Opinion
5:20-CV-595-FL
08-25-2022
ANGELLAR NEIL, Plaintiff, v. WARREN COUNTY SCHOOLS, et al, Defendants.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendants'motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6). [DE-86]. Angella R. Neil ("Plaintiff' or "Neil") filed a response in opposition to the motion, [DE-90], a supplemental response, [DE-91], and a second supplemental response, [DE-92], and Defendants filed a reply, [DE-94]. Plaintiff subsequently filed a third, fourth, and fifth supplemental response and also filed two memoranda. [DE-95, -96, -97, -100, -101]. Plaintiff additionally filed a "Motion for Claim of Relief," [DE-89], to which Defendants responded, [DE-93], a Calendar Request Document, [DE-103], and a Motion for Expedited Scheduling Conference, [DE-106]. Defendants filed a Motion to Stay Scheduling Conference, [DE-109], to which Plaintiff responded in opposition, [DE-110]. All issues raised in the parties' briefing are ripe for decision, and the motions are referred to the undersigned for a memorandum and recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Local Civ. R. 72.3(c). For the reasons set forth below, it is recommended that the motion to dismiss, [DE-86], be allowed in part and denied in part, the motion for "claims for relief," [DE-89], be denied as moot, and the, motions for a calendar request, [DE-103], for a scheduling conference, [DE-106], and for a stay of that scheduling conference, [DE-109], be denied as premature, as scheduling matters will be addressed in due course.
Plaintiff names the following Defendants: Warren County Schools ("Board"), Katrinka R. Brewer (Principal of Miriam Boyd Elementary School), Ray Spain (Superintendent at Warren County Schools), Keedra Whitaker (Chief Human Resources Officer at Warren County Schools), Chelsea Jennings (Chief Academic Officer at Warren County Schools), Donna Robertson (Payroll and Benefits Specialist at Warren County Schools), Shakena Smith (Administrative Assistant at Miriam Boyd), Kendra Davis (Assistant Principal of Miriam Boyd), Adriene Stewart (School Counselor at Miriam Boyd), Mylicy Powell (Head Custodian at Miriam Boyd), Blair Brantley (Kindergarten Teacher at Miriam Boyd), Annette Cates (Teacher Assistant at Miriam Boyd), Mia Taylor-Terry (School Nurse at Miriam Boyd), Martina Taylor (Teacher at Miriam Boyd), and Stephanie Seward (Teacher at Miriam Boyd).
I. BACKGROUND
On November 6, 2020, Neil, proceeding pro se, filed a complaint against Katrinka Brewer, the school principal, and Warren County Schools, alleging claims of employment discrimination and retaliation based on race, age, disability, and national origin, in violation of various federal and state laws. [DE-1]. Plaintiff subsequently filed an amended complaint, [DE-3], and Defendants filed their first motion to dismiss, [DE-62]. With leave of court, Plaintiff filed a second amended complaint, [DE-82], which became the operative complaint following the district court's Order. [DE-81]. The court denied Defendants' first motion to dismiss as moot, but allowed Defendants to refile a new motion. Defendants filed the instant motion to dismiss under Fed.R.Civ.P. 12(b)(6) on January 20, 2022. [DE-86]. Plaintiff later filed a third, fourth, and fifth supplemental response and also filed two memoranda. [DE-95, -96, -97, -100, -101]. Plaintiff additionally filed a "Motion for Claim of Relief," [DE-89], to which Defendants responded, [DE-93], a Calendar Request Document, [DE-103], and a Motion for Expedited Scheduling Conference, [DE-106]. Defendants filed a Motion to Stay Scheduling Conference, [DE-109], to which Plaintiff responded in opposition, [DE-110].
"Warren County Schools" is not a proper defendant, and seems to have been inadvertently omitted from the caption of the second Amended Complaint, [DE-82]. See Defs.' Mem. [DE-87] at 1-2, n.l. The proper legal entity with capacity to be sued is the local board of education. Dodd v. Brunswick, No. 7:10-CV-101-FL, 2010 WL 3075564, at *1 (E.D. N.C. Aug. 5, 2010). Defendants state, "[w]hile this failure to identify the local school board of education as the proper defendant merits dismissal of the complaint by itself," "in light of the Plaintiff's pro se status and the substantive grounds for dismissal outlined []" the Board still responded as if properly named. Defs.' Mem. [DE-87] at 1-2, n.l (citing Dodd.).
The allegations asserted in the amended complaint are as follows. Plaintiff, who is Jamaican, was a teacher at Miriam Boyd Elementary School in Warren County during the 2018- 19 academic year. Plaintiff generally claims that she suffered discrimination and harassment from the school principal and her colleagues because she is Jamaican, and that when she complained about how she was treated, she was retaliated against and her contract was not renewed for the following academic year. Plaintiff contends that she exhausted her administrative remedies with her Charge filed on July 18, 2019 with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff states that she received a Right to Sue Letter on September 4, 2020. Am. Compl. [DE-82] at 2-4.
Plaintiff's amended complaint added numerous individual defendants, including administrators, teachers, and other employees, and provides twenty pages of factual allegations. Id. at 5-25. These allegations include, among other things, that she was told to do tasks for other classes, "rude" comments were made about Plaintiff's food, she was the only certified teacher given hallway duties instead of proctoring the North Carolina end-of-grade exam, she had no Caucasian students in her class, "heat and fume exhaust released from the unit in the classroom" resulting in a student complaining of his eyes burning but the nurse sent the student back to class, Plaintiff's classroom was often not cleaned while others were, a parent or grandparent angrily approached Plaintiff about the homework she was assigning, Katrinka Brewer yelled at Plaintiff in front of her class, Plaintiff's sick pay was being docked, and Plaintiff never received tax documents. Id. at 6, 7, 9, 11, 13, 15, 23.
Regarding her nationality-based claims, Plaintiff identifies several specific interactions. Plaintiff describes a text message from another teacher, Defendant Martina Taylor, in which Taylor said, "I just want to make sure you are comfortable staying with us ... being that we are veterans at Warren Co." and that Taylor told the Plaintiff, "We're going to send her ass back to Jamaica." Id. at 6. The second interaction involved Katrinka Brewer, the secretary, and a parent talking and laughing about homework given by Plaintiff. Id. Plaintiff described, "[t]hey laughed and talked aloud, 'I am going to send her back to Jamaica, these sight words are not coming on the Reading exam.' They laughed, then Mrs. Brewer came to me, pointed her hand in my face and yelled at me stating, 'do not send anymore [sic] Dolch or Fry Sight word lists home!'" Id. at 11.
Plaintiff contends that students first informed her that she would be fired in January 2019. Id. at 19. Plaintiff was verbally notified on May 17, 2019 by Dr. Keedra Whitaker, the Human Resource Director, that her position would be eliminated. Id. Plaintiff states she was informed that her contract would not be renewed for the 2019-20 academic year due to budget constraints. Id. at 20. Plaintiff asserts that another person not of the same national origin as Plaintiff was hired for the same position, and that the school did not fulfill the terms of Plaintiff's contract. Id. at 20-21.
Plaintiff generally concludes that because she is Jamaican she was subjected to a hostile work environment, treated less favorably, and experienced retaliation for complaining about Defendants' actions towards her. Id. at 24. Plaintiff seeks, injunctive and declaratory relief and monetary, including punitive, damages. Id. at 2, 25.
Plaintiff states she is entitled to relief based on Title VI and VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, "the North Carolina Law Against Discrimination N.C. Gen. Stat. Ann. §§ 95-240 to 95-245," 42 U.S.C. 2000e-2, "as well as other State and Federal Laws against employment discrimination." Id. at 2, 25-35. Plaintiff further lists her claims as based on "Immigration fraud, Breach of Contract and [sic] hinderance to working for the next twenty five (25 years)," "unemployment benefits, Labor, Federal tax-no W2 [sic], Personal Injury/Defamation of Character, Family and Medical Leave Act (FMLA), ADA", as well as various other federal and state statutes including the Social Security Act, and the Employee Retirement Income Security Act ("ERISA"), stalking "in violation of G.S. 14-277.3A," and defamation. Id. at 25-35. Plaintiff repeats much of this information in her subsequent responses to Defendants' motion to dismiss. See [DE-95, -96, -97, -100, -101].
II. ANALYSIS
Defendants contend that Plaintiff's claims should be dismissed for failure to state a claim upon which relief can be granted. [DE-86] at 1-2. Defendants argue that Plaintiff fails to include a "short and plain" statement of her claim for relief, fails to state a claim under Title VI or VII of the Civil Rights Act, fails to allege facts sufficient to support the other remaining claims, and that no punitive damages can be recovered against the Board as a matter of law. [DE-87] at 6-20.
A. Rule 8(a)-Short and Plain Statement of Claim for Relief
While Defendants are correct that Plaintiff's amended complaint is lengthy, often fails to tie specific Defendants to allegations, at times lacks clarity, and does not specify which claims are against which Defendants or whether Defendants are being sued in individual or official capacities, [DE-82] at 5-36, the amended complaint is sufficient to give Defendants fair notice of the claims and the grounds upon which they rest.
Plaintiff's amended complaint is forty-one pages, the factual allegations number 230 paragraphs, and the section regarding the claims for relief is ten pages. Am. Compl. [DE-82]. Although the "claims for relief do not on their face clearly connect each claim to a particular Defendant, the claims of discrimination and retaliation largely appear to be directed at the Board. Id. at 25-36. The standard used to evaluate the sufficiency of a pleading is flexible, "and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation omitted). Despite her multiple opportunities to convey her claims to the court, Plaintiff's filings are not concise-they are "not a model of clarity and [are] needlessly long." Lopez v. Ham Farms, LLC, No. 5:17-CV-329-D, 2019 WL 237386, at *2 (E.D. N.C. Jan. 15, 2019). The amended complaint, however, is sufficiently dissimilar to those in cases that the court has dismissed for failing to comply with Rule 8(a)(2). See, e.g., Lemon v. Lemon, No. 7:20-CV-13-D, 2020 WL 1472061, at *4 (E.D. N.C. Feb. 14, 2020) (finding plaintiff's complaint contained only "labels and conclusions" and that the court "is not required to sift through more than one-hundred pages of documents to ferret out the factual basis of Plaintiff's complaint.") (citation omitted), report and recommendation adopted, 2020 WL 1472326 (E.D. N.C. Mar. 19, 2020).
Rather, Plaintiff's complaint is more comparable to the one in Sewraz v. Long, where the Fourth Circuit remanded the district court's dismissal of a pro se complaint that was 265 paragraphs and thirty-three pages. 407 F App'x 718, 719 (4th Cir. 2011). The court collected cases and stated, "[generally, complaints dismissed under Rule 8(a) are substantially longer and more complex." Id. (citing U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 379 (7th Cir. 2003) (155 pages, 400 paragraphs, 99 attachments); In re Westinghouse Sec. Litig., 90 F.3d 696, 703-06 (3d Cir. 1996) (600 paragraphs, 240 pages); Vicom, Inc. v. Harbridge Merch. Svcs., 20 F.3d 771, 775-76 (7th Cir. 1994) (finding 385-paragraph, 119-page "less-than-coherent" complaint should have been dismissed); Kuehl v. FDIC, 8 F.3d 905, 906-09 (1st Cir.1993) (358 paragraphs, 43 pages); Michaelis v. Nebraska State Bar Ass'n 717 F.2d 437, 439 (8th Cir. 1983) (144 paragraphs, 98 pages); Hearns v. San Bernardino Police Dep 't, 530 F.3d 1124, 1127 (9th Cir. 2008) (finding abuse of discretion when district court dismissed 81-page complaint that included "excessively detailed factual allegations" that were nonetheless "coherent, well-organized, and stated legally viable claims")). The appellate court further noted in Sewraz that the plaintiff's claims there were easy to understand, and Defendants could determine what causes of action applied to them. Id.
The undersigned thus concludes that dismissal of Plaintiff s Complaint with prejudice for failure to comply with Rule 8(a) would not be proper. Such a dismissal "tends to undermine one of the policies of the Federal Rules of Civil Procedure: facilitating a decision on the merits rather than on pleading technicalities." North Carolina v. McGuirt, 114 Fed.Appx. 555, 559 (4th Cir. 2004). Accordingly, Defendants' motion to dismiss on Rule 8 grounds should be denied.
B. Scope of EEOC charge
Plaintiff appears to assert claims of discrimination on the basis of national origin in violation of Title VII, 42 U.S.C. § 2000e et seq. Am. Compl. [DE-82] at 25-35. Defendants argue that the scope of Plaintiff's claims raised under either Title VI or Title VII are limited to those claims of discrimination raised in her EEOC Charge. [DE-87] at 8; see EEOC Charge [DE-87-1 ]. Additionally, Defendants argue that the time frame of claims properly brought in her complaint is limited to the time frame of alleged discrimination contained in her Charge. Specifically, Defendants argue the time frame of alleged discrimination in Plaintiff's EEOC charge was November 20, 2018 until February 20, 2019, and does not include the non-renewal of her contract, as Plaintiff failed to bring her EEOC Charge as a continuing action. Id. at 10.
Claims arising under Title VI are not within EEOC enforcement purview. See U.S. Equal Emp. Opportunity Comm'n, Workplace Laws not Enforced by the EEOC, https://www.eeoc.gov/workplace-laws-not-enforcedeeoc#titlevi. (last visited Aug. 17, 2022). Nor does there appear to be a requirement that a plaintiff administratively exhaust relative to claims of discrimination under Title VI prior to filing suit. Howerton v. Bd. of Educ. of Prince George's Cnty., No. CIVA. TDC-14-0242, 2015 WL 4994536, at *7 (D. Md. Aug. 19, 2015); see Crest St. Cmty. Council, Inc. v. N.C. Dep't of Transp., 769 F.2d 1025, 1030 (4th Cir. 1985) (declining to review the district court's conclusion that Title VI does not require exhaustion of administrative remedies), rev'd on other grounds, 479 U.S. 6 (1986); c/ Cannon v. Univ. of Chicago, 441 U.S. 677, 706 n.40, 41 (1979) (finding that analogous Title IX cases do not have exhaustion requirements).
Before filing a claim in federal court under Title VII, a plaintiff is required to exhaust her administrative remedies by filing a charge of discrimination with the EEOC. Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) (citing 42 U.S.C. § 2000e-5(b), (f); 29 U.S.C. § 633a(d)); Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (citing 42 U.S.C. § 2000e-5(b), (f)(1)); see Rios v. City of Raleigh, No. 5:19-CV-00532-M, 2020 WL 5603923, at *5 (E.D. N.C. Sept. 18, 2020); Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) ("Before a Title VII plaintiff can bring a formal suit, [s]he must file an administrative charge with the Equal Employment Opportunity Commission (EEOC)."). "[T]he scope of the plaintiff's right to file a federal lawsuit is determined by the charge's contents." Gilliam v. Bertie Cnty. Bd. of Educ, No. 2:20-CV-00076-M, 2021 WL 4502166, at *5 (E.D. N.C. Sept. 30, 2021) (quoting Sydnor, 681 F.3d at 593 (4th Cir. 2012)). A plaintiff's claim fails if her "administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in [her] formal suit." Chacko, 429 F.3d at 506. But a complaint may contain claims "reasonably related" to the EEOC charge or claims that would naturally "follow from a reasonable administrative investigation." Sydnor, 681 F.3d at 594; Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) ("[C]laims raised ... [that] exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof... are procedurally barred."). This exhaustion requirement ensures notice to the employer of a discrimination claim and gives the EEOC the first opportunity to resolve employment discrimination disputes. Sydnor, 681 F.3d at 593.
"Title VII's charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction)." Fort Bend Cty., Tex. v. Davis, 139 S.Ct. 1843, 1846 (2019). Exhaustion is "mandatory in the sense that a court must enforce the rule if a party properly raises it." Griffis v. Duke Energy Progress, No. 5:19-CV-119-FL, 2019 WL 3659992, at *2 (E.D. N.C. Aug. 6, 2019) (citing Davis, 139 S. Gt. at 1843). In any subsequent lawsuit following the EEOC charge, the court "may only consider those allegations included in the EEOC charge" in order to determine whether plaintiff has exhausted her remedies. Griffis, 2019 WL 3659992, at *2 (quoting Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013)).
Plaintiff filed her EEOC Charge on July 18, 2019, against Warren County Schools complaining of discrimination that occurred during the time period of November 20, 2018 to February 20, 2019. Am. Compl. [DE-82] ¶ 213; [DE-87-1]. Plaintiff indicated in the narrative portion of her Charge and in the "check the box" section of her Charge that the basis of alleged discrimination was national origin and retaliation. Id.
Consideration of Plaintiff's EEOC Charge does not convert Defendants' motion to dismiss to a motion for summary judgment. Brown v. Instit. for Family Centered Servs., Inc, 394 F.Supp.2d 724, 729 n.2 (M.D. N.C. 2005).
Plaintiff has exhausted her administrative remedies with respect to her claims of national origin discrimination and retaliation. To the extent Plaintiff's amended complaint may be construed to assert other claims of discrimination requiring exhaustion, Plaintiff has failed to exhaust her administrative remedies and these claims should be dismissed. Am. Compl. [DE-82] at 25, 27; see Walton, 33 F4th at 165; Griffis, 2019 WL 3659992, at *2.
Plaintiff mentions the Americans with Disabilities Act in her Amended Complaint. [DE-82] at 2. However, no such claim may survive her failure to exhaust. See Sydnor, 681 F.3d at 593.
Defendants also argue that the scope of Plaintiff's amended complaint is limited to the time frame of alleged discrimination in her EEOC Charge. In particular, Defendants argue the alleged time period November 20, 2018 to February 20, 2019 in the Charge does not include the date on which Plaintiff's teaching contract was allegedly not renewed, and therefore its non-renewal may not properly be considered by the court in this action.
A "plaintiff fails to exhaust his administrative remedies where ... his administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit." Stanley v. Universal Cable Holdings, Inc., No. 4:19-CV-30-BO, 2019 WL 2980031, at *3 (E.D. N.C. July 8, 2019) (citing Chacko, 429 F.3d at 506). But "lawyers do not typically complete the administrative charges and so courts construe them liberally." Id. at 509 (citing Alvara do v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988)).
While the alleged time period of discrimination did not include the alleged date on which it is alleged Plaintiff's contract was not renewed, Plaintiff did indicate in the narrative portion of the Charge itself that she was "informed that [her] contract was not to be extended" on January 19, 2019. Based on her narrative, the court finds that the non-renewal of her contract, occurring later than the alleged time frame of the Charge, is reasonably related to an investigation of her Charge claims and may be appropriately considered by the court in her subsequent complaint. See Brown, 394 F.Supp.2d at 728 (where the plaintiff alleges the same theory of recovery but relies on different supporting facts in the subsequent complaint, the complaint is "reasonably related" to the EEOC Charge).
C. Title VI and VII Claims Against Individual Defendants
Plaintiff appears to assert claims of national origin discrimination under Title VII and race discrimination under Title VI against all Defendants. See Am. Compl. [DE-82] at 26-28. However, Plaintiff does not specify whether her discrimination claims under Title VI or VII are brought against all or some Defendants, or whether she is suing Defendants in their individual or official capacities.
Plaintiff's Title VII claims may not proceed against any of the individual defendants in their individual capacities. See Al-Deen v. Trustees of Univ. of N.C, Wilmington, 102 F.Supp.3d 758, 767 (E.D. N.C. 2015) (citing Lissau v. S Food Serv., Inc., 159 F.3d 177, 181 (4th Cir.1998)); Huggins v. N.C. Dep't of Admin., No. 5:10-CV-414-FL, 2011 WL 3917372, at *6 (E.D. N.C. Sept. 2, 2011) ("Only an 'employer' is liable under Title VII; as noted above, the statute does not permit individual liability."), aff'd sub nom., 554 F App'x 219 (4th Cir. 2014). Thus, any Title VII claims against the individual Defendants should be dismissed.
Likewise, any alleged Title VI claims against individual Defendants in their individual capacities should also be dismissed. Foster v. Michigan, 573 Fed.Appx. 377, 389-90 (4th Cir. 2014) (holding that a plaintiff may only assert Title VI claims against the entity receiving federal funding); Ricketts v. Wake Cnty. Pub. Sch. Sys., No. 5:21-CV-49-FL, 2022 WL 19710, at *4 (E.D. N.C. Jan. 3, 2022) ("because individuals are not programs or activities receiving federal financial assistance, the plain language of the statute suggests that individuals cannot be liable for Title VI violations); see Windsor v. Bd. of Educ. of Prince George's Cnty., No. CVTDC-14-2287, 2016 WL 4939294, at *9 (D. Md. Sept. 13, 2016) (citing Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352, 1356 (6th Cir. 1996) (finding that the plaintiff's Title VI claims against individual school employees failed because it was the school, not its employees, who would be the recipient of federal monies)).
The court also finds that any official capacity claims under Title VI or VII against individual Defendants must be dismissed as duplicative of any claims against the Board. See Williams v. Guilford Tech. Cmty. Coll. Bd. of Trustees, 117 F.Supp.3d 708 (M.D. N.C. 2015) (ruling that an African-American former technical community college employee's Title VII and ADEA claims against individual members of college's board of trustees, in their official capacities, were duplicative of employee's claims against board, and thus those claims were subject to dismissal) (citing Kentuclcy v. Graham, 473 U.S. 159 (1985)); Thompson v. Hanson, No. 4:13-CV-194-BR, 2014 WL 5810231, at *2 (E.D. N.C. Nov. 7, 2014) (ruling in a Title VII discrimination case that "[a] suit against a state officer in her official capacity is tantamount to a suit against the state itself."); Lee v. City of Fayetteville, No. 5:15-CV-638-FL, 2016 WL 1266597, at *2 (E.D. N.C. Mar. 30, 2016) ("[A] plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself") (citing Graham, 473 U.S. at 166); Ricketts, 2022 WL 3053762, at *6 (holding in a Title VI claim that "the real party in interest in an official-capacity suit is the governmental entity and not the named official") (citing Hafer v. Melo, 502 U.S. 21, 25 (1991); Foster, 573 Fed.Appx. at 389-90 (holding that a plaintiff may only assert Title VI claims against "the entity . . . receiving the financial assistance") (quoting Buchanan., 99 F.3d at 1357).
Here, Plaintiff has named Warren County Schools as a defendant. Thus, to the extent Title VI and VII claims against other individually named Defendants are in fact official capacity claims, it is recommended that they be dismissed as duplicative.
D. Rule 12(b)(6)-Failure to State a Claim upon which Relief can be Granted
Plaintiff's amended complaint appears to contain eleven purported claims for relief: (1) discrimination based on national origin in violation of Title VII, 42 U.S.C. § 2000e et seq.; (2) race discrimination in violation of Title VI, 42 U.S.C. § 2000d et seq.; (3) student safety, in violation of state law, the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1401, and Title IX, 20 U.S.C. § 1681, et seq.; (4) harassment/intimidation/retaliation in violation of Title VII and state law; (5) retaliation in violation of Title VII and unfair immigration-related employment practices; (6) violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.; (7) labor and health insurance coverage violations in violation of state law, Title VII, and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; (8) federal tax in violation of Title VII; (9) retirement involving the Social Security Act ("SSA") and ERISA; (10) stalking in violation of state law; and (11) defamation. Am. Compl. [DE-82] at 25-35.
Defendants argue that, even assuming Plaintiff's amended complaint complies with Rule 8(a), Plaintiff fails to state a discrimination claim under Title VI or VII, and fails to allege sufficient facts to support her remaining claims. [DE-87] at 6-20.
Pursuant to Rule 12(b)(6), a court may dismiss an action which fails to state a claim upon which relief can be granted. Fed. R. Civ. P 12(b)(6). A Rule 12(b)(6) motion tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). The court must construe all facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). In order to survive a 12(b)(6) challenge, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "Factual allegations must be enough to raise a right to relief above the speculative level . . . .'" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. "The plaintiff's allegations must 'nudge[ ] [his] claims,' Twombly, 550 U.S. at 570, beyond the realm of 'mere possibility' into 'plausibility,' Iqbal, 556 U.S. at 678-79." Acosta v. Jardon & Howard Techs., Inc., No. 4:18-CV-16-D, 2018 WL 5779506, at *1 (E.D. N.C. Nov. 2, 2018). "When evaluating a motion to dismiss, a court considers the pleadings and any materials 'attached or incorporated into the complaint'" and "may take judicial notice of public records without converting the motion to dismiss into amotion for summary judgment." Vlasaty v. Wake Cnty. Pub. Sch. Sys. Bd. of Educ, No. 5:17-CV-578-D, 2018 WL 4515877, at *3 (E.D. N.C. Sept. 20, 2018) (citations omitted).
In the present case, Plaintiff is proceeding pro se and pleadings drafted by a. pro se litigant are held to a less stringent standard than those drafted by an attorney See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
1. National Origin Discrimination in Violation of Title VII
In her first claim for relief, Plaintiff alleges that she experienced harsh treatment at Warren County Schools. Am. Compl. [DE-82] at 26. According to Plaintiff, after she complained, her "request for an [adjustment of [s]tatus was abruptly ended by Warren County Schools" and that "Defendants failed to adjust the request of the plaintiff's application to adjust immigration status to permanent residence to complete the employment contractual agreement." Id. Defendant Brewer told her to "move on," and Defendant Warren County Schools failed to reemploy Plaintiff. Id. at 26-27. Plaintiff generally appears to contend that she was discriminated against on the basis of national origin. Id. at 27. Earlier in her amended complaint, Plaintiff "alleges that Warren County Schools and the other Defendants . . . unlawfully discriminated against [me] on the basis of national origin, and further harassed and retaliated against her on the basis of national origin." Id. at 2. She "further alleges that Defendants' practices, and decisions not to renew her contract, or offer guidance in regaining employment had a disparate impact on her based on her national origin, Jamaican." Id. at 2-3.
Defendants state that they recognize that Plaintiff need not plead a prima facie case of discrimination to survive a motion to dismiss, but argue Plaintiff's factual allegations do not rise above the speculative level and fail to satisfy the elements of a cause of action. [DE-87] at 12. The only potential adverse action identified, Defendants contend, is the non-renewal of Plaintiff's contract by the Board. Id. at 13. Furthermore, Defendants argue, Plaintiff herself has alleged that the recommendation for non-renewal was made on a non-discriminatory basis due to budget constraints, and Plaintiff has not shown a connection between any adverse action or non-renewal and Plaintiff's national origin, and these "naked allegations of a causal connection," are insufficient. Id.
"Absent direct evidence, the elements of a prima facie case of discrimination under VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class." Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)), aff'd, 566 U.S. 30 (2012). The complaint must plausibly allege that the plaintiff was discharged because of the protected characteristic. Id. "[T]he motive to discriminate [may be] one of the employer's motives, even if the employer also had other, lawful motives for the decision." Britt v. Baker, No. 5:21-CV-342-BO, 2022 WL 2961542, at *2 (E.D. N.C. July 26, 2022) (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013)). "Although an employee need not prove a prima facie case of discrimination to survive a motion to dismiss, he must state a plausible right to relief." Ofoche v. Apogee Med. Grp., Va., EC, 815 Fed.Appx. 690, 692 (4th Cir. 2020) (citing Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017)); see also 42 U.S.C. § 2000e-2(a)(1) (providing that it is unlawful to "discharge any individual... because of such individual's race, color, religion, sex, or national origin.").
Here, Plaintiff has alleged facts that she is a member of a protected class based on her national origin of Jamaica. [DE-82] at 5,26. Where Plaintiff alleges she was a certified elementary school teacher and alleges no deficient performances, Plaintiff generally appears to allege that she had satisfactory job performance. She likewise alleges an adverse employment action, that her contract was not renewed, and that her pay was docked. She alleges different treatment from similarly situated employees outside the protected class, that "another person was hired in the same position at Warren County Schools for the contractual years 2019-2020 and 2020-2021," and that "the new hire did not share the same protected class as the plaintiff, national origin." [DE-82] at 21.
While not a model of clarity, liberally construed, Plaintiff's factual allegations nudge her claim from conceivable to plausible, that she "was discharged because of [her] protected characteristic." Coleman, 626 F.3d at 190 (emphasis added). Defendants argue Plaintiff herself has alleged a non-discriminatory reason for her discharge as that of budgetary reasoning. Rather, Plaintiff alleges she was informed the proffered reason her contract was not renewed was budgetary. Plaintiff has alleged she was dismissed, and the inference is the offered reason was pretextual. [DE-82] at 23. Plaintiff has alleged statements explicitly involving her national origin, different treatment from those teachers not of her national origin, different treatment by the principal, and finally that the school allegedly hired a replacement for her position that was not of the same national origin. Plaintiff's allegations, while sometimes lacking in clarity and context, are not completely conclusory, and do not completely rely on speculation to fill in the gaps.
In McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., the Fourth Circuit held that "[w]hile [the plaintiff] did allege that the Highway Administration failed to hire [the plaintiff], she did not allege facts sufficient to claim that the reason it failed to hire her was because of her race or sex." 780 F.3d 582, 585 (4th Cir. 2015). The court stated that while the plaintiff "repeatedly alleged that the Highway Administration did not select her because of the relevant decisionmakers' bias against African American women", "'naked' allegations-a 'formulaic recitation' of the necessary elements-'are no more than conclusions' and therefore do not suffice." Id. (quoting Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555, 557). The court further stated, "[t]he allegation that the Highway Administration did not hire [the plaintiff] because its decision makers were biased is simply too conclusory," and "[o]nly speculation can fill the gaps in her complaint. Id. at 586. Similarly, in Liu v. Eaton Corp., the court dismissed Plaintiff's national origin discrimination claim where the plaintiff did not allege facts permitting an inference that he was discharged because he was an American. That the plaintiff's position was allegedly filled by a foreign worker was not sufficient to demonstrate his discharge was based on nationality. No. 5:20-CV-255-FL, 2021 WL 1736892, at *3 (E.D. N.C. May 3, 2021).
In Johnson v. Novant Health Brunswick Med. Ctr, the court stated that "Plaintiff alleges that as a Black/African-American secretary she was treated differently from White secretaries," and "[i]n support of her claim, Plaintiff has provided additional facts regarding alleged events, dates, and individuals involved," thus liberally construed, her claims were not completely factually or legally baseless. No. 7:19-CV-155-H, 2020 WL 5792463, at *2 (E.D. N.C. Sept. 10, 2020), report and recommendation adopted, 2020 WL 5775143 (E.D. N.C. Sept. 28, 2020); see Cennington v. Wormuth, No. 5:21-CV-100-BO, 2022 WL 2898913, at *3 (E.D. N.C. July 21, 2022) (finding that plaintiff failed to state a Title VII racial discrimination claim where the plaintiff did not provide specific facts or examples of harassment or reprisal).
Similar to Johnson but unlike McCleary-Evans or Liu, Plaintiff's allegations are not completely baseless, though sometimes confusing or out of context. Plaintiff does not simply allege that the Board failed to renew her contract because she is Jamaican-she provides some specific facts explicitly involving national origin that could allow discrimination to be inferred- (1) what presumably was a text message, from Martina Taylor (who appears to be a fellow teacher), apparently sent to Plaintiff, stating, "[w]e're going to send her ass back to Jamaica," and (2) Katrinka Brewer (the principal), the secretary, and an unidentified parent talking amongst themselves where one of them stated, "I am going to send her back to Jamaica, these sight words are not coming on the Reading exam." [DE-82] at 6,11. Plaintiff also alleges that in January 2019 students told Plaintiff she would be fired months before to receiving any information from the Office of the superintendent, and that the principal had told her in February 2019 that "we're not going to fire you, you're just not a good fit here and this school is not a good fit for you." Id. at 12, 19-20.
Further, in Fulford v. Alligator River Farms, LLC, the court held that plaintiffs had sufficiently alleged national origin discrimination claims where "Mexican workers were allegedly allowed to work in teams, speak to each other, start the work day later, and use tools, while [American] plaintiffs were not." 858 F.Supp.2d 550, 556 (E.D. N.C. 2012). Here, Plaintiff has similarly alleged different treatment than other teachers. Among other things, she alleges that she was exempted from training that peers received; that she was the only certified teacher given hallway duties instead of proctoring the North Carolina end-of-grade exam, but some teacher assistants were allowed to be proctors; that she was the only certified teacher exempted from weekly lesson plan meetings but later realized that all other American teachers were meeting weekly; and that Plaintiff's classroom was often not cleaned while others were. Am. Compl. [DE-82] at 7, 8, 9, 11, 12, 15. She also alleges that the principal, Katrinka Brewer, told Plaintiff that she was not a good fit for the school, and also yelled at Plaintiff in front of her class. Id. at 8, 15.
In sum, while not a model of clarity, Plaintiff has plausibly alleged membership in a protected class, satisfactory job performance, adverse employment action, disparate treatment from similarly-situated employees outside her protected class, and that she was discharged because o/her protected characteristic. Accordingly, it is recommended that Defendants' motion to dismiss for failure to state a claim for discrimination on the basis of national origin be denied.
2. Race Discrimination in Violation of Title VI
Plaintiff appears to allege a purported claim of race discrimination under Title VI. Am. Compl. [DE-82] at 27. In particular, Plaintiff alleges "actions of discrimination by not placing any [C]aucasian students in the plaintiff's class." Id.
Title VI was designed to prohibit discrimination by organizations receiving federal funding. See 42 U.S.C. § 2000d. Specifically, the statute provides that: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Mitchell v. North Carolina Div. of Emp. Sec, 76 F.Supp.3d 620, 625 (E.D. N.C. 2014) (quoting 42 U.S.C. § 2000d), aff'd, 599 F App'x 517 (4th Cir. 2015). While the Supreme Court has determined that an implied private right of action exists under Title VI, see Cannon, 441 U.S. at 702-03, that right is limited to suits against recipients of federal funds. See Jersey Heights Neighborhood Ass'n v. Glendenning, 174 F.3d 180,190-92 (4th Cir. 1999). Causes of action for discrimination under Title VI are appropriately analyzed under the elements of a Title VII claim. Jane v. Bowman Gray Sch. of Med. N. Carolina Baptist Hosp., 211 F.Supp.2d 678 (M.D. N.C. 2002); Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003) (holding that a Title VI retaliation claim is analyzed under Title VII framework). Title VI prohibits only intentional discrimination, not "disparate impact" practices. Peters, 327 F.3d at 320.
To survive a motion to dismiss under Title VI, a plaintiff must plead sufficient facts supporting (1) the defendant is a recipient of federal financial assistance; and (2) the defendant intentionally discriminated against plaintiff on the basis of race, color, or national origin. Alexander v. Sandoval, 532 U.S. 275, 280 (2001); see Ratliffv. Wake Forest Baptist Med. Ctr, No. 1:13CV991, 2014 WL 197809, at *2 (M.D. N.C. Jan. 14, 2014) ("Title VI affords a cause of action to a patient who alleges racial discrimination in the care given by a medical facility that accepts any federal funds.") (citing United States v. Baylor Univ. Med. Ctr, 736 F.2d 1039, 1044-46 (5th Cir. 1984)); cf. Dorer v. Quest Diagnostics Inc., 20 F.Supp.2d 898, 899-900 (D. Md. 1998) (finding that a hospital's acceptance of Medicare or Medicaid constitutes a "program or activity receiving Federal financial assistance" under the Rehabilitation Act, 29 U.S.C. § 794); Radcliff v. Landau, 883 F.2d 1481, 1483 (9th Cir. 1989) (finding that a school's acceptance of a student's federal financial aid subjects the entire school to Title VI coverage).
Any Title VI claim fails because Plaintiff does not appear to have alleged Defendants received federal funding. See Alexander, 532 U.S. at 280. Next, Plaintiff's claim appears to relate to the placement of students in her classroom rather than racially discriminatory treatment of her. Further, reading Plaintiff's claims liberally, she fails to allege a racial discharge claim where Plaintiff fails to allege the race of any teacher allegedly hired for her old position. Accordingly, it is recommended that Defendants' motion to dismiss for failure to state a claim for any purported race discrimination claims be allowed.
3. Harassment/Intimidation/Retaliation
Plaintiff alleges in her fourth claim for relief, "Harassment/Intimidation/Retaliation," that she "made informal and formal complaints to Defendants, but no one intervened," that she "suffered life changing discriminatory, [sic] harassment, and retaliatory actions on her professional career," Defendants failed to allow the plaintiff to carry out her duties and responsibilities in a safe and orderly environment," and Plaintiff's "academic goal was impeded as a result of the above experiences." Am. Compl. [DE-82] at 29.
Defendants contend that it is not clear from the face of the amended complaint that Plaintiff seeks to allege a claim of hostile work environment on the basis of national origin. Even assuming so, they argue, Plaintiff's allegations cannot support such a claim. [DE-87] at 14. Defendants argue that there has not been severe or pervasive harassment alleged. Id. at 15. Defendants frame Plaintiff's allegations as "a litany of interpersonal conflicts with her colleagues," and "the only allegations based on Plaintiffs' [sic] national origin are an undated alleged comment by a fellow teacher, Am. Compl. ¶ 9, and an undated comment by an unidentified individual, Am. Compl. ¶ 70." Id. These isolated offensive remarks by a co-worker do not amount to severe and pervasive harassment, they state. Id.
"In order to successfully state a claim for hostile work environment, plaintiff must allege 'that the offending conduct (1) was unwelcome, (2) was because of [her national origin], (3) was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment, and (4) was imputable to [her] employer.'" Berry v. Southern States Coop., Inc., No. 5:17-CV-635-FL, 2018 WL4365499, at *2 (E.D. N.C. Sept. 13, 2018) (quoting Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011)); see also Fulford v. Alligator River Farms, LLC, 858 F.Supp.2d 550, 559 (E.D. N.C. 2012) (citing Pueschel v. Peters, 577 F.3d 558, 564-65 (4th Cir. 2009)).
"To determine whether conduct is severe or pervasive, the court considers a variety of factors, including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Okoli v. City of Bait., 648 F.3d 216, 220 (4th Cir. 2011)). The number of occurrences is not dispositive, for "[sufficiently severe conduct can constitute harassment, even if the conduct occurs in only one instance." Id. (citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280-81 (4th Cir. 2015)). "However, '[activities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.'" Id. (quoting E.E.O.C. v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010)). In considering severity and pervasiveness, "the court examines the allegations both subjectively and objectively." Coleman v. Altec, Inc., No. 5:16-CV-954-D, 2018 WL 4289610, at *3 (E.D. N.C. Sept. 7, 2018) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). "First, the employee must subjectively consider the conduct to be sufficiently severe or pervasive as to alter his conditions of employment." Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)). "Second, a court views the conduct from the perspective of a reasonable person in the employee's position to determine whether it is objectively severe or pervasive." Id. (citing Breeden, 532 U.S. at 271). To be actionable, "discriminatory intimidation, ridicule, and insult," based on the protected characteristic, must permeate the work environment in a manner "sufficiently severe or pervasive to alter the conditions" of the plaintiff's employment and to "create an abusive working environment." Harris, 510 U.S. at 21 (quotations omitted).
Plaintiff alleges only two specific interactions in the facts section of the amended complaint explicitly regarding nationality-(1) what presumably was a text message, from Martina Taylor (who appears to be a fellow teacher), apparently sent to Plaintiff, stating, "[w]e're going to send her ass back to Jamaica," and (2) Katrinka Brewer, the secretary, and an unidentified parent talking amongst themselves where one of them stated, "I am going to send her back to Jamaica, these sight words are not coming on the Reading exam." [DE-82] at 6, 11. Plaintiff does not include much context to these interactions and these do not rise to the level of severe or pervasive harassment based on national origin. Even if Plaintiff subjectively found this to be severe and pervasive, objectively, "simple teasing, sporadic rude language, offhand comments, jokes related to a protected status, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Carter v. Bladen Cnty. Bd. of Educ., No. 7:19-CV-188-D, 2020 WL 12811242 at *6 (E.D. N.C. Aug. 31, 2020) (ruling that the severity of racial epithet "HNIC" and other allegations were sufficient for severe or pervasive racial harassment).
Plaintiff's allegations are vague, confusing, or lack context. Without more detail, Plaintiff has failed to establish a claim for hostile work environment. See Bazemore v. Best Buy, 957 F.3d 195,200 (4th Cir. 2020) (affirming the district court's ruling that general allegations of racial slurs, without detail, context, date or circumstances, are insufficient to establish a hostile work environment); Williams v. Pitt Cnty. Bd. of Educ, No. 4:18-CV-32-BR, 2020 WL 1503463, at *5 (E.D. N.C. Feb. 18, 2020) ("Williams's general allegations that he and other African-American employees were called 'boys' and treated more harshly than white or younger employees, without more, lack the necessary context to evaluate whether the conduct was sufficiently severe or pervasive to state a hostile work environment claim."), report and recommendation adopted (E.D. N.C. Mar. 23, 2020) (citing Savage v. Maryland, 896 F.3d 260, 277 (4th Cir. 2018) (recognizing that context matters in determining whether the use of a racial epithet has created a racially hostile work environment)). Accordingly, it is recommended that Defendants' motion to dismiss for failure to state a claim for hostile work environment be allowed.
4. Retaliation in Violation of Title VII
Plaintiff alleges in her fifth claim for relief, that Defendants retaliated against her because of her national origin. Am. Compl. [DE-82] at 30. She states, "[t]hrough retaliation, Plaintiff's request to Adjust Status to Green Card was denied by Warren County Schools after speaking up about the hostile work environment." Id.
Defendants argue that Plaintiff has not sufficiently alleged a Title VII retaliation claim. [DE-87] at 16. According to Defendants, Plaintiff has failed to allege that she complained to the Board about conduct based on her national origin. The only complaints alleged were that Plaintiff was not getting along with her coworkers, Defendants contend, with little to no facts regarding what information she included in any complaints to district administrators. Id. Defendants argue that Plaintiff's assertions are conclusory.
The elements of a prima facie retaliation claim under Title VII are: "(1) engagement in a protected activity; (2) adverse employment action; and, (3) a causal link between the protected activity and the employment action." Harmon v. Cumberland Cnty. Bd. of Educ, 186 F.Supp.3d 500, 506 (E.D. N.C. ) (quoting Coleman, 626 F.3d at 190), aff'd, 669 Fed.Appx. 174 (4th Cir. 2016). An adverse action is one that "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). While a Title VII plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
In her facts section, Plaintiff generally alleges that she complained to supervisors and that later her contract was not renewed. Plaintiff's allegations do not show a sufficient causal link between any protected activity and the non-renewal of her contract. Plaintiff generally states that she "was treated less favorably and experienced a series of retaliation for complaining about the Defendants' actions towards her." Am. Compl. [DE-82] at 24. However, Plaintiff generally alleges she complained about how she was treated, but does not specifically describe the nature or object of her complaints. She states that "[i]n and around February 2019 the Plaintiff reported some of her discriminatory experiences to Chelsea Jennings, a supervisor, and asked her 'Please tell them to stop treating me this way'" Id. at 20. Plaintiff then states that around April 2019, she "shared her experiences with Dr. Keedra Whitaker the Human Resource Director and asked for intervention" and that Whitaker "told the Plaintiff there is nothing she can do." Id. She further does not provide a causal connection between the Board's contract non-renewal decision and any complaints that she made.
Plaintiff's general allegations do not state a viable retaliation claim under Title VII. Accordingly, it is recommended that Defendants' motion to dismiss for failure to state a claim for retaliation under Title VII be allowed.
5. Remaining Purported Federal Claims
Plaintiff includes claims under various other listed federal statutes. Plaintiff does not appear to allege the requisite elements of a cause of action or allege sufficient facts to support any of these claims.
a. FLSA
Plaintiff alleges a "contract" claim for relief in violation of Title VII and the FLSA. Am. Compl. [DE-82] at 31. She assigns no specific behavior of any Defendant to plausible allege a violation of the FLSA. Id. Instead, in a general fashion, she alleges that "[a]s a direct result of these actions of discrimination, Plaintiffs [sic] have sustained, [sic] financial losses and emotional injuries, resulting in damages in an amount to be proved at trial." Id.
The FLSA makes it unlawful for an employer "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding." Walsh v. Lalaja, Inc., 565 F.Supp.3d 766, 770-71 (E.D. N.C. 2021) (citing 29 U.S.C. § 215(a)(3)).
It is unclear whether Plaintiff attempts to make an FLSA retaliation claim, but Plaintiff does not appear to allege the requisite elements of a cause of action or allege sufficient facts to support any FLSA claims. "A plaintiff asserting a prima facie claim of retaliation under the FLSA must show that (1) he engaged in an activity protected by the FLSA; (2) he suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection exists between the employee's activity and the employer's adverse action." Id. at 771 (citing Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008)). "An adverse action is one that could well dissuade a reasonable worker from making or supporting a charge of discrimination." Darveau, 515 F.3d at 343. It does not include "petty slights or minor annoyances that often take place at work and that all employees experience." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Here, in her facts section, Plaintiff has alleged that her contract was not renewed, which could constitute an adverse action. Plaintiff's EEOC charge would not be protected activity as it was filed in July 2019, after her recommendation for non-renewal. As noted above, Plaintiff does broadly allege that she "was treated less favorably and experienced a series of retaliation for complaining about the Defendants' actions towards her." [DE-82] at 24. She states that "[i]n and around February 2019 the Plaintiff reported some of her discriminatory experiences to Chelsea Jennings, a supervisor, and asked her 'Please tell them to stop treating me this way'" Id. at 20. Plaintiff then states that around April 2019, she "shared her experiences with Dr. Keedra Whitaker the Human Resource Director and asked for intervention" and that Whitaker "told the Plaintiff there is nothing she can do." Id. Plaintiff generally alleges she complained about how she was treated, but does not specifically describe what she complained about. She further does not provide a causal connection between the contract non-renewal and any complaints that she made. Accordingly, it is recommended that any FLSA claims be dismissed.
b. FMLA
Plaintiff makes a claim for "Labor/Heath Coverage" in violation of Title VII and the FMLA. Am. Compl. [DE-82] at 32. In support of this claim for relief, Plaintiff alleges her "salary was deducted, as an immigrant who sought basic health care." Id. Plaintiff alleges she experienced "physical, psychological, financial and reputational restraint and harm while seeking medical assistance," and that she "seeks compensation for injuries sustained as a result of a lack of medical coverage in the contractual agreement." Id. According to Plaintiff she was "hindered from permanently working and receiving medical care". Id. She asks the court to permanent enjoin Defendants from "participating in docking money from [her] salary for using earned sick leave." Id.
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." 29 U.S.C. § 2615(a)(1). To state a claim for interference with an FMLA benefit, a plaintiff must show that "(1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm." Adams v. Anne Arundel Cnty. Pub. Sck, 789 F.3d 422, 427 (4th Cir. 2015). Benefits under the FMLA include "a total of 12 workweeks of leave during any 12-month period ... due to a serious health condition that makes the employee unable to perform the functions of [her] position," 29 U.S.C. § 2612(a)(1)(C), and upon the employee's return from FMLA leave, "to be restored by the employer to the position of employment held by the employee when the leave commenced; or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment," id. § 2614(a)(1).
The FMLA also "contains proscriptive provisions that protect employees from discrimination or retaliation for exercising their substantive rights under the FMLA." Yashenko v. Hurrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006) (citation omitted). "Known as 'retaliation' or 'discrimination' claims, causes of action alleging violations of these proscriptive rights arise under 29 U.S.C.A. § 2615(a)(2), which states that '[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.'" Id. "To succeed on a claim of retaliation, a plaintiff must show 'that she engaged in protected activity, that the employer took adverse action against [her], and that the adverse action was causally connected to the plaintiff's protected activity'" Wilson v. Nash Edgecombe Econ. Dev., Inc., No. 5:19-CV-322-FL, 2020 WL 5594538, at *17 (E.D. N.C. Sept. 18, 2020) (quoting Yashenko, 446 F.3d at 551).
Here, Plaintiff does not allege that she requested FMLA leave, or that such leave was refused, nor does she allege a serious health condition. As alleged in the amended complaint, it is also unclear that Plaintiff had been employed with Warren County Schools for at least a year, even if she had requested FMLA leave. See Moticka v. Week Closure Sys., 183 Fed.Appx. 343, 347 (4th Cir. 2006) ("An employee is deemed 'eligible' for FMLA leave, where she has worked for the employer for at least twelve months and for at least 1,250 hours of the year immediately preceding the requested leave.") (citing 29 U.S.C. § 2611(2)(A)). "[A] plaintiff who was not eligible to take FMLA leave cannot maintain a FMLA retaliation claim because he cannot establish the first element of the prima facie claim for FMLA retaliation-that he engaged in 'protected activity.'" Jacobs v. United Parcel Serv., Inc., No. 3:15-CV-381, 2016 WL 8192993, at *2 (W.D. N.C. Dec. 5, 2016) (citing Wemmitt-Pauk v. Beech Mountain Club, 140 F.Supp.2d 571, 581 (W.D. N.C. 2001)), aff'd, 688 Fed.Appx. 229 (4th Cir. 2017). Accordingly, it is recommended that any FLMA claims be dismissed.
c. Federal Tax in Violation of Title VII
Plaintiff generally alleges that state and federal law prohibit tax employment practices that discriminate against persons on the basis of their national origin and that she experienced "Federal tax allegations." Am. Compl. [DE-82] at 33. Plaintiff requests a letter "requesting an exemption of punishment for not being able to file for taxes, as she had no W-2 form and other related documents which she should have received to file her annual taxes." Id.
Plaintiff appears to allege in a conclusory manner that she experienced federal tax law violations. The district courts are not required "to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278. Accordingly, any purported claims under federal tax law should be dismissed.
d. Social Security Act and ERISA
Plaintiff lists a claim for "retirement" and cites the "Social Security Act [42 U.S.C. 401 et seq" and "Employee Retirement Income Security Act, 29 U.S.C. § 1131." Am. Compl. [DE-82] at 33. Plaintiff alleges that "[u]pon receiving a dismissal letter [] [she] was offered no retirement package." Id.
Social Security benefits are applied for through the Social Security Administration. "Social security benefits are noncontractual benefits under a social welfare system []." Davis v. Bowen, 825 F.2d 799, 800 (4th Cir. 1987) (citing Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (I960)).
The Supreme Court explained the scope and purpose of ERISA as follows:
ERISA was enacted to protect "the interests of participants in employee benefit plans and their beneficiaries" by "establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefits plans," and providing remedies for violations of such standards. 29 U.S.C. § 1001(b). ERISA not only covers "retirement" plans, as the name implies, but also "extends to [plans] that provide 'medical, surgical, or hospital care or benefits' for plan participants or beneficiaries." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650-51 (1995) (quoting 29 U.S.C. § 1002(1)).
Congress intended ERISA to provide "a uniform regulatory regime over employee benefit plans." Aetna Health Inc, v. Davila, 542 U.S. 200, 208 (2004).Southern v. Wakemed, No. 5:15-CV-35-FL, 2015 WL 13714472, at *4 (E.D. N.C. Apr. 21, 2015).
- Here, Plaintiff simply alleges in a conclusory manner that she was entitled to a retirement package and did not receive one. She provides no other factual allegations to support these claims. Again, the district courts are not required "to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278. Accordingly, any purported claims under ERISA or regarding social security should be dismissed.
e. Claim for "Students!'] Safety"
Plaintiff cites IDEA and Title IX of Education Amendments of 1972 in a purported claim for "students [sic] safety." Am. Compl. [DE-82] at 28. Defendants argue that Plaintiff's claim for student safety is vague, there is no cause of action and even if so, no facts alleged support such a claim.
The IDEA was enacted in part "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." Wake Cnty. Bd. of Educ. v. S.K. by & through R.K., 541 F.Supp.3d 652, 659 (E.D. N.C. 2021) (quoting 20 U.S.C. § 1400(d)(1)(A)). To further this end, the IDEA offers federal funds to states in exchange for a commitment to furnish a "free appropriate public education" ("FAPE") to all children with certain physical or intellectual disabilities. 20 U.S.C. § 1401(3)(A)(i). The IDEA establishes that any disputes involving the FAPE or IEP (Individualized Education Programs) are to be resolved through state administrative procedures. 20 U.S.C. § 1415. A person wishing to file suit under the IDEA in North Carolina must first file a petition with the Office of Administrative Hearings ("OAH"). A.H. by & through H.C. v. Craven Cnty. Bd. of Educ, No. 4:16-CV-282-BO, 2017 WL 3493612, at *2 (E.D. N.C. Aug. 14, 2017).
Title IX provides: "No person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).
Plaintiff's claims do not fall under Title IX or IDEA. Here, while Plaintiff has alleged interactions regarding confusion whether a student would board a bus, as well as a single instance of heat, fumes, and exhaust in her classroom, Plaintiff fails to allege any facts regarding disabled children being denied education or related services, nor does she allege any harm that was caused. Plaintiff does not allege that she exhausted her administrative remedies for any claim arising under the IDEA. See A.H by & through H.C., 2017 WL 3493612, at *2. Plaintiff fails to allege discrimination on the basis of sex, and has failed to allege any facts regarding a program receiving federal financial assistance.
Further, the Plaintiff cannot bring claims on behalf of others. To the extent Plaintiff seeks to bring claims on behalf of her students, Plaintiff lacks standing to do so because she proceeds in this matter unrepresented by counsel and can only assert claims on her own behalf. See Myers v. Louden Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005) ("The right to litigate for oneself, however, does not create a coordinate right to litigate for others.") (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)); R.W. v. Wake Cnty. Pub. Sck, No. 5:07-CV-136-F3, 2010 WL 3452376, at *5 (E.D. N.C. Sept. 1, 2010) (ruling that pro se parent did not have standing to sue under IDEA on behalf of her son in federal court) (citing Myers, 418 F.3d at 400); M.D. v. School Bd. of City of Richmond, 560 Fed.Appx. 199, 200 (4th Cir. 2014) (affirming that non-attorney parent was not authorized to litigate pro se the claims of her minor child alleging violations of Titles VI and IX) (citing Myers, 418 F.3d at 401). Accordingly, it is recommended that any purported claims under the IDEA or Title IX or "students' safety" should be dismissed.
f. Equal Pay Act of 1963 ("EPA")
Plaintiff lists the EPA in her amended complaint. [DE-82] at 25. The EPA prohibits an employer from:
Discriminat[ing] ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex....Spencer v. Virginia State Univ., 919 F.3d 199, 203 (4th Cir. 2019), as amended (Mar. 26, 2019) (citing 29 U.S.C. § 206(d)(1)). To prove a violation of the Act, a plaintiff must make an initial (i.e., prima facie) showing of three elements: (1) the employer paid higher wages to an employee of the opposite sex who (2) performed equal work on jobs requiring equal skill, effort, and responsibility (3) under similar working conditions. Id. (citing EEOC v. Maryland Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018)).
Plaintiff provides no factual allegations to support an EPA claim, and she does not include the EPA as the basis of any particular claim. The district courts are not required "to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278. Accordingly, any purported claims under the EPA should be dismissed.
E. Remaining State Law Claims
1. Students['] Safety
Plaintiff also cites to" N.C. Gen. Stat. Ann.§§ 95-126 to 95-160," which is the Occupational Safety and Health Act of North Carolina ("OSHANC") (in addition to IDEA and Title IX) in a purported claim for "students [sic] safety." Am. Compl. [DE-82] at 28. Plaintiff alleges in her claim for "students['] safety, that Plaintiffs [sic] made informal and formal complaints to Defendants, but no one intervened." [DE-82] at 28. In her factual allegations, she describes interactions regarding confusion whether a student would board the bus, as well as an instance of heat, fumes, and exhaust in her classroom. Id. at 9-10,22. The court construes this as a retaliation claim.
OSHANC expressly states its legislative purpose as ensuring "safe and healthful working conditions" and "to preserve our human resources" through various means, including encouraging businesses and employees to reduce safety and health hazards, providing safety standards and training, and enforcing safer practices. Chandler v. W.B. Moore Co. of Charlotte, Inc., No. 3:18-CV-149, 2018 WL 3242689, at *2 (W.D. N.C. July 3, 2018) (citing N.C. Gen. Stat. § 95-126).
N.C. Gen. Stat. § 95-126, et seq., "requires that every employee be provided a work environment which is free from recognized hazards that cause or are likely to cause death or serious injury or serious physical harm to employees." Crespo v. Delta Apparel, Inc., No. CIV. 5:07CV65-V, 2008 WL 2986279, at *5 (W.D. N.C. July 31, 2008). OSHANC also prohibits retaliatory discharge against employees who report workplace safety violations or concerns. Laws v. Gaston Cnty., No. 320CV000398RJCDSC, 2021 WL 7185242, at *14 (W.D. N.C. Feb. 8, 2021), report and recommendation adopted in part sub nom. 2022 WL 18726 (W.D. N.C. Jan. 3, 2022) (citing N.C. Gen. Stat. §§ 95-126 et seq., 95-130 et seq.; Brooks v. Stroh Brewery Co., 231 382 S.E.2d 874, 878 (N.C. Ct. App. 1989)).
However, Plaintiff has failed to allege sufficient facts to state a claim of retaliation as prohibited by OSHANC. Plaintiff generally states in her claim that she made informal and formal complaints but no one intervened. Am. Compl. [DE-82] at 28. As with other complaints she allegedly made regarding discrimination, Plaintiff does not describe what she complained about or who she complained to. Plaintiff never states, for example, that her contract was not renewed in response to any complaints regarding health and safety, nor does she allege she filed any OSHANC complaint. She has not plausibly alleged a causal connection from her contract nonrenewal to any alleged health and safety complaints. See Laws, 2021 WL 7185242, at *14. Accordingly, it is recommended that any purported claims for students' safety under N.C. Gen. Stat. § 95-126, et seq. be dismissed.
2. Stalking
Plaintiff alleges a purported claim of stalking in violation of "G.S. 14-277.3A." Am. Compl. [DE-82] at 34. Plaintiff states, "[d]ue to numerous forms of harassment, discrimination, and retaliatory actions by the Defendants, the plaintiff's prior quietlifestyle [sic] and identity is now exposed in seeking equal and fair treatment." Id. She states she requests safety and the right to be free from strangers seeking her whereabouts in a private social media group. Id.
N.C. Gen. Stat. § 14-277.3 A is a state criminal statute prohibiting stalking, and provides as follows:
A defendant is guilty of stalking if the defendant willfully on more than one occasion harasses another person without legal purpose or willfully engages in a course of conduct directed at a specific person without legal purpose and the defendant knows or should know that the harassment or the course of conduct
would cause a reasonable person to do any of the following: (1) [f]ear for the person's safety or the safety of the person's immediate family or close personal associates; (2) [s]uffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.N.C. Gen. Stat. Ann. § 14-277.3A. However, N.C. Gen. Stat. § 14-277.3Ais a criminal statute and does not provide a civil cause of action. Thus, it is recommended that any purported claims under N.C. Gen. Stat. § 14-277.3 A be dismissed.
3. Defamation of Character
Plaintiff alleges in her claim for defamation that Defendants "libel and slander the plaintiff, verbally and written." Am. Compl. [DE-82] at 34-35. She states that she remains respectful to all Defendants "even though these harmful words ruined her reputation," that she experiences emotional pain, shame and suffering, and that she "struggles to understand why all these undefining words were used in a malicious manner to destroy my career and character of moral standards and integrity." Id. Plaintiff states in her factual allegations that she emailed Katrinka Brewer, and then emailed Superintendent Dr. Spain and Dr. Keedra Whitaker asking that Brewer stop intimidating her. Id. at 16. Plaintiff states, "Katrinka Brewer further replied to the email and accused the plaintiff of being paranoid of people in the building, not acting in a professional manner, and not doing her job." Id. Plaintiff also alleges that "Katrinka Brewer defamed the plaintiff by calling her paranoid, incompetent, and that she does not know how to teach the curriculum," and that "Katrinka Brewer confronted the plaintiff and called her cynical, paranoid, and that another teacher felt unsafe around her." Id. Defendants argue that Plaintiff has not sufficiently alleged that any alleged statements were false, that any alleged statements were communicated to a third party, and finally that the alleged statements were personal opinion, not facts. Defs.' Mem. [DE-87] at 19.
Under North Carolina law, the elements of a defamation claim are that "the defendant made false, defamatory statements of or concerning the plaintiff, which were published to a third person, causing injury to the plaintiffs reputation." Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2018 WL 11411207, at *6 (E.D. N.C. Oct. 29,2018), aff'd, 2 F.4th 276 (4th Cir. 2021) (citing Griffin v. Holden, 180 N.C.App. 129, 133, 636 S.E.2d 298, 302 (2006)); see Reyes v. Cioccia, No. 5:21-CV-451-BO, 2022 WL 1274392, at *2 (E.D. N.C. Apr. 28,2022) (citing Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 29 (2002)); Swinney v. Frontier Airlines, Inc., No. 1:19-CV-808, 2020 WL 3868831, at *5 (M.D. N.C. July 9, 2020) ("In order to state a claim for defamation, a plaintiff must allege that the defendant made a false statement of or concerning a plaintiff; communicated the statement to some person or persons other than the plaintiff; and that the plaintiff was damaged.") (quoting Moore v. Cox, 341 F.Supp.2d 570, 574 (M.D. N.C. 2004)).
A claim for defamation may be asserted by alleging either of two torts: libel or slander. Cummings v. Lumbee Tribe of N.C, 590 F.Supp.2d 769, 774 (E.D. N.C. 2008) (citing Boyce & Isley, PLLC, 153 N.C.App. at 29). Libel is any false written publication to a third party; whereas, slander is a false oral communication which is published to a third party. Id. (citing Barker v. Kimberly-Clark Corp., 136 N.C.App. 455, 459, 524 S.E.2d 821 (N.C. App. 2000)).
To establish a claim for defamation per se, a plaintiff must plead: "(1) defendant spoke or published base or defamatory words which tended to prejudice him in his reputation, office, trade, business or means of livelihood or hold him up to disgrace, ridicule or contempt; (2) the statement was false; and (3) the statement was published or communicated to and understood by a third person." Id. (quoting Friel v. Angell Care, Inc., 113 N.C.App. 505, 509 (N.C. App. 1994)). For defamation per se, malice and damages are presumed as a matter of law. Id. (citing Donovan v. Fiumara, 114 N.C.App. 524, 527 (N.C. App. 1994)).
When the defamatory character of the words does not appear on their face, but only in connection with extrinsic, explanatory facts, they are only actionable as . . . [defamation] per quod." Id. (citing Eli Research, Inc. v. United Communs. Group, LLC, 312 F.Supp.2d 748, 761 (M.D. N.C. 2004)). When stating a claim for defamation per quod, a plaintiff must plead and prove special damages and malice, in addition to the aforementioned elements of a claim for defamation perse. Id.
Here, Plaintiff has not alleged that the statements by Katrinka Brewer were false. Plaintiff further does not allege that any statements were communicated to someone other than Plaintiff. It appears from the factual allegations that some of the alleged statements, where Brewer "accused the plaintiff of being paranoid [], not acting in a professional manner, and not doing her job," were contained in an email responding to Plaintiff. See Am. Compl. [DE-82] at 16. For the other alleged statements, that Brewer called Plaintiff "paranoid," "incompetent," "cynical" and that Plaintiff did not know how to teach the curriculum and made another teacher feel unsafe around her, Plaintiff does not describe the context of these statements, and does not contend that they were communicated to any third party by Brewer. See Cummings, 590 F.Supp.2d at 775 (denying a motion to dismiss a defamation claim where plaintiff alleged slander per se-that Defendant communicated to the Tribal Council that Plaintiff authored a letter, that this statement was false, and statements held Plaintiff in disgrace, ridicule and contempt in the view of Plaintiffs coworkers and the Tribal Council). Accordingly, it is recommended that any defamation claim be dismissed.
F. Punitive damages against the Board
Defendants finally argue that punitive damages cannot be recovered against a governmental entity such as the school board as a matter of law, citing Ripellino v. N.C. Sch. Bds. Ass 'n, Inc., 158 N.C.App. 423, 428 (2003). Without statutory provision to the contrary, they state, the board of education is immune from punitive damages. [DE-87] at 19. The undersigned agrees, that punitive damages are barred against the Board. The Civil Rights Act of 1964 ("Act") provides in pertinent part as follows:
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.42 U.S.C. § 1981a(b)(1) (emphasis added); see Williams v. Newport News Sch. Bd., No. 4:20-CV-41, 2021 WL 3674983, at *19 (E.D. Va. Aug. 19, 2021) (finding that punitive damages against a school board were barred); Bryant v. Locklear, 947 F.Supp. 915 (E.D. N.C. 1996) (holding Title VII punitive damages claims against university and officials in their official capacities were barred by statute); Biggs v. Edgecombe Cnty. Pub. Sch. Bd. of Educ, No. 4:16-CV-271-D, 2018 WL 4471742, at *8 (E.D. N.C. Sept. 18, 2018) ("Thus, absent waiver, the Board enjoys governmental immunity concerning plaintiffs' state tort claims."). Accordingly, it is recommended that any claim for punitive damages be dismissed.
III. CONCLUSION
For the foregoing reasons, it is recommended that Defendants' motion to dismiss [DE-86] be allowed in part and denied in part, all Plaintiff's claims, with the exception of Plaintiff's Title VII national origin discrimination claim against the Board, be dismissed without prejudice, and the motion for "claims for relief," [DE-89], be denied as moot, the motions for a calendar request, [DE-103], for a scheduling conference, [DE-106], and for a stay of that scheduling conference, [DE-109], be denied as premature.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 8, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 10 days after service of the objections on the responding party.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).