The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:21-CV-100-BO
ANDREA CENNINGTON, )
Plaintiff, )
V. 5 ORDER
CHRISTINE WORMUTH, Secretary, U.S.
Department of the Army, )
Defendant. )
This cause comes before the Court on defendant's motion to dismiss [DE 18] plaintiff's
complaint for failure to state a claim. A hearing on this motion was held before the undersigned
via video conference on July 11, 2022. For the reasons that follow, defendant's motion is granted.
BACKGROUND
Plaintiff is a Black female who worked as a clinical social worker for the Department of
the Army. She was born in 1971, is a veteran, and she states that she is disabled because she suffers
from Attention Deficit Hyperactivity ("ADHD") and Post Traumatic Stress Disorder ("PTSD").
Plaintiff allegedly began to experience discriminatory treatment in her workplace around 2015.
Co-workers allegedly made racially and sexually charged comments in plaintiff's presence, such
as jokes about slaves, a joke about plaintiff being an angry black woman, and insensitive comments
about the smell of Puerto Rican people.
Factual Allegations Prior to 45 days from Plaintiff's Contact with the EEO
On July 21, 2016, plaintiff told a supervisor, Captain Cochran that she felt emotionally
unsafe around certain co-workers. In December 2016, a co-worker allegedly told plaintiff she was
difficult to work with because of plaintiffs inability to stay on task due to her ADHI) and her
introverted personality. Plaintiff found this to be discriminatory. On March 27, 2017, plaintiff
emailed two supervisors to tell them that she did not feel comfortable during some meetings
because of racially stereotypical comments being made around her. Plaintiff was frustrated that
her co-workers found her angry and unapproachable.
Plaintiff alleged that she requested reasonable accommodations for her ADHD and PTSD
on March 30, 2017. Plaintiff requested that the staff should be provided sensitivity training, that
plaintiff should be given breaks, that plaintiff be excused from unorganized meetings, that non-
work-related conversations should be moved out of the workplace or meeting areas, and
permission to telework in limited circumstances. Plaintiff alleged that her medical conditions were
exacerbated by what she perceived to be a hostile work environment. Plaintiff states, without
providing details, that the defendant failed to implement these requests and that "[th]Je way Captain
Cochran handled the reasonable accommodation request was not done in good faith." Amended
Complaint { 46.
Plaintiff alleged that, beginning in June 2017, three co-workers repeatedly made false and
damaging statements about plaintiff to new staff members, including calling her a liar. Plaintiff
allegedly felt harassed about three days per week. In June 2017, management reassigned an intern
from plaintiff to a different therapy group. At an unknown time before July 20, 2017, plaintiff
allegedly filed a complaint of discrimination. On January 18, 2018, a non-clinical peer allegedly
falsely reported that plaintiff had falsified medical documentation. On February 8, 2018, two
colleagues declined to assist plaintiff. Plaintiff claims they could have helped her. Around
February 19, 2018, unknown persons were allegedly responsible for improperly repcrting
plaintiff's outside training to Dr. Lesica, a supervisor.
On February 23, 2018, plaintiff allegedly spoke to Capt. Cochran to express her concerns
about harassment. Cochran encouraged plaintiff to speak to her coworkers more. Plaintiff alleged
that he was not properly addressing the situation. Sometime in March 2018, a coworker called
plaintiff a liar in front of other peers and Cochran did not intervene. On March 6, 2018, plaintiff
alleged that Cochran blamed plaintiff for miscommunications about scheduling with clients. On
March 27, 2018, Cochran verbally reprimanded plaintiff for missing meetings, which plaintiff
perceived to be retaliatory. Sometime in March 2018, plaintiff alleges that there was a rumor being
spread that she was suicidal.
Factual Allegations 45 days from Plaintiff's Contact with the EEO
On April 9, 2018, plaintiff left work early crying because she was allegedly subject to
harassment and reprisal. Plaintiff told Dr. Lesica that she would be using Family Medical Leave.
Plaintiff alleged that she was then placed on the Impaired Provider list in April 2018 without being
notified as a result of missing too many days of work and her anxiety and depression's impact 9n
her ability to do her job. Plaintiff argues that she could not have been an impaired provider, because
plaintiff was not attending work and thus not providing treatment. Plaintiff alleged that the
committee did not follow the proper procedure in voting to place her on this list, and stated that
the committee acted recklessly and pretextually. On April 26, plaintiff learned that she had
received a rating of unacceptable on one of the metrics of her performance evaluation. She alleges
that this was unwarranted.
On May 10, 2018, plaintiff contacted Equal Employment Opportunity ("EEO") about to
report harassment. On July 26, plaintiff was assigned to a new department at Fort Bragg. Plaintiff
alleges that the reassignment was not properly conducted, and it was retaliatory. On August 21,
2018, plaintiff filed a formal complaint of discrimination with the EEO. On February 20, 2019,
plaintiff requested a hearing before the Equal Employment Opportunity Commission ("EEOC").
On December 2, 2020, plaintiff received a final Agency Decision.
Plaintiff filed this suit on March 1, 2021. Plaintiff alleges claims of employment
discrimination in violation of (Count I, Count III, Count IV) Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and (Count II) the Rehabilitation Act, 29 U.S.C. §
701 et seq. A hearing on the motion to dismiss was held before the undersigned via video
conference on July 12, 2022 in Elizabeth City, North Carolina.
DISCUSSION
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Papasan v.
Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and should view the complaint in a light
most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled
"allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged," and mere recitals of the elements of a cause of action supported by conclusory statements
do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the
factual allegations do not nudge the plaintiff's claims "across the line from conceivable to
plausible." Twombly, 550 U.S. at 570. The complaint must plead sufficient facts to allow a court,
drawing on judicial experience and common sense, to infer more than the mere possibility of
misconduct. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009). The court need not accept the plaintiff's legal conclusions drawn from the facts, nor need it
accept as true unwarranted inferences, unreasonable conclusions, or arguments. Philips v. Pitt
County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Exhaustion of Administrative Remedies
In order to file a Title VII or Rehabilitation Act claim of discrimination against the federal
government, a plaintiff must first exhaust her administrative remedy. See 29 C.F.R. §
1614.105(a)(1). In cases such as this, the plaintiff must contact an Equal Employment Opportunity
Counselor to report discrimination within 45 days of the alleged action in order to initiate the
administrative exhaustion process. See 29 C.F.R. § 1614.105(a)(1); Kobraei v. Alexander, 521
Fed. Appx. 117, 118 (4th Cir. 2013); Chacko v. Patuxent Inst., 429 F.3d 505, 509, 513 (4th Cir.
2005); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000).
"[A]dministrative exhaustion is a condition precedent to suit that functions like a statute of
limitations." Wilkinson v. Rumsfeld, 100 F. App'x 155, 157 (4th Cir. 2004). Claims about conduct
that was not reported to an EEO Counselor within 45 days will be considered not exhausted.
Murphy v. West, 172 F.3d 863, 1999 WL 64284 at *3 (4th Cir. 1999).
Plaintiff in this case contacted an EEO counselor on May 10, 2018 to report discrimination
that allegedly started in 2015. Plaintiff had failed to initiate EEO contact to report any conduct
occurring prior to March 26, 2018. Failure to exhaust administrative remedies concerning a Title
VII claim or claim of disability discrimination deprives federal courts of subject matter jurisdiction
over the claim. See Cruthirds v. Miller, No. 5:13-CV-849-BO, 2015 WL 507466, at *3 (E.D.N.C.
Feb. 6, 2015), aff'd, 600 F. App'x 146 (4th Cir. 2015); Cruthirds v. Lacey, No. 5:14-CV-00260-
BR, 2017 WL 3754764, at *3 (E.D.N.C. Aug. 30, 2017). Plaintiff has not demonstrated that she
contacted an EEO counselor within 45 days of any specific incidence of discrimination happening
before March 26, 2018. Accordingly, the Court finds that claims relating to any allegations
between June 2015 and March 25, 2019 are dismissed as not exhausted. See West, 1999 WL 64284
9;
Count I: Title VII racial discrimination
Title VII prohibits employers from "discriminat[ing] against any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of such individual's
... race." 42 U.S.C. § 2000e-2(a)(1). "An unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors also motivated the practice." Jd. at
§ 2000e-2(m). To state a claim for employment discrimination, plaintiff must plausibly allege that
her employer took adverse employment action against plaintiff because of her race.’ See
McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.
2015). Plaintiff must allege that "that the motive to discriminate was one of the employer's motives,
even if the employer also had other, lawful motives[.]" Univ. of Texas Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 339 (2013).
Plaintiff's allegations of racial discrimination between March 26, 2018 and the filing of this
suit lack sufficient facts to nudge the plaintiff's claims "across the line from conceivable to
plausible." Twombly, 550 U.S. at 570. Plaintiff alleges that she was reprimanded for missing
meetings, that she was placed on an impaired provider list, that she received an unacceptable on
her performance evaluation, and that she was reassigned to a different department. On April 9,
2018, plaintiff states that she left work early due to "ongoing harassment/reprisal," Amended
Complaint § 80. But plaintiff does not provide specific facts or examples. On July 23, 2018, Dr.
Lesica allegedly stated that if plaintiff came back to his department he would quit. Plaintiff has not
provided any facts that allow racial motivation to be inferred from any of the aforementioned
actions. Accordingly, plaintiff has failed to state a Title VII racial discrimination claim.
Count II: harassment and disparate treatment based on disability
!"[AJn employment discrimination plaintiff need not plead a prima facie case of discrimination . . . . to survive
respondent's motion to dismiss." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002).
To state a claim of discrimination based on disability in violation of the Rehabilitation Act
plaintiff must allege that she was a qualified individual with a disability and that her federal
employer discriminated against her because of that disability. See Hooven-Lewis v. Caldera, 249
F.3d 259, 268 (4th Cir. 2001). Discrimination includes "limiting, segregating, or classifying a job
applicant or employee in a way that adversely affects the opportunities or status of such applicant
or employee because of the disability of the applicant." 42 U.S.C. § 12112(a). Discrimination also
includes
{[N]ot making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant
or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered
entity.
Id. § 12112(b)(5)(A).
To prevail on a disability discrimination claim, plaintiff must show that " (1) she is
disabled; (2) she was otherwise qualified for the position; and (3) she suffered an adverse
employment action solely on the basis of the disability." Perry v. Computer Scis. Corp., 429 F.
App'x 218, 220 (4th Cir. 2011). A disability is "a physical or mental impairment that substantially
limits one or more major life activities." 42 U.S.C. § 12102(1)(A).
Plaintiff alleges that she is disabled because she has PTSD and ADHD. Plaintiff alleges
she was otherwise qualified for the position. Plaintiff alleges that she suffered the following
adverse employment action: reprimanded for missing meetings, that she was places on an impaired
provider list, that she received an unacceptable on her performance evaluation, and that she was
reassigned to a different department. Even if plaintiff had plausibly alleged an adverse employment
action, plaintiff has not stated facts that leads the Court to conclude that any of the stated action
was taken against her "solely on the basis of [her] disability." Perry, 429 F. App'x at 220.
Plaintiff offers no facts that lead to the conclusion that she was reassigned to a new
department, reprimanded for missing meetings, or received a poor performance evaluation because
of her disabilities. Plaintiff states that she was placed on the impaired providers list for missing
work in part due to her mental health issues, which had "an increasingly negative impact on her
ability to perform the assigned tasks necessary in fulfillment of her position as a Clinical Social
Worker." Amended Complaint § 89. Plaintiff also states she was placed on the list for missing too
many days of work, when plaintiff states that she did not go to work in part because she was upset
about her working conditions. Even if, without deciding, plaintiff was placed on the list solely
because of her disability, plaintiff does not allege sufficient facts to show that being placed on the
list is an adverse employment action.
An adverse employment action would "dissuade[] a reasonable worker from making or
supporting a charge of discrimination[.]" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006). Without giving the Court any context or elaborating beyond unclear licensing
implication, plaintiff only recites the legal standard: "Placement in the IHPC which could have
licensing implications would dissuade a reasonable employee from engaging in protected activity."
Amended Complaint 7 83. The Court is not obligated to take plaintiff's legal conclusions as fact.
Philips, 572 F.3d at 180.
Plaintiff also claims that defendant denied plaintiff reasonable accommodations for her
ADHD. Plaintiff requested that the staff should be provided sensitivity training, that plaintiff
should be given breaks, that plaintiff be excused from unorganized meetings, that non-work-
related conversations should be moved out of the workplace or meeting areas, and permission to
telework in limited circumstances. Plaintiff provides little information about her ADHD and how
its symptoms would be lessened by being excused from personal conversations or unorganized
meetings. Plaintiff does not provide any the Court with any factual basis by which to find that
these requested accommodations were reasonable. Accordingly, the Court finds that plaintiff has
failed to state a disability discrimination claim.
Count III: Title VII gender harassment and disparate treatment
To show that the harassment was based on protected status, plaintiff must show that "but
for" her protected status, she would not have been discriminated against. Gilliam v. S. Carolina
Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2003). "Disparate treatment" is
discrimination where the "employer simply treats some people less favorably than others because
of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical,
although it can in some situations be inferred from the mere fact of differences in treatment." □□□□□
Bhd. of Teamsters vy. United States, 431 U.S. 324, 335 (1977).
Other than one comment, where a co-worker called plaintiff an angry black woman,
plaintiff offers no factual information that she was subjected to less favorable treatment because
of her gender, that she was singled-out because of her gender, or that people who were not female
received privileges. Plaintiff only includes conclusory statements in her amended complaint which
are not sufficient to state a claim. Accordingly, plaintiff has failed to state a gender discrimination
claim.
Count IV: Title VII reprisal
To state a Title VII retaliation claim, a "plaintiff must prove (1) he engaged in protected
conduct, (2) he suffered an adverse action, and (3) a causal link exists between the protected
conduct and the adverse action." Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir.
2012). To prevail, plaintiff would have to show that "the desire to retaliate was the but-for cause
of the challenged employment action." Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 900 (4th Cir.
2017) (citations omitted) (quotations omitted). Employers are prohibited from taking "adverse
employment action against an employee for opposing discriminatory practices in the workplace."
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (citing 42 U.S.C.
§ 2000e-3(a)). Adverse actions in the retaliation context are those that are "harmful to the point
that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006). However,
"[a]n employee's decision to report discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at work and that all employees
experience.” Jd. at 68.
Plaintiff alleges that co-workers called her a liar at unspecified times beginning in June
2017. Plaintiff states that she believes that co-workers spoke negatively about plaintiff. Amended
Complaint { 59. Plaintiff alleges that Dr. Lesica allowed this to happen, but plaintiff fails to allege
that any supervisor or anyone with any authority over plaintiffs work retaliated against plaintiff.
Plaintiff was re-assigned to another department, but the facts appear to lead to the conclusion that
it was because plaintiff's supervisors were unhappy with her performance. Plaintiff states that
Captain Cochran, a member of management, stated that plaintiff's colleagues were not comfortable
working with plaintiff directly in part because she had burned all of her bridges.
Plaintiff alleges that being placed on the impaired provider list was retaliatory. A
supervisor listed several reasons for placing her on the list, including plaintiff's struggles with her
mental health, her diminished ability to perform her job function, her inability to work well with
others, and her "repeated unsubstantiated claims that she is being discriminated against." Amended
Complaint ¢ 89. First, the complaint does not make it clear that plaintiff's protected activity
(making discrimination claims to the EEO) was the but-for cause of the placement on the list. See
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CavaMezze Grill, LLC, 858 F.3d at 900. Plaintiff's supervisor listed many independent and
sufficient reasons why plaintiff was recommended to be an impaired provider — chief among them
that plaintiff appeared not to be able to perform her job functions fully. Second, it is not clear that
being placed on the impaired provider list is an adverse employment action. Plaintiff points to no
negative impact on her job or her work as a result of being placed on this list. Plaintiff nakedly
states in the complaint that "[r]eferral to the IHPC which could have licensing implications would
dissuade a reasonable employee from engaging in protected activity, and Plaintiff reasonably
perceived it as a retaliatory measure." Amended Complaint { 82. Without more facts about whether
the referral actually had an impact on plaintiff's license, plaintiffs statement is conclusory
statement of law that does not need to be taken as true. See Iqbal, 556 U.S. at 678.
Plaintiff vaguely states that she was "reprimanded by Captain Cochran for ‘missing
meetings.’ This was factually false." Amened Complaint § 77. She then makes a formulaic
recitation of the legal standard. The Court does not have enough information to plausibly conclude
that being reprimanded for missing meetings, which plaintiffs admits to refusing to attend, was an
act of reprisal. Accordingly, plaintiff has failed to state a claim.
The motion to dismiss is GRANTED.
CONCLUSION
Accordingly, defendant's motion to dismiss [DE 18] is GRANTED.
SO ORDERED, this 2D day of July, 2021.
Vaentnet ld. Megly
TERRENCE W. BOYLE i)
UNITED STATES DISTRICT JUDGE
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