PRIESTER v. CAROLINA COMMUNITY SUPPORT SERVICES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TERENCE C. PRIESTER, )

)

Plaintiff, )

v. )

)

CAROLINA COMMUNITY ) 1:20CV1102

SUPPORT SERVICES, INC., )

ERICA LOCKLEAR, and )

NYESHA ROBINSON, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court upon a partial motion to dismiss by Defendants

Carolina Community Support Services, Inc. (“CCSS”), Erica Locklear, and Nyesha Robinson

(“Defendants”). (Docket Entry 8.) Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Defendants move to dismiss the following three claims raised by Plaintiff’s complaint: 1)

hostile work environment based on sexual harassment in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 2) wrongful termination in violation of public

policy; and 3) tortious interference with an employment contract. (Id. at 1.) Plaintiff filed a

response. (Docket Entries 12, 13.) Defendants did not file a reply. For the following reasons,

the undersigned will recommend granting in part and denying in part Defendants’ motion to

dismiss.

I. FACTUAL ALLEGATIONS

Plaintiff filed his complaint on December 9, 2020 against his former employer, CCSS,

its Program Director Nyesha Robinson, and CCSS Director of Operations Erica Locklear.

(See generally Compl., Docket Entry 1.) Plaintiff’s complaint raises ten causes of action,

including claims for: retaliation and hostile work environment based on sexual harassment in

violation of Title VII; violation of the Fair Labor Standards Act, 29 U.S.C. §201 et seq.;

violations of the North Carolina Wage and Hour Act, N.C. Gen. Stat. 95-25.1 et seq.; wrongful

termination in violation of the due process clause of the Fourteenth Amendment of the United

States Constitution; and other North Carolina state law claims. (See generally id.)

In summary, Plaintiff alleges that in January 2019 a coworker (Ms. Davis) disclosed to

him that she and another coworker (Mr. Holden) were engaged in a sexual relationship. (Id.

at 3.) Plaintiff set up a meeting with CCSS CEO Oswald Nwogbo, apparently to express his

concerns about the relationship between Mr. Holden and Ms. Davis.1 (Id.) Defendants

Robinson and Locklear were both informed about the meeting to take place between Plaintiff

and Mr. Nwogbo. (Id.) That same day, Mr. Holden called Plaintiff to confront and intimidate

him for reporting the sexual relationship to the CCSS officers. (Id.) Plaintiff’s meeting with

Mr. Nwogbo was cancelled, but Plaintiff was instructed to meet with Defendants Robinson

and Locklear the following day. (Id.)

1 In later allegations, Plaintiff states that there was an intimate sexual relationship between Mr.

Holden and Defendant Robinson. (See Compl. at 1.) This relationship between these two individuals

is mentioned again in Plaintiff’s response brief. (See Docket Entry 13 at 11.) From the complaint, the

undersigned is unable to determine whether Mr. Holden was engaged in a relationship with two

different co-workers or if the mention of Ms. Davis was merely an error. (See Compl. at 1.)

According to Plaintiff, on or around January 16, 2019, he met with Defendants

Robinson and Locklear. (Id. at 4.) At the meeting, Defendant Robinson accused Plaintiff of

spreading false information about other employees, demoted him, instructed him not to come

to the office in the future, and “threatened to take out a restraining order against [him].” (Id.)

Following the meeting, Plaintiff noticed that he had lost access to his clients in the company’s

management system. (Id.) Plaintiff informed Mr. Nwogbo and Defendants Robinson and

Locklear about the problem. (Id.)

On or around January 18, 2019, Plaintiff met with Mr. Nwogbo to discuss these

matters. (Id. at 5.) Mr. Nwogbo requested five days to further investigate Plaintiff’s allegations.

(Id.) On January 26, 2019, Plaintiff received notification that his credentials and pay rate had

been lowered in the human resources system. (Id.) Plaintiff alleges that “[Defendant]

Robinson and/or Mr. Holden changed this information in the system which could have

resulted in payroll errors and system billing errors.” (Id.) Plaintiff contacted Defendant

Locklear, who corrected the error. (Id.)

Around the same time, Plaintiff received a letter from Mr. Nwogbo informing him that

his demotion had been reversed. (Id. at 6.) However, Plaintiff’s supervisory access was not

reinstated, which resulted in Plaintiff performing uncompensated supervisory duties. (Id.) In

February 2019, Defendants Locklear and Robinson made further accusations against Plaintiff.

(Id.) Specifically, on February 7, 2019, Defendant Locklear accused Plaintiff of “submitting

fraudulent notes” and billing a client who had not received services. (Id.) In response, Plaintiff

emailed Defendant Locklear proof of the services he provided to the client. (Id.) On February

27, 2019, Defendant Robinson accused Plaintiff of failing to attend a mandatory staff meeting.

(Id.) Plaintiff emailed the CCSS management to inform them that he had been excused from

the meeting due to a previously scheduled appointment. (Id.)

In April 2019, the CCSS management team “provided a new contract agreement to

staff.” (Id.) Plaintiff informed Defendant Locklear that he needed time for his attorney to

review the contract prior to signing it but was warned that he would not be able to work until

the contract was signed. (Id. at 6-7.) Defendant Locklear again accused Plaintiff of billing a

client who had not received services. (Id. at 7.) The client came to the CCSS office and

explained to Defendant Robinson that she had made so such complaint against Plaintiff. (Id.)

Plaintiff alleges that the “hostile workplace harassment” perpetuated by Defendants

Locklear and Robinson persisted over the course of several months. (Id. at 8.) Plaintiff alleges

that “his notes were scrutinized and under heavy surveillance[, h]is clients were contacted

weekly[,] and he received errors in his pay.” (Id. at 7.) Additionally, Plaintiff alleges that his

wife (also a CCSS employee) suffered lost wages. (Id. at 8.) In response, Plaintiff filed claims

against Defendants with the North Carolina Department of Labor’s (“NCDOL”) Wage and

Hour Bureau and with the U.S. Department of Labor (“DOL”) Wage and Hour Division on

July 9, 2019 and August 3, 2019, respectively. (Id.)

Plaintiff alleges that Defendant Locklear took further retaliatory measures against him.

(Id.) On August 29, 2019 Defendant Locklear “removed Plaintiff’s clients from the system[,]

and he was unable to bill for them which affected his pay.” (Id.) Defendant Locklear then

sent Plaintiff “an inappropriate picture of her legs,” and apparently called Plaintiff into private

meetings on several occasions “which were supposed to be work related but were not work

related.” (Id.) On October 9, 2019, Defendant Locklear locked Plaintiff out of his emails and

the company billing system, such that he could not enter his hours or case notes. (Id. at 9.)

Finally, Defendant Locklear “informed Plaintiff that she was ending his work contract due to

[his] making errors on documentation.” (Id.)

Following this encounter, Plaintiff made several attempts to inform Defendant

Locklear and Mr. Nwogbo that he was owed $870 in unpaid wages. (Id.) In December 2019,

the NCDOL determined “that CCSS owed Plaintiff approximately $900 for unpaid wages

owed [and that NCDOL was] closing the case and allowing the DOL to continue [its]

investigation.” (Id.) Pursuant to its investigation, the DOL determined that Defendant CCSS

had misclassified Plaintiff’s employee status such that Plaintiff was owed $17,600 in unpaid

wages. (Id. at 10.) CCSS issued Plaintiff a partial payment of $9,500 following the DOL

investigation, but Plaintiff alleges that this amount did not include compensation for overtime

wages, retaliation damages, or liquidated damages. (Id.) Plaintiff filed a charge of

“employment discrimination on the basis of race and retaliation” with the EEOC on April 3,

2020. (Id. at 2.) The EEOC issued him a right to sue letter on September 11, 2020. (Id.)

II. STANDARD OF REVIEW

Defendants move to dismiss Plaintiff’s claims for hostile work environment based on

sexual harassment, wrongful termination, and tortious interference with an employment

contract pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 8 at 1.) A

motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Edwards v.

City of Goldsboro, 178 F.3d 231, 243 (1999). A complaint that does not “contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” must be

dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct.” Id.; see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th

Cir. 2011) (“On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege

enough facts to state a claim to relief that is plausible on its face.”) (citations and quotations

omitted). The “court accepts all well-pled facts as true and construes these facts in the light

most favorable to the plaintiff,” but does not consider “legal conclusions, elements of a cause

of action, and bare assertions devoid of factual enhancement[,] . . . unwarranted inferences,

unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591

F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the standard requires a

plaintiff to articulate facts, that, when accepted as true, demonstrate the plaintiff has stated a

claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th

Cir. 2009) (quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal

Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” so as to “give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests . . . .” Twombly, 550 U.S. at 555

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 does not, however, unlock the doors

of discovery for a plaintiff armed with nothing more than conclusions. Fair notice is provided

by setting forth enough facts for the complaint to be “plausible on its face” and “raise a right

to relief above the speculative level on the assumption that all the allegations in the complaint

are true (even if doubtful in fact) . . . .” Id. at 555 (internal citations omitted). “Rule 12(b)(6)

does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual

allegations.” Id. at 556 (quoting Scheuer v. Rhodes, 416, U.S. 232, 236 (1974)).

III. ANALYSIS

A. Plaintiff’s Title VII sexual harassment claim

Count Two of Plaintiff’s complaint raises a claim for hostile work environment based

on sexual harassment in violation of Title VII, apparently against all Defendants. (See Compl.

at 11 (“Plaintiff is entitled to recover from Defendants . . . .”).) According to Title VII, it is

unlawful for an employer to “discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s

. . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines an employer as “a person engaged in an

industry affecting commerce who has fifteen or more employees for each working day in each

of twenty or more calendar weeks in the current or preceding calendar year . . . .” 42 U.S.C. §

2000e(b). “The Fourth Circuit has clearly held that supervisors . . . are not liable ‘in their

individual capacities for Title VII violations.’” Johnson v. North Carolina, 905 F. Supp. 2d 712,

720 (W.D.N.C. 2012) (quoting Lissau v. Southern Food Serv., 159 F.3d 177, 180–81 (4th Cir.

1998)); Jefferies v. UNC Reg’l Physicians Pediatrics, 320 F. Supp. 3d 757, 760 (M.D.N.C. 2018)

(“Title VII . . . authorizes claims against an employer, but not against non-employers or

supervisors.”) (citing 42 U.S.C. § 2000e–(2)(a)(1)); Mayes v. Moore, 419 F. Supp. 2d 775, 779

(M.D.N.C. 2006) (“Within this circuit, individual supervisors, unless they are otherwise an

employer under the statute, are not liable for Title VII claims.”). Thus, as an initial matter, to

the extent that Plaintiff attempted to raise this claim against Defendants Locklear and

Robinson in their individual capacities, such a claim necessarily fails. Plaintiff has not alleged

facts that would qualify Defendants Locklear and Robinson as employers as under Title VII.

(See Compl. at 1-2, 13 (alleging that Defendants Locklear and Robinson are employees of

Defendant CCSS and “were co-workers and supervisors of Plaintiff”).) See also Alexander v.

Diversified Ace Servs. II, AJV, No. 1:11CV725, 2014 WL 502496, at *7 (M.D.N.C. Feb. 7, 2014).

In fact, in his response brief Plaintiff concedes that Defendants Locklear and Robinson are

not his employers and clarifies that this claim is not brought against them as individuals. (See

Docket Entry 13 at 10.) Therefore, Plaintiff’s claim, as he acknowledges, may only be

cognizable against Defendant CCSS as his employer.

“Because ‘an employee’s work environment is a term or condition of employment,

Title VII creates a hostile working environment cause of action,’ for sexual harassment.”

Vincent v. N. Carolina Dep’t of Transportation, No. 1:20CV51, 2020 WL 5710710, at *7 (M.D.N.C.

Sept. 24, 2020) (citing EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)). “To

establish a hostile work environment based on sexual harassment under this provision, a

plaintiff-employee must prove that (1) the conduct was unwelcome; (2) it was based on the

plaintiff’s sex; (3) it was sufficiently severe or pervasive to alter the plaintiff’s conditions of

employment and to create an abusive work environment; and (4) it was imputable on some

factual basis to the employer.” Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013).

Defendants contend that Plaintiff’s claim fails at the third element of this test because

the conduct described in his complaint is not severe or pervasive enough to create an abusive

work environment. (See Docket Entry 9 at 5-8.) “The determination of whether conduct is

severe or pervasive is both subjective and objective.” High v. R & R Transportation, Inc., 242 F.

Supp. 3d 433, 443 (M.D.N.C. 2017) (citing EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175

(4th Cir. 2009)). Therefore, a plaintiff “must show that he did perceive, and a reasonable

person would perceive, the environment to be abusive or hostile.” Cent Wholesalers, 573 F.3d

at 175. Thus, “[c]onduct that is not severe or pervasive enough to create an objectively hostile

or abusive work environment—an environment that a reasonable person would find hostile

or abusive—is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

“To determine whether harassment is sufficiently severe or pervasive to create an objectively

hostile and abusive work environment, courts must consider the totality of the circumstances

including: ‘(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is

physically threatening or humiliating, or a mere offensive utterance; and (4) whether it

unreasonably interferes with [the] employee’s work performance.’” High, 242 F. Supp. 3d at

443 (quoting Smith v. First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir. 2000)).

The undersigned agrees with Defendants that Plaintiff has not alleged facts sufficient

to state a claim for sexual harassment because the conduct Plaintiff points to was not severe

or pervasive enough to create an objectively hostile work environment. Here, along with the

allegations summarized above, the additional facts supporting Plaintiff’s claim for sexual

harassment are limited to the following:

i. Plaintiff is a male and Defendants Locklear and Robinson are female. (Compl.

at 11.)

ii. Defendant Locklear made “unwanted advances towards Plaintiff” by sending

him “a picture of her legs and calling him into private meetings unrelated to

work.” (Id.)

iii. “Plaintiff made it clear that [Defendant Locklear’s] conduct was unwelcomed

by making several complaints and reports.” (Id.)

iv. “[Defendant] Locklear was in a position of authority over Plaintiff and was the

employee who terminated Plaintiff.” (Id.)2

First, Plaintiff’s allegations do not indicate that the harassing conduct was frequent. He

describes a single incident in which Defendant Locklear sent him a photograph of her legs.

See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (“[A] single act of

harassment may not be actionable on its own” unless the act is “extremely serious.”); Coleman

v. Pentagon Fed. Credit Union, No. 1:17-CV-18 (LMB/IDD), 2017 WL 1044693, at *3 (E.D. Va.

Mar. 17, 2017) (holding that “[a] single incident of unwelcome touching does not amount to”

severe and pervasive conduct). Beyond the photograph, Plaintiff vaguely mentions being

called to other “private meetings” with Defendant Locklear but does not describe how many

of these meetings took place or how often they occurred.

Second, the alleged sexual harassment cannot be characterized as severe. While

receiving a photo one’s boss’s legs might be uncomfortable or awkward, legs are not

pornography, and courts have held that the display of photos of a much more explicitly sexual

nature by an employee’s supervisor does not constitute sexual harassment. See Lutz v. Purdue

Univ., 133 F. Supp. 2d 1101, 1106 (N.D. Ind. 2001) (“Pictures of a sexual nature do not rise

to the level of sexual harassment.”); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d

976, 977 (7th Cir.2000) (finding no sexual harassment where employer showed employee a

book with pictures of women in bondage and black leather). Nor has Plaintiff alleged that the

2 Plaintiff also makes the following legal conclusions: 1) Defendant Locklear’s conduct was

unwelcome and based on Plaintiff’s sex; 2) Defendant Locklear’s conduct was “sufficiently severe or

pervasive to alter the plaintiff’s conditions of employment and to create an abusive work

environment;” and 3) Defendant Locklear’s “behavior was imputable to Defendant [CCSS] as Mr.

Nwogbo failed to take effective remedial action against the hostile work environment created by Ms.

Robinson and Ms. Locklear.” (Id.)

photograph was accompanied by any physical touching, threat, proposition, or other sexually

explicit message that would increase the severity of the incident. See, e.g., Moore v. Cricket

Commc’ns, Inc., 764 F. Supp. 2d 853, 858 (S.D. Tex. 2011) (finding at summary judgment that

plaintiff’s supervisor created a hostile work environment by making explicit statements on

several occasions “about his body and his sexual habits and desires” and displaying a nude

photograph of himself to plaintiff). Regarding the private meetings, Plaintiff provides no

details about the contents of the conversations between himself and Defendant Locklear,

other than saying they were “unrelated to work.” (Compl. at 11.) As Defendant properly

point out, from the face of the complaint “it is impossible to deduce that these conversations

were anything more than innocuous office banter.” (Docket Entry 9 at 7.) Without more, the

undersigned cannot conclude that there was anything inherently sexual or harassing about

these meetings.3

Third, Plaintiff makes no allegation that Defendant Locklear’s actions were physically

threatening, nor, beyond labeling them as “unwelcome,” does he allege that he found them to

be humiliating or offensive. Finally, there are no specific factual allegations that the receipt of

the photograph of Defendant Locklear’s legs and the private meetings with her interfered with

Plaintiff’s work performance.4 Thus, the undersigned finds that the alleged conduct by

3 The undersigned acknowledges that the Fourth Circuit has held that “[i]n measuring the

severity of harassing conduct, the status of the harasser may be a significant factor.” Boyer-Liberto, 786

F.3d at 278 (“Simply put a supervisor’s power and authority invests his or her harassing conduct with

a particular threatening character.”) (internal quotation and citation omitted). However, the status of

the harasser is only one factor to be considered in assessing the severity of a plaintiff’s allegations of

sexual harassment, and here, Defendant Locklear’s position of authority over Plaintiff does not alter

the result above.

4 Plaintiff merely makes the legal conclusion that Defendant Locklear’s “conduct was

sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an

Defendant Locklear falls short of conduct sufficient to state a claim for hostile work

environment based on sexual harassment.

Plaintiff’s arguments to the contrary are not convincing. Plaintiff points to “two

triggering incidents” that amount to severe and pervasive harassment. (See Docket Entry 13

at 8.) One of these “triggering incidents” is Plaintiff’s receipt of the photograph of Defendant

Locklear’s legs. The undersigned has already determined that this incident as described by

Plaintiff was not severe enough to establish a sexual harassment claim. The second incident

Plaintiff points to is CEO Nwogbo’s failure to remedy “the atmosphere of inappropriate

sexual influence and harassment in the workplace.” (Id.) Plaintiff alleges that Mr. Nwogbo

was negligent in failing to curtail the behavior of Mr. Holden (apparently referring to the sexual

relationship between him and a female coworker)5 and Defendant Locklear, both of whose

conduct Plaintiff reported to the CEO. (Id.)

In certain situations, and based on agency principles, an employer may be held

vicariously liable for the harassing conduct of an employee’s supervisor. See Burlington Industries,

abusive work environment.” (Compl. at 11.) While the complaint certainly alleges that Defendant

Locklear interfered with Plaintiff’s ability to complete his work by, for example, accusing him of billing

for services not provided and restricting his access to his clients and emails (see Compl. at 6-7, 9), these

allegations are not “based on the plaintiff’s sex,” and thus do not figure into the analysis of Plaintiff’s

sexual harassment claim. Crockett, 717 F.3d at 354.

5 The alleged sexual relationship between Plaintiff’s coworkers does not further Plaintiff’s

attempt to establish his own hostile work environment claim based on sexual harassment. While

incidents of sexual harassment “directed at others and not the plaintiff . . . do have some relevance in

demonstrating the existence of a hostile work environment,” Gleason v. Mesirow Fin., Inc., 118 F.3d

1134, 1144 (7th Cir. 1997), there has been no allegation that the relationship between coworkers Mr.

Holden and Ms. Davis (or Defendant Robinson) was anything other than consensual. If the sexual

contact between these two individuals was not “unwelcome,” it does not constitute an incident of

sexual harassment for purposes of a Title VII claim. See Crockett, 717 F.3d at 354; Campbell v. Masten,

955 F. Supp. 526, 529 (D. Md. 1997) (“The gravamen of any sexual harassment claim is that

the alleged sexual advances were unwelcome.”) (quoting Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57, 68 (1986) (internal quotation omitted)).

Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998). Liability will not be imputed on an employer who

“exercises reasonable care to prevent and correct any harassing behavior where a plaintiff

unreasonably fails to take advantage of the preventative or corrective opportunities offered.”

Moser v. MCC Outdoor, L.L.C., 630 F. Supp. 2d 614, 616 (M.D.N.C. 2009) (citing Ellerth, 524

U.S. at 765). Therefore, a negligent failure by Mr. Nwogbo to prevent and correct harassing

behavior by Plaintiff’s supervisors would be relevant to Plaintiff’s ability to establish the fourth

prong of his claim. See Crockett, 717 F.3d at 354 (fourth element of four-part test for a hostile

work environment based on sexual harassment claim concerns whether the harassment is

“imputable on some factual basis to the employer”). However, the Court need not reach this

inquiry because, as explained above, Plaintiff has failed to establish the third element of this

test, which requires that the underlying harassment be “sufficiently severe or pervasive to alter

the plaintiff’s conditions of employment and to create an abusive work environment.” Id.

Therefore, the undersigned recommends granting Defendants’ motion to dismiss Plaintiff’s

claim for a hostile work environment based on sexual harassment.

B. Plaintiff’s state law wrongful termination claim

Count Seven of Plaintiff’s complaint purports to raise a state law claim for wrongful

termination in violation of public policy against sexual harassment against Defendants. (See

Compl. at 15 (“Plaintiff is entitled to recover from Defendants . . . .”).) At the outset the

undersigned notes again that such a claim cannot be brought against Defendants Locklear and

Robinson as individuals. See Gibson v. Corning Inc., No. 5:14-CV-105-BO, 2015 WL 1880188,

at *4 (E.D.N.C. Apr. 13, 2015) (“[A] claim for wrongful discharge under North Carolina law

cannot be brought against an individual—a plaintiff may only bring suit against his employer

for wrongful discharge.”); Johnson v. North Carolina, 905 F. Supp. 2d 712, 726 (W.D.N.C. 2012)

(“Pursuant to established North Carolina law, ‘a plaintiff may only bring a wrongful discharge

action against the plaintiff’s employer, not against the employer’s agents (such as coworkers

and supervisors).’”) (quoting Sampson v. Leonard, No. 4:10–121, 2011 WL 129634, at *3

(E.D.N.C. Jan. 12, 2011)). As noted above, in his response brief, Plaintiff concedes that

Defendants Locklear and Robinson are not his employers and clarifies that he only intended

to raise this claim against Defendant CCSS as his employer. (See Docket Entry 13 at 10.)

“To state a claim for wrongful discharge in violation of public policy, an employee ‘has

the burden of pleading . . . that [his] dismissal occurred for a reason that violates public policy.”

Wilkes v. Argueta, No. 1:16CV260, 2017 WL 1215749, at *8 (M.D.N.C. Mar. 31, 2017) (ellipses

in original) (quoting Salter v. E & J Healthcare, Inc., 575 S.E.2d 46, 51 (N.C. Ct. App. 2003)).

North Carolina courts have held that “the right to be free of sexual harassment in the

workplace . . . is implicated in our State declaration of public policy.” Guthrie v. Conroy, 567

S.E.2d 403, 407 (N.C. Ct. App. 2002). Indeed, the North Carolina’s Equal Employment

Practices Act (“NCEEPA”) 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 . . . sex.” N.C. Gen. Stat. § 143-422.2.

First, the factual allegations underlying Plaintiff’s NCEEPA wrongful discharge claim

do not explain how his termination occurred for a reason that violates North Carolina public

policy against sexual harassment, which it is his burden to do. (See Compl. at 15.) Nor is it

apparent from the general factual allegations in his complaint that the alleged incidents of

sexual harassment had any bearing on his discharge. (Id. at 3-10.) On the contrary, Defendant

Locklear’s stated reason for firing Plaintiff was that he made errors in billing records. (Id. at

9.) To the extent that the factual allegations underlying Plaintiff’s NCEEPA claim can be read

to allege wrongful termination in response to the “complaints and reports” he allegedly made

regarding Defendant Locklear’s sexually harassing conduct, such retaliation cannot form the

basis of a cognizable NCEEPA claim because “North Carolina has no written public policy

. . . with respect to retaliation for opposing sexual discrimination in the workplace.” Efird v.

Riley, 342 F. Supp. 2d 413, 428 (M.D.N.C. 2004); see also Wilkes v. Argueta, No. 1:16CV260,

2017 WL 1215749, at *9 (M.D.N.C. Mar. 31, 2017) (“While North Carolina has an express

public policy against sexual discrimination, including sexual harassment, North Carolina does

not have a public policy regarding retaliation for opposing sexual discrimination.”); Mullis v.

Mechanics & Farmers Bank, 994 F. Supp. 680, 688 (M.D.N.C. 1997) (“There is no North

Carolina state law support for Plaintiff’s assertion that a retaliatory discharge arising from

complaints of sexual harassment violates the public policy of North Carolina.”).

Second, because the undersigned has already determined that Plaintiff’s Title VII sexual

harassment claim should be dismissed, his NCEEPA wrongful discharge claim based on sexual

harassment should also be dismissed because North Carolina courts have repeatedly held that

the two claims employ the same pleading standard. See Carolina Dep’t of Correction v. Gibson, 301

S.E.2d 78, 85 (N.C. 1983) (“The ultimate purpose of G.S. 126–36, G.S. 143–422.2, and Title

VII (42 U.S.C. 2000e, et seq.) is the same; that is, the elimination of discriminatory practices

in employment . . . . We therefore adopt the evidentiary standards and principles of law

[relating to Title VII claims] insofar as they are not in conflict with our statutes and case law.”);

Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995); Whitt v. Harris Teeter, Inc., 165 N.C. App.

32, 38, 598 S.E.2d 151, 155 (2004), rev’d on other grounds, 359 N.C. 625, 614 S.E.2d 531 (2005)

(reiterating that G.S. 143–422.2 is “co-extensive with [Title VII], evaluated under the same

standards of evidence and principles of law.”; see also Phillips v. J.P. Stevens & Co., 827 F. Supp.

349, 353 (M.D.N.C. 1993) (“Thus, since Plaintiff states a claim under Title VII, she states a

claim for wrongful discharge in violation of the public policy expressed in N.C.G.S. § 143–

422.2.”); Lingle v. Pain Relief Centers, P.A., No. 5:11-CV-168, 2013 WL 6732120, at *12

(W.D.N.C. Dec. 19, 2013) (“[Plaintiff] has presented sufficient facts to state a claim under

Title VII, which is ‘essentially identical’ to the public policy expressed in N.C.G.S. § 143–422.1

et. seq. . . . As such, a genuine issue of material fact exists for [Plaintiff’s] claim of wrongful

discharge against [Defendant] to survive summary judgment.”) (quoting Phillips, 827 F. Supp.

349 at 352-53). Because Plaintiff has made virtually identical allegations in support of both

his Title VII and NCEEPA claims (see Compl. at 11, 15), for the reasons discussed above

regarding his Title VII claim, his NCEEPA claim should also be dismissed.

C. Plaintiff’s tortious interference with an employment contract claim

Count Six of Plaintiff’s complaint raises a claim for tortious interference with his

employment contract in violation of North Carolina common law against Defendants

Locklear and Robinson. (See Compl. at 13.) The four elements of a claim for tortious

interference with contract are:

(1) a valid contract between the plaintiff and a third person which

confers upon the plaintiff a contractual right against a third

person; (2) the defendant knows of the contract; (3) the

defendant intentionally induces the third person not to perform

the contract; (4) and in doing so acts without justification; (5)

resulting in actual damage to plaintiff.

Beverage Sys. of Carolinas, LLC v. Associated Beverage Repair, LLC, 784 S.E.2d 457, 462 (N.C. 2016)

(quoting United Labs., Inc. v. Kuykendall, 370 S.E.2d 375, 387 (N.C. 1988)). Plaintiff has plausibly

plead each of these elements insofar as Plaintiff has alleged that he was an employee of CCSS,

that Defendants Locklear and Robinson were aware of his employment, and that they

“intentionally interfered” with his work by restricting his access to clients and important billing

software and making repeated false accusations about him. (Compl. at 3-10, 13.) Plaintiff

alleges that he was “wrongfully terminated” and suffered damages as a result. (Compl. at 13.)

However, Defendants argue that as agents of CCSS, Defendants Locklear and

Robinson cannot be liable because they “enjoy a qualified immunity to interfere [with

Plaintiff’s employment contract] as ‘non-outsiders.’” (Docket Entry 9 at 10 (quoting Area

Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 586 S.E.2d 507, 510 (N.C. Ct. App. 2003). Indeed,

A non-outsider . . . enjoys immunity from liability “for inducing

[his] corporation or other entity to breach its contract with an

employee” unless “exercised for motives other than reasonable,

good faith attempts to protect the non-outsider’s interests in the

contract interfered with[,]” Lenzer v. Flaherty, 106 N.C. App. 496,

513, 418 S.E.2d 276, 286 (1992) (citations omitted). Thus, “a

non-outsider has a qualified right to bring about the termination

of another’s terminable contract of employment when, in good

faith, he believes this to be necessary to protect his own legitimate

business interest or to perform his own fiduciary duty to the

employer[.]” Smith, 289 N.C. at 88, 221 S.E.2d at 292-93

(emphasis in original) . . . . However, the conduct is not privileged

or justified if the “officer’s motives are improper[,]” Embree

Constr. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d

916, 924 (1992) (citations omitted), as when “his acts are

performed in his own interest and adverse to that of his firm[,]”

Wilson, 262 N.C. at 134, 136 S.E.2d at 578.

Albright v. Charlotte-Mecklenburg Bd. of Educ., No. 317CV00461FDWDSC, 2017 WL 6028362, at

*4 (W.D.N.C. Dec. 5, 2017) (alterations in original). In other words, Defendants Locklear and

Robinson are not entitled to immunity if Plaintiff “forecast[s] evidence that [they] acted with

legal malice.” Hubbard v. N.C. State Univ., 789 S.E.2d 915, 922 (N.C. Ct. App. 2016). “A

person acts with legal malice if he does a wrongful act or exceeds his legal right or authority

in order to prevent the continuation of the contract between the parties.” Id. (internal

quotation marks omitted); see also Bloch v. The Paul Revere Life Ins. Co., 547 S.E.2d 51, 59 (N.C.

Ct. App. 2001) (“Bad motive is the essence of a claim for tortious interference with contract.”);

Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 586 S.E.2d 507, 510 (N.C. Ct. App. 2003)

(“[Q]ualified immunity is lost if the non-outsider acts with a wrongful purpose.”). Defendants

argue that “Plaintiff has not alleged that Locklear and Robinson acted with the malice

necessary to overcome the qualified immunity they enjoy as a non-outsiders.” (Docket Entry

9 at 10-11 (internal quotations and citation omitted).)

Because whether a defendant acted in good faith or had bad motives depends on the

circumstances surrounding the alleged interference with the plaintiff’s contract, “the question

is often one of fact that cannot be resolved on a motion to dismiss.” Albright, 2017 WL

6028362, at *5. Indeed, “allegations of ‘facts demonstrating that defendants’ actions were not

prompted by ‘legitimate business purposes’ are sufficient at the pleading stage.” Id. (citing

Embree, 411 S.E.2d 916, 926 (N.C. 1992).

Here, Plaintiff has alleged that he was “wrongfully terminated” as a result of

Defendants Locklear and Robinson “intentionally interfering” with his work, access to clients,

and billing software. (Compl. at 13.) Though Plaintiff does not make specific allegations

concerning Defendants Locklear and Robinson’s motives (beyond alleging that their

motivation in firing Plaintiff violated public policy (see id.)), based on the complaint as a whole,

the undersigned can plausibly infer that Defendants’ actions toward Plaintiff (including false

accusations, harassment, and retaliation) may have been taken in bad faith or prompted by

improper motives.6 See generally Barker v. Kimberly-Clark Corp., 524 S.E.2d 821, 827 (N.C. 2000)

(“[P]laintiff’s forecast of evidence sufficiently raises the issue as to whether the motives of

[Defendants] were reasonable, good faith attempts to protect their interests or the

corporation’s interests.”) Moreover, though Plaintiff’s allegations concerning legal malice are

somewhat less developed than those plead by other plaintiffs whose tortious interference

claims against a non-outsider have survived motions to dismiss in this Circuit, see Herrmann

Int’l, Inc. v. Herrmann Int’l Eur., No. 1:17-CV-00073-MR, 2021 WL 861712, at *18 (W.D.N.C.

Mar. 8, 2021); Wilkes v. Argueta, No. 1:16CV260, 2017 WL 1215749, at *6 (M.D.N.C. Mar. 31,

2017); Albright, 2017 WL 6028362, at *5, at this early stage in the litigation and viewing the

facts in the light most favorable to Plaintiff, the undersigned recommends that further factual

development be allowed and that Plaintiff’s claim against Defendants Locklear and Robinson

not be dismissed on the basis of immunity. Thus, the undersigned recommends denying

Defendants’ motion to dismiss as to Plaintiff’s claim for tortious interference with his

employment contract.

IV. CONCLUSION

IT IS HEREBY RECOMMENDED that Defendants’ partial motion to dismiss

(Docket Entry 8) be GRANTED IN PART at to Plaintiff’s Second and Seventh Causes of

6 In his response brief, Plaintiff argues that Defendant Robinson’s “retaliation for Plaintiff’s

report of Ricky Holden’s indiscretions was motivated by her own self-interests regarding her

relationship with Mr. Holden.” (Docket Entry 13 at 11.) However, no such articulation of Defendant

Robinson’s motivations appears on the face of the complaint. (See generally Compl.)

Action (hostile work environment based on sexual harassment in violation of Title VI and

wrongful termination in violation of North Carolina public policy against sexual harassment)

and DENIED IN PART as to Plaintiffs Sixth Cause of Action (tortious interference with

an employment contract).

Joe L. Webster

United States Magistrate Judge

June 8, 2021

Durham, North Carolina

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