The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-cv-00045-RJC-DCK
CYNTHIA JOHNSON, )
)
Plaintiff, )
)
v. )
) Order
CHARLOTTE-MECKLENBURG BOARD )
OF EDUCATION and CATHY BEAM, )
)
Defendants. )
)
THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss (Doc. No.
3), the Magistrate Judge’s Memorandum and Recommendation (“M&R”) (Doc. No. 8), the
Objection to the M&R filed by Defendant Charlotte-Mecklenburg Board of Education (Doc. No.
9), and the Plaintiff’s Response to that Objection (Doc. No. 10). The Court has also reviewed all
the filings related to the Motion and the M&R. For the reasons below, the M&R is ADOPTED in
part, and the Defendants’ Motion to Dismiss is GRANTED in part and DENIED in part.
I. BACKGROUND
Cynthia Johnson claims that the Charlotte-Mecklenburg Board of Education fired her
because of her sex and race1 and because she filed a workers’ compensation claim. She previously
worked for the Board as an area supervisor of school nutrition, Am. Compl. ¶ 14, Doc. No. 1-1 at
238, earning positive performance evaluations throughout her tenure, Am. Compl. ¶ 18, Doc. No.
1-1 at 238. After she hit her head on a vehicle owned by Charlotte-Mecklenburg Schools, she
sought medical treatment and applied for workers’ compensation. Am. Compl. ¶¶ 28, 30–31, Doc.
1 Johnson is an African-American female. Am. Compl. ¶ 1, Doc. No. 1-1 at 234.
No. 1-1 at 240. Nearly six months later, Johnson’s manager, Cathy Beam, began to review the
applications for free and reduced lunch that had been filed for students at Mallard Creek
Elementary School, where Johnson’s daughter went to school. Am. Compl. ¶¶ 26, 28, 33, Doc.
No. 1-1 at 239.
During Beam’s review, she discovered that Johnson’s two children were on a list of
students receiving lunch for free or at a reduced price. Am. Compl. ¶¶ 33, 35–36, Doc. No. 1-1 at
240–41. Following that discovery, the Board found six applications for free or reduced lunch that
had been filed for Johnson’s children. Am. Compl. ¶ 41, Doc. No. 1-1 at 242. Those applications
covered a span of seven years. Am. Compl. ¶ 41, Doc. No. 1-1 at 242. But Johnson’s family was
not qualified to eat lunch for free or at a reduced price, and the applications misstated the family’s
household income. Am. Compl. ¶ 2, Doc. No. 1-1 at 235–36; see also Am. Compl. ¶¶ 100, 105–
06, Doc. No. 1-1 at 252, 254. Johnson insisted that she never completed the applications and had
no idea who did. Am. Compl. ¶ 35, Doc. No. 1-1 at 240–41. Her husband likewise denied any
involvement. Am. Compl. ¶ 47, Doc. No. 1-1 at 243. Nevertheless, the Board concluded that
Johnson’s husband filed the applications, Am. Compl. ¶ 54, Doc. No. 1-1 at 243, so it fired
Johnson, who was an at-will employee, Am. Compl. ¶ 57, Doc. No. 1-1 at 244. Johnson appealed
the decision and received a hearing, but her firing was affirmed. Am. Compl. ¶ 78, Doc. No. 1-1
at 248. She was also given a dismissal hearing. Am. Compl. ¶ 78, Doc. No. 1-1 at 248.
Johnson believes that the Board used pretexts to cover up its real reasons for firing her. She
alleges that she was really fired in retaliation for her workers’ compensation claim. Am. Compl.
¶ 70, Doc. No. 1-1 at 246. She also contends that she was fired because of her race and sex. Am.
Compl. ¶¶ 68, 70, 85, Doc. No. 1-1 at 246, 249. Based on her retaliation claim, she filed a
complaint with the North Carolina Department of Labor and received a right-to-sue letter. Am.
Compl. ¶ 79, Doc. No. 1-1 at 248; see generally N.C. Gen. Stat. § 95-242(a)–(b) (allowing an
employee to obtain a right-to-sue letter after filing a retaliation complaint with the Commissioner
of Labor). She then filed her Amended Complaint against Beam and the Board in the North
Carolina Superior Court, seeking damages, injunctive relief, and declaratory relief for the
Defendants’ alleged violations of state and federal law. Am. Compl. at 1, Doc. No. 1-1 at 234. The
Board removed the case to federal court, stating that the Court has federal-question jurisdiction
over Johnson’s federal claims and supplemental jurisdiction over her state-law claims. Notice of
Removal 2, Doc. No. 1; see 28 U.S.C. §§ 1331, 1367.
Johnson asserts six claims. Am. Compl. ¶¶ 80–157, Doc. No. 1-1 at 248–63. One alleges
that she was wrongfully discharged in violation of the public policies expressed in the North
Carolina Equal Employment Practices Act (“NCEEPA”), the North Carolina Retaliatory
Employment Discrimination Act (“REDA”), and N.C. Gen. Stat. § 52-12. Am. Compl. ¶¶ 88–122,
Doc. No. 1-1 at 250–56. Johnson also claims that she was deprived of the “fruits of [her] own
labor” in violation of the North Carolina Constitution. N.C. Const. art. I, § 1; Am. Compl. ¶¶ 80–
87, Doc. No. 1-1 at 248–50.2 She asserts a standalone REDA claim, Am. Compl. ¶¶ 123–32, Doc.
No. 1-1 at 257–59, as well as a claim for tortious interference with contractual rights under North
Carolina law, Am. Compl. ¶¶ 133–44, Doc. No. 1-1 at 259–60. Finally, invoking federal law,
Johnson asserts a race-discrimination claim under 42 U.S.C. § 1981 and a constitutional equal-
protection claim under 42 U.S.C. § 1983. Am. Compl. ¶¶ 142–57, Doc. No. 1-1 at 261–63.
Not every claim is asserted against both defendants. The tortious-interference claim is
2 The Complaint alleges that Johnson was wrongfully discharged in violation of North Carolina
public policy as it is expressed in the fruit-of-one’s-labor clause. Am. Compl. ¶ 86, Doc. No. 1-1
at 249. But Johnson need not couch her claim as a violation of public policy. The Supreme Court
of North Carolina has recognized that public employees may assert a direct cause of action under
the fruit-of-one’s-labor clause. Tully v. City of Wilmington, 810 S.E.2d 208, 213 (N.C. 2018).
asserted against Beam alone, Am. Compl. at 26, Doc. No. 1-1 at 259, while the REDA claim and
the § 1983 claim are asserted against both Beam and the Board, Am. Compl. at 24, Doc. No. 1-1
at 257 (REDA claim); Am. Compl. ¶¶ 145, 150, Doc. No. 1-1 at 261, 262 (§ 1983 claim). The
other claims are asserted against only the Board. Am. Compl. at 15, 17, Doc. No. 1-1 at 248, 250
(fruit-of-one’s-labor and wrongful-discharge claims); Am. Compl. ¶ 154, Doc. No. 1-1 at 262
(§ 1981 claim).
The Defendants moved to dismiss Johnson’s claims under Federal Rules of Civil Procedure
12(b)(1), 12(b)(2), and 12(b)(6). Doc. No. 3. After Johnson filed her Response, Doc. No. 4, and
the Defendants submitted their Reply, Doc. No. 7, the Magistrate Judge issued the M&R, Doc.
No. 8.
The M&R states that most of Johnson’s claims should be dismissed. But it concludes that
she successfully pleaded a fruit-of-one’s-labor claim against the Board, an REDA claim against
the Board, and a § 1983 claim against the Board and against Beam in her individual capacity.
M&R 36, Doc. No. 8. However, it states that all of Johnson’s other claims should be dismissed.
M&R 36, Doc. No. 8.
II. STANDARD OF REVIEW
A district court may assign dispositive pretrial matters, including motions to dismiss, to a
magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(A),
(B). The Federal Magistrate Act provides that a district court “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). However, “when
objections to strictly legal issues are raised and no factual issues are challenged, de novo review
of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). De
novo review is also not required “when a party makes general and conclusory objections that do
not direct the court to a specific error in the magistrate’s proposed findings and recommendations.”
Id. Similarly, when no objection is filed, “a district court need not conduct a de novo review, but
instead must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72, advisory committee note).
III. DISCUSSION
Neither Johnson nor Beam objects to the M&R. The Board objects, but only to the M&R’s
conclusion that Johnson successfully pleaded a fruit-of-one’s-labor claim. Obj. to M&R 1–2, Doc.
No. 9. So just one issue remains for de novo review: whether Johnson successfully pleaded a fruit-
of-one’s-labor claim.3 As explained below, she did not.
The North Carolina Constitution recognizes that “all persons” have been “endowed by their
Creator with certain inalienable rights.” N.C. Const. art. I, § 1. One of those rights is “the
enjoyment of the fruits of [one’s] own labor.” Id. The fruit-of-one’s-labor clause gives public
employees a direct cause of action against their governmental employers. Tully v. City of
Wilmington, 810 S.E.2d 208, 213 (N.C. 2018). To succeed on a fruit-of-one’s-labor claim, a public
employee must satisfy four elements. First, the employee must show that “no other state law
remedy is available.” Id. at 216. Second, she must identify “an internal employment policy that
was ‘clear [and] established’” and that “furthered a legitimate governmental interest.” Mole’ v.
City of Durham, 866 S.E.2d 773, 780 (N.C. Ct. App. 2021) (quoting Tully, 810 S.E.2d at 216)
3 Because this issue is the only one raised by the Board’s Objection, it is the only issue subject to
de novo review. There is no “clear error” in the M&R’s analysis of the other issues. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72,
advisory committee’s note).
(alteration in original). She then must show that “the employer violated th[e] policy” and that she
“was injured as a result of that violation.” Tully, 810 S.E.2d at 216.
Johnson’s Complaint fails to satisfy the first element. It does not allege a lack of state-law
remedies. On the contrary, it contends that Johnson is entitled to relief under state law because the
Board violated REDA, Am. Compl. ¶¶ 123–32, Doc. No. 1-1 at 257–59, and wrongfully
discharged Johnson in violation of North Carolina public policy as it is expressed in multiple state
laws: the NCEEPA, REDA, and N.C. Gen. Stat. § 52-12, Am. Compl. ¶¶ 88–122, Doc. No. 1-1 at
250–56. Cf. Mole’, 866 S.E.2d at 779 n.4 (“The complaint asserts . . . that [the plaintiff] has no
other remedy in state law.”).
Johnson also fails to “allege the existence and violation of an internal employment policy
that was ‘clear [and] established.’” Id. at 780 (quoting Tully, 810 S.E.2d at 216) (alteration in
original). The Complaint does not identify a specific internal employment policy that the Board
allegedly violated. While it asserts that the Board “violated public policy and its own CMS
Standards of Conduct Policy when [it] falsely accused Mrs. Johnson [of] falsifying records,”
Compl. ¶ 56, Doc. No. 1-1 at 244, that allegation does not identify a specific internal employment
policy that is “clear and established,” Mole’, 866 S.E.2d at 780 (alteration omitted).4 Nor does it
give the Board “fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))
(alteration omitted). The Complaint refers to the Board’s alleged failure to comply with a policy
4 Cf. Tully, 810 S.E.2d at 216 (holding that the plaintiff successfully pleaded a fruit-of-one’s-labor
claim when he alleged that his employer violated specific internal employment policies that
required promotional tests to have “demonstrated content and criterion validity” and allowed
candidates for promotion to “appeal any portion of the selection process”); Mole’, 866 S.E.2d at
777, 780 (holding that the plaintiff successfully pleaded a fruit-of-one’s-labor claim when he
alleged that his employer gave him only one day’s notice of his pre-disciplinary hearing in
violation of its “written policy requiring advance notice of at least three days”).
requiring it to give Johnson written notice of her children’s acceptance into the lunch program,
Compl. ¶¶ 49–51, Doc. No. 1-1 at 243, but that policy has nothing to do with Johnson’s
employment, so it cannot form the basis of her fruit-of-one’s-labor claim. See Mole’, 866 S.E.2d
at 780 (“The first eight policy violations alleged above put Sergeant Mole’ into an untenable
position, but they do not state a claim under Tully. Tully protects public employees from
unreasonable violations of employment policies, not field operating or training procedures that do
not bear upon internal processes governing the employer-employee relationship.”).
Johnson’s Response mentions some policies that the Board allegedly violated. See, e.g.,
Resp. to Def.’s Obj. 4, Doc. No. 10 (“[The] Board created a clear policy and rule when [it] allowed
Mr. Soares to present evidence and demonstrate that he had no[t] signed the program application
whereas Plaintiff was not afforded that opportunity.”); id. at 5 (“[The] Board failed to provide
Plaintiff with an opportunity to present evidence that she had not submitted the free/reduced lunch
applications. Defendant Board had a policy to allow the accused employee to provide such
evidence before making a disciplinary decision.”). But the Complaint does not mention those
policies, and “parties cannot amend their complaints through briefing.” S. Walk at Broadlands
Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013).
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. The M&R (Doc. No. 8) is ADOPTED in part. Specifically, the M&R is NOT
ADOPTED as to Johnson’s fruit-of-one’s-labor claim. It is otherwise ADOPTED.
2. The Defendants’ Motion to Dismiss (Doc. No. 3) is GRANTED in part and
DENIED in part. Specifically, the Motion is GRANTED as to Johnson’s § 1981
claim against the Board, fruit-of-one’s-labor claim against the Board, claim for
wrongful discharge in violation of public policy against the Board, claim for
tortious interference with contractual rights against Beam, REDA claim against
Beam, and § 1983 claim against Beam in her official capacity. The Motion is
otherwise DENIED.
September 26, 2022
Robert J. Conrad, Jr. eed,
United States District Judge “ae