1:25-cv-00068•Campbell v. North Carolina Department of Health and Human Services et al
Campbell v. North Carolina Department of Health and Human Services et al
1:25-cv-00068Ncwd3 de mar. de 2026
Texto completo
1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION 1:25-cv-68-MR-WCM LINDA CAMPBELL, ) ) Plaintiff, ) ) MEMORANDUM AND ) RECOMMENDATION v. ) ) NORTH CAROLINA ) DEPARTMENT OF HEALTH ) AND HUMAN SERVICES, ) d/b/a Broughton Hospital; ) CARL EPLEY; and ) MARCUS GUY, ) ) Defendants. ) ______________________________ ) This matter is before the Court on Defendants’ Motion to Dismiss the Second Amended Complaint (the “Motion to Dismiss,” Doc. 19), which has been referred to the undersigned for the entry of a recommendation pursuant to 28 U.S.C. § 636. I. Relevant Procedural Background On January 6, 2025, Linda Campbell (“Plaintiff”) filed her original Complaint in the Superior Court of Burke County, North Carolina against the North Carolina Department of Health and Human Services (the “DHHS”), Carl Epley (“Epley”), Marcus Guy (“Guy”), and John W. Warren & Associates, PA d/b/a Complex Psychological Evaluations (“CPE”). Doc. 1-1. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 1 of 38
2 On March 7, 2025, the named defendants removed the matter to this Court. Doc. 1. On May 5, 2025, Plaintiff filed an amended complaint, Doc. 12, and, on May 28, 2025, Plaintiff filed a Second Amended Complaint, asserting claims against only DHHS, Epley, and Guy (“Defendants”). Doc. 18. On June 11, 2025, Defendants filed the Motion to Dismiss. Plaintiff has responded and Defendants have replied. Docs. 20, 21. II. Plaintiff’s Allegations and Claims1 At the outset, the undersigned is compelled to note that Plaintiff’s pleading does not constitute “a short and plain statement of the claim showing that [Plaintiff] is entitled to relief,” as contemplated by Rule 8 of the Federal Rules of Civil Procedure. The document itself, exclusive of exhibits but 1 Plaintiff has attached several documents to her Second Amended Complaint, including materials from the Equal Employment Opportunity Commission (the “EEOC”), DHHS, and the North Carolina Office of Administrative Hearings (the “OAH”). Likewise, Defendants have attached various documents to their Motion to Dismiss, including charges of discrimination submitted by Plaintiff and related letters advising Plaintiff of her right to sue. See Doc. 19-5. The undersigned has considered the materials attached to Plaintiff’s Second Amended Complaint as well as the documents related to Plaintiff’s charges of discrimination and notices of right to sue. Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396 (4th Cir. 2006) (“[A] court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed.”); Caison v. Thermo Fisher Scientific, No. 5:22-cv-00013, 2022 WL 10146542, at *2 (W.D. Va. Oct. 17, 2022) (“In ruling on a motion to dismiss, a court may consider documents referenced by a plaintiff in the complaint and attached to a motion to dismiss, such as a right-to-sue letter from the EEOC, without converting a motion to dismiss into a summary judgment motion.”). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 2 of 38
3 including the signature page, is 59 pages long and contains 453 numbered paragraphs. The factual allegations are, at times, duplicative, unnecessarily detailed or, alternatively, vague, and somewhat difficult to follow chronologically. Nonetheless, in relevant part, Plaintiff appears to allege as follows: Plaintiff, a white female, was employed by DHHS at Broughton Hospital, a psychiatric hospital owned and operated by DHHS, in Morganton, North Carolina. Doc. 18 at ¶¶ 2-5. Plaintiff worked in patient financial services. She was supervised at different times by Epley, who is a white male, and Guy. Plaintiff herself supervised Catherine Largent (“Largent”) and Jennifer Lowery (“Lowery”). Id. at ¶¶ 8, 10, 13, 36. On October 8, 2018, Plaintiff was struck by a motor vehicle and sustained serious injuries, including a traumatic brain injury (“TBI”) that “impaired her nervous system and altered her personality. In addition to attention-deficit hyperactivity disorder (‘ADHD’) and post-traumatic stress disorder (‘PTSD’), Plaintiff developed difficulties typing…, intense hyper-sexual behavior, and other neurological issues.” Id. at ¶¶ 37-38. Plaintiff was out of work from October 9, 2018 to October 14, 2018 and attempted to return on October 15, 2018. Id. at ¶¶ 74-75. At various times over Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 3 of 38
4 the following years, she went back out on leave, returned to light duty work, and returned to full duty work. Id. at ¶¶ 85-87, 103. At some point while Plaintiff was on leave, Epley recognized the ways in which Plaintiff had become vulnerable following her accident and began texting Plaintiff. His texts turned sexual in nature, and he began making strong and persistent sexual advances toward Plaintiff. Epley and Plaintiff subsequently exchanged sexually explicit text messages. Id. at ¶¶ 74-90. In the spring of 2021, Plaintiff received therapy that alleviated most of her symptoms. At approximately the same time, Epley informed Plaintiff that “their boss” was retiring and that Epley would be taking over the position. Plaintiff alleges that Epley pressured her to engage in physical sexual activity with him before he took the new position but that Plaintiff informed Epley that she was not interested in him and that Epley needed to stop making sexual advances toward her. Id. at ¶ ¶ 93, 96, 100. Plaintiff returned to light duty work on May 24, 2021 and to full duty work on June 4, 2021. Id. at ¶ 103. Subsequently, Epley “began a relentless campaign of retaliation against Plaintiff….” Id. at ¶ 107. Plaintiff also alleges that Epley “turned Largent and Lowery against Plaintiff,” id. at ¶ 113, and that Plaintiff experienced harassment and retaliation in various forms, including Largent submitting a complaint about Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 4 of 38
5 Plaintiff that was later retracted, Lowery and Largent “suddenly [growing] obstinate and insist[ing] they did not need to listen to Plaintiff,” and Lowery making false statements including that Plaintiff was going to “shoot up the place.” Id. at ¶ 115. At one point, Lowery apologized to Plaintiff and told Plaintiff that Epley and Largent “were actively working together to get Plaintiff fired” and had “pressured her [Lowery] to complain about Plaintiff.” Id. at ¶¶ 118, 120. On March 13, 2022, Plaintiff provided a “written report of concerns” about Epley and Largent. It was forwarded to Broughton Hospital’s CEO, Vivian Streater, who called for an investigation. Id. at ¶ ¶ 125, 128-129. On March 29, 2022, Plaintiff was reassigned and began reporting to Reba Yancey. Id. at ¶ 133. On April 13, 2022, “the investigators” informed Streater that they had not substantiated Plaintiff’s allegations “but had identified certain areas for improvement regarding interpersonal interactions and communications between employees in the department.” Id. at ¶ 138. Plaintiff contends, upon information and belief, that the investigators’ failure to substantiate her allegations was the result of Epley’s undue influence. Id. at ¶¶ 139-42. Streater and an investigator met with Plaintiff on April 29, 2022. They communicated the outcome of the investigation and Plaintiff was permanently reassigned to be supervised by Yancey. Id. at ¶¶ 144- 145. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 5 of 38
6 At some point, Epley was promoted and became Broughton Hospital’s chief financial officer, id. at ¶ 153, and in “May and June 2022…began looking for reasons and ways to enter Plaintiff’s new work location.” Id. at ¶ 156. Plaintiff alleges that on one day, Epley walked past Plaintiff’s office “at least 20 times while staring in at Plaintiff,” id. at ¶ 158, and that when Plaintiff complained, she was told he was “only ‘conducting normal business activities and utilizing the copier.’” Id. at ¶ 163. On June 30, 2022, Plaintiff filed a charge of discrimination with the EEOC (the “First Charge”). Id. at ¶ 334; Doc. 19-5 at 1. On September 7, 2022, Plaintiff emailed an employee relations specialist to discuss “ongoing concerns in her department,” but “there was no investigation or effective response” and, on September 9, 2022, Plaintiff made a complaint to “HR” “about a false allegation Largent made against Plaintiff involving notes.” Id. at ¶¶ 171 – 174. The issues regarding Largent continued, and on October 19, 2022, Plaintiff emailed the assistant human resources manager and the employee relations specialist to request another meeting. Id. at ¶ 178. On October 28, 2022, Largent complained to the assistant human resources manager and the employee relations specialist about Plaintiff, specifically, that “Largent thought Plaintiff was going to try to terminate Largent for poor work performance and insubordination.” Id. at ¶ 180. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 6 of 38
7 On December 16, 2022, Lowery falsely reported that Plaintiff had exposed Plaintiff’s “breasts and hip area to Lowery in the workplace” and that “Plaintiff had threatened to bring a gun to work and kill everyone.” Id. at ¶¶ 182-83. That same day, Plaintiff was placed on investigative leave with pay. Id. at ¶ 187. Plaintiff contends that Lowery made the false report to distract from her own poor performance, to harass Plaintiff, and to try to get Plaintiff fired. Id. at ¶ 184. Plaintiff further alleges, upon information and belief, that “Epley and Largent were pressuring Lowery to attack Plaintiff.” Id. at ¶ 186. On January 4, 2023, the investigation into Lowery’s December 16, 2022 report concluded and it was determined that there was insufficient evidence to support Lowery’s allegations. Id. at ¶ 190. Plaintiff was reinstated on January 14, 2023 and returned to work on January 17, 2023. Id. at ¶ 191. However, Plaintiff was “stripped of supervisory duties,” her responsibilities were reduced, and her job title was changed. Id. at ¶ 192. Thereafter, Streater “moved Plaintiff’s department under” Guy, whose “real task”, Plaintiff alleges upon information and belief, “was to appear to be objective while contriving a reason to terminate Plaintiff….” Id. at ¶ 196, 205. To that end, and despite knowing that Plaintiff’s TBI continued to affect Plaintiff’s typing speed and word processing ability, Guy assigned Plaintiff multiple lengthy writing assignments and then complained about how long it Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 7 of 38
8 took Plaintiff to complete them, and publicly criticized Plaintiff’s writing in a meeting. Id. at ¶¶ 211-13. Guy also made intimidating and threatening comments to Plaintiff during meetings, such as that he would “bring troubles down upon [employees’ heads] until they quit,” and that Plaintiff did not “want to know the depths of me. I am a monster. But, I keep it in the cage.” Id. at ¶¶ 207, 220. Guy, however, “was unsuccessful in finding a legitimate reason to terminate Plaintiff or [make] Plaintiff resign,” so he falsely reported to Streater that Plaintiff had stated “…if you betray me, I’ll cut you like I cut myself.” Id. at ¶ 227. On April 18, 2023, Plaintiff met with the assistant human resources manager and the employee relations specialist to discuss Guy’s false allegations. Id. at ¶ 233. The same day, Guy met with Streater, Epley, the assistant human resources manager, and the employee relations specialist, id. at ¶ 257, and stated that Plaintiff was “erratic, unstable, and potentially dangerous.” Id. at ¶ 258. Based on Guy’s statements, Plaintiff was required to undergo a fitness for duty (“FFD”) evaluation. Id. at ¶ 260. On April 21, 2023, Plaintiff filed her second charge of discrimination with the EEOC (the “Second Charge”). Doc. 19-5 at 10. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 8 of 38
9 On April 26, 2023, Plaintiff was placed on investigative leave with pay pending the outcome of the FFD evaluation, which was to be conducted by CPE. Doc. 18 at ¶¶ 262 – 263. On May 15, 2023, CPE issued a report of the FFD evaluation. Id. at ¶ 264. It was signed by “Dr. Warren,” even though he did not participate in Plaintiff’s evaluation2 and was “closely connected with Broughton leadership,” including Streater, Guy, and Epley, such that there was a conflict of interest. Id. at ¶¶ 263-69. Plaintiff further contends that CPE improperly issued two versions of the FFD report, and that DHHS intentionally withheld from Plaintiff one version that was provided to DHHS. Id. at ¶¶ 272-73. Plaintiff alleges that she was “accidentally made privy to the hospital’s copy of the CPE report, which contained additional medical history of Plaintiff, other information about Plaintiff, and recommendations that Plaintiff was not supposed to see.” Id. at ¶ 274. Effective May 26, 2023, DHHS changed Plaintiff’s employment status to “Extended Illness Leave” and offered Plaintiff the option of taking FMLA leave. Plaintiff refused though, believing that doing so would be used against her later. Id. at ¶¶ 280 – 282. 2 The report was also signed by Christopher Baker, Psy.D., who did conduct the FFD evaluation. Id. at ¶¶ 263, 265. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 9 of 38
10 On June 1, 2023, Plaintiff’s “long-time specialist, Amy Boison, PMHNP- BC” (“Boison”), performed an independent FFD review. Boison found that CPE’s evaluation “was in stark contrast to Boison’s experience with Plaintiff,” and that it was “nonsensical” that Plaintiff’s mild PTSD and mild ADHD symptoms “would lead to an ‘unfit for duty’ determination.” Id. at ¶¶ 284, 286, 291. Plaintiff contends, upon information and belief, that once Plaintiff and Boison criticized the CPE evaluation, CPE “issued a revised report with new findings that better supported Defendants’ goal of terminating Plaintiff.” Id. at ¶ 293. On June 7, 2023, Boison recommended that DHHS provide Plaintiff “with reasonable accommodations.” Id. at ¶ 297.3 DHHS, however, disregarded the information provided by Plaintiff and Boison and moved to separate Plaintiff from her employment based on CPE’s report. Id. at ¶ 299. On June 9, 2023, Plaintiff attended a “separation conference” with Guy, the assistant human resources manager, and the employee relations specialist. During that conference, Plaintiff was not allowed to review the hospital’s FFD report, present witnesses, or bring an attorney. Id. at ¶¶ 300 – 301. 3 Plaintiff does not allege what specific accommodations were requested. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 10 of 38
11 Thereafter, Plaintiff received a letter from Guy dated June 27, 2023 stating that she was separated from employment at DHHS. Id. at ¶ 302. Largent was given Plaintiff’s previous position. Id. at ¶ 306. On August 16, 2023, Plaintiff received a Right to Sue Letter from the EEOC regarding the First Charge. Id. at ¶ 334; Doc. 19-5 at 7. On February 28, 2024, Plaintiff received a Right to Sue Letter from the EEOC regarding the Second Charge. Doc. 19-5 at 13. “In late February 2024,” Plaintiff received a letter from an investigator with DHHS informing Plaintiff that an allegation that Plaintiff had misappropriated patient funds on December 21, 2022 had been posted on the Health Care Personnel Registry (“HCPR”).4 Doc. 18 at ¶ 312. Plaintiff asserts that the allegation was “undisputedly false” because she was on leave between December 16, 2022 through January 14, 2023. Id. at ¶ 313. The allegation was later rescinded, but Plaintiff learned that it had been made anonymously by an employee of a separate entity located on Broughton Hospital’s campus. Id. at ¶ 316. Plaintiff alleges that a “trustworthy witness” informed her that “Epley was having a sexual relationship with a female employee” of that entity and that upon information and belief Epley “directed his paramour to make the false complaint against Plaintiff….” Id. at ¶¶ 318-19. 4 Plaintiff does not describe this registry in further detail in her pleading. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 11 of 38
12 On April 1, 2024, Plaintiff was suspended from her “new job” pending the outcome of the “DHHS investigation” (presumably, the investigation into the HCPR complaint). Id. at ¶ 321. On September 27, 2024, Plaintiff filed her third charge of discrimination with the EEOC (the “Third Charge”). Id. at ¶ 335; Doc. 19-5 at 18.5 On October 8, 2024, Plaintiff received a Right to Sue Letter from the EEOC regarding the Third Charge. Doc. 18 at ¶ 335; Doc. 18-1 at 1; Doc. 19-5 at 21. On December 18, 2024, Plaintiff filed her fourth charge of discrimination with the EEOC (the “Fourth Charge”). Doc. 18 at ¶ 336; Doc. 19-5 at 26. On December 20, 2024, Plaintiff received a Right to Sue Letter from the EEOC regarding the Fourth Charge. Doc. 18 at ¶ 336; Doc. 18-1 at 2; Doc. 19- 5 at 29. 5 Plaintiff refers to this charge as her “second charge” and states that the date she submitted this charge was August 5, 2024. However, the documentation submitted by Defendants indicates that this charge was signed by Plaintiff on September 27, 2024, and followed two previous charges signed by Plaintiff on June 30, 2022 (the First Charge) and on April 21, 2023 (the Second Charge). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 12 of 38
13 Plaintiff asserts the following claims: Claim DHHS Epley Guy Count I: Title VII: Sexual Harassment X Count II: Title VII: Disparate Treatment Race/Color X Count III: Title VII: Retaliation X Count IV: ADA: Failure to Engage in Interactive Process and Failure to Accommodate X Count V: 14th Amendment United States Constitution X Count VI: Wrongful Discharge in Violation of Public Policy X X X Count VII: Blacklisting X X Count VIII: Breach of Contract X Count IX: Civil Conspiracy X X X Count X: Violation of the N.C. Constitution X Count XI: 42 U.S.C. § 1983 X X Count XII: Punitive Damages X X III. Legal Standards A. Rule 12(b)(1) A motion to dismiss made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure addresses whether the court has subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction is a threshold question that relates to the power of the court to hear a case and must be resolved before a court addresses the merits of a case.” Cap. Associated Indus., Inc. v. Cooper, 129 F. Supp.3d 281, 299 (M.D.N.C. 2015) (citing Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005)). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 13 of 38
14 An assertion of Eleventh Amendment or sovereign immunity may be considered in the context of a motion made pursuant to Rule 12(b)(1). See e.g., MciLwain v. Hensley, No. 1:23-CV-295-MOC, 2024 WL 3708871, at *1 (W.D.N.C. Aug. 7, 2024) (collecting cases) (“Where a defendant raises either Eleventh Amendment or sovereign immunity in seeking dismissal of a claim, that motion is properly considered pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, as the defendant is contending that the court lacks subject matter jurisdiction over the plaintiff's claim.”). B. Rule 12(b)(6) When considering a motion made pursuant to Rule 12(b)(6), the court accepts the allegations in the complaint as true and construes them in the light most favorable to the claimant. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court, however, is not required to accept “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d at 192. That is, while “detailed factual allegations” are not required, the complaint (or counterclaim) must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Consumeraffairs.com, 591 F.3d at 255. “A claim has facial Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 14 of 38
15 plausibility” when the claimant “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Consumeraffairs.com, 591 F.3d at 255. In short, the well-pled factual allegations must move a claim from conceivable to plausible. Twombly, 550 U.S. at 570; Consumeraffairs.com, 591 F.3d at 256. IV. Discussion The undersigned is likewise compelled to note that the parties' briefing with regard to the Motion to Dismiss is not particularly helpful. Plaintiff has asserted a variety of claims under federal and state law and Defendants have raised multiple challenges to those claims, including arguing that they are barred by numerous immunity doctrines, but the parties' briefing conflates those various doctrines and how they apply specifically to each defendant and each claim. A. The Federal Claims 1. Against DHHS Defendants contend that Plaintiff’s Title VII and ADA claims are time barred and that there is no direct cause of action against DHHS for violation of the Fourteenth Amendment. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 15 of 38
16 a. Title VII and ADA Claims6 i. Timeliness of the Charges Both Title VII and the ADA require that a charge be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred. Fort Bend Cnty. v. Davis, 587 U.S. 541, 544 (2019) (citing 42 U.S.C. § 2000e–5(b), (e)(1)); Johnson v. Novant Health Brunswick Med. Ctr., No. 7:19-CV-155-BO, 2021 WL 3686239, at *2 (E.D.N.C. Aug. 19, 2021) (stating that the 180-day period imposes a “mandatory deadline” that “bars any claim not filed within the time limit, even if it is only one day late”) (collecting cases); Lunn v. Clerk of Circuit Court for Baltimore City, No. CV CCB-19-729, 2020 WL 1034070, at *4 (D. Md. Mar. 3, 2020) (noting that while the Supreme Court has held that Title VII's charge filing requirement was “not of a jurisdictional cast, ... the charge filing rule is mandatory, and a plaintiff's failure to exhaust administrative remedies thus justifies a claim's dismissal”) (citing Fort Bend Cnty.); Meadows v. Blue Ridge Cmty. Coll., No. 1:19 CV 251, 2020 WL 2761037, at *4 (W.D.N.C. May 5, 2020), report and recommendation adopted, No. 1:19- CV-00251-MR-WCM, 2020 WL 2748305 (W.D.N.C. May 27, 2020) (“The ADA 6 Title VII “abrogates [Eleventh Amendment immunity] for suits against a state in its capacity ‘as employer.’” Savage v. Maryland, 896 F.3d 260, 275 (4th Cir. 2018) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976)); see also Russell v. Univ. of N. Carolina at Charlotte, No. 3:20-CV-00172-FDW-DSC, 2020 WL 6216827, at *3 (W.D.N.C. Oct. 22, 2020) (“Congress abrogated state sovereign immunity when it enacted Title VII pursuant to its powers under Section 5 of the 14th Amendment.”). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 16 of 38
17 requires a plaintiff to file a charge of discrimination with the EEOC within 180 days of the alleged adverse employment action.”) (quoting Sexton v. Skyline Membership Corp., No. 5:16-CV-00044-RLV-DSC, 2017 WL 1386019, at *2 (W.D.N.C. Apr. 12, 2017) (citing 42 U.S.C. § 12117(a) and 42 U.S.C. § 2000e- 5(e)(1))). However, if “the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief” from the unlawful employment practice, the person’s “charge shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). In this case, the parties agree that the 300-day period applies. See Doc. 19-1 at 20; Doc. 20 at 18. Plaintiff filed the First Charge on June 30, 2022 alleging discrimination that occurred, at the earliest, on May 24, 2021 and, at the latest, on June 14, 2022. Doc. 19-5 at 1. Plaintiff filed the Second Charge on April 21, 2023 alleging discrimination that occurred, at the earliest, on October 23, 2022 and, at the latest, on April 21, 2023. Doc. 19-5 at 10. Plaintiff filed the Third Charge on September 27, 2024 alleging discrimination that occurred, at the earliest, on February 26, 2024 and, at the latest, on March 31, 2024. Doc. 19-5 at 18-19. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 17 of 38
18 Plaintiff filed the Fourth Charge on December 18, 2024 alleging discrimination that occurred on June 27, 2023. Doc. 19-5 at 26-27. Accordingly, the First, Second, and Third Charges were filed within 300 days of the allegedly discriminatory conduct and were therefore timely, but Plaintiff’s Fourth Charge was not. ii. Timeliness of the Complaint Title VII and the ADA also require a plaintiff to file suit within 90 days after the receipt of a right to sue letter. See Quinn v. Copart of Connecticut, Inc., 791 F. App'x 393, 395 (4th Cir. 2019) (“The 90-day requirement is in the nature of a statute-of-limitations defense.”); Angles v. Dollar Tree Stores, Inc., 494 F. App'x 326, 328 (4th Cir. 2012) (“Title VII requires that aggrieved persons file a civil action within 90 days of receiving a right-to-sue letter.”); Abria v. Owens-Illinois, No. 1:02-CV-00111, 2003 WL 21297330, at *3 (M.D.N.C. June 4, 2003) (“For a claimant to be entitled to relief under both Title VII and the ADA, she must file a civil action within 90 days of receipt of the EEOC's right-to-sue letter . . . Otherwise, a claimant's failure to bring suit within 90 days generally forfeits her right to pursue the claim.”). Here, as to the Charges that were filed timely, Plaintiff received Right to Sue Letters on August 16, 2023 (for the First Charge), February 28, 2024 (for the Second Charge), and October 8, 2024 (for the Third Charge). Doc. 19-5 at 7, 13, and 21. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 18 of 38
19 Because she filed her original Complaint on January 6, 2025, Doc. 1-1, only Plaintiff’s Third Charge was filed within the 90-day period.7 iii. Equitable Tolling The doctrine of equitable tolling applies only in limited situations; specifically, where there are “(1) extraordinary circumstances, (2) beyond [a plaintiff’s] control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003); see also Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (“Any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individual hardship supplant the rules of clearly drafted statutes.”) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). 7 Plaintiff argues that Third Charge should be considered to be an amendment to the First and Second Charges (such that the First and Second Charges were also timely). However, the Right to Sue Letters relative to the First and Second Charges were issued before Plaintiff filed the Third Charge. Since those earlier charges were no longer pending, they could not be amended. See Balazs v. Liebenthal, 32 F.3d 151, 157 (4th Cir. 1994) (“Thus we conclude that a reasonable construction of the EEOC's regulation would simply allow charges to be verified and to relate back only so long as the charge is a viable one in the EEOC's files, but that where, as here, a right to sue letter has issued . . . there is no longer a charge pending before the EEOC which is capable of being amended.”); Merchant v. Prince George’s Cnty., Md., 948 F. Supp.2d 515, 523 (D. Md. 2013) (“the issuance of a right-to-sue letter by the EEOC functions as a cut-off date for amendments because, at that point, there is no longer a charge pending before the EEOC which is capable of being amended”) (citation and quotation marks omitted). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 19 of 38
20 “The party seeking the ‘extraordinary remedy’ of equitable tolling bears ‘a considerable burden to demonstrate that it applies.’” Caudill v. N. Carolina Symphony Soc'y, Inc., 750 F. Supp.3d 531, 556 (E.D.N.C. 2024) (quoting CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 476 (4th Cir. 2015)). Here, Plaintiff argues that equitable tolling should apply to her Title VII and ADA claims because she was misled by EEOC personnel, did not understand the regulatory framework, and was taking care of her terminally ill husband during the pertinent timeframe. Neither Plaintiff’s previous pro se status nor her lack of understanding of the regulatory process, standing alone, provide a basis for the application of equitable tolling. See Robinson v. Driven Brands Shared Servs., No. 3:19-cv- 375-MOC-DCK, 2020 WL 506754, at *2 (W.D.N.C. Jan. 30, 2020) (“A plaintiff’s pro se status provides no independent basis for an equitable tolling of the Title VII filing period.”) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 150-52 (1984)); McCaskill v. Dep’t of Army, No. 1:05-cv-536, 2006 WL 314555, at *8 (M.D.N.C. Feb. 8, 2006) (“[The plaintiff’s] lack of understanding about how the relevant time limitation operates is not a basis for equitable tolling.”) (citing United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)). Further, although Plaintiff contends that she was misled by EEOC personnel, Plaintiff alleges only that Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 20 of 38
21 The EEOC and OAH both provided Plaintiff with a lot of incorrect information, which resulted in certain claims (like ongoing harassment) not being included when Plaintiff was told she was amending a charge. The EEOC investigator also did not tell Plaintiff until after the EEOC and OAH determinations that she could not hear Plaintiff’s audio recordings, which were very important to the case. Had Plaintiff known, Plaintiff could have produced better copies. Doc. 18 at ¶ 345. The undersigned finds this allegation too vague to support application of equitable tolling. See McCaskill, 2006 WL 314555, at *5 (explaining that equitable tolling is rarely available and is limited to those situations where a plaintiff filed a defective pleading during the statutory period or where a plaintiff was “induced or tricked by [her] adversary’s misconduct into allowing the filing deadline to pass.”) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)); Zow v. Bd. of Governors of Univ. of N.C., No. 5:23-cv-290- M-RJ, 2024 WL 1285532, at *5 (E.D.N.C. Mar. 26, 2024) (declining to apply equitable tolling where an EEOC employee gave “an accurate, but incomplete, oral statement”) (citing Conaway v. Control Data Corp., 955 F.3d 358, 363 (5th Cir. 1992)); Donald v. Novant Health, Inc., 689 F. Supp.3d 170, 178-79 (E.D.N.C. 2023) (declining to apply equitable tolling where the plaintiff alleged that an EEOC employee told her she could not file an EEOC charge with direct evidence of discrimination). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 21 of 38
22 Finally, Plaintiff alleges that “[a]t various times during the filing of claims with the EEOC and those claims being investigated, Plaintiff was caring for her husband (now deceased), who had been battling aggressive cancer.” Doc. 18 at ¶ 347. The undersigned acknowledges the difficulty of Plaintiff’s circumstances but Plaintiff has not alleged facts sufficient to establish that she was precluded from timely filing suit based on the First or Second Charges or from submitting the Fourth Charge in a timely manner. iv. Post-Employment Conduct Related to the Third Charge Reading Plaintiff’s Second Amended Complaint in the light most favorable to her, it appears that Count III encompasses the alleged retaliation referenced in Plaintiff’s Third Charge. Defendants point out that Plaintiff was not an employee of DHHS between February 26, 2024 and March 31, 2024 (the dates of the alleged retaliation in the Third Charge) and argue that Plaintiff is not entitled to the protection of Title VII for conduct that occurred after her termination.8 8 Defendants also appear to argue that Plaintiff cannot state a claim based on “being subjected to a complaint filed with the HCPR” because there was “a difference of eight months between Plaintiff’s separation and when the notice of allegation was received….” Doc. 19-1 at 23. The Second Amended Complaint alleges that Plaintiff was terminated in June of 2023 and that she received a letter regarding the HCPR report in February of 2024. Doc. 18 at ¶¶ 302, 312. However, the record is not clear as to when the allegation that Plaintiff had misappropriated patient funds was posted on the HCPR. See Doc. 18 at ¶ 322 (“While Plaintiff received the notice letter in late February 2024, the complaint could have been made several months earlier.”) Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 22 of 38
23 However, a former employee may bring a retaliation claim under Title VII for post-employment conduct. See Ream v. Pennsylvania Dep't of Human Servs./Polk Ctr., No. 1:16-CV-173 (BJR), 2017 WL 5626197, at *3 (W.D. Pa. Nov. 22, 2017), aff'd sub nom, Ream v. Pennsylvania Dep't of Human Servs., Polk Ctr., 738 F. App'x 83 (3d Cir. 2018) (“The anti-retaliation provisions of Title VII provide former employees with a legal recourse against post- employment retaliation.”) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). b. Direct Fourteenth Amendment Claim Plaintiff contends that she may assert a direct cause of action against DHHS for an alleged violation of the Fourteenth Amendment, but she has provided no persuasive authority to support that position. See e.g., Hearth, Inc. v. Dep't of Pub. Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980) (stating that “the federal courts…have been hesitant to find causes of action arising directly from the Constitution” and that 42 U.S.C. § 1983 provides the means for seeking relief against a state actor who violates the Constitution); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“[A] litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983.”); Wax 'n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000) (holding that a “claim may not be brought directly under the [F]ourteenth Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 23 of 38
24 [A]mendment”); Housecalls Home Health Care, Inc. v. U.S. Dep't of Health & Hum. Servs., 515 F. Supp.2d 616, 628 (M.D.N.C. 2007) (“The claims raised against the NCDHHS Defendants under the United States Constitution fare no better. They cannot stand, or at least cannot stand as independent claims. This is because direct causes of action do not ordinarily exist under the United States Constitution.”). 2. Against Epley and Guy As a threshold matter, Defendants argue that Plaintiff’s claims against Epley and Guy are asserted against them in their official capacities. However, in her response to the Motion to Dismiss, Plaintiff states that Epley and Guy are sued in their individual capacities only. Doc. 20 at 9. Considering this statement, as well as the allegations in Plaintiff’s Second Amended Complaint as a whole, the undersigned has analyzed Plaintiff’s claims against Epley and Guy as individual capacity claims. See e.g., York v. Lutz, No. 2:22-CV-38-BO, 2023 WL 2979536, at *4 (E.D.N.C. Apr. 17, 2023) (analyzing state law claims against individual defendant as individual capacity claims where the plaintiff “clarified in her response that the state law claims are alleged against Lutz in his individual, not official capacity”); Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (“Another indication that suit has been brought against a state actor personally may be a plaintiff's request for compensatory or punitive damages, since such relief is unavailable in official capacity suits.”). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 24 of 38
25 Additionally, the undersigned notes that although Defendants seem to indicate that they believe Epley and Guy are entitled to qualified immunity with respect to Plaintiff’s Section 1983 claim, they do not develop that argument in their briefing. Rather, Defendants argue that Plaintiff has failed to state a claim against either Epley or Guy pursuant to 42 U.S.C. § 1983. The Federal Civil Rights Act, 42 U.S.C. § 1983, imposes civil liability upon a person who, under color of law, deprives another of rights secured by the Constitution or laws of the United States. To prevail on a Section 1983 claim, the plaintiff has the burden of establishing 1) the deprivation of a right secured by the Constitution or laws of the United States, and 2) that the alleged deprivation was committed under color of state law. Austin v. Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999) (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Defendants argue that “Plaintiff is attempting to sue [Epley and Guy] under § 1983 but cites no color of state law or constitutional violation brought against either employee.” Doc. 19-1 at 22. In response, Plaintiff contends that Epley and Guy discriminated against her “for exercising her right to protected speech (specifically, her making complaints of unlawful discrimination, harassment, and retaliation),” “based on race through less-preferential treatment than a black employee in the Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 25 of 38
26 complaint – and disciplinary-processes,” and by “trying to terminate Plaintiff’s employment (i.e., constitutionally-protected property right) based on race and other unlawful reasons, and in fact, doing so” and by “making a false complaint about her misappropriating patient funds.” Doc. 20 at 22. Reading Plaintiff’s Second Amended Complaint generously and in the light most favorable to her, it is arguable that Plaintiff seeks to hold Epley and Guy liable for retaliating against Plaintiff in response to complaints she made to DHHS (and, perhaps, later to the EEOC). See Blakenship v. Manchin, 471 F.3d 523, 528 (4th Cir. 2006) (discussing the three-part standard for pleading a First Amendment Section 1983 retaliation claim). The Fourth Circuit has explained, though, that “[i]n the absence of unusual circumstances, a public employee's speech ‘upon matters only of personal interest’ is not afforded constitutional protection.” Seemuller v. Fairfax Cty. Sch. Bd., 878 F.2d 1578, 1581 (4th Cir. 1989) (quoting [Connick v. Myers, 461 U.S. 138, 147 (1983)]); see also Jurgensen v. Fairfax County, 745 F.2d 868, 879 (4th Cir. 1984) (“If the speech relates primarily to a matter of ‘limited public interest’ and ... center[s] instead on matters primarily, if not exclusively ‘of personal interest’ to the employee ... that fact must be weighed in determining whether a matter of true public concern is involved....”). To that end, “[t]he Supreme Court has warned us to guard against ‘attempt[s] to constitutionalize the employee grievance.’” Brooks v. Arthur, 685 F.3d 367, 373 (4th Cir. 2012) (second alteration in original) (quoting Connick, 461 U.S. at 154, 103 S.Ct. 1684). Accordingly, “[p]ersonal grievances [and] complaints about conditions of employment ... do not constitute speech Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 26 of 38
27 about matters of public concern.” Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (internal quotation marks omitted) (quoting Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992)). Grutzmacher v. Howard Cnty., 851 F.3d 332, 343 (4th Cir. 2017). Further, while Plaintiff argues that she was discriminated against based on her race, there are no factual allegations in the Second Amended Complaint to support that position. In sum, the Second Amended Complaint fails to identify sufficiently a federal constitutional or statutory right Epley or Guy allegedly violated that could support a Section 1983 claim. B. The State Law Claims 1. Against DHHS a. Immunity Principles The Eleventh Amendment states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. Const. amend. XI. The Supreme Court “has drawn on principles of sovereign immunity to construe the Amendment to establish that an unconsenting State is immune from suits brought in federal courts by her own Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 27 of 38
28 citizens as well as by citizens of another State.” Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990) (internal quotation marks omitted). A State’s immunity extends to “state agents and state instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). DHHS is an agency of the State of North Carolina and, therefore, is entitled to Eleventh Amendment immunity. See Stewart v. N. Carolina Dep't of Health & Hum. Servs., No. 5:06-CV-29-BO(2), 2006 WL 8438814, at *5 (E.D.N.C. July 14, 2006) (“Defendants DHHS, and Dorothea Dix Hospital, a state hospital operated by DHHS, are state agencies entitled to Eleventh Amendment immunity”); N. Carolina Supported Emp. v. N. Carolina Dep't of Health & Hum. Servs., No. 5:10-CV-135-FL, 2010 WL 4696556, at *3 (E.D.N.C. Nov. 12, 2010) (The Eleventh Amendment “applies equally to state agencies such as DHHS….”) (internal citations omitted). A State, though, “remains free to waive its Eleventh Amendment immunity from suit in a federal court.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002); see also Walton v. N.C. Dep't of Commerce, No. 1:17-CV-00054-MR-DLH, 2018 WL 1368364, at *4 (W.D.N.C. Mar. 16, 2018), aff'd sub nom. Walton v. N. Carolina Dep't of Commerce, 732 F. App'x 239 (4th Cir. 2018) (“A state may waive the protection of the Eleventh Amendment by state statute or state constitutional provision.”) (citing Edelman v. Jordan, 415 U.S. 651, 673-74 (1974)). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 28 of 38
29 But a waiver of a State’s sovereign immunity is distinct from a waiver of a State’s Eleventh Amendment immunity; “a State does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immunity in its own courts.” Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 473-74 (1987) (citations omitted); see also Walton v. N.C. Dep't of Commerce, No. 1:17-CV-00054-MR-DLH, 2018 WL 1368364, at *5 (W.D.N.C. Mar. 16, 2018) (the “fact that North Carolina has waived its sovereign immunity against breach of contract claims brought in its own state courts… does not constitute a waiver of Eleventh Amendment immunity”), aff'd sub nom. Walton v. N. Carolina Dep't of Commerce, 732 F. App'x 239 (4th Cir. 2018). However, where a State has explicitly waived its immunity from being sued in state court, its removal of a case to federal court will also constitute a waiver of its Eleventh Amendment immunity. Lapides v. Board of Regents of the Univ. Sys. of Georgia , 535 U.S. 613 (2002); Guseh v. N. Carolina Cent. Univ., 423 F. Supp. 2d 550, 562 (M.D.N.C. 2005) (“Lapides would operate to preclude Eleventh Amendment immunity in this case if North Carolina had waived immunity from Plaintiff's state law claims in its own courts.”), report and recommendation adopted, No. 1:04-CV-00042, 2006 WL 694621 (M.D.N.C. Mar. 13, 2006), aff'd sub nom. Guseh v. N. Carolina Cent. Univ. ex rel. Bd. of Governors of Univ. of N. Carolina, 206 F. App'x 255 (4th Cir. 2006). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 29 of 38
30 On the other hand, “where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court.” Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019) (citing Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005)); Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir. 2005) (explaining that “Lapides addresses whether a state that removes an action to federal court having already consented to suit in its own courts can invoke Eleventh Amendment immunity; it does not resolve whether a state that has not consented to suit in its own courts maintains either the broader concept of sovereign immunity or Eleventh Amendment immunity upon voluntarily removing a case to federal court” and holding that “North Carolina, having not already consented to suit in its own courts, did not waive sovereign immunity by voluntarily removing the action to federal court for resolution of the immunity question”); Alston v. N. Carolina A & T State Univ., 304 F. Supp. 2d 774, 783 (M.D.N.C. 2004) (“because North Carolina has not expressly waived its sovereign immunity in state court against Alston's claims, the Lapides decision does not compel a finding that NC A & T has waived its immunity through removal to federal court”). Since the instant matter originated in state court, the question is whether—with respect to each claim—DHHS waived its state sovereign immunity prior to removal. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 30 of 38
31 b. Tort Claims With respect to her claims of wrongful discharge, blacklisting, and civil conspiracy, Plaintiff argues that DHHS’ sovereign immunity has been waived by the purchase of insurance. North Carolina law, though, does not support this position; N.C. Gen. Stat. § 58-32-15(c) states that the “purchase, by any State department…of professional liability insurance covering the…employees of such department…shall not be construed as a waiver of any defense of sovereign immunity by such department….” See also Walton v. North Carolina Dept. of Agriculture, No. 5:09-CV-302-FL, 2010 WL 11482933, at *3 (E.D.N.C. Feb. 17, 2010) (“[w]hile a state agency may purchase liability insurance, pursuant to N.C. Gen. Stat. § 58-32-15(c), this statute specifically provides that purchase of this insurance does not amount to a waiver of the defense of sovereign immunity”) (citing Wood v. N.C. State Univ., 147 N.C. App. 336, 343 (2001)). Therefore, Plaintiff’s claims for wrongful discharge, blacklisting, and civil conspiracy against DHHS should be dismissed. See e.g., Miller v. N.C. State Univ., No. 5;18-CV-523-FL, 2019 WL 3686592, at *2-3 (E.D.N.C. Aug. 6, 2019) (dismissing a blacklisting claim against a state agency on sovereign immunity grounds). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 31 of 38
32 c. Contract Claim Whether DHHS has waived its state sovereign immunity by entering into a contract with Plaintiff is less clear. As a general matter, when the “State of North Carolina, through its authorized officers and agencies, enters into a valid contract, the State implicitly consents to be sued for damages on the contract in the event it breaches the contract.” Can Am South, LLC v. State, 234 N.C. App. 119, 126 (2014) (quoting Smith v. State, 289 N.C. 303, 320 (1976)). Here, Plaintiff has not submitted a copy of any such contract (assuming it was in writing) and DHHS contends that her breach of contract claim “may only be assumed at this time to exist as by virtue of her being a State employee.” Doc. 19-1 at 12.9 Further, Plaintiff has not cited controlling authorities to support the proposition that by entering a garden variety employment relationship with an individual, DHHS should be deemed to have waived its state sovereign immunity. Nonetheless, given the general proposition that entering a contract constitutes implicit consent by the State to be sued if that contract is breached, and given Plaintiff’s (albeit general) representations about the existence of a contract, the undersigned will recommend that Plaintiff’s breach of contract 9 The parties agree that Plaintiff was a “career state employee.” See Doc. 19-1 at 13; Doc. 20 at 1. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 32 of 38
33 claim be allowed to proceed at this time, subject to further development of the record and the attendant legal arguments. d. North Carolina State Constitutional Claim10 Sovereign immunity does not bar a plaintiff from asserting a direct claim in state court against the State under the North Carolina Constitution. Corum v. Univ. of N.C., 330 N.C. 761 (1992). And since Defendants removed this matter, the Eleventh Amendment does not prohibit such a claim from proceeding in this Court. Lapides v. Board of Regents of the Univ. Sys. of Georgia , 535 U.S. 613 (2002).11 10 In their reply, Defendant raise a substantive challenge to this claim, contending that it should be dismissed because Plaintiff otherwise has an adequate state remedy. See Doc. 21 at 5. However, as this argument was raised for the first time in Defendants’ reply, the undersigned has not addressed it. See Local Civil Rule 7.1(e) (“A reply brief should be limited to a discussion of matters newly raised in the response.”). 11 The undersigned does not find that Corum itself also constituted a waiver of the State’s Eleventh Amendment immunity. See e.g., Jennette v. Beverly, No. 5:15-CT- 3019-D, 2015 WL 7176452, at *3 (E.D.N.C. Nov. 10, 2015) (“Simply put, the court rejects Jennette's argument that the Supreme Court of North Carolina's interpretation of the North Carolina Constitution in Corum informs how this court should interpret the Eleventh Amendment.”). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 33 of 38
34 2. Against Epley and Guy12 a. Wrongful Discharge A wrongful discharge claim is only available against a plaintiff’s employer. Here, Plaintiff was employed by DHHS, not Epley or Guy, so this claim cannot proceed against the individual defendants. See Sides v. Duke University, 74 N.C. App. 331, 343 (1985) (“But this [wrongful discharge] claim was properly dismissed as to Ms. Farmer and Dr. Harmel, since it is alleged that her employment contract was with Duke University, rather than either of them….”); Iglesias v. Wolford, 539 F. Supp.2d 831, 840 (E.D.N.C. 2008) (“Under North Carolina law, the individual defendants cannot be liable for wrongfully discharging [the plaintiff], because by [the plaintiff’s] own admission, the individual defendants were not her employer.”). 12 Defendants argue that Plaintiff’s claims against Epley and Guy should be analyzed as official capacity claims and that those claims are barred by DHHS’s immunity. Yet, they also seem to reference the defense of public official immunity, which pertains to individual capacity claims. R.A. v. Johnson, 36 F.4th 537, 542 (4th Cir. 2022) (Public official immunity “precludes suit against public officials in their individual capacities….”). As described above, the undersigned has analyzed the claims against Epley and Guy as individual capacity claims. Further, Defendants do not develop an argument sufficient to support public official immunity. For example, Defendants do not explain why Epley and Guy should be considered to be public officials as opposed to public employees. See R.A. v. Johnson, 36 F.4th at 542 (“The immunity applies only to public officials, not public employees—a distinction which turns on whether the position is created by statute, exercises sovereign power, and requires discretion.”). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 34 of 38
35 b. Blacklisting (Against Epley) To state a claim for blacklisting under North Carolina law, “a plaintiff must show that: (1) defendant had been the plaintiff’s employer and had discharged the plaintiff from its service; and (2) without solicitation, the defendant by oral or written communication prevented the plaintiff from obtaining employment with another employer.” Edwards v. PCS Phosphate Co., Inc., 812 F. Supp.2d 689, 696 (E.D.N.C. 2011) (citing Wright v. Fiber Indus., Inc., 60 N.C. App. 486, 491-92 (1983)). Again, Plaintiff has not alleged that Epley was her employer. Further, Plaintiff has not alleged that Epley made any statement to any new or potential employer. See Joiner v. Revco Discount Drug Centers, Inc., 467 F. Supp.2d 508, 517-18 (W.D.N.C. 2006) (concluding that the plaintiff’s complaint failed to state a claim for blacklisting against CVS for making a report to a third-party consumer reporting agency about the nature of the plaintiff’s termination because CVS never made a statement to the plaintiff’s potential new employers). c. Civil Conspiracy (Against Epley and Guy) To state a claim for civil conspiracy, Plaintiff must allege facts showing “(1) an agreement between two or more individuals; (2) to do any unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury inflicted by one or more of the conspirators; and (4) pursuant to a common scheme.” Nexus Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 35 of 38
36 Techs., Inc. v. Unlimited Power Ltd., No. 1:19-CV-00009-MR, 2019 WL 4941178, at *7 (W.D.N.C. Oct. 7, 2019) (citing State ex. Rel. Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 443 (2008)). Plaintiff's “recovery must be on the basis of sufficiently alleged wrongful overt acts.” Dove v. Harvey, 168 N.C. App. 687, 690 (2005) (quoting Fox v. Wilson, 85 N.C. App. 292, 301 (1987) (citation omitted)). “A civil conspiracy claim fails when the underlying tort claims are dismissed.” Crossroads Trucking Corp. v. TruNorth Warranty Plans of N. Am., LLC, No. 3:21-CV-00318-RJC-DSC, 2022 WL 3952221, at *8 (W.D.N.C. Aug. 31, 2022) (citing Williams v. United Cmty. Bank, 218 N.C. App. 361, 371 (2012)). Here, as the undersigned is persuaded that Plaintiff’s underlying tort claims against the individual defendants are subject to dismissal, the undersigned will also recommend that Plaintiff’s civil conspiracy claim be dismissed. C. Punitive Damages Since Plaintiff’s claims against Epley and Guy (discussed above) are subject to dismissal, her request for punitive damages likewise cannot proceed. Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 36 of 38
37 V. Recommendation For the reasons set out herein, the undersigned RESPECTFULLY RECOMMENDS that the Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. 19) be GRANTED IN PART and DENIED IN PART as follows: (1) That the following claims be allowed to proceed: a. the Title VII claim for retaliation against DHHS (Count III); b. the claim for breach of contract against DHHS (Count VIII); and c. the claim for violation of the North Carolina Constitution against DHHS (Count X); and (2) That all other claims be DISMISSED. Signed: March 3, 2026 Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 37 of 38
38 Time for Objections The parties are hereby advised that, pursuant to Title 28, United States Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within fourteen (14) days of service of same. Responses to the objections must be filed within fourteen (14) days of service of the objections. Failure to file objections to this Memorandum and Recommendation with the presiding District Judge will preclude the parties from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140 (1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 38 of 38
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