Lambertus v. Nuvo Solutions, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:23-CV-451-BO-RJ

JULIANA R. LAMBERTUS, )

Plaintiff, ;

v. ORDER

NUVO SOLUTIONS, INC.,

Defendant.

This cause comes before the Court on defendant’s motion for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. [DE 12]. Plaintiff has responded,

defendant has replied, and in this posture the matter is ripe for ruling. For the reasons that follow,

defendant’s motion is granted in part and denied in part. Defendant has also filed a motion to stay

discovery pending the resolution of its motion for judgment on the pleadings, which is denied as

moot.

BACKGROUND

This action arose from a complaint filed by plaintiff, Juliana Lambertus, in this Court on

August 15, 2023. The following factual background has been derived from plaintiffs allegations

in her complaint. Plaintiff began working as Controller for Nuvo Solutions (Nuvo or defendant) in

November 2020 after having worked in finance management for eleven years. [DE 1 ff 5, 15].

She was hired to “build Defendant’s finance overhead department from the ground up.” [DE 1

17]. After being hired, plaintiff began discovering systemic and ongoing problems with Nuvo’s

“payroll system, policies and collections practices.” [DE 1 § 18]. Plaintiff alleges that she

addressed those issues and was promised commissions and other compensation for that additional

work, as it was outside the scope of her role. Jd. Though she received positive verbal feedback

from Nuvo’s CEO, Emily Brown, plaintiff alleges that she never received the promised

compensation. [DE 1 19]. Plaintiff otherwise received “stellar performance reviews and was

consistently praised for her work.” [DE 1 § 21].

After starting at the company, plaintiff received two pay increases: one in November 2021,

and the second on February 14, 2022. [DE 1 4 22, 23]. She alleges that the 2022 pay increase was

to include an increase in base salary, a bonus, and the use of a company car, but that she did not

receive these benefits. [DE 1 § 23]. Plaintiff began to raise concerns about Nuvo’s “unlawful

financial conduct, failure to pay her agreed-upon wages and unsafe working conditions[.]” [DE 1

q 24].

In addition to not receiving promised compensation, plaintiff alleges that she was subjected

to gender discrimination. [DE 1 4 25]. Though CEO Brown was female, she was harder on female

employees than male employees and as a result female employees had a difficult time finding

success within the company. [DE 1 § 26]. Plaintiff alleges that female employees were placed in

administrative and support jobs while men were placed in management and sales positions. [DE 1

4 27]. Although plaintiff was a Controller, her roll was deemed administrative, while her male

counterpart was deemed to be management. [DE 1 § 29]. Additionally, though plaintiff negotiated

a salary increase in February 2022, she was not paid the negotiated rate, and she alleges that none

of her male counterparts were treated similarly. [DE 1 □ 30].

Plaintiff alleges she repeatedly brought forward concerns to defendant’s management team

about compensation practices, including failing to pay out paid-time-off, and the need for human

resources professionals, but these concerns were ignored. [DE 1 {{ 32 -35]. Once plaintiff began

to complain, CEO Brown failed to take any remedial actions and began to treat plaintiff more

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harshly than other employees who did not complain by, for example, ignoring plaintiffs requests

for time off. [DE 1 36-37]. Plaintiff also complained about what she perceived as an unsafe

work environment as a result of defendant’s stressful and tense culture, which had been witnessed

by visitors, and was resulting in both emotional distress for employees and high employee

turnover. [DE 1 J 39-43]. On May 13, 2023, plaintiff sent an email to CEO Brown; David Brown,

the President of Nuvo; and several other high-ranking professionals which detailed allegations of

an emotionally unsafe working environment at Nuvo. [DE | {{ 41, 95]. Three days after plaintiff

sent this email, plaintiff was suspended pending an investigation. See [DE 1 {ff 47, 87, 98, 107].

Plaintiff remained suspended without any contact from defendant for a period of weeks and felt

she had to resign so that she could seek paid work. [DE 1 § 48]. Plaintiff also alleges that she was

terminated by President Brown during a phone call on June 3, 2022, and that plaintiff

contemporaneously resigned. [DE 1 {{ 48, 50].

Plaintiff alleges a claim for sex discrimination in violation of Title VII (Count I), retaliation

in violation of Title VII (Count II), violations of the North Carolina Wage & Hour Act (Count IID),

wrongful termination in violation of North Carolina public policy for reporting violations of the

Wage & Hour Act (Count IV), wrongful termination in violation of North Carolina public policy

for reporting violations of the Occupational Safety and Health Act of North Carolina (Count V),

wrongful termination in violation of North Carolina public policy based on the North Carolina

Equal Employment Practices Act (Count VI), and negligent infliction of emotional distress (Count

VII). Plaintiff also seeks punitive damages (Count VIII).

In its motion for judgment on the pleadings, defendant argues that Count I is barred by the

statute of limitations and otherwise fails to state a claim, that plaintiff has failed to allege the

requisite elements for Count II, that plaintiff has failed to allege any enforceable promise for any

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compensation she claims she is owed in Count III, that plaintiff failed to exhaust her administrative

remedies or otherwise state a claim in Counts IV-VI and that repacking these claims as wrongful

discharge claims fails, that plaintiff fails to allege any extreme and outrageous circumstances to

support her infliction of emotional distress claim in Count VII, and that plaintiff has failed to allege

any aggravating factors which would support a claim for punitive damages in Count VIII.

DISCUSSION

A Rule 12(c) motion is considered under the same standard as a Rule 12(b)(6) motion.

Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 433 (M.D.N.C. 2011). Thus, “the court

should accept as true all well-pleaded allegations and should view the complaint in a light most

favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A

complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, this standard does not permit a plaintiff to

merely plead the elements of a cause of action alongside legal conclusions; the Court need not

accept those as true. Jd. at 555.

The primary distinction between Rules 12(b)(6) and 12(c) is that Rule 12(c) permits a court

to consider a defendant’s answer in addition to plaintiff's complaint. However, a defendant cannot

rely on allegations of fact as provided in the answer if they are contradictory to the facts presented

in the complaint. Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 724 (M.D.N.C. 2012).

“A Rule 12(c) motion tests only the sufficiency of the complaint and does not resolve the merits

of the plaintiff's claims or any disputes of fact.” Drager v. PLIVA USA, Inc., 741 F.3d 470, 474

(4th Cir. 2014). Judgment on the pleadings should be granted therefore only “where the moving

party is clearly entitled to the judgment it seeks as a matter of law.” Med-Trans Corp. v. Benton,

581 F. Supp. 2d 721, 728 (E.D.N.C. 2008).

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A. Statute of limitations and exhaustion

Defendant contends that Count I (Title VII sex discrimination claim) is time-barred

because plaintiff was required to file a claim with the U.S. Equal Employment Opportunity

Commission (“EEOC”) within 180 days of the alleged acts of discrimination and she failed to do

so. [DE 13 pp. 4-5]. This statute of limitations bars EEOC claims from being filed beyond 180

days after the time of the employer’s alleged unlawful act. See 42 U.S.C. § 2000e-5(e)(1). In 2009,

the Lilly Ledbetter Fair Pay Act (FPA) amended Title VII to specify that, among other examples,

“an unlawful employment practice occurs . . . when an individual is affected by application of a

discriminatory compensation decision . . ., including each time wages, benefits, or other

compensation is paid.” Pub. L. No. 111-2, § 3, 123 Stat. 5, 5-6 (emphasis added); Taylor v.

Millennium Corp., No. 1:15-CV-1046, 2016 WL 927185, at *3 (E.D. Va. Mar. 4, 2016) (“Under

the FPA, each pay period triggers a new [] clock for filing a Title VII discriminatory compensation

claim.”). Thus, plaintiff's allegation of unfair withholding of promised compensation would be

considered within the statute of limitations if it continued up until her last day at Nuvo. As the

question of whether such compensation was ever promised is still in dispute, that is an issue of

material fact which must continue on to discovery. See also Goodman v. Praxair, Inc., 494 F.3d

458, 464 (2007) (affirmative defense that a complaint is barred by a statute of limitations generally

not the basis of Rule 12(b)(6) dismissal). Additionally, defendant agrees that plaintiff's suspension

and termination occurred within 180 days of her filing an EEOC claim, and thus her claims arising

from those actions are not untimely.

Defendant also argues that plaintiff failed to exhaust Counts IV and V as required by the

Retaliatory Employment Discrimination Act (REDA), N.C. Gen. Stat. §§ 95-240, et seq. Plaintiff

has argued that, contrary to Nuvo’s argument, she did file a written complaint with the North

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Carolina Commissioner of Labor as is required by REDA, thus exhausting her claims. Plaintiff has

requested leave to amend her complaint to include such allegation if necessary. The Court will

permit plaintiff a brief period within which to amend her complaint to add this allegation and will

not dismiss her REDA claims for failure to exhaust at this stage.!

B. Title VII claims

“In the context of a Title VII case, ‘an employment discrimination plaintiff need not plead

a prima facie case of discrimination’ to survive a motion to dismiss.”” Bing v. Brivo Sys., LLC, 959

F.3d 605, 616 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)); see Wood v. City

of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017). Rather, a plaintiff must allege facts plausibly

stating a claim that “‘satisf[ies] the elements of a cause of action created by [Title VII].” Bing, 959

F.3d at 616-17; see also Gaines v. Balt. Police Dep’t, 657 F.Supp.3d 708, 734 (D. Md. 2023)

(“Although a plaintiff need not assert a prima facie claim of discrimination under Title VII to

survive a Rule 12(b)(b)(6) motion, reference to the elements of a Title VII claim is helpful to gauge

the sufficiency of the allegations.”).

In Count I plaintiff alleges that she was discriminated against in her terms, conditions,

compensation, and privileges of her employment because of her sex. To establish a prima facie

case for sex discrimination, a plaintiff must show “(1) membership in a protected class, (2)

satisfactory job performance, (3) adverse employment action, and (4) different treatment from

similarly situated employees outside the protected class.” Coleman v. Md. Ct. App., 626 F.3d 187,

190 (4th Cir. 2010).

"Nuvo relies on Ferrell v, Am. Airlines, Inc., No. 323CV00023KDBDCK, 2023 WL 6628869, at

*1 (W.D.N.C. Oct. 11, 2023), to argue that the Court must dismiss the REDA claims because

plaintiff failed to plead exhaustion, but defendant fails to note that the Ferre// court dismissed the

complaint only after Ferrell opposed dismissal but did not provide any grounds for denying the

motion to dismiss.

Nuvo contends that plaintiff has not sufficiently alleged adverse employment action and

that she has not sufficiently alleged that she was treated differently from similarly situated

employees outside of her class. The Court finds plaintiff's allegations at this stage to be sufficient.

First, plaintiff has alleged that her male counterpart was categorized as management while

plaintiff's role was administrative. Plaintiff has also alleged that she was not paid her negotiated

salary or earned bonuses and commissions, unlike her male counterparts. Plaintiff's allegations

also support the reasonable inference that she was treated differently from similarly situated male

employees, including by alleging a male counterpart with the same title who had been categorized

as management. Drawing all reasonable inferences in plaintiff s favor, this is sufficient at this early

stage to state a Title VII sex discrimination claim.

Count II alleges retaliation in violation of Title VII. To assert such a claim, plaintiff must

show that (1) she engaged in protected activity, (2) her employer took adverse action against her,

and (3) and the protected activity and adverse action were causally connected. Karpel v. Inova

Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998). To prevail on a retaliation claim, plaintiff

must show that she “subjectively (that is, in good faith) believed” that there was a Title VII

violation “and that [her] belief ‘was objectively reasonable in light of the facts.’” Johnson v.

Mechanics & Farmers Bank, 309 F. App’x 675, 685 (4th Cir. 2009).

Defendant contends that plaintiff has not sufficiently alleged any of the three elements of

this claim. In considering whether there was protected activity, there exists an issue of material

fact as to the “repeated, verbal complaints to CEO [Brown] and President Brown” that plaintiff

allegedly made regarding sex discrimination at Nuvo. Compare [DE 17 p. 14 & n.6] with [DE 13

p. 8-9]. There is also an issue of material fact regarding the alleged adverse employment action as

claimed in the complaint. Plaintiff alleged that she resigned “due to the fact that she was being

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terminated,” and because the lack of communication from defendant regarding her unpaid

suspension gave her “no choice but to resign so that she could seek paid employment.” [DE 1 □□□

48, 50]. Defendant contends that voluntary resignation bars a claim of adverse employment action

where no alleged facts support a constructive discharge theory. [DE 13 p. 10]. Defendant further

states that plaintiff “does not allege a constructive discharge, or any facts that could support such

a theory.” [DE 13 p. 10 n. 3]. However, a constructive discharge theory under Title VII can be

supported if the plaintiff demonstrates either that the employer intended to force her to quit, or if

the employer engaged in conduct of which the employee’s resignation would be a “foreseeable

consequence.” Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1356 (4th Cir. 1995). Again, viewing

the factual allegations in the light most favorable to the plaintiff, there are sufficient allegations in

the complaint to make plausible a constructive discharge theory of retaliation under Title VII.

Plaintiff has also alleged that she was suspended without pay as a result of her complaints, which

can alone amount to an adverse employment action. Hammoud v. Jimmy’s Seafood, Inc., 618 F.

Supp. 3d 219, 232 (D. Md. 2022). Finally, the temporal proximity between plaintiffs alleged

complaints and her suspension and termination or resignation further permits the Court to infer

more than merely the possibility that defendant engaged in misconduct. See Roberts v. Glenn

Indus. Grp., Inc., 998 F.3d 111, 126 (4th Cir. 2021). The motion for judgment on the pleadings is

denied as to Count II.

C. NC Wage & Hour claim

Count III alleges a violation of North Carolina’s Wage and Hour Act (NCWHA),

specifically N.C. Gen. Stat. § 95-25.6. [DE 1 [74-77]. This claim has been sufficiently alleged,

as plaintiff has alleged that she was promised wages and benefits which were owed but not paid.

See, e.g., Wade v. JMJ Enterprises, LLC, No. 1:21CV506, 2023 WL 6391683, at *2 (M.D.N.C.

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Sept. 30, 2023) (allegations that plaintiffs were not paid for all hours worked sufficient to state a

Wage & Hour claim). Contrary to Nuvo’s argument, “the statute contains no requirement of an

express contract or agreement to pay for particular work.” Martinez-Hernandez v. Butterball, LLC,

578 F. Supp. 2d 816, 821 (E.D.N.C. 2008). Plaintiff's allegations are sufficient, and judgment on

the pleadings is not warranted.

D. State law retaliation and public policy claims

Counts IV, V, and VI are plaintiffs three North Carolina state law retaliation claims. Count

IV alleges wrongful termination in violation of North Carolina public policy for reporting

violations of the WHA, as prohibited by N.C. Gen. Stat. § 95-241(a)(1)(b). [DE 1 § 82]. Count

V alleges wrongful termination in violation of North Carolina public policy for reporting violations

of Occupational Safety and Health Act of North Carolina (OSHANC), as prohibited by N.C. Gen.

Stat. § 95-241(a)(1)(b). [DE 1 4 93]. Count VI alleges wrongful termination in violation of North

Carolina public policy based on the North Carolina Equal Employment Practices Act (NCEEPA).

[DE 1 { 108]. As their arguments have the same statutory basis, Counts IV and V may be

considered together, while Count VI’s NCEEPA claim raises separate issues. Plaintiff argues that

she has alleged these claims in the alternative to one another, as is permitted by Fed. R. Civ. P. 8.

[DE 17 p. 20].

The basis for Counts IV and V, North Carolina’s REDA, prohibits retaliatory actions taken

by employers against employees who, in good faith, exercise or threaten to exercise their

protected rights as employees in North Carolina. N.C. Gen. Stat. § 95-241. These protected rights

include the right to “[f]ile a claim or complaint, initiate any inquiry, investigation, inspection,

proceeding or other action, or testify or provide information to any person with respect to”, inter

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alia, Article 2A or Article 16 of Chapter 95 of the North Carolina General Statutes. Jd. Article

2A lays out the NCWHA, and Article 16 lays out the OSHANC regulations.”

In order to establish a REDA claim, a plaintiff must show that (1) she exercised her right

to engage in protected activity; (2) she suffered an adverse employment action; and (3) there is a

causal connection between the two. See Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 260

(2003). Defendant contends that plaintiff has not satisfied any of these three elements, as laid out

in the arguments against plaintiff's Title VII claims.

First, REDA protects the actions of filing “a claim or complaint, initiat{ing] any inquiry,

investigation, inspection, proceeding or other action, .. . or provid[ing] information to any person

with respect to” the state statutes in question. N.C. Gen. Stat. § 95-241(a)(1) (emphasis added).

“By its plain language, it is clear that REDA does not limit protected activities to the sole act of

filing a formal claim.” Pierce v. Atl. Grp., Inc.,219 N.C. App. 19, 27 (2012) (quoting Jurrissen v.

Keystone Foods, LLC, No. 1:08CV128, 2008 WL 3925086, at *5 (M.D.N.C. Aug 20, 2008)).

However, not all forms of informal reports constitute protected activities under REDA. Jd; see

also Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893, 902 (M.D.N.C.), aff'd 146 F. App’x

655 (4th Cir. 2005) (“[M]erely a complaint to a manager about a supervisor” not a protected

activity under REDA); but see Driskell v. Summit Contracting Group, Inc., 828 F. App’x 858, 867

2 Additionally, despite North Carolina’s at-will employment regime there exists a long-settled

exception by which termination is deemed wrongful if it violates North Carolina public policy.

However, this exception is “confined to the express statements contained within [the North

Carolina] General Statutes or [] Constitution.” Whiting v. Wolfson Casing Corp., 173 N.C. App.

218, 222 (2005). Thus, any action brought pursuant to REDA is a “supplemental remedy to the

common law claim of wrongful discharge.” Jd., citing Salter v. E & J Healthcare, Inc., 155 N.C.

App. 685, 695-96 (2003); see also Amos v. Oakdale Knitting Co., 331 N.C. 348, 357 (1992) (“The

availability of alternative common law and statutory remedies, we believe, supplements rather

than hinders the ultimate goal of protecting employees who have been fired in violation of public

policy.”). The Court construes the claims in Counts IV and V to be brought under REDA, not as

common law wrongful discharge claims.

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(4th Cir. 2020) (“Internal complaints alleging ongoing . . . violations . . . can be protected.”). In

assessing whether a particular complaint is protected by REDA, a court should consider: whether

it leads to or relates to an investigation, whether it is made to someone other than the plaintiff's

direct supervisors or managers within the company, and whether the relevant conduct is a primary

focus of the complaint. See Driskell, 828 F. App’x at 867.

Here, plaintiffs alleged protected action is a series of internal complaints to CEO Brown

and President Brown regarding state law violations by Nuvo. See, e.g., [DE 1 {J 34-37, 39-45, 83,

94]. There is no contention that any of these complaints were part of an ongoing investigation. As

for the second factor, Driskell established that complaints to a president and/or CEO go beyond

complaints to a “mere supervisor or manager.” 828 F. App’x at 867. As plaintiff was directing her

complaints directly to the CEO and the president of the company, she could not have directed them

elsewhere or higher up in the company hierarchy. When she sent a formal email complaining of

the workplace safety issues, she also included other management and a human resources

representative. [DE 1 § 41]. Finally, whether the relevant conduct is a primary focus of the

complaints made remains a question of fact. Without further documentation of the series of

complaints alleged in plaintiffs complaint, this Court cannot definitively determine that plaintiff's

conduct was not protected under REDA.

The second element requires an adverse employment action. See Brackett, 158 N.C. App.

at 260. That adverse employment action can include “suspension, demotion, retaliatory relocation

of an employee, or other . . . action taken against an employee in the terms, conditions, privileges,

and benefits of employment.” Salter, 155 N.C. App. at 69; see also Nguyen v. Austin Quality

Foods, Inc., 974 F. Supp. 2d 879, 891 (E.D.N.C. 2013) (“For purposes of REDA, an adverse or

retaliatory action is defined to include suspension as well as termination.”). Taking plaintiff's

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allegations as true, she was placed on unpaid suspension for weeks after her May 13 email to

management. [DE 1 f§ 47-48]. She eventually felt forced to resign and did so

□□□□□□□□□□□□□□□□□□□□□□ with her termination[,]” [DE 1 §{] 48, 50], supporting an allegation of both

termination or constructive discharge. Defendant does not deny that plaintiff was suspended. [DE

10 47]. At a minimum, the suspension satisfies the adverse employment action as required by

the second element of a REDA claim, even if discovery later reveals that plaintiff resigned rather

than was terminated. See Cortes v. McDonald’s Corp., 955 F. Supp. 539, 540 (E.D.N.C. 1996).

The third and final element is causation. Courts have repeatedly held that evidence of close

temporal proximity between the protected activity and the adverse action can satisfy this

requirement. See, e.g., Nguyen, 974 F. Supp. 2d at 891; Johnson v. Trustees of Durham Tech.

Cmty. Coll., 139 N.C. App. 676, 682 (2000). Plaintiff alleges that her suspension occurred three

days after her email to management, the last in a string of allegedly repeated complaints about

ongoing violations. Plaintiff further alleges that her termination occurred three weeks after she was

suspended. The allegations are sufficient for this Court to find there is a plausible set of facts which

establish a valid claim of retaliation in violation of REDA and contrary to North Carolina public

policy. Thus, at this stage, Counts IV and V are not dismissed.

The facts underlying Counts IV and V are largely the same as those underlying Count VI,

but this claim is brought as a common law wrongful discharge claim under the NCEEPA rather

than a REDA claim. NCEEPA’s outline of public policy is as follows: “[iJt is the public policy of

this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold

employment without discrimination or abridgment on account of race, religion, color, national

origin, age, sex or handicap by employers which regularly employ 15 or more employees.” N.C.

Gen. Stat. § 143-422.2(a). Neither the N.C. General Statutes nor North Carolina’s Constitution

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establish a private right of action provided by the NCEEPA for claims of adverse action in

retaliation for complaining about a protected category. See McLean v. Patten Communities, Inc.,

332 F.3d 714, 719 (4th Cir. 2003) (“[A]bsent a clear indication from the North Carolina courts or

legislature it would be inappropriate for a federal court to create a private right of action under §

143-422.2.” (internal quotations, alterations, and citations omitted)). A plaintiff may, however,

bring common law wrongful discharge claim for violation of NCEEPA. Id.

However, courts have consistently held that constructive discharge cannot form the basis

of acommon law wrongful discharge claim based upon NCEEPA. Williams v. Target Corp., No.

3:10CV136-RJC-DSC, 2010 WL 2650847, at *3 (W.D.N.C. Apr. 22, 2010), report and

recommendation adopted, No. 3:10CV136-RJC-DSC, 2010 WL 2650845 (W.D.N.C. July 1,

2010). Additionally, courts considering wrongful discharge claims based upon NCEEPA have held

“repeatedly that no private cause of action exists for retaliation, hostile work environment,

disparate treatment, or constructive discharge in violation of public policy.” Jones v. Duke Energy

Corp., 43 F. App’x 599, 600 (4th Cir. 2002) (per curiam); see Mullis v. Mechanics & Farmers

Bank, 994 F. Supp. 680, 688 (M.D.N.C. 1997) (North Carolina has not interpreted NCEEPA

wrongful discharge claim to include retaliation).

Plaintiff alleges that she participated in protected activity and reported violations of

NCEEPA to her employer and that she was discharged from her employment in retaliation for such

conduct. [DE 1 §§ 105-108]. Thus, because plaintiff's NCEEPA common law wrongful discharge

claim is based upon retaliation and disparate treatment, and to the extent it concerns what plaintiff

contends amounted to constructive discharge, the claim is appropriately dismissed. See also

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Malik v. Amazon.com Prices, LLC, No. 3:21-CV-627-MOC-DCK, 2024 WL 150763, at *8

(W.D.N.C. Jan. 12, 2024) (claims rooted in retaliation cannot support a wrongful discharge claim

under NCEEPA).

E. Negligent infliction of emotional distress

Count VII alleges negligent infliction of emotional distress (NIED). In order to state an

NIED claim, 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.” Guthrie v. Conroy, 152 N.C. App. 15, 25 (2002). ““In order to establish

actionable negligence, a plaintiff must show that: (1) defendant failed to exercise due care in the

performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligen|t]

breach of such duty was the proximate cause of the injury.’” /d. (alteration in original, citation

omitted).

Defendant’s primary objection to this claim is that many of the specific actions alleged are

intentional actions, not negligent ones. [DE 13 p. 23]; see, e.g., [DE 1 9 37, 47]. An NIED cause

of action cannot be supported by facts that include only intentional acts. See Mitchell v. Lydall,

Inc., 16 F.3d 410, 1994 WL 38703, at *3 (4th Cir. Feb. 10, 1994) (unpublished) (“[As] the material

factual allegations charge nothing but intentional acts . . ., we must conclude that they do not state

a claim for negligent infliction of emotional distress.”). Plaintiff contends that while the conduct

itself may have been intentional, its impact and the injury caused to her was negligent, citing

Pleasant v. Johnson, 312 N.C. 710, 715 (1985). [DE 17 p. 27-28]. However, “the district courts of

this state have repeatedly . . . dismiss[ed] negligent infliction of emotional distress claims where

plaintiffs only allege intentional conduct on the part of the tortfeasor.” S.P. by & through Prybol

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v. St. David’s Sch., No. 5:22-CV-201-FL, 2023 WL 6447228, at *5 (E.D.N.C. Sept. 29, 2023)

(listing cases); see also Horne v. Cumberland Cnty. Hosp. Sys., 228 N.C. App. 142, 149 (2013)

(“Allegations of intentional conduct, such as these, even when construed liberally on a motion to

dismiss, cannot satisfy the negligence element of an NIED claim.”). As the material allegations in

plaintiff s complaint point to intentional conduct by defendant, such as cruel and callous treatment

of plaintiff, judgment on the pleadings in defendant’s favor is appropriate on plaintiff's negligent

infliction of emotional distress claim.

F. Punitive damages

“A punitive damages claim is not technically an independent cause of action, but is instead

dependent upon an award of compensatory damages on one of a plaintiff's other claims.” Taylor

v. Bettis, 976 F. Supp. 2d 721, 747 (E.D.N.C. 2013). Whether punitive damages are available will

depend first on whether compensatory damages may be awarded. The Court will not dismiss the

request for punitive damages at this stage.

In sum, the Court has considered plaintiff's complaint in light of the applicable standards

and determines that plaintiff has plausibly alleged the majority of her claims for relief. It further

finds that many of defendant’s arguments are better suited for decision at a later stage of the

proceeding and the case should therefore move forward to discovery.

CONCLUSION

Accordingly, for the foregoing reasons, defendant’s motion for judgment on the pleadings

[DE 12] is GRANTED IN PART and DENIED IN PART. Judgment on the pleadings in

defendant’s favor is GRANTED as to Counts VI and VII. Defendant’s motion with respect to

plaintiff's remaining claims is DENIED. The motion to stay discovery [DE 14] is DENIED AS

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MOOT. Plaintiff is permitted ten (10) days from the date of entry of this order to file an amended

complaint in accordance with the foregoing.

SO ORDERED, this / 2 day of July 2024.

ie ha W. BOYLE

UNITED STATES DISTRICT JUDGE

16 /