Bailey v. Town of Beaufort

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

NO. 4:19-CV-60-FL

MEREDITH BAILEY, )

)

Plaintiff, )

)

v. )

) ORDER

TOWN OF BEAUFORT, CHRISTI WOOD, )

in her official capacity, and MARK EAKES, )

in his official and individual capacity, )

)

Defendants. )

This matter is before the court upon defendants’ partial motions to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be

granted. (DE 29, 56). The motions have been briefed fully, and the issues raised are ripe for

ruling. For the following reasons, the motions are granted in part and denied in part as set forth

herein.

STATEMENT OF THE CASE

Plaintiff initiated this action March 18, 2019, by filing complaint in Carteret County

Superior Court, asserting the following claims: 1) discrimination and retaliation on the basis of

sex, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et

seq. against defendant Town of Beaufort (“Town”), 2) wrongful discharge in violation of North

Carolina public policy against defendant Town, 3) intentional infliction of emotional distress

(“IIED”) against defendant Mark Eakes (“Eakes”) in his individual capacity, 4) violation of her

Fourteenth Amendment rights under 42 U.S.C. § 1983 against defendant Eakes in his individual

capacity, 5) violation of N.C. Gen. Stat. § 160A-168 against defendant Town, and 6) violation of

her rights under the North Carolina Constitution against defendant Eakes and defendant Christi

Wood (“Wood”) in their official capacities. Plaintiff seeks compensatory and punitive damages,

costs, attorneys’ fees, interest, as well as declaratory and injunctive relief.

Defendants removed the action to this court April 18, 2019. Thereafter, plaintiff filed the

operative amended complaint. Defendant Eakes filed the instant partial motion to dismiss July 1,

2019, asserting plaintiff’s IIED claim should be dismissed for failure to state a claim. On

September 3, 2019, defendants Eakes, Wood, and Town filed the instant motion to dismiss

asserting 1) plaintiff’s official capacity claims against defendants Eakes and Wood are duplicative

of plaintiff’s claims against defendant Town, 2) plaintiff’s claims under the North Carolina

Constitution should be dismissed because plaintiff has adequate state remedies, and 3) plaintiff

cannot recover punitive damages from defendant Town or from defendants Eakes and Wood in

their official capacities. 1 Plaintiff responded in opposition and defendants replied.

STATEMENT OF FACTS

The facts alleged in amended complaint may be summarized as follows. Defendant Town

employs defendant Eakes as Director of Public Works, defendant Wood as Director of Finance,

and Donovan Willis (“Willis”), non-party, as Director of Public Utilities. (Am. Compl. (DE 28)

¶¶ 2-5). On October 3, 2016, plaintiff began working as an administrative assistant in defendant

Town’s Public Works and Public Utilities departments, reporting directly to supervisors Willis and

defendant Eakes. Id. Prior to working for defendant Town, plaintiff had worked in secretarial

positions for ten years and had never been terminated or asked to resign in lieu of termination. Id.

1 Defendants filed a prior motion to dismiss, which was the subject of briefing and text order entered

October, 8, 2019. Defendants’ instant motion supersedes in substance defendants’ prior motion to dismiss.

Upon the start of her employment with defendant Town, defendant Eakes, plaintiff’s direct

supervisor, began acting “very flirtatious” towards plaintiff and making “suggestions of sexual

attraction.” (Id. ¶ 8). For example, one day during plaintiff’s first week of work, plaintiff asked

defendant Eakes “in a very professional tone” if there was anything else she could do for him.

Defendant Eakes responded, “Yeah. You can scratch my back.” Id.

Shortly thereafter, defendant Eakes’s conduct towards plaintiff escalated and became

“crude and more overtly sexual, as well as demeaning.” (Id. ¶ 9). Instead of referring to plaintiff

by name, defendant Eakes called her “sweet cheeks, Ms. Thang, darlin’, sugar britches, sexy pants,

woman, and baby.” (Id. ¶ 9a). Additionally, in a text message sent to plaintiff, defendant Eakes

stated, “Hello sexy pants just heading home and thought about [your] battery if it doesn’t start in

the morning just shoot me a text an ill [sic] come pick you up . . . just one stipulation you have to

be waiting for me in your birthday suit.” (Id. ¶ 9b).

In other text messages, sent October 21, 2016, defendant Eakes told plaintiff he could “talk

a woman’s panties off,” asked plaintiff what kind of underwear she was wearing, asked to see her

underwear, stated that a “peak” was “just going to excite” him, and asked plaintiff if she was

“ready for him.” (Id. ¶ 9c). Then, defendant Eakes sent plaintiff a text messages stating, “Frank

just said I’m going to go in there and spank that [expletive].” Id. However, at that moment, Frank

was in plaintiff’s office, not defendant Eakes’s office, so plaintiff attributed the remark to

defendant Eakes. Id. The following dialogue ensued:

Plaintiff: Hehe. You’re mean.

Defendant Eakes: He said he’s going to show you mean.

Plaintiff: Go Away

Defendant Eakes: No, come here baby I got something for you.

Plaintiff: No.

Id. On October 25, 2016, defendant Eakes sent plaintiff a text message stating, “Let’s turn

of[f] lights and get in our birthday suits and run around the office and garage an[d] play hid[e] and

go seek.” (Id. ¶ 9d). Later that day, plaintiff told defendant Eakes she was leaving to get a salad

for lunch. Defendant Eakes texted plaintiff “did u say u had to go get a shower?” After plaintiff

responded in the negative, defendant Eakes texted “oh ok well in that case go ahead, I was going

to say hold on ill [sic] go.” (Id. ¶ 9d).

On another occasion, defendant Eakes asked a male employee to stand next to him while

he spoke to plaintiff so that plaintiff “wouldn’t think he was sexually harassing her.” (Id. ¶ 9f).

Then defendant Eakes told plaintiff to stand still. Defendant Eakes proceeded to stare at plaintiff

“below the waist” and told her that her jeans were like “mirrors” and he “could see” himself “in

[her] pants.” Id. Additionally, in front of plaintiff and other employees, defendant Eakes “told

one of his direct reports that he was going to ‘go home and [expletive] the employee’s sister,’”

who was a minor at the time. (Id. ¶ 9g). Defendant Eakes also told plaintiff to come to his truck

because he had “something in the back seat that [she] would really like,” insinuating a sexual

encounter, and during the first week of December 2016, defendant Eakes left “kiss prints” on the

window of plaintiff’s office. (Id. ¶ 10).

Defendant Eakes’s behavior “was not one-dimensional.” Id. At times he was “charming”

and “seductive,” and at other times, he became “controlling” and “territorial,” such as when other

males approached plaintiff’s desk. Id. For example, on December 6, 2016, male employees from

plaintiff’s former job stopped by her desk to inform her of a death in a former co-worker’s family.

Upon seeing this interaction, defendant Eakes “communicated to [p]laintiff in a very sharp tone

and accused [p]laintiff of being unethical by discussing another employer’s for-profit business

while [p]laintiff was on the clock for [defendant] Town.” Id.

Because defendant Eakes’s behavior made plaintiff uncomfortable, she began closing her

private office door whenever she was alone with defendant Eakes in the Public Works department

office. (Id. ¶ 11). Moreover, defendant Eakes’s alleged sexual harassment caused plaintiff “mental

and emotional stress which manifested in physical illness.” Id. Specifically, she experienced

migraine headaches and panic attacks and was hospitalized in early November for gastrointestinal

problems that were attributed to stress. Id. She also experienced a panic attack November 28,

2016, which caused gastrointestinal distress. Id.

On December 6, 2016, plaintiff complained to Town Manager Charles Burgess (“Burgess”)

about defendant Eakes’s alleged sexual harassment, and Burgess met with defendant Eakes two

days later. (Id. ¶¶ 13,15). When defendant Eakes returned from his meeting with Burgess,

defendant Eakes “grabbed a thick catalog from his office and forcefully threw the catalog across a

common area of the office.” (Id. ¶ 15). Thereafter, defendant Eakes went into plaintiff’s office

and removed the cable television receiver. Id.

Following plaintiff’s complaint to Burgess, defendant Town moved plaintiff to a different

location, gave her additional job responsibilities and a de-facto supervisor, defendant Wood, while

having plaintiff continue to report to directly to Willis and defendant Eakes. (Id. ¶ 16). Plaintiff

alleges she was also asked to perform receptionist duties, on top of her regular job, even though

the prior administrative assistant, who was a male, was not required to do so. (Id. ¶ 16a).

Prior to December 6, 2016, the day plaintiff complained about defendant Eakes’s behavior,

plaintiff had not been disciplined or criticized for her job performance. (Id. ¶ 17). However, on

December 16, 2016, defendant Wood issued plaintiff written warning for a mistake she made

regarding a purchase.2 By issuing the written warning, defendant Wood allegedly failed to follow

2 Plaintiff alleges she made a personal purchase on her Amazon account, using her personal credit card, via

installment payment agreement with Amazon. (Id. ¶ 18a). Thereafter, defendant Eakes asked plaintiff to make

defendant Town’s disciplinary policy, which provides that the first level of discipline is counseling

by the employee’s supervisor, the second level is a documented oral reprimand, and the third level

is a written reprimand. Id. Plaintiff further alleges defendant Wood treated her differently than

similarly situated employees regarding use of vacation time and sick time, dress code, and

completion of time cards. (Id. ¶ 20).

After plaintiff complained to Burgess about defendant Eakes, defendant Eakes became

“very cold and he actively, as well as passive-aggressively, interfered with plaintiff’s efforts to

properly perform her job duties.” (Id. ¶ 19). Specifically, defendant Eakes “withheld information,

withheld documents, and gave incorrect information and then blamed plaintiff when his inaccurate

information produced inaccurate results.” (Pl. Mem. (DE 58) at 4).3 Finally, defendant Wood

terminated plaintiff from employment March 31, 2017, allegedly for pre-textual reasons. (Am.

Compl. (DE 28) ¶ 22).

DISCUSSION

A. Standard of Review

“To survive a motion to dismiss” under Rule 12(b)(6), “‘a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

equipment purchases for defendant Town on her personal Amazon account so that defendant Town could utilize the

free shipping offered through plaintiff’s Amazon Prime account. (Id. ¶ 18b). Plaintiff made the requested purchases

using defendant Town’s credit card information. Id. On November 9, 2019, the second installment payment of $58.00

for plaintiff’s personal purchase was automatically billed through her Amazon account. (Id. ¶ 18c). Plaintiff assumed

this installment would be billed to her personal credit card; however, it was instead billed to the last credit card used,

which belonged to defendant Town. Id. On December 13, 2016, Plaintiff was made aware of this mistake, so she

contacted an Amazon representative to correct the issue. (Id. ¶ 18d). Plaintiff provided defendant Wood with a

transcript of the conversation with the Amazon representative as proof that the mistake had been corrected. Id.

However, defendant Wood still issued plaintiff the written warning, which accused plaintiff of “misuse of public

funds” and required plaintiff to issue defendant Town an immediate cash reimbursement. (Id. ¶ 18e). Plaintiff made

the cash payment, even though the Amazon Representative cancelled the transaction. Plaintiff alleges defendant Town

failed to reimburse her for the cash payment. (Id. ¶¶ 18e-f).

3 Page numbers in citations to documents in the record specify the page number designated by the court’s

electronic case filing (ECF) system, and not the page number, if any, showing on the face of the underlying

document.

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts

all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but

does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of

further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or

arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir.

2009) (citations omitted).

B. Analysis

1. Intentional Infliction of Emotional Distress

Defendant Eakes argues plaintiff’s IIED claim should be dismissed for failure to state a

claim. To plead IIED, plaintiff must show 1) extreme and outrageous conduct by the defendant 2)

which is intended to and does in fact cause 3) severe emotional stress. Waddle v. Sparks, 331 N.C.

73, 82 (1992) (internal quotations omitted). Conduct satisfying the first element “exceeds all

bounds of decency tolerated by society, and is regarded as atrocious and utterly intolerable in a

civilized community.” Turner v. Thomas, 369 N.C. 419, 446 (2016) (internal quotations omitted).

Such conduct “may be found in an abuse by the actor of a position . . . which gives him . . . power

to affect the interests of another.” Id. (internal quotations omitted). However, North Carolina

courts have “set a high threshold to satisfy this element.” Id. (internal quotations omitted).

The second element may be satisfied “where defendant’s actions indicate a reckless

indifference to the likelihood that they will cause severe emotional distress.” Dickens v. Puryear,

302 N.C. 437, 452 (1981). Under the third element, “‘severe emotional distress’ means any

emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression,

phobia, or any other type of severe and disabling emotional or mental condition which may be

generally recognized and diagnosed by professionals trained to do so.” Johnson v. Ruark

Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304 (1990).

Taking the facts alleged in amended complaint as true, plaintiff has stated a claim for IIED.

Defendant Eakes, plaintiff’s direct supervisor, allegedly made repeated offensive and sexually

charged comments to plaintiff, including: 1) offering to help plaintiff with her car battery before

work only if plaintiff was in her “birthday suit” when he arrived; 2) staring at plaintiff “below the

waist” and stating her pants were like “mirrors” because he could see himself in them, in front of

a male co-worker he specifically summoned to hear his remark; 3) asking for a “peak” of plaintiff’s

underwear, stating that it would “excite him,” and asking if plaintiff was “ready for him;” 4)

suggesting that plaintiff run around the office in her “birthday suit” with defendant Eakes; 5)

sending a text message to plaintiff stating a fellow male employee was going to go in her office

and “spank that [expletive];” and 6) throwing a catalogue across the room and removing the cable

receiver from plaintiff’s office after plaintiff reported his alleged sexual harassment. (See Am

Compl. (DE 28) ¶¶ 9(a)-(g), 15).

This sexually charged conduct, in light of defendant Eakes’s position of power, is extreme

and outrageous. See e.g., Turner, 369 N.C. at 419 (stating extreme and outrageous conduct “may

be found in an abuse by the actor of a position . . . which gives him . . . power to affect the interests

of another.”); Guthrie v. Conroy, 152 N.C. App. 15, 23 (2002) (collecting cases) (“[C]laims of

IIED based upon sexual harassment generally have included one or more of the following: an

unfair power relationship between defendant plaintiff; explicitly obscene or “X rated” language;

sexual advances towards plaintiff; statements expressing desire to engage in sexual relations with

plaintiff, or, defendant either touching plaintiff’s private areas or touching any part of the plaintiff’s

body with his private parts.”).

Defendant Eakes argues his conduct does not rise to the requisite level of extreme and

outrageous because “[IIED] claims do not provide a remedy for ‘rough language or for occasional

acts that are definitely inconsiderate or unkind.’” (Def. Mem. (DE 30) at 7) (citing Hogan v.

Forsyth County Club Co., 79 N.C. App. 483, 493-94 (1986)). Defendant’s argument is

unpersuasive. In Hogan, the court granted defendant’s motion for summary judgment on

plaintiff’s IIED claim where plaintiff alleged defendant “screamed and shouted at her, called her

names, interfered with her supervision of waitresses under her charge, and on one occasion, threw

menus at her.” 79 N.C. App. at 492. Hogan is distinguishable from the instant action because the

Hogan defendant did not make sexually explicit remarks to plaintiff and was not plaintiff’s direct

supervisor. See id.

Defendant Eakes also relies on Guthrie for support. In that case, the plaintiff alleged

defendant:

(1) held plaintiff from behind, and touched or rubbed her neck and shoulders; (2)

“irritated” her by placing a lampshade on her head when she fell asleep with her

head on her desk; (3) threw potting soil and water on plaintiff while she was

planting flowers at work, remarking when he threw a cup of water on plaintiff that

he’d “always wanted to see [her] in a wet T shirt”; and (4) placed a Styrofoam

“peanut” and other small objects between the legs of a “naked man” statuette that

plaintiff displayed on her windowsill at work and asked her “how she liked it” with

the addition.

152 N.C. App. at 24.

Dismissing plaintiff’s IIED claim, the court found the above allegations were not extreme

and outrageous because defendant “was not plaintiff’s supervisor or workplace superior; he did

not swear or employ obscene language; he referred to nothing more vulgar than a “wet T shirt”;

and although he gave plaintiff a “shoulder rub” against her wishes, he never expressed any interest

in sexual activity with plaintiff.” Id. These deficiencies, which warranted dismissal of the Guthrie

plaintiff’s claim, are not present here. In contrast, in the instant action, defendant Eakes was

plaintiff’s workplace supervisor and superior, he allegedly swore and employed obscene language,

and he allegedly expressed an interest in having sexual activity with plaintiff on multiple

occasions. Therefore, the instant action is distinguishable from Guthrie.

Finally, although defendant Eakes does not address the final two elements of an IIED

claim, plaintiff’s allegations suggest defendant Eakes at least exhibited “a reckless indifference to

the likelihood that [he would] cause severe emotional distress.” Dickens, 302 N.C. at 452.

Moreover, regarding the third element, plaintiff has established that defendant Eakes’s conduct

caused her severe emotional distress in the form of migraine headaches, panic attacks, and

gastrointestinal problems requiring hospitalization. Accordingly, defendant Eakes’s partial

motion to dismiss plaintiff’s IIED claim must be denied.

2. Plaintiff’s official capacity claims under the North Carolina Constitution

Defendants move to dismiss plaintiff’s claims under North Carolina Constitution, Article

1, Sections 1, 19, and 35. Plaintiff asserts defendants Eakes and Wood caused plaintiff

constitutional injury by “conditioning her employment upon her willingness to acquiesce to [ ]

sexual harassment,” “interfering with plaintiff’s abilities to perform her job duties,” “creating pre-

textual reasons by which plaintiff’s job performance would be negatively evaluated,” and “creating

pre-textual reasons to terminate plaintiff’s employment.” (See Am. Compl. (DE 28) ¶¶ 28-36).

Article 1, Section 1 of the North Carolina Constitution states in pertinent part, “[A]ll persons . . .

are endowed . . . with certain inalienable rights; that among these are . . . the enjoyment of the

fruits of their own labor.” N.C. Const. art. 1, § 1. Additionally, as relevant here, Article 1, Section

19 of the North Carolina Constitution states, “No person shall be denied the equal protection of

the laws.” Id. art. 1, § 19. Finally, Article 1, Section 35 of the North Carolina Constitution states,

“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings

of liberty.” Id. art. 1, § 35.

The North Carolina Supreme Court has held that Article I of the North Carolina

Constitution provides a direct cause of action to enforce the rights contained therein where there

is an “absence of an adequate state remedy.” Corum v. Univ. of N.C., 330 N.C. 761, 782 (1992).

However, the court “must bow to established claims and remedies where these provide an

alternative to the extraordinary exercise of its inherent constitutional power.” Id. at 784.

Furthermore, “in exercising that power, the judiciary must minimize the encroachment upon other

branches of government—in appearance and in fact—by seeking the least intrusive remedy

available and necessary to the right the wrong.” Id.

An adequate state law remedy exists where there is a cause of action, at common law or

created by statute, that provides plaintiff with “the possibility of relief” for the same injury alleged

in the direct constitutional claim. Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C.

334, 340 (2009). This means “a plaintiff must have at least the opportunity to enter the courthouse

doors and present his claim.” Id. at 339-40. Accordingly, where “sovereign immunity precludes

such opportunity,” a plaintiff lacks “an adequate remedy at state law” and “may move forward in

the alternative, bringing his colorable claims directly under [the North Carolina] Constitution.” Id.

at 340.

Defendants argue plaintiff’s state constitutional claim should be dismissed because claims

for IIED and tortious interference with contract provide plaintiff with adequate state remedies.4

4 Defendants also argue that plaintiff’s claim against defendant Town for wrongful termination in violation

of North Carolina public policy provides plaintiff with an adequate state remedy. However, at this juncture, it is

unclear whether defendant Town has waived governmental immunity, and pursuant to Craig, such immunity affects

the adequacy of the claim as a state remedy. Therefore, on this undeveloped record, the court declines to determine

The court agrees. Plaintiff’s IIED claim against defendant Eakes in his official capacity provides

plaintiff with the “possibility of relief” for the injury alleged in her constitutional claim. Craig,

363 N.C. at 340. This is true even though plaintiff’s IIED claim is alleged against defendant Eakes

while her constitutional claims are alleged against defendants Eakes and Wood. See Taylor v.

Wake Cty., 811 S.E. 2d 648, 656 (N.C. App. 2018) (“While the law generally allows plaintiffs to

select the defendants from whom they wish to obtain relief, such is not the case when doing so

requires the extraordinary exercise of the judiciary’s constitutional power necessary to permit a

Corum claim.”).

Moreover, plaintiff’s IIED claim is an adequate state remedy even though plaintiff asserts

against defendant Eakes in his individual capacity, while plaintiff asserts her state constitutional

claim against defendants in their official capacities. See e.g., Wilcox v. City of Asheville, 222

N.C. App. 285, 301-02 (2012) (holding that a claim against defendant in his official capacity is

sufficient to preclude plaintiff from asserting a Corum claim against the defendant in his official

capacity); Rousselo v. Starling, 128 N.C. App. 439, 495 (1998) (holding that a common law claim

against defendant in his individual capacity was an adequate state law remedy so plaintiff was not

entitled to bring claims under the North Carolina Constitution).

Plaintiff argues her IIED claim is not an adequate state remedy because it addresses a

different injury than her state constitutional claim. However, in amended complaint, plaintiff

claims defendants Eakes and Wood’s alleged violation of her constitutional rights “proximately

caused [p]laintiff substantial damages including but not limited to damages to her career,

emotional distress, humiliation and embarrassment.” (Am. Compl. (DE 28) ¶ 35) (emphasis

added). If plaintiff prevails on her IIED claim, she will be compensated for those damages.

whether plaintiff’s wrongful termination claim is an adequate state remedy.

Moreover, as explained below, a tortious interference with contract claim would provide plaintiff

with an adequate state remedy for the job loss portion of her alleged constitutional injury.

Under North Carolina law, the elements of tortious interference with contract include:

First, that a valid contract existed between the plaintiff and a third person,

conferring upon the plaintiff some contractual right against the third person.

Second, that the outsider had knowledge of the plaintiff’s contract with the third

person. Third, that the outsider intentionally induced the third person not to

perform his contract with the plaintiff. Fourth, that in so doing the outsider acted

without justification. Fifth, that the outsider’s act caused plaintiff actual damages.

Childress v. Abeles, 240 N.C. 667, 674 (1954) (citations omitted).

A “non-outsider” to the operative contract, such as an employment supervisor, can be held

liable under this cause of action if the non-outsider acts in bad faith. See e.g., Smith v. Ford Motor

Co., 289 N.C. 71, 87 (1976) (We perceive no reason for conferring upon the non-outsider immunity

to suit for the malicious procurement of the termination of a contract . . . defendant's status as an

outsider or a non-outsider is pertinent only to the question of justification for his action”); Lenzer

v. Flaherty, 106 N.C. App. 496, 513 (1992) (categorizing an employment supervisor a “non-

oustider” and stating “[t]he qualified privilege of a non-outsider is lost if exercised for motives

other than reasonable, good faith attempts to protect the non-outsider’s interest in the contract

interfered with”).

Applying the elements as stated above, plaintiff had an employment contract with

defendant Town,5 defendants Eakes and Wood were aware of the contract, defendants Eakes and

Wood allegedly induced defendant Town to terminate its contract with plaintiff by “interfer[ing]

with [p]laintiff’s ability to meet her employer’s performance expectations” and “creating pre-

5 Although plaintiff does not provide the details of her employment contract, this cause of action applies even

if plaintiff’s employment contract was terminable at will. See Smith, 289 N.C. at 84.

textual reasons to terminate [p]laintiff’s employment,” defendants Eakes and Wood were without

justification, as plaintiff alleges they were retaliating against her for reporting sexual harassment,

and finally, defendants Eakes and Wood’s actions caused plaintiff damages, as she was terminated

from employment. Since a tortious interference with contract claim would address the same injury

as plaintiff’s constitutional claim, plaintiff has an adequate state remedy, which the court must

“bow to” instead of exercising its “extraordinary” constitutional power. Corum, 330 N.C. at 784.

However, plaintiff argues a tortious interference with contract claim is not an adequate

state remedy because it would not allow her to seek reinstatement of her employment position or

recover the full extent of her damages. Plaintiff’s argument is unpersuasive as the adequacy of a

state law remedy does not turn on the type of recovery, or amount of recovery, a plaintiff receives.

See e.g., Corum, 330 N.C. at 784 (“[T]he judiciary must minimize the encroachment upon other

branches of government—in appearance and in fact—by seeking the least intrusive remedy

available and necessary to the right the wrong.”); Taylor, 811 S.E. at 656 (holding the limited

scope of damages and type of damages available to plaintiff in the Industrial Commission, as

compared to the damages available in superior court, does not render plaintiff’s claim in the

Industrial Commission “an inadequate state remedy”).

Finally, plaintiff argues that a tortious interference of contract claim is not an adequate

state remedy because, in Lenzer, the North Carolina Court of Appeals reversed the trial court’s

dismissal of plaintiff’s state constitutional claim and tortious interference of contract claim.

However, plaintiff’s argument is unpersuasive where the adequacy of a tortious interference with

contract claim as a state remedy was not before the court in that case. See Lenzer, 106 N.C. App.

at 512-15. Instead, the appellate court was solely considering whether the lower court erred in

dismissing plaintiff’s state constitutional claims on sovereign immunity grounds. Id. The appellate

court reversed the trial court, but did not address whether plaintiff had an adequate state law

remedy, as that issue was not properly raised before the court. Id.

In sum, where claims for IIED and tortious interference of contract would provide plaintiff

with adequate state remedies for her alleged constitutional injury, the court dismisses plaintiff’s

official capacity claims against defendants Eakes and Wood under the North Carolina

Constitution.6

3. Punitive Damages

Defendants move to dismiss all claims for punitive damages raised against defendant Town

and against defendants Eakes or Wood in their official capacities. Municipalities are not subject

to punitive damages in claims brought pursuant to Title VII. See 42 U.S.C. § 1981(a)(b)(1) (“A

complaining party may recover punitive damages . . . against a respondent (other than a

government, government agency or political subdivision”) (emphasis added). In addition, “in the

absence of statutory provisions to the contrary, municipal corporations are immune from punitive

damages” under North Carolina law. Long v. City of Charlotte, 306 N.C. 187, 208 (1982).

Accordingly, municipal officials are not liable for punitive damages in their official capacities

under either Title VII or North Carolina law. Cf. Iglesias v. Wolford, 539 F. Supp. 2d 831, 841

(E.D.N.C. Mar. 7, 2008) (holding that since a claim against a municipal official in his official

capacity is essentially a claim against the municipality, and since the municipality is immune from

punitive damages under 42 U.S.C. § 1983 and North Carolina law, then the municipal official in

his official capacity must also be immune for punitive damages under 42 U.S.C. § 1983 and North

Carolina law ) (citing Kentucky v. Graham, 473 U.S. 159, 165–66 (1985).

6 Because the court grants defendants’ motion to dismiss on plaintiff’s state constitutional claim on the basis

of adequate state remedies, the court does not reach additional grounds for dismissal asserted by defendants.

On the face of plaintiff's amended complaint, plaintiff appears to raise claims for punitive

damages only against defendant Eakes in his individual capacity. (See Am. Compl. (DE 25) 4

63, 68). Indeed, in response to defendants’ motion, plaintiff asserts she is only seeking punitive

damages “as by law allowed” and “only asserts grounds for punitive damages against [d]efendant

Eakes in his individual capacity.” (See Pl. Mem. (DE 58) at 28). However, to the extent plaintiffs

complaint can be construed as raising claims for punitive damages against defendants Eakes or

Wood in their official capacities, or against defendant Town, those claims are dismissed.

CONCLUSION

Based on the foregoing, the court DENIES defendant Eakes’s partial motion to dismiss

(DE 29) and GRANTS defendants Eakes, Wood, and Town’s partial motion to dismiss (DE 56).

The following claims are dismissed with prejudice: plaintiffs official capacity claims against

defendant Eakes and Wood under North Carolina Constitution Article 1, Section 1, 19, and 35 and

plaintiff's claims for punitive damages against defendant Eakes and Wood in their official

capacities and against defendant Town. All other claims remain.

SO ORDERED, this the 6th day of December, 2019.

LOUISE W.FLANAGAN

United States District Judge

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