Opinion
5:23-CV-322-M
01-17-2024
LAPEARIL C. OUTLAW, Plaintiff, v. RHA HEALTH SERVICES, INC. and NAN THOMPSON, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on the consolidated motion by defendants RHA Health Services, Inc. (“RHA Health Services”) and Nan Thompson (“Ms. Thompson”) (collectively “defendants”) to dismiss [DE-22] the complaints of pro se plaintiff LaPearil C. Outlaw (“plaintiff”). Defendants move to dismiss plaintiff's amended complaints pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [DE-22] at 1. Defendants filed a memorandum in support of the motion to dismiss. [DE-23]. Plaintiff responded in opposition, including supporting materials. [DE-26]. Defendants filed a reply to the response in opposition. [DE-32].
Plaintiff's original state law claim included two additional defendants, Sean Howe and Angela Ferebee. However, plaintiff voluntarily dismissed her claims against these individuals. [DE-11] at 2. Accordingly, the court will not further discuss claims against these individuals, except to the extent contextually relevant for claims against the remaining defendants, RHA Health Services and Ms. Thompson.
This case is also before the court on defendants' motion to stay regarding order for discovery plan [DE-15]; plaintiff's motion for leave to file a second amended complaint [DE-21]; plaintiff's motion to compel [DE-27]; and plaintiff's second motion to compel [DE-29].
Defendants also filed responses in opposition (i) [DE-25] to plaintiff's motion for leave to file a second amended complaint [DE-21] and (ii) [DE-31] to plaintiff's motion to compel. Plaintiff additionally filed a “statement by plaintiff and review of the case” [DE-33], as well as a response [DE-30] to her own motion for leave to file a second amended complaint [DE-21] and to defendants' consolidated motion to dismiss [DE-22]; and a response to defendants' motion to stay regarding order for discovery plan [DE-15]; plaintiff's motion for leave to file a second amended complaint [DE-21]; plaintiff's second motion to compel [DE-29]; and defendants' consolidated motion to dismiss [DE-22].
The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1).
For the reasons set forth below, plaintiff's motion for leave to file a second amended complaint [DE-21] is GRANTED IN PART with respect to the amendment or supplementation of her claims, but DENIED IN PART with respect to the addition of new defendants.
For the reasons set forth below, it is RECOMMENDED that defendants' motion to dismiss [DE-22] be GRANTED and plaintiff's complaint, as supplemented and amended, [DE-13] be DISMISSED. Consistent with the above recommendations, it is further RECOMMENDED that defendants' motion to stay regarding order for discovery plan [DE-15]; plaintiff's motion to compel [DE-27]; and plaintiff's second motion to compel [DE-29] be DENIED AS MOOT.
ORDER ON MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
On June 16, 2023, defendants initiated this action by filing a notice of removal [DE-1] that included a state action complaint by the pro se plaintiff against defendants [DE-1-3]. On July 14, 2023, plaintiff filed an amended complaint, including 129 pages of supplementary materials. [DE-11]. On July 26, 2023, plaintiff filed a proposed amended complaint [DE-13] and on August 3, 2023, plaintiff filed a motion for leave to file a second amended complaint [DE-21], including numerous additional exhibits [DE-21-3 to -5].
Pursuant to Fed.R.Civ.P. 15(a), leave to amend “should [be] freely [given] when justice so requires.” Defendants argue that plaintiff's motion for leave to file a second amended complaint [DE-21] should be denied, because it would be futile. [DE-25] at 1. While the volume of the supplements and exhibits in plaintiff's filings lead to a certain degree of confusion, the court finds that the additional information provided clarifies plaintiff's allegations and facilitates the resolution of this case. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [s]he ought to be afforded an opportunity to test [her] claim on the merits.”).
Moreover, while defendants oppose plaintiff's motion for leave to file a second amended complaint, they address the amended pleadings she raises therein in their motion to dismiss. See [DE-23] at 2; [DE-25] at 4-5 (incorporating defendants' consolidated motion to dismiss [DE-22] and memorandum of law in support thereof [DE-23] into their response in opposition to plaintiff's motion for leave). Accordingly, defendants will not be materially prejudiced by the granting of this motion with respect to the amendment or supplementation of plaintiff's claims. To the extent plaintiff intended, in her numerous filings, to raise claims beyond those discussed below, the undersigned does not discern any additional cognizable claims. B.D. ex rel. Dragomir v. Griggs, No. 1:09-CV-439, 2010 WL 2775841, at *7 (W.D. N.C. July 13, 2010), aff'd, 419 Fed.Appx. 406 (4th Cir. 2011) (noting that the court “is not obligated, even for a pro se litigant, to comb through volumes of documents searching for claims.”); see also Padilla-Ruiz v. Commc'n Techs., Inc., 793 Fed.Appx. 200, (Mem)-201 (4th Cir. 2020) (“A party waives an argument . . . by failing to develop its argument-even if its brief takes a passing shot at the issue.”) (quoting Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017)).
Plaintiff also appears to attempt to add new defendants, including Denise Legendre, Margaret Johnson, Rebecca A Wise, and possibly Texas Roadhouse and Unum Insurance. See [DE-21] at 2. However, the undersigned does not find in plaintiff's filings any cognizable claims over which this court has jurisdiction against these individuals and entities. Accordingly, their addition would be futile and plaintiff's request to add these parties is DENIED. See Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (holding that “leave to amend a pleading should be denied [inter alia] when . . . the amendment would be futile”).
Accordingly, plaintiff's motion for leave to file a second amended complaint [DE-21] is GRANTED IN PART with respect to the amendment or supplementation of her claims, but DENIED IN PART with respect to the addition of new defendants.
MEMORANDUM AND RECOMMENDATION ON MOTION TO DISMISS, ET AL.
I. BACKGROUND AND CLAIMS
A. Plaintiff's allegations
Plaintiff's complaint narrative is somewhat difficult to follow due to the lack of clear logical connections between various sections, misspellings, and lack of punctuation. For example, plaintiff provides the following summary in her affidavit:
Plaintiff had discussed with Ms. Rebecca W these three young men were monitor [sic] and from her on [sic] mouth the most difficult to place. Ms. Rebecca and Plaintiff spoke about Plaintiff not continuing work with the consumer who was 10 hours his gate was extremely weak yet does not require a gate belt as it would make his mobility worst [sic] Plaintiff requested one and Laurel Howell was doing research yet never got back to Plaintiff. By this time, Plaintiff did not fully feel comfortable for one, overdosed, and had a bad wound the last time Plaintiff was with him and he has 5 staff and gone 7 days a week at least 10 hours a day.[DE-13-5] at 2.
Nevertheless, viewing the allegations in the light most favorable to plaintiff, plaintiff's claims appear to arise from events related to her employment with, and termination by, defendants, RHA Health Services and Ms. Thompson. Based on the information provided in plaintiff's filings, plaintiff was employed as a “direct service professional” (“DSP”) by RHA Health Services and previously by CrossRoads Support Services (“CrossRoads”). [DE-13-5] at 2. These companies appear to offer the assistance of DSPs to provide “community based [support] services” for “consumers” with a “developmental disability” ([DE-11-1] at 61) who require assistance in engaging in various activities, such as going to the park, movies, or restaurants based on the particular consumer's preference. [DE-13] at 3. Certain DSPs also appear to provide “total care” for certain consumers, including bathing, using the toilet, and meal-prep. See [DE-13-5] at 2. Qualified Professionals (“QPs”), as described by plaintiff, appear to supervise the DSPs and determine the assignment of DSP to particular consumers. See [DE-13-6] at 3. Plaintiff notes that RHA Health Services' mission statement is to “provide[] a safe, healthy and supportive environment for staff and consumer.” Id. at 13.
Plaintiff's relevant employment for purposes of her complaint began with CrossRoads on September 11, 2018. [DE-13-5] at 2. Starting at CrossRoads, plaintiff worked as a DSP with a non-verbal woman consumer for approximately three to four years ending near the beginning of 2022. [DE-11-1] at 41; [DE-13-5] at 2. While working with this consumer, plaintiff's employer appears to have changed from CrossRoads to RHA Health Services on April 30, 2021. [DE-11-1] at 29; [DE-33] at 1. After this consumer's death, plaintiff was assigned to work with three high-functioning males (“Consumer #1,” “Consumer #2,” and “Consumer #3”). These three male consumers were allegedly the most difficult for one of the QPs to place. [DE-13-5] at 2. Plaintiff alleges that, in contravention of RHA Health Services' protocol, she was sent alone to provide services to all three families. [DE-11-1] at 30.
Plaintiff only worked with Consumer #1 for about a week before his long-term DSP returned from a medical absence. [DE-13-5] at 3.
Consumer #2 had five assigned DSPs, including plaintiff. Id. Plaintiff claims to have learned and informed QP Rebecca Wychunas (“QP Wychunas”) about an overdose of medication that Consumer #2 suffered at the hands of other staff. [DE-11-1] at 28; [DE-13-5] at 2. Plaintiff also expressed to QP Wychunas that she felt uncomfortable working with Consumer #2. [DE-13-6] at 1. She was concerned about maintaining Consumer #2's safety because he was injured very badly and “his gate had to stop working with him due to these problems.” Id. Plaintiff also appears to suggest that she should not have been required to work with Consumer #2 by herself. See [DE-13-5] at 4; [DE-33] at 8 (“[Plaintiff] should never have been involved with these types of consumers; they require an actual team, not a team of one.”).
Consumer #3 appears to have been the most challenging of the three consumers for plaintiff. Consumer #3 worked at a Texas Roadhouse restaurant for six hours per week. Plaintiff alleges that when she checked on Consumer #3 during his work hours, he was watching videos on his phone and playing with legos. [DE-13-5] at 3. Plaintiff contends that Consumer #3 was getting paid during these six work hours, while plaintiff was not. [DE-13-5] at 2; see also [DE-11-1] at 49 (indicating that Texas Roadhouse employed Consumer #3). Plaintiff reasons that RHA Health Services essentially gave six of plaintiff's work hours to Consumer #3. [DE-13-6] at 1. Accordingly, despite her simultaneous assignment to work with three different consumers, as discussed above, plaintiff worked six less total hours than when she was previously assigned to work with just one consumer.
Plaintiff made several complaints about Consumer #3 to RHA Health Services, including that he (i) created an unsafe work environment for plaintiff by shooting his legos at plaintiff while she was driving and (ii) failed to follow his habitation plan. [DE-13-6] at 1. In response, QP Angela Ferebee suggested to plaintiff that if Consumer #3 was having a “meltdown,” plaintiff could bring him to the RHA Health Services office upon his request. Id. at 1. On June 23, 2022, Consumer #3 allegedly exhibited a “meltdown” in which he jumped out of a moving car in the presence of several witnesses. [DE-13-5] at 4. Plaintiff brought Consumer #3 “to the [RHA Health Services] office.” [DE-8-1] at 3. Defendant, Ms. Thompson, an administrator at RHA Health Services, came out of the office (id.) and told plaintiff to “go home; it's not your fault; it's just the way he is; it's just not a fit.” [DE-13-6] at 1. Plaintiff alleges that the manner in which she was sent home did not follow RHA Health Services' protocol. Id. at 2. Plaintiff also appears to suggest that Consumer #3's family was satisfied with plaintiff's services and was not requesting that plaintiff stop working with their son. See id. at 2 (Consumer #3's mother reportedly told plaintiff that she “thought [plaintiff] could not handle [Consumer #3] further, stating he was just sitting at home” and that “she was happy with RHA Health Services, INC service.”); see also [DE-11-1] at 29 (“Defendant sent me home . . . omitting consumer and parents' rights”). In her filings, plaintiff also recounts Consumer #3 being taken to another employee's divorce proceedings against his wishes as an additional grievance. Id. at 30.
Plaintiff alleges that Caucasian DSPs were able to choose which consumers they wanted to work with, “whereas those of the African race had no choice.” Id. at 3. Additionally, plaintiff appears to allege that she twice applied to become a QP, but that QP Wychunas was hired instead, even though QP Wychunas only had a Bachelor of Science degree and experience working in the school system, while plaintiff had a Master of Business Administration degree in healthcare management and over 20 years of experience in direct care and state training. Id. Regarding her pay and benefits, plaintiff alleges that when she inquired about a pay raise, Ms. Thompson would refer plaintiff to her retention bonus. Plaintiff's retention bonus, however, was only $9.17 in September 2022, while her April 2022 bonus had been over $2,000. Id. at 3, 10 (plaintiff providing a list of her 2022 bonuses by month).
Plaintiff suggests that her communications with QP Wychunas regarding the overdose of Consumer #2, as well as plaintiff's complaints of an unsafe work environment and Consumer #3's refusal to follow his Habitation Plan ([DE-11-1] at 28), contributed to the retaliation plaintiff experienced resulting in her termination (id. at 86).
Plaintiff additionally points to the fact that while she was sent home on June 23, 2022, she did not receive her online termination until November 11, 2022. [DE-11-1] at 53; [DE-13] at 22. Plaintiff attaches to one of her filings a letter ostensibly from Ms. Thompson at RHA Health Services indicating that plaintiff's last date of employment was November 10, 2022, due to “refusing available work assignments.” [DE-33-1] at 3. Despite this, plaintiff reports that the Department of Social Services contacted Ms. Thompson on June 28, 2022, to verify plaintiff's unemployment status. [DE-13-6] at 3. Between the end of plaintiff's last assignment on June 23, 2022, and her online termination on November 11, 2022, plaintiff alleges that her bonuses, retention bonuses, and paid time-off were still accruing. Id. at 2.
B. Legal claims
Plaintiff appears to allege that her claims are brought under various statutes. Specifically, plaintiff brings a claim for wrongful termination based on her race under Title VI of the Civil Rights Act of 1964, codified as amended in 42 U.S.C. §§ 2000d (“Title VI”), as well as possibly Title VII of the Civil Rights Act of 1964, codified as amended in 42 U.S.C. §§ 2000e (“Title VII”). [DE-11] at 4; [DE-13] at 1; [DE-21] at 2. Plaintiff refers to a lengthy list of other statutes under which she seeks to bring her claims, including: (i) 18 U.S.C. § 1001 for false statements allegedly made in her termination letter and in a position statement with the Retaliatory Employment Discrimination Bureau ([DE-13] at 1); (ii) 18 U.S.C. §665(a)(b) for embezzlement and theft of the bonuses and holiday pay that would have been properly due plaintiff (id.); (iii) 19 U.S.C. §1592, which covers the penalties for fraud, gross negligence, and negligence under the Tariff Act, alleging that defendants “submitted documents full of omissions, false scenarios, misleading dates and times and riddle [sic] with belittlement [sic] statements by stating ‘caregiver' redundancy [p]laintiff was hire [sic] as Direct Support Professional . . .” (id. at 3); (iv) “28 U.S.C. § 4101(1) §1983” for defamation and “false information and made up scenarios causing so much stress” (id. at 1); (v) 42 U.S.C. § 1320-6 for wrongful disclosure of individually identifiable health information (id. at 2); (vi) the “Equal Pay Act 503(b) of the ADA” for remaining at the same pay grade despite requesting raises and being referred by defendants to her retention bonus which was only $9.17 in October 2022 (id.); (vii) 38 U.S.C. § 7332 for violation of the confidentiality of certain medical records (id.); (viii) 42 U.S.C. § 1981 for sending plaintiff home on June 23, 2022, and receiving an income verification request while plaintiff was on short-term medical leave (id.); and (ix) 15 U.S.C. §1681 for “civil liability for negligent noncompliance” with the Fair Credit Reporting Act (id. at 2), alleging that RHA Health Services did not follow its protocol in documenting aggressive consumers and her consumer's “meltdowns.”
Plaintiff's proposed amended complaint only lists Title VI. [DE-13] at 1. However, in her Motion for Leave to File Second Amended Complaint, plaintiff references Title VII (see [DE-21] at 2) suggesting that this is the true or possibly alternate statutory basis for her claim.
C. Relief requested
Plaintiff seeks various forms of monetary and other relief. Specifically, plaintiff makes the following demand for relief:
41 U.S.C. § 4712(g)(1) $ 75,000, the Equal pay Act 503(b) ADA - Return of retention pay, holiday pay, bonus pay the 6 hours given to consumer reinstatement of benefits, 2022 income in full up to current date Mental stress of my family $75,000, Defamation $75,000, living in a condemned apartment $6,864 years rent payment. Reimbursement of courses not able to complete due to Defendants adverse action. ...
Defendant failure to report 15 U.S.C. §1825(b) Violation and Penalties Defendant do not report June 23, 2022 incident through proper channels. $2,000 each violation.
42 U.S. Code §2000e - Unlawful employment practices $50,000[DE-13] at 4-5.
II. STANDARD OF REVIEW UNDER RULE 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if “it appears certain that the plaintiff cannot prove any set of facts in support of [her] claim entitling [her] to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Ordinarily, the complaint need contain simply “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if the plaintiff alleges factual content “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and shows more than “a sheer possibility that a defendant has acted unlawfully.” Id.; SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 425 (4th Cir. 2015) (“[I]t is not our task at the motion-to-dismiss stage to determine ‘whether a lawful alternative explanation appear[s] more likely' from the facts of the complaint.” (quoting Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015))), as amended on reh'g in part (Oct. 29, 2015).
In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded allegations of the challenged complaint and view those allegations in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); see also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (noting that the court must accept as true all factual allegations of the complaint). All reasonable factual inferences from the allegations must be drawn in plaintiff's favor. Edwards, 178 F.3d at 244. However, bare assertions of legal conclusions or formulaic recitations of the elements of a claim are not entitled to be assumed true. Iqbal, 556 U.S. at 68081. Complaints filed by pro se plaintiffs are entitled to liberal construction. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016) (“We are mindful of our obligation to liberally construe a pro se complaint.”); Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (“We must construe pro se complaints liberally . . . and liberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” (alteration in original) (citations omitted)); White v. White, 886 F.2d 721, 724 (4th Cir. 1989) (“Pro se complaints are to be read liberally”).
III. ANALYSIS OF MOTION TO DISMISS UNDER RULE 12(b)(6)
Defendants contend that plaintiff's complaint, as supplemented and amended, should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for the following reasons: (i) plaintiff's claims under Title VII of the Civil Rights Act of 1964 (“Title VII claims”) are untimely because she failed to timely file the claims within 90 days of receipt of the Notice of Rights; (ii) there is no individual liability under Title VII, and therefore claims against Ms. Thompson or any other individually named defendants must fail; (iii) plaintiff fails to plausibly allege any facts to support her claims of race discrimination under Title VII, Title VI of the Civil Rights Act of 1964, or 42 U.S.C. § 1981; (iv) plaintiff lacks a private right of action to bring, and fails to plausibly allege any facts to support, claims under “Act 18 USC [§] 1001 - False Statement[,]” “18 U.S. Code Chapter 31 § 665(a)(b) Embezzlement & Theif [sic][,]” “42 U.S. Code § 1320[d]-6 - Wrongful disclosure[,]” and “19 U.S. Code § 1592 - Penalties for fraud, gross negligence, and negligence”; (v) plaintiff fails to plausibly allege any facts to support her claims of - defamation, violation of the Equal Pay Act, “negligent noncompliance” with the Fair Credit Reporting Act (“FCRA”), retaliation under the Retaliatory Employment Discrimination Act (“REDA”), and “Deprivation of [illegible] Benefits”; and (vi) plaintiff fails to plausibly allege a claim in connection with her home's infestation, her former consumer's employment with Texas Roadhouse, or the Horse Protection Act. See [DE-22] at 2-3.
Plaintiff's response in opposition to defendants' consolidated motion to dismiss consists various summaries of the facts alleged in her complaint ([DE-26] at 8, 19), as well as contacts she made or witnesses she found related to her claims ([DE-26] at 4-5, 14-15); a timeline of relevant events from plaintiff's perspective ([DE-26] at 11-12); a summary of Consumer #3's dangerous or disruptive behavior (id. at 12-13); and references to various statutes followed by summaries of facts, but largely without responses to defendants' legal arguments (see, e.g., id. at 20-26)
For the reasons provided below, the undersigned RECOMMENDS that that defendants' motion to dismiss [DE-22] be GRANTED and plaintiff's complaint, as supplemented and amended, [DE-13] be DISMISSED.
A. Filing complaint within 90 days of receiving right-to-sue letter
42 U.S.C.A. § 2000e, Title VII of the Civil Rights Act of 1964 provides that “within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved . . .” 42 U.S.C.A. § 2000e-5. Plaintiff's right-to-sue letter was issued on February 8, 2023. [DE-11-1] at 32. Plaintiff filed her state law complaint [DE-1-3] on May 11, 2023, which was 92 days after the right-to-sue letter was issued. Defendants contend that according to the EEOC's Activity Log, plaintiff downloaded the Notice of Right, twice on February 8, 2023, the date it was issued. [DE-23] at 7; [DE-23-1] at 28. Defendants argue that the complaint should be dismissed because it was not filed within the 90-day period and is, therefore, untimely. [DE-23] at 7-8. Plaintiff concedes that she received her Notice of Rights by email on February 8, 2023, but contends that 90 period runs from the time that the recipient opened the Notice of Rights, not the time she received the relevant email. [DE-11-1] at 28. While plaintiff does not appear to specify when she opened the Notice of Rights letter in any of her numerous filings, she notes that she had been scheduled for an interview with the EEOC on March 14, 2023. Id. On February 8, 2023, plaintiff sent an email to the EEOC inquiring into the status of her amendment to her claim. Id. at 52. Less than an hour later a representative from the EEOC responded to her by email, advising her that “[at] this time [her relevant] charge is closed and the Right to Sue has been issue to [plaintiff] and to the company.” Id. at 53. This email additionally clarifies that “the Commission has determined it will not move forward with [plaintiff's] charge notwithstanding the corrected information.” Id. In an email dated February 16, 2023, plaintiff appears to acknowledge that she learned that her claim was closed on or before February 9, 2023. [DE-11-1] at 3 (plaintiff advising by email that she spoke with a representative from the EEOC from whom plaintiff “found out that in February 2023 my case was closed on January 31, 2023” and was then referred to another EEOC employee, whom plaintiff emailed on February 9, 2023); see also [DE-26] at 19 (plaintiff noting that “plaintiff was issued the right to sue on February 8, 2023, with an unsigned complaint”).
Defendants attach an EEOC Activity Log to their motion to dismiss indicating that plaintiff downloaded her Notice of Rights letter twice on February 8, 2023 (see [DE-23-1] at 28) and urge the court to consider this document as a part of its motion to dismiss analysis under the standard set forth in Philips v. Pitt County Mem. Hosp. [DE-23] at 7 (citing Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. N.C. 2009)). However, the court need not consider this document as it would not meaningfully advance the court's analysis in light of plaintiff's acknowledgment that the Notice of Rights was emailed to her on February 8, 2023 ([DE-11-1] at 28), and the EEOC Activity Log does not indicate when a user opened a downloaded document, which, while not dispositive, would be the only matter relevant for the court's tolling inquiry.
“The 90-day time limit is ‘strictly enforced' and ‘the plaintiff bears the burden of establishing the timeliness of the filing of her complaint whe[n] it is contested by the defendant.'” Cepada v. Bd. of Educ. of Baltimore Cnty., No. CIV. WDQ-10-0537, 2010 WL 3824221, at *3 (D. Md. Sept. 27, 2010) (alteration in original) (quoting Brown v. Mayor of Balt., No. RDB 08-2549, 2010 U.S. Dist. LEXIS 10175, at *5 (D.Md. Feb. 5, 2010)).
Contrary to plaintiff's position “[t]his Circuit has refused to apply an ‘actual receipt' standard in Title VII actions and has consistently held that the ninety-day limitations period begins to run on the ‘date of receipt, actual or constructive, of the EEOC's right-to-sue letter.'” Stevens v. Elior Inc., 2023 U.S. Dist. LEXIS 70522, *6 (W.D. N.C. Apr. 24, 2023) (quoting Watts-Means v. Prince George's Family Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993)). In fact, this court has recently opined on a very similar issue, finding that the right-to-sue limitations period started on the day the email was sent, even though the plaintiff in that case contended that he did not open the email until days later. Cenezy v. Koniag Tuknik Gov't Servs., No. 5:22-CV-23-BO, 2022 WL 3974141, at *2 (E.D. N.C. Aug. 31, 2022). Moreover, in that circumstance, this court found that equitable tolling was not appropriate as the relevant plaintiff had sufficient time to file his complaint after opening the email. Id.
“Courts have ‘sparingly' applied equitable tolling to extend filing times in two general kinds of situations: where the complainant has been induced or tricked into allowing the filing deadline to pass, or when ‘extraordinary circumstances beyond the plaintiffs' control made it impossible to file the claims on time.'” Hammonds v. Bo's Food Stores, No. 7:13-CV-66-FL, 2014 WL 3738610, at *2 (E.D. N.C. July 29, 2014), aff'd sub nom. Hammonds v. Bo's Food Store, 588 Fed.Appx. 279 (4th Cir. 2014) (quoting Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 321 (4th Cir.2011). Plaintiff has also not provided any facts to suggest that equitable tolling is appropriate in the relevant instance. The EEOC Notice of Rights letter clearly provided that plaintiff had “90 days [from her] receipt of [the] notice” in which to file her lawsuit. [DE-8-2] at 14. While the Notice of Rights letter does provide that “[r]eceipt generally occurs on the date that [plaintiff] view[s] [the Notice of Rights letter]” ([DE-8-2] at 14 (emphasis added)), this circuit has a well-established constructive receipt rule, as discussed above. Additionally, nowhere in her numerous filings does plaintiff allege that she first viewed the Notice of Rights on any day other than the date she received the email.
There is no reasonable basis provided for plaintiff to refrain from reading an email from the EEOC because she believed she had a scheduled interview on March 14, 2023. See [DE-11-1] at 5. On the contrary, if plaintiff believed she had an upcoming interview with the EEOC, she would have had all the more reason to timely read any correspondence she received from them. Plaintiff's allegation that the Notice of Rights did not reflect a signed amendment that plaintiff sent to the EEOC (see [DE-26] at 17) does not change the legal validity or implications of the Notice of Rights and the associated timelines. Unlike certain other cases where equitable tolling was found appropriate based on a plaintiff's claim of confusion, there is no indication that the EEOC provided plaintiff with any alternative 90-day period within which to sue through correspondence or otherwise. Cf. Robinson v. Potter, No. CV DKC 2005-1333, 2006 WL 8460964, at *5 (D. Md. June 27, 2006) (allowing equitable tolling where plaintiff received a second letter ostensibly commencing a second 90 day period within which to file a civil claim); Page v. U.S. Indus., Inc., 556 F.2d 346, 351 (5th Cir. 1977) (allowing equitable tolling where a first letter from the EEOC was ambiguous regarding the termination of the administrative process and a second letter from the EEOC indicated that it was initiating a 90-day period from that date within which to file suit).
The fact that plaintiff allegedly received an email reminder for this appointment on February 13, 2023, ([DE-26] at 18) also does not change the express requirements of the Notice of Rights letter. Moreover, this March 14, 2023, appointment was cancelled in an email from the EEOC on February 21, 2023 (see [DE-26-1] at 18).
Accordingly, the undersigned RECOMMENDS that plaintiff's Title VII claim be DISMISSED for failure to timely file the claim.
B. Individual liability for Ms. Thompson
In addition to the dismissal of plaintiff's Title VII claim for the grounds provided above, under Fourth Circuit precedent, a plaintiff cannot maintain a Title VII claim against her supervisors in their individual capacities. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (“An analysis of Title VII's language and its remedial scheme leads us to join the other circuit courts and conclude that supervisors are not liable in their individual capacities for Title VII violations.”); Jones v. Sternheimer, 387 Fed.Appx. 366, 368 (4th Cir. 2010) (“Title VII . . . do[es] not provide for causes of action against defendants in their individual capacities.”).
Accordingly, it is RECOMMENDED that plaintiff's Title VII claim against defendant, Ms. Thompson be DISMISSED.
C. Discrimination claims under Title VII, Title VI, or 42 U.S.C. § 1981
1. Race discrimination allegations
The clearest allegation of race discrimination in plaintiff's complaint is that Caucasian DSPs were able to choose which consumers they wanted to work with, “whereas those of the African race had no choice.” [DE-13-6] at 3. As plaintiff does not provide any meaningful detail about the consumer selection process at RHA Health Services for either Caucasian or African DSPs, the claim is largely conclusory. Moreover, the limited information plaintiff provides in her filings about the consumer selection process appears to undermine rather than support her assertion of a lack of choice. For example, when plaintiff was offered the challenging consumers, QP Wychunas told plaintiff “[w]ith your credentials, you can work with anyone of them,” to which plaintiff replied, “You bet, I can!” ([DE-13-5] at 3). This scenario as described does not indicate that plaintiff was assigned consumers against her will or that she would not have had an opportunity to further discuss the placements with her QP. Nowhere does plaintiff allege that other less demanding consumers were available for placement at that time or that plaintiff attempted to work with consumers with less severe needs but was denied this opportunity by RHA Health Services. Similarly, plaintiff alleges that Consumer #2 had multiple assigned staff including plaintiff (id.) and that another DSP worked with Consumer #3 at one point in time ([DE-11-1] at 30). Plaintiff does not allege that the other DSPs working with these individuals were of plaintiff's race or that these DSPs had the greater freedom in choosing to work with these individuals and, accordingly, plaintiff has not shown that assignments to these challenging individuals was racially discriminate.
Despite alleging that Consumers #1, #2, and #3 were QP Wychunas' “hardest to place consumers” ([DE-26] at 4), plaintiff indicated that two of the three consumer she had been assigned were “a pleasure to work with” ([DE-13-5] at 3) and that Consumer #1 returned to a different DSP after approximately one week when the DSP returned from a medical absence (id.). Plaintiff also indicates that there was a decision for her to work with only one consumer, because she “was making too many mistakes paperwork-wise.” [DE-11-1] at 41. This also suggests an absence of racially motivated factors in the staffing changes plaintiff experienced. Plaintiff's elsewhere notes that “Tijuana Lewis lost her consumer [because] her consumer said she wanted to work with a Caucasian.” [DE-26] at 19. While the consumer's choice is discriminatory and offensive, plaintiff does not allege that RHA Health Services, replaced Ms. Lewis with a Caucasian DSP or otherwise discriminated against her in violation of Title VII. See Tamosaitis v. URS Inc., 781 F.3d 468, 482 (9th Cir. 2015) (“[A] customer's discriminatory preference does not justify an employer's discriminatory practice”). However, even RHA Health Services had engaged in this conduct, plaintiff cannot bring a lawsuit on behalf of Ms. Lewis. “A nonlawyer [cannot] handle a case on behalf of anyone except [her]self.” Wojcicki v. SCANA/SCE&G, 947 F.3d 240, 245 (4th Cir. 2020) (quotation omitted); see also Myers v. Louden Cty. 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)).
Plaintiff also alleges failure to promote in her amended complaint. [DE-11] at 4. “In order to state a claim for discrimination under Title VII alleging discriminatory failure to promote on account of her race, plaintiff must allege (1) that she is a member of a protected class; (2) that her employer had an open position for which she applied; (3) that she was qualified for the position; and (4) that she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination.” Chadwick v. Food Lion, Inc., No. 5:13-CV-840-BO, 2014 WL 1572542, at *1 (E.D. N.C. Apr. 18, 2014) (citing Taylor v. Va. Union Univ., 193 F.3d 219, 230 (4th Cir.1999) (abrogated on other grounds)). Specifically, plaintiff contends that QP Wychunas was promoted instead of her, when plaintiff had a Master of Business Administration in healthcare management and “over 20 years of experience in direct care and state training,” ([DE-11-1] at 30), while QP Wychunas had only a Bachelor of Science degree and had worked in the school system. Plaintiff does not allege that QP Wychunas was a different race from plaintiff, and thereby failed to allege circumstances giving rise to an inference of unlawful discrimination. Even if plaintiff had alleged that QP Wychunas was a different race from plaintiff, plaintiff has not administratively exhausted this claim and therefore cannot bring it in federal court.
Specifically, plaintiff does not raise this claim or related facts in her charge or amended charge of discrimination to the EEOC and therefore has not administratively exhausted this claim. See West v. Thetford Prop. Mgmt., No. 7:01-CV-139, 2003 WL 24046924, at *3 (E.D. N.C. Feb. 14, 2003), aff'd, 63 Fed.Appx. 167 (4th Cir. 2003) (“Because [plaintiff] did not include discriminatory failure to promote and demotion in his initial complaint and has not received a right to sue letter with respect to such claims, he cannot maintain such claims against his employer in federal court.”) (citing Eyans v. Technologies Applications & Service Co., 80 F.3d 954, 963 (4th Cir.1996)). Accordingly, even if her suit were timely filed, which the undersigned finds it was not, as discussed above, plaintiff would still be unable to bring a Title VII failure to promote claim as she failed to exhaust her administrative remedies for such a claim.
Accordingly, it is recommended that each of plaintiff's claims described above be dismissed.
2. Title VI of the Civil Rights Act of 1964
Plaintiff also does not present a cognizable claim under Title VI. See [DE-13] at 1 (alleging wrongful termination under 42 U.S.C. § 2000d). “Title VI does not provide a judicial remedy for employment discrimination by institutions receiving federal funds unless (1) providing employment is a primary objective of the federal aid, or (2) discrimination in employment necessarily causes discrimination against the primary beneficiaries of the federal aid.” Mitchell v. N. Carolina Div. of Emp. Sec., 76 F.Supp.3d 620, 626 (E.D. N.C. 2014), aff'd, 599 Fed.Appx. 517 (4th Cir. 2015) (quoting Trageser v. Libbie Rehab. Ctr., Inc., 590 F.2d 87, 88 (4th Cir.1978), abrogated on other grounds by Consol. Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984)). Plaintiff has not alleged either of those circumstances in the present case. For the avoidance of doubt, the undersigned does not consider plaintiff's allegations of harm caused to her consumer and his family (see [DE-13-5] at 3 (alleging that “[d]efendant has caused harm to both the consumer and Plaintiff [and that the consumer] has not been seen at the main places he chose to visit, the park and the library”) to represent discrimination against the primary beneficiaries of the federal aid, even if RHA Health Services were in receipt of federal aid, which plaintiff has not alleged. See Mitchell, 76 F.Supp.3d at 626. The undersigned recommends that any claims plaintiff has attempted to bring under Title VI be dismissed.
“Section 1981 protects all persons from racial discrimination in making and enforcing contracts.” Woods v. City of Greensboro, 855 F.3d 639, 645 (4th Cir. 2017) (citing 42 U.S.C. § 1981). Plaintiff alleges numerous violations of RHA Health Services' protocols (see [DE-13-6] at 2 (alleging that the manner in which she was sent home did not follow RHA Health Services' protocol); [DE-13-6] at 1-2 (alleging that being sent alone to three families was not in accordance with the relevant protocol). However, nowhere does plaintiff allege racial discrimination in the enforcement of any provision of her employment or other contract.
Accordingly, the undersigned recommends that plaintiff's claims under 42 U.S.C. § 1981 be dismissed.
D. Statutes without a private right of action
Plaintiff cites to a significant number of statutes for which there is no private right of action. Therefore, plaintiff cannot allege claims under these statutes in a civil action. The statues cited include 18 U.S.C. § 1001; 18 U.S.C. § 665; 42 U.S.C. § 1320[d]-6; 19 U.S.C. § 1592; and 38 U.S.C. § 7332. See Fed. Sav. & Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir. 1987) (finding that 18 U.S.C. § 1001 covering false statements does not provide a civil cause of action); Jones v. GE, 2019 U.S. Dist. LEXIS 218305, *22 (finding that 18 U.S.C. § 665, which is a criminal statute covering theft or embezzlement from employment and training funds, does “not create a private right of action[, nor] . . . unambiguously provide plaintiff with either a private right or remedy.”); Warren v. Petery, 2021 U.S. Dist. LEXIS 143634, *8; (“The provision of HIPAA cited by Plaintiff, 42 U.S.C. § 1320d-6, penalizes wrongful disclosure or use of protected health information maintained by a covered entity[, but] does not explicitly provide for a private right of action.”); Jerman v. AT&T Corp., 2021 U.S. Dist. LEXIS 114152, *4 (noting that 19 U.S.C. § 1592, which identifies penalties for fraud, gross negligence, and negligence under the Tariff Act of 1930, “does not provide for a private right of action.'”) (quoting Potter v. Toei Animation Inc., 839 F.Supp.2d 49, 53 (D.D.C. 2012)); Jackson v. Shinseki, Civil Action No. 10-cv-02596-MSK-CBS, 2010 U.S. Dist. LEXIS 137618, at *3 (D. Colo. Dec. 16, 2010) (“Nothing in [38 U.S.C.] section 7332 suggests a congressional purpose of providing a private cause of action.”); see also Ellis v. Multnomah County, 2004 U.S. Dist. LEXIS 14440, *12 (“There is no provision for a private cause of action for money damages in [38 U.S.C. § 7332.]”).
Accordingly, it is recommended that any claim plaintiff makes, or intended to make, under one of these statutory sections be DISMISSED.
E. Defamation
Plaintiff seeks to bring a claim under “28 U.S.C. § 4101(1) §1983” for “defamation” and “false information and made up scenarios causing so much stress.” [DE-13] at 1. Plaintiff appears to allege, in essence, that defendants in their Position Statement to REDA dated April 24, 2023, inaccurately provided that plaintiff voluntarily refused available work. See [DE-26] at 21; see also [DE-11-1] at 77 (termination letter from RHA Health Services to plaintiff “[Y]our employment with RHA will be terminated due [sic] refusing available work assignments.”) Plaintiff clarifies that she never turned down work but did discuss consumer safety with her QP. See [DE-26] at 22; see also [DE-13-5] at 3 (plaintiff noting that she did not feel comfortable with Consumer #2 and expressed these concerns to her QP).
28 U.S.C. § 4101 is the definition section of a portion of the United States Code that discusses foreign judgments, and it is not applicable here. The undersigned does not discern any cognizable state law claims for defamation or otherwise in plaintiff's complaint, as supplemented and amended [DE-13]. However, even if plaintiff had stated a supplemental claim for defamation under North Carolina law, the undersigned would have recommended that this court decline to exercise jurisdiction over such a claim as all federal claims are dismissed as discussed herein.“[A] supplemental claim cannot survive in this court inasmuch as there are no viable federal claims asserted.” Iannucci v. Mission Hosp., No. CIV.1:08CV471, 2008 WL 5220641, at *4 (W.D. N.C. Dec. 11, 2008); see also “When a court declines to exercise supplemental jurisdiction under § 1367(c)(3) because only state claims remain, the proper action is a dismissal without prejudice so that the complaining party may pursue the claim in state court.” Austin v. City of Montgomery, 196 Fed.Appx. 747, 754 (11th Cir. 2006).
Additionally, neither party has alleged diversity jurisdiction or alleged facts to support diversity jurisdiction. See [DE-8-2] at 9; [DE-11-1] at 99; [DE-13-1]; [DE-27-1] at 1.
F. Equal Pay Act and 503(b) of the ADA
Plaintiff's Equal Pay Act claim seems to be premised on the fact that she did not receive any raises while working for defendant RHA Health Services and that her retention bonus in September 2022 was only $9.17. [DE-13] at 2; [DE-13-6] at 3.
The Equal Pay Act makes it unlawful to “discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C.S. § 206(d)(1).
Plaintiff has not shown that male employees were paid more than she was for the same work. She has also not shown that she was contractually or otherwise entitled to the raises or higher retention bonuses in question. Her allegations indicate that she is not even sure if DSPs received higher bonusses for the same work during the relevant period. See [DE-11-1] at 30 (“I hope others' retention bonus is the same otherwise.”). Furthermore, as noted by the Department of Labor in a letter to plaintiff, “an employer may change an employee's work hours without notice or consent, unless subject to a prior agreement. See [DE-26-1] at 19. Plaintiff has not produced any relevant prior agreement guaranteeing her to a specific amount of hours or a certain level of bonuses. Plaintiff also acknowledges that she received her paid time-off on November 19, 2022. [DE-26] at 12.
Plaintiff also references “503(b) of the ADA” in connection with this claim. [DE-13] at 2. This appears to be a reference to Section 503(b) of the original Americans with Disabilities Act of 1990 (“ADA”), which is currently codified as 42 U.S.C. §12203(b). This provision provides that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.” 42 U.S.C. §12203(b).
While plaintiff does allege that she is disabled with a back and left knee injury ([DE-26] at 3), she has not otherwise alleged a claim of disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”) and her Notice of Rights letter from the EEOC does not include any ADA claim. See [DE-8-1] at 2-3; Parker v. Detroit Sportservice, Inc., No. 07-14780, 2008 WL 4539524, at *3 (E.D. Mich. Oct. 9, 2008) (noting that because “[p]laintiff failed to raise her ADA claim in her administrative proceedings and failed to obtain a right to sue letter from the EEOC on this complaint,” the claim should be dismissed). Accordingly, the undersigned RECOMMENDS that plaintiff's Equal Pay Act and any associated claim under the ADA be DISMISSED.
G. Negligent noncompliance under Fair Credit Reporting Act
15 U.S.C. § 1681o is a provision of the Fair Credit Reporting Act, codified at 15 U.S.C. § 1681 et seq., and specifies the civil liability for negligent noncompliance with the requirements of 15 U.S.C Subchapter III with respect to credit reporting agencies and the use of consumer reports. With respect to this claim, plaintiff alleges that “the Defendant took away consumer on June 23, 2022 and NOT following RHA [protocol] documented aggressive consumer and his daily meltdown Defendant had this young man over 20 years.” [DE-13] at 2-3.
Plaintiff has not alleged that the named defendants used or misused her consumer report or otherwise failed to comply with the requirements of 15 U.S.C Subchapter III. Accordingly, the undersigned RECOMMENDS that plaintiff's claim under 15 U.S.C. § 1681o be DISMISSED.
H. Retaliatory Termination
Plaintiff alleges in her filings that she faced termination for her “reports of neglect unsafe work environment and overdosing the consumers,” ([DE-11-1] at 86) and “allegation of abuse unsafe work environment and overdosing consumers” (id. at 87). To the extent that plaintiff seeks to bring a claim under the North Carolina Retaliatory Employment Discrimination Act (“REDA”), codified at N.C. Gen. Stat. § 95-241, et. seq., the undersigned notes, as discussed above, the undersigned RECOMMENDS that this court decline to exercise supplemental jurisdiction over such claims as no federal claims remain. Additionally, plaintiff appears to suggest that her REDA case is still ongoing (see [DE-26] at 3) (“The plaintiff strongly feels the REDA is waiting for the outcome of this case to move”), and plaintiff has not produced a right to sue letter from the North Carolina Labor Commissioner related to any such claim. See, e.g., Skinner v. Quintiles Transnational Corp., 167 N.C.App. 478, 484, 606 S.E.2d 191, 194 (2004) (“An employee may only bring an action under [REDA] when he has been issued a right-to-sue letter by the [North Carolina Labor] Commissioner.”) (citing N.C. Gen. Stat. § 95-243(e)).
Accordingly, the undersigned RECOMMENDS that any state claim plaintiff brings for retaliatory termination be DISMISSED WITHOUT PREJUICE.
I. 41 US.C. § 4712(g)(i) and 15 U.S.C. § 1825(b)
Plaintiff also refers to 41 U.S.C. § 4712(g)(i) and 15 U.S.C. § 1825(b) in her request for relief. [DE-13] at 4-5. 41 U.S.C. 4712(g)(i) provides the definition for “abuse of authority” within the context of federal contracts. Nowhere does plaintiff allege that her employer was a federal contractor. Similarly, 15 U.S.C. 1825(b) is a provision that provides violations and penalties related to the Horse Protection Act. As there no allegations involving horses in the complaint, any claim related to this provision must likewise fail.
Accordingly, the undersigned RECOMMENDS that any claims plaintiff brings under 41 U.S.C. § 4712(g)(i) and 15 U.S.C. § 1825(b) be DISMISSED.
J. Failure to state a claim
Plaintiff lists a litany of grievances in her complaint. While many of the events and circumstances as alleged by plaintiff may be perceived as unfair or unpleasant, they do not thereby lead to a legal cause of action. See Farmer v. Dixon Elec. Sys. & Contracting, Inc., No. CIV. 10-326-ART, 2013 WL 2405547, at *6 (E.D. Ky. May 31, 2013) (“But not every legitimate workplace complaint can be translated into a legal cause of action [and] Title VII is not ‘a general civility code for the American workplace.'”) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998)).
As discussed above, amongst the list of statutes in plaintiff's complaint, they lack “a short and plain statement of the claim showing that [plaintiff] is entitled to relief” under the standards articulated in the relevant statute and caselaw. Fed.R.Civ.P. 8(a)(2); see also Padilla-Ruiz v. Commc'n Techs., Inc., 793 Fed.Appx. 200, (Mem)-201 (4th Cir. 2020) (“A party waives an argument . . . by failing to develop its argument-even if its brief takes a passing shot at the issue.”) (quoting Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017)).
Moreover, even taking plaintiff's filings liberally, the undersigned does not perceive federal causes of action related to the claims plaintiff alleges. The undersigned notes that plaintiff originally filed her complaint in state court and defendants filed the notice of removal. See [DE-1]. However, this does not change the fact that “[f]ederal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). In her complaint, as supplemented and amended, plaintiff does not raise any state law claims, and the undersigned makes no findings or recommendations regarding whether plaintiff would have any viable state law claims based on the facts alleged. Folkes v. Nelsen, 34 F.4th 258, 272 (4th Cir. 2022), cert. denied sub nom. Folkes v. Williams, 143 S.Ct. 736, 214 L.Ed.2d 386 (2023) (“To be sure, pro se filings are held to less stringent standards than formal pleadings drafted by lawyers, but that does not give a court license to look beyond the claim presented.”) (citations omitted)
For example, even if defendants' treatment of plaintiff was “inconsistent with [d]efendant's mission statement” or if defendants failed to follow their own policies ([DE-26] at 2) or if another DSP took a consumer to her divorce proceedings ([DE-13-5] at 3), this court does not discern any cause of action cognizable in federal court for providing a remedy to these and similar grievances. Cf. Mack v. E. Carolina Univ., No. 4:21-CV-00108-M, 2022 WL 945595, at *7 (E.D. N.C. Mar. 29, 2022) (“[W]hile [the] actions against [p]laintiff could be perceived by a reasonable person as upsetting, disappointing, and unfair, they do not rise to the level of severe or pervasive necessary to state a plausible Title VII hostile work environment claim.”). The undersigned does not perceive a federal cause of action in plaintiff's allegations (i) that Consumer #3 was behaviorally aggressive, and that plaintiff had insufficient credentials to handle such a consumer ([DE-26] at 11), (ii) that there was no interdisciplinary team to work with Consumer #3 (id. at 10), or (iii) that Consumer #3's mother contracted COVID-19, and no one informed plaintiff (see id. at 11, 20).
While plaintiff may have expected a larger retention bonus based on her previous experience, she has not provided any allegations showing that she was legally, contractually or otherwise, entitled to a higher bonus, on the basis of federal law. See [DE-13] at 1. Nowhere does plaintiff allege that any named defendants disclosed her confidential health information in violation of HIPAA or other relevant statute. Finally, even though the circumstances of plaintiff's alleged living situation, including living in a condemned apartment ([DE-11-1] at 21) that is infested with rodents are regrettable, the court does not perceive a federal cause of action related to plaintiff's allegations entitling her to relief.
In light of the foregoing, it is RECOMMENDED that defendants' motion to dismiss [DE-22] be GRANTED and plaintiff's complaint, as supplemented and amended, [DE-13] be DISMISSED.
IV. REMAINING MOTIONS
In light of the above, it is further RECOMMENDED that defendants' motion to stay regarding order for discovery plan [DE-15]; plaintiff's motion to compel [DE-27]; and plaintiff's second motion to compel [DE-29] be DENIED AS MOOT.
V. CONCLUSION
For the reasons stated above, plaintiff's motion for leave to file a second amended complaint [DE-21] is GRANTED IN PART with respect to the amendment or supplementation of her claims, but DENIED IN PART with respect to the addition of new defendants.
For the reasons stated above, it is RECOMMENDED that defendants' motion to dismiss [DE-22] be GRANTED and plaintiff's complaint, as supplemented and amended, [DE-13] be DISMISSED.
Consistent with the above recommendations, it is further RECOMMENDED that defendants' motion to stay regarding order for discovery plan [DE-15]; plaintiff's motion to compel [DE-27]; and plaintiff's second motion to compel [DE-29] be DENIED AS MOOT.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until January 31, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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. Any response to objections shall be filed within 14 days of the filing of the objections.
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).