Bryant v. Newton

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:24-CV-159-FL-KS

TANIKA LYNETTE BRYANT, )

)

Plaintiff, )

) OORDER and

v. ) MMEMORANDUM &

) RRECOMMENDATION

LIVING WITH AUTISM, INC., )

CATHY NEWTON, Executive Director, )

PHANISIA (LNU), Staff Member, and )

HENNA ELLIS, CEO, )

)

Defendants. )

This pro se case is before the court on the application [DE #2] by Plaintiff

Tanika Lynnette Bryant to proceed in forma pauperis pursuant to 28 U.S.C.

§ 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter

having been referred to the undersigned by United States District Judge Louise W.

Flanagan. For the reasons set forth below, the court allows Plaintiff’s request to

proceed in forma pauperis and recommends that Plaintiff’s complaint be dismissed in

its entirety.

IFP MOTION

The standard for determining in forma pauperis status is whether “one cannot

because of his poverty pay or give security for the costs . . . and still be able to provide

himself and dependents with the necessities of life.”

, 335 U.S. 331, 339 (1948). Based on the information contained in the

application, Plaintiff’s application to proceed without prepayment of costs is allowed.

DDISCUSSION

I. Background

From January 5, 2024, until January 15, 2024, Plaintiff was employed as a

Professional Care Specialist with Living with Autism, Inc. (Am. Compl. Ex. 6 [DE #5-

6] at 2–3, Ex. 7 [DE #5-7] at 1.) On March 12, 2024, Plaintiff brought this action

alleging she had been discriminated against in her employment in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”) based upon her color, race, and religion.

Plaintiff’s operative complaint1 names Living with Autism, Inc., and three

individuals employed by Living with Autism, Inc., as defendants. (Am. Compl.)

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) (EEOC Charge [DE #5-1]) and was issued a notice of right to

sue on February 22, 2024 (Notice Right Sue [DE #5-9].)

Construed liberally, Plaintiff’s complaint appears to allege that she was

constructively discharged from employment following an incident with the Executive

Director concerning Plaintiff’s response to an autistic client’s statement that Plaintiff

should go back to Jerusalem. According to Plaintiff, the client made the statement

while pointing to Plaintiff’s headwear, and Plaintiff responded by saying something

1 Plaintiff initiated this action upon filing a complaint on March 12, 2024.

(Compl. [DE #1].) Plaintiff filed an amended complaint on April 9, 2024. (Am. Compl.

[DE #5].)

to the effect of “[Oh], Lord Jesus, I might have to take this bonnet off.”2 (Am. Compl.

Ex. 7 [DE #5-7] at 1.) Plaintiff states the Executive Director told her not to speak to

the client in that manner and an altercation then ensued. Plaintiff alleges she was

told to go home – that she was fired. (Am. Compl. Ex. 5 at 1.) In an email to Human

Resources, Plaintiff recounted the events as follows:

So today, around 11:30 I was going to warm up Parke food while

he was still taking a nap but being that somebody else was already

sitting i let him and his clinet eat first then i will come back as im

standing there cathy clinet came over to me pointing talking about my

headscarf i jerusalem he dont like them i didnt say anything until he

came back i said oh no im sorry i must look different with this on he

walked away i found it funny outta nowhere cathy yelling shouting

talking about oh no you dont talk to my client like that im looking

confused like what did is something wrong she said yeah who do you

think you are talking to him like that im like i didnt say anything out

the way i asked her to [illegible] face saying you dont know who i am go

home get out our fired im like what you might need a break i asked you

to get outta my face step ba[ck] to the office i then said dont talk to me

like that im grown your grown im not going in the office with you right

now and your mad for no reas[on] what was going on she asked me to

come in the office with her to tell her what was going on as i was doing

that cathy come back in there i think i am coming in here trying to

change things i dont run nothing my options are not need i said hold on

she cut me off all you been doi[ng] looked her and said what are you

talking about i wont complaining im was asking questions your speaking

on something you dont know wh mary about somethings like whats

wrong with you did you build this you dont know who i am and i said if

you hold a position high asking an be carrying yourself in this matter

this is my palce this is my building i walked away went outside i came

back inside talking to tamikia cathy from talking talking about you

people come in here taking to take over why you dent have your own

place I told her because i dont want one know who i am im over you i

can say and do what i want your fired i said for what she called out two

things i said thats a lies how could you intimidated about how i carry

myself and how i work with the knowledge i have i come to work to work

2 In an email to Human Resources, Plaintiff states she said “[O]h no [I’]m sorry

I must look different with this on,” at which point the client walked away. (Am.

Compl. Ex. 5 [DE #5-5] at 1.)

she then said and point at me up and you this i asked her what she mean

by calling me this i have a name and i am somebody at this point tamika

said this need to stop cathy sa[y] tomesha tum to her and said no she

dont cathy then say i have no right to talk or express my opinions while

im there we left out i went to w american females over one was real big

tall and very dark and the other one was skinny with a red wig on cathy

told her to tell me to leave role there she tell me its none of my business

this is cathy building she told you to leave you are now trespassing the

other one was telling to go get my bag and my cup cathy then jump back

in my face i told her to get outta my face for the last time she then hit

her body agents [ ] things the skinny came out behind as i was going out

the door and said i dont care i dont got nothing to do with it i said im not

scared nobo[dy] me she then said thats why your ass got walked outta

here i told her to go one leave me alone she walking to her car yelling

she dont want purse i stood there she was still talking so now you

threatened my life ok she standing there got something outta her car

and open the bac[k] phone about me i dont know the other lady that was

outside she was saying something to her if anything would've happen to

me cathy is [ ] memebers involved now this is a big problem. , I'm fired,

I'm fired get out, get out, I mean, just howling and screaming, not

thinking about th[e] for screaming. That's not okay, and then too. You

have these clients in here that you could be triggering. You're not even

thinking about the[m] how she was speaking to me and the things she

was saying I was being racially profiled by her saying you people, and

then she's pointing here. I'm asking, what do you mean this right here?

I have a name. It’s not this right here so as I proceed to walk out. She's

steady talking. she put a paper on the water machine and said you can

write anything that you want on that paper. I turned away from her.

Tanika Bryant

(Am. Compl. Ex. 5 at 1.)

Plaintiff alleges she was later told to come back to work and arrived at work

on January 26, 2024. (Am. Compl. Ex. 5 at 2.) Though not entirely clear, it appears

Plaintiff did not enter the building because the Executive Director was there and was

“not ready for [Plaintiff] to come back.” ( (“[J]azz made a call to hr to see what was

going on or whats theh next step just for kathy to say she not ready for me to come

back in the building . . . .”).)

III. Standard for Frivolity Review

Notwithstanding the determination that Plaintiff is entitled to IFP status, the

court is required to dismiss all or part of an action found to be frivolous or malicious,

which fails to state a claim on which relief can be granted, or which seeks money

damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B);

, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if

it lacks an arguable basis in either law or fact. , 490 U.S. 319, 325

(1989). Pro se complaints are entitled to a more liberal treatment than pleadings

drafted by lawyers. , 886 F.2d 721, 722–23 (4th Cir. 1989).

However, the court is not required to accept a pro se plaintiff’s contentions as true.

, 504 U.S. 25, 32 (1992). The court is permitted to “pierce the

veil of the complaint’s factual allegations and dismiss those claims whose factual

contentions are clearly baseless.” , 490 U.S. at 327. In making the “inherently

elastic” frivolity determination, , 376 F.3d 252, 256–57 (4th Cir.

2004), the court may “apply common sense,”

, 64 F.3d 951, 954 (4th Cir. 1995).

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a

“short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). The statement must give a defendant fair notice of what the

claim is and the grounds upon which it rests. , 550

U.S. 544, 555 (2007). A complaint is insufficient if it offers merely “labels and

conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked

assertion[s] devoid of further factual enhancement.” , 556 U.S. 662,

678 (2009) (quoting , 550 U.S. at 555, 557) (alteration in original) (internal

quotation marks omitted). “A plaintiff must offer more detail . . . than the bald

statement that he has a valid claim of some type against the defendant.”

, 275 F.3d 391, 405 (4th Cir. 2001); , 886 F.2d at 723 (affirming

district court’s dismissal of suit as frivolous where complaint “failed to contain any

factual allegations tending to support [plaintiff’s] bare assertion”). The complaint

must contain “enough facts to state a claim to relief that is plausible on its face.”

, 550 U.S. at 570. While the court must read the complaint carefully to

determine if the plaintiff has alleged facts sufficient to support her claims, , 886

F.2d at 724, the court is not required to act as the pro se plaintiff’s advocate or to

parse through volumes of documents or discursive arguments in an attempt to discern

the plaintiff’s unexpressed intent, , 716 F.3d 801, 805 (4th Cir.

2013).

IIII. Analysis of Plaintiff’s Claims

A. Title VII Claims

Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). A plaintiff can establish a Title VII discrimination violation by demonstrating

through direct evidence that illegal discrimination motivated an employer’s adverse

employment action or by proceeding under the burden-shifting framework set forth

in , 411 U.S. 792 (1973).

, 147 F. Supp. 3d 414, 421 (E.D.N.C. 2015) (citing

, 354 F.3d 277, 284–85 (4th Cir. 2004) (en banc)). “Direct

evidence is evidence from which no inference [of discrimination] is required.” ,

147 F. Supp. 3d at 421. “Absent direct evidence, the elements of a prima facie case of

discrimination under Title VII are: (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.”

, 626 F.3d 187, 190 (4th Cir. 2010) (citing

, 375 F.3d 288, 295 (4th Cir. 2004)).

To state a claim for discriminatory discharge under Title VII, a plaintiff must

plead facts sufficient to support a finding that she was terminated of her

race, color, religion, sex, or national origin. Allegations that are simply consistent

with discrimination do not suffice. , 780

F.3d 582, 586 (4th Cir. 2015) (concluding that complaint “stop[ped] short of the line

between possibility and plausibility of entitlement to relief” where the factual

allegations were “consistent with discrimination” but did not “alone support a

reasonable inference that the decisionmakers were motivated by” unlawful

discrimination).

11. Individual Claims

Plaintiff purports to assert Title VII claims against several individuals

employed with Living with Autism, Inc.: Henna Ellis, CEO; Cathy Newton, Executive

Director; and a staff member with the first name Phanisia. Individuals cannot be

found liable under Title VII. , 159 F.3d 177, 180–81

(4th Cir. 1998). Accordingly, these claims should be dismissed as frivolous or for

failure to state a claim upon which relief can be granted.

2. Employer Claims

Plaintiff’s Title VII claims against Living with Autism, Inc., also fail. Plaintiff's

complaint contains no factual allegations from which it could plausibly be inferred

that she was discharged (actually or constructively) because of her race, color, or

religion. Rather, her claims are premised upon conclusory statements of

discrimination, which are insufficient to survive review under 28 U.S.C.

§ 1915(e)(2)(B). , 275 F.3d at 405; , 886 F.2d at 723.

As to the claims for race and color discrimination, it appears as though Plaintiff

identifies herself as Black or African American.3 All of Plaintiff’s claims center

3 Plaintiff’s original complaint listed her race as “Black.” (Compl. at 3). That

complaint was superseded by Plaintiff’s amended complaint.

, 873 F.3d 451, 455 (4th Cir. 2017) (“Because a properly filed amended

complaint supersedes the original one and becomes the operative complaint in the

case, it renders the original complaint ‘of no effect.’” (quoting

, 238 F.3d 567, 573 (4th Cir. 2001))). While Plaintiff’s amended complaint does

not identify Plaintiff’s race or color, exhibits to the amended complaint variously

describe her as “Black or African American” (Am. Compl. Ex. 6 at 2–3, 10), “Color:

Brown, Race Biracial” (Am. Compl. Ex. 7 at 1), and Bi-Racial/Multi-Racial (Am.

Compl. Ex. 6 at 10).

around her conflict with the Executive Director, Cathy Newton. (Am. Compl. Ex. 6 at

2.) While Plaintiff claims Cathy made reference to “‘you’ people want[ing] to take

over,” no facts are alleged to suggest that statement was race- or color-based. ( )

The only other evidence of alleged race or color discrimination involves a derogatory

statement by a co-worker whose employment has since been terminated. ( at 3

(claiming “another employee came out of the building saying ‘get your black ass out

of here’” and that “this employee has since been terminated”.) If anything, Plaintiff’s

allegations suggest that racially derogatory statements are not tolerated in the

workplace. Plaintiff alleges no facts to support an inference that she was treated

differently because of her race or color. , 780 F.3d at 586.

Therefore, her Title VII race and color discrimination claims should be dismissed.

As to her religious discrimination claim, Plaintiff has not included any facts

indicating what her religion is ( Am. Compl. Ex. 7 at 1 (listing Plaintiff’s religion

as “not a certain one”); Am. Compl. Ex. 6 at 10 (“Religion – Not a Certain Religion))

or suggesting that she was discharged (constructively or actually) due to her religion.

Rather, the operative complaint suggests that the Executive Director reprimanded

Plaintiff for Plaintiff’s response to a client under the facility’s care, that an altercation

ensued, and that the Executive Director believed Plaintiff was insubordinate in her

actions toward management.

Plaintiff has failed to allege sufficient facts to support a Title VII claim of race,

color, or religious discrimination. Accordingly, her Title VII claims should be

dismissed.

BB. First, Fourth, and Fourteenth Amendment Claims

Plaintiff also asserts violations of her First Amendment rights to freedom of

speech and religion, as well as her Fourth and Fourteenth Amendment rights. (Am.

Compl. at 3.) Such claims are not cognizable. The First Amendment does not regulate

the conduct of private employers, such as Living with Autism, Inc.

, 369 F.3d 811, 819 (4th Cir. 2004). Nor do the Fourth and

Fourteenth Amendments. , 466 U.S. 109, 113 (1984)

(Fourth Amendment); , 457 U.S. 830, 837 (1982) (“[T]he

Fourteenth Amendment, which prohibits the states from denying federal

constitutional rights and which guarantees due process, applies to acts of the states,

not to acts of private persons or entities.”). These claims should therefore be

dismissed.

CONCLUSION

For the reasons stated above, Plaintiff’s application to proceed in forma

pauperis [DE #2] is ALLOWED and it is RECOMMENDED that Plaintiff’s complaint,

as amended, be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous or for

failure to state a claim upon which relief can be granted.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be

served on Plaintiff. Plaintiff is hereby advised as follows:

You shall have until DDecember 3, 2024, to file written objections to the

Memorandum and Recommendation. The presiding district judge must conduct his

own review (that is, make a de novo determination) of those portions of the

Memorandum and Recommendation to which objection is properly made and may

accept, reject, or modify the determinations in the Memorandum and

Recommendation; receive further evidence; or return the matter to the magistrate

judge with instructions. See, e.g., 28 U.S.C. § 636(b)(); Fed. R. Civ. P. 72(b)(3); Local

Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b)

(E.D.N.C. May 2023).

If you do not file written objections to the Memorandum and Recommendation

by the foregoing deadline, you will be giving up the right to review of the

Memorandum and Recommendation by the presiding district judge as described

above, and the presiding district judge may enter an order or judgment based on the

Memorandum and Recommendation without such review. In addition, your failure to

file written objections by the foregoing deadline may bar you from appealing to the

Court of Appeals from an order or judgment of the presiding district judge based on

the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47

(4th Cir. 1985).

This 19th day of November 2024.

Drm boalZ Aral

KIMBERIAY A. SWANK

United States Magistrate Judge

11