“[A]n at-will employment relationship is contractual, [and] . . . such relationships may therefore serve as predicate contracts for [Section] 1981 claims.”
How later courts described this case
- “[A]n at-will employment relationship is contractual, [and] . . . such relationships may therefore serve as predicate contracts for [Section] 1981 claims.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRAHMAJOTHI VASUDEVAN MULUGU, )
)
Plaintiff, )
)
v. ) 1:23CV957
)
DUKE UNIVERSITY SCHOOL )
OF MEDICINE, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s (A) Motion for
Leave to File Amended Complaint (Docket Entry 9 (the “First
Amendment Motion”)) and (B) Amended Motion for Leave to File
Amended Complaint (Docket Entry 10 (the “Second Amendment Motion,”
and, collectively with the First Amendment Motion, the “Amendment
Motions”)). (See Docket Entry dated Feb. 27, 2024.) The Court
will grant in part and will deny in part the Amendment Motions, by
substituting “Duke University” for “Duke University School of
Medicine” as a defendant and deeming Plaintiff’s operative pleading
amended to assert race discrimination claims under 42 U.S.C. § 1981
against Defendant Duke University and three of its employees, as
well as a state-law claim for breach of the implied covenant of
good faith and fair dealing against Defendant Duke University, but
otherwise denying leave to amend.1
1 For reasons stated in Deberry v. Davis, No. 1:08cv582, 2010
WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010), the undersigned
(continued...)
INTRODUCTION
Plaintiff commenced this case pro se by filing the Complaint
(Docket Entry 1), which, in short order, she amended as of right
(see Docket Entry 5 (the “Amended Complaint”)). As the first
defendant, the Amended Complaint names Duke University School of
Medicine (see Docket Entry 5 at 2-3),2 but – with the parties’
agreement – the Court corrects that defendant’s name to Duke
University (see Docket Entry 8 at 1; Docket Entry 10 at 2; see also
Docket Entry 5 at 6 (“[Plaintiff] was employed by Duke University
and worked in the Department of Pharmacology and Cancer Biology
(hereafter known as ‘PCB’), which is a department within the Duke
University School of Medicine.”)). The Amended Complaint also
identifies as defendants five of Defendant Duke University’s
employees, Donald Patrick McDonnell, Mary Frances Earley Klotman,
Geeta Krishna Swamy, Colin Stephen Duckett, and Sharon Adele
1(...continued)
Magistrate Judge will enter an order, rather than a recommendation,
as to the Amendment Motions. See also Everett v. Prison Health
Servs., 412 F. App’x 604, 605 & n.2 (4th Cir. 2011) (explaining
that, where the plaintiff “moved for leave to amend her complaint[
] . . . to add a state-law claim of medical malpractice,” “the
magistrate judge denied [that] motion,” and the plaintiff “timely
objected, thereby preserving the issue for review by the district
court,” the district court “could not modify or set aside any
portion of the magistrate judge’s order unless the magistrate
judge’s decision was ‘clearly erroneous or contrary to law’”
(citing 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a))).
2 Pin cites to documents filed by Plaintiff refer to page
numbers that appear in the footer appended to those documents upon
their filing in the CM/ECF system (not to any original pagination).
All quotations from Plaintiff’s filings omit bold font.
2
Dowell-Newton (collectively, the “Individual Defendants,” and,
together with Defendant Duke University, the “Defendants”). (See
Docket Entry 5 at 2-3.)° The Amended Complaint asserts claims
against Defendants under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.c. §§ 2000e to 2000e-17, and the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
S§ 621-634 (see Docket Entry 5 at 4), for “discriminatory conduct”
(id. at 5), in the form of “[t]Jermination of [her] employment[,
fjlailure to promote [her], .. . [u]nequal terms and conditions of
[her] employment[, rjetaliation[, and] . . . [f]raud” (id.). Per
the Amended Complaint, “Defendants discriminated against
[Plaintiff] based on [her] .. . race[,] Asian[,] color[,] Brown[,]
gender/sex[,] Female[,] religion[,] Hindu[,] national origin[,]
Indian[, and] age[, born] 1967.” (Id. (parentheses omitted) .)
3 The Amended Complaint additionally lists the late Mohamed
Bahie Abou-Donia as a defendant (see Docket Entry 5 at 3; see also
Docket Entry 15 at 2 (“return[ing] the summons [for Dr. Abou-Donia]
unexecuted” and giving reason as “Deceased ‘DOD 3-26-23'"”));
however, “a dead man obviously cannot be named party defendant in
an action,” Chorney v. Callahan, 135 F. Supp. 35, 36 (D. Mass.
1955); see also Laney v. South Carolina Dep’t of Corr., C/A No.
4:11-3487, 2012 WL 4069680, at *4 (D.S.C. May 8, 2012)
(unpublished) (“Obviously, a deceased person cannot be served and
respond to a lawsuit.”), recommendation adopted, 2012 WL 4069590
(D.S.C. Sept. 15, 2012) (unpublished). This Order thus will direct
Plaintiff to show cause why the Court should not dismiss the late
Dr. Abou-Donia from this action under the Federal Rules of Civil
Procedure (the “Rules”). See Goss v. Larry, No. 2:20CV2978, 2021
WL 2562407, at *2 (D.S.C. June 22, 2021) (unpublished) (agreeing
that purported defendant “named as a party [who] in fact died
before the commencement of the action . . . [should] be dismissed
without prejudice . . . pursuant to Rule 4(m)”).
Before Defendants responded to the Amended Complaint,
Plaintiff filed the First Amendment Motion, seeking “leave to file
[a second] amended complaint” (Docket Entry 9 at 2); in particular,
Plaintiff sought to add as defendants (A) Ericka Loretta Lewis, who
“handled [Plaintiff’s] complaints of harassment and assault at
[Defendant] Duke University” (id.; see also id. (“propos[ing Ms.
Lewis] as an additional defendant due to her culpability in failing
to address the harassment and retaliation [Plaintiff] was
experiencing at [Defendant] Duke University with the issuance of a
remedial action letter that [Plaintiff] was entitled to, per
[Defendant] Duke University[’s] policy”)), and (B) Ashley Edwards-
Davis, who “handled [Plaintiff’s] complaints of retaliation at
[Defendant] Duke University” (id. at 2-3; see also id. at 3
(“propos[ing Ms. Edwards-Davis] as a defendant, because, in
addition to causing undue delay in the investigatory process for
retaliation by not utilizing the evidence [Plaintiff] had already
collected for Ms. Lewis and instead, having [Plaintiff] recount
everything [she] had previously discussed with Ms. Lewis while
[Plaintiff] was undergoing an investigation [her]self, Ms. Edwards-
Davis engaged in discriminatory conduct against [Plaintiff] by
referring to [her] as Geeta during multiple meetings”)). Plaintiff
also requested leave “to add an additional claim of breach of [the]
implied covenant of good faith and fair dealing, [based on] the
same set of facts as the claims raised before.” (Id. at 3.)
4
Eight days later (but still prior to any response by
Defendants to either the Amended Complaint or the First Amendment
Motion), Plaintiff filed the Second Amendment Motion, requesting:
leave of court to file [a second] amended complaint in
order to restate all amendments requested in the [First
Amendment M]otion, change the identification of
[D]efendant Duke University School of Medicine to Duke
University, add 42 U.S. Code § 1981 as another basis for
jurisdiction, upon which [she] can pursue individual
liabilities for [Individual D]efendants[,] and challenge
the enforceability and the conscionability [sic] of being
subject to binding arbitration under [Defendant] Duke
[University’s d]ispute [r]esolution process.
(Docket Entry 10 at 2 (internal quotation marks omitted).)
Defendants have opposed the Amendment Motions (see Docket Entry 19)
and Plaintiff has replied (see Docket Entry 28).
DISCUSSION
“Defendants oppose[d] [the Amendment Motions] on two grounds.”
(Docket Entry 19 at 2.) “First, [Defendants argued that] all of
Plaintiff’s claims in this action, including the proposed new
claims, are subject to binding arbitration under [Defendant] Duke
[University’s] Dispute Resolution Process . . . .” (Id.; see also
id. (noting that Defendants had moved to compel arbitration or
dismiss for want of subject matter jurisdiction/proper venue).)
The Court (per Chief United States District Judge Catherine C.
Eagles), however, recently “ordered that [Defendants’] motions to
compel arbitration or dismiss [we]re denied.” (Docket Entry 44 at
1 (internal citation and all-caps and bold font omitted) (adopting
Docket Entry 41)), thereby (A) foreclosing Defendants’ first
5
argument in opposition to the Amendment Motions and (B) mooting
Plaintiff’s proposed amendment of the Amended Complaint to
“challenge the enforceability and the conscionability [sic] of
being subject to binding arbitration” (Docket Entry 10 at 2).
“Second, [Defendants contended that the Amendment M]otions
should be denied because [Plaintiff’s proposed] amendments would be
futile.” (Docket Entry 19 at 2 (emphasis added).) Because (as
documented in the Introduction) Plaintiff already has amended her
pleading once as of right and Defendants have not consented to the
proposed amendments, those amendments require “the [C]ourt’s
leave.” Fed. R. Civ. P. 15(a)(2). Under Rule 15(a), “leave to
amend a pleading should be denied . . . [when] the amendment would
have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.
2006) (en banc) (emphasis added) (internal quotation marks
omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(identifying “futility of amendment” as basis for denying leave to
amend). “Futility is apparent if the proposed amend[ment ] fails
to state a claim under the [ R]ules and accompanying standards.”
Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir.
2011). In other words, if Plaintiff’s “proposed amend[ments do]
not properly state a claim under Rule 12(b)(6) . . .[, they] would
be futile.” United States ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008) (emphasis added).
6
Under Rule 12(b)(6), “a plaintiff must plead enough factual
allegations ‘to state a claim to relief that is plausible on its
face.’” Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). That
standard requires the Court to “test the sufficiency of
[Plaintiff’s proposed claims], not to resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses.” Id. (internal quotation marks omitted). “Thus, . . .
[the C]ourt must consider the factual allegations [proffered in
support of amendment] as true and draw all reasonable inferences in
favor of [ P]laintiff.” Id. “But importantly, [pleading a
plausible claim] ‘requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action[ ] will
not do.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). Finally, to state a claim under Rule 12(b)(6), “[a]
complaint must contain ‘factual allegations sufficient to raise a
right to relief above the speculative level.’” Id. (internal
brackets omitted) (quoting Twombly, 550 U.S. at 555); see also
Iqbal, 556 U.S. at 678 (“The plausibility standard . . . asks for
more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line
7
between possibility and plausibility of entitlement to relief.”
(internal quotation marks omitted)).4
As concerns the proposed addition of Ms. Lewis and Ms. Edwards
Davis, Defendants correctly noted, “[t]o start, [that P]laintiff
may not bring claims pursuant to Title VII or the ADEA against
individual defendants.” (Docket Entry 19 at 5 (citing, inter alia,
Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999), and
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.
1994)); see also Docket Entry 10 at 2 (conceding that Title VII and
ADEA “do not permit naming individual parties”).)5 “Turning to
Plaintiff’s proposed Section 1981 claim, [Defendants have argued
that] the trivial allegations she [has] ma[de] against [Ms.] Lewis
and [Ms.] Edwards-Davis are insufficient to state a plausible claim
for relief.” (Docket Entry 19 at 8.) In conjunction with that
argument, Defendants emphasized that “Plaintiff provide[d] no
factual allegations to support an inference that [Ms. Lewis and Ms.
Edwards-Davis] treated [Plaintiff] differently based on her race
. . . .” (Id. at 9 (emphasis added).)
“Section 1981 guarantees to all persons in the United States
‘the same right to make and enforce contracts as is enjoyed by
4 Those pleading standards apply notwithstanding Plaintiff’s
pro se status. See Bing, 959 F.3d at 618.
5 Given that concession, the Court will require Plaintiff to
show cause why the Court should not dismiss any claim by Plaintiff
against Individual Defendants under Title VII and/or the ADEA.
8
white citizens.” Spriggs v. Diamond Auto Glass, 165 F.3d 1015,
1017 (4th Cir. 1999) (internal ellipses omitted) (quoting 42 U.S.C.
§ 1981(a)). “Although [Section] 1981 does not itself use the word
‘race,’ the [United States Supreme] Court has construed [ S]ection
[1981] to forbid all ‘racial’ discrimination in the making of
private as well as public contracts.” Saint Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 609 (1987) (emphasis added).
More specifically, Section 1981 “protect from
discrimination identifiable classes of persons who are subjected to
intentional discrimination solely because of their ancestry or
ethnic characteristics. Such discrimination is racial
discrimination that Congress intended [Section] 1981 to forbid
.. .” %Id. at 613 (emphasis added); see also James v. Benjamin,
No. 3:17CV491, 2019 WL 8757191, at *5 (D.S.C. Dec. 10, 2019)
(unpublished) (“Section 1981 guarantees egual rights to all persons
in the United States ‘to make and enforce contracts . . .’
regardless of race or color.” (emphasis added) (quoting 42 U.S.C.
§ 1981(a))), recommendation adopted, 2020 WL 1129830 (D.S.C. Mar.
6, 2020) (unpublished), appeal dismissed, 827 F. App’x 317 (4th
Cir. 2020). Coordinately, “the term ‘make and enforce contracts’
includes the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b); see also Spriggs, 165 F.3d at 1018-19 (“[A]n at-will
employment relationship is contractual, [and] . . . such
relationships may therefore serve as predicate contracts for
[Section] 1981 claims.”). “A [Section] 1981 action, then, must be
founded on purposeful, racially discriminatory actions that affect
at least one of the contractual aspects listed in [Section]
1981(b).” Spriggs, 165 F.3d at 1018.
The First Amendment Motion “propose[s Ms. Lewis] as an
additional defendant due to her culpability in failing to address
the harassment and retaliation [Plaintiff] was experiencing at
[Defendant] Duke University with the issuance of a remedial action
letter that [she] was entitled to, per [Defendant] Duke
University[’s] policy.” (Docket Entry 9 at 2; see also Docket
Entry 28 at 5 (“In regards to Ms. Lewis’[s] individual liability,
[Plaintiff] submit[ted] to this Court [an e]xhibit [], which
contains an admission from Ms. Lewis that she did not issue a
remedial action report, which [Plaintiff] was entitled to under
[Defendant] Duke [University’s] policy.” (referring to Docket Entry
28-1)).) That proposed Section 1981 claim cannot proceed.
“[I]n an action brought pursuant to [Section] 1981, a
plaintiff must show that race is a[] ‘but-for’ cause of the
discriminatory action.” Cunningham v. Wells Fargo N.A., No.
3:19CV528, 2020 WL 5300843, at *10 (W.D.N.C. Sept. 4, 2020)
(unpublished). The allegations on which Plaintiff relies for her
Section 1981 claim against Ms. Lewis “establish[] that [Plaintiff]
10
belongs to a racial minority group and that the alleged
discrimination [by Ms. Lewis] involves contractual relationships
under which [Plaintiff] has rights.” Hewlett v. Permanent Gen.
Assurance Corp., No. 3:15CV553, 2016 WL 3919460, at *3 (E.D. Va.
July 20, 2016) (unpublished). “[Plaintiff has] fail[ed], however,
to plead sufficient facts to show that [Ms. Lewis] intended to
discriminate against [Plaintiff based on her race].” Id. Put
another way, as to Ms. Lewis, “[Plaintiff has] plead[ed]
allegations of race discrimination that ‘are nothing more than the
sort of unadorned allegations of wrongdoing to which Twombly and
Iqbal are directed.’” Id. (quoting Francis v. Giacomelli, 588 F.3d
186, 195-96 (4th Cir. 2009)). Such allegations “are not sufficient
to surpass the speculative level or render plausible [Plaintiff’s]
right to relief against [Ms. Lewis under Section 1981].” Id.6
Plaintiff’s allegations about Ms. Edwards-Davis similarly do
not support a claim for racial discrimination under Section 1981.
According to the First Amendment Motion, Ms. Edwards-Davis, who
“handled [Plaintiff’s] complaints of retaliation at [Defendant]
6 Indeed, the Amended Complaint contains numerous allegations
that negate any inference that racial animus against Plaintiff
motivated Ms. Lewis’s conduct in relation to Plaintiff, including
allegations (A) that Ms. Lewis helped Plaintiff reclaim her
personal computer from Defendant McDonnell (see Docket Entry 5 at
31), (B) that, during their interactions while Ms. Lewis
investigated Plaintiff’s reports of sexual harassment, “Ms. Lewis
was very obliging” (id. at 32), and (C) that Ms. Lewis’s
investigation resulted in the issuance of a report “conclud[ing
that] . . . sexual harassment . . . occurred in [PCB]” (id. at 36).
11
Duke University following Ms. Lewis’[s] promotion” (Docket Entry 9
at 2-3; accord Docket Entry 5 at 36, 39):
is being proposed as a defendant, because, in addition to
causing undue delay in the investigatory process for
retaliation by not utilizing the evidence [Plaintiff] had
already collected for Ms. Lewis and instead[] having
[Plaintiff] recount everything [she] had previously
discussed with Ms. Lewis while [Plaintiff] was undergoing
an investigation [her]self, Ms. Edwards-Davis engaged in
discriminatory conduct against [Plaintiff] by referring
to [her] as Geeta during multiple meetings, [i.e., the
first name of Defendant Swamy,] who is also Indian.
Docket Entry 9 at 3; see also Docket Entry 5 at 36 (“I had to re-
explain [to Ms. Edwards-Davis] the whole process of what happened
and forward evidence I had already sent to Ms. Lewis multiple
times. I believe this practice was done to slow down the process
and delay me from working towards my grant proposal . . . .”), 39
(“[Ms. Edwards-Davis] referred to me as Geeta in many of [our]
meetings. [Defendant] Swamy, whose first name is Geeta, and I are
both Indian, but[,] given the nature of the concerns I was having,
I found this behavior to be discriminatory . . . .”).)
Even “consider[ing] th[ose] factual allegations . . . as true
and draw[ing] all reasonable inferences in favor of [ P]laintiff,”
Bing, 959 F.3d at 616, she (at most) has “plead[ed] facts that are
merely consistent with [Ms. Edwards-Davis’s] liability [under
Section 1981], [and thus has] stop[ped] short of the line between
possibility and plausibility of entitlement to relief,” Iqbal, 556
12
U.S. at 678 (internal quotation marks omitted) .’ Because the
proposed Section 1981 claim against Ms. Edwards-Davis (like the one
proposed against Ms. Lewis) fails as a matter of law, the Court
will deny Plaintiff leave to add Ms. Lewis and Ms. Edwards-Davis as
defendants in this case. See Kellogg Brown, 525 F.3d at 376.
In opposing the Amendment Motions, Defendants further
contended that (A) the “Amended Complaint and proposed amendments
do not contain sufficient factual allegations against [ I]ndividual
Defendants to support a claim for racial discrimination under
Section 1981” (Docket Entry 19 at 11-12; see also id. at 13
(“Plaintiff provides no factual allegations to support an inference
that she was treated differently based on her race by ([
I]ndividual[ Defendants].”)), and (B) “Plaintiff failf[ed] to offer
sufficient allegations to assert a Section 1981 claim against
[Defendant] Duke [University]” (id. at 14; see also id. (“As stated
7 In that regard, the First Amendment Motion identifies no
allegations that could support a reasonable inference that (A) Ms.
Edwards-Davis’s references to Plaintiff as “Geeta” reflected intent
to discriminate based on race, rather than innocent mistakes, or
(B) Ms. Edwards-Davis’s insistence on obtaining information from
Plaintiff directly (in lieu of relying on Ms. Lewis’s prior
investigation) constituted a racially motivated plot to impede
Plaintiff’s efforts to expose retaliation for reporting sexual
harassment, instead of mere bureaucratic rigidity. (See Docket
Entry 9 at 2-3; see also Docket Entry 28 at 5 (arguing, as to Ms.
Edwards-Davis, only that her “individual actions contributing to
racial discrimination are detailed in the Complaint (Doc. No. 1),”
without pointing to any particular allegations) .) Accordingly,
“[P]laintiff[ ] ha[s] not nudged [her proposed Section 1981] claim|[
against Ms. Edwards-Davis] across the line from conceivable to
plausible,” Twombly, 550 U.S. at 570.
13
above, Plaintiff has not sufficiently alleged any facts to show
racial discrimination.”)). Plaintiff did not directly address
those contentions in her reply. (See Docket Entry 28 at 1-6.) The
Court’s review of the Amended Complaint (and the two related,
proposed amended pleadings’) confirmed that Plaintiff has tendered
no factual allegations remotely indicative of racial discrimination
by Defendants Swamy or Duckett; however, the Amended Complaint
makes these race-related, factual allegations pertaining to
Defendants Duke University, McDonnell, Klotman, and Dowell-Newton:
8 The Amended Complaint spans 51 pages, consisting of a six-
page standard form (see Docket Entry 5 at 1-2, 4-5, 49, 51),
interspersed with (A) a page listing Defendants and the late-Dr.
Abou-Donia (see id. at 3), (B) 43 (single-spaced) pages detailing
Plaintiff’s factual allegations and claims (see id. at 6-48), and
(C) a page requesting relief (see id. at 50). Plaintiff submitted
with the First Amendment Motion a proposed amended pleading that
features (A) five pages of the same standard form (see Docket Entry
9-1 at 1-2, 5, 50, 52), (B) a two-page list of defendants, which
adds Ms. Lewis and Ms. Edwards-Davis (see id. at 3-4), (Cc) 44
(single-spaced) pages (including one duplicate page) detailing
Plaintiff’s factual allegations and claims (see id. at 6-49; see
also id. at 35-36 (duplicating same page twice)}, and (D) a page
requesting relief (see id. at 51). The First Amendment Motion
states that its companion, proposed pleading alters the Amended
Complaint in unspecified ways “to ensure accuracy and readability”
(Docket Entry 9 at 4) and promises that “sections that have been
edited will be highlighted” (id.), but no such highlighting appears
in that proposed pleading (see Docket Entry 9-1 at 1-52). In any
event, the factual allegations in the Amended Complaint and that
proposed pleading do not appear to materially differ. (Compare
Docket Entry 5 at 6-48, with Docket Entry 9-1 at 6-49.) Plaintiff
also filed another proposed pleading with the Second Amendment
Motion (see Docket Entry 10-1), as well as some exhibits pertaining
to the (now-moot) arbitration issue (see Docket Entry 10-2). That
second proposed pleading lacks factual allegations and a relief
request. (See Docket Entry 10-1 at 1-8.)
14
1) “f[o]Jn May 1, 2018, [Plaintiff] received a letter of
congratulations from DoD[, i.e., the Department of Defense,] saying
that a proposal [she] had submitted in 2017 was recommended for
funding” (Docket Entry 5 at 10);
2) “[o]Jn May 29, 2018, Dr. Abou-Donia took [Plaintiff] to
[Defendant] McDonnell . . . to recommend [Plaintiff] for a position
change from research scientist to research assistant professor”
(id.; see also id. (alleging that Plaintiff’s “base salary was
$47,000, which is the lowest in [PCB]”));
3) “[Defendant] McDonnell told [Plaintiff] that, if DoD
agree[d] to provide [Plaintiff] with a 100% salary, [they could]
talk about [a] position change” (id.), but “that, ultimately, the
decision to change [Plaintiff’s] position rested with the Dean,
[Defendant] Klotman” (id.);
4) “[h]owever, in [Defendant McDonnell’s] lab, at that time,
all of the scientists (who were lighter-skinned than [Plaintiff])
who got a grant were immediately promoted to research faculty
positions” (id. (emphasis added); see also id. (alleging Defendant
McDonnell “ha[d] 5 research assistant professors in his lab”)); and
5) “PCB administration, among whom [Defendant] Dowell-Newton
was in charge, failed to keep appropriate records of [Plaintiff’s]
submitted grant, although they did this for others in PCB who
received grants, all of whom were lighter skinned than [Plaintiff]”
(id. at 11 (emphasis added); see also id. (“[Defendants] Klotman
15
and Duke University failed to ensure that PCB administration
maintained appropriate records for all researchers, creating a work
environment that facilitated the creation of disparities.”)).
Those factual allegations, taken “as true [with] all
reasonable inferences in favor of [ P]laintiff,” Bing, 959 F.3d at
616, would permit a reasonable fact-finder to infer that she
suffered “purposeful, racially discriminatory actions that
affect[ed] at least one of the contractual aspects listed in
[Section] 1981(b),” Spriggs, 165 F.3d at 1018, including the
“performance[ and] modification . . . of [her employment] contract[
with Defendant Duke University], and the enjoyment of all benefits,
privileges, terms, and conditions of th[at] contractual
relationship,” 42 U.S.C. § 1981(b). As a result, the Court will
deem the Amended Complaint amended to assert race discrimination
claims under Section 1981 (A) against Defendants Duke University,
McDonnell, and Klotman, for failing to promote Plaintiff to
research assistant professor after she obtained the DoD grant, and
(B) against Defendants Duke University, Klotman, and Dowell-Newton,
for failing to keep proper records for Plaintiff’s DoD grant.
The foregoing analysis leaves only Plaintiff’s request “to add
an additional claim of breach of implied covenant of good faith and
fair dealing, which arises from the same set of facts as the claims
16
raised [in the Amended Complaint].” (Docket Entry 9 at 3.)9 Per
the First Amendment Motion, the facts alleged in the Amended
Complaint support this proposed claim because they establish that:
[D]efendants . . . failed to timely, transparently, and
adequately address concerns over the integrity of their
investigatory practices, particularly in regards to the
chain of events implicating [Defendant] Duke University’s
own lack of security that was never investigated at the
time, and that [Plaintiff] was later held responsible
for, despite providing evidence of the lack of systems in
place to ensure data security and the subsequent loss of
data, the intentions of Dr[]. Abou-[D]onia and
[Defendant] McDonnell to engage in bad faith actions
against [Plaintiff] to affect [her] career, and the
support of [Defendants] Duke University, [] Klotman,
Swamy, Duckett, and [] Dowell-Newton, [as well as Ms.]
Lewis[] and [Ms.] Edwards-Davis[,] in enabling these
actions by [Defendant] McDonnell and [Dr.] Abou-[D]onia,
while[,] in so doing, violating [Defendant] Duke
University’s own policies in regards to scientific
misconduct investigations and acting in good faith.
(Id. at 3-4; see also id. at 4 (“The evidence associated with this
claim will contribute to a comprehensive understanding of how
institutional processes were wrongfully weaponized against
[Plaintiff].”).)
In opposition to this proposed amendment, Defendants countered
that, although “North Carolina does recognize a claim for a breach
of the implied covenant of good faith and fair dealing, it must
arise from an alleged contractual arrangement and Plaintiff
9 The First Amendment Motion also seeks leave “to add . . .
two items of relief requested” (Docket Entry 9 at 2), but fails to
elaborate on or develop any support for that proposed addition (see
id. at 2-5), in contravention of the requirement that motions to
amend “must state good cause,” M.D.N.C. LR 7.3(j). The Court
therefore will not consider that matter.
17
fail[ed] to identify an underlying contract that would serve as the
basis for this claim.” (Docket Entry 19 at 9-10; see also id. at
10 (“Plaintiff has not alleged the existence of a valid contract
which any . . . Defendants breached. . . . [Defendant] Duke
[University’s] research misconduct policy is not a contract with
Plaintiff.”).) Plaintiff’s reply, in turn, insisted that “[she]
did have a contract with [Defendant] Duke University concerning
their [sic] research misconduct policy . . . .” (Docket Entry 28
at 5-6 (citing Docket Entry 28-2); see also Docket Entry 28-2 at 1-
4 (incorporating e-mails showing that Plaintiff executed a “Science
Culture and Accountability Plan” with Defendant Duke University,
which imposed “personal and institutional obligat[ions]” and which
Defendant McDonnell thereafter invoked on behalf of Defendant Duke
University to mandate certain acts by Plaintiff).)
Under these circumstances, the Court concludes that, as to the
proposed claim for breach of an implied covenant of good faith and
fair dealing against Defendant Duke University10 in connection with
the research misconduct investigation against Plaintiff, the
Amended Complaint “plead[s] enough factual allegations to state a
claim to relief that is plausible on its face,” Bing, 959 F.3d at
10 Plaintiff’s reply refers only to her “contract with
[Defendant] Duke University” (Docket Entry 28 at 5), without
contending that she entered into a contract with Individual
Defendants (or Ms. Lewis and Ms. Edwards-Davis) which could support
Plaintiff’s assertion of a claim for breach of implied covenant of
good faith and fair dealing against them. (See id. at 5-6.)
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616 (internal quotation marks omitted). The Court thus will deem
the Amended Complaint further amended to include that claim.
CONCLUSION
Duke University should take the place of Duke University
School of Medicine as a defendant in this case and the factual
allegations in the Amended Complaint suffice at this stage to
permit Plaintiff to pursue certain additional claims against
certain defendants; however, other claims she has proposed
(including all such claims against Ms. Lewis and Ms. Edwards-Davis)
would fail as a matter of law. It also appears that Plaintiff
cannot proceed against Dr. Abou-Donia and cannot maintain Title VII
and/or ADEA claims against Individual Defendants.
IT IS THEREFORE ORDERED that the Amendment Motions (Docket
Entries 9, 10) are GRANTED IN PART AND DENIED IN PART, in that
(A) “Duke University” is substituted for “Duke University School of
Medicine” as a defendant in this case, and (B) the Amended
Complaint (Docket Entry 5) is deemed amended to assert (i) a race
discrimination claim under Section 1981 against Defendants Duke
University, McDonnell, and Klotman, for failing to promote
Plaintiff to research assistant professor after she obtained the
DoD grant, (ii) a race discrimination claim under Section 1981
against Defendants Duke University, Klotman, and Dowell-Newton, for
failing to keep proper records for Plaintiff’s DoD grant, and
(iii) a state-law claim for breach of the implied covenant of good
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faith and fair dealing against Defendant Duke University in
connection with the research misconduct investigation against
Plaintiff, but (C) leave to amend is otherwise denied.
IT IS FURTHER ORDERED that, on or before October 15, 2024,
Plaintiff shall show cause, in writing, why the Court should not
dismiss this action as against the late Dr. Abou-Donia under Rule
4(m). Failure by Plaintiff to comply with this Order shall result
in the dismissal without prejudice of the late Dr. Abou-Donia.
IT IS FURTHER ORDERED that, on or before October 15, 2024,
Plaintiff shall show cause, in writing, why the Court should not
dismiss any Title VII and ADEA claims against Defendants McDonnell,
Klotman, Swamy, Duckett, and Dowell-Newton, in light of Plaintiff’s
concession that such claims only lie against her employer (not
other, even supervisory, employees). Failure by Plaintiff to
comply with this Order shall result in the dismissal without
prejudice of any Title VII and ADEA claims against Defendants
McDonnell, Klotman, Swamy, Duckett, and Dowell-Newton.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 23, 2024
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