SULLIVAN v. WAKE FOREST BAPTIST MEDICAL CENTER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NATALIE ALPHONSE SULLIVAN, )

)

Plaintiff, )

)

v. ) 1:20CV281

)

WAKE FOREST BAPTIST )

MEDICAL CENTER, and )

WAKE FOREST UNIVERSITY )

HEALTH SCIENCES, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second Amended

Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 23.)

For the reasons stated below, Defendants’ Motion to Dismiss will be granted in part and

denied in part.

I. BACKGROUND

Plaintiff, an African American woman, was hired as a medical resident by Defendant

Wake Forest Baptist Medical Center (“WFBMC”) in its Radiation Oncology Program (the

“Program”) on July 1, 2015. (ECF No. 22 ¶¶ 10, 26). Almost from the beginning, Plaintiff

alleges that the Program Director singled her out for scrutiny and discipline. (Id. ¶ 35–37.)

The Program Director allegedly scrutinized Plaintiff’s performance more closely than she did

the performance of Plaintiff’s white peers and offered them one-on-one support that was

withheld from Plaintiff. (Id.) Faculty members and other WFBMC leadership expressed a

fear of what they considered “unfair” treatment and “targeting” by the Program Director. (Id.

¶¶ 38–40.) Plaintiff reported this unfair and differential treatment to the Associate Dean for

Graduate Medical Education on May 16, 2016 but did not “overtly attribute the discriminatory

treatment to race or gender” at that time. (Id. ¶¶ 41–42.) Nevertheless, Plaintiff alleges that

she “met all the Program’s requirements” during her first year, received positive evaluations,

and was reappointed for a second year after a full evaluation of her work on July 1, 2016. (Id.

¶¶ 27–33.)

Plaintiff’s relationship with the Program Director continued to deteriorate during her

second year, and on March 17, 2017, Plaintiff reported to Defendants’ Chief Diversity Officer

that the Program Director was discriminating against her on the basis of her race. (Id. ¶ 58.)

During a May 8, 2017, meeting to discuss Plaintiff’s academic performance, the Program

Director “singled [her] out” and disciplined her “for engaging in certain behaviors that were

common among the residents,” such as using pocket summary guides rather than textbooks

to supplement her knowledge while working in medical clinics. (Id. ¶¶ 62–66.) Also beginning

on May 8, 2017, Plaintiff was given regular mock oral examinations to assess her

performance—a practice not immediately extended to Plaintiff’s white colleagues and

discontinued after her graduation. (Id. ¶¶ 67–70.) Plaintiff was also disciplined during her

second year for tardiness and “occasional use of her computer and phone for academic

purposes” while her white peers were not disciplined for the same behavior. (Id. ¶¶ 72–75.)

After all residents performed poorly on a physics test, the Program Director “singled out and

distorted” Plaintiff’s grade “as exceptionally low, although Plaintiff performed within the same

range” as her white peers. (Id. ¶ 76.) Plaintiff again complained of racial discrimination on

May 16, 2017, this time to the Chairman. (Id. ¶ 77.)

Otherwise, Plaintiff alleges a successful second year and was reappointed for a third

year on July 1, 2017, based on a full evaluation of her work. (Id. ¶ 50.) Her second-year

evaluations were mixed and included documentation of some unsatisfactory and some

satisfactory performance. (Id. ¶¶ 47, 61.) The Program’s Chairman “noted Plaintiff’s

struggles” but ultimately found that she was “performing as expected for a [second-year]

resident.” (Id. ¶ 51.)

Plaintiff gave birth to her second child and took maternity leave from June 5 to July

17, 2017. (Id. ¶ 79.) Thereafter, Plaintiff notified the Program Director that she would need

to take breaks during the day to pump breastmilk. (Id. ¶ 80.) The Program Director routinely

criticized Plaintiff for these absences and complained that Plaintiff was “unprofessional” and

“difficult to find.” (Id. ¶¶ 81, 96.) Another resident, who is white, was also breastfeeding

during this time and was not criticized for taking breaks to pump breastmilk. (Id. ¶¶ 82, 97.)

Plaintiff alleges the Program Director continued to overly scrutinize her work, treat her

in an “openly disrespectful manner,” and exclude her from educational activities during her

third and fourth years. (Id. ¶¶ 85–94.) On January 22, 2018, the Program Director invited

two white residents to participate in a learning experience but excluded Plaintiff. (Id. ¶ 98.)

She accused Plaintiff of deficient performance and failure to perform clinical duties. (Id. ¶¶ 99,

109.) On January 25, 2018, she threatened to recommend Plaintiff’s dismissal from the

Program if Plaintiff did not pass her board examination, despite the fact that prior residents

were not recommended for dismissal after failing board examinations. (Id. ¶ 101–02.) Plaintiff

again reported discriminatory behavior to the Associate Dean on January 30, 2018 and met

with the Chairman and another professor on February 7, 2018, to discuss her performance.

(Id. ¶¶ 103–04.) The Chairman and professor assured Plaintiff that she would not be dismissed

from the Program and questioned the Program Director’s behavior. (Id. ¶¶ 105–08.)

Plaintiff’s husband complained about the treatment of his wife to Defendants’ Chief

Diversity and Inclusion Officer (“Diversity Officer”) on September 14, 2018. (Id. ¶ 111.) The

Diversity Officer encouraged Plaintiff to report the discrimination to Human Resources. (Id.

¶¶ 114.) Though initially reluctant, Plaintiff eventually agreed and met with Human Resources

on October 26, 2018. (Id. ¶ 115, 122.) Human Resources ultimately “confirmed Plaintiff’s

claim that she had been treated differently than other residents” but “did not acknowledge

that Plaintiff’s unequal treatment was due to her race.” (Id. ¶ 123.)

On November 26, 2018, the Program Director and Associate Dean placed Plaintiff on

a Remediation Plan. (Id. ¶ 124.) The Remediation Plan was formalized on December 5, 2018,

by the Chairman after he met with Human Resources to discuss Plaintiff’s allegations of

discrimination. (Id. ¶ 131.) Plaintiff’s Remediation Plan differed significantly from traditional

plans in that it gave Plaintiff only three weeks to remediate while “residents are generally given

six months or more.” (Id. ¶ 134.) It further stated that Plaintiff was deficient in three areas of

competency and repeated allegations that Plaintiff had problems with tardiness and attendance

due to pumping breastmilk. (Id. ¶¶ 138, 140, 142.) On January 10, 2019, she learned that she

had been excluded by the Program Director from another educational program available to

other white residents. (Id. ¶ 143.) On March 5, 2019, despite being “consistently told that she

was making satisfactory progress and meeting expectations,” Plaintiff received a Notice of

Deficiency from the Program Director and Associate Dean stating she was ineligible to

complete the Program. (Id. ¶¶ 149–50.) She timely appealed the decision to the Graduate

Appeals Committee. (Id. ¶ 157.)

Plaintiff sought employment elsewhere during this time. (See id ¶ 162.) In April 2019,

she was extended an oral invitation to join the Radiation Oncology Program at Oregon Health

and Science University (“Oregon Program”), which Plaintiff accepted. (Id. ¶ 162–63.) When

the Chairman learned of the offer, he contacted the Oregon Program and told its chair “that

Plaintiff was ‘difficult’ because she complained to Human Resources.” (Id. ¶ 164–65.) The

Oregon Program’s chair shared this conversation with Defendants’ Vice Chairman, who

shared it with Plaintiff. (Id. ¶ 166.) The Oregon Program then rescinded its offer. (Id. ¶ 165.)

Afterward, the Chairman told Plaintiff “‘none of this would have happened’ if she had not

expressed her concerns to Human Resources.” (Id. ¶ 167.)

On April 24, 2019, the Program Director issued a Summative Evaluation Letter

criticizing Plaintiff’s performance as a resident and recommending she be dismissed from the

Program. (Id. ¶ 168–83.) The Graduate Appeals Committee held a hearing on May 14, 2019

and reversed the Program Director’s determination on May 16, 2019. (Id. ¶ 185–202.) The

Committee found “that the period of formal remediation was inadequate for [Plaintiff] to

improve her performance and that outcomes of failure to obtain expected performance were

vague” and suggested Plaintiff receive a new remediation plan. (Id. ¶ 204–05.) The Program

Director and Chairman then implemented a Second Remediation Plan which only required

Plaintiff to remediate one subject area, not three. (Id. ¶ 206.) Plaintiff successfully completed

the remediation and graduated from her residency on September 30, 2019. (Id. ¶ 213.)

Plaintiff filed this suit on March 30, 2020, and filed a First Amended Complaint on

June 5, 2020. (ECF Nos. 1; 11.) Plaintiff filed a Motion to Amend Plaintiff’s Amended

Complaint on August 10, 2020. (ECF No. 16.) Plaintiff’s Proposed Second Amended

Complaint (“Proposed SAC”) alleged Retaliation (Count I) and Disparate Treatment

Discrimination (Count II) in violation of Title VII and § 1981, as well as a violation of Title

VI (Count III). (ECF No. 16-1 ¶¶ 218–50.) Defendants opposed the motion arguing in part

that the Proposed Second Amended Complaint was futile because Plaintiff “fails to allege an

adverse employment action” and “failed to sufficiently allege a comparator that was similarly

situated to her” as required for her claim of racial discrimination. (ECF No. 19 at 15–16.)

The Court concluded that the allegations in Plaintiff’s Proposed SAC were not “insufficient

or frivolous on their face” and granted Plaintiff’s motion. (ECF No. 21 at 6–7.) Plaintiff then

filed her Second Amended Complaint (“SAC”) on March 3, 2021. (ECF No. 22.)

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) “challenges the legal sufficiency of a

complaint,” including whether it meets the pleading standard of Rule 8(a)(2). See Francis v.

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a complaint to contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.

Civ. P. 8(a)(2), thereby “giv[ing] the defendant fair notice of what the . . . claim is and the

grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a Rule 12(b)(6) motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

U.S. at 570). In assessing a claim’s plausibility, a court must draw all reasonable inferences in

the plaintiff’s favor. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013). A

claim is plausible when the complaint alleges facts that allow the court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

However, “mere conclusory and speculative allegations” are insufficient, Painter’s Mill Grille,

LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013), and a court “need not accept as true

unwarranted inferences, unreasonable conclusions, or arguments,” Vitol, 708 F.3d at 548

(quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006)).

III. DISCUSSION

Defendants argue they are entitled to dismissal of Plaintiff’s SAC in all or in part

because: (1) it does not match the Proposed SAC considered by the Court on Plaintiff’s motion

to amend; (2) it exceeds the scope of her EEOC charge and is time barred; (3) Plaintiff failed

to state a claim for Retaliation; (4) Plaintiff failed to state a claim for Race Discrimination and

Discriminatory Discipline; and (5) Defendant Wake Forest University Health Sciences was not

Plaintiff’s employer.1 (ECF No. 24 at 11–24.)

A. The Court declines to strike portions of Plaintiff’s SAC which violate Fed.

R. Civ. P. 15(a)(2)

Defendants first “ask this Court not to consider the amendments ¶¶ 239–40 and the

additional claim for Retaliation under Title VI on page 25, as they were not included in

1 Defendants also argue that, “to the extent Plaintiff is pursuing a claim for discrimination on the basis

of sex, . . . the claim must be dismissed because Plaintiff failed to exhaust her administrative remedies

and the claim exceeds the scope of the EEOC Charge.” (ECF Nos. 23 at 1; 24 at 9–10.) It appears

that Plaintiff did allege sex discrimination in an earlier complaint but is no longer pursuing a claim of

sex discrimination. (Compare ECF No. 1 ¶¶ 202–209, with ECF No. 22.) The Court will therefore

deny as moot this portion of Defendants’ motion.

[Plaintiff’s Proposed SAC] and run afoul of L.R. 15.1.” (ECF No. 24 at 13–14.) The Court

construes this portion of Defendants’ motion as a motion to strike. “The court may strike

from a pleading an insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter” on its own or upon a proper motion. Fed. R. Civ. P. 12(f). “[T]he function

of a [Rule] 12(f) motion to strike is to avoid the expenditure of time and money that must arise

from litigating spurious issues by dispensing with those issues prior to trial.” Buser v. S. Food

Serv., Inc., 73 F. Supp. 2d 556, 559 (M.D.N.C. 1999) (quoting Sidney–Vinstein v. A.H. Robins Co.,

697 F.2d 880, 885 (9th Cir. 1983)). “[T]he decision of whether to strike all or part of a pleading

rests within the sound discretion of the [c]ourt.” J&J Sports Prods., Inc. v. Lawson, No. 3:17-

CV-02939-JMC, 2019 WL 1754744, at *2 (D.S.C. Apr. 19, 2019) (quoting Barnes v. District

of Columbia, 289 F.R.D. 1, 6 (D.D.C. 2012)). Motions to strike “are generally viewed with

disfavor because striking a portion of a pleading is a drastic remedy and because it is often

sought by the movant simply as a dilatory tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252

F.3d 316, 347 (4th Cir. 2001).

A party may amend its pleading “once as a matter of course” and, “[i]n all other cases,

. . . only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P

15(a)(1)–(2). Local Rule 15.1 provides that “[i]f a party is required by the Rules to file a motion

in order to seek leave to amend a pleading, the moving party shall attach the proposed

amended pleading to the motion.”

Here, Defendant is correct that ¶¶ 239–40 of the SAC and Plaintiff’s new claim of

Retaliation under Title VI were not included in her Proposed SAC. Pursuant to Fed. R. Civ.

P. 15(a)(2), Plaintiff was required to obtain either Defendants’ consent or the court’s leave

before making those amendments. Since those amendments were not included in Plaintiff’s

Proposed SAC as required by Local Rule 15.1, Plaintiff has not obtained the Court’s leave.

However, the Court in its discretion declines to strike these portions of Plaintiff’s SAC in the

interest of judicial efficiency. The allegations in ¶¶ 239–40 are merely conclusory restatements

of the elements of a discrimination claim.2 And the standard for adjudicating a Retaliation

claim under Title VI is identical to that under Title VII and § 1981, which Plaintiff did include

in her Proposed SAC. Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003). Thus, the Court does

not find that Defendants will be meaningfully prejudiced by allowing these amendments to

stand notwithstanding Plaintiff’s violation. Moreover, were the Court to strike these portions

and require Plaintiff to properly move to include them under Rule 15(a)(2), the Court would

likely grant the motion as these amendments are not prejudicial, futile, or made in bad faith.

See Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). Such an exercise would be

a waste of time and resources for the Court and the parties.

Accordingly, the Court declines to strike these portions of Plaintiff’s SAC.

B. Plaintiff’s Title VII claims are not time barred

Defendant first argues that “the majority of plaintiff’s allegations exceed the scope of

her EEOC charge and are time barred.” (ECF No. 24 at 11–13.) Before a plaintiff can file

suit under Title VII, she must exhaust her administrative remedies by filing a charge with the

EEOC. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). Charges must be filed

2 (See ECF No. 22 ¶¶ 239 (“But for Plaintiff’s race, she would not have been disciplined differently

than her Caucasian peers and denied the procedural protections provided to other residents, as

described in ¶¶ 229–238 of the [SAC].”), 240 (“Plaintiff’s employer, the Chairman, and/or the

Program Director intentionally discriminated against Plaintiff because of her race.”).

within 180 days “after the alleged unlawful employment practice occurred.” 42 U.S.C.

§ 2000e-5(e)(1). Here, Defendants argue that any claims arising from actions that occurred

prior to November 7, 2018—180 days prior to Plaintiff’s EEOC filing on May 6, 2019—are

time barred. (ECF No. 24 at 11–13.) However, Plaintiff has not alleged any adverse

employment actions that occurred prior to November 7, 2018. The only alleged adverse action

purportedly giving rise to a claim that occurred prior to that date was the Program Director’s

exclusion of Plaintiff from participation in gynecologic brachytherapy procedures on January

22, 2018. (ECF Nos. 22 ¶ 98; see ECF No. 30 at 24 (listing alleged adverse employment

actions).) This allegation relates to Plaintiff’s Title VI claim for exclusion from an educational

opportunity on the basis of race, however, and does not give rise to a claim for employment

discrimination under Title VII. Thus, Defendants have failed to show that any of Plaintiff’s

claims arising under Title VII are time barred.

C. Plaintiff has sufficiently stated a claim for Retaliation (Count I)

Title VI, Title VII, and § 1981 each prohibit retaliation against a plaintiff for

complaining about prior discrimination. 42 U.S.C. § 2000e-3(a); Peters, 327 F.3d at 318 (“[T]he

general prohibitions on intentional discrimination embodied in [§ 1981] extend to provide a

cause of action to those who can demonstrate that they have been purposefully injured due to

their opposition to intentional racial discrimination.”); id. at 319 (holding that Title VI’s

implicit prohibition on retaliation is “enforceable via an implied private right of action”).

Retaliation claims, whether brought pursuant to Title VI, Title VII, or § 1981, may be

established “either through direct and indirect evidence of retaliatory animus, or through the

burden-shifting framework of McDonnell Douglas.” Foster v. Univ. of Md.-E. Shore, 787 F.3d 243,

249 (4th Cir. 2015) (citing McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973)); see Boyer-Liberto

v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (analyzing Title VII retaliation and

§ 1981 retaliation under the same framework); Peters, 327 F.3d at 320 (holding that a Title VI

retaliation claim is analyzed under the Title VII framework). A prima facie claim of retaliation

includes allegations from which it can be reasonably inferred that (1) plaintiff engaged in a

protected activity, (2) she suffered an adverse action, and (3) there was a causal connection

between the activity and the adverse action. Boyer-Liberto, 786 F.3d at 281. “[T]he

antiretaliation provision[s] [do] not confine the actions and harms it forbids to those that are

related to employment or occur at the workplace.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 57 (2006). In the retaliation context, actions are “adverse” if they are “harmful

to the point that they could well dissuade a reasonable worker from making or supporting a

charge of discrimination.” Id.

Here, Plaintiff specifically alleges that the Chairman reached out to Plaintiff’s

prospective employer and dissuaded it from hiring her “because she complained to Human

Resources” about ongoing racial discrimination, causing it to rescind its offer of admission.

(ECF No. 22 ¶ 165.) Plaintiff alleges that her prospective employer relayed this conversation

to the Program’s Vice Chairman, who then notified Plaintiff. (Id. ¶ 166.) The Chairman then

allegedly told Plaintiff that “‘none of this would have happened’ if she had not expressed her

concerns to Human Resources.” (Id. ¶ 167.) Thus, Plaintiff has alleged sufficient facts to raise

the reasonable inference of retaliatory animus. Further, the Court finds that the Chairman’s

alleged attempt to sabotage Plaintiff’s potential employment was sufficiently harmful to

dissuade a reasonable worker from making or supporting a charge of discrimination.

Therefore, Plaintiff has stated a claim of Retaliation under Title VI, Title VII, and § 1981.

D. Plaintiff has not stated a claim for Racial Discrimination or

Discriminatory Discipline (Count II)

It is a violation of Title VII 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). Section

1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the

same right in every State and Territory to make and enforce contracts . . . as is enjoyed by

white citizens.” 42 U.S.C. § 1981(a). To state a claim under either law, a plaintiff must allege

that she suffered an adverse employment action because of her race.3 Comcast Corp. v. Nat’l

Assoc. of African Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020) (“[A § 1981 plaintiff] must

initially plead . . . that, but for race, [she] would not have suffered the loss of a legally protected

right.”); McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.

2015) (stating that a Title VII plaintiff must “allege facts to satisfy the elements of a cause of

action created by that statute—i.e., [that defendant] failed or refused to hire her because of her

race” (internal quotations omitted)). This is true both of claims for Race Discrimination and

3 Defendants argue that the Court should analyze Plaintiff’s § 1981 claim under a different standard

than her Title VII claim. (ECF No. 24 at 13–15.) Prior to the Supreme Court’s ruling in Comcast,

“Courts long relied on the McDonnell Douglas burden-shifting framework to evaluate claims of race

discrimination in employment under § 1981.” McKenzie-El v. Am. Sugar Ref., Inc., No. 21-1089, 2021

WL 5412341, at *2 (4th Cir. Nov. 19, 2021). Now, it is unclear what role McDonnell Douglas plays in

establishing causation in § 1981 cases. Compare id. with Gary v. Facebook, Inc., 822 F. App’x 175, 180

(4th Cir. 2020) and BNT Ad Agency, LLC v. City of Greensboro, 837 F. App’x 962, 970 (4th Cir. 2020).

Regardless, this Court finds in this case that Plaintiff has failed to allege racial discrimination under

§ 1981 or Title VII whether assessed under McDonnell Douglas or traditional principles of but-for

causation.

Discriminatory Discipline. Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) (“The

employment discrimination laws require as an absolute precondition to suit that some adverse

employment actions have occurred.”).

“An adverse action is one that ‘constitutes a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.’” Hoyle v. Freightliner,

LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

761 (1998)). Courts generally have found that a disciplinary warning, without more, is not an

adverse employment action. See, e.g., McDougal-Wilson v. Goodyear Tire & Rubber Co., 427 F.

Supp. 2d 595, 609–10 (E.D.N.C. 2006) (finding that verbal and written warnings for tardiness

and poor performance “did not adversely affect the ‘terms, conditions, or benefits’ of

[plaintiff’s] employment”); Newman v. Giant Food, Inc., 187 F. Supp. 2d 524, 528–29 (D. Md.

2002) (“Such discipline, without evidence that the warning could lead to further disciplinary

action, such as termination, does not constitute an adverse employment action.”), aff’d sub nom.

Skipper v. Giant Food Inc., 68 F. App’x 393 (4th Cir. 2003); Keene v. Thompson, 232 F. Supp. 2d

574, 580 n.6 (M.D.N.C. 2002) (finding no adverse employment action where a notice of

suspension was never served and was ultimately removed from Plaintiff’s discipline file).

Here, Plaintiff argues that she has alleged five adverse employment actions: (1)

imposition of the remediation plan; (2) the initial determination that Plaintiff failed to

remediate; (3) advice that Plaintiff could not appeal the Notice of Deficiency; (4) the

Chairman’s interference with Plaintiff’s transfer opportunity; and (5) the restrictions on

Plaintiff’s ability to learn from and engage with faculty. (ECF No. 30 at 24.) With regard to

the first three actions, Plaintiff has failed to allege facts from which the Court can infer that

the remediation plan significantly altered her employment. The Complaint does not describe

what the plan entailed or if it required “significantly different responsibilities.” See Hoyle, 650

F.3d at 337. Although the Program Director threatened to recommend Plaintiff’s dismissal

from the Program, (ECF No. 22 ¶ 101), that threat never manifested, and Plaintiff was allowed

to continue and graduate. Moreover, the plan was ultimately replaced by the Graduate Appeals

Committee. Since Plaintiff makes no allegation of racial discrimination against the committee,

this Court cannot infer that, but for Plaintiff’s race, she would not have been placed on a

remediation plan. To the extent that Plaintiff argues that the initial remediation plan was more

intensive than the plan imposed by the committee—more intensive due to the Program

Director’s racial discrimination—the Complaint alleges no facts from which the Court can

assess whether the differences between the two plans are so significant as to constitute an

adverse employment action.

Regarding the Chairman’s interference with Plaintiff’s transfer opportunity, Plaintiff

has alleged no facts to support an inference that the Chairman discriminated against Plaintiff

based on her race. As discussed in Section III.C, supra, Plaintiff instead alleges that the

Chairman discouraged Plaintiff’s prospective employer from hiring Plaintiff “because she

complained to Human Resources.” (Id. ¶ 165.) And with regard to the restrictions on

Plaintiff’s ability to learn from and engage with faculty, this may constitute an adverse

educational action under Title VI, but Plaintiff has not alleged sufficient facts for the Court to

infer that a restriction on Plaintiff’s ability to learn constituted a significant change in Plaintiff’s

employment.

Because Plaintiff has not alleged that she suffered an adverse employment action

because of her race, her claims of race discrimination in employment claims pursuant to Title

VII and § 1981 will be dismissed.

E. WFUHS

Finally, Defendants move to dismiss Defendant WFUHS from this action because

“WFUHS does not meet the statutory definition of an employer.” (ECF No. 24 at 24.)

Under Title VII, an individual may have more than one employer. Murry v. Jacobs Tech.,

Inc., No. 1:10-CV-771, 2012 WL 1145938, at *6 (M.D.N.C. Apr. 5, 2012), aff’d, 568 F. App’x

265 (4th Cir. 2014). In Butler v. Drive Automotive Industries of America, Inc., 793 F.3d 404 (4th Cir.

2015), the Fourth Circuit adopted a nine-factor test to determine whether a Title VII plaintiff

“is jointly employed by two or more entities.” Id. at 414. These factors are:

(1) authority to hire and fire the individual; (2) day-to-day supervision of the

individual, including employee discipline; (3) whether the

putative employer furnishes the equipment used and the place of work; (4)

possession of and responsibility over the individual’s employment records,

including payroll, insurance, and taxes; (5) the length of time during which the

individual has worked for the putative employer; (6) whether the

putative employer provides the individual with formal or informal training; (7)

whether the individual’s duties are akin to a regular employee’s duties; (8)

whether the individual is assigned solely to the putative employer; and (9)

whether the individual and putative employer intended to enter into an

employment relationship.

Id. The court also clarified that, generally, the first three of these factors will be “most

important;” that “courts can modify the factors to the specific industry context;” and that the

ninth factor will generally be “of minimal consequence.” Id. at 414–15, 414 n.12.

Here, the Court finds that, even when viewing the facts in the light most favorable to

Plaintiff, she has failed to allege facts supporting that WFUHS was among her employers. The

only allegation that Plaintiff makes in her SAC regarding her alleged employment with

WFUHS is that she “was in a contractual, employment relationship with WF[U]HS and/or

WFBMC.” (ECF No. 22 ¶ 219.) However, Plaintiff’s employment contract was only with

WFBMC. (See ECF No. 23-1.)4 Under the employment contract, WFUBMC had the authority

to set salary and hire, reappoint, promote, and terminate Plaintiff. (Id. ¶¶ 4, 16; see id. at 9–11.)

WFBMC controlled the day-to-day supervision of Plaintiff including her work schedule. (Id.

¶¶ 5, 8.) WFBMC also supplied Plaintiff with her white coat for her uniform, her place of

work, food services, and laundry services. (Id. ¶ 12.) WFBMC was also responsible for

Plaintiff’s payroll and insurance. (Id. ¶¶ 4, 9.)

Notably absent from the employment contract are any indications that WFUHS was

responsible for any aspects of Plaintiff’s employment. Nor does Plaintiff allege any facts

regarding WFUHS to support any of the Butler factors. Further, she fails to address

Defendants’ argument that WFUHS is not her employer in her response. Thus, Plaintiff has

failed to allege any facts to support a finding that WFUHS was her employer, and therefore,

Plaintiff’s Title VII and § 1981 claims against WFUHS will be dismissed.

For the reasons stated herein, the Court enters the following:

4 Generally, on a Rule 12(b)(6) motion to dismiss, a court cannot consider documents beyond the

complaint without converting the motion into a motion for summary judgment. See Occupy Columbia

v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). The court can, however, properly consider “documents

attached to the complaint, as well as those attached to the motion to dismiss, so long as they are

integral to the complaint and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009) (citation omitted).

ORDER

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, (ECF No.

23), is GRANTED in part and DENIED in part. The motion is GRANTED as to Plaintiff’s

claims of Race Discrimination and Discriminatory Discipline (Count II) as to all Defendants,

and Plaintiff’s claims arising under Title VII and § 1981 (Counts I & II) against Defendant

WFUPH. The motion is DENIED as to Plaintiff’s remaining claims.

This the 11th day of April 2022.

/s/ Loretta C. Biggs

United States District Judge