BEATTY v. PRUITTHEALTH INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LATICIA N. BEATTY, )

)

Plaintiff, )

)

v. ) 1:21CV818

)

PRUITTHEALTH, INC., )

PRUITTHEALTH-CAROLINA POINT, )

LLC, KURTIS JONES, )

individually and in his )

official capacity, and )

DELLA MERVIN, individually )

and in her official capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss Plaintiff’s

Complaint, (Doc. 14), filed by Defendants PruittHealth, Inc.,

PruittHealth-Carolina Point, LLC, Kurtis Jones, and Della

Mervin. Plaintiff Laticia N. Beatty has not responded. For the

reasons that follow, Defendants’ motion to dismiss will be

granted in part and denied in part.

Defendants have also filed a Motion for Expansion of Word

Limit, (Doc. 13). That motion will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint.” Ray v.

Roane, 948 F.3d 222, 226 (4th Cir. 2020) (internal quotation

marks omitted) (quoting King v. Rubenstein, 825 F.3d 206, 212

(4th Cir. 2016)). The facts, taken in the light most favorable

to Plaintiff, are as follows.

A. Factual Background

Plaintiff has worked in nursing home administration for

twelve years. (See Compl. (Doc. 1) ¶ 7.)1 PruittHealth, Inc.

operates PruittHealth-Carolina Point, LLC in Durham County,

North Carolina. (Id. ¶ 2.) Kurtis Jones is the Area Vice

President of PruittHealth and was Plaintiff’s supervisor. (Id.

¶ 4.) Della Mervin is the Director of Partner Services at

PruittHealth and was Plaintiff’s direct contact to Human

Resources. (Id.)

Plaintiff first began working for PruittHealth in 2014 and

worked there for four-and-a-half years. (Id. ¶ 9.) Plaintiff was

rehired by PruittHealth on March 23, 2020. (Id. ¶ 10.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

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

on CM/ECF.

A week later, Plaintiff was diagnosed with COVID-19. (Id.

¶ 24.) She began working from home on April 7, 2020. (Id.) On

May 27, 2020, Plaintiff received a doctor’s note recommending

Plaintiff “work four hours per day for two weeks then increase.”

(Id. ¶ 25; Doc. 1-7.) Plaintiff provided this note to Defendants

on May 29, 2020. (Compl. (Doc. 1) ¶ 25.) Plaintiff was required

to report to work the next day. (Id.)

Plaintiff returned to work in-person “[o]n May 30, 2020,

against doctor’s restrictions, . . . working for no more than 4

hours.” (Id. ¶ 26.) While Plaintiff was recovering from COVID-

19, she “was responsible for interviewing housekeeping, nurses,

certified nursing assistants and department heads.” (Id. ¶ 29.)

Plaintiff alleges that because of her disability “Jones

unilaterally removed [Plaintiff] from emails making it difficult

for her to complete her duties.” (Id. ¶ 28.) Plaintiff told

Defendants “that the duties that were placed on her could not be

done in 4 hours due to the issue that the other employees had no

training of the new changes in the system that PruittHealh was

implementing.” (Id. ¶ 33.) On or around June 8, 2020, Plaintiff

called the Company Hotline to complain about “disability

harassment.” (Id. ¶¶ 27, 30.)

On June 15, 2020, Plaintiff texted Jones that she felt ill.

(Id. ¶¶ 34–35.) Plaintiff decided to work outside. (Id.) Jones

and Mervin told Plaintiff “it was unprofessional” for Plaintiff

to work outside. (Id.)

Plaintiff reported “continuous threats and disability

harassment” to Mervin. (Id. ¶ 28.) Plaintiff also alleges a

coworker resigned “[a]s an intimidation and retaliatory tactic.”

(Id. ¶ 36.)

On June 16, 2020, Plaintiff was reinfected with COVID-19

and returned to work six days later. (Id. ¶¶ 37–38.) Plaintiff

alleges when she returned to work “the discrimination and

harassment continued.” (Id. ¶ 38.) She also alleges that “[o]n

July 7, Tiffany Ray DHS exposed [a] plot to conspire against

Plaintiff and replace her with Alexander Parker per Defendant

AVP Jones instruction.” (Id. ¶ 40.) On July 31, 2020, Plaintiff

experienced shortness of breath, nausea, and vomiting while at

work. (Id. ¶ 39.) A nurse practitioner found Plaintiff in her

car in pain, and Plaintiff ended up hospitalized. (Id.)

On August 7, 2020, Plaintiff “sent a letter of harassment

and complaint of discrimination to Neal Pruitt, the owner of

[PruittHealth].” (Id. ¶ 42; see also Doc. 1-4.) She did not

receive a response. (Compl. (Doc. 1) ¶ 42.) The next day

Plaintiff filed an Equal Employment Opportunity Commission

(“EEOC”) charge. (Id. ¶ 43; Doc. 1-11.)2

On August 10, 2020, Plaintiff sent Defendants a doctor’s

note stating that Plaintiff could not come into work until

further notice. (Compl. (Doc. 1) ¶¶ 44–45.) Defendants did not

discuss any accommodations with Plaintiff. (Id.) On August 26,

2020, Plaintiff submitted an Americans with Disability Act

(“ADA”) physician’s certification indicating Plaintiff’s

condition would likely last a year. (Id. ¶ 46; Doc. 1-8 at 3.)

On September 15, 2020, Plaintiff texted Mervin a message “in

reference to the Family Medical Leave ‘FMLA’ and ADA.” (Compl.

(Doc. 1) ¶ 47; see also Doc. 1-9.) In her reply, Mervin did not

mention accommodation proposals. (Compl. (Doc. 1) ¶ 47.)

Plaintiff received her last paycheck and PTO payment on

November 10, 2020. (Id. ¶ 48.) Plaintiff alleges she was

constructively terminated and retaliated against because of her

disability. (Id.) On December 1, 2020, Plaintiff contacted

Mervin. (Id. ¶ 49.) Mervin provided no updates regarding

accommodations. (Id.) On February 8, 2021, Plaintiff was

terminated. (Id. ¶ 51.) Plaintiff alleges this was the first

time she received information about the ADA. (Id.) On July 23,

2 While Plaintiff alleges she filed her EEOC charge on

August 8, 2020, (Compl. (Doc. 1) ¶ 43), the EEOC charge has a

date of September 23, 2020, (Doc. 1-11).

2021, Plaintiff received a right to sue letter from the EEOC.

(Id. ¶ 54; Doc. 1-10.)

Based on the foregoing, Plaintiff alleges Defendants

discriminated against her because of her disability, race,

color, and national origin, and committed several other

violations of federal and state laws. (See Compl. (Doc. 1)

¶¶ 93–204.)

B. Procedural Background

On October 21, 2021, Plaintiff filed her Complaint. (Compl.

(Doc. 1).) Defendants filed a Motion for Expansion of Word

Limit, (Doc. 13), given the length of Plaintiff’s Complaint.

Defendants also filed a motion to dismiss, (Doc. 14), along with

a brief in support, (Defs.’ Mem. of Law in Supp. of Mot. to

Dismiss Pl.’s Compl. (“Defs. Br.”) (Doc. 15)).

On March 23, 2022, the Clerk sent Plaintiff a letter

advising her of the motion to dismiss and her right to respond.

(Doc. 16.) On May 4, 2022, the Clerk sent Plaintiff a second

letter regarding Plaintiff’s lack of response to the motion to

dismiss. (Doc. 17.) Plaintiff has yet to file a response.

II. STANDARD OF REVIEW

“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

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is plausible on its face “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Id. When ruling on a motion to dismiss, this

court accepts the complaint’s factual allegations as true. Id.

Further, this court liberally construes “the complaint,

including all reasonable inferences therefrom . . . in the

plaintiff’s favor.” Est. of Williams-Moore v. All. One

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

2004). This court does not, however, accept legal conclusions as

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

action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678.

This court is required to liberally construe pro se

complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “[C]ourts are not

required,” however, “to conjure up questions never squarely

presented to them.” Deabreu v. Novastar Home Mortg., Inc., 536

F. App’x 373, 375 (4th Cir. 2013) (per curiam) (quoting Beaudett

v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). “The

‘special judicial solicitude’ with which a district court should

view such pro se complaints does not transform the court into an

advocate.” Weller v. Dep’t of Soc. Servs. for City of Balt., 901

F.2d 387, 391 (4th Cir. 1990).

III. ANALYSIS

Plaintiff has not responded to Defendants’ Motion to

Dismiss. For that reason alone, this court could grant

Defendants’ motion. See Fed. R. Civ. P. 41(b). However, despite

this court’s inherent authority to sanction a party with

dismissal of an action, see Link v. Wabash R.R. Co., 370 U.S.

626, 629–30 (1962); Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734

F.3d 366, 373 (4th Cir. 2013), this court is mindful that

dismissal is a harsh sanction, and the need “to prevent delays

must be weighed against the sound public policy of deciding

cases on their merits.” Dove v. CODESCO, 569 F.2d 807, 810 (4th

Cir. 1978) (quoting Riezakis v. Loy, 490 F.2d 1132, 1135 (4th

Cir. 1974)). Considering Plaintiff’s pro se status, this court

will consider Defendants’ motion on the merits notwithstanding

Plaintiff’s failure to respond. As explained, this court will

dismiss all but two of Plaintiff’s claims.

A. Title VII Claims

Plaintiff alleges Defendants discriminated and retaliated

against Plaintiff because of her race, color, and national

origin in violation of Title VII, 42 U.S.C. § 2000e, et seq.

(See Compl. (Doc. 1) ¶¶ 57, 120.)3 Defendants argue Plaintiff’s

Title VII allegations should be dismissed because Plaintiff’s

EEOC charge asserted discrimination on the basis of her

disability. (Defs.’ Br. (Doc. 15) at 5–6.)4

“Before a Title VII plaintiff can bring a formal suit, he

must file an administrative charge with the [EEOC]. This charge

frames the scope of future litigation.” Chacko v. Patuxent

Inst., 429 F.3d 505, 506 (4th Cir. 2005); Bryant v. Bell Atl.

Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002) (“The EEOC charge

defines the scope of the plaintiff’s right to institute a civil

suit.”). “Generally, a claim in a plaintiff’s civil suit will be

barred if . . . the charge alleges one basis of discrimination

(e.g., sex) and the complaint alleges a different basis of

3 Plaintiff does not allege a specific claim under Title VII

but makes several references to Title VII throughout her

Complaint. (See, e.g., Compl. (Doc. 1) ¶¶ 57, 59, 120.) This

court will construe those allegations as a claim under Title

VII.

4 Defendants move to dismiss Plaintiff’s Title VII claims

pursuant to Federal Rule of Civil Procedure 12(b)(1). (See

Defs.’ Br. (Doc. 15) at 5–6.) However, the Supreme Court has

clarified that motions to dismiss Title VII claims because of a

plaintiff’s failure to exhaust the administrative requirements

is not a jurisdictional issue and should be considered under

Rule 12(b)(6) instead of Rule 12(b)(1). See Fort Bend Cnty. v.

Davis, 139 S. Ct. 1843, 1850–52 (2019). Therefore, this court

will consider Defendants’ motion to dismiss Plaintiff’s Title

VII claims under Rule 12(b)(6).

discrimination (e.g., race) . . . .” High v. R & R Transp.,

Inc., 242 F. Supp. 3d 433, 439 (M.D.N.C. 2017); see also Jones

v. Calvert Grp., Ltd., 551 F.3d 297, 301 (4th Cir. 2009)

(affirming the district court’s determination that the plaintiff

failed to exhaust her administrative remedies when the plaintiff

did not allege discrimination on the basis of age, sex, or race

in her EEOC charge), abrogated on other grounds by Fort Bend

Cnty., 139 S. Ct. 1843.

This court finds Plaintiff failed to properly exhaust her

Title VII claims. Plaintiff’s EEOC charge indicates

discrimination based on disability; no other basis for

discrimination is checked. (See Doc. 1-11.) Plaintiff cannot

bring a claim for race, color, and national origin

discrimination without first filing a charge alleging that

discrimination with the EEOC. See Chacko, 429 F.3d at 509; see

also Smith v. Honda Power Equip. Mfg., Inc., NO. 5:22-CV-86-FL,

2022 WL 2333874, at *1 (E.D.N.C. June 28, 2022) (dismissing the

plaintiff’s Title VII discrimination and retaliation claims for

failure to exhaust). Accordingly, Plaintiff’s Title VII claims

will be dismissed.

B. Claim One: ADA Discrimination

Plaintiff alleges a claim of discrimination under the ADA.

(See Compl. (Doc. 1) ¶¶ 93–106.) “To establish a claim for

disability discrimination under the ADA, a plaintiff must prove

‘(1) that she has a disability, (2) that she is a ‘qualified

individual’ for the employment in question, and (3) that [her

employer] discharged her (or took other adverse employment

action) because of her disability.’” Jacobs v. N.C. Admin. Off.

of the Cts., 780 F.3d 562, 572 (4th Cir. 2015) (alteration in

original) (quoting EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d

373, 377 (4th Cir. 2000)).

This court finds Plaintiff has failed to plausibly allege

she was discharged because of her disability. The only

allegation Plaintiff makes regarding why Defendants discharged

her is a bare-bones legal conclusion, to which this court is not

required to give any deference. See Iqbal, 556 U.S. at 678.

Plaintiff alleges “[t]he adverse employment actions taken by

Defendants were because of, and in response to, Plaintiff’s

complaints of harassment and discrimination.” (Compl. (Doc. 1)

¶ 103.) Plaintiff has failed to allege facts that suggest “more

than a sheer possibility” that Defendants failed to provide

reasonable accommodations or that Defendants dismissed Plaintiff

because of her disability. See Iqbal, 556 U.S. at 678.

Moreover, this court finds that Plaintiff has failed to

plausibly allege that she was a qualified individual. “A

‘qualified individual with a disability’ is one ‘who, with or

without reasonable accommodation, can perform the essential

functions’ of her job.’” EEOC v. Stowe-Pharr Mills, Inc., 216

F.3d 373, 377 (4th Cir. 2000) (quoting 42 U.S.C. § 12111(8)).

“[C]onsideration shall be given to the employer’s judgment as to

what functions of a job are essential . . . .” 42 U.S.C.

§ 12111(8). “An employee who does not come to work cannot

perform any of his job functions, essential or otherwise. An

essential job function includes a regular and reliable level of

attendance. An employee who cannot meet the attendance

requirements of the job at issue cannot be considered a

qualified individual . . . .” Khan v. UNC Health Care Sys., No.

1:20CV977, 2021 WL 4392012, at *6 (M.D.N.C. Sept. 24, 2021)

(cleaned up) (quoting Tyndall, 31 F.3d at 213). Courts grant

motions to dismiss ADA discrimination claims when “attendance

was an essential function” of a plaintiff’s job and they are

“consistently absent . . . until the day of [their] termination

with no end in sight.” See, e.g., id. at *7.

Here, Plaintiff’s supervisor expressly told Plaintiff that

her job required in-person, daily attendance: “please note that

as an administrator your [sic] expected to be in the center from

9am-4:30pm.” (Doc. 1-7 at 1.)5 This is consistent with the

position description which stated that the position required

compliance with the “center’s policies on attendance” and the

ability “to arrive and begin work on time . . . [and] respond to

center[’]s needs 24 hours a day/ 7 days a week.” (Doc. 1-12 at

4.) Plaintiff’s allegations reveal that she was unable to

perform this essential function of her job. Indeed, on August

10, 2020, she provided Defendants a doctor’s note stating that

she “could not come to work until further notice.” (Compl.

(Doc. 1) ¶ 44.) The note itself states “I’m not sure [patient]

can actually work at this time” and states that the “[p]robable

duration of condition” is “1 year.” (Doc. 1-8 at 2–3.) Given

that an essential function of Plaintiff’s job was to work in-

person each day at the center, and her condition prevented her

from doing that, she has not plausibly alleged that she is a

qualified individual. Therefore, this court finds Plaintiff has

failed to plausibly allege an ADA discrimination claim.

Plaintiff also appears to allege a claim for retaliation in

violation of the ADA. (See Compl. (Doc. 1) ¶¶ 101–02.) In order

to plausibly state a claim of retaliation under the ADA, “a

5 The court can consider this and other documents that

Plaintiff “attached to the complaint as exhibits.” Goines v.

Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)

(citing Federal Rule of Civil Procedure 10(c)).

plaintiff must allege (1) that she has engaged in conduct

protected by the ADA; (2) that she suffered an adverse action

subsequent to engaging in the protected conduct; and (3) that

there was a causal link between the protected activity and the

adverse action.” Freilich v. Upper Chesapeake Health, Inc., 313

F.3d 205, 216 (4th Cir. 2002).

Plaintiff alleges she engaged in protected activity “by

complaining about the ongoing discrimination and harassment on

the basis of her disability at PruittHealth,” and that she

reported concerns about discrimination to the PruittHealth

Complaint Hotline and sent a letter about discrimination to the

owner of PruittHealth. (Compl. (Doc. 1) ¶¶ 30, 42, 101.)

However, Plaintiff fails to plausibly allege a causal link

between that protected activity and her termination. There are

no allegations suggesting that the people who terminated

Plaintiff were aware of her reports of harassment and

discrimination. See Graves v. Bank of Am., N.A., 54 F. Supp. 3d

434, 443 (M.D.N.C. 2014) (finding that in the ADA retaliation

context, “[e]mployer knowledge of an EEOC charge is ‘absolutely

necessary’ for a finding of retaliation” (quoting Dowe v. Total

Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998))).

Moreover, the passage of six months between Plaintiff sending a

letter to PruittHealth’s owner and her termination is too long

to plausibly suggest retaliation. See Hooven-Lewis v. Caldera,

249 F.3d 259, 278 (4th Cir. 2001) (“A six month lag is

sufficient to negate any inference of causation.”); Jones v.

Dole Food Co., 827 F. Supp. 2d 532, 554 (W.D.N.C. 2011)

(“[C]omplaints of retaliation are considered stale after only a

few months.”). As a result, Plaintiff fails to plausibly allege

a case of retaliation. To the extent Plaintiff alleges an ADA

retaliation claim, that claim will be denied.

Finally, Plaintiff appears to allege a hostile work

environment in violation of the ADA claim. (See Compl. (Doc. 1)

¶¶ 45–46, 67, 96–98.) To establish an ADA hostile work

environment claim, a plaintiff must sufficiently allege:

(1) he is a qualified individual with a disability;

(2) he was subjected to unwelcome harassment; (3) the

harassment was based on his disability; (4) the

harassment was sufficiently severe or pervasive to

alter a term, condition, or privilege of employment;

and (5) some factual basis exists to impute liability

for the harassment to the employer.

Fox v. General Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001).

As explained, Plaintiff has not plausibly alleged that she

is a qualified individual. Because Plaintiff has failed to

allege one of the required elements of a hostile work

environment claim, this court will dismiss Plaintiff’s claim.6

In summary, Plaintiff’s claims under the ADA—disability

discrimination, retaliation, and hostile work environment—will

all be dismissed.

C. Claim Two: Antitrust

Plaintiff alleges PruittHealth violated anti-trust laws “by

restraining Plaintiff’s ability to compete in the marketplace by

maintaining use of Plaintiff’s licensure.” (Compl. (Doc. 1)

¶ 114.) This court construes this claim as a Sherman Act Section

1 claim.7

6 Plaintiff may also have failed to state sufficient

plausible facts to “clear [the] high bar” of “the severe or

pervasive test.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,

315–16 (4th Cir. 2008) (distinguishing actionable “hostile work

environment” from mere “rude treatment by coworkers, callous

behavior by one’s superiors, or a routine difference of opinion

and personality conflict with one’s supervisor” (cleaned up)

(quoting Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006);

Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th

Cir. 2003); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276 (4th

Cir. 2000))).

7 This court construes Claim Two as a Sherman Action Section

1 claim and not a Sherman Act Section 2 claim. A violation of

Section 2 “consists of two elements: (1) the possession of

monopoly power in the relevant market, and (2) willful

maintenance of that power.” E.I. du Pont de Nemours & Co. v.

Kolon Indus., Inc., 637 F.3d 435, 450 (4th Cir. 2011).

Plaintiff’s Complaint contains no allegations from which this

court can reasonably infer Defendants had a monopoly over any

market. (See Compl. (Doc. 1).)

To state a claim under Section 1 of the Sherman Act, a

plaintiff must allege there was “(1) a contract, combination, or

conspiracy; (2) that imposed an unreasonable restraint of

trade.” Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir.

2002).

Defendants argue “Plaintiff’s claim fails because she does

not allege any agreement between PruittHealth, Inc. (or the

other Defendants for that matter) and any third party to

restrain trade.” (Defs.’ Br. (Doc. 15) at 14.) This court

agrees.

Section 1 of the Sherman Act “applies only to concerted

action, and not unilateral activity.” Loren Data Corp. v. GXS,

Inc., 501 F. App’x 275, 280 (4th Cir. 2012) (citing Am. Needle,

Inc. v. NFL, 560 U.S. 183, 189–90 (2010)). Here, Plaintiff does

not allege Defendants conspired with a third-party to “prevent[]

Plaintiff from identifying herself as a PruittHealth

Administrator.” (Compl. (Doc. 1) ¶ 111.) Defendants’ unilateral

decisions cannot form the basis of Plaintiff’s antitrust claim.

See Loren Data, 501 F. App’x at 280. Accordingly, Plaintiff’s

second claim will be dismissed.

D. Claim Three: Retaliation in Violation of § 1983

Plaintiff alleges Defendants retaliated against her in

violation of 42 U.S.C. § 1983. (Compl. (Doc. 1) ¶¶ 117–28.)

Generally, the constitutional guarantees protected by § 1983 do

not apply to the actions of private entities. See Goldstein v.

Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 341 (4th Cir.

2000). When “governmental authority . . . dominate[s] an

activity to such an extent that its participants must be deemed

to act with the authority of the government[, the ostensibly

private participants are] . . . subject to constitutional

constraints.” Edmonson v. Leesville Concrete Co., 500 U.S. 614,

620 (1991).

Defendants are private entities or individuals. (See Compl.

(Doc. 1) ¶¶ 2–4.) Plaintiff has not alleged any governmental

activity dominating the actions of Defendants such that § 1983

applies to them. Accordingly, Plaintiff’s third claim will be

dismissed.

E. Claim Four: § 1981 Discrimination

Plaintiff alleges Defendants discriminated and retaliated

against her in violation of 42 U.S.C. § 1981. (See id. ¶¶ 129–

36.) To state a discrimination claim premised on § 1981, “a

plaintiff must show (1) his membership in a protected class;

(2) his satisfactory job performance; (3) an adverse employment

action; and (4) similarly situated employees outside the

protected class who received more favorable treatment.” Tabb v.

Bd. of Educ. of Durham Pub. Schs., 29 F.4th 148, 157 (4th Cir.

2022). Likewise, a plaintiff must allege the following elements

to state a § 1981 retaliation claim: “(1) that he engaged in a

protected activity; (2) that his employer took an adverse

employment action against him; and (3) that a causal connection

existed between the protected activity and the asserted adverse

action.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188

(4th Cir. 2004).

Even assuming Plaintiff has plausibly alleged the first

three elements of a § 1981 discrimination claim, Plaintiff has

alleged no facts plausibly suggesting similarly situated

employees outside of the protected class received more favorable

treatment. Plaintiff’s barebones legal conclusions are

insufficient to survive a motion to dismiss. See Iqbal, 556 U.S.

at 678. Similarly, Plaintiff has alleged no facts plausibly

suggesting she engaged in any protected activity relating to

alleged race discrimination. Plaintiff alleges no facts related

to her race, alleged discrimination because of her race, or

reporting of race discrimination that are anything more than

barebones legal conclusions. (See Compl. (Doc. 1) ¶¶ 118, 126,

130.) Accordingly, Plaintiff’s claims under § 1981 will be

dismissed.

F. Claim Five: Breach of Contract

Plaintiff alleges a breach of contract claim. (See Compl.

(Doc. 1) ¶¶ 137–47.) Plaintiff alleges she “has a binding and

enforceable contract with Defendant PruittHealth . . . which

incorporated the PruittHealth Handbook.” (Id. ¶¶ 139–40.)

Plaintiff further alleges the “contract . . . was violated”

because “Defendants failed to abide by the policy provided in

the PruittHealth Handbook.” (Id. ¶ 140–41.)

“The elements of a claim for breach of contract are

(1) existence of a valid contract and (2) breach of the terms of

that contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d

838, 843 (2000). In a breach of contract action, the complaint

must allege that a contract exists between the parties, as well

as “the specific provisions breached, the facts constituting the

breach, and the amount of damages resulting to [the] plaintiff

from such breach.” Howe v. Links Club Condominium Ass’n, Inc.,

263 N.C. App. 130, 139, 823 S.E.2d 439, 448 (2018) (internal

quotation marks omitted) (alteration in original) (quoting RGK,

Inc. v. U.S. Fid. & Guar. Co., 292 N.C. 668, 675, 235 S.E.2d

234, 238 (1977)). “Under longstanding North Carolina law, a

valid contract requires (1) assent; (2) mutuality of obligation;

and (3) definite terms.” Charlotte Motor Speedway, LLC v. Cnty.

of Cabarrus, 230 N.C. App. 1, 7, 748 S.E.2d 171, 176 (2013).

Plaintiff has plausibly alleged these elements, and this

court will therefore decline to dismiss Plaintiff’s breach of

contract claim. Contrary to Defendants’ arguments that Plaintiff

fails to identify any contract or contractual provision that was

breached, (Defs.’ Br. (Doc. 15) at 16–19), Plaintiff has made

such allegations. She alleges the existence of at least one

contract—her “hiring agreement.” (See Compl. (Doc. 1) ¶ 144.)

She also alleges this contract was breached. (See id.) She

specifies the specific provisions breached, namely the ”Handbook

and Anti-Harassment Policies” which were “incorporated” into the

contract.8 (Id.; see also, e.g., ¶¶ 17, 71, 140.) She further

alleges the facts constituting the breach of these provisions by

alleging that “Defendant PruittHealth has intentionally failed

8 Defendants argue that the Handbook and Anti-Harassment

Policies do not constitute contractual obligations binding them

because “Plaintiff has not identified a separate contract that

expressly incorporates the Handbook or the Company’s Anti-

Harassment Policy.” (Defs.’ Br. (Doc. 15) at 18.) But Plaintiff

has made such an identification when she alleges that her

“hiring agreement . . . incorporated [the] Handbook and Anti-

Harassment Policies.” (Compl. (Doc. 1) ¶ 144.) The facts and

language in the relevant documents may ultimately show that the

Handbook and Anti-Harassment Policies were not so incorporated,

but that is a matter for summary judgment—not a motion to

dismiss. That is especially the case given that Plaintiff’s pro

se complaint is to be liberally construed. Erickson, 551 U.S. at

94.

and neglected to perform under the contract by placing Plaintiff

on unjustified leave, refusing to allow Plaintiff to have

contact with PruittHealth residents, attend professional

meetings and failing to provide accommodations for her

disability.” (Id. ¶ 142.) Finally, Plaintiff alleges the amount

of damages resulting to her from such breach. (Id. ¶ 147.)

Defendant’s motion to dismiss Plaintiff’s breach of contract

claim will therefore be denied.9

G. Claims Six, Seven, and Nine: Fraud, Fraudulent

Inducement, and Negligent Misrepresentation

Plaintiff asserts claims for fraud, fraudulent inducement,

and negligent misrepresentation against Defendants. (Compl.

(Doc. 1) ¶¶ 148–69, 175–83.) Federal Rule of Civil Procedure

9(b)’s heightened pleading requirement applies to state-law

claims litigated in federal court, including claims for fraud,

fraudulent inducement, and negligent misrepresentation. See

Topshelf Mgmt., Inc. v. Campbell-Ewald Co., 117 F. Supp. 3d 722,

726–28 (M.D.N.C. 2015); Liris S.A. v. Morris & Assocs., Inc.,

496 F. Supp. 3d 931, 937–38 (E.D.N.C. 2020).

9 This court also rejects Defendants’ argument that the

breach of contract claim should be dismissed as to Defendants

Jones, Mervin, and PruittHealth-Carolina Point. (Defs.’ Br.

(Doc. 15) at 16–17.) Plaintiff plainly states that “Defendants

were and are a party to a written contract for employment.”

(Compl. (Doc. 1) ¶ 138 (emphasis added).) Further factual

development may show that only PruittHealth was a party to the

contract, but that is a matter for summary judgment.

To meet the heightened pleading standard under Rule 9(b), a

plaintiff must sufficiently “describe ‘the time, place, and

contents of the false representations, as well as the identity

of the person making the misrepresentation and what he obtained

thereby.’” U.S. ex rel. Wilson v. Kellog Brown & Root, Inc., 525

F.3d 370, 379 (4th Cir. 2008) (quoting Harrison v. Westinghouse

Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)). This

minimum factual description is “often referred to as the who,

what, when, where, and how of the alleged fraud.” Id. (internal

quotation marks omitted) (quoting U.S. ex rel Willard v. Human

Health Plan of Tex., Inc., 336 F.3d 375, 384 (5th Cir. 2003)).

The purpose of this requirement is to satisfy the court

“(1) that the defendant has been made aware of the particular

circumstances for which she will have to prepare a defense at

trial, and (2) that plaintiff has substantial prediscovery

evidence of those facts.” Harrison, 176 F.3d at 784.

Under North Carolina law, fraud requires a “(1) [f]alse

representation or concealment of a material fact, (2) reasonably

calculated to deceive, (3) made with intent to deceive,

(4) which does in fact deceive, (5) resulting in damage to the

injured party.” Forbis v. Neal, 361 N.C. 519, 526–27, 649 S.E.2d

382, 387 (2007) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138,

209 S.E.2d 494, 500 (1974)). The third element requires more

than a mere allegation that a defendant intended to deceive;

instead, to survive a motion a dismiss, a plaintiff must allege

“additional facts demonstrating that at the time the statements

were made, [the defendant] had no intention of honoring its

promise.” Packrite, LLC v. Graphic Packaging Int’l, Inc., No.

1:17CV1019, 2018 WL 4112827, at *5 (M.D.N.C. Aug. 29, 2018)

(dismissing fraudulent misrepresentation/inducement claim for

failing to meet Rule 9(b)’s heightened pleading standard); see

also Strum v. Exxon Co., USA, 15 F.3d 327, 331 (4th Cir. 1994)

(“Because [the plaintiff] has done nothing more than assert that

[the defendant] never intended to honor its obligations under

the . . . agreement, the district court’s dismissal of the

[fraud claim] was entirely appropriate.”). These additional

facts “most often include[] the speaker’s contemporaneous

statements to others contradicting his manifested intent or

objective facts showing that his intent could not have been

truthful when made.” Id. (quoting Krispy Kreme Doughnut Corp. v.

Advantage Grp. Enters., Inc., No. 1:08CV0092, 2008 WL 5216227,

at *4 (M.D.N.C. Dec. 11, 2008)).

Plaintiff has failed to state any such additional facts,

and thus has failed to plausibly allege Defendants’ statements

were made with the intent to deceive. Although Plaintiff does

allege that “[a]t the time Plaintiff was offered the position

with Defendant PruittHealth, Defendants did not intend to abide

by” the representations they made, (Compl. (Doc. 1) ¶ 151; see

also id. ¶¶ 162, 167), such allegations are conclusory. They are

not supported by any additional factual allegations such as

Defendant’s contemporaneous statements to others contradicting

their manifested intent or objective facts showing their intent

could not have been truthful. For these reasons, Plaintiff’s

fraud and fraudulent inducement claims have not been pleaded

with the particularity required by Rule 9(b) and will be

dismissed.

Rule 9(b)’s heightened pleading requirement also applies to

negligent misrepresentation claims. See Topshelf Mgmt., 117 F.

Supp. 3d at 727–28 (collecting cases). This court finds that,

for the same reasons give above for the fraud and fraudulent

inducement claims, Plaintiff’s negligent misrepresentation claim

has not been pleaded with sufficient specificity and will be

dismissed. See Packrite, 2018 WL 4112827, at *5 (dismissing the

plaintiff’s negligent misrepresentation claim for the same

reason—failure to allege additional facts showing intent to

deceive—that the plaintiff’s fraudulent

misrepresentation/inducement claim was dismissed).

H. Claim Eight: Breach of the Implied Covenant of Good

Faith and Fair Dealing

Plaintiff asserts a claim for breach of the implied

covenant of good faith and fair dealing in the alternative to

her breach of contract claim. (See Compl. (Doc. 1) ¶¶ 170–74.)

Defendants argue “Plaintiff’s claim fails because it is based on

the same conduct underlying her breach of contract claim.”

(Defs.’ Br. (Doc. 15) at 24.)

North Carolina recognizes a cause of action for a breach of

the implied covenant of good faith and fair dealing. See Heron

Bay Acquisition, LLC v. United Metal Finishing, Inc., 24 N.C.

App. 378, 385, 781 S.E.2d 889, 894 (2016) (“In every contract

there is an implied covenant of good faith and fair dealing that

neither party will do anything which injures the right of the

other to receive the benefits of the agreement.” (internal

quotation marks omitted) (quoting Bicycle Transit Auth. v. Bell,

314 N.C. 219, 228, 333 S.E.2d 299, 305 (1985))). The Fourth

Circuit has held that “a claim for a breach of the implied

covenant of good faith and fair dealing is separate from a claim

for breach of contract” under North Carolina law. See Nadendla

v. WakeMed, 24 F.4th 299, 308 (4th Cir. 2022). Thus, contrary to

Defendants’ argument, Plaintiff may assert a claim for breach of

the implied covenant of good faith and fair dealing. Id. (“[W]e

find that [the plaintiff’s] breach of the implied covenant of

good faith and fair dealing claim does not fail as a matter of

law. Breach of the implied covenant of good faith and fair

dealing is a separate claim from breach of contract, and it is

not subsumed into the latter when the express terms of the

contract do not preclude the implied terms which the plaintiff

claims were breached.”).

“A defendant cannot breach a covenant of good faith and

fair dealing when a claimant fails to establish the defendant

breached the underlying contract.” McDonald v. Bank of N.Y.

Mellon Tr. Co., Nat’l Ass’n, 259 N.C. App. 582, 587, 816 S.E.2d

861, 864–65 (2018). Here, Plaintiff has failed to plausibly

allege the existence of a valid contract, so Plaintiff cannot

plausibly allege Defendants breached any contract. See supra

Section III.F. Therefore, this court finds Plaintiff’s claim for

breach of the implied covenant of good faith and fair dealing

will be dismissed.

I. Claims Ten and Eleven: Unjust Enrichment

Plaintiff asserts two unjust enrichment claims. (See Compl.

(Doc. 1) ¶¶ 184–92.) Plaintiff alleges that Defendants were

unjustly enriched by not paying Plaintiff when she was on unpaid

leave. (Id. ¶ 186.) Plaintiff also alleges Defendants were

unjustly enriched by continuing to use Plaintiff’s name,

administrator license, and her accomplishments. (Id. ¶¶ 190–91.)

To state an unjust enrichment claim under North Carolina

law, a plaintiff must allege “(1) a measurable benefit was

conferred on the defendant, (2) the defendant consciously

accepted that benefit, and (3) the benefit was not conferred

officiously or gratuitously.” Lake Toxaway Cmty. Ass’n, Inc. v.

RYF Enters., LLC, 226 N.C. App. 483, 490, 742 S.E.2d 555, 561

(2013) (internal quotation marks omitted) (quoting Primerica

Life Ins. Co. v. James Massengill & Sons Constr. Co., 211 N.C.

App. 252, 259–60, 712 S.E.2d 670, 677 (2011)).

First, Plaintiff’s allegation that Defendants were unjustly

enriched by not paying Plaintiff while she was on unpaid leave

fails to plausibly allege a benefit was conferred on Defendants

because Plaintiff does not allege she was working—and thus

providing a benefit to Defendants—while she was on unpaid leave.

Plaintiff alleges she began unpaid leave in November 2020 and

was terminated in February 2021. (Compl. (Doc. 1) ¶¶ 48, 51.)10

Plaintiff does not allege she was working during those times.

Thus, Plaintiff did not confer a benefit on Defendants.

However, Plaintiff’s second unjust enrichment allegation—

which asserts that Defendants were unjustly enriched by using

10 Plaintiff also alleges she was constructively terminated

in November 2020, (see Compl. (Doc. 1) ¶ 48), further supporting

the reasonable inference Plaintiff was not working for

Defendants after November 2020.

Plaintiff’s name, administrator license, and accomplishments—

does plausibly allege an unjust enrichment claim. Defendants

argue that this allegation fails to plausibly allege any

measurable benefit or a benefit that Defendants consciously

accepted. (Defs.’ Br. (Doc. 15) at 25.) This court disagrees. It

is reasonable to infer, for example, that the benefit conferred

to Defendants through use of Plaintiff’s “current and

unrestricted Administrator licensure” to receive “state

funding,” and other financial gains, is measurable and tangible.

(See Compl. (Doc. 1) ¶ 191.) Plaintiff has also sufficiently

stated facts to plausibly allege that Defendants consciously

accepted this benefit; in fact, Plaintiff alleges that

Defendants’ intention was to have Plaintiff “transfer[] her

license to Defendant PruittHealth’s facility so that Defendants

would benefit financially and in reputation from the licensure

earned by Plaintiff.” (Id. ¶ 79.)

Thus, Plaintiff has plausibly alleged an unjust enrichment

claim as to these allegations, which this court finds to be most

clearly contained in Claim Eleven. That claim will not be

dismissed. Defendant’s other unjust enrichment claim, in Claim

Ten, will be dismissed because it is duplicative and does not

contain any other plausible allegations.

J. Claim Twelve: Equitable Estoppel, Quasi-Estoppel, Mend

the Hold

Plaintiff asserts a claim for equitable estoppel, quasi-

estoppel, and mend the hold. (See Compl. (Doc. 1) ¶¶ 193–94.)

Plaintiff argues “PruittHealth should be estopped and prevented

from denying that the [employee handbook] is part of the

contract existing between Defendant PruittHealth and Plaintiff

. . . .” (Id. ¶ 194.)

Estoppel is not an affirmative action under North Carolina

law. See Laschkewitsch v. Legal & Gen. Am., Inc., 247 F. Supp.

3d 710, 721 (E.D.N.C. 2017) (collecting cases). Neither is mend

the hold. See Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1,

24–26, 591 S.E.2d 870, 886–87 (2004) (explaining that the “‘mend

the hold’ doctrine” is an affirmative defense “that precludes

the assertion of inconsistent litigation positions, usually

concerning the meaning of a contract, within the context of a

single lawsuit”). Accordingly, this claim will be dismissed.

K. Claim Thirteen: Declaratory Judgment

Plaintiff seeks declaratory relief “to cure the wrongs

identified” in her Complaint. (See Compl. (Doc. 1) ¶¶ 195–200.)

Declaratory relief is discretionary; it is not “an absolute

right” of the litigant. Wilton v. Seven Falls Co., 515 U.S. 277,

287 (1995) (quoting Pub. Serv. Comm’n of Utah v. Wycoff Co., 344

U.S. 237, 241 (1952)). Because Plaintiff’s claim for declaratory

relief concerns the same alleged wrongs as identified elsewhere

in her Complaint, Plaintiff’s declaratory relief claim is

redundant. Cf. Joe Hand Promotions, Inc. v. Hayes, 1:18CV531,

2019 WL 4246646, at *4 (M.D.N.C. Sept. 6, 2019) (“Under Rule

12(f) of the Federal Rules of Civil Procedure, a court may, in

its discretion, strike ‘any redundant . . . matter from a

pleading.’ Some courts have exercised this power to dismiss

declaratory counterclaims that are ‘mirror images’ of

plaintiffs’ initial claims.” (internal citation omitted)

(alteration in original) (quoting Fed. R. Civ. P. 12(f))). This

court finds Plaintiff’s claim for declaratory judgment should be

dismissed.

L. Claim Fourteen: Injunctive Relief

Plaintiff brings a claim for injunctive relief “to cure the

wrongs identified above and prevent Defendants from taking

future actions that violate Plaintiff’s legal rights.” (Compl.

(Doc. 1) ¶ 202.) “[I]njunctive relief is not a claim for relief,

rather it is a remedy under both federal and state law.” Casper

v. Carteret Cnty. News-Times, 1:18CV907, 2019 WL 2570040, at *2

(M.D.N.C. June 21, 2019). Thus, Plaintiff has failed to state a

claim for relief. Additionally, this court finds Plaintiff has

failed to plausibly allege any facts suggesting she is entitled

to injunctive relief. Cf. Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008) (describing elements of a motion for

preliminary injunction). This court finds Plaintiff’s claim for

injunctive relief should be dismissed.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Expansion

of Word Limit, (Doc. 13), will be granted, and Defendants’

Motion to Dismiss Plaintiff’s Complaint, (Doc. 14), will be

granted in part and denied in part.

IT IS THEREFORE ORDERED that Defendants’ Motion for

Expansion of Word Limit, (Doc. 13), is GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss

Plaintiff’s Complaint, (Doc. 14), is GRANTED IN PART and DENIED

IN PART. The motion is GRANTED regarding Claims One, Two, Three,

Four, Six, Seven, Eight, Nine, Ten, Twelve, Thirteen, and

Fourteen. The motion is DENIED regarding Claims Five and Eleven.

This the 25th day of August, 2022.

Weir Me

United States District Jufige

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