United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants
Charlotte-Mecklenburg Schools, Charlotte-Mecklenburg Schools
Board of Education, and Julie Babb's Motion to Dismiss
Plaintiff's Complaint. (Doc. No. 4). Having considered
the Motion, the Court GRANTS in part and DENIES in part
Defendants' Motion to Dismiss Plaintiff's Complaint
for the reasons that follow.
Karen Sutton (“Plaintiff”) commenced this action
on December 8, 2017 in the Superior Court of Mecklenburg
County, North Carolina. (Doc. No. 1-1). Plaintiff asserts
claims for discrimination under Title VII, 42 U.S.C §
2000e-2 et. seq., retaliation under Title VII, 42
U.S.C. § 2000e-3 et. seq., vicarious
liability/respondent superior, gross negligence, and
negligent retention. (Doc. No. 1-1 at 22-26). Plaintiff also
requests punitive damages and attorney's fees and costs.
(Doc. No. 1-1 at 26-27). Defendants subsequently removed the
action to this Court on April 2, 2018. (Doc. No. 1). On April
30, 2018, Defendants moved to dismiss Plaintiff's
Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1), (2), and (6). (Doc. No. 4). Because Plaintiff
appears pro se, the Court issued a Roseboro
notice (Doc. No. 5) informing Plaintiff of the burden she
carries in responding to Defendants' Motion and the
deadline for responding to Defendants' Motion. Plaintiff
was also informed that Plaintiff's failure to respond,
“may result in Defendants being granted the relief they
seek, that is dismissal of the Complaint.” (Doc. No. 5
at 4). The deadline for Plaintiff's response has passed,
and Plaintiff has not filed a response. Defendants'
Motion is ripe for review.
applied for and interviewed for a position with the Pre-K
department of Charlotte-Mecklenburg Schools
(“CMS”) on or about March 2013. (Doc. No. 1-1 at
16). Plaintiff sought a position as a temporary part-time
Pre-K Screener. (Doc. No. 1-1 at 16). In April 2013,
Plaintiff was hired by Defendant Julie Babb, the Pre-K
Director of CMS, at an hourly rate of twenty-one dollars and
twenty-seven cents. (Doc. No. 1-1 at 16). Plaintiff was
qualified for her position. (Doc. No. 1-1 at 16).
accepting the position and commencing work, Plaintiff was
informed she would be categorized as a
“substitute” and only receive an hourly rate of
twelve dollars and fifty-four cents. (Doc. No. 1-1 at 16).
The reduced hourly rate was less than white employees with
the same responsibilities and duties as Plaintiff. (Doc. No.
1-1 at 16). Plaintiff informed Defendant Babb of the
discrepancy, and Defendant Babb after some delay submitted a
notice or request to other departments based on the
discrepancy on or about November 2013. (Doc. No. 1-1 at
16-17). The notice or request was enacted, resulting in
Plaintiff receiving retroactive payment for salary
discrepancies between November 2013 and January 2014. (Doc.
No. 1-1 at 17). Plaintiff continued to request retroactive
payment for salary discrepancies between her date of hire and
November 2013, but her request was never granted. (Doc. No.
1-1 at 17).
staff meeting in the summer of 2014, Defendant Babb announced
that there was a vacancy for a full-time Pre-K Screener.
(Doc. No. 1-1 at 17). At the time of the announcement, the
listing for the position had run and closed. (Doc. No. 1-1 at
17). The listing was posted as an instructional position due
to added requirement in the job description of “birth
through kindergarten certification” preferred. (Doc.
No. 1-1 at 17). Pre-K screener positions are traditionally
listed as non-instructional. (Doc. No. 1-1 at 17).
September 2014, Plaintiff cooperated with CMS Employee
Relations Investigator Donnie Simmons's investigation of
racial discrimination against Defendant Babb. (Doc. No. 1-1
at 18). After her cooperation, management staff under
Defendant Babb retaliated against Plaintiff. (Doc. No. 1-1 at
18). In October 2014, Plaintiff was informed that her
services would not be required during the month of November
2014 due to a “mandatory hiatus policy.” (Doc.
No. 1-1 at 18). Plaintiff, the only black employee, was the
only one banned from work; other white employees with the
same title and classification continued working with no
hiatus. (Doc. No. 1-1 at 19). Plaintiff was similarly
informed in October 2015 that her services would not be
needed in November 2015. (Doc. No. 1-1 at 19). Plaintiff was
also informed that payroll issues delayed her return to work
in December 2015. (Doc. No. 1-1 at 19). Plaintiff's white
counterparts, also temporary Pre-K Screeners, worked without
incident or interruption from payroll. (Doc. No. 1-1 at 19).
Plaintiff asked to file a complaint but never received the
form or packet. (Doc. No. 1-1 at 20). However, shortly
thereafter, Defendant Babb informed Plaintiff she could
return to work. In January 2016, Cher Holcomb and Defendant
Babb informed Plaintiff she was not selected for the
permanent position for which she had applied previously.
(Doc. No. 1-1 at 20). The next day, an African-American male
began working in the full time permanent position. (Doc. No.
1-1 at 20). Plaintiff expressed her concerns that she was
“denied the position due to her compliance in the
active discrimination complaint against Ms. Babb” to
Human Resources and her desire to file a formal complaint
against Defendant Babb and Ms. Holcomb. (Doc. No. 1-1 at 20).
She sent other complaints and notices to management, who
either ignored or responded nonchalantly. (Doc. No. 1-1 at
21). Plaintiff's formal grievance email was forwarded to
Employee Relations, but no action resulted. (Doc. No. 1-1 at
February 2016, Plaintiff requested an adjustment to her work
schedule to accommodate caring for an ailing family member,
but the request was denied. (Doc. No. 1-1 at 21). After
contacting Human Resources, Plaintiff's schedule change
request was approved. (Doc. No. 1-1). Plaintiff's white
peers had permanent schedules based on their choosing and
convenience. (Doc. No. 101 at 21).
filed a charge with the United States Equal Employment
Opportunity Commission (“EEOC”) on or about July
29, 2016. (Doc. No. 1-1 at 21). Plaintiff received EEOC's
notice of Right to Sue on September 11, 2017. (Doc. No. 1-1
STANDARD OF REVIEW
R. Civ. Pro. 12(b)(1)
12(b)(1) provides for dismissal when a federal court lacks
jurisdiction over the subject matter of the lawsuit. Subject
matter jurisdiction exists when the complaint raises a
federal question under 28 U.S.C. § 1331 or diversity of
citizenship under 28 U.S.C. § 1332. Lack of subject
matter jurisdiction may be raised at any time either by a
litigant, or by the court. Mansfield, C. & L.M.R. Co.
v. Swan, 111 U.S. 379, 382 (1884). “[W]hen a
federal court concludes that it lacks subject-matter
jurisdiction, the court must dismiss the complaint in its
entirety.” Mosley v. Wells Fargo Bank, N.A.,
802 F.Supp.2d 695, 698 (E.D.Va. 2011) (quoting Arbaugh v.
Y & H Corp., 546 U.S. 500, 514 (2006)). The party