Opinion
CIVIL NO. 1:02CV223
March 25, 2004
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the Plaintiff's timely filed objections to the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the undersigned referred the Defendants' motion for summary judgment to the Magistrate Judge for a recommendation as to disposition. Having conducted a de novo review of those portions of the recommendation to which specific objections were filed, the undersigned has determined that the Defendants' motion should be granted. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As the Supreme Court has observed, "this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."Bouchat v. Baltimore Ravens Football Club, Inc. , 346 F.3d 514, 519 (4th Cir. 2003) (quoting Fed.R.Civ.P. 56(e) and Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986)). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir. 1994) (citing Anderson, supra) . "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat , 346 F.3d at 522 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)). If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue does exist. Id .
A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denial of her pleadings," but rather must "set forth specific facts showing that there is a genuine issue for trial." Furthermore, neither "[u]nsupported speculation," nor evidence that is "merely colorable" or "not significantly probative," will suffice to defeat a motion for summary judgment; rather, if the adverse party fails to bring forth facts showing that "reasonable minds could differ" on a material point, then, regardless of "[a]ny proof or evidentiary requirements imposed by the substantive law," "summary judgment, if appropriate, shall be entered."Id. (quoting Fed.R.Civ.P. 56(e) and Felty v. Graves-Humphreys Co. , 818 F.3d 1126, 1128 (4th Cir. 1987)) (other internal citations omitted). Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574 (1986).
II. FINDINGS OF FACT
Plaintiff's claims stem from his resignation as an instructor with Western Piedmont Community College (College), a public two-year community college which provides both college credit and continuing education courses. In his complaint, the Plaintiff has alleged breach of contract, discrimination on the basis of gender, discrimination against his status as a disabled veteran, retaliatory discrimination, intentional and negligent infliction of emotional distress, civil conspiracy, and defamation.Beginning in 1994 and continuing on a yearly basis thereafter until April 2000, the Plaintiff entered into a "Contract for Part-Time Instructional Services" with the College. Defendants' Deposition Exhibit 2, attached to Deposition of David L. Tubergen. The contract provided that "[t]his position is temporary, is limited to the inclusive dates of this contract, and there is no obligation or expectation (stated, implied, or assumed) that employment will be continued beyond the termination date of this contract." Id. Each contract contained this language. On April 6, 2000, the Plaintiff resigned from his contract, citing his inability to get along with Melissa Grill, the "Lead Lab Assistant." Defendants' Deposition Exhibit 4, attached to Tubergen Deposition. Among the reasons for his resignation cited by the Plaintiff in his letter were the following:
I just can't fight the stress of having to deal with the Lead Lab Assistant any longer and I really do not want to be the cause of that individual's dismissal. I'm sure that my parting will quickly be forgotten. . . . Melissa and I have had numerous run-ins and it has gotten to the point where one of us must go and I really don't need the pay as much as she.
I am just stressed to the MAX right now and having the summer off will give me a chance to rest and recuperate. I appreciate your quick attention in finding a replacement for me on the summer schedule. . . . As for me having any future with [the College], it will ultimately depend on Melissa's scope of responsibilities. It is my personal choice to leave rather than work alongside with her. . . . It is probably my fault for not getting along with Melissa but my past military training toward excellence will not allow me to compromise this position.Id. ( emphasis added). A little over one year later, the Plaintiff wrote to Dr. Jim Burnett at the College that, "[i]t is my intent to pursue this matter until Ms. Grill is removed from any form of supervisory position[.]" Defendants' Deposition Exhibit 8, attached to Tubergen Deposition. He went on to note that his reason for resigning and his personal integrity had been ignored when Ms. Grill had been offered expanded job duties. Id. That personnel action occurred over one year after the Plaintiff resigned. Id.
Despite the fact that Grill's job was reclassified after the Plaintiff resigned his position, he filed a complaint with the College. On October 3, 2001, Richard Greene, Acting President of the College, wrote to the Plaintiff:
You voluntarily resigned as a part-time instructor from the Business Technologies Division on April 6, 2000.
Approximately one year later, during Spring semester 2001, the College found it necessary to reorganize the computer laboratories supporting the curriculum divisions on campus to better serve students and faculty[.]
Melissa Grill was not "promoted" to a new position, nor was a new position created by the College as a result of th[e] reclassification [of her job description to reflect additional duties]. The actions of the College in reclassifying the position held by Melissa Grill were taken one year after your voluntary resignation as a part-time instructor from the Business Technologies Division and had no impact, either directly or indirectly, on your employment with the College. In fact, you accepted a contract for employment with the College as a part-time instructor for the Continuing Education Division in May 2000 and are contractually employed in this capacity at this time for courses to be taught fall semester 2001 [.] You have never been employed on a full-time basis by the College, nor to my knowledge have you sought full-time employment with the College. Furthermore, during your employment with the College, you have never been supervised by Melissa Grill[.]Defendants' Deposition Exhibit 11, attached to Tubergen Deposition.
Part-time instructors at the College were not entitled to health insurance, supplemental benefits or retirement. Attachment B to Affidavit of Cynthia Callaway, attached as Attachment B to Defendants' Motion for Summary Judgment ["Defendants' Motion"], filed December 22, 2003. Since the fall of 2001, the Plaintiff has not sought an instructional contract with the College. Affidavit of Lamar Wommack, attached to Defendants' Motion, at 2.
In his objections, the Plaintiff claims the Magistrate Judge ignored his affidavit and deposition testimony. Among the allegations contained in the Plaintiff's affidavit are:
It is my position that the sexual harassment, harassment and retaliatory acts were part of a continuing plan, scheme and design which began at an earlier date and continued to the acts on the part of the Defendants and/or their agents to establish a continuing course of conduct which finally resulted in my seeking the assistance of the EEOC from which I received a right to sue letter[.] . . . I have alleged in my complaint and testified at deposition and I believe the Defendants to have been involved in a civil conspiracy in which two or more persons either engaged in illegal activity or conspired to engage in legal activity in an improper manner. The specific allegations have been set forth in my complaint[.]
[W]hen I chose to file a grievance and the fact that I filed a grievance or challenged those in authority in engaging in what I contend was illegal improper conduct I was singled out with particularly harsh treatment, branded as a trouble maker and retaliated against by those in position of authority.Affidavit of David L. Tubergen, filed January 5, 2004, at 2-3.
Plaintiff also testified during his deposition that since experiencing two heart attacks in 1991 and 1992, he has been prescribed antidepressant medication. Tubergen Deposition, at 8-9. As a part-time instructor at the College, the Plaintiff acknowledged that he was not eligible for retirement benefits, sick leave, vacation, paid personal leave, or health insurance. Id. , at 26-27. While teaching courses at the College, the Plaintiff was not prohibited from any other employment. Id. , at 30-31. At an undisclosed time during the Plaintiff's experience at the College, John Lively, a lab assistant, advised the Plaintiff that he had been instructed by Melissa Grill to delete the Plaintiff's files from the computer storage at the College. Id. , at 34-35. On two occasions, his student files were deleted. Id. , at 36. The second time his student files were deleted was in 2000. Id. , at 37. "That is why I left. I could not — I could not handle that." Id. On another occasion, files that gave the Plaintiff password rights were deleted. Id. , at 36. The Plaintiff's original position at the College was that of a lab assistant which required that he have a computer password. Id. , at 38. After he became a part-time instructor, "Melissa took it upon herself to delete my password authority because I was no longer a lab assistant." Id. , at 38. When the Plaintiff reported that incident and threatened not to teach unless his password authority was restored, his request was granted. Id. , at 39-40. He was the only part-time instructor who had such an extensive level of password authority. Id. On several occasions, Ms. Grill acknowledged to the Plaintiff that she had made mistakes "on my files, in my systems, in my password." Id. , at 41. During the last six weeks that he worked at the College, Ms. Grill deleted his class work, class material, testing material and personal working papers. Id. , at 42-44. He based his conclusion that she was the person who did this on the fact that she had password authority. Id. Although he did not know why she would do such a thing, he assumed it was because she did not like him. Id. They had originally been classmates at the College and Grill was jealous of him. Id. Grill would make snide remarks towards him by using a certain tone of voice. Id. , at 44. She did not respect the Plaintiff although she should have based on his age and experience. Id. When referring to assignments he gave his students, Grill had been known to make comments such as, "Oh, that's a guy thing." Id. , at 45. Throughout the Business Technology department, there were running jokes about the Plaintiff's age and he joined in the camaraderie in that regard. Id. , at 47. He never felt those comments were anything more than joking. Id. The Plaintiff did not feel that anyone made any derogatory remarks about his disability stemming from his heart problems. Id. , at 49-50. The Plaintiff believed that when Grill took away his password authority, it was a retaliatory act. Id. , at 50-51. The first time it happened, the College did not have in place a policy as to whom would be designated password authority. Id. , at 51. Grill "made a decision at that point I didn't have the need [for a password], nor did any other Instructor." Id. ( emphasis added).
The Plaintiff and Grill had a personality clash since the time they were both students at the College. Id. , at 53. Terri Ollis, who was in a supervisory position, asked the Plaintiff before she hired Grill whether he would be able to work with her. Id. Plaintiff complained to Ollis about Grill, not because he thought she was discriminating against him as a man, but because he was senior and "above her, period." Id. He was superior in intellect, ability, experience, knowledge of the computer system at the College, and dealing with people. Id. , at 53-54. "I don't know why she doesn't like me. I don't know if it's because I'm a man, because I'm old, because I'm better. I don't know why." Id. , at 55. After the Plaintiff resigned, students told the Plaintiff that Grill reported he had left due to the illness. Id. , at 58-59.
Just prior to his resignation, the Plaintiff began a practice of recording certain telephone calls, a practice he learned during his military career when he worked in intelligence. Id. , at 61-62. The Plaintiff also reported his experiences at the College to the North Carolina State Bureau of Investigation (SBI) and was interviewed by them. Id. , at 62.
The Plaintiff was aware at the time he resigned in April 2000 that one of Grill's responsibilities was to maintain the computer server. Id. , at 71-72. The Plaintiff could not recall whether in 1999 and 2000 it would have been necessary for Grill to delete information from the server in order to have adequate space. Id. , at 72. It was his opinion, however, that there was "plenty of space[.]" Id. , at 73. Grill told him to delete anything that was not related to teaching material, such as pictures and graphic information. Id. , at 74. However, the Plaintiff was unable to state whether the same request was made of other instructors. Id. , at 75. During the last six weeks prior to his resignation, Grill mistakenly cancelled the Plaintiffs access to his teacher's directory. Id. , at 76-77. However, when he complained to Grill that other instructors had access, she advised him that she did not know what had occurred and she was trying to "figure out" the problem. Id. , at 79. Something had happened with his personal password and Grill was not sure what the problem was. Id. While this problem existed, he could read and print the information in his directory but he could not edit it. Id. , at 81.
After his resignation letter was sent to Ms. Ollis, the Plaintiff had a meeting with her during which she asked him to reconsider. Id. , at 83. He felt he had to resign because the Business Technologies Division was "[t]oo energetic, too innovative, too impressive." Id. "I was a threat." Id.
Over a year after the Plaintiff resigned, Grill's position was reclassified as associate director of academic technical support. Id. , at 93-94. Plaintiff felt a posting for the job should have been made and he should have been considered for the job. Id. , at 97-98. His claim of discrimination is based on his belief that "the person who had the authority to fill the position already had decided who was going to have the position." Id. , at 96. The Plaintiff felt that the position should have been posted and applications should have been taken for the job. The Plaintiff believed that Jane Carswell, also an administrator, wanted a woman in that position instead of a man. Id. , at 105. That belief was based on what he heard from students and an affirmative action statement on the website for North Carolina community colleges. Id. , at 106-07. The Plaintiff filed a grievance about the matter because he thought the position should have been posted and that Grill was not qualified for the job. Id. , at 121-22. However, the Plaintiff admitted that he did not know if the grievance policy applied to part-time instructors. Id. , at 142. The Plaintiff also had a meeting with Dr. Burnett about this issue during which Dr. Burnett explained "that the position was never created. It was just a job reclassification, a job tide/name change with a few other changes." Id. , at 124.
The Plaintiff acknowledged that when he submitted his letter of resignation, he made it clear within the content thereof that "whether or not I would return [to the College] would depend upon her remaining there, meaning I left it open to say I would come back if she was gone." Id. , at 138. "I was asking for peace and quiet, no interruptions from this girl." Id. , at 182. Yet, when asked to clarify in what manner he was discriminated against, the Plaintiff testified, "I don't know why I've been discriminated against, what purpose. I just feel as if I have been. I wish I knew why." Id. , at 144. Although he considers himself disabled, the Plaintiff felt his was accommodated in every manner with the exception of the failure to "[k]eep Melissa away from me." Id. , at 184-86. Plaintiff also admitted that it was possible there were other reasons for the events which unfolded at the College. Id. , at 147. He also felt that other employees at the College knew that during the time he worked there he was drawing a federal retirement check and "[t]hat adds jealousy." Id. , at 148. Finally, the Plaintiff did opine that a relationship existed between Grill and Carswell which contributed to the failure to follow his requested directives. Id. , at 153-54.
Plaintiff testified that his conspiracy claim is based on a conspiracy between Grill and Carswell and a conspiracy, ultimately, to not offer any classes to him. Id. , at 198-200. He felt that Richard Greene conspired against him based on an incident which occurred in 1994 unrelated to the Plaintiff but which involved prayer during the induction ceremonies for a fraternity which included among its inductees an atheist. Id. , at 201-02. Plaintiff also named a member of the board of directors for the College as a conspirator because when he approached her about his perceived problems, she failed to conduct her own investigation and turned the matter over to Dr. Burnett. Id. , at 202-03. Dr. Burnett conspired by assuming responsibility for the change in Grill's job description. Id. , at 204. Nonetheless, the Plaintiff admitted that he has no proof that any of these individuals spoke about these incidents or actually came to a mutual agreement to do anything. Id. , at 205. Nor could he prove affirmatively that he was no longer offered classes to teach as a result of any mutual agreement among these individuals. Id. , at 205-06.
III. DISCUSSION
Plaintiff's first objection related to the recitation of facts contained within the Memorandum and Recommendation. The undersigned has reviewed the facts of the case and included those allegations which the Plaintiff claims were overlooked. For the purposes of this opinion, the undersigned has assumed arguendo that the Plaintiff was an employee of the College.
Plaintiff objects to the finding that his claims based on adverse employment action must fail. Plaintiff argues that he has shown such an action based on sex, age and disability discrimination, and retaliatory conduct. He points to Grill's conduct related to his password as proof of harassment and retaliation and notes the decision to re-classify Grill's position shows an intent to discriminate against him. Because his complaints about Grill were ignored, the Plaintiff was ultimately forced to leave his job. Although he resigned, his resignation was not voluntary because he felt he had no choice other than to resign.
Title VII, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq., all prohibit the discharge of an employee based on sex, age, or disability. However, these statutes do not provide a remedy unless there has been an adverse employment action. Here, the Plaintiff's claim is that he was constructively discharged due to the intolerable working conditions at the College.
The Court assumes arguendo for the purposes of this opinion that the Plaintiff has a disability. The complaint does not list age as a reason for the discrimination. In the interests of finality, however, the Court will address that issue.
Typically, "[a] constructive discharge occurs when an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job.". . . "Intolerability" is not established by showing merely that a reasonable person, confronted with the same choices as the employee, would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign; presumably every resignation occurs because the employee believes that it is in his best interest to resign. Rather, "[i]ntolerability . . . is assessed by the objective standard of whether a `reasonable person' in the employee's position would have felt compelled to resign," — that is, whether he would have had no choice but to resign.Blistein v. St. John's College , ( 74 F.3d 1459, 1468 4th Cir. 1996 ) ( quoting Bristow v. Daily Press, Inc. , ( 770 F.2d 1251, 1255 4th Cir. 1985 )). The Plaintiffs resignation letter is compelling evidence of his feelings at the time. He magnanimously left because he did not need the pay as much as Grill did. One of them had to go, he opined, and he was in a better position to do so. Laprise v. Arrow Int'l, Inc., 178 F. Supp.2d 597 (M.D.N.C. 2001) (Resignation because plaintiff felt management did not support her did not qualify as an adverse employment action.); accord, Spain v. City of Winston-Salem , 199 F. Supp.2d 354 (M.D.N.C. 2002); Ashton ex rel. Ashton v. Okosun , 266 F. Supp.2d 399 (D. Md. 2003).
Nor did he feel the resignation was permanent, stating that whether or not he returned to part-time instruction was dependent on Grill's continued employment with the College. " It is my personal choice to leave rather than work alongside with her. . . . It is probably my fault for not getting along with Melissa but my past military training toward excellence will not allow me to compromise this position." Defendants' Deposition Exhibit 4, supra . This statement is a clear indication of the Plaintiff's thoughts at the time. Indeed, he admits that his personal standards would not allow him to continue to work with someone whom he considered inferior. The inability to get along with a co-worker, assuming Grill qualified as such, does not rise to the level of constructive discharge.
The doctrine of constructive discharge protects an employee "from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his coworkers." The employee "is not, however, guaranteed a working environment free of stress." Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.Carter v. Ball , 33 F.3d 450, 459 (4th Cir. 1994) ( quoting Bristow, supra) . Moreover, the "trivial discomforts endemic to employment" are not actionable as adverse employment actions. Boone v. Goldin , 178 F.3d 253, 256 (4th Cir. 1999). "Constructive discharge occurs when an employer deliberately makes the employee's working conditions intolerable and thereby forces him to quit his job." Munday v. Waste Mgmt. of N. Am., Inc. , 126 F.3d 239, 244 (4th Cir. 1997) (emphasis added) (quotations omitted). "Deliberateness exists only if the actions complained of were intended by the employer as an effort to force plaintiff to quit." Taylor v. Virginia Union Univ. , 193 F.3d 219, 237 (4th Cir. 1999). There is no evidence in the record that the Plaintiff had registered a formal complaint that Grill was harassing or retaliating against him based on his sex, age or disability prior to his resignation. Although the Plaintiff complained to Ollis when his password was changed, there is no evidence that he attributed the problem to Grill's discrimination. Tubergen Deposition, at 41-43. In fact, the Plaintiff testified that the problem could have been the result of a mistake. Id. Indeed, during his deposition, the Plaintiff attributed the problem to jealousy and an inability to get along, not discrimination. Plaintiff complained to Ollis about Grill, not because he thought she was discriminating against him as a man, but because he was senior and "above her, period" Id. , 53. He was superior in intellect, ability, experience, knowledge of the computer system at the College, and dealing with people. Id. , at 53-54. "I don't know why she doesn't like me. I don't know if it's because I'm a man, because I'm old, because I'm better. I don't know why." Id. , at 55. "I don't know why I've been discriminated against, what purpose. I just feel as if I have been. I wish I knew why." Id., at 144. "Plaintiff cannot rely merely on [his] subjective belief that [his] employer wrongfully failed to discipline a coworker as evidence of an adverse employment action[.]" Laprise, 178 F. Supp.2d at 606 (Favoritism of management toward black employees did not rise to the level of constructive discharge.). "An employee may not be unreasonably sensitive to [his] working environment; thus, the law does not allow an employee's subjective perceptions to govern a claim of constructive discharge. Finally, while an employee is `protected from a calculated effort to pressure him into resignation,' an employee `is not guaranteed a working environment free of stress.'" Id. , at 609 (quoting Bristow, supra) ; Spain, 199 F. Supp.2d at 359 (bald statements insufficient). Likewise, although the Plaintiff considers himself disabled, he admitted that he was accommodated in every manner with the exception of the failure to "[k]eep Melissa away from me." Tubergen Deposition, at 184-86. Plaintiff also admitted that it was possible there were other reasons for the events which unfolded at the College. Id. , at 147.
Nor has the Plaintiff shown that he was treated any differently than other part-time instructors. The first time Grill allegedly deleted the Plaintiff's password, the College did not have in place a policy as to whom would be designated password authority. Id. , at 51. Grill "made a decision at that point I didn't have the need [for a password], nor did any other instructor." Id. ( emphasis added). This certainly does not show "actions that single out a plaintiff for differential treatment." Carter , 33 F.3d at 459.
Over a year after the Plaintiff resigned, Grill's job description was changed Without citing anything other than his own speculation, the Plaintiff claims the College deliberately promoted Grill to a new position without posting the job or offering it to him. At the time this action was taken, the Plaintiff was not working in the Business Technology Department. Nor has the Plaintiff shown in what manner the College was obligated to notify him that it was changing a job description. The action taken by the College was, quite simply, none of the Plaintiff's affairs. Cleary v. Nationwide Mut. Ins. Co. , 9 Fed.Appx. 1, 10 (4th Cir. 2001). And the Plaintiffs speculation and suspicion does not suffice to defeat summary judgment. Gibson v. Old Town Trolley Tours of Washington, D.C., Inc. , 160 F.3d 177, 181 (4th Cir. 1998).
Finally, since no adverse action was taken, the Plaintiff cannot state a claim for retaliation. Causey v. Balog , 162 F.3d 795, 803 (4th Cir. 1998). The contemporaneous writings of the Plaintiff show that he had a personality conflict with someone who had no supervisory authority over him. They also show the Plaintiff had an attitude of superiority and entitlement. He admitted that he could not handle stress, he could not get along with Grill, and he would not compromise his own standards in order to continue part-time instruction. There is no evidence of discrimination against him; indeed, there is some question as to whether the Plaintiff was objective in his assessment of Grill and Carswell due to their alleged sexual orientation. In short, the Plaintiff voluntarily resigned and later became angry when he jumped to the conclusion that his nemesis had been promoted This does not constitute, however, a "federal case."
Next, the Plaintiff claims the breach of contract claim should survive because sovereign immunity does not apply. The Plaintiff filed a general objection to the recommendation that the Defendants have sovereign immunity as to a claim for breach of contract. However, the undersigned is compelled to note that the recommendation is in error as to this issue. Hill v. Medford , 158 N.C. App. 618, 623, 582 S.E.2d 325, 328-29 (2003) (Martin, J., dissenting, "As a public official, if sued in his or her official capacity, a sheriff is protected against tort actions by governmental immunity unless the sheriff purchases a bond . . . and then, can only be liable on tort claims to the extent of the amount of that bond. No such immunity exists as to claims for breach of contract[,]" (citing Smith v. State , 289 N.C. 303, 222 S.E.2d 412 (1976) (emphasis added)), rev'd on the reasoning set forth in the dissent , 357 N.C. 650, 588 S.E.2d 467 (2003).
Nonetheless, the undersigned will grant summary judgment as to this claim as well. Plaintiff claims that when he was unable to access his teacher directory computer file, the College breached the contract for his part-time instruction. Tubergen Deposition, at 230. The Plaintiff also claimed that on one occasion, books were not provided for his course. Id. , at 231. When asked to show that portion of his contract which required the College to provide instructional materials, the Plaintiff was unable to do so. Id. , at 232. In fact, the Plaintiff admitted that the contract did not contain a provision that books or software would be provided. Id. Moreover, he acknowledged that the other part-time instructors had the same problem on that occasion which occurred sometime prior to 1999. Id. , at 233. And, he admitted that the contract contained no provision for him to have access to computer passwords or files. Id. , at 235-36. While admitting that he entered into 76 separate contracts with the College for part-time instruction, the Plaintiff could not point to any document which required the College to do those things which he claims breached his contract. Id. , at 237-38. As for the Plaintiff's claim that the contracts were breached by discriminatory and retaliatory conduct, the findings infra render those claims fufile. The Court finds that the Plaintiff's claims of breach of contract are spurious.
Next, the Plaintiff objects to the recommendation that his claims for negligent and intentional infliction of emotional distress be dismissed. The objection is based on the Plaintiff's physical condition "and the exacerbation of his condition with stress, including the treatments received and medication taken[.]" Plaintiff's Objections to the Memorandum and Recommendation, filed March 4, 2004, at 7. The Plaintiff, however, is a veteran who admits to diagnoses of heart disease, depression and post-traumatic stress syndrome prior to ever being affiliated with the College. Tubergen Deposition, at 267-75. While the events which occurred at the College depressed him, he testified that "it didn't stop me." Id. , at 274.
"[T]o state a claim for negligent infliction of emotional distress, a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress. . . . and (3) the conduct did in fact cause the plaintiff severe emotional distress. . . . In this context, the term `severe emotional distress' means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Thus, a plaintiff does not have a remedy for garden variety anxiety or concern, but only for severe distress.Pacheco. v. Rogers Breece, Inc. , 157 N.C. App. 445, 449, 579 S.E.2d 505, 507-08 (2003) (quoting Johnson v. Ruark Obstetrics , 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990)). The Plaintiff has not shown such distress; indeed, his deposition testimony is contrary to the claims made. Nor did he provide any medical documentation in support of these allegations. Id. The Plaintiffs "bare assertion" that he has suffered such distress is insufficient. Id. , at 450, 579 S.E.2d at 508 .
Moreover, contrary to Plaintiff's objections, "[i]t is for the court to determine whether on the evidence severe emotional distress can be found[.]" Id. , 449, 579 S.E.2d at 508 . Likewise, `"[i]t is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery'" for intentional infliction of emotional distress. Beck v. City of Durham , 154 N.C. App. 221, 231, 573 S.E.2d 183, 191 (2002) (quoting Hogan v. Forsyth Country Club Co. , 79 N.C. App. 483, 490, 340 S.E.2d 116, 121 (1986)). Extreme and outrageous conduct is that which "exceeds all bounds usually tolerated by decent society." Id. ( quotations omitted). The conduct alleged here does not in any manner approach that standard.
Plaintiff makes a general objection to the recommendation that his claims for civil conspiracy and defamation be dismissed, alleging that his complaint, affidavit and testimony support the elements of such a claim. `"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court.'" Battle v. U.S. Parole Comm'n , 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright , 677 F.2d 404, 410 n. 8 (5th Cir. 1982)). Where specific objections are not filed, a district court should give such review to the memorandum and recommendation as it deems appropriate. Thomas v. Arn , 474 U.S. 140, 151-52 (1985). Moreover, the objection has no supporting case law or reference to the record, again not warranting de novo review. Wells v. Shriners Hasp. , 109 F.3d 198, 200 (4th Cir. 1997) (Boilerplate objections should not be sufficient to avoid the consequences of failing to object altogether.). Such is the case here.
Finally, it does bear noting that this action teetered on the precipice of frivolity. Fed.R.Civ.P. 11; In re Kunstler, 914 F.2d 505 (4th Cir. 1990) .
IV. ORDER
IT IS, THEREFORE, ORDERED that the Defendants' motion for summary judgment is hereby GRANTED. A Judgment dismissing the action is filed herewith.
JUDGMENT
For the reasons set forth in the Memorandum and Order filed herewith,IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Defendants' motion for summary judgment is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.