Opinion
7:22-CV-40-FL
10-12-2022
KATHY JUANITA REAVES, Plaintiff, v. ANGELA FAULKNER, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones Jr. United States Magistrate Judge
This matter is before the court on Plaintiff's amended application to proceed in forma pauperis, [DE-10], and for frivolity review of the complaint, [DE-1-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. Standard of Review
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v: Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . .'” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
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 attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This 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).
II. Discussion
Plaintiff alleges she was employed as a CTE (career and technical education) teacher at Townsend Middle School in Maxton, Robeson County, North Carolina. Her claims arise from an incident that took place on December 6, 2021, when Plaintiff filed a grievance against defendant Freddie, Williamson, the Superintendent for the Robeson County Public Schools, for allegedly backdating her employment contract without informing her. On December 10, 2021, Williamson had Plaintiffs work email blocked, and she was unable login and access the CTE curriculum and standards. On January 28, 2022, Plaintiff asked Defendant Catherine Truitt, the State Superintendent of North Carolina Public Schools, to assist her in accessing the CTE curriculum but Truitt responded that she would not intervene. Plaintiff asserts that, as a result of her inability to access her work email, her seventy-two CTE students were denied access to the CTE curriculum from December 10, 2021 through March 1, 2022, and the Board of Education conducted meetings during this time but failed to address her grievances. Plaintiff also alleges that Angela Faulkner, the principal at Townsend Middle School, fraudulently entered grades for Plaintiffs CTE students in January 2022, despite the students being denied education, and Plaintiff reported the matter to the CTE coordinator, CTE director, and Truitt but they failed to investigate or intervene. Plaintiff contends Defendants received state and federal money for these students to be educated but students were not educated during this time period, and no Defendant intervened to remediate the discriminatory denial of education to Plaintiffs students or reported the denial of education as required under federal and state law. On March 3, Plaintiff was suspended with pay for ninety days in what she believes was a legal maneuver to remove her from the school premises pending prior litigation she filed in federal court for discrimination and retaliation. Compl. [DE-1 -1 ] at 27.
The page number referenced is that assigned by CM/ECF, whereas here it differs from the document's internal page number.
Plaintiff brings this action against Angela Faulkner, Freddie Williamson, Michael Mike Smith, Brenda Fairley-Ferebee, Herman Locklear, Demetria Grissett, Atkins Trey Michael, the Public Schools of Robeson County, the Public Schools of Robeson County Board of Education, Catherine Truitt, Roy Cooper, the Public Schools of North Carolina, the North Carolina Department of Public Instruction, the North Carolina State Board of Education, and the State of North Carolina. Plaintiff asserts Defendants violated 18 U.S.C. § 371, Title I of the Elementary and Secondary Education Act, the Every Student Succeeds Act (“ESSA”), Chapter 115C of the North Carolina General Statutes for Elementary and Secondary Education, the North Carolina State Tort Claims Act, 20 U.S.C. Chapters 39 and 44, the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, the North Carolina Retaliatory Employment Discrimination Act (“REDA”), and she also asserts claims under state law for interference with contractual obligations, negligent hiring and retention, and abuse of power/bullying or intentional infliction of emotional distress. Plaintiff seeks monetary damages for herself and on behalf of her CTE students. Id. at 1-2, 2349. .
1. Claims on Behalf of Plaintiffs CTE Students
Plaintiff asserts in her complaint that this case is not about her but about the treatment of her CTE students, and she claims that her CTE students were damaged as a result of Defendants' wrongful acts. Id. at 3, 24, 26, 33, 38, 42-45, 47-50.
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, therefore, 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. . . does not create a coordinate right to litigate for others.”) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)). Accordingly, any claims brought on behalf of Plaintiff's students should be dismissed.
2. Conspiracy to Defraud the United States - 18 U.S.C. § 371
Plaintiff contends that Defendants Williamson and Faulkner failed to report that Townsend Middle School was not in compliance with federal law and that Plaintiffs CTE students were discriminated against and denied CTE education, despite the Robeson County schools continuing receipt of Title I, ESSA, and Covid-19 funding, all in an attempt to defraud the federal government. Compl. [DE-1-1] at 23-24.
The conspiracy statute under which Plaintiff attempts to assert a claim is criminal in nature and does not provide for a civil private right of action. See Hankins v. United States, No. 7:20-CV-179-FL, 2021 WL 4437502, at *5 (E.D. N.C. Aug. 30, 2021) (recommending on frivolity review that a claim under 18 U.S.C. § 371 be dismissed because the statute does not provide for a civil private cause of action), report and recommendation adopted, 2021 WL 4428192 (E.D. N.C. Sept. 27, 2021); see also Tribble v. Reedy, 888 F.2d 1387, 1989 WL 126783 (4th Cir. 1989) (per curiam) (“Unless there is a clear Congressional intent to provide a civil remedy, a plaintiff cannot recover civil damages for an alleged violation of a criminal statute.”); Dingle v. Baggett, No. 5:19-CV-00425-D, 2020 WL 5245986, at *5 (E.D. N.C. July 31, 2020) (“[C]riminal statutes ‘proscribe . crimes; they do not, of themselves, create civil liability.'”) (quoting Kebort v. Stiehl, No. 5:17-CV-418-D, 2018 WL 2927762, at *3 (E.D. N.C. May 17, 2018)), objections overruled, 2020 WL 5217393 (E.D. N.C. Sept. 1,2020), aff'd, 860 Fed.Appx. 41 (4th Cir. 2021). Accordingly, this claim should be dismissed.
3. Failure to Report - Title I and ESSA.
Plaintiff alleges Defendants Public Schools of Robeson County, Freddie Williamson, and Angela Faulkner failed to provide the parents of Plaintiff s CTE students a true accounting of the events between December 10, 2021 and February 28, 2022, as required by Title I parent liaison reporting and ESSA, and therefore denied parents the opportunity to mitigate the problem or move their children to another resource. Compl. [DE-1-1] at 25-26,43-44. Plaintiff further alleges that the Public Schools of Robeson County did not refund any of the federal or state funding it received for the CTE students during the time period at issue. Id. at 25. Throughout Plaintiff's complaint she also alleges that Defendants violated ESSA reporting requirements, 20 U.S.C. § 6301, et seq. Courts have concluded that there is no private right of action under Title I of the Elementary and Secondary Education Act of 1965. See, e.g., Bradford v. Morehouse Par. Sch. Bd., No. CV 181536, 2019 WL 572981, at *5 (W.D. La. Jan. 28, 2019) (citing Chester Upland Sch. Dist. v. Pennsylvania, No. 12-132, 2012 WL 1344368, at *7 (E.D. Pa. Apr. 17, 2012); Scottv. Conley, No. 15-0371, 2016 WL 4257507, at *2 (D. Utah July 18, 2016), report and recommendation adopted, 2016 WL 4257339 (D. Utah Aug. 11, 2016)), report and recommendation adopted, No. 2019 WL 576007 (W.D. La. Feb. 12, 2019). Likewise, the ESSA, which amended the No Child Left Behind Act, Dickerson v. D.C, No. CV 09-2213 (PLF), 2022 WL 656172, at *1 (D.D.C. Mar. 3, 2022), provides no private right of action. See Simmons v. Putnam/N. Westchester Bd. of Coop. Educ. Servs., No. 19 CV 10388 (VB), 2022 WL 294753, at *2 (S.D.N.Y. Feb. 1, 2022) (noting the No Child Left Behind Act “does not contemplate a private right of action.”) (citing Horne v. Flores, 557 U.S. 433, 456 n.6 (2009)); A.W. v. Tennessee Dep't of Educ., No. 3:20-CV-76, 2021 WL 6246563, at *8 n.6 (E.D. Tenn. Apr. 14, 2021) (noting the plaintiffs provided no case precedent or support for the proposition that ESSA provides a private right of action). Accordingly, these claims should be dismissed.
4. N.C. Gen. Stat. §§ 115C-276(e), 115C-288(b) and 115C-307
Plaintiff contends Defendants Faulkner and Williamson violated N.C. Gen. Stat. §§ 115C-276(e), 115C-288(b), and 115C-307 by failing to make accurate reports to the Superintendent and Board of Education regarding the events surrounding Plaintiffs CTE students between December 10, 2021 and February 28, 2022, failing to recommend the return of federal funding for the CTE students and preventing her from performing her job duties by blocking her email. Compl. [DE-1-1] at 27, 38-40.
Section 115C-276(e) provides that a local superintendent has a duty to “furnish as promptly as possible to the State Superintendent when requested by him, information and statistics on any phase of the school work in his administrative unit.” N.C. Gen. Stat. § 115C-276(e). Section 115C-288(b) outlines the powers and duties of school principals, including the duty to make accurate reports to the superintendent and local school board on certain matters and the penalties for making false reports. Id. § 115C-288(b). Section 115C-307 outlines the duties of teachers, including a duty to teach students “as thoroughly as they are able,” and contains reporting requirements similar to those of principals. Id. § 115C-307. None of these statutes expressly provide for a private right of action, and North Carolina “case law generally holds that a statute allows for a private cause of action only where the legislature has expressly provided a private cause of action within the statute.” Lea v. Grier, 156 N.C.App. 503, 508, 577 S.E.2d 411, 415 (2003) (quoting Vanasek v. Duke Power Co., 132 N.C.App. 335, 339, 511 S.E.2d 41, 44 (1999)); Benjamin v. Sparks, 173 F.Supp.2d 272, 291 (E.D. N.C. 2016) (citing Led). Accordingly, these claims should be dismissed.
5. North Carolina Tort Claims Act
Plaintiff asserts Defendants violated the North Carolina Tort Claims Act by concealing and failing to report the discrimination against and denial of education to her CTE students and intentionally inflicting emotional distress on her by failing to intervene. Compl. [DE-1-1] at 2627.
“Under the North Carolina Tort Claims Act.. .,the Industrial Commission has exclusive jurisdiction over claims against the State, state departments, institutions, and agencies for personal injuries or damages sustained by any person due to the negligence of [a] state officer, agent, or employee acting within the scope of his employment.” Carmona v. North Carolina, No. 3:21-CV-00211-MR, 2021 WL 2295517, at *1 (W.D. N.C. May 26, 2021) (citing Guthrie v. State Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983)). Furthermore, Plaintiff asserts a claim of intentional infliction of emotional distress rather than negligent conduct. See Vincent v. N C. Dep 't of Trans., No. 1:20-CV-51, 2020 WL 5710710, at *11 (M.D. N.C. Sept. 24, 2020) (concluding intentional infliction of emotional distress is an intentional tort) (citing Dickens v. Puryear, 302 N.C. 437, 452-53 (1981)). “The Act. . . does not give the Industrial Commission jurisdiction to award damages based on intentional acts,” and “[a]s such, injuries intentionally inflicted by employees of a state agency are not compensable under the Act.” Id. at *2 (citing Frazier v. Murray, 519 S.E.2d 525, 528 (N.C. App. 1999)); see also Reaves v. Brooks Pierce - Greensboro, No. 7:22-CV-53-FL, 2022 WL 2374621, at *1 (E.D. N.C. June 30, 2022) (concluding plaintiffs claims under the North Carolina Tort Claims Act “fail given the forum in which it was brought and the intentional nature of the wrongs she alleges.”) (citing White v. Trew, 366 N.C. 360, 363 (2013) (explaining that “intentional acts of [state employees] are not compensable” under the Tort Claims Act)). Accordingly, Plaintiffs claims under the North Carolina Tort Claims Act should be dismissed.
6. 20 U.S.C. Chapter 39 - Equal Educational Opportunities and Transportation of Students '
Plaintiff alleges that during the 2021-22 school year, there was no certified math teacher at Townsend Middle School and Defendants failed to provide the students with basic math skills. Compl. [DE-1-1] at 33-34. Plaintiff also alleges that Defendants violated 20 C.F.R. § 1703 and “20 CFR 39,” which appears to be a reference to Chapter 39 and more specifically the Equal Educational Opportunity Act, 20 U.S.C. § 1701, et seq., by denying students equal educational opportunity. Id. at 3, 6, 9-10, 19-20.
Section 1703 prohibits a state from denying equal educational opportunity to an individual on account of race, color, sex, or national origin by (a) segregating students on the basis of race, color, or national origin, (b) failing to remove the vestiges of a dual school system, (c) assigning students to certain schools in a discriminatory manner, (d) discriminating against faculty and staff on the basis of race, color, or national origin in employment, employment conditions, and school assignment, (e) transferring students for purposes of segregation based on race, color, or national origin, and (f) failing to take action to overcome language barriers that impede equal participation by students. 20 U.S.C. § 1703. Plaintiffs complaint, liberally construed, contains no allegations to support a plausible inference that the conduct.of which Plaintiff complains had anything to do with race, color, sex, or national origin. Furthermore, it appears Plaintiff is attempting to assert claims on behalf of students, which she may not do. See Myers, 418 F.3d at 400. Accordingly, it is recommended that these claims be dismissed.
7. 20 U.S.C. Chapter 44 - Career and Technical Education
Plaintiff alleges she was not provided a CTE Teacher Mentor; she never met Defendants Demetria Grissett, the CTE Coordinator for the Public Schools of Robeson County, or Trey Michael, the CTE Director for the North Carolina Public Schools; she only saw Defendant Williamson on the day he suspended her with pay for ninety days; her students were denied CTE education pursuant to 20 U.S.C. Chapter 44 during the time her work email was blocked; and all Defendants are in violation of Chapter 44. Compl. [DE-1-1] at 27-33, 38-39.
The purpose of Chapter 44, 20 U.S.C. §§ 2301-2414, is “to develop more fully the academic knowledge and technical and employability skills of secondary education students and postsecondary education students who elect to enroll in career and technical education programs and programs of study.” 20 U.S.C. § 2301. Plaintiff fails to point to a specific provision of Chapter 44 that she claims Defendants violated, and it appears from Plaintiffs allegations that the asserted harm is to the CTE students rather than any harm personal to Plaintiff. As explained above, Plaintiff may not bring claims on behalf of her students. See Myers, 418 F.3d at 400. Accordingly, these claims should be dismissed.
8. Due Process
Plaintiff alleges a violation of her Fourteenth Amendment procedural due process rights, which the court construes as a claim under 42 U.S.C. § 1983, based on Defendant Faulkner's attempt to conduct a teacher evaluation of Plaintiff between March 1 and 3, 2022, without having provided Plaintiff with any training pursuant to the employment contract, and Plaintiffs suspension with pay on March 3, 2022. Compl. [DE-1-1] at 40-42.
To state a procedural due process claim, a plaintiff must allege “(1) a cognizable liberty or property interest; (2) the deprivation of that interest by some form of state action; and (3) that the procedures employed were constitutionally inadequate.” Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009). The Supreme Court in Zinermon v. Burch, explained the relevance of state remedies to a § 1983 claim for violation of procedural due process:
A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Parratt, 451 U.S., at 537, 101 S.Ct., at 1913; Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or
unjustified deprivation of life, liberty, or property”). The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.494 U.S. 113, 125-26 (1990).
First, Plaintiff has not plausibly alleged that Faulkner's attempt to evaluate her deprived her of any liberty or property interest. Second, assuming Plaintiff has a property interest in her employment, she has not plausibly alleged that her suspension with pay constituted a procedural due process violation. Under North Carolina law, the superintendent may, under certain circumstances, suspend a teacher with pay for a reasonable period of time, not to exceed ninety days. N.C. Gen. Stat. § 115C-325.5(c). If the superintendent does not initiate dismissal or demotion proceedings against the teacher within the ninety-day period, the teacher must be reinstated immediately. Id. There are notice and hearing procedures regarding the dismissal or demotion of a teacher for cause set forth in N.C. Gen. Stat. § 115C-325.6.
Plaintiffs complaint alleges that she was suspended with pay for ninety days on March 3, 2022. Compl. [DE-1-1] at 3, 41-42. Plaintiff filed her complaint on March 11, 2022, prior to the end of the ninety-day period, and there is no allegation that any dismissal or demotion proceedings had been initiated against her by the superintendent. Thus, under North Carolina state law, Plaintiff was not yet due a hearing. Because an actionable constitutional violation “is not complete unless and until the State fails to provide due process,” Zinermon, 494 U.S. at 126, Plaintiff has failed to state a claim for violation of her due process rights. See Gilreath v. Cumberland Cnty. Bd. of Educ., 253 N.C.App. 238, 798 S.E.2d 438 (2017) (dismissing a teacher's federal procedural due process claim and finding “[t]he statutory scheme set out in N.C. Gen. Stat. § 115C-325 provided Plaintiff with all of the procedural due process to which he was constitutionally entitled,” and the plaintiff failed to take advantage of the process afforded to him). Accordingly, it is recommended that Plaintiff s due process claim be dismissed.
9. Equal Protection
Plaintiff alleges that her students were discriminated against and segregated from learning the CTE curriculum when her email address was blocked and her access to the CTE curriculum was denied, and no other North Carolina Public School students were denied the CTE curriculum. Compl. [DE-1-1] at 43.
The Equal Protection Clause provides that “[n]o State shall.. . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). A plaintiff must set forth “specific, non-conclusory factual allegations that establish improper motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v. Freeh, 275 F.3d 391,405 (4th Cir. 2001)) (internal quotations omitted). Plaintiff has failed to state any facts in her complaint from which the court could infer the alleged unequal treatment resulted from an improper motive or purposeful discrimination and, thus, has failed to state an equal protection claim. See Harris v. Unit Manager Avcook, No. 5:15-CT-3261-D, 2016 WL 2931630, at *3 (E.D. N.C. Apr. 11, 2016) (finding failure to set forth “specific, non-conclusory factual allegations” that establish an improper motive warranted dismissal of equal protection claim on frivolity review), report and recommendation adopted sub nom. Harris v. Avcook, 2016 WL 2917412 (E.D. N.C. May 18, 2016). Accordingly, it is recommended that this claim be dismissed.
10. Title VII
Plaintiff alleges Defendants violated Title VII of the Civil Rights Act of 1964 by discriminating against her and her students through the denial of CTE education and her suspension. Compl. [DE-1-1] at 47-48.
Title VII prohibits an employer from “discharg[ing] any individual, or otherwise . . . discimin[ating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ....” 42 U.S.C. A § 2000e-2(a). A plaintiff is required to exhaust her administrative remedies by bringing a charge with the Equal Employment Opportunity Commission (“EEOC”) before filing suit. See 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)). “The allegations contained in the administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)). While the charge-filing requirement is not jurisdictional, i.e., it can be forfeited if not timely raised, the requirement is mandatory. See Fort Bend Cnty., Texas v. Davis, - U.S. -, 139 S.Ct. 1843, 1849-51 (2019); Rios v. City of Raleigh, No. 5:19-CV-00532-M, 2020 WL 5603923, at *7 (E.D. N.C. Sept. 18, 2020). The court may consider affirmative defenses sua sponte when a litigant seeks to proceed in forma pauperis. See Eriline Co. S.A. v. Johnson, 440 F.3d 648,655 (4th Cir. 2006) (citing Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 953-54 (4th Cir. 1995)). Plaintiff has not alleged that she exhausted her administrative remedies by filing a charge with the EEOC prior to bringing this action. See Francisco Ramos v. Def. Commissary Agency, No. 5:18-CV-380-BO, 2020 WL 1165282, at *1 (E.D. N.C. Mar. 9, 2020) (dismissing Title VII claim where plaintiff did not file a charge with the EEOC), aff'd, 822 Fed.Appx. 217 (4th Cir. 2020). Accordingly, Plaintiffs Title VII claim should be dismissed for failure to exhaust administrative remedies.
Alternatively, Plaintiff has failed to plausibly allege that she was discriminated against because of her race or other protected characteristic in violation of Title VII. There are no allegations in the complaint that constitute direct evidence of discrimination. “Absent direct evidence [of discrimination], the elements of a prima facie case of discrimination under Title 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. Md. 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). “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., P.C., 815 Fed.Appx. 690, 692 (4th Cir. 2020) (citing Woods v. City of Greensboro, 855 F.3d 639,648 (4th Cir. 2017)). To state a plausible claim, the complaint must contain allegations from which the court could find that defendant took adverse employment action against plaintiff because of a protected characteristic. See McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).
Plaintiff alleges generally that discrimination took place but makes no factual allegations from which the court could draw a plausible inference that any adverse action was taken against her because of her race or other protected characteristic. See Persaud v. Morgan State Univ., 34 F.3d 1066, 1994 WL 446797, at *2 (4th Cir. 1994) (“Conclusory allegations of discrimination are . insufficient to state a claim.”) (citing Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990)). As for Plaintiffs claims on behalf of students, Plaintiff may not bring such claims. See Myers, 418 F.3d at 400. Accordingly, it is recommended that these claims be dismissed.
11. REDA
Plaintiff alleges that she filed a REDA complaint and “on March 3,2022 the NCDOL found probable cause to move forward with a retaliatory complaint against defendants Public Schools of Robeson County and defendant Freddie Williamson pursuant to REDA Retaliation.” Compl. [DE-1-1] at 20. However, Plaintiff does not allege that her administrative remedies have been exhausted, i.e., that she has received a right to sue letter, which is a prerequisite to bringing a REDA claim in federal court. See Krings v. AVL Techs., No. 1:20-CV-259-MR-WCM, 2021 WL 1235129, at *5 (W.D. N.C. Feb. 10, 2021) (“[A] REDA claim requires a plaintiff to first obtain a right-to-sue letter.”) (citing Whitfield v. DLP Wilson Med. Ctr., LLC, 482 F.Supp.3d 485, 496 (E.D. N.C. 2020) (“Before filing a lawsuit under REDA, plaintiff must file a complaint with the North Carolina Commissioner of Labor, obtain a right-to-sue letter from the Commissioner, and file suit within 90 days of receiving that letter. These claim processing rules are mandatory under North Carolina law.”)), report and recommendation adopted, 2021 WL 1233478 (W.D. N.C. Apr. 1, 2021); Satterwhite v. Wal-Mart Stores E., L.P., No. 5:ll-CV-363-BO, 2012 WL 255347, at *3 (E.D. N.C. Jan. 26, 2012) (stating that “[i]n order to bring a civil complaint under REDA, a plaintiff must first file a complaint with the [NCDOL] within 180 days of the alleged violation and receive a right-to-sue-letter.”). Accordingly, it is recommended that Plaintiffs REDA claim be dismissed for failure to exhaust her administrative remedies.
12. State Law Tort Claims
Plaintiff alleges Defendants interfered with her contractual obligations and subjected her to bullying and intentional infliction of emotional distress, and she also alleges negligent hiring and retention and vicarious liability. Compl. [DE-1-1] at 27, 44-46. These are state law tort claims. See Parks v. N.C. Dep't of Pub. Safety, No. 5:13-CV-74-BR, 2014 WL 32064, at *5 (E.D. N.C. Jan. 6, 2014) (concluding plaintiffs claim for tortious interference with contractual or prospective business relations was an intentional tort) (citing Blue Ridge Pub. Safety, Inc. v. Ashe, 712 F.Supp.2d 440, 447-48 (W.D. N.C. 2010) (under North Carolina law, tortious interference with contract and tortious interference with prospective economic advantage are intentional torts); Charles E. Daye & Mark W. Morris, North Carolina Law of Torts §§ 14.10-14.60 (2d ed. 1999); Taylor v. Fed. Express Corp., No. 5:19-CV-101-FL, 2021 WL 5985122, at *5 (E.D. N.C. Dec. 16, 2021) (recognizing intentional infliction of emotional distress is a state law claim); White v. Pitt Cnty. Sch., No. 4:17-CV-00075-BR, 2018 WL 1020123, at *3 (E.D. N.C. Feb. 22, 2018) (considering claims for bullying and harassment as state law tort claims); A.G. v. Fattaleh, No. 5:20-CV-00165-KDB-DCK, 2022 WL 2758607, at *17 (W.D. N.C. July 14, 2022) (characterizing negligent hiring and supervision and vicarious liability as state law claims). The court should decline to exercise jurisdiction over these state law claims where Plaintiff has failed to state a federal claim. 28 U.S.C. § 1367 (providing that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm'rs of Calvert Cnty., 401 F.3d 274, 277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
III. Conclusion
For the reasons stated herein, Plaintiffs application to proceed in forma pauperis is allowed, and it is recommended that the complaint be dismissed without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until October 26, 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), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you 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, your failure to file written objections by the foregoing deadline will bar you 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, 846-17 (4th Cir. 1985). .