CHRISP v. UNC CHAPEL HILL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MALIA SOMONA CHRISP, )

)

Plaintiff, )

)

v. ) 1:20CV724

)

THE UNIVERSITY OF NORTH )

CAROLINA AT CHAPEL HILL, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This case, before the court for the second time, arises out

of the allegedly unlawful treatment of pro se Plaintiff Malia

Somona Chrisp by her former employer, the University of North

Carolina at Chapel Hill (“UNC”). Before the court is UNC’s motion

to dismiss. (Doc. 9.) For the reasons set forth below, the motion

will be granted and the complaint dismissed.

I. BACKGROUND

The allegations in the complaint, taken in the light most

favorable to Chrisp as the non-moving party, show the following:1

1 Because a motion to dismiss “tests the sufficiency of a complaint,”

see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.

1992), the court is “generally limited to a review of the allegations

of the complaint itself,” Goines v. Valley Cmty. Servs. Bd., 822 F.3d

159, 165–66 (4th Cir. 2016). However, a court can also consider

documents explicitly incorporated into the complaint by reference or

attached as exhibits. See id. at 166. Here, Chrisp has attached several

documents to her complaint concerning charges she filed with the Equal

Employment Opportunity Commission (“EEOC”) prior to the present action.

(See Docs. 1-1; 1-2; 1-3.) She incorporates these documents by reference

Chrisp is a resident of Alamance County, North Carolina, and

was employed by UNC as an accounting technician from September

2012 until some point in 2018. (Doc. 1 ¶¶ 2, 15; Doc. 12 at 14.)

Chrisp describes herself as “a black female approximately 51-52

years of age” during the relevant time. (Doc. 1 ¶ 15.) In April

2016, she asked her manager about a new job opening posted in the

office. (Doc. 1-1 at 1.) Her manager, Jean Estrada, told her she

did not qualify for the position even though in the past the

manager had sent her other job postings for positions in other UNC

departments and encouraged her to apply for them while noting her

qualifications for such. (Id.; Doc. 1 ¶ 18.)

In November 2016, UNC ultimately hired an approximately 25-

year-old white female for the open position.2 (Id. ¶¶ 19-20.)

According to Chrisp, the new employee was less experienced and

less qualified than her. (Id. ¶ 20.) Chrisp does not allege that

she applied for the position. (See Doc. 1-4 at 1.) She also

into her complaint. (Doc. 1 ¶¶ 9-13.) As such, and because these

documents contain relevant facts and background information, the court

will consider them in analyzing the present motions.

2 There are multiple instances in which the allegations in the complaint

do not match those in the attached exhibits. For example, the complaint

alleges that the new employee was hired in November 2017 (Doc. 1 ¶ 20)

while Chrisp’s first EEOC charge states it was November 2016 (Doc. 1-1

at 1). Similarly, the complaint alleges that Chrisp filed her first

EEOC charge in December 2017 (Doc. 1 ¶ 9) while the attached exhibits

show she filed her two EEOC charges in February 2017 and July 2017 (Docs.

1-1; 1-2). Because these EEOC charges could not have been filed before

the new employee was hired, it appears that the dates in the exhibits

are the correct ones.

alleges generally that UNC did not allow her to attend certain

training sessions or “similar opportunities” that would allow her

to advance her career. (Doc. 1 ¶ 20.)

On February 13, 2017, Chrisp filed a charge with the EEOC

alleging race and age discrimination, specifically listing the

April 2016 job posting as the basis for her claims. (Doc. 1-1.)

On July 13, 2017, she filed a second EEOC charge alleging

retaliation. (Doc. 1-2.) Specifically, she claims her supervisor

assigned her work that was not her responsibility, “nit-pick[ed]

[her] work,” and required her to assemble work binders by herself.

(Id. at 1.) On July 31, 2017, the EEOC notified Chrisp that it

was closing its file on the February 2017 charge because it was

unable to conclude any violation occurred. (Doc. 1-1 at 2.) The

dismissal letter included a right-to-sue notification which

instructed Chrisp as follows: “In order to pursue this matter

further, you must file a lawsuit against the respondent(s) named

in the charge within 90 days of the date you receive this Notice.”

(Id. at 3 (emphasis in original).) On May 15, 2018, the EEOC

responded to Chrisp’s July 2017 charge, stating that it was closing

its file on the charge because it adopted the findings of the

“state or local fair employment practices agency that investigated

this charge,” and included the same right-to-sue notification.

(Doc. 1-3.)

On June 22, 2018, Chrisp filed her first lawsuit in this

court. (See Doc. 2, Case No. 1:18CV542.) She subsequently amended

her complaint four times between November 2018 and August 2019.

(Docs. 5; 6; 9; 15, Case No. 1:18CV542.) For the original

complaint and the first three amended complaints, Chrisp proceeded

pro se, but she had the assistance of counsel for the fourth

amended complaint. (Doc. 15, Case No. 1:18CV542.) On July 10,

2020, this court granted UNC’s motion to dismiss that lawsuit for

failure of proper service, and the complaint was dismissed without

prejudice. Chrisp v. Univ. of N. Carolina-Chapel Hill, 471 F.

Supp. 3d 713 (M.D.N.C. 2020).

On August 10, 2020, Chrisp filed the present, second action

in this court. (Doc. 1.) The complaint is identical in all

material aspects to the fourth amended complaint from the prior

action. Chrisp alleges race discrimination and retaliation in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq. (first and second claims for

relief), age discrimination in violation of the Age Discrimination

in Employment Act of 1967 (“ADEA”), 29 U.S.C. 621 et seq. (third

claim for relief), and a violation of the North Carolina Equal

Employment Practices Act (“EEPA”), N.C. Gen. Stat. § 143-422.1 et

seq. (fourth (improperly denominated another “third”) claim for

relief). On September 22, UNC moved to dismiss the complaint.

(Doc. 9.) Chrisp was sent a Roseboro3 letter notifying her of her

right to respond. (Doc. 11.) She responded (Doc. 12), and UNC

filed a reply (Doc. 13). The matter is fully briefed and ready

for decision.

II. ANALYSIS

A. Federal Claims

UNC moves to dismiss the complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. 9.)

As the 90-day filing requirement under 42 U.S.C. § 2000e “is not

a jurisdictional prerequisite to suit in federal court, but a

requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling,” UNC’s motion to dismiss

these claims is properly considered under Rule 12(b)(6). Zipes

v. TWA, 455 U.S. 385, 393 (1982); see also United States v. Kivanc,

714 F.3d 782, 789 (4th Cir. 2013) (“The statute of limitations is

an affirmative defense that may be raised in a Rule 12(b)(6) motion

to dismiss for failure to state a claim.”); Shepard v. Lowe’s Food

Stores, Inc., No. 1:08–CV–679, 2009 WL 4738203, at *2 (M.D.N.C.

Dec. 7, 2009) (treating defendant’s Rule 12(b)(1) motion to dismiss

for failure to file suit within 90 days of receiving a right-to-

sue letter as a Rule 12(b)(6) motion).

A motion to dismiss under Rule 12(b)(6) is meant to “test[]

3 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

the sufficiency of a complaint” and not to “resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992). To survive such a motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). In considering a Rule 12(b)(6)

motion, a court “must accept as true all of the factual allegations

contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam), and all reasonable inferences must be drawn

in the non-moving party’s favor, Ibarra v. United States, 120 F.3d

472, 474 (4th Cir. 1997). “Rule 12(b)(6) protects against

meritless litigation by requiring sufficient factual allegations

to raise a right to relief above the speculative level so as to

nudge the claims across the line from conceivable to plausible.”

Sauers v. Winston-Salem/Forsyth Cty. Bd. of Educ., 179 F. Supp. 3d

544, 550 (M.D.N.C. 2016) (alterations and quotations omitted).

Chrisp brings her case pro se. As such, she is entitled to

a liberal construction of her complaint. See Erickson, 551 U.S.

at 94. But this “generosity is not fantasy.” Bender v. Suburban

Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998). The court is not

permitted “to become an advocate for a pro se litigant or to

rewrite his complaint,” Williams v. Guilford Tech. Cmty. Coll. Bd.

of Trustees, 117 F. Supp. 3d 708, 716 (M.D.N.C. 2015), nor should

it “conjure up questions never squarely presented,” Beaudett v.

City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

With these standards in mind, the court turns to the present

motion. Chrisp’s first three claims for relief allege race and

age discrimination and retaliation in violation of Title VII and

the ADEA. (Doc. 1 ¶¶ 22-39.) UNC moves to dismiss, arguing that

these claims are time-barred. (Doc. 10 at 5-8.)

Both Title VII and the ADEA contain statutory schemes for the

enforcement of the rights protected by each statute. As relevant

here, each statute provides that, if the EEOC dismisses a charge

that has been filed, it is to notify the person who filed the

charge that she can bring suit within 90 days of receiving notice

of the EEOC’s dismissal. See 42 U.S.C. § 2000e-5(f)(1) (right to

sue under Title VII); 29 U.S.C. § 626(e) (same for the ADEA).

Here, Chrisp has brought two separate actions alleging the

same claims based on the same underlying events. Her first action,

brought on June 22, 2018, was ultimately dismissed without

prejudice because she failed to properly serve UNC. See Chrisp,

471 F. Supp. 3d at 717. While the court did not rule on timeliness,

it appears that the first action was timely insofar as it was filed

within the 90-day window from when Chrisp received the EEOC’s

second right-to-sue letter on May 15, 2018.4 UNC argues that the

present lawsuit, however, is untimely because it was filed on

August 10, 2020, more than two years after the EEOC’s second right-

to-sue letter and well outside the 90-day window. (Doc. 10 at 5-

8.) As such, UNC argues, Chrisp’s claims under Title VII and the

ADEA are time-barred and should be dismissed. (Id. at 8.)

Other circuits that have considered the issue hold that “[i]n

instances where a complaint is timely filed and later dismissed,

the timely filing of the complaint does not ‘toll’ or suspend the

90-day limitations period.” O’Donnell v. Vencor Inc., 466 F.3d

1104, 1111 (9th Cir. 2006) (citation omitted) (court dismissed

second complaint with same Title VII and ADEA claims as timely-

filed prior action that was previously dismissed without prejudice

because the latter was filed outside the 90-day window); see also

Simons v. Sw. Petro-Chem, 28 F.3d 1029, 1030 (10th Cir. 1994);

Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993).

No party has identified a Fourth Circuit published decision

addressing the issue, and the court is not aware of one. However,

multiple unpublished opinions adhere to this “general rule that a

Title VII complaint that has been filed but then dismissed without

prejudice does not toll the 90–day limitations period.” Angles v.

4 However, it was untimely as to the first right-to-sue letter, which

Chrisp received July 31, 2017, more than ten months before she filed

suit. (Doc. 1-1.)

Dollar Tree Stores, Inc., 494 F. App’x 326, 329 (4th Cir. 2012);

see also Quinn v. Watson, 119 F. App’x 517, 518 n.* (4th Cir. 2005)

(same); Khaliq v. Draper & Goldberg, P.L.L.C., 286 F. App’x 72, 73

(4th Cir. 2008) (applying the same principle in the context of the

Fair Debt Collection Practices Act in affirming the dismissal of

a second complaint because it was filed outside the one-year

limitations period where the first complaint was dismissed for

failure to properly serve). While unpublished opinions of the

Fourth Circuit are not precedential, they are cited as persuasive

but not controlling authority. See Collins v. Pond Creek Mining

Co., 468 F.3d 213, 219 (4th Cir. 2006).

In other words, even assuming that Chrisp’s first action was

brought within the 90-day filing window (likely based on the EEOC’s

second right-to-sue letter), her second action was not, and this

court’s dismissal of her first action did not extend the 90-day

window for purposes of this present action. Chrisp filed her first

action on June 22, 2018. She subsequently amended her complaint

four times between November 2018 and August 2019. In July 2020,

this court dismissed her complaint without prejudice for failure

to effect proper service. See Chrisp, 471 F. Supp. 3d at 717.

One month later, she filed a second action alleging the same claims

as the first action. (Doc. 1.) “[I]f a plaintiff is not diligent

and fails to [timely] serve the complaint . . . the case shall be

dismissed without prejudice. The ‘without prejudice’ condition

permits a plaintiff to refile the complaint as if it had never

been filed. [It] does not, however, give the [plaintiff] a right

to refile without the consequence of time defenses, such as the

statute of limitations.” Mendez v. Elliot, 45 F.3d 75, 78 (4th

Cir. 1995); see also Basnight v. Potter, No. 2:10-CV-33, 2011 WL

1366376, at *2 (E.D.N.C. Apr. 11, 2011) (first case, which was

filed within the 90-day period, dismissed for failing to effectuate

service; court dismisses second case as time-barred because it was

filed outside the 90-day period). Accordingly, Chrisp’s Title VII

and ADEA claims are time-barred, and the court will grant UNC’s

motion to dismiss these claims.

Even if the lawsuit were deemed timely filed, and while

Chrisp’s filings reflect her belief she was discriminated against,

her claims would nevertheless fail to survive the motion to dismiss

because they do not allege a plausible claim under applicable law.

Chrisp’s first three claims for relief allege discrimination

and retaliation under Title VII and the ADEA. (Doc. 1 ¶¶ 22-39.)

An essential element of each of these claims is that Chrisp

suffered an adverse action from UNC. See Coleman v. Maryland Court

of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (listing the elements

for Title VII discrimination and retaliation claims); Laprise v.

Arrow Int’l, 178 F. Supp. 2d 597, 605 (M.D.N.C. 2001) (same for an

ADEA claim).

What constitutes an adverse action is different for a

discrimination claim versus a retaliation claim. For a

discrimination claim, an adverse action is one that “constitutes

a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th

Cir. 2011) (citation omitted); see also Boone v. Goldin, 178 F.3d

253, 255 (4th Cir. 1999) (noting that an adverse action is one in

which an employee suffers a “discharge, demotion, decrease in pay

or benefits, loss of job title or supervisory responsibility, or

reduced opportunities for promotion”). The adverse action

requirement is “less restrictive” for a retaliation claim. Neal

v. Green Ford, LLC, No. 1:17-CV-569, 2018 WL 6003547, at *7

(M.D.N.C. Nov. 15, 2018). For a retaliation claim, “the plaintiff

must show that the action ‘well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.’”

Laird v. Fairfax Cty., Virginia, 978 F.3d 887, 893 (4th Cir. 2020)

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006)).

Under either standard, Chrisp has not plausibly alleged any

adverse action to state a claim under Title VII or the ADEA.

Indeed, in her complaint she acknowledges that her supervisor would

regularly send her job postings “and encouraged [her] to apply for

these positions.” (Doc. 1 ¶ 18.) The gravamen of Chrisp’s

complaint is that for one such job posting in Chrisp’s department,

UNC ultimately hired a white female who was approximately 25 years

old. (Id. ¶ 20.) However, to sustain a Title VII claim for

discriminatory hiring, Chrisp must allege that “[s]he applied and

was qualified for a job for which the employer was seeking

applicants.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). Here, Chrisp does not allege that she ever applied for

the position in question, and her response brief confirms as much.5

5 Although the complaint contains no such allegation, Chrisp argues that

when she asked about applying for the open position she was told by her

“[p]revious manager” that she lacked the skills and qualifications for

it. (Doc. 12 at 3; see also Doc. 1-4 at 1.) In general, to state a

plausible claim for failure to hire or promote under Title VII, a

plaintiff must allege that, among other things, she applied for the

position in question. Brown v. McLean, 159 F.3d 898, 902 (4th Cir.

1998). An exception exists if applying would have been futile, i.e.,

if the plaintiff “can demonstrate that he would have applied but for

accurate knowledge of an employer’s discrimination and that he would

have been discriminatorily rejected had he actually applied.” Id.

(quotations and citation omitted); Westry v. N. Carolina AT & T State

Univ., 286 F. Supp. 2d 597, 603 (M.D.N.C. 2003), aff’d, 94 F. App’x 184

(4th Cir. 2004) (“A plaintiff also may establish a prima facie case of

discrimination without applying for a position by demonstrating that his

employer consistently discriminated when making promotion decisions.”).

In other words, an employee need not subject herself “to the humiliation

of explicit and certain rejection” through a futile gesture of a formal

application. Brown, 159 F.3d at 902-03 (quoting United States v.

Gregory, 871 F.2d 1239, 1242 (4th Cir. 1989)). Here, Chrisp did not

apply for the open position, nor has she plausibly alleged that she knew

she would be “discriminatorily rejected” due to UNC’s “discriminatory

policies” had she applied or that UNC “consistently discriminated when

making promotion decisions.” Cf. Gregory, 871 F.2d at 1241–42 (excusing

female plaintiff’s failure to apply for a deputy sheriff position when

her employer had explicitly stated on multiple occasions that he did not

hire women for the position); Holsey v. Armour & Co., 743 F.2d 199, 209

(4th Cir. 1984) (excusing black employee’s failure to formally apply for

a sales position when the employer had no black employees in sales, had

actively discouraged black employees from applying for sales jobs over

multiple years, and stated that the company did not hire black persons

for sales jobs). Rather, Chrisp alleges she had been encouraged to apply

(See Doc. 12 at 3.) Further, she does not allege that UNC

terminated her because of her race or age or because she filed her

first EEOC charge; indeed, her response brief suggests that she

voluntarily left UNC. (Id. at 14.) Nor does she allege any other

change to her “compensation, terms, conditions, or privileges of

employment” as required to prove an adverse action. See 42 U.S.C.

§ 2000e-2(a).

At most, Chrisp alleges general disagreement with decisions

made by her employer, including telling her she did not qualify

for a particular job and ultimately hiring another woman for that

position. (Doc. 1 ¶¶ 19-20.) In the attached EEOC charges and in

her response brief, Chrisp also takes issue with other actions by

her manager, including assigning her work that she claims was not

her responsibility, “nit-picking my work,” and requiring her to

assemble work binders by herself.6 (Doc. 1-2 at 1.) While Chrisp

for a number of similar positions previous to the job posting at issue.

(Doc. 1 ¶ 18.)

6 In her narrative attached to her complaint and in her response brief

Chrisp also mentions an incident in which she overheard her manager

remark that a black colleague was climbing on a bookshelf “like a

monkey.” (Doc. 1-4 at 1-2; Doc. 12 at 2.) Chrisp states this was a

“racial comment” and that she took offense to it. (Id.) She did not

mention this incident in her complaint. Regardless, not every comment,

even if racially charged or insensitive, rises to the level of a federal

claim, and this single incident does not state a plausible claim under

Title VII. See Perkins v. Int’l Paper Co., 936 F.3d 196, 207–08 (4th

Cir. 2019) (harassment for a hostile work environment claim must be

“sufficiently severe or pervasive to alter the conditions of employment

and create an abusive atmosphere”); Boyer-Liberto v. Fontainebleau

Corp., 786 F.3d 264, 277 (4th Cir. 2015) (noting that an “isolated

incident” of harassment is unlikely to amount to a Title VII claim unless

that incident is “extremely serious”).

might disagree with those actions, contrary to her argument, they

do not constitute a violation of her civil rights. Nor does she

plausibly allege that any such action was taken as a result of any

protected activity. As this court observed in response to Chrisp’s

first action, her complaint

consists of vague allegations that Estrada unfairly delegated

work responsibilities and made Plaintiff’s job stressful.

Plaintiff’s Complaint identifies her own race and the race of

other individuals included in her allegations, and accuses

Estrada of making racially offensive comments to another

employee. However, there is no allegation that Estrada

discriminated against Plaintiff on the basis of race, color,

religion, sex, or national origin, nor are any facts alleged

to support such a claim. Rather, it appears that Plaintiff’s

claims generally arise from disagreements with Estrada over

managerial decisions, which do not, on their own, give rise

to a Title VII claim.

(Doc. 8 at 3, Case No. 1:18CV542.) Nothing has materially changed

since then. Title VII “does not set forth a general civility code

for the American workplace” or “immunize [employees] from those

petty slights or minor annoyances that often take place at work

and that all employees experience.” Burlington, 548 U.S. at 68

(citations omitted). Therefore, even if Chrisp’s allegations are

true, she has not stated a claim for discrimination or retaliation

under Title VII or the ADEA.

At the motion to dismiss stage, a plaintiff must plead

sufficient facts, accepted as true, to state a plausible claim for

relief. See Sauers, 179 F. Supp. 3d at 550. Chrisp has had

adequate opportunity to timely file and serve a complaint with

sufficient facts to state a plausible claim for a violation of

Title VII or the ADEA. She has not done so. Thus, UNC’s motion

to dismiss her Title VII and ADEA claims will be granted.7

B. State-Law Claim

In the complaint’s last claim for relief, Chrisp alleges a

violation of the North Carolina Equal Employment Practices Act.

(Doc. 1 ¶¶ 40-46.) UNC seeks dismissal of this claim on the ground

that, as an agency of the State of North Carolina, it is immune

from suit in federal court under the Eleventh Amendment to the

U.S. Constitution. (Doc. 10 at 12-13.)

“The Fourth Circuit has not conclusively established whether

a dismissal based on Eleventh Amendment immunity is a dismissal

for lack of subject matter jurisdiction under Rule 12(b)(1) or for

failure to state a claim under Rule 12(b)(6).” Mary’s House, Inc.

v. North Carolina, 976 F. Supp. 2d 691, 696–97 (M.D.N.C. 2013)

(citing Andrews v. Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000)).

This court, like others in the Fourth Circuit, has considered

7 In her response brief, Chrisp makes passing reference to a number of

other sources of law, including 42 U.S.C. § 1983, the North Carolina

Constitution, and the Family and Medical Leave Act. (Doc. 12.) However,

her complaint does not allege claims under these statutes, so the court

will not consider their applicability here. See Pirelli Armstrong Tire

Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 448 (7th

Cir. 2011) (referring to the “axiomatic rule that a plaintiff may not

amend his complaint in his response brief”); Lily v. Carter, No.

1:16CV400, 2017 WL 3017704, at *1 n.1 (M.D.N.C. July 14, 2017) (“To the

extent Plaintiff’s response brief to [Defendant’s] motion to dismiss

addresses new claims or allegations, the Court will not consider them.”).

Eleventh Amendment immunity under Rule 12(b)(1) and will do so

here. See Blackburn v. Trustees of Guilford Tech. Community

College, 822 F. Supp. 2d 539, 542 n. 2 (M.D.N.C. 2011) (citing

cases); McCants v. Nat’l Collegiate Athletic Ass’n, 251 F. Supp.

3d 952, 954-55 (M.D.N.C. 2017) (same).

A motion to dismiss pursuant to Rule 12(b)(1) for lack of

subject matter jurisdiction raises the question “whether [the

plaintiff] has a right to be in the district court at all and

whether the court has the power to hear and dispose of [the]

claim.” McCants, 251 F. Supp. 3d at 955 (quoting Holloway v. Pagan

River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012)).

While a plaintiff bears the burden of proving the court’s subject

matter jurisdiction, a defendant who raises the defense of Eleventh

Amendment immunity bears the burden of demonstrating that it is

entitled to that immunity. Hutto v. S.C. Ret. Sys., 773 F.3d 536,

543 (4th Cir. 2014).

The Eleventh Amendment prohibits a private citizen from suing

a state in federal court for money damages.8 Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Ballenger v. Owens,

352 F.3d 842, 844 (4th Cir. 2003). This prohibition extends to

suits against any state agency that is considered an arm of the

8 The Eleventh Amendment provides that “[t]he Judicial power of the

United States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States by

Citizens of another State.” U.S. Const. amend. XI.

state. See Blackburn, 822 F. Supp. 2d at 542–43(citing Regents of

Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). State-funded

colleges and universities structured to have close ties to the

state are considered “arms of the State” for Eleventh Amendment

purposes. Id. (citations and alterations omitted). There are

exceptions to the Eleventh Amendment. For example, a state can

waive its Eleventh Amendment immunity by consent. Pennhurst, 465

U.S. at 99. However, the intent to do so must be “unequivocally

expressed.” Id.

In the fourth claim for relief, Chrisp attempts to sue UNC,

a state agency, in federal court for money damages for an alleged

violation of North Carolina law. There is no indication that UNC

has consented to being sued in this court or that it has otherwise

waived its Eleventh Amendment immunity for such violations. See

McCants, 251 F. Supp. 3d at 958, 960 (noting that the “test for

determining whether a State has waived its immunity from federal-

court jurisdiction is a stringent one” and holding that “UNC–

Chapel Hill has not waived its Eleventh Amendment immunity as an

agency of the State of North Carolina”). Accordingly, the Eleventh

Amendment bars this claim, and it will be dismissed without

prejudice.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that UNC’s motion to dismiss (Doc. 9)

is GRANTED and the complaint is DISMISSED; the federal claims

(First, Second, and Third Claims for Relief) are DISMISSED WITH

PREJUDICE, and the state-law claim (Fourth (improperly denominated

as another “Third” Claim for Relief)) is DISMISSED WITHOUT

PREJUDICE for want of jurisdiction.

/s/ Thomas D. Schroeder

United States District Judge

January 14, 2021