WILSON v. UNC HEALTH CARE SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ED WILSON, )

)

Plaintiff, )

)

v. ) 1:19CV1169

)

UNC HEALTH CARE SYSTEM, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court is the Motion to Dismiss Amended

Complaint, (Doc. 12), filed by Defendant UNC Health Care System.

Plaintiff’s Amended Complaint, (Doc. 9), alleges violations of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e; the Age Discrimination in Employment Act of 1967

(“ADEA”); the North Carolina Equal Employment Practices Act,

N.C. Gen Stat. § 143-422.1; and N.C. Gen. Stat. § 116-37(d).

Defendant moves to dismiss Plaintiff’s Complaint on the grounds

of Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and

12(b)(6) (Doc. 12.) For the reasons set forth herein, the court

will grant Defendant’s motion to dismiss as to all federal

claims. The court declines to exercise supplemental jurisdiction

over the remaining state claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Parties

Plaintiff Ed Wilson began working as a Sterile Processor

Tech II for Defendant UNC Health Care System (“UNC HCS”) in

February of 2015, specializing in cart assembly. (First Amended

Complaint (“Am. Compl.” (Doc. 9) ¶ 9.) Defendant UNC HCS is a

nonprofit health care system created by N.C. Gen. Stat. § 116-37

and owned by the State of North Carolina. (Id. ¶ 2.)

B. Factual Background

Although a motion to dismiss “tests the sufficiency of a

complaint,” Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th

Cir. 2013), and this court’s evaluation is “thus 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), this court may consider documents that are

incorporated into the complaint by reference. A document is

incorporated by reference if it is integral to the complaint,

see id. at 166, and the plaintiff does not challenge its

authenticity. Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618

(4th Cir. 1999); see also Norman v. Tradewinds Airlines, Inc.,

286 F. Supp. 2d 575, 580 (M.D.N.C. 2003) (“The underlying

concern in cases applying this rule is to protect a plaintiff

who might not have notice of (and an opportunity to fully

respond to) facts newly introduced by the defendant in

conjunction with motion of dismissal.”). Other courts within the

Fourth Circuit have considered Equal Employment Opportunity

Commission (“EEOC”) charges attached to motions to dismiss,

provided plaintiffs relied on those documents in their

complaints and did not contest the exhibits’ authenticity. See,

e.g., Alexander v. City of Greensboro, No. 1:09-CV-934, 2011 WL

13857, at *6-8 (M.D.N.C. Jan. 4, 2011); Cohen v. Sheehy Honda of

Alexandria, Inc., No. 1:06cv441, 2006 WL 1720679, at *2 (E.D.

Va. June 19, 2006) (EEOC charge was integral to complaint

because plaintiff “would have been unable to file a civil action

without first filing such a charge”).

This court finds that Plaintiff’s Complaint incorporates by

reference both of Plaintiff’s Charges of Discrimination to the

EEOC because they are both integral and uncontested. Defendant

attached both charges as exhibits to its Memorandum in support

of the Motion to Dismiss. (Def.’s Br.) (Doc. 13).) First, the

Charges of Discrimination are integral to Plaintiff’s Complaint.

The allegations in his Complaint are based upon incidents

described in both the original charge and amended charge,

(compare Am. Compl. (Doc. 9), with Def.’s Br. (Doc. 13-2),

Ex. B, Amended Charge (“Am. Charge”); Def.’s Br., (Doc. 13-1),

Ex. A, Original Charge (“Original Charge”). Moreover, this

court’s jurisdiction is predicated on Plaintiff having filed the

Charges of Discrimination. 42 U.S.C. § 2000e-(5)(f).

Second, Plaintiff does not challenge the authenticity of

the Charges of Discrimination introduced by Defendant. Plaintiff

refers to the Charges of Discrimination in his Complaint, (see

Am. Compl. (Doc. 9) ¶¶ 44, 68, 77), and in his response to

Defendant’s Motion to Dismiss, (see Pl.’s Mem. in Opp’n to

Def.’s Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 17) at 4.)1 This

court will therefore consider the facts contained within the

Charges of Discrimination as part of Plaintiff’s Complaint.

The facts, construed in the light most favorable to

Plaintiff, are as follows.

In 2016, one of Plaintiff’s supervisors, Bryan Keller

(“Mr. Keller”), began to harass Plaintiff. (Am. Compl. (Doc. 9)

¶ 10.) Mr. Keller frequently made sexually-charged comments to

Plaintiff, ranging from requests to “spend time together” to

claiming he could “make [Plaintiff’s] job a lot easier.” (Id.

¶ 11.) Many of Mr. Keller’s comments urged Plaintiff to

socialize with Mr. Keller outside of the office. (Id.)

Mr. Keller also made non-sexual comments toward Plaintiff,

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

referring to him as “old,” “slow,” and “Special Ed,” (id. ¶ 13),

and at some point, claiming that Plaintiff needed to be getting

“a retirement check.” (Am. Charge (Doc. 13-2) ¶ 4.) Meanwhile,

Mr. Keller also began following Plaintiff into the office

bathroom multiple times per week, looking at Plaintiff over

urinals or stalls. (Am. Compl. (Doc. 9) ¶ 12.) Plaintiff asked

Mr. Keller to stop making inappropriate comments and following

Plaintiff into the bathroom. (Am. Charge (Doc. 13-2) ¶ 6.)

Plaintiff complained to manager Paul Byers (“Mr. Byers”) about

Mr. Keller on multiple occasions. (Id.) On March 15, 2017,

Plaintiff told Mr. Byers about Mr. Keller following him into the

bathroom. (Id.) Plaintiff also complained to Human Resources

(“HR”) about Mr. Keller’s comments and actions in 2016 and 2017,

including once in July 2017. (Id. ¶ 8.)

Plaintiff himself was the subject of many written warnings

from Mr. Keller, who submitted multiple disciplinary actions of

questionable authenticity against Plaintiff. (Am. Charge (Doc.

13-2) ¶ 8.) In addition to including false allegations in the

warnings, Mr. Keller occasionally forged Plaintiff’s signature.

(Id.)

In September of 2017, Plaintiff received an annual

performance review deeming him a “valued contributor” who

“consistently meets and occasionally exceeds expectations.” (Am.

Compl. (Doc. 9) ¶ 19.) Soon thereafter, Plaintiff was switched

within his department to the sterile instrument area. (Id.

¶ 20.) Plaintiff was not trained for his duties in the sterile

instrument area.2 (Id.) After his transfer, Plaintiff received

warnings from several other supervisors. In December of 2017,

Mr. Byers wrote Plaintiff up for tardiness and failing to clock

out, which Plaintiff disputed in another complaint to HR. (Am.

Charge (Doc. 13-2) ¶ 11.) Another manager, Ms. Jocelyn Brown

(“Ms. Brown”), submitted multiple disciplinary actions against

Plaintiff as well, both before and after his transfer. (Id.

¶¶ 9, 12.) Plaintiff also disputed Ms. Brown’s claims with HR

and another supervisor, Mr. Mark Harris (“Mr. Harris”). (Id.

¶ 12.)

Though he requested multiple times for additional training

for his new role, Plaintiff was denied each time. (Am. Compl.

(Doc. 9) ¶¶ 26, 27, 33.) In a phone call with Mr. Byers on

December 19, 2017, Plaintiff once again requested training, but

Mr. Byers claimed he “was already trained in this area because

of his past experience.” (Id. ¶¶ 27, 28.) Mr. Byers then asked

2 While Plaintiff alleges he received no training for this

position, his pleading suggests that Plaintiff worked in this

position at an earlier date. (Am. Compl. (Doc. 9) ¶ 28.)

Nevertheless, this court accepts Plaintiff’s allegation that he

had not been trained for this role.

Plaintiff whether he had spoken to employee relations. (Id.

¶ 29.) Two days later, Plaintiff received another warning

describing conduct that was partially inaccurate and partially

due to his inadequate training. (Id. ¶¶ 25, 26.)

Plaintiff got in a verbal altercation with Zelda Spivey

(“Ms. Spivey”) on January 30, 2018, in which Ms. Spivey berated

Plaintiff and later accused Plaintiff of berating her instead.

(Id. ¶ 30.) Mr. Keller suspended Plaintiff on February 2, 2018,

due to the altercation with Ms. Spivey. (Id. ¶ 31.) Plaintiff

then complained to HR about Ms. Spivey’s misrepresentation of

the incident. (Id.) Ten days later, Plaintiff met with

Mr. Harris, Mr. Byers, and another individual regarding the

suspension. (Id.) Plaintiff again raised concerns about his

training in this meeting. (Id. ¶ 33.) At least one participant

on the call at this point recommended that Plaintiff be

dismissed. (Id.) Mr. Keller was not present on this call. (Id.

¶¶ 31-33.) About a month later, on March 17, 2018, Mr. Harris

called Plaintiff to inform him the decision had been made to

officially terminate him. (Id. ¶ 34.)

Plaintiff proceeded through Defendant’s grievance process

following his termination. (Id. ¶ 35.) Plaintiff alleges that

interviews during this process demonstrated universal and

consistent problems with training, management, and organization

throughout the department. (Id. ¶ 36.) Notably, Plaintiff was

the only employee in the department who was terminated between

February 2017 and March 2018, even though many other employees

also made mistakes. (Id. ¶¶ 36, 37.)

C. Procedural History

Plaintiff filed his first Charge of Discrimination and

retaliation due to race and age with the EEOC on June 28, 2018.

(See Original Charge (Doc. 13-1).) On a disputed date in

September of 2018, Plaintiff submitted an amended charge to the

EEOC. (See Am. Charge (Doc. 13-2).) This amended charge alleged

new facts, claiming Plaintiff was the victim of sexual

harassment and sex discrimination. (Id.)

Plaintiff originally filed his Complaint on October 24,

2019, in Orange County Superior Court. (Complaint (Doc. 3) at

10.) On November 27, 2019, Defendant UNC HCS filed a Notice of

Removal with this court. (Doc. 1.) This court has jurisdiction

pursuant to 28 U.S.C. § 1331. On December 4, 2019, Defendant

filed its initial Motion to Dismiss pursuant to Fed. R. Civ. P.

12(b)(6), 12(b)(1), and 12(b)(2). (Doc. 6.) Plaintiff

subsequently amended his Complaint in order to add claims for

age discrimination under the ADEA and breach of contract under

state law. (Am. Compl. (Doc. 9).) Defendant’s initial Motion to

Dismiss, (Doc. 6), was denied without prejudice. Defendant then

filed a Motion to Dismiss Plaintiff’s Amended Complaint on the

same grounds as its first Motion to Dismiss. (Doc. 12);

Plaintiff responded, (Doc. 17); and Defendant replied, (Doc.

18). This matter is ripe for adjudication.

II. STANDARD OF REVIEW

Defendant moves to dismiss each of Plaintiff’s harassment

and retaliation claims under Fed. R. Civ. P. 12(b)(6). To

survive a Rule 12(b)(6) 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)). A claim is plausible on face if “the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 556–57). When considering a motion to dismiss, this

court accepts the complaint’s factual allegations as true.

Iqbal, 556 U.S. at 678. Further, this court liberally construes

“the complaint, including all reasonable inferences therefrom, .

. . in the plaintiff’s favor.” Estate of Williams-Moore v. All.

One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004) (citation 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.

Though employment discrimination complaints must meet the

plausibility standard, a plaintiff is not required to make out a

prima facie case of discrimination at the motion to dismiss

stage. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002);

McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584–85

(4th Cir. 2015). The plaintiff need only plead facts that permit

the court to reasonably infer each element of the prima facie

case. McCleary-Evans, 780 F.3d at 585; see also Coleman v. Md.

Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (stating

that a complaint must “assert facts establishing the

plausibility” that plaintiff was terminated based on race).

III. ANALYSIS

Plaintiff alleges Defendant discriminated against him on

the basis of sex and age, then retaliated against him for

reporting that discrimination. (Am. Compl. (Doc. 9) ¶¶ 47, 67.)

This court will address each of Plaintiff’s four discrimination

and harassment claims individually. Plaintiff also brings, but

has abandoned (Pl.’s Resp. (Doc. 17) at 18), a wrongful

termination claim under the North Carolina Equal Employment

Practices Act, N.C. Gen. Stat. 143-422.1, et seq. Finally,

Plaintiff brings a state law claim for breach of contract,

alleging Defendant breached its employment contract with

Plaintiff due to the aforementioned discrimination. (Am. Compl.

(Doc. 9) ¶¶ 74, 78.)

A. Plaintiff’s Sexual Harassment Claim

1. Timeliness

Title VII makes it “an unlawful employment practice for an

employer . . . to discriminate against any individual with

respect to [his] compensation, terms, conditions, or privileges

of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Before bringing a Title VII case in federal court, a plaintiff

must first exhaust his available administrative remedies

concerning that claim by filing a charge with the EEOC.

The enforcement provisions of Title VII state that “[a]

charge under this section shall be filed [with the EEOC] within

one hundred and eighty days after the alleged unlawful

employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); see

also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109–10,

(2002) (stating that “a litigant has up to 180 . . . days after

the unlawful practice happened to file a charge with the EEOC

[when litigant has not also filed complaint with state

agency]”); Lane v. Lucent Techs., Inc., 388 F. Supp. 2d 590, 598

(M.D.N.C. 2005). Moreover, “each discrete discriminatory act

starts a new clock for filing charges alleging that act.”

Morgan, 536 U.S. at 113. “Failure to timely file a charge with

the EEOC bars the claim in federal court, and courts have

strictly enforced this requirement.” Fulmore v. City of

Greensboro, 834 F. Supp. 2d 396, 411 (M.D.N.C. 2011) (citing

McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th

Cir. 1994); Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587,

597 (D. Md.), aff’d, 230 F.3d 1354 (4th Cir. 2000) (per curiam)

(unpublished table decision)).

Here, the alleged discriminatory conduct by Defendant

occurred, at latest, on the date of Plaintiff’s termination:

March 17, 2018. (Am. Compl. (Doc. 9) ¶ 34.) Plaintiff therefore

had until September 13, 2018, to file administrative charges

with the EEOC. Plaintiff then had the ability to file suit in

federal court based on “the charge’s contents.” Jones v. Calvert

Grp. Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Plaintiff’s only

charge filed within the 180-day timeline was his original

charge, which did not allege sexual harassment or retaliation

for reporting sexual harassment. (See Original Charge (Doc. 13-

1).)

Plaintiff’s first EEOC complaint only alleges

discrimination and retaliation on the basis of race and age.

(Id.) Defendant does not dispute that this charge was timely.

(Def.’s Br. (Doc. 13) at 16.) However, Plaintiff’s original EEOC

charge contains no facts or allegations remotely related to

sexual harassment or retaliation based on reporting thereof.

Plaintiff’s Complaint before this court, however, alleges sexual

harassment and retaliation to complaints of sexual harassment.

(Am. Compl. (Doc. 9) ¶ 47.) All facts related to the allegation

of sexual harassment are contained only in the subsequent

amended charge. (Am. Charge (Doc. 13-2).)

Furthermore, this court finds that the amended charge was

not filed with the EEOC within the required 180-day time frame.

Even assuming arguendo that Plaintiff is correct that the proper

date of the charge was September 16, 2018, (Pl.’s Resp. (Doc.

17) at 7), the charge was still filed more than 180 days after

the termination of Plaintiff’s employment with UNC HCS on March

17, 2018. This court need not adjudicate which date applies:

either way, the charge was filed more than 180 days after any

possible allegation of sexual harassment. Plaintiff therefore

failed to pursue this avenue of complaint with the EEOC in a

timely manner.

Given the untimeliness of the amended charge, Plaintiff

argues that its filing date should relate back to the date of

the timely Original Charge. (Id. at 9.) However, relation back

specifically encompasses amendments in which “the charging party

makes no new factual allegations but rather solely revises his

or her charge to allege that the same facts constitute a

violation of a different statute.” EEOC v. Randstad, 685 F.3d

433, 444 (4th Cir. 2012). In Randstad, the amended charge “did

not allege any discriminatory incidents other than those already

included in the original charge.” Id. at 445. In this case,

however, the amended charge states a litany of new facts,

including the identity of Plaintiff’s harasser and all comments

attributed to him. (See Am. Charge (Doc. 13-2).) Allegations of

Mr. Keller following Plaintiff into the bathroom also do not

appear until the amended charge. (Id. ¶ 5.)

Plaintiff recognizes a primary purpose of the 180-day

requirement is to provide Defendant “ample notice” for

investigation. (Pl.’s Resp. (Doc. 17) at 9); see Sydnor v.

Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012). Yet, relation

back in this instance would defy the notice-giving purpose of

the timeliness rule: UNC HCS could not have reasonably

investigated sexual harassment allegations, or retaliation in

response to such allegations, based on the facts alleged in the

original charge. Since the facts of Plaintiff’s amended charge

do not “reasonably relate[]” to those of the original charge,

this court will not find that the relevant date for the amended

charge relates back. See id. at 595 (“The touchstone for

exhaustion is whether plaintiff’s administrative and judicial

claims are ‘reasonably related.’”); Bryant v. Bell Atl. Md.,

Inc., 288 F.3d 124, 132-33 (4th Cir. 2002) (failing to find

exhaustion where charge alleged racial discrimination but the

complaint involved sex discrimination).

Nor do principles of equity require a finding of relation

back. In Title VII claims, the 180-day window “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.” Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982) (footnote omitted).

Equitable tolling is not permitted, however, where a plaintiff

“failed to exercise due diligence” – it does not extend to

“garden variety claim[s] of excusable neglect.” Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 96 (1990). Plaintiff fails to

demonstrate how this case meets the extraordinary circumstances

required for equitable tolling, as Plaintiff alleges no unusual

obstacles in his pursuit of filing the amended charge.

Plaintiff’s Complaint with the court cannot allege a new

type of discrimination and a different set of facts from his one

timely EEOC charge. Since Plaintiff failed to exhaust his

administrative remedies in a timely manner, this court will

dismiss Plaintiff’s sexual harassment charge under Fed. R. Civ.

P. 12(b)(6).

2. Plausibility

Even if this court were to find Plaintiff’s claim of sexual

harassment timely and thus reviewable, his allegations would

still fall short of establishing a plausible claim of sexual

harassment. Plaintiff exclusively asserts a quid pro quo sexual

harassment claim, which requires “a tangible employment action”

that “resulted from a refusal to submit to a supervisor’s sexual

demands.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753

(1998). The Fourth Circuit has referred to this type of

harassment claim as a “condition of work” claim, defining quid

pro quo harassment as “a supervisor demand[ing] sexual

consideration in exchange for job benefits.” Katz v. Dole, 709

F.2d 251, 254 (4th Cir. 1983) (quoting Henson v. City of Dundee,

682 F.2d 897, 908 n. 18 (11th Cir. 1982)).

Here, Plaintiff fails to allege a single instance in which

a supervisor overtly demanded sexual consideration in exchange

for job benefits. While Mr. Keller commented to Plaintiff about

going “out for drinks” and “spend[ing] time together,” these

comments contained no overtly sexual content. (Am. Compl. (Doc.

9) ¶ 11.) Even if Mr. Keller’s contextless reference to making

Plaintiff’s “job a lot easier” is interpreted as a sexual

demand, (id.), Plaintiff does not explain how this remark can be

reasonably linked to Plaintiff’s ultimate termination. Nor does

Plaintiff identify when this comment was made in order to

establish a temporal link to his termination.

Plaintiff does allege blatantly inappropriate conduct by

Mr. Keller, including that Mr. Keller “would watch Plaintiff by

looking under the stall or staring at him at the urinal.” (Id.

¶ 12.) However, Plaintiff fails to plausibly connect this

conduct to his eventual termination beyond “mere conclusory

statements.” Iqbal, 556 U.S. at 678. Even if Plaintiff could

plausibly claim that Mr. Keller made “demands” of him, he fails

to sufficiently allege any of Mr. Keller’s conduct was related

to his termination. Nor was Mr. Keller present on the February

2018 phone call in which “it was recommended that Plaintiff be

dismissed.” (Am. Compl. (Doc. 9) ¶ 33.) Thus, the claim of quid

pro quo sexual harassment would be dismissed under Rule 12(b)(6)

even if this court found that Plaintiff had exhausted his

administrative remedies in a timely manner.

B. Retaliation for Reporting Sexual Harassment

Title VII prohibits employers from “discriminat[ing]

against any . . . employee[] . . . because [the employee] has

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing.” 42 U.S.C.

§ 2000e–3(a). Plaintiff complained to Human Resources about

sexual harassment by Mr. Keller, and alleges he was terminated

due to those complaints in violation of Title VII.

1. Timeliness

Defendant also raises the issue of timeliness with regard

to Plaintiff’s sexual harassment retaliation claim. Though

Plaintiff does allege retaliation in his original charge,

Plaintiff only claims he was subject to age and race

discrimination. (See Original Charge (Doc. 13-1).) The original

charge gives no notice to Defendant about the possibility of

sexual harassment, sex discrimination, or any retaliation on

that basis. (Id.) Thus, the same timeliness analysis applies as

in Plaintiff’s sexual harassment claim. See discussion supra

Part III.A.1. The retaliation claim will also be dismissed under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

2. Plausibility

Once again, even assuming arguendo that Plaintiff’s amended

charge could relate back, Plaintiff has fallen short of

plausibly alleging retaliation for reporting alleged sexual

harassment. To establish a prima facie case of retaliation,

Plaintiff must allege the facts to plausibly support three

elements: (1) that he engaged in a protected activity; (2) that

his employer took an adverse employment action against him; and

(3) that there was a causal link between the two events. EEOC v.

Navy Fed. Credit Union, 424 F.3d 397, 405–06 (4th Cir. 2005).

Defendant does not dispute that Plaintiff engaged in a protected

activity by making internal complaints regarding alleged sexual

harassment. (Def.’s Br. (Doc. 13) at 22.) Nor does Defendant

dispute that Plaintiff’s eventual termination was an adverse

employment action. Id. At issue is whether Plaintiff plausibly

alleges a causal link between his sexual harassment reports and

his termination.

Proving causation at the pleading stage is “not []

onerous,” and a plaintiff need not “show at the prima facie

stage that [his] protected activities were but-for causes of the

adverse action.” Strothers v. City of Laurel, 895 F.3d 317, 335

(4th Cir. 2018). Nevertheless, a plaintiff must allege facts

that plausibly support an inference of causation. This may be

accomplished by alleging facts showing the employer took an

adverse action “soon after becoming aware” of protected

activity. Id. at 336; see also Villa v. CavaMezze Grill, LLC,

858 F.3d 896, 899, 901 (4th Cir. 2017) (discussing importance of

an employer’s subjective knowledge since an adverse action must

be motivated by a desire to retaliate in order to be

actionable); Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994)

(dealing with termination following notice employee filed EEOC

charge); Welton v. Durham Cnty., No. 1:17CV258, 2018 WL 4656242,

at *3 (M.D.N.C. Sept. 27, 2018), aff’d, 718 F. Appx. 242 (4th

Cir. 2019) (discussing Strothers, 895 F.3d at 335–36).

When a plaintiff attempts to allege causation via temporal

proximity alone, the adverse employment action must be “very

close” in time to the protected activity. Clark Cnty. Sch. Dist.

v. Breeden, 532 U.S. 268, 273 (2001) (per curiam). “A lengthy

time lapse between the employer becoming aware of the protected

activity and the alleged adverse employment action, as was the

case here, negates any inference that a causal connection exists

between the two.” Dowe v. Total Action Against Poverty in

Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).

Here, Plaintiff’s termination was temporally distant from

his complaints regarding sexual harassment. Plaintiff alleges

generally that he reported this discrimination “in both 2016 and

2017.” (Pl.’s Resp. (Doc. 17) at 12.) He wrote a note to Mr.

Byers on March 15, 2017, saying that Mr. Keller “frequently

followed [him] into the bathroom, looking under the bathroom

stall.” (Am. Charge (Doc. 13-2) ¶ 6.) Then “[l]ater, in July

2017, Plaintiff again complained about Mr. Keller following him

into the bathroom.” (Am. Compl. (Doc. 9) ¶ 18.) These are the

only two specific dates Plaintiff alleges in which he reported

sexual harassment. Plaintiff received his positive performance

review months after both of these complaints. (Id. ¶ 19.) Even

assuming Plaintiff’s complaints about sexual harassment

continued after July 2017, Plaintiff does not allege that he

reported harassment at a time close to his termination in March

2018. See Pl.’s Resp. (Doc. 17) at 13 (asserting claim

“regardless of when Plaintiff last made a complaint about

discriminatory conduct” rather than alleging any particular

timing). Plaintiff cannot rely on temporal proximity alone to

provide a causal link between his reports of harassment and his

termination.

Plaintiff does plausibly contend that his HR complaints

were causally connected to at least one written warning from

December 21, 2017. (Id. at 12-13.) Two days prior, Mr. Byers had

asked Plaintiff whether he “had gone to employee relations.”

(Am. Compl. (Doc. 9) ¶ 29.) The December 21 warning may be

plausibly linked to Mr. Byers’ revelation given their closeness

in time. A warning can itself constitute the necessary “adverse

employment action” if it has “a tangible effect on the terms or

conditions of employment.” James v. Booz-Allen & Hamilton, Inc.,

368 F.3d 371, 377 (4th Cir. 2004). The written warning at issue

here is comparable to poor performance evaluations in other

cases: both warn of potential future consequences. Evaluations

of this kind are “actionable only where the employer

subsequently uses the evaluation as a basis to detrimentally

alter the terms or conditions of the recipient’s employment.”

Id. (quoting Spears v. Mo. Dep’t. of Corr. & Human Res., 210

F.3d 850, 854 (8th Cir. 2000)). A merely “conjectural” argument

about how an evaluation or warning harmed Plaintiff is

insufficient. James, 368 F.3d at 378.

Thus, the December warning cannot itself qualify as an

“adverse employment action,” as Plaintiff did not allege in a

non-conclusory manner that it was a basis upon which he was

terminated. No temporal link exists between the December warning

and Plaintiff’s eventual termination. Plaintiff was terminated

three months after the December 21 warning, immediately

following Plaintiff’s suspension due to an unrelated incident in

which he argued with another employee. (Am. Compl. (Doc. 9)

¶¶ 31, 34.) This three-month gap, particularly given the crucial

intervening event which triggered termination, undermines

Plaintiff’s attempt to causally connect this particular warning

with his termination. See King v. Rumsfeld, 328 F.3d 145, 151

n.5 (4th Cir. 2003) (finding that two and a half months was

probably too long a lapse in time, barring other circumstances

that explain the gap).

In spite of the temporal distance between Plaintiff’s

enumerated harassment complaints and his termination, the court

may still consider any other evidence linking the events.

Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007).

(finding that if a substantial amount of time passes between the

protected activity and the retaliatory conduct, “courts may look

to the intervening period for other evidence of retaliatory

animus”). However, no other facts causally link Plaintiff’s

harassment complaints about Mr. Keller to his eventual

termination. A plaintiff must provide “objective facts or dates

linking [his termination] to [his] protected conduct other than

[his] own opinions about [a] supervisor’s motives.” McLaughlin

v. Barr, No. 1:19-CV-318, 2020 WL 869914, at *10 (M.D.N.C.

Feb. 21, 2020). Plaintiff provides only his own opinions about

the cause of his termination, with objective facts and dates

that do not align with retaliation as a plausible motive. Thus,

Plaintiff falls short of alleging facts sufficient for a

retaliation case on this issue, even if his amended EEOC charge

had been timely.

In the alternative, this court will dismiss the claim due

to failure to state a claim under Fed. R. Civ. P. 12(b)(6).

C. Plaintiff’s Age Discrimination Claim

Plaintiff also contends that Defendant UNC HCS terminated

his employment on the basis of his age, in violation of the Age

Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et

seq. This complaint appears in his original charge and was

therefore timely filed. (See Original Charge (Doc. 13-1).) The

ADEA makes it “unlawful for an employer . . . to discharge . . .

or otherwise discriminate against any individual [who is at

least 40 years of age] with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a). Plaintiff

claims specifically that he was wrongfully discharged and does

not argue that he was subject to a hostile work environment.

(Pl.’s Resp. (Doc. 17) at 14.)

There are two ways a plaintiff may state a claim for

wrongful discharge. First, a plaintiff may plausibly allege he

was discharged on the basis of his age via direct evidence “that

the employer announced, or admitted, or otherwise unmistakably

indicated that age was a determining factor” in the termination.

Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir.

1982). Plaintiff does not allege any direct evidence of this

kind. The only alleged conduct relating to Plaintiff’s age was a

series of comments by Mr. Keller referring to Plaintiff as “old”

and claiming he “need[ed] to be getting a retirement check.”

(Am. Charge (Doc. 13-2) ¶ 4.) Plaintiff alleges that comments

along these lines occurred for years. (Id.) While this may

indicate animus on the part of Mr. Keller, Plaintiff fails to

plausibly link these comments to Plaintiff’s ultimate

termination in 2018.

Absent direct evidence of discriminatory termination,

Plaintiff must at minimum allege “(1) membership in a protected

class; (2) satisfactory job performance; (3) adverse employment

action; and (4) different treatment from similarly situated

employees outside the protected class.” Coleman, 626 F.3d at

190. While Plaintiff need not establish a prima facie case at

the pleading stage, Plaintiff must allege facts to plausibly

support each of these elements. Overman v. Town of Hillsborough,

No. 1:18-CV-1052, 2020 WL 435825, at *2 (M.D.N.C. Jan. 28, 2020)

(finding that employee who discussed her imminent plans to

retire due to her age, and was fired shortly thereafter, still

fell short of plausibly stating a claim due to need for

speculation by the court). Plaintiff does allege membership in a

protected class of individuals above the age of forty, as the

EEOC charges on record indicate that he is 52 years old.3 (See

Am. Charge (Doc. 13-2).) Plaintiff also demonstrates, and it is

not disputed, that an adverse employment action was taken

against him: termination. (Id.)

3 Though Plaintiff fails to straightforwardly allege his age

in the complaint and brief before this court, the EEOC charges

incorporated by reference are sufficient to proceed with

consideration of the claim.

Plaintiff also plausibly alleges he received different

treatment from similarly situated employees. Plaintiff’s

Complaint acknowledges that although shortcomings in management

and training were universal, Plaintiff was “the only employee

consistently scrutinized for his mistakes.” (Am. Compl. (Doc. 9)

¶ 37.) Plaintiff has demonstrated he was subject to heightened

scrutiny and has alleged that many of the warnings he received

were based on inaccurate facts. (Id. ¶¶ 26, 30) This, combined

with the fact Plaintiff was the only employee terminated in that

year, makes it plausible that Plaintiff was targeted or

selectively scrutinized.

Plaintiff does not plausibly allege, however, that he was

meeting the standard of satisfactory job performance. His sole

positive assertion about his own job performance references to a

positive review from September 2017. (Id. ¶ 19; see McLaughlin,

2020 WL 869914, at *7 (finding only one positive work

evaluation, followed by subsequent complaints from other

supervisors, was insufficient to allege satisfactory job

performance). Plaintiff also states he was reassigned after that

performance review to a position in which, by his own admission,

“he needed further training” given he “last worked with scopes

10 to 15 years prior.” (Am. Compl. (Doc. 9) ¶ 28.) Plaintiff

does not allege the denial of training was unique to him or

discriminatory itself. Nor does Plaintiff allege that the

reassignment was discriminatory or retaliatory.

Even accepting Plaintiff’s allegation that many of his

written warnings inaccurately criticized his job performance,

Plaintiff alleges at least two legitimate warnings between the

time of his last positive performance review and his

termination, “for issues related to his timecard” and for

“error[s] related directly to the lack of training he had

received.” (Id. ¶¶ 22, 26.) Plaintiff’s only further allegation

is that his employer’s job performance expectations “were not

legitimate,” (Pl.’s Resp. (Doc. 17) at 16), because “Plaintiff’s

performance was consistent with the reasonable expectations of

an employee with minimal training.” (Am. Compl. (Doc. 9) ¶ 42.)

No evidence is alleged regarding the technicality of Plaintiff’s

new position or shedding light on what made Defendant’s

expectations unreasonable aside from a general lack of training.

Moreover, “[i]n determining whether an employee was performing

at a level that met the employer’s legitimate expectations, ‘it

is the perception of the decision maker which is relevant, not

the self-assessment of the plaintiff.’” Hill v. Se. Freight

Lines, Inc., 877 F. Supp. 2d 375, 385 (M.D.N.C. 2012), aff’d,

523 F. App’x 213 (4th Cir. 2013) (quoting Rumsfeld, 328 F.3d at

149).

While Plaintiff is not required to prove a prima facie case

of discrimination at this stage in the pleading process,

Plaintiff merely states in a conclusory manner that he was

terminated due to his age, failing to “raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555.

Moreover, Plaintiff acknowledges several performance errors and

even alleges himself that he was fired for “expressing concerns

about inadequate training.” (Compl. (Doc. 9) ¶ 43); see Tabb v.

Bd. of Educ. of Durham Pub. Sch., No. 1:17CV730, 2019 WL 688655,

at *8 (M.D.N.C. Feb. 19, 2019) (“[I]f the plausibility inquiry

is to have any meaning, Plaintiff’s allegations must also show

that discrimination is a more likely reason . . . than any other

‘obvious alternative explanation” that is present on the face of

the complaint and “justified by [] nondiscriminatory intent.”)

(internal citations omitted).

Because Plaintiff has not plausibly alleged a claim of age

discrimination, this court will dismiss the claim under Rule

12(b)(6).

D. Retaliation for Reporting Age Discrimination

Plaintiff’s claim of retaliation for reporting age

discrimination requires the same analysis as retaliation for

reporting sexual harassment. See discussion supra Part III.B.

This claim, however, is present in the original charge and

presents no timeliness issue. (Original Charge (Doc. 13-1).)

In order to plausibly state a claim of retaliation under

the ADEA, a plaintiff must allege the same three prongs required

under Title VII: that “(1) the plaintiff engaged in a protected

activity, (2) the employer took an adverse employment action

against the plaintiff, and (3) a causal connection existed

between the protected activity and the adverse employment

action.” Johnson v. Mechanics & Farmers Bank, 309 F. App’x 675,

684 (4th Cir. 2009). Once again, Defendant does not dispute that

Plaintiff engaged in a protected activity by complaining about

comments on his age. (Def.’s Br. (Doc. 13) at 27.) Nor does

Defendant dispute that Plaintiff’s termination was an adverse

employment action. (Id. at 30.)

The crux of the court’s analysis again depends on the

causal connection between Plaintiff’s HR complaints of age

discrimination and his termination. Plaintiff’s termination

occurred in March 2018, and Plaintiff “made multiple complaints

to human Resources about [sexually inappropriate conduct and

derogatory comments in 2016 and 2017].” (Pl.’s Resp. (Doc. 17)

at 1-2.) Plaintiff was not terminated, however, until 2018. (Id.

at 7.) Throughout 2016, 2017, and 2018, Plaintiff also submitted

a variety of separate complaints. (Am. Charge (Doc. 13-2) at

¶¶ 10-14, 15.) These complaints accused supervisors of lying

about Plaintiff’s job performance, (id. ¶¶ 11, 12, 14), and

criticized Mr. Byers’ rejection of Plaintiff’s leave request,

(id. ¶ 13), but did not reference age discrimination. Even

assuming Plaintiff complained of age discrimination in December

of 2017, he was not terminated until March 2018, approximately

three months later. A temporal link does not plausibly state a

claim of retaliation.

Plaintiff does not allege any facts which connect his age

discrimination reports, temporally or otherwise, with his

termination. Merely stating that Plaintiff was older than other

employees, (Pl.’s Resp. (Doc. 17) at 16), and therefore his age

must have been the cause of his firing, is not a sufficiently

plausible basis for this claim. See, e.g., McCleary-Evans, 780

F.3d at 586 (finding in a Title VII racial discrimination claim

that just because a fact “is consistent with discrimination . .

. does not alone support a reasonable inference that the

decisionmakers were motivated by bias”).

Moreover, as previously discussed, Plaintiff’s termination

was triggered by his 2018 suspension due to an argument with

coworker Ms. Spivey.4 The only individual who made age-related

comments toward Plaintiff was his supervisor, Mr. Keller. (Am.

Charge (Doc. 13-2) ¶ 4.) Plaintiff does not allege whether Mr.

Keller was involved in the ultimate termination decision.

Plaintiff offers no other evidence to demonstrate a causal link

between his complaints about Mr. Keller calling him “old” and

Plaintiff’s eventual termination.

Thus, the court will dismiss this claim under Rule 12(b)(6)

for failure to state a claim.

E. Plaintiff’s Wrongful Discharge Claim

The Plaintiff’s claim of wrongful discharge has been

abandoned (Pl.’s Resp. (Doc. 17) at 18), and will be dismissed

at the behest of both parties. Id.; (Def.’s Br. (Doc. 13) at

29.)

F. Plaintiff’s Breach of Contract Claim

Plaintiff’s breach of contract claim is based upon N.C.

Gen. Stat. § 116-37(d). A district court may dismiss a state law

claim brought before it under supplemental jurisdiction if “the

district court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3). The decision to

4 At no point does Plaintiff allege that Ms. Spivey harassed

him over his age, or that this incident related to his age in

any way.

do so is completely within the court’s discretion. Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009); Arbaugh

v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[W]hen a court grants a

motion to dismiss for failure to state a federal claim, the

court generally retains discretion to exercise supplemental

jurisdiction, pursuant to [28 U.S.C.] § 1367, over pendent

state-law claims.”).

Since this matter has not progressed past the motion-to-

dismiss stage and only a state claim remains, the court declines

to exercise its supplemental jurisdiction over Plaintiff’s

breach of contract claim.

IV. CONCLUSION

For the aforementioned reasons, this court will grant

Defendant’s Motion to Dismiss as to all federal claims.

IT IS THEREFORE ORDERED that Defendant UNC Health Care

System’s Motion to Dismiss Amended Complaint, (Doc. 12), is

GRANTED, that Claims One, Two, Three, Four, and Five are

DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6), and that Claim

Six is DISMISSED pursuant to 28 U.S.C. § 1367(c)(3).

IT IS FURTHER ORDERED that this case is DISMISSED WITHOUT

PREJUDICE.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 28th day of September, 2020.

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