United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion to
dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) (DE 19). The issues raised have
been fully briefed by the parties, and in this posture are
ripe for decision. For the following reasons, defendants'
motion is granted in part and denied as moot in remaining
OF THE CASE
action, commenced on May 29, 2018, concerns plaintiff's
termination of employment from the Housing Authority of the
City of Wilmington, North Carolina (“Housing
Authority”). Plaintiff asserts federal claims against
defendants under 42 U.S.C. §§ 1983, 1985, and 1986.
Plaintiff also raises state common law claims for negligent
supervision, defamation, and intentional infliction of
emotional distress. Plaintiff amended his complaint on June
25, 2018. On August 17, 2018, plaintiff voluntarily dismissed
defendant Leasha Johnson (“Johnson”) from this
action without prejudice. Defendants Katrina Redmon
(“Redmon”) and Matt Scaparro
(“Scaparro”) timely filed the instant motion to
dismiss plaintiff's entire complaint.
facts alleged in the complaint may be summarized as follows.
Plaintiff worked as the lead maintenance mechanic at Houston
Moore, a property managed by the Housing Authority. (Compl.
¶¶ 15-16). On Wednesday, November 18, 2015, William
Vereen (“Vereen”), a contractor with a firm
called Top Notch Cleaning Services (“Top Notch”),
asked plaintiff to accompany him to 1618 South 15th Street to
look at some damaged floor tiles. (Id. ¶ 17).
Plaintiff met Vereen at the property. (Id.). Vereen
showed plaintiff several loose floor tiles in the bathroom
and asked plaintiff if the glue beneath the floor tiles was
asbestos. (Id.). Plaintiff told Vereen to contact
Johnson, and escorted Vereen to Johnson's office .
(Id. ¶¶ 17, 18).
thereafter, Johnson called plaintiff. (Id. ¶
18). Johnson directed him to return to the unit and see if
there was asbestos on the floor. (Id.). Plaintiff
asked Johnson if Vereen was still in her office, and Johnson
said yes. (Id.). Johnson did not tell plaintiff that
she placed the call on speaker phone, and Vereen heard
plaintiff tell Johnson that he believed asbestos was beneath
the floor tiles. (Id.). Vereen accused plaintiff of
failing to inform him that asbestos was being used in the
following day, plaintiff met with defendant Scaparro,
Johnson, and Vernice Hamilton (“Hamilton”), the
Housing Authority's director of human resources.
(Id. ¶ 19). Defendant Scaparro and Johnson
allegedly made inconsistent accusations regarding
plaintiff's conduct, including 1) that plaintiff told
Vereen that the material beneath the floor tile was asbestos,
2) that plaintiff should have told Vereen he did not know if
it was asbestos, and 3) that plaintiff knew there was
asbestos beneath the floor tiles and failed to tell Vereen
asbestos was present. (Id.). Defendant Scaparro
stated that, going forward, maintenance personnel should
respond to a contractor's question concerning presence of
any asbestos by saying that they do not know. (Id.
¶ 20). Afterwards, Johnson directed plaintiff to assist
with abatement of asbestos beneath the floors without
providing him protective gear. (Id. ¶ 21).
November 23, 2015, plaintiff was called to a meeting with
Johnson and defendant Scaparro. (Id. ¶ 22).
Defendant Scaparro informed plaintiff that he was sending
plaintiff home pending investigation of the incident on
November 18, 2015. (Id.). Later that same day,
defendant Scaparro informed plaintiff the Housing Authority
was terminating plaintiff employment for a willful
“violation” of material facts regarding the
possibility of asbestos located at Houston Moore.
(Id. ¶¶ 22, 23).
becoming chief executive officer (“CEO”) of the
Housing Authority, Redmon has allegedly fired or forced out
at least 28 employees. (Id. ¶ 24).
Approximately 17 out of 28 employees were African-American.
(Id.). Plaintiff alleges that such a percentage is
disproportionate when compared to the presence of
African-Americans in the general population of New Hanover
county. (Id.). Plaintiff also generally alleges that
several African-American former employees have accused the
Housing Authority of discrimination. (Id. ¶
Standard of Review “To survive a motion to
dismiss” under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. In
evaluating whether a claim is stated, “[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the plaintiff, ” but
does not consider “legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement[, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted).
court takes up each of plaintiff's federal claims,
followed by plaintiff's state law claims.
U.S.C. § 1983
42 U.S.C. § 1983, a plaintiff must establish three
elements to state a cause of action: (1) the deprivation of a
right secured by the Constitution or a federal statute; (2)
by a person; (3) acting under color of state law.”
Jenkins v. Medford, 119 F.3d 1156, 1159-60 n.3 (4th
Cir. 1997) (en banc) (citing 42 U.S.C. § 1983; West
v. Atkins, 487 U.S. 42, 48 (1988)). Plaintiff points to
four different sources of federal rights: the First, Fourth,
Fifth, and Fourteenth Amendments to the United States
Constitution. The court first considers plaintiff's
equal protection and dues process claims under the Fourteenth
Amendment. The court then addresses plaintiff's First,