisdiction to hear the dispute. Fed.R.Civ.P. 12(b)(1).
Where a defendant contends a complaint fails to allege facts
upon which the court can base subject matter jurisdiction,
the court, like ruling on a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), assumes as true the
factual allegations in the complaint. Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). If the defendant further
contends that the jurisdictional allegations contained in the
complaint are false, the court may go beyond the allegations
of the complaint and conduct an evidentiary hearing in order
to determine if there are facts to support the court's
exercise of jurisdiction over the dispute. Id. The
burden of establishing subject matter jurisdiction on a
motion to dismiss rests with the party asserting
jurisdiction. Id.; Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995).
Rule of Civil Procedure 12(b)(6).
central issue for resolving a Rule 12(b)(6) motion is whether
the claims state a plausible claim for relief. See
Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir.
2009). In considering a defendant's motion, the Court
accepts the allegations in the complaint as true and
construes them in the light most favorable to the plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 190-92. Although the Court accepts well-pled facts as
true, it is not required to accept “legal conclusions,
elements of a cause of ...