THOMAS v. EAST PENN MANUFACTURING CO.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ASIYAH THOMAS, )

)

Plaintiff, )

)

v. ) 1:19CV312

)

EAST PENN MANUFACTURING )

CO., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendant’s Motion for Judgment on the

Pleadings pursuant to Federal Rule of Civil Procedure 12(c).

(Doc. 14.) Asiyah Thomas (“Plaintiff”) brings racial

discrimination claims under Title VII, 42 U.S.C. § 1981, and

North Carolina Public Policy against her former employer, East

Penn Manufacturing Co. (“Defendant”). (Complaint (“Compl.”)

(Doc. 1).) Plaintiff alleges Defendant discriminated against her

based on her race when she was terminated, retaliated against

her for engaging in protected activity, and subjected her to a

racially hostile work environment. (Id.) Defendant counters that

Plaintiff’s claims are barred by res judicata or, alternatively,

failure to state a claim. For the reasons stated herein,

Defendant’s motion will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

When considering a motion under Fed. R. Civ. P. 12(c), a

district court is “required to accept all well-pleaded

allegations of [the] complaint as true and draw all reasonable

factual inferences in [plaintiff’s] favor.” Massey v. Ojaniit,

759 F.3d 343, 353 (4th Cir. 2014). The following facts are taken

from the Complaint, Answer, and documents attached to the

Answer. Defendant, for the purposes of its motion, concedes all

facts as stated in the Complaint. (Def.’s Br. in Supp. of Mot.

for Judgment on the Pleadings (“Def.’s Br.”) (Doc. 15) at 3.)

A. Parties

Plaintiff is a resident of Forsyth County, North Carolina,

and a former “employee” of Defendant as defined in Title VII.

(Compl. (Doc. 1) ¶ 3.) Plaintiff is an African-American woman.

(Id. ¶ 5.) She was employed by Defendant from March 2015 until

December 18, 2018. (Id. ¶ 6.) Defendant is a company

incorporated under the laws of Pennsylvania. (Id. ¶ 4.)

Defendant owned the Winston-Salem location where Plaintiff was

employed. (Id. ¶ 6.)

B. First Lawsuit (“Thomas I”)

Soon after she began working for Defendant in 2015,

Plaintiff alleges she was subjected to racial discrimination.

(Id. ¶ 10.) Plaintiff alleged numerous instances of

discriminatory behavior. (Id. ¶ 11). Plaintiff reported the

alleged conduct to her supervisors, both of whom told her to

stop complaining. (Id. ¶ 12.) Plaintiff eventually retained

counsel, and on December 1, 2016, she filed her first EEOC

Charge. (Id. ¶¶ 13, 17.) That charge alleged ongoing racial and

pregnancy discrimination by both coworkers and supervisors.

(Answer (Doc. 12) at 30–59, 61, 64–66.)

Plaintiff alleges that, after she filed her 2016 EEOC

Charge, she continued to face discrimination. (Compl. (Doc. 1)

¶ 18; Answer (Doc. 12) at 17 (Plaintiff’s 2018 EEOC Charge).)

Plaintiff alleges numerous additional instances of

discriminatory conduct by her coworkers and at least one

supervisor. (Compl. (Doc. 1) ¶ 18.) Plaintiff’s supervisors

again told her to stop complaining and took no action. (Id.

¶ 21.)

Plaintiff filed a pro se lawsuit in this court on April 4,

2017 (“Thomas I”). (Id. ¶ 23.) That lawsuit was based on her

December 1, 2016 EEOC charge. (Id.) Plaintiff broadly alleged

racial and pregnancy discrimination under Title VII. Thomas v.

E. Penn Mfg. Co., No. 1:17CV306, 2018 WL 1578156, at *1, *5

(M.D.N.C. Mar. 29, 2018). This court dismissed that lawsuit as

time-barred under 42 U.S.C. § 2000e-5(e)(1) since Plaintiff

filed her charge of discrimination more than 180 days from the

date of the last alleged act of discrimination. Id. at *4–5. On

March 29, 2018, the court dismissed Thomas I with prejudice

under Fed. R. Civ. P. 12(b)(6). Id. at *5–6; (Compl. (Doc. 1)

¶ 26.)

Just after Plaintiff filed Thomas I, she participated in

the investigation of a coworker’s own EEOC Charge (the “Lindsay

EEOC Charge Investigation”). (Id. ¶¶ 22, 24.)

C. Post-Thomas I Allegations

Plaintiff alleges that from “March 29, 2018 until

December 18, 2018 plaintiff continued to be subjected to severe,

pervasive, and continuous discrimination and retaliation

. . . .” (Id. ¶ 27.) Specifically, Plaintiff alleges the

following facts:

a. A white co-employee cussed out the shipping

supervisor in front of the plaintiff and received

no discipline, while African-American employees

were disciplined for insubordination.

b. White employees broke a scale and attempted to

place the blame on the plaintiff.

c. White co-employees trashed plaintiff’s workspace

in an attempt to prevent her from completing her

work.

d. A black co-employee was suspended for an

attendance violation, but two white employees

were not suspended for the same violation.

(Id.) Plaintiff also alleges that she received a disciplinary

write-up shortly after Thomas I was dismissed. (Id. ¶ 28.)

Plaintiff alleges the safety-related infraction cited in the

write-up never occurred. (Id.)

Plaintiff filed another EEOC Charge in April 2018 alleging

a hostile work environment and retaliation for her previous

lawsuit. (Id. ¶ 31.) That EEOC Charge cited the disciplinary

write-up and actions by white-coworkers to disrupt her

workspace. (Answer (Doc 12.) at 17.) Plaintiff received her

right-to-sue letter from the EEOC on December 26, 2018. (Id. at

18.)

D. Plaintiff’s Termination

On December 11, 2018, a large snowstorm impacted the

Winston-Salem area. (Id. ¶ 32.) Though it is not entirely clear

from the Complaint, it appears to suggest that Defendant’s “sign

out” system was impacted by the weather, and employees were not

able to sign out on December 11, 2018. (Id.) Plaintiff alleges

she was given permission by a supervisor to leave early on

December 11, though she was not able to sign out. (Id.) “Upon

information and believe [sic], on December 12, 2018, defendant

had other employees backdate the December 11, 2018 sign-out

sheet while plaintiff was not present, in order to create a

pretextual reason to terminate plaintiff.” (Id. ¶ 33.) The

incident was investigated by Defendant, and Plaintiff was

subsequently terminated on December 18, 2018. (Id. ¶¶ 33–34.)

Plaintiff’s vacant position was filled by a “less qualified

white employee.” (Id. ¶ 36.)

Plaintiff filed another EEOC Charge on February 1, 2019,

citing her allegedly discriminatory termination. (Id. ¶ 39.) The

EEOC issued Plaintiff a right-to-sue letter for that charge on

February 20, 2019. (Id. ¶ 40.)

E. Procedural History

Plaintiff filed this present suit (“Thomas II”) on

March 19, 2019. (Id. at 17.) The Thomas II Complaint’s

allegation in paragraphs 6 through 181 encompass many of the same

factual allegations raised in Thomas I. (Compare Compl. (Doc. 1)

¶¶ 6–16, with Answer (Doc. 12) at 22–66.)

Plaintiff brings four claims for relief. Claim One is for

Race Discrimination under Title VII of the Civil Rights Act of

1964. (Compl. (Doc. 1) ¶¶ 42–47.) Specifically, Plaintiff claims

Defendant discriminated against her by “[s]ubjecting plaintiff

to a racially hostile workplace” and by “[t]erminating

plaintiff’s employment,” both acts in violation of 42 U.S.C.

§ 2000e-2(a). (Id. ¶ 44.) Claim Two is for Defendant’s alleged

1 Paragraph 18 alleges conduct that occurred between

December 1, 2016, until May 4, 2018. (Compl. (Doc. 1) ¶ 18.)

Plaintiff filed Thomas I on April 4, 2017. (Id. ¶ 23.) The

Complaint does not specify what conduct alleged in paragraph 18

occurred before and after Thomas I was filed.

retaliation against Plaintiff for engaging in protected

activity, in violation of 42 U.S.C. 2000e-3. (Id. ¶¶ 48–53.)

Claim Three alleges race discrimination under 42 U.S.C. § 1981,

specifically Defendant’s racially hostile work environment and

its racially discriminatory discharge of Plaintiff. (Id. ¶¶ 54–

59.) Finally, Claim Four is for Wrongful Discharge in Violation

of the Public Policy of North Carolina as stated in N.C. Gen.

Stat. § 143-422.2. (Id. ¶¶ 60–65.)

Defendant filed an Answer raising the affirmative defense

of res judicata. (Answer (Doc. 12) at 11.) Shortly after filing

its Answer, Defendant moved for judgment on the pleadings

pursuant to Rule 12(c). (Doc. 14.) Defendant filed a supporting

brief, (Def.’s Br. (Doc. 15)), Plaintiff responded, (Pl.’s Resp.

to Mot. for Judgment on the Pleadings (“Pl.’s Resp.”) (Doc.

22)), and Defendant replied, (Def.’s Reply to Pl.’s Resp. to

Mot. for Judgment on the Pleadings (“Def.’s Reply”) (Doc. 23)).

The Magistrate Judge stayed discovery pending this court’s

adjudication of Defendant’s 12(c) motion. (Text Order

10/07/2019.)

For the reasons stated herein, the court will grant

Defendant’s motion as to Plaintiff’s retaliation and hostile

work environment claims. The court will deny the motion as to

Plaintiff’s wrongful discharge claims under Title VII, § 1981,

and North Carolina Public Policy.

II. STANDARD OF REVIEW

A party may move for judgment on the pleadings “[a]fter the

pleadings are closed — but early enough not to delay trial

. . . .” Fed. R. Civ. P. 12(c). Such motions are “designed to

dispose of cases when the material facts are not in dispute and

the court can judge the case on its merits by considering the

pleadings.” Preston v. Leake, 629 F. Supp. 2d 517, 521 (E.D.N.C.

2009). The pleadings, matters of public record, exhibits to the

pleadings, “and exhibits to the Rule 12(c) motions that [are]

integral to the complaint and authentic” may be considered.

Massey, 759 F.3d at 347–48 (citation omitted).

“The standard of review for Rule 12(c) motions is the same

as that under Rule 12(b)(6).” Drager v. PLIVA USA, Inc., 741

F.3d 470, 474 (4th Cir. 2014). Since the standards are the same,

a court reviewing a motion under Fed. R. Civ. P. 12(c) must

“apply the standard for a Rule 12(b)(6) motion,” meaning that

“[t]o 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.” W.C. & A.N. Miller Dev.

Co. v. Cont'l Cas. Co., 814 F.3d 171, 176 (4th Cir. 2016)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[T]he

court must accept all of the non-movant’s factual averments as

true and draw all reasonable inferences in its favor.”

SmithKline Beecham Corp. v. Abbott Labs., No. 1:15CV360, 2016 WL

922792, at *3 (M.D.N.C. Mar. 10, 2016) (citations omitted). This

court does not, however, accept legal conclusions as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678.

III. ANALYSIS

Defendant’s motion is largely focused on res judicata and

collateral estoppel arguments. Defendant argues that since

Thomas II is based on much of the same conduct alleged in Thomas

I, Plaintiff is barred from bringing suit and seeking a “second

bite at the apple.” (Def.’s Br. (Doc. 15) at 1.) Defendant also

appears to argue that even the new Thomas II facts now alleged

by Plaintiff are part of the same transaction as the Thomas I

facts, meaning the court is foreclosed from addressing new

alleged wrongs that occurred after Thomas I was dismissed. (Id.

at 13.) Defendant finally argues that if the court does consider

post-Thomas I facts, then Plaintiff’s Complaint should be

dismissed for failure to state a claim. (Id. at 14, 17.)

Plaintiff counters that res judicata does not bar the court

from considering pre- or post-Thomas I facts since the alleged

conduct is part of a continuing scheme of conduct. Though

Plaintiff concedes she cannot recover for any damages occurring

during the period covered by Thomas I, she argues that conduct

can still be considered by the court. (Pl.’s Resp. (Doc. 22) at

20–21.) Plaintiff does not address whether she has plausibly

alleged her claims based on post-Thomas I facts alone.

The court will begin by addressing Defendant’s res judicata

contention, finding res judicata bars claims that were or could

have been raised in Thomas I, but does not bar allegations of

subsequent wrongs. The court will then analyze the Thomas II

facts to determine if they plausibly allege causes of action.

A. Res Judicata (Claim Preclusion)2

1. Res Judicata Bars All Claims Brought or Available

in Thomas I

“A fundamental precept of common-law adjudication, embodied

in the related doctrines of collateral estoppel and res

judicata, is that a right, question or fact distinctly put in

issue and directly determined by a court of competent

2 “The Restatement of Judgments now speaks of res judicata

as ‘claim preclusion’ and collateral estoppel as ‘issue

preclusion.’ Some courts and commentators use ‘res judicata’ as

generally meaning both forms of preclusion.” Allen v. McCurry,

449 U.S. 90, 94 n.5 (1980) (quoting Restatement (Second) of

Judgments § 74 (Tent. Draft No. 3, Apr. 15, 1976)). This court

will use “res judicata” to refer to claim preclusion, and

“collateral estoppel” to refer to issue preclusion.

jurisdiction cannot be disputed in a subsequent suit between the

same parties.” Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.

1990) (alteration in original) (quoting S. Pac. R.R. v. United

States, 168 U.S. 1, 48–49 (1897)). “The preclusive effect of a

judgment issued by a federal court is a legal question governed

by federal common law.” United States ex rel. May v. Purdue

Pharma L.P., 737 F.3d 908, 912 (4th Cir. 2013) (citing Taylor v.

Sturgell, 553 U.S. 880, 891 (2008)).

Three elements are needed to bar a claim on res judicata

grounds: “(1) a judgment on the merits in a prior suit resolving

(2) claims by the same parties or their privies, and (3) a

subsequent suit based on the same cause of action.” Aliff, 914

F.2d at 42; see also Montana v. United States, 440 U.S. 147, 153

(1979) (“Under res judicata, a final judgment on the merits bars

further claims by parties or their privies based on the same

cause of action.”).

Regarding the third element,

[t]he Fourth Circuit has consistently articulated a

clear rule to determine the identity of claims for res

judicata purposes, adopted from the Second Restatement

of Judgments § 24: There is sufficient identity in the

causes of action when claims “arise out of the same

transaction or series of transactions, or the same

core of operative facts.”

Taylor v. Norfolk S. Ry. Co., 86 F. Supp. 3d 448, 456 (M.D.N.C.

2015) (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1316

(4th Cir. 1996)). This approach to identifying precluded claims

“asks only if a claim made in the second action involves a right

arising out of the same transaction or series of connected

transactions that gave rise to the claims in the first action.”

Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986). This

applies to all claims that could have been brought in the

previous lawsuit, not just the ones that a plaintiff actually

brought. Nevada v. United States, 463 U.S. 110, 129–30 (1983);

In re Varat Enters., Inc., 81 F.3d at 1315. “To preclude claims

not brought earlier, the court need only determine that they

were ‘available’ to the plaintiff in the first action.” Taylor,

86 F. Supp. 3d at 456 (citing Ohio Valley Envtl. Coal. v.

Aracoma Coal Co., 556 F.3d 177, 210–11 (4th Cir. 2009)); see

also Keith v. Aldridge, 900 F.2d 736, 740 n.5 (4th Cir. 1990)

(“For res judicata purposes, . . . it is the existence of the

claim, not awareness of it, that controls.”).

The dismissal of a previous claim does not automatically

bar, at least on res judicata grounds, consideration of the

underlying facts as background evidence in a new suit. Wedow v.

City of Kansas City, 442 F.3d 661, 669 (8th Cir. 2006)

(considering evidence from previous suit); L.A. Branch NAACP v.

L.A. Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir. 1984) (en

banc) (same); Bronson v. Bd. of Ed. of City Sch. Dist. of

Cincinnati, 525 F.2d 344, 349–50 (6th Cir. 1975) (same). As

Wright and Miller put it, the “conclusion that continuing

activity generates a new claim need not mean that the earlier

activity is irrelevant to the new claim.” 18 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 4409 (3d

ed. 2019).

Though a court may consider facts from a previous claim as

background evidence, a plaintiff is barred from using those

facts to establish a defendant’s liability. See Dilettoso v.

Potter, 243 F. App'x 269, 272 (9th Cir. 2007) (refusing to base

hostile work environment liability on facts alleged in previous

suit); Matthews v. City of Mobile, Civil Action No. 14-00601-KD-

N, 2016 WL 1736061, at *16 (S.D. Ala. May 2, 2016) (considering

background facts, but not using them to determine possible

liability); Gresham v. District of Columbia, 66 F. Supp. 3d 178,

191 n.6 (D.D.C. 2014). “The doctrine of res judicata would

become meaningless if a party could relitigate the same issue

. . . by merely positing a few additional facts that occurred

after the initial suit.” Misischia v. St. John's Mercy Health

Sys., 457 F.3d 800, 805 (8th Cir. 2006) (quoting Dubuc v. Green

Oak Twp., 312 F.3d 736, 751 (6th Cir. 2002)).3

Any claims Plaintiff could have brought or actually did

bring in Thomas I are now barred by res judicata.4 The first two

3 Defendant asks this court to strike the portions of the

current Complaint containing Thomas I facts. (Def.’s Reply (Doc.

23) at 8–9.) However, “Rule 12(f) motions are generally viewed

with disfavor ‘because striking a portion of a pleading is a

drastic remedy and because it is often sought by the movant

simply as a dilatory tactic.’” Waste Mgmt. Holdings, Inc. v.

Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A A.

Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 1380, 647 (2d ed. 1990)). Further, as demonstrated

by the cases cited above, courts may consider facts from

previous suits as background evidence. For those reasons, the

court denies Defendant’s request that the court strike the

Thomas I facts from the Complaint.

4 This conclusion is not altered by the principles announced

in National Railroad Passenger Corp. v. Morgan. Morgan permits

courts to consider certain evidence of a hostile work

environment that occurred outside the statutory filing period

for EEOC charges; however, Morgan did not address whether res

judicata barred consideration of conduct alleged and litigated

in previous suits. See Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 117 (2002). Res judicata operates as a doctrine

separate from Morgan and can bar the consideration of facts that

the timeliness rules of Morgan might otherwise permit. See

Emerick v. Wood River-Hartford Sch. Dist. No. 15, Case No.

16-cv-0788-MJR-RJD, 2017 WL 2778624, at *6 (S.D. Ill. June 27,

2017) (analyzing res judicata and Morgan “Time-bar” issues

separately); Baez v. New York, 56 F. Supp. 3d 456, 464 (S.D.N.Y.

2014), aff'd, 629 F. App'x 116 (2d Cir. 2015) (noting that res

judicata is a doctrine preventing the relitigation of claims

that might otherwise be timely under Morgan); Nakis v. Potter,

422 F. Supp. 2d 398, 410–11 (S.D.N.Y. 2006) (noting that Morgan

allows consideration of time-barred conduct, but prohibiting

consideration of such conduct on res judicata grounds); Graham

v. Gonzales, No. Civ. A. 03-1951 RWR, 2005 WL 3276180, at *7

(D.D.C. Sept. 30, 2005) (noting that the court may only consider

facts otherwise allowed by Morgan if doing so is not barred by

res judicata).

prongs, a judgment on the merits and identity of the parties,

are not in question. The previous suit was between the same

parties, Plaintiff and Defendant East Penn. Also, the dismissal

under Rule 12(b)(6), Thomas, 2018 WL 1578156, at *1, *6, was

with prejudice, an adjudication on the merits,5 Elkadrawy v.

Vanguard Grp., Inc., 584 F.3d 169, 173 (3d Cir. 2009); Mills v.

Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989);

Blakes v. Gruenberg, No. 1:16-cv-00240-GBL-MSN, 2016 WL 8731784,

at *5 (E.D. Va. July 29, 2016) (citing Mills); Robertson v.

Cree, Inc., No. 5:10-CV-507-H, 2012 WL 699533, at *1 (E.D.N.C.

Mar. 1, 2012) (citing Mills); cf. S. Walk at Broadlands

Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d

175, 185 (4th Cir. 2013) (“A dismissal for lack of standing — or

any other defect in subject matter jurisdiction — must be one

without prejudice, because a court that lacks jurisdiction has

no power to adjudicate and dispose of a claim on the merits.”).

A timely filed charge of discrimination is not a jurisdictional

requirement but rather operates like a statute of limitations

and must be affirmatively raised and plead. Zipes v. Trans World

5 Plaintiff “reserves her contention that a dismissal for

‘timeliness’ is not a final dismissal ‘on the merits’ when the

Court never addressed the substantive legal claims [in Thomas

I].” (Pl.’s Resp. (Doc. 22) at 12 n.2.) As the cases cited show,

such a contention would be fruitless.

Airlines, Inc., 455 U.S. 385, 393 (1982); see also Fort Bend

Cty. v. Davis, ____ U.S. ____, 139 S. Ct. 1843 (2019). The court

had jurisdiction to rule on the merits in Thomas I, and

dismissed the case pursuant to Rule 12(b)(6), a dismissal with

prejudice and on the merits. See Robertson, 2012 WL 699533, at

*1 (finding a dismissal of a Title VII action for untimely

filing is one on the merits).

Finding that any claims that could have or were brought in

Thomas I are now barred in Thomas II, the court will now

identify which of Plaintiff’s current allegations are part of

the same core of operative facts as in Thomas I.

2. Analysis of Specific Allegations

Some, but not all, of Plaintiff’s factual allegations are

barred by res judicata. If Plaintiff’s current allegations

“arise out of the same transaction or series of transactions, or

the same core of operative facts,” In re Varat Enters., Inc., 81

F.3d at 1316, as in Thomas I, or they were available to

Plaintiff, Keith, 900 F.2d at 740 n.5, then they are barred. If

they are new and distinct from the core of operative facts in

Thomas I, then they are not.

a. Legal Background: New Claims Not Barred

New factual developments can give rise to “a fresh cause of

action . . . .” Union Carbide Corp. v. Richards, 721 F.3d 307,

315 (4th Cir. 2013); see also Bennett v. Garner, 913 F.3d 436,

440–41 (4th Cir. 2019) (“[R]es judicata does ‘not bar a claim

that does not accrue prior to the litigation triggering the

bar.’” (quoting Funny Guy, LLC v. Lecego, LLC, 293 Va. 135, 159,

795 S.E.2d 887, 900 (2017))). Indeed, a previous suit “cannot be

given the effect of extinguishing claims which did not even then

exist and which could not possibly have been sued upon in the

previous case.” Lawlor v. Nat'l Screen Serv. Corp., 349 U.S.

322, 328 (1955). A contrary doctrine of res judicata “would in

effect confer on [defendants] a partial immunity from civil

liability for future violations.” Id. at 329. In the Title VII

context, “[s]erial violations may be ‘composed of a number of

discriminatory acts emanating from the same discriminatory

animus, each act constituting a separate wrong actionable under

Title VII . . . ,’” Havercombe v. Dep't of Educ. of Com. of

P.R., 250 F.3d 1, 7 (1st Cir. 2001) (quoting Jensen v. Frank,

912 F.2d 517, 522 (1st Cir. 1990)), and “res judicata has very

little applicability to a fact situation involving a continuing

series of acts, for generally each act gives rise to a new cause

of action,” Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir. 1977);

see also Smith v. Potter, 513 F.3d 781, 783 (7th Cir. 2008)

(“The filing of a suit does not entitle the defendant to

continue or repeat the unlawful conduct with immunity from

further suit.”); Waldman v. Vill. of Kiryas Joel, 207 F.3d 105,

113 (2d Cir. 2000) (“It is true that res judicata will not bar a

suit based upon legally significant acts occurring after the

filing of a prior suit that was itself based upon earlier acts.”

(emphasis added)).

However, the newly alleged discriminatory acts must be more

than “additional instances of what was previously asserted.”

Waldman, 207 F.3d at 113. As the Second Circuit opined,

a suit for sexual harassment might bar a later suit

(based on substantially the same facts) for a hostile

work environment. And the occurrence of another like

incident or two would probably not be enough to change

matters. Yet, at some point, repetition of the same or

similar acts may well give rise to a new claim, and

the latter action — based, as it would be, primarily

upon a cumulation of events occurring after the first

suit — would not then be precluded by res judicata.

Id. at 113–14. In sum, a new, independent cause of action that

arose after a previous suit is not barred by that previous suit.

See, e.g., Lawlor, 349 U.S. at 328; Bennett, 913 F.3d at 440–41;

Union Carbide Corp., 721 F.3d at 315.

A number of circuits have adopted a bright line rule that

res judicata does not apply to events post-dating the filing of

the initial complaint. See Howard v. City of Coos Bay, 871 F.3d

1032, 1039 (9th Cir. 2017) (collecting cases and suggesting the

Fourth Circuit is one such circuit); Serna v. Holder, 559 F.

App'x 234, 238 (4th Cir. 2014) (“As the district court found,

all of the adverse employment actions Serna alleged in her

second lawsuit had likely come to pass prior to the filing of

the amended complaint in her first lawsuit . . . .”); see also

Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 314 (5th Cir.

2004); Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998);

Murry v. Gen. Servs. Admin., 553 F. App'x 362, 365 (5th Cir.

2014); Cruthirds v. Lacey, No. 5:14-CV-00260-BR, 2017 WL

3754764, at *5 (E.D.N.C. Aug. 30, 2017); Brown v. City of New

York, No. 14 Civ. 2668(PAE), 2014 WL 5394962, at *5 (S.D.N.Y.

Oct. 23, 2014), aff'd, 622 F. App'x 19 (2d Cir. 2015). This

court is not persuaded that that the Fourth Circuit has adopted

such a bright line rule.

When the Ninth Circuit in Howard collected circuit cases on

the issue, it cited Young-Henderson v. Spartanburg Area Mental

Health Center, 945 F.2d 770, 774 (4th Cir. 1991), as “suggesting

without deciding that res judicata need not ‘preclude claims

that could not have been brought at the time the first complaint

was filed.’” Howard, 871 F.3d at 1039. In Young-Henderson, the

Fourth Circuit did suggest, but did not hold, that claims

arising after a suit is filed are not barred on res judicata

grounds, nor is a plaintiff required to amend their complaint to

include them. Id. at 774 n.3. A later unpublished opinion, Serna

v. Holder, 559 F. App'x 234, 238 (4th Cir. 2014), did not

clarify the issue, nor did the Fourth Circuit articulate a

bright line about when res judicata takes effect. As pointed out

by a district court, the Serna court was not precise in setting

a line, noting that “[i]n Serna the facts [underlying] the

second litigation ‘had likely come to pass prior to Serna’s

filing of the amended complaint in her first lawsuit in August

2010, and certainly before she and the government voluntarily

dismissed the case in August 2011.’” Mack v. S.C. Dep't of

Transp., C/A No. 3:15-2624-MGL-KDW, 2016 WL 8672772, at *6

(D.S.C. Mar. 18, 2016), report and recommendation adopted, Civil

Action No. 3:15-2624-MGL-KDW, 2016 WL 2848369 (D.S.C. May 16,

2016) (quoting Serna, 559 F. App’x at 238). The Mack court

itself applied res judicata to claims that arose after a first

amended complaint was filed but before the suit was dismissed.

Id. at *7. As that court explained, “[p]laintiff has pointed to

no controlling authority indicating only claims that arose prior

to the day a litigation is commenced can be foreclosed by res

judicata. In Serna, the court noted the foreclosed claims may

have existed before suit was filed but ‘certainly’ existed

before the case was dismissed.” Id. (quoting Serna, 559 F. App’x

at 238). As Serna itself points out, “what matters is that the

claim itself existed at the time of the first lawsuit.” Serna,

559 F. App'x at 238.6

In addition to res judicata principles, Title VII’s

administrative exhaustion requirements may further limit the

claims and allegations that a court can consider in a subsequent

suit. As the Fourth Circuit has made clear, res judicata bars

all previous claims that “could have been litigated,” not just

the ones that were. Pueschel v. United States, 369 F.3d 345,

355-56 (4th Cir. 2004). Title VII’s administrative exhaustion

requirements limit claims in the following way:

“Only those discrimination claims stated in the

initial charge, those reasonably related to the

original complaint, and those developed by reasonable

investigation of the original complaint may be

maintained in a subsequent Title VII lawsuit.” Evans

v. Techs. Applications & Serv. Co., 80 F.3d 954, 963

(4th Cir. 1996). A plaintiff fails to exhaust

administrative remedies where “his administrative

charges reference different time frames, actors, and

discriminatory conduct than the central factual

allegations in his formal suit.” Chacko v. Patuxent

Inst., 429 F.3d 505, 506 (4th Cir. 2005).

Day v. Advance Stores Co., No. 1:09-CV-664, 2010 WL 1286666, at

*5 (M.D.N.C. Mar. 29, 2010). Regarding hostile work environment

claims, “as long as the employer has engaged in enough activity

6 As discussed more fully below, Plaintiff’s allegations

either occurred before Thomas I was filed, are continuations of

conduct occurring before Thomas I was filed, or occurred after

Thomas I was dismissed.

to make out an actionable hostile environment claim, an unlawful

employment practice has ‘occurred,’ even if it is still

occurring. Subsequent events, however, may still be part of the

one hostile work environment claim . . . .” Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 117 (2002). This language

suggests that continuing acts of hostility may be pursued under

an original charge without filing a new one, but the Fourth

Circuit has not addressed that issue directly. It has clearly

held that a “plaintiff asserting a Title VII claim of

retaliation for filing a previous EEOC charge [need not] exhaust

administrative remedies before suing in federal court.” Nealon

v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (emphasis added). In

so holding, the Fourth Circuit recognized “that rule is the

inevitable corollary of our ‘generally accepted principle that

the scope of a Title VII lawsuit may extend to any kind of

discrimination like or related to allegations contained in the

charge and growing out of such allegations during the pendency

of the case before the Commission.’” Id. (quoting Hill v. W.

Elec. Co., 672 F.2d 381, 390 n.6 (4th Cir. 1982)). A plaintiff

who is retaliated against for filing an EEOC charge in the first

place may bring a Title VII retaliation claim in federal court

without filing another EEOC charge. Id.

b. Plaintiff’s Allegations

First, the allegations in paragraphs 11 through 17 in the

Complaint are a part of the same core of operative facts as

Thomas I. Plaintiff made the same allegations in Thomas I,

meaning she actually raised the facts, and the claims they

supported, in her pro se lawsuit. (Compare Compl. (Doc. 1)

¶¶ 11–17, with Answer (Doc. 12) at 22–66.) Likewise, the facts

in paragraphs 19, 20, 21, 23, 24, and 25 all occurred prior to

or during Thomas I, meaning those facts and any claims they

raise were part of the same core of operative facts. The facts

in paragraphs 11 through 17 and 19, 20, 21, 23, 24, and 25,

therefore, are part of the same core of operative facts as

Thomas I. Plaintiff is barred by res judicata from asserting

liability on those facts.

The factual allegations in paragraphs 22, and 27 through

36, however, are not barred by res judicata. These factual

allegations occurred after Thomas I was dismissed. (Compl. (Doc.

1) ¶¶ 26–27.) Paragraph 22 deals with Plaintiff’s participation

in the Lindsay EEOC Charge investigation, a distinct set of

facts from her own lawsuit that the court will consider. Though

some of the allegations in paragraph 27 are similar to conduct

alleged in paragraph 18, those acts occurred after Thomas I was

dismissed, meaning that they are not barred by res judicata.

See, e.g., Lawlor, 349 U.S. at 328; Bennett, 913 F.3d at 440–41;

Union Carbide Corp., 721 F.3d at 315. Assuming the allegations

in these paragraphs are sufficient to plausibly state a claim,

Plaintiff is not barred by res judicata from using them to

establish liability since they were not available to Plaintiff

during her first suit.

Though a closer call, the court finds that res judicata

also bars consideration of the facts in paragraph 18, because

paragraph 18 alleges a course of conduct that began before

Thomas I was filed. (Compl. (Doc. 1) ¶ 18.)

Plaintiff alleges the acts in paragraph 18 occurred between

the time she filed her first EEOC charge, December 1, 2016, to

May 4, 2018;7 she does not allege dates for each specific

instance. (Id.) Thomas I was filed on April 4, 2017, and

dismissed on March 29, 2018. (Id. ¶¶ 23, 26.) However, Plaintiff

alleges that the course of discriminatory and retaliatory

conduct alleged in paragraph 18 started the same day she filed

her December 2016 EEOC Charge. (Id. ¶¶ 17–18.) Her subsequent

EEOC Charge in April 2018 confirms that the course of conduct

alleged in paragraph 18 was in retaliation for her 2016 EEOC

7 Though Plaintiff alleges the course of conduct in

paragraph 18 occurred until May 4, 2018, Plaintiff alleges a

separate course of conduct that began March 29, 2018. (Compl.

(Doc. 1) ¶ 27.) It is unclear why Plaintiff has pled this

overlap.

Charge. As Plaintiff stated in the April 2018 EEOC Charge,

“Since the filing of my initial EEOC complaint I have been

subjected to harassment by my co-workers and retaliation.”

(Answer (Doc. 12) at 17 (Plaintiff’s April 2018 EEOC Charge).)

Plaintiff’s own allegations, therefore, support the conclusion

that the allegations in paragraph 18 were retaliatory acts for

the filing of her 2016 EEOC Charge and is “like or related to

allegations contained in the charge and growing out of such

allegations during the pendency of the case before the

Commission.” Nealon, 958 F.2d at 590. The allegations set out in

paragraph 18 are claims which “arise out of the same transaction

or series of transactions, or the same core of operative facts.”

Taylor, 86 F. Supp. 3d at 456 (quoting In re Varat Enters.,

Inc., 81 F.3d at 1316).

The kind of conduct alleged in paragraph 18 supports the

conclusion that it was retaliatory; it is different in kind and

quality from the conduct upon which her 2016 EEOC Charge was

based. Rather than a course of general racial hostility,

coworkers and supervisors directed animus at Plaintiff

specifically. (Compare Compl. (Doc. 1) ¶ 11, with ¶ 18.) Other

than the allegation in paragraph 18(a), every other alleged act

was directed at Plaintiff. This supports Plaintiff’s conclusion

that the conduct was in retaliation for her protected

activities. Retaliation that began before Thomas I was filed in

April 2017 is barred by res judicata, because it was conduct

Plaintiff was aware before filing suit, and thus any claims it

supported were available to Plaintiff then. Conduct that

continued during the pendency of Thomas I is still the same part

of that retaliatory “series.” (See id. ¶ 18.) It is conduct that

is “like or related to allegations contained in the charge and

growing out of such allegations during the pendency of the case

before the Commission,” Nealon, 958 F.2d at 590, and such

allegations are claims which “arise out of the same transaction

or series of transactions, or the same core of operative facts,”

Taylor, 86 F. Supp. 3d at 456 (quoting In re Varat Enters.,

Inc., 81 F.3d at 1316).

Turning to what facts and claims Title VII’s administrative

requirements would have allowed Plaintiff to bring in Thomas I,

Fourth Circuit precedent would have permitted Plaintiff to bring

any retaliation claim that arose from her first EEOC charge. See

Nealon, 958 F.2d at 590. Plaintiff characterizes the allegations

in paragraph 18 as acts of “continuous discrimination and

retaliation.” (Compl. (Doc. 1) ¶ 18.) Indeed, other than the

allegation in paragraph 18(a), all other allegations in

paragraph 18 are plausibly classified as acts of retaliation.

(See id.) Therefore, Plaintiff would not have been barred by

Title VII’s administrative exhaustion requirements from

including those facts and claims in Thomas I, even if continuing

acts of a hostile work environment could not be included by

amendment.

It also appears overt acts of racial discrimination would

have been properly considered as a part of Plaintiff’s original

claim. Plaintiff’s original EEOC charge alleged a racially

hostile work environment stemming from the behavior of her

supervisors and coworkers. (See Answer (Doc. 12) at 30–59, 61,

64–66.) “Subsequent events . . . may still be part of the one

hostile work environment claim . . . .” Morgan, 536 U.S. at 117.

Though some of the allegations may have occurred in a different

time frame from her first EEOC charge, see Chacko, 429 F.3d at

506, the allegations in paragraph 18 are arguably part of the

same allegations in the original charge, see Broome v. Iron

Tiger Logistics, Civil Action No. 7:17cv444, 2019 WL 6719495, at

*8 (W.D. Va. Dec. 10, 2019) (rejecting argument that post-charge

hostile environment conduct was barred and finding “that the

events that occurred after [the EEOC charge was filed] were

reasonably related to the original complaint and thus [the

plaintiff] sufficiently exhausted them when he filed the EEOC

charge”); Refermat v. Lancaster Cent. Sch. Dist., No. 14-CV-

0712-RJA-MJR, 2017 WL 10296874, at *6 (W.D.N.Y. Nov. 14, 2017),

report and recommendation adopted No. 14-CV-0712-RJA-MJR, 2018

WL 3640220 (W.D.N.Y. Aug. 1, 2018) (considering post-charge

incidents of sexual harassment since such incidents were

“continuing allegations of the same hostile and retaliatory

environment as described in the EEOC charge”). Plaintiff’s 2016

EEOC Charge alleged ongoing racial and pregnancy discrimination.

(See Answer (Doc. 12) at 61, 64–66.) Plaintiff complained that

both coworkers and supervisors subjected her to racial

discrimination. (Id. at 64–66.) The allegations in paragraph 18

of the Thomas II Complaint mostly involve conduct by coworkers

but do include one discriminatory act by a supervisor. (Compl.

(Doc. 1) ¶ 18.) This distinguishes Plaintiff’s allegations in

paragraph 18 from Chacko, where that the plaintiff’s

“‘centerpiece’ at trial was that coworkers continually made

derogatory national-origin remarks to him over the course of his

twenty-year career, and that supervisors did not discipline

these coworkers, laughed at their comments, and may have joined

them.” Chacko, 429 F.3d at 510-11. That plaintiff’s EEOC charge,

however, did not mention “coworker harassment or nation-origin

epithets.” Id. Unlike plaintiff in Chacko, Plaintiff here

originally alleged ongoing racial discrimination by both

coworkers and supervisors, the same type of conduct alleged in

paragraph 18. In any event, most of the allegations in paragraph

18 could have been brought in Thomas I, at a minimum, as

subsequent acts of retaliation.

3. Res Judicata Conclusion

To conclude the res judicata analysis, Plaintiff’s own

allegations describe the conduct in paragraph 18 as a course of

retaliatory conduct linked to her 2016 EEOC Charge. That conduct

began before she filed Thomas I; any part of that series of

conduct that continued into the pendency of Thomas I would have

still been part of the same series of conduct. Title VII would

not have prevented Plaintiff from including most, or all, of

paragraph 18’s allegations in her previous suit. The facts in

paragraph 18 allege claims that “could have been litigated” in

Pueschel v. United States, 369 F.3d at 356. As the Fourth

Circuit has noted, “what matters is that the claim itself

existed at the time of the first lawsuit.” Serna, 559 F. App'x

at 238; see also Keith,, 900 F.2d at 740 n.5 (“For res judicata

purposes, . . . it is the existence of the claim, not awareness

of it, that controls.”).

As the foregoing analysis demonstrates, those allegations

that were part of the claim in Thomas I are barred by res

judicata from establishing a new claim. This court finds that

claims arising from the allegations contained in paragraphs 9-21

or 23-25 are part “of the same transaction or series of

transactions, or the same core of operative facts.” Taylor, 86

F. Supp. 3d at 456 (quoting In re Varat Enters., Inc., 81 F.3d

at 1316). Therefore, the court will not consider those facts in

determining whether the allegations not barred by res judicata

constitute a new cognizable wrong or are just “additional

instances of what was previously asserted.” Waldman, 207 F.3d at

113.8

B. Title VII and § 1981 Claims

Title VII and Section 1981 each prohibit employment

discrimination on the basis of race. 42 U.S.C. § 2000e-2(a)(1);

42 U.S.C. § 1981. A race-based employment discrimination claim

must assert that the plaintiff “belongs to a racial minority”

and was either not hired, fired, or suffered some adverse

employment action due to his race. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); see also Thompson v. Potomac

Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002) (stating

8 Finding the Thomas I allegations are barred by res

judicata (claim preclusion), the court need not address

Defendant’s collateral estoppel (issue preclusion) argument. As

with res judicata, collateral estoppel does not foreclose

consideration of new claims that arose after Thomas I. See In re

Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir.

2004). One of the elements a proponent of collateral estoppel

must prove is that the issue or fact in question is identical to

the previous suit. Id. Since Plaintiff had not been terminated

in Thomas I, it is impossible for Defendant to establish

collateral estoppel on that issue.

that the legal standard is the same under both Title VII and

Section 1981). Claims for discrimination under Title VII and

Section 1981 are analyzed under the same framework. See, e.g.,

White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir.

2004). The court will therefore consider Plaintiff’s Title VII

and Section 1981 claims together.

Plaintiff’s Claims One through Three are based on Title VII

and Section 1981. Claim One alleges violations of Title VII in

the form of a hostile work environment and wrongful discharge.

(Compl. (Doc. 1) ¶¶ 42–47.) Claim Two alleges retaliation under

Title VII. (Id. ¶¶ 48–53.) Claim Three again alleges hostile

work environment and wrongful discharge in violation of § 1981.

(Id. ¶¶ 54–59.) The court begins with Plaintiff’s wrongful

discharge claims under Title VII and § 1981.

1. Wrongful Discharge

“It shall be an unlawful employment practice for an

employer . . . to discharge any individual . . . because of such

individual's race, color, religion, sex, or national origin

. . . .” 42 U.S.C. § 2000e-2(a)(1). Title VII and § 1981 claims

are governed by the same standard. Guessous v. Fairview Prop.

Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016).

Under the McDonnell Douglas framework, to make out a prima

facie case of racially motivated discharge, a plaintiff must

establish that:

(1) she is a member of a protected class; (2) she

suffered adverse employment action; (3) she was

performing her job duties at a level that met her

employer's legitimate expectations at the time of the

adverse employment action; and (4) the position

remained open or was filled by similarly qualified

applicants outside the protected class.

Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005); Carter

v. Ball, 33 F.3d 450, 458–59 (4th Cir. 1994) (citing St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)); see also Collin

v. Rectors & Visitors of Univ. of Va., No. 96-1078, 1998 WL

637420, at *1 (4th Cir. 1998) (unpublished table decision);

Valcarcel v. ABM Indus./Diversico Indus., No. 1:17-CV-00735,

2019 WL 2410802, at *3 (M.D.N.C. June 7, 2019); Tayn v. Kidde,

178 F. Supp. 2d 557, 561 (M.D.N.C. 2001), aff'd, 28 F. App'x 337

(4th Cir. 2002). Though the prima facie case utilized by the

courts above does not include an element requiring an inference

of discriminatory motivation behind the termination, such an

inference is called for by the statute. See 42 U.S.C. § 2000e-

2(a) (stating that it is unlawful to discharge an employee

“because of such an individual’s race . . . .”).

To state a Title VII status-based claim, a plaintiff

must plausibly allege the requisite causal connection

between the plaintiff's protected status and the

alleged discrimination. See Guessous, 828 F.3d at 216-

17. “For status-based discrimination claims, the

employee must ‘show that the motive to discriminate

was one of the employer’s motives, even if the

employer also had other, lawful motives that were

causative in the employer’s decision.’” Id. at 216-17

(quoting [Univ. of Tex. Sw. Med. Ctr. v.] Nassar, 570

U.S. 338, 343 (2013)).

Brown v. Wake Cty. Gov't, No. 5:16-CV-806-D, 2017 WL 2982971, at

*6 (E.D.N.C. July 12, 2017). That inference may be established

by circumstantial evidence of discriminatory treatment leading

up to a plaintiff’s termination. See Desert Palace, Inc. v.

Costa, 539 U.S. 90, 101–02 (2003); Rowland v. Am. Gen. Fin.,

Inc., 340 F.3d 187, 192–93 (4th Cir. 2003).

Plaintiff has alleged post-Thomas I facts that plausibly

support a claim of wrongful discharge under Title VII and

§ 1981. Plaintiff is an African-American woman who was

terminated from employment, and who alleges she was replaced by

a white person.9 (Compl. (Doc. 1) ¶¶ 5, 34, 36.) She has

plausibly alleged facts supporting the first, second, and fourth

elements of a prima facie case, see Miles, 429 F.3d at 485, and

those facts are not disputed.

Plaintiff’s allegations also plausibly support the third

element, that she had been performing her job satisfactorily.

9 “[A]lthough replacement with a non-member of the protected

class is evidence of discriminatory intent, it is not essential

to the establishment of a prima facie case under Title VII.”

Williams v. Trader Publ'g Co., 218 F.3d 481, 485 (5th Cir.

2000).

See id. Despite the fact that she received a write-up in March

2018, a write-up she alleges was retaliatory, she held her

position for another eight months. (Compl. (Doc. 1) ¶¶ 28, 34.)

This length of time permits a plausible inference that she was

performing her job satisfactorily. Plaintiff also alleges that

her termination was for a violation of attendance policies that

never occurred. Though Plaintiff’s conclusions are not

sufficient to state a plausible claim, see Iqbal, 556 U.S. at

678, Plaintiff has alleged other facts that plausibly support

the inference that her termination was not the result of poor

job performance or policy violations.

First, Plaintiff has plausibly alleged that she did not

violate any policies. Plaintiff alleges that she received a

safety-related write-up in March 2018 for an event that never

occurred, and that that write-up came the day after Thomas I was

dismissed. (Compl. (Doc. 1) ¶¶ 28, 29.) Furthermore, taking

Plaintiff’s allegations as true, she was terminated for a

violation of attendance policies, even though she had permission

to leave without signing out. (Id. ¶¶ 33–34.) Second, Plaintiff

has plausibly alleged facts supporting the inference that

Defendant’s employees were motivated by racial animus. Plaintiff

was replaced by a “less qualified white employee.” (Id. ¶ 36.)

White employees broke equipment and attempted to blame Plaintiff

for their actions. (Id. ¶ 27(b).) White employees also “trashed”

Plaintiff’s workspace to try and prevent her from completing her

work. (Id. ¶ 27(c).) Supervisors also allegedly treated African-

American employees differently. (Id. ¶¶ 27(a), (d).) Third, this

inference of racial animus is also supported by Plaintiff’s

allegations regarding other African-American employees.

Plaintiff alleges that other African-American employees were

held to higher standards than their white coworkers,

specifically as it pertained to disrespect towards supervisors

and attendance policies. (Id.)

Taking all these allegations as true, the court can draw

the reasonable inference that Plaintiff did not actually violate

any policies, but instead that Defendant was motivated by racial

animus. Plaintiff has alleged sufficient facts to plausibly

claim that she was terminated because of her race, not because

she was performing unsatisfactorily at work. Whether these

inferences prove to be true following discovery is a separate

issue.

Finally, to return briefly to Defendant’s res judicata

defense, the court finds that Plaintiff’s wrongful discharge

claim arises from a different set of facts than those in Thomas

I, facts that occurred eight months after the dismissal of

Thomas I. Wrongful termination is a distinct claim from hostile

work environment or retaliation, and it requires a new harm, a

discharge. See Carter, 33 F.3d at 458–62 (analyzing “Racially

Discriminatory Discharge” separately from claims of retaliation

and hostile work environment); Miles, 429 F.3d at 485 (laying

out elements for prima facie claim of wrongful discharge). Not

only is Plaintiff’s wrongful discharge claim a new claim, but it

also arose from facts distinct from the ones alleged in Thomas

I. Though the claimed racial animus that pervaded Thomas I

allegedly continued into this current action, Plaintiff’s

termination did not arise from the “same core of operative

facts” as in Thomas I. In re Varat Enters., Inc., 81 F.3d at

1316. Plaintiff’s termination is a “legally significant act[]

occurring after the filing of a prior suit . . . .” Waldman, 207

F.3d at 113. Therefore, this claim is not barred on res judicata

or collateral estoppel grounds.

2. Retaliation

Plaintiff has failed to allege any post-Thomas I facts that

support her retaliation claim.

It is unlawful for an employer to “discriminate against any

of his employees . . . because [the employee] has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” under Title VII. 42

U.S.C. § 2000e–3(a). “A prima facie retaliation claim under 42

U.S.C. § 1981 has the same elements” as one under Title VII.

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th

Cir. 2015). “To establish a prima facie case of retaliation

. . . , a plaintiff must prove (1) that she engaged in a

protected activity, as well as (2) that her employer took an

adverse employment action against her, and (3) that there was a

causal link between the two events.” Id. (internal citations and

quotation marks omitted). In Plaintiff’s case, the first two

elements are not in dispute; Plaintiff engaged in protected

activity in the form of filing her pro se lawsuit, participating

in the Lindsay EEOC Charge process, and filing new EEOC charges

after Thomas I and she was terminated.10 (Compl. (Doc. 1) ¶¶ 22–

24, 30, 34.) However, Plaintiff’s allegations do not plausibly

support the conclusion that the adverse employment action was

caused by her protected activity.

10 The write-up shortly following the dismissal is not

sufficiently adverse to satisfy the adverse-action prong and

will, therefore, not be considered. See Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“In our view, a

plaintiff must show that a reasonable employee would have found

the challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” (internal

quotations and citations omitted)). As will be discussed below,

infra Section III.B.3, the court does not find that Plaintiff

has plausibly alleged a claim for hostile work environment,

meaning she cannot claim Defendant created or allowed a hostile

work environment as retaliation. Therefore, only Plaintiff’s

termination will be considered as a retaliatory action.

Proving causation at the pleading stage is “not an onerous

burden,” and retaliation plaintiffs “do not have to show at the

prima facie stage that their protected activities were but-for

causes of the adverse action.” Strothers v. City of Laurel, 895

F.3d 317, 335 (4th Cir. 2018). However, plaintiffs must allege

facts plausibly supporting an inference of causation, a task

that may be accomplished by alleging facts that show the

employer took an adverse action “soon after becoming aware” of

protected activity. Id. at 336; see also Welton v. Durham Cty.,

No. 1:17-CV-258, 2018 WL 4656242, at *3 (M.D.N.C. Sept. 27,

2018), aff'd, 781 F. App’x 242 (4th Cir. 2019) (discussing

Strothers, 895 F.3d at 335–36). Proving causation by temporal

proximity alone requires that the adverse action must be close

enough to the protected activity to permit an inference of

causation. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–

74 (2001) (per curiam). Clark County School District itself

cited, with approval, cases finding that periods as little as

three or four months were too long. Id.

If the period of time between the protected activity and

the retaliatory conduct is too long to support an inference of

causation, “courts may look to the intervening period for other

evidence of retaliatory animus.” Lettieri v. Equant Inc., 478

F.3d 640, 650 (4th Cir. 2007). Absent circumstances that explain

the delay in time, the Fourth Circuit has noted that even two-

and-a-half months “weaken[s] significantly the inference of

causation between” protected activity and adverse action. King

v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003).11

Plaintiff filed her first post-Thomas I EEOC Charge in

April 2018;12 she was terminated on December 18, 2018. (Compl.

(Doc. 1) ¶¶ 31, 34.) The gap between the two events is roughly

eight months, a period of time other courts have found too long

to support a plausible inference of causation. Stephens v.

Neal's Pallet Co., No. 3:11CV173, 2012 WL 2994651, at *7

(W.D.N.C. July 23, 2012) (eight months too long); Allen v. Fed.

Express Corp., No. 1:09CV17, 2011 WL 1260225, at *10 (M.D.N.C.

Mar. 31, 2011) (eight months too long); see also Squibb v. Mem'l

Med. Ctr., 497 F.3d 775, 787 (7th Cir. 2007) (eight months too

11 The circumstances in King were that it was a teacher who

was terminated at the end of the academic year, “the natural

decision point, thus making likely that any discharge, lawful or

unlawful, would come at that time.” King, 328 F.3d at 151 n.5.

12 Plaintiff also claims she was retaliated against for

participating in the Lindsay EEOC Charge investigation and

pursuing her own claims in Thomas I. (Compl. (Doc. 1) ¶¶ 24,

35.) Thomas I was dismissed before Plaintiff filed her April

2018 EEOC Charge, and Plaintiff participated in the Lindsay EEOC

investigation almost a year before her 2018 EEOC Charge.

Causation is even weaker when based on those protected

activities. It is for that reason that the court is only

considering the April 2018 EEOC charge, the protected activity

closest to Plaintiff’s termination.

long); Christmas v. N.C. Dep't of Admin., No. 5:09-CV-346-FL,

2011 WL 1870236, at *11 (E.D.N.C. May 16, 2011) (finding that

five months “is not the sort of 'very close' temporal proximity

which, standing alone, will support an inference of a causal

link" (citing Clark Cty. Sch. Dist., 532 U.S. at 273)). The

court finds that the eight-month gap in this case makes an

inference of causation implausible without additional factual

support.

As for intervening conduct that might show retaliatory

animus, Plaintiff’s allegations do not support a finding of

retaliatory animus. Plaintiff alleges that from March 29, 2018,

until December 18, 2018, “[she] continued to be subjected to

severe, pervasive, and continuous discrimination and retaliation

. . . .” (Compl. (Doc. 1) ¶ 27.) Plaintiff offers four examples

of this conduct. (Id.) Plaintiff does not, however, allege

specific dates for those allegations of discrete conduct. It is

possible that these incidents all occurred prior to Plaintiff

filing her April 2018 EEOC Charge. Plaintiff’s allegations that

she was subject to “continuous discrimination” during that

period are “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements,” and the court

is not required to accept them. Iqbal, 556 U.S. at 678. Perhaps

most significant, even if the court assumes all of the

specifically-alleged acts of hostile conduct occurred after

April 2018, there is no allegation to support a finding the

actors, most of whom were coworkers, not supervisors, were aware

of her April 2018 EEOC charge. (See Compl. (Doc. 1) ¶¶ 27-33.)

“[T]he facts the decision-maker actually perceived matter. If an

employer . . . never realized that its employee engaged in

protected conduct, it stands to reason that the employer did not

act out of a desire to retaliate for conduct of which the

employer was not aware.” Villa v. CavaMezze Grill, LLC, 858 F.3d

896, 901 (4th Cir. 2017). Though Defendant was aware of

Plaintiff’s Lindsay EEOC Charge interview and pro se lawsuit,

(id. ¶¶ 24), those protected activities occurred more than a

year-and-a-half prior to her termination, making causation

implausible.

Finally, Plaintiff argues in her response that the timing

is close because Plaintiff received her right-to-sue letter the

day after she was terminated. (Pl.’s Resp. (Doc. 22) at 25.)

Plaintiff argues that the “close proximity of these dates

creates an inference that defendant was aware, either through

communications with the investigator or through access to their

EEOC online portal, that the EEOC was closing out her April 2018

EEOC charge prior to the date it was signed . . . .” (Id. at 25–

26.) The Complaint, however, does not allege that Defendant

acted based on knowledge that the April 2018 EEOC charge was

about to be closed, and Plaintiff’s interpretation in its

briefing is not a factual allegation that the court must accept.

It is possible to draw the inference that Defendant acted when

it did because the April 2018 EEOC charge was about to close is

possible, but “factual allegations in a complaint must make

entitlement to relief plausible and not merely possible

. . . .”). McLean v. United States, 566 F.3d 391, 399 (4th Cir.

2009).

For these reasons, Plaintiff has failed to plausibly allege

that she was retaliated against for filing her April 2018 EEOC

charge or her Thomas I lawsuit. Plaintiff’s retaliation claim

(Claim Two) will be dismissed.

3. Hostile Work Environment

Plaintiff claims Defendant subjected her to a racially

hostile work environment in violation of both Title VII and

§ 1981. Since the court is barred by res judicata from

considering Thomas I facts as a part of this claim, the court

finds that Plaintiff has not alleged new conduct that plausibly

supports a hostile work environment claim. Plaintiff has not

alleged facts showing that a post-Thomas I environment that was

severe or pervasive enough to support this claim.

A hostile work environment is one where “the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim's employment and create an abusive working

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (internal quotation marks omitted).

[T]o prevail on a Title VII claim that a workplace is

racially hostile, a plaintiff must show that there is

(1) unwelcome conduct; (2) that is based on the

plaintiff's race; (3) which is sufficiently severe or

pervasive to alter the plaintiff's conditions of

employment and to create an abusive work environment;

and (4) which is imputable to the employer.

Boyer-Liberto, 786 F.3d at 277 (internal quotations and

citations omitted). “The same test applies to a hostile work

environment claim asserted under 42 U.S.C. § 1981.” Id.

Regarding the third prong, “[t]o be actionable, the conduct

must be both objectively and subjectively offensive. To be

objectively offensive, the conduct must create ‘an environment

that a reasonable person would find hostile or abusive,’

otherwise it lies ‘beyond Title VII's purview.’” Lumoa v.

Potter, 351 F. Supp. 2d 426, 435 (M.D.N.C. 2004) (quoting

Harris, 510 U.S. at 21–22). In determining whether a reasonable

person would find an environment “sufficiently severe or

pervasive,” courts should consider the “frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's work

performance.” Harris, 510 U.S. at 23. “‘[S]imple teasing,’

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the ‘terms

and conditions of employment.’” Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 81 (1998)). “Although hostile work

environment claims often involve repeated conduct, an ‘isolated

incident of harassment can amount to discriminatory changes in

the terms and conditions of employment, if that incident is

extremely serious.’” Ortiz v. Vance Cty. Sch., Admin. Unit, No.

5:18-CV-91-D, 2019 WL 1940596, at *5 (E.D.N.C. Apr. 30, 2019)

(quoting Boyer-Liberto, 786 F.3d at 277). Finally, “[i]n

measuring the severity of harassing conduct, the status of the

harasser may be a significant factor — e.g., ‘a supervisor's use

of [a racial epithet] impacts the work environment far more

severely than use by co-equals.’” Boyer-Liberto, 786 F.3d at 278

(quoting Rodgers v. W.–S. Life Ins. Co., 12 F.3d 668, 675 (7th

Cir. 1993)).

Turning back to this case, Plaintiff alleges that the

following acts occurred between March 29, 2018, and December 18,

2018:

a. A white co-employee cussed out the shipping

supervisor in front of the plaintiff and received

no discipline, while African-American employees

were disciplined for insubordination.

b. White employees broke a scale and attempted to

place the blame on the plaintiff.

c. White co-employees trashed plaintiff’s workspace

in an attempt to prevent her from completing her

work.

d. A black co-employee was suspended for an

attendance violation, but two white employees

were not suspended for the same violation.

(Compl. (Doc. 1) ¶ 27.) Plaintiff also alleges that she received

a disciplinary write-up for an event that never occurred. (Id.

¶¶ 28–29.)

Since Plaintiff has failed to allege conduct that is severe

or pervasive enough to state a claim for hostile work

environment, the court only addresses the third prong.

First, Plaintiff has alleged five incidents that occurred

over a period of eight months. Other courts have found similar

levels of infrequency insufficient to sustain a hostile work

environment claim. See Peeples v. Kaiser Permanente the Se.

Permanente Med. Grp., No. 1:15-cv-3029-WSD, 2017 WL 1682527, at

*4 (N.D. Ga. May 2, 2017) (finding three comments were not

pervasive); Abdullah-El v. Bon Appetit Mgmt. Co., Case No. C15-

1946JLR, 2016 WL 1756630, at *1, *4–5 (W.D. Wash. May 3, 2016)

(dismissing hostile environment claim based on several incidents

over seven months);13 Saidu-Kamara v. Parkway Corp., 155 F. Supp.

2d 436, 440 (E.D. Pa. 2001) (finding that four incidents over a

year-and-a-half did not state a claim for hostile environment);

see also14 Mosley v. Marion Cty., Miss., 111 F. App'x 726, 728

(5th Cir. 2004) (finding three incidents involving racial slurs

insufficient to create issue for jury on hostile work

environment claim); Burnett v. Tyco Corp., 203 F.3d 980, 985

(6th Cir. 2000) (“[U]nder the totality of the circumstances, a

single battery coupled with two merely offensive remarks over a

six–month period does not create an issue of material fact as to

whether the conduct alleged was sufficiently severe to create a

hostile work environment.”); Mendoza v. Borden, Inc., 195 F.3d

1238, 1249 (11th Cir. 1999) (finding that five instances over

eleven months not pervasive); Cruz v. Liberatore, 582 F. Supp.

2d 508, 517–18 (S.D.N.Y. 2008) (finding five incidents over

“several months” not frequent or pervasive, but were severe

enough to create hostile work environment); Curtis v. First

Watch of Arizona, Inc., No. Civ. 04-0909 PHX RCB, 2006 WL

13 Abdullah-El was a sexual harassment case. “Although

racial and sexual harassment will often take different forms,

and standards may not be entirely interchangeable, we think

there is good sense in seeking generally to harmonize the

standards of what amounts to actionable harassment.” Faragher,

524 U.S. at 787 n.1.

14 The following cases were decided on summary judgment.

726883, at *5, *8–9 (D. Ariz. Mar. 20, 2006) (finding multiple

comments over twelve-month period insufficient); Sasser v.

Alabama Dep't of Corr., 373 F. Supp. 2d 1276, 1290 (M.D. Ala.

2005) (finding four incidents in nine months, including an

allegedly unfounded disciplinary act, was not frequent enough to

be actionable); Swain v. Cub Foods, No. 02 C 1093, 2003 WL

22232797, at *4 (N.D. Ill. Sept. 23, 2003) (finding four

comments over four-month period insufficient); cf. Reedy v.

Quebecor Printing Eagle, Inc., 333 F.3d 906, 908–10 (8th Cir.

2003) (finding, on summary judgment, that five instances over

seven months enough when racial slurs used).

Second, the conduct alleged is also not severe enough to

overcome its infrequency. An “‘isolated incident of harassment

can amount to discriminatory changes in the terms and conditions

of employment, if that incident is extremely serious.’” Ortiz,

2019 WL 1940596, at *5 (quoting Boyer-Liberto, 786 F.3d at 277).

Plaintiff’s allegations do not rise to that level. Plaintiff

alleges that, on one occasion, white coworkers broke equipment

and then blamed her. This act, if true, is disturbing, but it is

not physically threatening nor is it severe enough to say it

materially alters the terms of employment.

Plaintiff also alleges that white coworkers “trashed” her

workspace in an effort to prevent her from completing her work.

Though such an act could “unreasonably interfere[] with

[Plaintiff’s] work performance,” Harris, 510 U.S. at 23, the

conduct is still not so severe or physically humiliating as to

create a hostile environment, see, e.g., Boyer-Liberto, 786 F.3d

at 270; Cruz, 582 F. Supp. 2d at 517–18. Plaintiff herself was

not physically threatened. The fact that coworkers and not a

supervisor took the action also decreases its severity. This act

likely interfered with Plaintiff’s work, but it is only alleged

to have occurred once.

The allegedly disparate treatment of African-American

employees by supervisors also is not severe enough to overcome

the infrequency of the alleged conduct. Plaintiff does not

allege her own write-up in March 2018 was the result of race,

but retaliation. That leaves only two other alleged incidents of

racial preference by supervisors. These two incidents, spread

over more than eight months, are too infrequent to support

Plaintiff’s hostile work environment claim.

Plaintiff has failed to plausibly allege facts supporting

her hostile work environment claims. The facts do not plausibly

support the conclusion that Plaintiff’s “workplace [was]

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim's employment and create an abusive working

environment.” Harris, 510 U.S. at 21 (internal quotation marks

omitted).

Regardless of whether consideration of Thomas I facts would

lead to a different result, the court is foreclosed from basing

liability on those facts.15 The court notes that Plaintiff’s

post-Thomas I allegations do not specify who her supervisors

15 As previously stated, the court will not consider the

facts alleged in paragraph 18 since Plaintiff has not pled facts

that would allow the court to infer whether these acts occurred

before or after the filing of Thomas I.

Furthermore, though Morgan’s timeliness principles do not

apply in this instance, see supra note 4, even Morgan’s

continuing violation exception would not save Plaintiff’s

hostile work environment claim. The Morgan Court noted, with

approval, that the lower court concluded that “the pre- and

post-limitations period incidents involved the same type of

employment actions, occurred relatively frequently, and were

perpetrated by the same managers.” Morgan, 536 U.S. at 120

(alterations in original) (internal quotations omitted); Duncan

v. Manager, Dep't of Safety, City & Cty. of Denver, 397 F.3d

1300, 1308 (10th Cir. 2005) (“Morgan emphasizes that there must

be a relationship between acts alleged after the beginning of

the filing period and the acts alleged before the filing period

. . . .”); McLaughlin v. Barr, No. 1:19-CV-318, 2020 WL 869914,

at *8 (M.D.N.C. Feb. 21, 2020) (noting the same).

Here, Plaintiff alleges a different kind of conduct than

that occurred in Thomas I. Thomas I’s hostile work environment

allegations contained numerous examples of overtly racist

remarks and comments made by at least one supervisor. (See

Compl. (Doc. 1) ¶ 11.) Thomas II’s facts, by contrast, are

limited in number; the worst acts are confined to coworkers, not

supervisors. (Id. ¶ 27.) Thomas II’s facts also occurred almost

thirteen months after Thomas I’s. (Id. ¶¶ 11, 27.) The contrasts

in type, quantity, and the gap in time suggests that Thomas I’s

allegations, even if the court could consider them, would have

less probative value in evaluating Thomas II’s allegations. Even

the allegations in paragraph 18 are different in kind and

quantity from those in paragraph eleven. (Id. ¶¶ 11, 18.)

were. (Compl. (Doc. 1) ¶ 9.) The supervisor responsible for some

of the worst conduct alleged in Thomas I, Robby Collins, is no

longer mentioned in Thomas II. (See Answer (Doc. 12) at 31–59.)

Unlike Thomas I, Plaintiff does not provide direct evidence of

any overtly racist behavior, such as Facebook posts. (See id.)

Also, Plaintiff’s post-Thomas I allegations mostly involve

racist acts by coworkers, not supervisors. (Compl. (Doc. 1)

¶ 27.) These differences between Thomas I and Thomas II suggest

that Plaintiff’s work environment is not the same between the

two suits, buttressing the conclusion that behavior alleged

outside paragraph twenty-seven of the Thomas II Complaint is

part of the core of operative facts litigated in Thomas I, but

not here in Thomas II.

In a case such as this where a series of conduct has been

previously litigated and is now barred by res judicata, “the

occurrence of another like incident or two [of harassment] would

probably not be enough to change matters.” Waldman, 207 F.3d at

113-14. Though Defendant has allegedly continued to allow some

degree of hostility to persist, Plaintiff’s allegations are

either “additional instances of what was previously asserted,”

id. at 113, or are part of an entirely new core of operative

facts. Since they are, Defendant’s motion will be granted as to

Plaintiff’s hostile work environment claims under Title VII and

§ 1981.

C. Wrongful Discharge in Violation of North Carolina

Public Policy

Plaintiff’s final claim alleges that she was wrongfully

discharged in violation of North Carolina’s public policy as

stated in N.C. Gen. Stat. § 143-422.2. (Compl. (Doc. 1) ¶¶ 60–

65.) Defendant argues that res judicata and/or collateral

estoppel bars this claim or, in the alternative, the post-Thomas

I facts do not plausibly support the claim. The court ultimately

finds that Plaintiff has plausibly alleged a North Carolina

Public Policy claim.

While “North Carolina is an employment-at-will state. . . .

[The North Carolina Supreme Court] has recognized a public-

policy exception to the employment-at-will rule.” Kurtzman v.

Applied Analytical Indus., Inc., 347 N.C. 329, 331–32, 493

S.E.2d 420, 422 (1997); see also Coman v. Thomas Mfg. Co., 325

N.C. 172, 175–76, 381 S.E.2d 445, 447 (1989). For example, where

the defendant corporation terminated the plaintiff “for refusing

to work for less than the statutory minimum wage,” this conduct

violated the clearly articulated public policy of the state and

the plaintiff could maintain a wrongful discharge claim. Amos v.

Oakdale Knitting Co., 331 N.C. 348, 351–54, 416 S.E.2d 166, 168–

70 (1992). Further, “absent (a) federal preemption or (b) the

intent of our state legislature to supplant the common law with

exclusive statutory remedies, the availability of alternative

remedies does not prevent a plaintiff from seeking tort remedies

for wrongful discharge based on the public policy exception.”

Id. at 356–57, 416 S.E.2d at 171; see also Hicks v. Robeson

Cty., No. 7:98-CV-105-BR(I), 1998 WL 1669080, at *4 (E.D.N.C.

Oct. 15, 1998) (finding that “the availability of a remedy under

Title VII does not prevent a plaintiff from seeking tort

remedies for wrongful discharge based on the public policy

exception”).

North Carolina law provides that “[i]t is the public policy

of this State to protect and safeguard the right and opportunity

of all persons to seek, obtain and hold employment without

discrimination or abridgement on account of race . . . .” N.C.

Gen. Stat. § 143-422.2. Defendant allegedly violated this policy

by permitting a racially charged hostile work environment and

discriminating against Plaintiff by terminating her. The legal

standard for a public policy wrongful discharge claim is the

same as for a Title VII, or 42 U.S.C. § 1981, discrimination

claim. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir.

1995).

Plaintiff’s potential federal remedies do not preempt this

claim. Plaintiff has plausibly alleged wrongful discharge claims

under Title VII and § 1981. Therefore, Defendant’s motion to

dismiss Plaintiff’s state-law wrongful discharge in violation of

public policy claim will be denied.

Iv. CONCLUSION

Based on facts that occurred after Thomas I was dismissed,

Plaintiff has plausibly alleged claims for wrongful discharge

under Title VII, § 1981, and North Carolina Public policy.

Plaintiff has failed to plausibly allege any claim for

retaliation or hostile work environment.

IT IS THEREFORE ORDERED that Defendant’s Motion for

Judgment on the Pleadings, (Doc. 14), is DENIED IN PART AND

GRANTED IN PART. Defendant’s Motion is GRANTED as to Claim Two

and as to Claims One and Three to the extent they rely ona

hostile work environment claim. Defendant’s Motion is DENIED as

to Claim Four as well as Claims One and Three to the extent

those claims rely on a wrongful termination claim.

This the 28th day of July, 2020.

bh) Wi an L. ahr. □

Wo Oi nin No

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