United States District Court, E.D. North Carolina, Western Division
C.DEVER UNITED STATES DISTRICT JUDGE
September 28, 2018, Jermaine Holmes ("Holmes" or
"plaintiff') filed an amended complaint against The
University of North Carolina ("UNC"), North
Carolina State University ("NC State"), Carrie
Doyle ("Doyle"), and Michael Mullen
("Mullen"; collectively "defendants")
[D.E. 22]. On November 27, 2018, defendants moved to dismiss
for lack of subject-matter jurisdiction and failure to state
a claim upon which relief can be granted [D.E. 30] and filed
a memorandum in support [D.E. 31]. On January 7, 2019, Holmes
responded in opposition [D.E. 33]. On January 18, 2019,
defendants replied [D.E. 34]. As explained below, the court
grants defendants' motion to dismiss.
March 3, 2014, NC State hired Holmes, an African American
male, for the position of Associate Athletics Director
("AAD") and Director of Academic Support Program
for Student Athletes ("ASPSA"). See Am. Compl.
[D.E. 22] ¶¶ 11-12. Holmes managed 22 full time
staff members and oversaw over 110 individuals who provided
academic assistance to NC State athletes. See
Id. ¶ 14. Before starting at NC State, Holmes
reviewed the state of the athletic department and conducted a
strengths, weaknesses, opportunities, and threats analysis
("SWOT" analysis). See Id. ¶¶
15-16. As part of Holmes's SWOT analysis, Holmes
discovered that NC State hired Christine Lutz
("Lutz"), the daughter of NC State's Associate
Head Men's Basketball Coach, as a tutor. See Id.
¶¶ 17, 19. Holmes believed that hiring the daughter
of a basketball coach violated "NC State's best
practices and conflict of inter[est] policies."
Id. ¶ 17. Holmes also learned that interns
consistently worked more than 60 hours per week but were paid
for only 40 hours of work, which Holmes believed violated
state and federal labor laws. See Id. ¶ 18.
9, 2014, Holmes and his administrative assistant met with
representatives of NC State's human resources department
See Id. ¶ 20. Holmes discussed "converting
three intern positions to temporary administrative-office
support staff positions" and raised "several
integrity issues and deficiencies within ASPS A."
Id. ¶¶ 20, 50. On June 16, 2014, Holmes
met with Debbie Yow ("Yow"), NC State's
Director of Athletics, and others to discuss Holmes's
proposed budget See Id. ¶ 21. After
the meeting, Yow e-mailed Mullen to inform him about the
meeting and stated that Holmes was "well prepared for
the meeting." Id. ¶ 22. On the same day,
Holmes also prepared a memorandum concerning ASPSA budget
needs titled "Priority, Description, &
Justification." Id. ¶ 23. Holmes alleges
that, following the meeting with Yow, he began to be treated
differently. See Id. ¶ 50.
October 21, 2014, Holmes met with Doyle, the Senior Associate
Director of Compliance, to discuss "the loss of three
interns." Id. ¶ 24. On October 24, 2014,
Doyle asked Holmes to provide her with a written plan
explaining how he would address the loss of three interns and
oversight of tutors. See Id. ¶ 25. On October
25, 2014, Doyle provided Holmes with specific concerns of
Jody Moylon ("Moylon") that Holmes needed to
address in his plan. See Id. ¶¶ 26-27.
Holmes alleges that Moylon told Doyle that replacing interns
with academic specialists would increase the risk of academic
misconduct. See Id. ¶ 51. Holmes also alleges
that Doyle began to investigate Moylon's claims
"without first verifying the veracity of her
statements." Id. ¶ 52.
October 26, 2014, Holmes forwarded an e-mail to Mullen,
Doyle, Yow, and other athletics staff members informing them
that Moylon hired Lutz in 2013 and that, in doing so, Moylon
may have violated NC State's best practices and conflict
of interest policies. See Id. ¶¶ 28, 42.
Holmes asked several staff members why "no one took
action to remedy the perceived integrity issues."
Id.. ¶ 42. On November 3, Holmes submitted a
report to Doyle, titled "Tutor Oversight Report"
(the "Report"), that "detailed what [Holmes]
believed to be factors that could lead to integrity and NCAA
issues and violations." Id. ¶ 29. On
November 4, 2014, Holmes held a staff meeting at which he
addressed hiring Lutz. See Id. ¶¶ 30, 43.
November 19, 2014, Holmes met with Dr. Joanne Woodard, NC
State's Vice Provost of Institutional Equity and
Diversity, "to discuss his concerns about unfair and
unequal treatment from [Doyle] regarding staff complaints and
false representations." Id. ¶ 31. On
November 25, 2014, Mullen informed Holmes that he received a
report from Doyle indicating that Holmes had provided Yow
with incomplete reports, which Yow had then used for a
presentation on November 21, 2014. See Id.
¶ 54. On November 25, 2014, Holmes e-mailed Mullen
"expressing concerns about what [Holmes] felt was unfair
and unequal treatment... related to certain false
representations being reported to management about
[Holmes's] leadership." Id. ¶ 32.
December 1, 2014, Holmes met with Mullen, Yow, Doyle, and a
faculty athletics representative to discuss the Report. See
Id. ¶ 33. Yow was frustrated with Holmes for
e-mailing the Report because the Report contained sensitive
information that could be interpreted as "the athletic
department... not properly supporting its student
athletes." Id. Holmes alleges that, during the
meeting, management formally disciplined him with a
verbal reprimand. See Id. ¶ 34.
February 4, 2015, Holmes met with Mullen, who informed Holmes
about numerous issues with his performance. See Id.
¶ 44. Mullen noted that Holmes "was not always on
top of important issues, . . . that reporting was not
complete, . . . and that [Holmes] was not always
responsive." Id. ¶ 45; see Id.
¶ 46. Holmes alleges that meeting was the first time
that anyone raised performance issues with him. See
Id. ¶ 44. Mullen summarized the meeting in a
memorandum for Holmes. See Id. ¶¶ 47-49.
In the memorandum, Mullen suggested that the "singular
issue" with Holmes's performance was Holmes's
perceived reluctance to engage with the Office of Student
Conduct concerning a student athlete accused of academic
dishonesty. See Id. ¶ 49.
April 9, 2015, Holmes met with Mullen and Dan O'Brien,
and Mullen told Holmes that he was being removed from his
role as Director of ASPS A. See Id. ¶ 35.
Later, defendants discharged Holmes. See id. ¶
39. On April 13, 2015, Mullen named Katie Sheridan
("Sheridan"), a white woman, interim Director of
ASPS A. See id. ¶ 36. On August 4, 2015,
Sheridan became the Assistant Dean and Director for ASPSA.
See Id. ¶ 38.
April 28, 2015, Holmes met with Dr. Joanne Woodard again to
discuss "his discriminatory and disparate treatment and
how he had been forced out of his position without any prior
notice or warning." Id. ¶ 37. Holmes
alleges that Doyle made numerous misrepresentations to Mullen
concerning Holmes's performance. See Id. ¶
April 9, 2018, Holmes filed a complaint against defendants
[D.E. 1]. On September 28, 2018, Holmes filed a first amended
complaint against defendants [D.E. 22]. Holmes alleges six
claims: (1) disparate investigation and disparate discipline
in violation of 42 U.S.C. § 1981, (2) retaliation in
violation of 42 U.S.C. § 1983, (3) denial of equal
protection under the Fourteenth Amendment, (4) tortious
interference with contract, (5) negligent supervision and
retention, and (6) negligent ...