# McKinney v. Cleveland County Board of Education

> District Court, W.D. North Carolina · November 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10256470

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** November 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10256470

## How later opinions describe it (automated extraction)

- applying the Portal to Portal Act to a claim under the NCWHA
- concluding the ADEA’s comprehensive scheme barred § 1983 claim

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:20-cv-221-MOC-DSC

WENDY MCKINNEY, )
)
Plaintiff, )
)
vs. )
)
CLEVELAND COUNTY BOARD ) ORDER
OF EDUCATION, MARK PATRICK, )
STEPHEN FISHER, JENNIFER )
WAMPLER, )
)
Defendants. )
___________________________________ )

THIS MATTER comes before the Court on a Motion to Dismiss filed by Defendant
Mark Patrick, (Doc. No. 11), and on a Motion to Dismiss, filed by Defendants Cleveland County
Board of Education, Stephen Fisher, and Jennifer Wampler, (Doc. No. 13).
I. BACKGROUND
Plaintiff was employed by the Cleveland County Board of Education (the “Board”) as a
full-time employee in various roles beginning in January 2003. In 2015, she began working as a
bookkeeper for North Shelby High School. (Doc. No. 1-4 at ¶¶ 1, 12: Am. Compl.). She was
employed by the Board in this capacity until her termination on December 14, 2018. (Id. at ¶
45). The Board informed Plaintiff that it was terminating her under its excessive absences
policy.
Plaintiff filed this action in Gaston County Superior Court on March 17, 2020, naming
the following persons and entities as Defendants: (1) Cleveland County Schools/Board of
Education; (2) Mark Patrick, individually and in his official capacity as principal of North
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Shelby School; (3) Stephen Fisher, in his official capacity as Cleveland County Schools
Superintendent; and (4) Jennifer Wampler, individually and in her official capacity as Assistant
Superintendent of Operational and Human Services, and Executive Director of Human
Resources for the Cleveland County Schools. Defendants removed the case to this Court on
April 15, 2020, based on federal question jurisdiction, under 28 U.S.C. § 1331.

The Court first notes that Plaintiff’s Amended Complaint is 46 pages long—hardly a
“short and plain statement” showing that Plaintiff is entitled to relief, as required by Rule 8(a)(2)
of the Federal Rules of Civil Procedure. See (Doc. No. 1-4). Thus, the Court will not attempt to
recite all of Plaintiff’s factual allegations here and, instead, incorporates them by reference. The
highlights of Plaintiff’s factual allegations are as follows:
Plaintiff’s allegations regarding her work environment began when Defendant Mark
Patrick started as principal of North Shelby High School in August of 2017, the beginning of the
2017-18 school year. Plaintiff had recently returned to the school after “gastric sleeve” surgery
and began to have “matters of conflict” with Patrick. For example, Patrick allegedly made

remarks that made Plaintiff “uncomfortable,” including saying (1) regarding seat belts on
children, “you must make sure it goes directly across the nipples”; (2) that his “underwear was
‘up his ass’”; and (3) that “I have to go pee” while walking through Plaintiff’s office. Plaintiff
allegedly reported these remarks to Defendant Fisher, the Superintendent of Cleveland County
Schools. Plaintiff also states concerns with Patrick including what she perceived as his apparent
disregard for bookkeeping practices and policies and perceived favoritism.
Plaintiff also alleges Patrick engaged in “disparate, rude, and condescending treatment”
of her leave requests, including requiring her “to prepare an unofficial spreadsheet of her
absences,” delaying her requests, and sending a rude text message in response to one such
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request. Plaintiff further alleges that Patrick instructed her “to clock out before driving to a
mandatory meeting” and “to take school’s banking deposits on her own time, after clocking out
of work, on her way home.”
Plaintiff states that she first reported the above conduct and other concerns to Defendant
Wampler, Executive Director of Human Resources, beginning in November 2017. She claims

she made additional reports to Wampler in a meeting on February 26, 2018. At the end of the
2017-18 school year, Plaintiff received a “negative [performance] evaluation.” One of the areas
on which she needed “improvement,” according to the evaluation, was her “attendance.”
Plaintiff’s performance evaluation, dated July 19, 2018, placed Plaintiff on “conditional”
evaluation with an overall rating of “Need Improvement.” According to Plaintiff, this was this
first negative performance she had received in her years working for the Cleveland County
schools.
Plaintiff had various personal issues during the 2017-18 school year for which she took
leave or was otherwise absent from work. For example, in February of 2018, Plaintiff used leave

under the Family Medical Leave Act (the “FMLA”) to take care of her sick mother. The next
month, Plaintiff missed additional time because of “severe arm pain.” Plaintiff learned she was
pregnant in April and by May a doctor had “written [Ms.] McKinney out of work.” On May 21,
2018, Plaintiff applied for FMLA leave for her pregnancy, which was high-risk, and “[h]er
FMLA request was granted.” Plaintiff exhausted her FMLA leave on July 2, 2018. In total,
Plaintiff missed 38.3 workdays not covered by the above FMLA requests during the 2017-18
school year according to her July performance evaluation.
Plaintiff asked Wampler about taking additional leave in September 2018. Wampler
explained to Plaintiff that she was not eligible for additional FMLA leave at that time because
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she had not worked 1,250 hours in the 12 months before her request. Nevertheless, as a
courtesy, Wampler granted Plaintiff approximately 12 additional weeks of unpaid leave. When
this leave was close to expiring, in November, Plaintiff requested that Wampler extend her
courtesy leave for an additional four to six weeks. Ms. Wampler “stated she could not approve
that” request and warned Plaintiff that she could be subject to dismissal due to the Board’s

“excessive absence policy.”
Plaintiff nevertheless made a request by letter to the Board on November 15 to extend her
courtesy leave to January 2, 2019, past her scheduled November 16 delivery date and back
surgery on December 14. On November 20, 2018, Wampler wrote a memorandum to the Board
enclosing Plaintiff’s leave request. The memorandum provided the Board with background
about Plaintiff’s leave request, including Plaintiff’s history of excessive absences. The Board
rejected Plaintiff’s request in closed session on November 26 and then voted to terminate
Plaintiff on December 14. Plaintiff recites three alleged instances of the Board approving
extensions of leave to other employees. First, “a male principal was given an extension because

his wife was having a difficult pregnancy.” Second, “a transportation employee was given leave
shortly after being hired.” Third, an employee “was given an extension to start a new business.”
Plaintiff also alleges “[s]everal other employees were granted leave for medical reasons.”
Plaintiff’s Amended Complaint brings the following ten “causes of actions” (“Counts”)
under state and federal law, alleging: (1) wrongful discharge against the Board under North
Carolina law; (2) intentional infliction of emotional distress against the Board and Patrick in his
official and individual capacities; (3) negligent infliction of emotional distress against the Board
and Patrick in his official and individual capacities; (4) violations of the North Carolina Wage
and Hour Act against the Board; (5) unlawful retaliation against the Board under three North
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Carolina statutes—N.C. GEN. STAT. § 115C-335.5, N.C. GEN. STAT. § 168A-10; and N.C. GEN.
STAT. § 126-85; (6) pregnancy discrimination and hostile work environment claims against the
Board under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., (“Title VII”); (7)
discrimination and failure to provide reasonable accommodations claims against the Board under
the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; (8) claims against the

Board under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.; (9) various federal
statutory and U.S. Constitutional claims against all Defendants under 42 U.S.C. § 1983; and (10)
punitive damages for any claim that authorizes such damages against all Defendants.
On March 21, 2018 Plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEPC”) related to her termination. (Doc. No. 1-4 at p. 49). She alleged
discrimination based on “sex” and “disability,” and she stated as follows:
I began employment with the above employer in August 2003. In April 2018, I
learned that I was pregnant with a high-risk pregnancy. During my pregnancy, I
experienced severe pain, which required two surgeries and developed into a
disability, however, I was able to undergo the surgeries because I was pregnant.
I was out of work from May 2018 to July 2018 on approved leave due to the
pain caused by my pregnancy. I was written out of work again in September
2018 due to the recurring pain and not being able to get treated. I gave birth on
November 16, 2018, and I was expected to return to work after delivery and
recovery on or about January 8, 2019. On December 14, 2018, I was discharged
for alleged absences while I was on maternity leave. I was on approved leave
through all times which I was out of work throughout my pregnancy.

I believe that I have been discriminated against and denied a reasonable
accommodation in violation of the Americans with Disabilities Act of 1990, as
amended. I also believe I have been discriminated against due to my pregnancy
in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Id.). The EEOC issued a “determination letter” on September 5, 2019, noting that Plaintiff
alleged that Defendant denied her a reasonable accommodation and terminated her employment
in violation of Title VII and the ADA, finding in part that the evidence supported Plaintiff’s
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allegations that Defendant terminated Plaintiff’s employment without making an individualized
assessment regarding the hardships associated with extending Plaintiff’s leave, and “invit[ing]
the parties to join with it in reaching a resolution to this matter.” The parties could not reach a
resolution, however, and Plaintiff brought this suit. Defendants thereafter filed the pending
motions to dismiss. This matter is ripe for resolution.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for
failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule
12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a
claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), cert. denied, 510
U.S. 828 (1993). Thus, the Rule 12(b)(6) inquiry is limited to determining if the allegations
constitute “a short and plain statement of the claim showing the pleader is entitled to relief”
pursuant to Federal Rule of Civil Procedure 8(a)(2). To survive a defendant’s motion to dismiss,
factual allegations in the complaint must be sufficient to “raise a right to relief above a

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a complaint
will survive if it contains “enough facts 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).
For the purposes of a Rule 12(b)(6) analysis, 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. (quoting Twombly, 550 U.S. at 556). The
Court must draw all reasonable factual inferences in favor of the plaintiff. Priority Auto Grp.,
Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014). In a Rule 12(b)(6) analysis, the Court
must separate facts from legal conclusions, as mere conclusions are not entitled to a presumption
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of truth. Iqbal, 556 U.S. at 678. Importantly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. However, well-pleaded
factual allegations are entitled to a presumption of truth, and the court should determine whether
the allegations plausibly give rise to an entitlement to relief. Id. at 679.
III. DISCUSSION

A. Official Capacity Claims Against the Individual Defendants
First, Plaintiff’s official capacity claims against the individual Defendants are dismissed
as redundant of Plaintiff’s claims against the Board because “[s]uing a governmental employee
in his ‘official’ capacity is simply another way of pleading an action against the governmental
entity.” Davis v. Durham Mental Health Developmental Disabilities Substance Abuse Area
Auth., 320 F. Supp. 2d 378, 399 (M.D.N.C. 2004) (dismissing official capacity claims against
individual defendants where the governmental entity was also sued); see also Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985).
B. Plaintiff’s Discrimination Claims Under Title VII, the ADA and State Law in

Counts 1, 6, 7, and 8
Defendants contend that Plaintiff’s discrimination claims under Title VII (pregnancy
discrimination and hostile work environment), the ADA (discrimination and failure to
accommodate), and the FMLA (interference and retaliation), and her state law wrongful
discharge claim, should all be dismissed under Rule 12(b)(6) because her conclusory allegations
of discrimination are insufficient to survive a motion to dismiss and the Amended Complaint and
accompanying exhibits themselves demonstrate that Plaintiff was not discriminated against.
Taking Plaintiff’s allegations as true and are construing them in the light most favorable to her,

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the Court will deny the motion to dismiss as to Plaintiff’s Title VII, ADA, and FLMA claims.1
As to Plaintiff’s hostile work environment claim under Title VII, however, this claim will be
dismissed. Plaintiff failed to exhaust administrative remedies in Title VII for her hostile work
environment claim because (1) it states a type of claim not previously included in her EEOC
charge and (2) none of the facts alleged in support of Plaintiff’s hostile work environment claim

are included in the EEOC charge. For this reason, Plaintiff’s hostile work environment claim is
dismissed.2
Next, as to Plaintiff’s claim against the Board for wrongful discharge in violation of the
public policy of North Carolina, the Court finds that the Board enjoys governmental immunity
from this claim, and the Board has not waived its immunity. Thus, the wrongful discharge claim

1 To the extent Plaintiff purports to impose any liability on the individual Defendants as to the
Title VII and ADA claims, it is well settled that there can be no individual liability under these
statutes—the action is against the employer only. See Lissau v. Southern Food Serv., Inc., 159
F.3d 177, 180 (4th Cir. 1998) (no individual liability under Title VII); J.W. v. Johnston Cty. Bd.
of Educ., No. 5:11-CV-707-D, 2012 WL 4425439, at *6 (E.D.N.C. Sept. 24, 2012) (collecting
cases holding that the ADA does not impose individual liability). The Court further notes that,
although the Court agrees with Defendants that the FMLA claim for retaliation and interference
teases plausibility, the Court will nevertheless allow Plaintiff to explore these claims through
discovery, given the extremely lenient pleading standards of Iqbal and Twombly.
2 Even if Plaintiff had exhausted administrative remedies with respect to this claim, the
Amended Complaint’s allegations do not state a cognizable Title VII claim based on hostile
work environment. To state a hostile work environment claim under Title VII, a plaintiff must
alleged that (1) she experienced unwelcome harassment; (2) the harassment was based on a
protected characteristic; (3) the harassment was sufficiently severe or pervasive to alter the
conditions of her employment and to create an abusive atmosphere; and (4) there is some basis
for imposing liability on the employer. See Baqir v. Principi, 434 F.3d 733, 745–46 (4th Cir.
2006). Plaintiff’s claim falls short on the third element. Here, Plaintiff has alleged several
instances of off-color remarks and a few work-related injustices that have nothing to do with
plaintiff’s sex (including logging her leave and clocking out of work). These allegations are not
enough to state a cognizable claim for a hostile work environment claim under Title VII. See
e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (stating that “simple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment”).

8
against the Board is dismissed.
C. Plaintiff’s Claims for Intentional and Negligent Infliction of Emotional
Distress in Counts 2 and 3
Under North Carolina law, the elements of intentional infliction of emotional distress are
“(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe

emotional distress.” Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488 (1986)). “It is a
question of law for the court to determine, from the materials before it, whether the conduct
complained of may reasonably be found to be sufficiently outrageous as to permit recovery.” Id.
at 490. “Where a plaintiff's complaint fails to allege facts sufficient to set forth extreme and
outrageous conduct, the IIED claim is subject to dismissal pursuant to Rule 12(b)(6).” Bonham
v. Wolf Creek Acad., 767 F. Supp. 2d 558, 572 (W.D.N.C. 2011) (citing Johnson v. Bollinger,
86 N.C. App. 1, 6 (1987). Extreme and outrageous conduct is “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Hogan, 79 N.C. App. at 491

(conduct was found to be extreme and outrageous when the defendant threatened the plaintiff
with bodily injury and advanced on her with a knife after she refused his sexual advances).
North Carolina “has set a high threshold for a finding that conduct meets [this] standard.”
Dobson v. Harris, 134 N.C. App. 573, 578 (1999), rev’d in part on other grounds, 352 N.C. 77
(2000). This standard “excludes a great deal of conduct that is undoubtedly very bad and is
properly considered reprehensible.” Walker v. Sullair Corp., Nos. 90–2124, 1991 WL 195754,
at *3 (4th Cir. Oct. 3, 1991). “[P]laintiffs must necessarily be expected and required to be
hardened to a certain amount of rough language, and to occasional acts that are definitely
inconsiderate and unkind.” Bonham, 767 F. Supp. 2d at 572 (quoting Briggs v. Rosenthal, 73
9
N.C. App. 672, 677 (1985)). Moreover, extreme and outrageous conduct involves serious
actions, not mere words. See Guthrie v. Conroy, 152 N.C. App. 15, 23 (2002) (conduct was
found to be extreme and outrageous when there was an unfair power relation between the
defendant and plaintiff; and the defendant used explicit language towards the plaintiff, made
sexual advances towards the plaintiff, made statements expressing desire to engage in sexual

relations with the plaintiff, touched the plaintiff’s genitals and touched the plaintiff with his
genitals).
“[T]o state a claim for negligent infliction of emotional distress, a plaintiff must allege
that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such
conduct would cause the plaintiff severe emotional distress (often referred to as “mental
anguish”), and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson
v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304 (1990).
Plaintiff fails to state a claim for negligent infliction of emotional distress or intentional
infliction of emotional distress against Defendants, and these claims will therefore be dismissed.3

First, as to Plaintiff’s claim for intentional infliction of emotional distress, Plaintiff has failed to
plead intent to harm by any of the named Defendants, and Defendants’ alleged conduct simply
does not rise to the level of extreme and outrageous as a matter of law. Next, as to the claim for
negligent infliction of emotional distress, the North Carolina Workers’ Compensation Act bars
negligence actions against co-employees. Trivette v. Yount, 366 N.C. 303, 309 (2012). Plaintiff
also failed to allege any facts supporting her conclusory allegation that she suffered severe

3 Plaintiff does not address most of Defendants’ arguments supporting the motion to dismiss her
IIED and NIED claims in her response; she has, therefore, waived them. McLean v. Leonard,
No. 5:14-CV-718-FL, 2015 WL 5725818, at *6 (E.D.N.C. Sept. 30, 2015) (“Plaintiff conceded
these arguments by failing to address them in response to defendants’ motion to dismiss.”).
10
emotional distress. Causation and severe emotional distress are required elements of infliction of
emotional distress causes of action. Buckner v. Gen. Signal Tech. Corp., 163 F. Supp. 2d 617,
627–28 (W.D.N.C. 2000).
In sum, for the reasons stated herein, the Court will dismiss Plaintiff’s claims for
intentional and negligence infliction of emotional distress against all of the named Defendants.

D. Plaintiff’s Claims under the North Carolina Wage and Hour Act in Count 4
Count Four of the Amended Complaint alleges two violations under the North Carolina
Wage and Hour Act (“NCWHA”): (1) for the lack of payment to plaintiff as a separated
employee and (2) for violation of the minimum wage provision. Neither claim is cognizable
because the Court lacks jurisdiction over the Board for the separated employee claim and
Plaintiff fails to state a minimum wage claim upon which relief could be granted.
First, Plaintiff alleges the Board violated NCWHA’s provision in N.C. Gen. Stat. § 95-
25.7 by not providing full payment to her as a separated employee. The NCWHA does not
generally apply to Boards of Education except for specified provisions listed in N.C. GEN. STAT.

§ 95-25.14(d). Section 95-25.7 is not one of the provisions that applies to the Board, thus,
Plaintiff’s claim under this section must be dismissed for lack of subject matter jurisdiction. See
N.C. GEN. STAT. § 95-14(d) (exempting units of government from provisions of the Act).
Plaintiff brings a second claim under the NCWHA for violation of the minimum wage in
N.C. GEN. STAT. § 95.3 because she was not compensated “for time when she was required to
perform ‘off-the-clock’ in travelling to required meetings and making bank deposits.” (Doc. No.
1-4 at ¶ 22, pg. 26). Plaintiff fails to state a minimum wage claim because her travel time is not
compensable under the NCWHA as a matter of law. North Carolina interprets the NCWHA in
accordance with federal law, including the federal Portal to Portal Act. See Whitehead v.
11
Sparrow Enter., Inc., 167 N.C. App. 178, 189 (2004) (applying the Portal to Portal Act to a claim
under the NCWHA). The Portal to Portal Act states that employers need not compensate their
employees for (1) “walking, riding, or traveling to and from the actual place of performance of
the principal activity or activities which such employee is employed to perform” or (2) “activities
which are preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. §

254(a). In other words, employers are only required to compensate employees for travel time if
travel is part of the “principal activity of the employee.” Whitehead, 167 N.C. App. at 189.
Here, Plaintiff makes no allegation that her purported uncompensated travel was part of
Plaintiff’s “principal activity” as a bookkeeper. Thus, Plaintiff’s minimum wage claim under the
NCWHA fails as a matter of law. Id.
Further, even if Plaintiff has alleged a minimum wage claim under the NCWHA, such a
claim is time-barred. Claims under the NCWHA have a limitations period of two years, N.C.
GEN. STAT. § 95–25.22(f), that begins running as soon as a “promise is broken” and the “injured
party is at liberty to sue.” Kornegay v. Aspen Asset Grp., LLC, 204 N.C. App. 213, 233–34

(2010) (internal quotations removed). It is unclear exactly when Plaintiff first traveled to a
meeting or the bank after clocking-out, as alleged in paragraph 22 of the Amended Complaint. It
appears, however, that those events occurred before February 22, 2018. On that date, according
to paragraph 23 of the Amended Complaint, Plaintiff sent an email to Mr. Patrick “expressing
her frustrations” with him and shared that email with Ms. Wampler. Presumably those
frustrations included all events in the preceding paragraphs. That means the first instance of
Plaintiff allegedly being unpaid for travel occurred more than two years before the filing on this
action; thus, her minimum wage claim under the NCWHA is time-barred and is dismissed for
this additional reason. See N.C. GEN. STAT. § 95–25.22(f).
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E. Plaintiff’s State Law Retaliation Claims in Count 5
Next, as to Plaintiff’s state law retaliation claims in Count 5, these claims will be
dismissed for the following reasons.
First, N.C. GEN. STAT. § 115C-335.5 does not provide a private right of action, and
Plaintiff has not challenged this in her response to the motion to dismiss.

Next, this Court does not have subject matter jurisdiction over Plaintiff’s retaliation claim
under N.C. GEN. STAT. § 168A-10. Section 168A-10 is a provision under the North Carolina
Persons with Disabilities Protection Act (“NCPDPA”). There is no jurisdiction over a claim
under the NCPDPA when, as here, a plaintiff also begins federal proceedings under the ADA.
See N.C. GEN. STAT. § 168A-11(c) (“No court shall have jurisdiction over an action filed under
this Chapter where the plaintiff has commenced federal judicial or administrative proceedings
under… the Americans with Disabilities Act of 1990 . . . involving or arising out of the facts and
circumstances involved in the alleged discriminatory practice under this Chapter.”); see also
Bowling v. Margaret R. Pardee Mem’l Hosp., 179 N.C. App. 815, 820–21 (2006) (“The clear

meaning of the language of N.C. Gen. Stat. § 168A–11(c) does not allow a plaintiff to file
simultaneous federal and state claims, then see which one has a better chance of being
successful.”). To the extent Plaintiff’s claims of unlawful retaliation here are slightly different
than the claims in Counts 6 and 7 of the Amended Complaint, Plaintiff is also time-barred from
bringing this claim under the NCPDPA because she was terminated on December 14, 2018—
more than 180 days from the date the original Complaint was filed in state court on March 17,
2020. See N.C. GEN. STAT. § 168A-12 (providing for a 180-days statute of limitations for any
employment discrimination claim under the NCPDPA); Shea v. Vill. Green Care Ctr., Ltd., No.
5:97cv343-BR3, 1998 WL 960307, at *2 (E.D.N.C. Aug. 31, 1998) (applying this statute of
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limitation to dismiss retaliation claim).
Finally, as to N.C. GEN. STAT. § 126-85, this section does not apply to Plaintiff because
public school employees are not covered by the state Human Resources Act. N.C. GEN. STAT. §
126-5(c2) (“The provisions of this Chapter shall not apply to. . . public school employees.”). In
any event, this claim has a one-year statute of limitations. N.C. GEN. STAT. § 126-86. Plaintiff

filed this action more than year after she was terminated on December 14, 2018.
F. Plaintiff’s “Section 1983” Claims in Count 9
Next, as to Plaintiff’s purported “Section 1983” claims based on violations of various
rights under various federal laws and the U.S. Constitution, Section 1983 of Title 42 of the
United States Code imposes liability on persons who, under color of state law, deprive a person
“of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. §
1983. With respect to section 1983 claims, the Supreme Court has recognized that “[s]ection
1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating
federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “A section 1983 action ... is not predicated
on the legality or illegality of an act under state law, but on whether that act deprives an
individual of ‘rights, privileges, or immunities secured by the federal Constitution and laws.’”
Clipper v. Takoma Park, Md., 876 F.2d 17, 19 (4th Cir. 1989) (quoting 42 U.S.C. § 1983).
The Court first finds that Plaintiff may not maintain a claim against any of the named
Defendants under Section 1983 for violations of Title VII, the Lilly Ledbetter Act, the Pregnancy
Discrimination Act, the ADA, or the FMLA. See Williams v. Pa. Human Relations Comm’n,
870 F.3d 294, 297–300 (3d Cir. 2017) (“We . . . in line with every circuit to address this issue,
hold that plaintiffs may not seek damages under § 1983 for stand-alone violations of either Title
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VII or the ADA.”); Randle v. Historic Columbia Found., No. 3:05-2581-CMC-JRM, 2006 WL
2037488, at *4 (D.S.C. July 18, 2006) (dismissing plaintiff’s Section 1985(3) claim seeking to
redress violations of Title VII and ADEA because those statutes provided comprehensive
remedies); see also Zombro v. Baltimore City Police Dep’t, 868 F.2d 1364, 1368 (4th Cir. 1989)
(concluding the ADEA’s comprehensive scheme barred § 1983 claim); Jones v. Richland Cty.,

No. CV 3:16-0466-MBS-KDW, 2016 WL 5402862, at *2 (D.S.C. Sept. 28, 2016) (“[T]he Lilly
Ledbetter Act does not provide a substantive cause of action, but simply amends Title VII.”);
Bray v. Town of Wake Forest, No. 5:14-CV-276-FL, 2015 WL 1534515, at *5 (E.D.N.C. Apr. 6,
2015) (“[C]ourts analyze a PDA claim as a sex discrimination claim under Title VII.”); McDavid
v. Arthur, 437 F. Supp. 2d 425, 430 (D. Md. 2006) (“[T]o allow an ADA plaintiff to bring a
claim based on the same conduct under § 1983 is counter to Congress's intent, because it
effectively allows a plaintiff two bites at the apple.”); Anderson v. Sch. Bd. of Gloucester Cty.,
Va., No. 3:18CV745, 2020 WL 2832475, at **21–22, 31 (E.D. Va. May 29, 2020) (finding that
the plaintiff could not pursue ADA and FMLA claims through Section 1983); Henderson v.

Gilbert, No. 06cv1284, 2006 WL 1966797, at *1 (D. Md. July 10, 2006) (“A plaintiff may not
state a claim under 42 U.S.C. §§ 1983 and 1985(3) for rights created by the ADA”); Jolliffe v.
Mitchell, 971 F. Supp. 1039, 1045 (W.D. Va. 1997) (“[T]he FMLA provides a comprehensive
enforcement scheme which forecloses a § 1983 claim.”). Plaintiff has also failed to state a
cognizable federal constitutional claim under § 1983 against any of the named Defendants.
Thus, to the extent that Plaintiff purports to bring a First Amendment, Equal Protection or other
claim against any of the named Defendants, those claims are dismissed as well.
G. Plaintiff’s Claim for Punitive Damages in Count 10
Plaintiff’s punitive damages claim in Count 10 is not available against any of the named
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Defendants because Plaintiff has not alleged a cognizable violation of any statute that authorizes
such damages.* Furthermore, as to the Defendant Board, the Board is immune from punitive
damages claims for two reasons: First, as a matter of law, a punitive damages claim cannot be
brought against the Board. See, e.g., Doe v. Cty. of Centre, PA, 242 F.3d 437, 457-58 (3rd Cir.
2001); Liner v. Hospital Serv. Dist. No. 1 of Jefferson Parish, 230 Fed. Appx. 361, 365 (Sth Cir.
2007); Teasdell v. Baltimore Cty. Bd. of Educ., No. WDQ-13-0107, 2013 WL 4804736, at *6
(D. Md. Sept. 6, 2013). Second, even if available against the Board, Plaintiffs punitive damages
claims would be excluded by the North Carolina School Boards Trust (“NCSBT”) Coverage
Agreement. See (Doc. No. 13-1 at p. 11: Ex. A to Coons Aff., Exclusion 21 (stating that
coverage does not apply to double, treble, punitive damages, or liquidated damages)). Finally, as
to the individual Defendants, Plaintiff has not alleged that any of the individual Defendants
committed any actions with fraud, malice, or willful or wanton conduct. For all these reasons,
the Court will dismiss Plaintiffs punitive damages claim.
IV. CONCLUSION
Defendants’ motion to dismiss are denied in part and granted in part for the reasons stated
herein.
IT IS, THEREFORE, ORDERED that:
1. Defendants’ Motions to Dismiss (Doc. Nos. 11, 13), are DENIED in part and
GRANTED in part in accordance with this Order.
Signed: November 19, 2020

i )
ager
Max O. Cogburn i yg
United States District Judge Hag Me of

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10256470. Public record. Not legal advice.