IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:16-CV-765

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:16-CV-765 WANZA COLE, ) ) Plaintiff, ) MEMORANDUM OF LAW IN ) SUPPORT OF MOTION TO v. ) DISMISS AMENDED ) COMPLAINT WAKE COUNTY BOARD OF EDUCATION, ) ) Defendant. ) The Wake County Board of Education ( the Board ), by and through its attorneys and pursuant to Local Civil Rule 7.1(d) and 7.2, E.D.N.C., submits this Memorandum of Law in Support of its Motion to Dismiss Amended Complaint. For the following reasons, the Board respectfully requests that its Motion to Dismiss be GRANTED. STATEMENT OF THE CASE Plaintiff filed this action in Wake County Superior Court captioned as Wanza Cole v. Wake County Board of Education, Case No. 16-CVS-08459, on July 26, This action was removed to this Court pursuant to 28 U.S.C on August 25, On September 28, 2016, Defendant filed a Motion to Dismiss all claims. In response to Defendant s Motion to Dismiss, Plaintiff sought leave to file an Amended Complaint on November 9, The Court granted Plaintiff s motion on December 28, 2016, and Plaintiff filed her Amended Complaint on January 6, This action arises under federal and state law in that the action alleges discrimination under Title VII of the Civil Rights Act of 1964 and Intentional Infliction of Emotion Distress Case 5:16-cv D Document 22 Filed 02/03/17 Page 1 of 14

2 ( IIED ). Plaintiff s Amended Complaint abandons Plaintiff s original claim for Negligent Infliction of Emotional Distress and adds certain factual allegations. The Board now moves for dismissal of Plaintiff s claims and submits this Memorandum of Law contemporaneously with its Motion to Dismiss Amended Complaint. STATEMENT OF THE RELEVANT FACTS ALLEGED BY PLAINTIFF Plaintiff, an African-American female, was initially hired by the Board as a teacher in 1992, was promoted to Assistant Principal at Garner High School in or around 2003, and was appointed as Principal of West Cary Middle School ( WCMS ) in or around Amended Complaint ( Compl. ) In December of 2014, Plaintiff was notified by Dr. Bryan Martin, Senior Director of Employee Relations, that two teachers were dissatisfied with the manner in which WCMS administrators were conducting observations and evaluations of teachers. Compl. 15. Dr. Martin informed Plaintiff that he was assigning Mary Swann, an African-American female, to interview WCMS staff regarding observations and evaluations. Compl. 16. Plaintiff informed Dr. Martin that WCMS Administrators may have gotten behind on some of the evaluations. Compl. 24. After Ms. Swann completed her interviews with teachers, a meeting was held between Plaintiff, Dr. Martin, and Plaintiff s immediate supervisor, Area Superintendent Timothy Locklair. Compl. 26. At this meeting, Plaintiff reiterated that she had not intentionally done anything wrong with the observations or evaluations of teachers. Id. Shortly after this meeting, Plaintiff was shown the conclusions drawn from the Human Resources review. Compl. 27. The review noted a widespread lack of fidelity with regard to the online evaluation system. The review further noted that [d]ates were incorrectly input observation data was input well after the observation took place Compl Case 5:16-cv D Document 22 Filed 02/03/17 Page 2 of 14

3 Following completion of the Human Resources review, Plaintiff received a negative performance review from her supervisor. Compl. 36. Plaintiff s supervisor rated Plaintiff as Not Progressing on a goal listed on her Mid-Year Review. Compl. 40. On her End-of-Year Review, Plaintiff received a rating of Developing, which Plaintiff alleges is the lowest rating in the system. Compl. 41. On the basis of this End-of-Year Review, Plaintiff s supervisor recommended that Plaintiff not continue in her role as principal at WCMS. Compl. 42. Following the Human Resources review, Plaintiff alleges that she met with Assistant Superintendent for Human Resources Doug Thilman. Compl. 54. At the meeting, Mr. Thilman informed Plaintiff that she would be reassigned to an Assistant Principal position effective at the end of that school year, but that she would continue to be paid as a principal throughout the remaining term of her contract. Compl. 54. Plaintiff states that she viewed this proposed reassignment as a demotion. Compl. 55. The allegations in the Amended Complaint, however, reveal that Plaintiff was never in fact reassigned to an Assistant Principal position. See Compl. 67. Plaintiff states that she was the first and only principal to be demoted as a result of issues with inputting teacher observations and evaluations into the North Carolina Educator Evaluation System ( NCEES ). Compl. 64. According to Plaintiff, another Principal was promoted to an Assistant Superintendent position, as opposed to demoted to an Assistant Principal position, after an issue arose related to student grades. Compl. 67. On June 16, 2015, Plaintiff was reassigned to the position of Director of Intervention Services. Compl. 68. Following this reassignment, Plaintiff availed herself of the Board s grievance process. Compl Case 5:16-cv D Document 22 Filed 02/03/17 Page 3 of 14

4 LEGAL STANDARD The purpose of a 12(b)(6) motion is to test the legal sufficiency of the complaint. See, e.g. Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994, cert. denied, 514 U.S (1995)); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A complaint may be dismissed for failure to state facts sufficient to allege all elements of a claim. See, e.g. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 221 (4th Cir. 1994) (citation omitted). A complaint may be dismissed if the law does not support the conclusions argued, or where the facts alleged are not sufficient to support the claim presented. Mylan Laboratories, Inc. v. Akzo, N.V., 770 F. Supp. 1053, 1059 (D. Md. 1991). A motion to dismiss should be granted if it appears beyond a doubt that the plaintiff can prove no facts that would entitle him to relief. See Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, (1957); Mylan Laboratories, 7 F.3d at While the court is required to accept as true all well pleaded allegations in the plaintiff s complaint, the court is not required to accept as true the legal conclusions set forth in the complaint. Dist. 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083, (4th Cir. 1979). Similarly, the court is not required to accept unwarranted inferences, unreasonable conclusions, or arguments. Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). Finally, vague and conclusory allegations do not state a claim upon which relief may be granted. Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990). In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), the United States Supreme Court stated that a complaint in an employment discrimination lawsuit need not allege specific facts establishing a prima facie case of discrimination, but must contain a short plain statement 4 Case 5:16-cv D Document 22 Filed 02/03/17 Page 4 of 14

5 of the claim showing that the pleader is entitled to relief under Rule 8(a)(2). The plaintiff is not charged with forecasting evidence to prove each element of her claim. Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002). Under Rule 8(a)(2), a plaintiff must provide sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000). However, as the Fourth Circuit recognized, Swierkiewicz did not change the law of pleading. After Swierkiewicz, the plaintiff still has the burden... to allege facts sufficient to state all the elements of her claim. Bass v. E.I. Dupont De Nemours & Co., 324 F.3d 761, 765 (4th Cir.), cert. denied, 540 U.S. 940 (2003) (affirming dismissal of plaintiff s claim of hostile work environment employment discrimination under Title VII); see also Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) ( The Supreme Court s holding in Swierkiewicz v. Sorema did not alter the basic pleading requirement that a plaintiff set forth facts sufficient to allege each element of his claim. ). While a plaintiff is not charged with pleading facts sufficient to prove her case, as an evidentiary matter, in her complaint, a plaintiff is required to allege facts that support a claim for relief. Bass, 324 F.3d at 765 (emphasis in original). In Bell Atlantic Corp. v. Twombly, the United States Supreme Court clarified its position, agreeing with the District Court in the case that Swierkiewicz did not change the law of pleading, but simply re-emphasized... that the Second Circuit s use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules structure of liberal pleading requirements. 127 S. Ct. 1955, 1973 (2007), (citing the District Court decision at 313 F. Supp. 2d 174, 181 (2003)). The Court in Twombly stated that Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. 127 S. Ct. 1955, 1965, fn.3 (2007). 5 Case 5:16-cv D Document 22 Filed 02/03/17 Page 5 of 14

6 Simply setting forth labels and conclusions and a formulaic recitation of a cause of action s elements will not do. Id. at In reviewing the legal sufficiency of a complaint, the Court cannot assume facts or allegations not contained in the complaint. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, (4th Cir. 1994). Mere allegations that a defendant violated the law are insufficient to survive a motion to dismiss made under Rule 12(b)(6). Id. Allegations in a complaint must be stated in terms that are neither vague nor conclusory. Id. Conclusory allegations are insufficient to state a claim for relief and will not suffice to prevent dismissal. Duckworth v. State Administration Board of Election Laws, 332 F.3d 769, 775 (4th Cir. 2003), abrogated on other grounds by Shapiro v. McManus, 136 S. Ct. 450, 193 L. Ed. 2d 279 (2015); Parham v. Pepsico, Inc. 927 F. Supp. 177 (E.D.N.C. 1995), aff d, 86 F.3d 1151 (4th Cir. 1996). ARGUMENT I. PLAINTIFF S TITLE VII CLAIM SHOULD BE DISMISSED BECAUSE THE COMPLAINT DOES NOT ALLEGE FACTS THAT ARE SUFFICIENT TO STATE THE ELEMENTS OF A PRIMA FACIE CASE OF RACE DISCRIMINATION. To establish a prima facie case of disparate treatment on the basis of race under Title VII, a plaintiff must establish that (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action by her employer; and (4) similarly situated employees outside of her protected class received more favorable treatment. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 n.6 (1981). The plaintiff has the burden... to allege facts sufficient to state all the elements of her claim. Bass v. E.I. Dupont De Nemours & Co., 324 F.3d 761, 765 (4 th Cir.), cert. denied, 540 U.S. 940, 124 S. Ct. 301, 157 L. Ed. 2d 253 (2003). Plaintiff s Amended Complaint fails to establish that she suffered an 6 Case 5:16-cv D Document 22 Filed 02/03/17 Page 6 of 14

7 adverse employment action or that any similarly situated employees outside of her protected class received more favorable treatment. A. Plaintiff did not suffer an adverse employment action. An adverse employment action is a discriminatory act that adversely affects the terms, conditions, or benefits of the plaintiff's employment. Holland v. Washington Homes, 487 F.3d 208, 219 (4 th Cir. 2007) (quoting James v. Booz Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.2004)). While [c]onduct short of ultimate employment decisions can constitute adverse employment action, James, 368 F.3d at (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.2001), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (internal quotation marks omitted), the typical requirements for a showing of an adverse employment action are discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion. Boone v. Goldin, 178 F.3d 253, 255 (4th Cir.1999). A reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect. James, 368 F.3d at 376 (internal quotations omitted). Absent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one s salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position. Boone, 178 F.3d at Even accepting the allegations in Plaintiff s Amended Complaint as true, Plaintiff has failed to plead facts sufficient to show that her reassignment had any significant detrimental effect. Plaintiff captions paragraphs of her Amended Complaint as The Adverse Employment Action. Notably, many of the factual allegations in this section of the Amended 7 Case 5:16-cv D Document 22 Filed 02/03/17 Page 7 of 14

8 Complaint deal with a proposed reassignment that was never in fact implemented. Plaintiff states that she was informed that she would be reassigned to an Assistant Principal s position, and that she viewed that reassignment as a demotion. Compl Plaintiff alleges that even under this scenario, she would have continued receiving her salary as a principal for the duration of her contract. Compl. 56. After making a number of allegations related to another school system employee who was not demoted to an assistant principal s position, Compl , Plaintiff states that she was subsequently reassigned to the position of Director of Intervention Services on June 16, Compl. 68. Other than a series of formulaic, conclusory allegations that she was demoted 1 and has been damaged, Plaintiff offers no facts that suggest that her reassignment had a significant detrimental effect. James, 368 F.3d at 376. Plaintiff does not allege that her salary was decreased as a result of her reassignment. To the contrary, even under the scenario where Plaintiff was informed that she would be transferred to an Assistant Principal position, but not actually transferred to an Assistant Principal position, Plaintiff acknowledged that she would be paid her principal s salary until the end of her current contract. Compl. 56. In the Director of Intervention Services position, Plaintiff alleges that the pay grade is lower than that of a principal. Compl. 71. Plaintiff still does not, and cannot, allege that her compensation would be reduced during the term of her contract, and any implied allegations related to the period of time beyond the term of her current contract are highly speculative. In an effort to overcome Defendant s argument in its original Motion to Dismiss that Plaintiff did not suffer a decrease in job title, level of responsibility, or opportunity for 1 Under North Carolina state law, Demote means to reduce the salary of a person who is classified or paid by the State Board of Education as a classroom teacher or as a school administrator. N.C. Gen. Stat. 115C-325(a)(4). 8 Case 5:16-cv D Document 22 Filed 02/03/17 Page 8 of 14

9 promotion, 2 Plaintiff includes a number of new factual allegations that are pled upon information and belief. For example, Plaintiff describes her new assignment as one that relegates her to the school system s Central Office. Compl. 70. While Plaintiff may correctly describe the physical location of her new assignment, she neglects to note that the school system s senior officials, including the Superintendent and many of the individuals cited in Plaintiff s Amended Complaint, are also assigned to the Central Office. Plaintiff also asserts, without any factual support, that her assignment would negatively impact her chances to be assigned to a high school principal s position. Compl. 74. Plaintiff does not offer any facts to explain why a reassignment to a Central Office position at the same pay would negatively impact Plaintiff s future chances to be assigned to a high school principal s position. Plaintiff s Title VII claim must be dismissed because Plaintiff has failed to show that her actual reassignment to the position of Director of Intervention Services was an adverse employment action. B. Plaintiff offers no evidence that a similarly situated employee outside of her protected class received more favorable treatment. The similarity between comparators... must be clearly established in order to be meaningful. Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir.2008). Indeed, [s]uch a showing would include evidence that the employees dealt with the same supervisor, [were] subject to the same standards and... engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir.2010) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)); see also Humphries v. CBOCS W., Inc., N.C. Gen. Stat. 115C defines a school administrator as a Principal, Assistant Principal, Supervisor, or Director whose major function includes the direct or indirect supervision of teaching or of any other part of the instructional program (emphasis added). 9 Case 5:16-cv D Document 22 Filed 02/03/17 Page 9 of 14

10 F.3d 387, 405 (7th Cir.2007) ( [T]he purpose of the similarly situated requirement is to eliminate confounding variables, such as differing roles, performance histories, or decision-making personnel, which helps isolate the critical independent variable: complaints about discrimination. ) Plaintiff s Amended Complaint does not include facts that suggest that an individual outside of Plaintiff s protected class received more favorable treatment. Plaintiff appears to hold up a former employee at Cary High School as a comparator. Compl However, even accepting the allegations in Plaintiff s Amended Complaint as true, Plaintiff s Amended Complaint establishes that she and the purported comparator did not engage in the same conduct. While Plaintiff alleges that she was reassigned because of issues related to the teacher evaluation process, the purported comparator was alleged to be involved in a situation related to student grades. Compl. 66. Additionally, Plaintiff notes that this individual was not demoted to an assistant principal s position as [Plaintiff] was informed she would be Compl. 67. Plaintiff thus compares the treatment of the purported comparator to treatment that Plaintiff never in fact experienced. Plaintiff offers no facts that compare the purported comparator to her actual reassignment by the school system. Further, Plaintiff offers no facts that would assist in eliminate[ing] confounding variables, such as differing roles, performance histories, or decision-making personnel. Haywood, 387 Fed.Appx. at 359. Plaintiff s Title VII claim should be dismissed because her Amended Complaint does not plead facts that show that similarly situated employees outside of her protected class were treated more favorably. II. PLAINTIFF S IIED CLAIM SHOULD BE DISMISSED PURSUANT TO RULE 12(B)(6) BECAUSE THE ALLEGATIONS FAIL TO ESTABLISH A PRIMA FACIE CASE UNDER STATE LAW AND ARE INSUFFICIENT TO MEET THE PLAUSIBILITY STANDARD REQUIRED IN TWOMBLY AND IQBAL. 10 Case 5:16-cv D Document 22 Filed 02/03/17 Page 10 of 14

11 Plaintiff s second claim should be dismissed because Plaintiff has failed to plead sufficient facts to state a claim for Intentional Infliction of Emotional Distress under North Carolina state law. In North Carolina, the essential elements of IIED are (1) extreme and outrageous conduct by the defendant, (2) which is intended to cause and does in fact cause, (3) severe emotional distress. Pardassni v. Rack Room Shoes Inc., 912 F. Supp. 187, 192 (M.D.N.C. 1996), quoting Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). In order for a defendant to be liable for IIED, defendant s conduct must exceed all bounds usually tolerated by decent society. Pardassni, 912 F. Supp. at 192, quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Conduct supporting IIED must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See e.g. Payne v. Whole Foods Market Group, Inc., 812 F. Supp. 2d 705, 709 (E.D.N.C. 2011) (dismissing plaintiff s IIED claim on the grounds that terminated employee failed to demonstrate that rude, unprofessional behavior from coworkers was extreme or outrageous and that feelings of fear, embarrassment, and humiliation were insufficient to demonstrate severe emotional distress); Ennett v. Cumberland County Bd. of Educ., 698 F. Supp. 2d 557, 560 (E.D.N.C. 2010) (dismissing plaintiff s IIED claim on the grounds that verbal insults, indignities and threats alone do not support a claim of intentional or negligent infliction of emotional distress under North Carolina law). Whether the alleged conduct is sufficiently extreme or outrageous to support a claim of IIED is a question of law. Thomas v. Northern Telecom, Inc., 157 F. Supp. 2d 627, 635 (M.D.N.C. 2000) (granting employer s motion to dismiss plaintiff s IIED claim and Title VII claim, to the extent the claim is based on disability discrimination, on the grounds that 11 Case 5:16-cv D Document 22 Filed 02/03/17 Page 11 of 14

12 employee s allegations that she was subjected to a hostile work environment and wrongfully terminated do not support an IIED claim). It is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to support a claim of IIED, and North Carolina courts have been particularly hesitant in finding these claims actionable within an employment claim. See e.g. Northern Telecom, Inc., 157 F. Supp. 2d at 635; Blue Dolphin Communications, 226 F. Supp. at 794 (holding that plaintiff s allegations that employer s alleged discriminatory conduct resulted in a loss of status in her community, damage to her professional reputation, and mental and emotional distress were insufficient to support an IIED claim). Under North Carolina law, alleged acts of discrimination, including an employer s failure to provide reasonable accommodations to a disabled employee, are not necessarily extreme and outrageous. Nance v. Potter, 225 F. Supp. 2d 638, 644 (M.D.N.C. 2002). Further, termination that is allegedly in violation of federal law does not constitute extreme and outrageous conduct. Jackson v. Blue Dolphin Communications, 226 F. Supp. 2d 785 (W.D.N.C. 2002). The North Carolina Court of Appeals has consistently held that the mere firing of an employee can never be extreme and outrageous conduct sufficient to state a claim for emotional distress. Sims-Campbell v. Welch, 769 S.E.2d 643, 649 (N.C. App. 2015). Here, the allegations in Plaintiff s Amended Complaint are not sufficient to establish a claim for IIED. While Plaintiff formulaically recites that the conduct of Defendants as described herein were extreme and outrageous, went beyond all bounds of decency and conduct that are tolerated by a civilized society, the factual allegations in the Amended Complaint fall far short of the showing necessary to state a claim for IIED. Even assuming to be true Plaintiff s allegations that she was unfairly investigated (Compl. 33), evaluated (Compl. 36, 40, and 12 Case 5:16-cv D Document 22 Filed 02/03/17 Page 12 of 14

13 41), and reassigned (Compl. 68), these actions do not rise to the level sufficient to exceed all bounds usually tolerated in decent society. Giving poor performance evaluations and reassigning employees are all actions that the school system carries out in the regular course of supervising employees, not outrageous conduct or conduct outside of the bounds of decent society. See Pardassni, 912 F. Supp. 2d at 192 (granting defendant s motion to dismiss on the grounds that defendant s alleged conduct was not sufficiently extreme to support claim for IIED where plaintiff was not provided the same opportunities for professional development as other employees, given disciplinary actions when other employees did not receive reprimands for the same actions, placed on probation, and eventually terminated). Even construing Plaintiff s allegations in the most favorable light and assuming her allegations to be true, case law supports a conclusion that the Board s conduct does not rise to the level necessary to support a claim of IIED. CONCLUSION For the reasons stated above, the Board respectfully requests that its Motion to Dismiss Amended Complaint in this action be granted. This the 3rd day of January, Respectfully submitted, /s/ Adam S. Mitchell Adam S. Mitchell THARRINGTON SMITH, L.L.P. N.C. State Bar No Fayetteville Street, Suite 1800 Post Office Box 1151 Raleigh, North Carolina Telephone: (919) Fax: (919) amitchell@tharringtonsmith.com Attorneys for the Wake County Board of Education 13 Case 5:16-cv D Document 22 Filed 02/03/17 Page 13 of 14

14 CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a copy of the foregoing MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT was electronically filed with the Clerk of the Court using CM/ECF which will send notification to the following: James E. Hairston, Jr. Hairston Lane, P.A. 434 Fayetteville Street Suite 2350 Raleigh, NC Attorney for Plaintiff This the 3 rd day of February, /s/ Adam S. Mitchell Adam S. Mitchell Attorneys for the Wake County Board of Education THARRINGTON SMITH, L.L.P. 209 Fayetteville Street Post Office Box 1151 Raleigh, North Carolina Telephone: (919) Fax: (919) amitchell@tharringtonsmith.com State Bar No Case 5:16-cv D Document 22 Filed 02/03/17 Page 14 of 14