United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant's motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Plaintiff, proceeding in this matter pro
se, has responded outside the time provided, and the
motion is ripe for ruling. For the reasons that follow,
defendant's motion to dismiss is granted in part.
amended complaint alleges claims for retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq.; wrongful termination in
violation of North Carolina public policy; violation of
plaintiffs due process rights under the North Carolina
Constitution; and defamation, libel, and slander.
Plaintiff alleges that she, a forty-nine year old African
American female, was employed by defendant as an Information
and Communications Specialist (II), with a working title of
marketing officer, prior to her unlawful dismissal for
allegedly unsatisfactory work performance. Plaintiff was
hired in 2014 and alleges that her first protected activity
took place in July 2015 when she consulted with
defendant's human resources department "immediately
following one of many uncomfortable and antagonistic
conversations with [plaintiffs] [m]anager, Mrs.
Buonfiglio." Amd. Cmpl. ¶ 5. Plaintiff alleges that
she excused herself from the meeting with Buonfiglio after
telling Buonfiglio that she was not comfortable with the
conversation and felt she was being discriminated against
because of her race based on the condescending manner in
which she had been spoken to as well as plaintiffs
observation that similarly situated counterparts were not
treated in the same manner. Id. Plaintiff was
dismissed from her position as marketing officer on February
10, 2016, allegedly as a form of retaliation after plaintiff
had brought her concerns about possible race discrimination
to the human resources department. Id. ¶ 8.
Plaintiff alleges that from July 2015 to December 2016 she
engaged in protected activity by filing an EEOC (Equal
Employment Opportunity Commission) complaint. Id.
¶ 14. Plaintiff alleges that during the last
several months of her employment she was given numerous
duplicitous warnings from defendant, one of which defamed her
character and accused her of falsifying information on her
job application. Id. ¶ 16.
support of her due process claim, plaintiff alleges that she
had a protected liberty interest in her job which was
violated by defendant, and that defendant has through its
actions injured plaintiffs good name and reputation and
foreclosed plaintiffs ability to secure other employment
opportunities. Plaintiffs defamation-based claims arise out
of her allegation that defendant made a false allegation that
plaintiff had falsified her receipt of an associate's
degree on her employment application.
outset, the Court grants plaintiffs motion for extension of
time to respond to the motion to dismiss and it has
considered plaintiffs arguments included in her response.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). In other words, the facts alleged must allow
a court, drawing on judicial experience and common sense, to
infer more than the mere possibility of misconduct. Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 256 (4th Cir. 2009). The court "need not accept the
plaintiffs legal conclusions drawn from the facts, nor need
it accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Philips v. Pitt County
Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (internal
alteration and citation omitted).
Eleventh Amendment bars suit against non-consenting states by
private individuals in federal court." Bd. of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001). This guarantee applies not only to suits against
the State itself but also to suits where "one of [the
State's] agencies or departments is named as the
defendant." Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); see also
Housecalls Home Health Care, Inc. v. U.S. Dep't of Health
& Human Servs., 515 F.Supp.2d 616, 625 (M.D. N.C.
2007) (North Carolina Department of State Treasurer
considered an arm of the State for Eleventh Amendment
purposes). The Eleventh Amendment bars suit in federal court
regardless of the nature of the relief that is sought,
Pennhurst, 465 U.S. at 100, unless one of the
limited exceptions such as waiver or abrogation applies.
See Edelman v. Jordan, 415 U.S. 651, 673 (1974);
Seminole Tribe v. Florida, 517 U.S. 44 (1996).
has identified no waiver or abrogation of immunity with
respect to her state law claims, and her state law claims
against defendant are properly dismissed. See also
Johnson v. North Carolina, 905 F.Supp.2d 712, 723 (W.D.
N.C. 2012) (dismissing state law employment- related claims
against state agency employer); Dai v. Univ. of N.
Carolina, at Chapel Hill, No. 1:02CV224, 2003 WL
22113444, at *5 (M.D. N.C. Sept. 2, 2003) ("the State is
likewise entitled to Eleventh Amendment immunity when common
law tort claims, such as wrongful discharge, that seek
monetary damages are brought into federal court through
pendent jurisdiction."). Moreover, any limited waiver of
sovereign immunity by the State of North Carolina with
respect to tort claims requires that such claims proceed
before the North Carolina Industrial Commission. See
N.C. Gen. Stat. § 143-291; Hooper v. North
Carolina, 379 F.Supp.2d 804, 812 (M.D. N.C. 2005)
(wrongful termination is a tort not a contract claim).
VII represents a valid abrogation of the State's Eleventh
Amendment immunity, however. Fitzpatrick v. Bitzer,
427 U.S. 445, 448-49 (1976) (Title VII was "amended to
bring the States within its purview"); Stewart, Jr.
v. Virginia Com. Univ., 414 Fed.Appx. 555, 556 (4th Cir.
2011). Title VII prohibits discrimination by employers
against its employees for opposing any practice made unlawful
by Title VII. 42 U.S.C. § 2000e-3(a). In the absence of
direct proof of retaliation, a plaintiff must first make a
prima facie showing that she engaged in protected activity,
that her employer took adverse employment action against her,
and that a causal connection exists between the protected
activity and the adverse employment action. Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). If
the plaintiff has established a prima facie case, it may be
rebutted by her employer by a showing of legitimate,
nondiscriminatory reasons for the adverse employment action.
Id. The burden then lies with plaintiff to show that
her employer's proffered legitimate reasons are merely
pretext for discrimination. Id.
does not argue that plaintiff has failed to satisfy the first
and second elements of her retaliation claim - that she
engaged in protected activated by complaining to human
resources and that she suffered an adverse employment action
when her employment was terminated. Defendant argues only
that plaintiff has failed to sufficiently allege that a
causal connection exists between her protected activity and
the adverse employment action. Plaintiff has alleged that she
engaged in protected activity by complaining to human
resources about her manager, Buonfiglio, in July of 2015. As
noted above, plaintiffs termination was in February 2016,
approximately seven months later. "Where a plaintiff
rests his case on temporal proximity alone, the temporal
proximity must be very close." Penley v. McDowell
Cty. Bd. of Educ, 876 F.3d 646, 656 (4th Cir. 2017).
Generally, more than a period of days or weeks is not
sufficiently proximate to support the presence of causation.
See, e.g., Vicino v. Maryland, 982 F.Supp.2d 601,
614 (D. Md. 2013) (less than two months between protected
activity and termination sufficient to establish causation).
contends that after she complained to human resources,
defendant subjected her to a series of retaliatory events,
including a negative performance review and written warnings
regarding unsatisfactory job performance, which demonstrate
causation. "In cases where 'temporal proximity
between protected activity and allegedly retaliatory conduct
is missing, courts may look to the intervening period for
other evidence of retaliatory animus.'" Lettieri
v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007)
(quoting Farrell v. Planters Lifesavers Co., 206
F.3d 271, 281 (3d Cir.2000)). This may include evidence of
"recurring retaliatory animus" which occurred
during the period between the protected activity and the
adverse employment action. Id.
plaintiffs allegations which would support the presence of
recurring retaliatory animus are at times conclusory, she has
alleged sufficient facts to nudge her claim across the line
from conceivable to plausible. Twombly, 550 U.S. at
570. On March 3, 2015, Buonfiglio found during plaintiffs
performance review that plaintiff was meeting expectations.
On September 22, 2015, two months after her human resources
complaint about Buonfiglio in July 2015, Buonfiglio gave
plaintiff a negative performance review; on November 20,
2015, Buonfiglio issued plaintiff a written warning for
unsatisfactory job performance; on December 17, 2015,
Buonfiglio alleged that plaintiff missed another deadline;
and on January 29, 2016, Buonfiglio again issued plaintiff a
written warning regarding unsatisfactory job performance.
See Amd. Cmpl. at 9. Buonfiglio was allegedly aware
of plaintiff s complaint to human resources and plaintiff
contends that each subsequent discipline issued by Buonfiglio
was baseless. See Lettieri, 478 F.3d at 651 ...