WICKS v. LA'CAR OF N.C., INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KETURAH WICKS, )

)

Plaintiff, )

)

v. )

) 1:20CV934

LA’CAR OF N.C., INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant La’Car of N.C., Inc.’s Motion

to Dismiss [Doc. #2]. Plaintiff Keturah Wicks asserts various claims against her

former employer, La’Car of N.C., Inc. (“La’Car”), including, as are relevant here,

retaliation in violation of Title VII of the Civil Rights Act (Third Claim for Relief),

conspiracy to interfere with civil rights (Fifth Claim for Relief), and negligent

infliction of emotional distress (Sixth Claim for Relief). (See generally Compl. [Doc.

#6].) La’Car argues that the Court lacks subject matter jurisdiction over the

retaliation claim because Wicks failed to exhaust her remedies and that Wicks

failed to state a claim for conspiracy or negligent infliction of emotional distress for

which relief can be granted. (See Mot.) For the reasons that follow, the motion is

granted.

I.

At times relevant to this action, La’Car owned and operated eight

McDonald’s restaurants in North Carolina, and its President Charles A. Reid and

Vice President Linda F. Reid were husband and wife. (Compl. ¶¶ 26-27, 31, 33-

34.) On May 16, 2018, Mrs. Reid hired Wicks as an Area Supervisor. (Id. ¶ 36.)

She was assigned to supervise three stores, Wake Forest, Six Forks, and

Youngsville, and perform services at all eight stores such as running and analyzing

profit reports, ensuring the cost of labor remained within budget, hiring all

managers, and hiring and training the new Area Supervisor. (Id. ¶¶ 40, 42.)

Wicks soon received positive feedback and numerous compliments from the

Reids, including praise for her seamless performance during their two-week

absence for vacation. (Id. ¶¶ 43-44.) They told her that they planned to groom

her to become the next Director to oversee all eight stores and manage the Area

Supervisors so the Reids could be more hands-off. (Id. ¶ 45.) In July, she was

assigned two additional stores, Eno and Durham #1, and received a $5,000 raise.

(Id. ¶¶ 46-47.) At the end of the month, the Reids added the Wakefield store to

Wicks’s responsibilities and had her work as its interim General Manager. (Id.

¶¶ 52-58.) In early August, after Wicks responded overnight to an issue at the

Wakefield store, Ms. Reid told Wicks that her “dedication really means a lot” and

that they had “never had a supervisor that cares as much as [Wicks].” (Id. ¶¶ 64-

69.)

On August 13, Wicks told Mrs. Reid that she was pregnant. (Id. ¶ 82.) Mrs.

Reid responded to the following effect: “I don’t think you will be able to handle this

job being pregnant. You will be sick and getting big and unable to handle all of the

demands. . . . Will you be keeping the baby?” (Id. ¶ 83.) Wicks told Mrs. Reid that

she was confident that she could handle the job. (Id.) After the Reids learned of

Wicks’s pregnancy, they began criticizing her. (Id. ¶ 89.) The following day, Mrs.

Reid told Wicks she was removing two of the stores from her supervision. (Id. ¶¶

90-92.)

On August 16, the Fire Marshal returned to the Wake Forest store where he

had conducted an inspection in July. (Id. ¶¶ 48, 93.) Wicks had ordered a

replacement grease cup to address an issue identified in July, but when it was

determined to be the wrong model, Mr. Reid called Wicks and began yelling at her.

(Id. ¶¶ 50, 97.) He said words to the following effect: “’You’re useless . . .

You’re incapable of following instructions . . . You don’t do anything I tell you to

do . . . I’m not sure where you got your experience from but you’re not a good

supervisor. . . . Keturah, you don’t listen to me . . . You can’t do anything right.’”

(Id. ¶ 98.) Wicks was distraught, began crying, and hung up when Mr. Reid did

not stop yelling at her. (Id. ¶ 99.) A few minutes later, Mr. Reid called her back

and asked her to go to the Wake Forest store, which she did at which time she

remedied the three items the Fire Marshal noted during his follow-up, including

ordering a new grease cup via overnight shipping. (Id. ¶¶ 100-02.) Later that day,

though, Mr. Reid texted the supervisors, managers, and area supervisors that they

were not permitted to order safety equipment via overnight shipping and faced

disciplinary action if they did so without prior approval. (Id. ¶ 105.) On August

19, Wicks saw a posting on Indeed.com for her position, and the following day

Mrs. Reid again changed the stores under Wicks’s supervision to Wakefield, Wake

Forest, and Six Forks. (Id. ¶¶ 109, 111.)

At the monthly management meeting on August 23, the conduct of Wicks

and two other employees was discussed. (Id. ¶¶ 112-14.) Wicks apologized for

hanging up and for the inspection and explained that the Reids had her working

others’ jobs at Wakefield and checking on five other stores during her off hours.

(Id. ¶ 114.) Mr. Reid did not apologize or otherwise respond. (Id. ¶ 115.) That

meeting unexpectedly ran two and a half hours longer than usual, worrying

Wicks’s husband who was home with their children. (Id. ¶ 116-17.) Because

Wicks’s phone was visible as she responded to her husband’s calls, Mrs. Reid had

Wicks tell her husband the meeting was running late. (Id. ¶¶ 118-19.)

The following day, on August 24, 2018, the Reids called Wicks to their

home at which time they told her she “wasn’t a good fit” and fired her. (Id. ¶¶

120-22.) Wicks had never been provided written documentation reflecting any

failure to meet expectations. (Id. ¶ 123.) The stores she supervised passed health

and fire inspections and were profitable; she met or exceeded performance

metrics; she controlled total food costs; and she remediated the minor infractions

identified by the Fire Marshal at the Wake Forest store. (Id. ¶¶ 124-30.)

II.

Wicks has sued La’Car alleging violations of various state and federal laws.

As is relevant here, she alleges retaliation in violation of Title VII, conspiracy to

violate her civil rights, and negligent infliction of emotional distress, each of which

La’Car moves to dismiss.

A.

As an initial matter, La’Car argues that this Court lacks subject matter

jurisdiction over Wicks’s retaliation claim because she failed to exhaust her

remedies with the EEOC. The United States Supreme Court decided in June 2019

that “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory

one, not a jurisdictional prescription delineating the adjudicatory authority of

courts.” Fort Bend Cty. v. Davis, ___ U.S. ___, 139 S. Ct. 1843, 1851. Therefore,

La’Car’s motion to dismiss Wick’s retaliation claim will be treated as one made

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

To survive a motion to dismiss made pursuant to Rule 12(b)(6), 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 Atlantic Corp. 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

alleged.” Id. (citing Twombly, 550 U.S. at 556); see also McCleary-Evans v. Md.

Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)

(noting that a complaint must “contain[] sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face in the sense that the

complaint’s factual allegations must allow a court to draw the reasonable inference

that the defendant is liable for the misconduct alleged”). However, when a

complaint states facts that are “’merely consistent with’ a defendant’s liability, it

‘stops short of the line between possibility and plausibility of ‘entitlement to

relief.’’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). When

evaluating whether the complaint states a claim that is plausible on its face, the

facts are construed in the light most favorable to the plaintiff and all reasonable

inferences are drawn in his favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance

Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless, “labels and

conclusions[,]” “a formulaic recitation of the elements of a cause of action[,]” and

“naked assertions . . . without some further factual enhancement” are insufficient.

Twombly, 550 U.S. at 557. In other words, “[f]actual allegations must be enough

to raise a right to relief above the speculative level”. Id. at 555.

“While a 12(b)(6) motion focuses on the allegations of the complaint, it is

well established that a document attached to a motion to dismiss may be

considered when evaluating a motion to dismiss if the document was integral to

the complaint and authentic.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,

164 (4th Cir. 2016) (internal quotation omitted). A document is not integral to the

complaint when the “claims do not turn on, nor are . . . otherwise based on” the

document. Id. at 166 (finding that the police incident report was not integral to the

complaint where “the complaint included a few quotes from and references to the”

report but the claims did not turn on and were not otherwise based on the

statements in the report) (citing Chambers v. Time Warner, Inc., 282 F.3d 147,

153 (2d Cir. 2002) (“explaining that a document is ‘integral to the complaint’

‘where the complaint relies heavily upon its terms and effect’ (internal quotation

marks omitted)”); Smith v. Hogan, 794 F.3d 249, 255 (2d Cir. 2015) (“document

with ‘no independent legal significance to [plaintiff’s] claim’ was not integral to the

complaint”)).

B.

La’Car moves to dismiss Wick’s Title VII retaliation claim for failure to

exhaust her administrative remedies because she “failed to include in her Charge of

Discrimination any reference to retaliation” or “make any reference to retaliation in

her Charge Particulars.” (Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Br. in

Supp.”) at 5 [Doc. #9].) In response, Wicks concedes that “that the word

‘retaliation’ does not appear on [her] EEOC Charge” but argues that “her claim of

retaliation is reasonably related to her statements within her Charge.” (Resp. in

Opp’n to Def.’s Mot. to Dismiss (“Br. in Opp’n”) at 5 [Doc. #11].)

The parties do not dispute that Wicks timely filed a Charge of Discrimination

with the Equal Employment Opportunity Commission (“EEOC”) alleging

discrimination based on sex. The issue is whether Wicks also sufficiently charged

retaliation because “[t]he scope of the plaintiff’s right to file a federal lawsuit is

determined by the charge’s contents.” Jones v. Calbert Grp., Ltd., 551 F.3d 297,

300 (4th Cir. 2009) (citing Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th

Cir. 2002)), abrogated on other grounds, Fort Bend Cty., 139 S. Ct. 1843. “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.” Id.

(quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.

1996)).

Miles v. Dell, Inc., 429 F.3d 480 (4th Cir. 2005), is particularly illustrative

here. Miles sued Dell, her former employer, for sex discrimination, pregnancy

discrimination, and retaliation in violation of Title VII. Id. at 483. In her EEOC

Charge, she checked the box for sex discrimination, but not for retaliation. Id. at

484. She stated in her narrative that her supervisor “Glaze had been hostile to her

after finding out she was pregnant, that she complained of Glaze’s hostile attitude

to Glaze’s supervisor, and that, after firing her, Glaze refused to answer her

questions about why she was fired, but answered only, ‘So, what do you think of

me now?’” Id. at 484-85. The Fourth Circuit agreed with the district court that

Miles’ retaliation claim was not “reasonably related to her EEOC charge such that it

would have reasonably been expected to follow from an administrative

investigation of that charge.” Id. at 491-92. Not only did Glaze’s statement “not

necessarily imply that Glaze was motivated by a retaliatory impulse”, but the

narrative did “not state that [Miles] complained to [Glaze’s supervisor] about

discrimination” or “that Glaze was aware that Miles had complained to his

supervisor.” Id. at 492. The court found that the charge did “not remotely allege

that Glaze retaliated against her because she complained of his discriminatory

conduct to his supervisor, and it [did] not otherwise allege facts that would have

put Dell or the EEOC on notice that she was charging Dell with retaliation.” Id.

La’Car submitted a copy of Wicks’s EEOC Charge in support of its motion to

dismiss. (Ex. A to Br. in Supp. (Charge No. 433-2018-03375) [Doc. #13].) The

Charge may be considered without transforming the motion into one for summary

judgment because it is integral to the Complaint. Wicks alleges that she timely

filed a Charge with the EEOC (identified as Charge No. 433-2018-03375) and that

she exhausted her administrative remedies. (Compl. ¶¶ 13, 16.) She could not

have pursued any claim for a violation of Title VII without having done so.

Furthermore, although La’Car inadvertently failed to attach the EEOC Charge as

Exhibit A to its brief in support of its motion, both parties appear to have assumed

La’Car had done so and quoted from it in support of their arguments. And, since

La’Car’s filing of the exhibit, (see EEOC Charge No. 433-2018-03375 [Doc. #13]),

Wicks has not challenged its authenticity.

In her EEOC Charge, Wicks did not check the box for retaliation. Her

narrative is as follows:

I was hired by [La’Car] on May 28, 2018, and last held the position of

District Manager. On August 13, 2018, I informed my employer of

my pregnancy. On August 17, 2018, Owner Charles Reid threatened

my employment because I ordered a piece of equipment to be sent

overnight; yet the equipment was required in order to pass fire

marshal inspection and keep the store open for business. On August

24, 2018, I was discharged. The reason Mr. Reid gave me for

discharge was that I wasn’t a good fit. I believe that I have been

discriminated against because of my sex (female-pregnancy), in

violation of Title VII of the Civil Rights Act of 1964, as amended.

(Roman numeral formatting removed.)

Wicks admits that she did not check the box for retaliation but claims that

“procedural exactness” is not required and that “EEOC charges must be construed

with utmost liberality since they are made by those unschooled in the technicalities

of formal pleading”, quoting Alvarado v. Board of Trustees of Montgomery

Community College, 848 F.2d 457, 460 (4th Cir. 1988). (Br. in Opp’n at 4.)

Wicks contends that “it is implicit on [her] [Charge] form that [she] was operating

under the belief that she was retaliated against by Defendant.” (Id. at 6.) She

argues that “[t]he dates appearing in [her] EEOC Charge of discrimination

demonstrate the temporal proximity between the date [she] informed Ms. Reid of

her pregnancy and the date of [her] discharge; just 11 days.” (Id.)

First, Alvarado is distinguishable. That case involved a discrepancy in the

entity named in the discrimination charge and the subsequent civil suit. 848 F.2d

at 458-60 (discussing the goals of the “naming requirement” and comparing the

employer identified in the charge by a non-lawyer “with limited command of the

English language” and the defendant named in the subsequent civil suit filed by a

lawyer). Next and more important, there is simply no mention of any action in

Wicks’s EEOC Charge that could support an inference of retaliation. This is made

even clearer in light of Miles’ failure to allege retaliation in her EEOC Charge which

at least came closer to describing some protected activity. From Wicks’s brief in

opposition, it appears as though she believes her informing Ms. Reid of her

pregnancy is protected activity. But an employee engages in protected activity

when she opposes action that is unlawful under Title VII or that she reasonably

believes is so and when she participates in any manner in an investigation into a

violation of Title VII. 42 U.S.C. § 2000e-3(a); Boyer-Liberto v. Fontainebleau Corp.

786 F.3d 264, 282 (4th Cir. 2015). Wicks’s informing Ms. Reid of her pregnancy

is not protected activity. Instead, Wicks states that within days of telling her

employer that she was pregnant, her employment was threatened and she was

discharged. At most, this puts the EEOC and La’Car on notice of sex

discrimination, not retaliation. Therefore, Wicks cannot be found to have included

retaliation in her EEOC charge, and that claim is dismissed.

C.

Next, La’Car moves to dismiss Wicks’s civil conspiracy claim because of the

doctrine of intracorporate immunity according to which a corporation cannot

conspire with itself. (Br. in Supp. at 8-9.) In response, Wicks argues that her claim

falls within an exception to that doctrine “when a corporate officer has an

‘independent personal stake in achieving the corporation’s illegal objective.’” (Br. in

Opp’n at 8 (quoting Greenville Publ’g Co. v. Daily Reflector, 496 F.2d 391, 399

(4th Cir. 1974)).) She argues that the Reids’ treatment of her after she told Mrs.

Reid she was pregnant sufficiently shows they were motivated by personal

animus. (Id. at 8-10 (relying on Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342,

353 (4th Cir. 2013) (citing Hartman v. Bd. of Trustees of Community College Dist.

No. 508, 4 F.3d 465, 470 (7th Cir. 1993))).)

As an initial matter, it is not clear from the Complaint or the parties’ filings

whether Wicks has asserted her civil conspiracy claim under North Carolina law,

federal law, or both. Wicks cites to and quotes from N.C. Gen. Stat. § 99D-1 in

her Complaint, (Compl. ¶¶ 178-79), but both parties rely entirely on federal cases

interpreting and applying the doctrine of intracorporate immunity to claims brought

under federal law and other states’ laws, (Br. in Supp. at 9; Br. in Opp’n at 8-10;

Def.’s Reply Br. at 4-6 [Doc. #12]).

Nevertheless, North Carolina courts and the Fourth Circuit Court of Appeals

agree that “under the intracorporate immunity doctrine, acts of corporate agents

are acts of the corporation itself, and corporate employees cannot conspire with

each other or with the corporation”, ePlus Tech. Inc. v. Aboud, 313 F.3d 166, 179

(4th Cir. 2002). See, e.g., Seguro-Suarez ex rel Connette v. Key Risk Ins. Co., 819

S.E.2d 741, 754-55 (N.C. Ct. App. 2018); State ex rel Cooper v. Ridgeway Brands

Mfg., LLC, 646 S.E.2d 790, 799 (N.C. Ct. App. 2007); Painter’s Mill Grille, LLC,

716 F.3d at 352. And, both jurisdictions recognize the exception on which Wicks

relies where the corporate agent “has an independent personal stake in achieving

the corporation’s illegal objectives”, namely financial gain apart from the

corporation’s, Greenville Publ’g Co., 496 F.2d at 399. See, e.g., State ex rel

Cooper, 646 S.E.2d at 799; ePlus Tech., Inc., 313 F.3d at 179-80.

However, such an exception does not apply here. The Reids are not alleged

to have an independent financial stake apart from La’Car’s in achieving the

corporation’s alleged illegal objectives, and their alleged personal animus towards

Wicks does not fall into the personal stake exception. In Painter’s Mill Grille, LLC,

a 42 U.S.C. § 1985(3) action, the Fourth Circuit Court of Appeals found that the

plaintiffs’ argument – that the individual defendants had an independent personal

stake because of their personal racial animus – “would ‘render[] the intracorporate

conspiracy doctrine meaningless’ in the context of § 1985(3) claims ‘because

every claim under that statute depends on a showing that the conspirators shared

an invidiously discriminatory motivation.’” 716 F.3d at 345 (quoting Hartman, 4

F.3d at 470).1

Furthermore, the Reids are not named as individual defendants. Wicks

alleges that all of their discriminatory conduct was connected directly to their work

as agents of La’Car in that “Defendant conspired to interfere with [her] civil

rights”; “Defendant’s agents, Charles and Linda Reid, engaged in the conspiracy by

directly perpetrating repeated harassment motivated by Plaintiff’s sex”; the Reids’

actions “including, but not limited to the discrimination, retaliation, and wrongful

discharge of [Wicks], were acts performed by agents of Defendant”; their acts

“took place during the hours they were in fact working for Defendant”; “[t]hese

acts were related to, or committed in the context of, the conduct these . . . agents

were paid to perform”; “[t]he wrongful actions . . . were performed by agents of

1 Wicks relies on Painter’s Mill Grille, LLC and its citation to Hartman. (Br. in Opp’n

at 8 (“. . . [I]n situations where ‘corporate employees are shown to have been

motivated solely by personal bias,’ the intra-corporate immunity doctrine would not

apply.”). However, her quote from these cases is incomplete and improperly

assigns precedential value to conditional dicta from Hartman. Compare id. with

Painter’s Mill Grille, LLC, 716 F.3d at 353 and Hartman, 4 F.3d at 470.

Defendant, in the course of Defendant’s business”; and “Defendant is thus liable

for its agents’ actions under the doctrine of Respondeat Superior.” (Compl. ¶¶

178-80, 192-96.) In short, the doctrine of intracorporate immunity forecloses

Wicks’s civil conspiracy claim.

D.

La’Car also challenges Wicks’s negligent infliction of emotional distress

(“NIED”) claim because she alleges intentional, not negligent, conduct and fails to

allege any facts to support the element of severe emotional distress. (Br. in Supp.

at 10-12.) Wicks appears to agree that she must allege negligent conduct but

argues that she has done just that. (Br. in Opp’n at 11.) She also contends that

she has sufficiently alleged severe emotional distress. (Id. at 11-12.)

A plaintiff asserting a claim for NIED must allege: (1) the defendant engaged

in negligent conduct, (2) it was reasonably foreseeable that conduct would cause

the plaintiff severe emotional distress, and (3) the conduct did cause the plaintiff

severe emotional distress. Johnson v. Ruark Obstetrics & Gynecology Assocs.,

P.A., 395 S.E.2d 85, 97 (N.C. 1990). As the parties recognize, allegations of

intentional conduct are not sufficient to support a claim of NIED. E.g., Gauthier v.

The Shaw Grp., Inc., No. 3:12-cv-274-GCM, 2012 WL 6043012, at *8 (W.D.N.C.

Dec. 4, 2012) (citing Huggins v. N.C. Dep’t of Admin., No. 5:10-CV-414-FL, 2011

WL 3917372, at *8 (E.D.N.C. Sept. 2, 2011) (“[A] plaintiff cannot simply restate

facts regarding intentional behavior that form the basis for [a claim of intentional

conduct] to form a claim for NIED.”); Springs v. Mayer Brown, LLP, No.

3:09CV352-MR-DSC, 2009 WL 3461231, at *7 (W.D.N.C. Oct. 20, 2009) (“The

law is clear . . . that inherently intentional conduct, such as discrimination, cannot

support a claim for negligent infliction of emotional distress.”); Riepe v. Sarstedt,

Inc., No. 5:09-CV-104, 2010 WL 3326691, at *4 (W.D.N.C. Aug. 23, 2010)

(“Without question, basing a claim upon intentional conduct and simply labeling it

as negligent is untenable as an attempt to state a cause of action for

negligence.”)).

Wicks alleges that “Defendant negligently allowed unlawful conduct

resulting in severe emotional distress.” (Compl. ¶ 186.) In opposition to La’Car’s

motion, she argues that she has further alleged negligent conduct. “For example,

when Plaintiff brought her pregnancy to Ms. Reid’s attention, Ms. Reid impulsively

responded to this news with words to the following effect: ‘Will you be keeping

the baby?’” (Br. in Opp’n at 11 (citing Compl. ¶ 83).) Wicks contends that this “is

evidence of negligent conduct by Ms. Reid, implying that Plaintiff ought to have

considered aborting her pregnancy for the sake of the job.” (Id.) But that allegation

is part of the Reids’ alleged discriminatory conduct. Wicks’s conclusory allegation

that La’Car was negligent is not supported by any facts. Instead, her Complaint is

replete with alleged intentional conduct in support of her wrongful discharge and

Title VII claims. Her attempt in her brief to characterize her allegations otherwise

is not persuasive. Without any alleged negligent conduct, this claim fails.2

2 Because there is no allegation of negligent conduct, it is unnecessary to address

the sufficiency of the allegations of severe emotional distress.

III.

For the reasons stated in this Memorandum Opinion, IT IS HEREBY

ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Third, Fifth, and Sixth

Claims for Relief [Doc. #2] is GRANTED.

This the 8th day of November, 2021.

/s/ N. Carlton Tilley, Jr.

Senior United States District Judge