RUMLEY v. CITY OF GRAHAM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THOMAS RUMLEY, )

)

Plaintiff, )

)

v. ) 1:24CV323

)

CITY OF GRAHAM, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommended ruling on Defendants’ Partial

Motion to Dismiss Amended Complaint (Docket Entry 15; see also

Docket Entry 16 (Brief in Support)). (See Docket Entry dated Oct.

21, 2024.) For the reasons that follow, the Court should grant in

part and should deny in part the instant Motion.

INTRODUCTION

Plaintiff commenced this action in this Court by filing a

Complaint (Docket Entry 1), Defendants then moved to dismiss

certain of Plaintiff’s claims (see Docket Entry 9), and Plaintiff

thereafter filed an Amended Complaint (Docket Entry 12). The

Amended Complaint asserts the following claims:

1) “Deprivation of Rights in Violation of 42 U.S.C. § 1983

against All Defendants” (id. at 7);1

1 All quotations from the parties’ filings omit all-caps font,

bold, and underscoring. The assertion of a claim under Section

(continued...)

2) “Violation of North Carolina Wage and Hour Act” (id.) ;°

3) “Wrongful Termination in Violation of Public Policy

pursuant to N.C. Gen. Stat. § 143-422.2 against Defendant City of

Graham” (id. at 8 (space added));

4) “Breach of Implied Contract against Defendant City of

Graham” (id.);

5) “Tortious Interference with Employment Contract against

Defendants [Jason] Moore and [Tommy] Cole” (id. at 9); and

6) “Breach of Implied Duty of Good Faith and Fair Dealing

against [Defendant] City of Graham” (id. at 10).

Defendants countered by filing the instant Motion, “pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure, []

mov[ing the Court] to partially dismiss [the Amended] Complaint

1(...continued)

1983 gives rise to federal-question jurisdiction under 28 U.S.C.

§ 1331. See, e.g., Grable & Sons Metal Prods., Inc. v. Darue Eng’g

& Mfg., 545 U.S. 308, 312 (2005) (“[Section 1331’s] provision for

federal-question jurisdiction is invoked by and large by plaintiffs

pleading a cause of action created by federal law (e.g., claims

under 42 U.S.C. § 1983).” (italics omitted)). This Court’s

“original jurisdiction over [that] federal [claim] carries with it

jurisdiction over state law claims that derive from a common

nucleus of operative fact . . . .” City of Chicago v.

International Coll. of Surgeons, 522 U.S. 156, 164-65 (1997)

(internal quotation marks omitted); see also id. at 165 (“Congress

has codified those principles in the supplemental jurisdiction

statute . .. .” (citing 28 U.S.C. § 1367)). Plaintiff’s claims

appear to share a common factual nucleus. (See Docket Entry 12 at

2-10 (setting out “Factual Allegations” and asserting claims)

2 The heading for this claim does not identify the subject

Defendants, but the allegations thereunder target only the conduct

of Defendant City of Graham. (See Docket Entry 12 at 7-8.)

with prejudice for failure to state a claim upon which relief may

be granted.” (Docket Entry 15 at 1.) Specifically, the instant

Motion contends that (A) “Plaintiff has not alleged facts that

support a violation of the North Carolina Wage and Hour Act” (id.),

(B) “Plaintiff’s wrongful termination in violation of public policy

[claim] fails in part to the extent Plaintiff alleges his

termination was in retaliation for any alleged complaints of

discrimination” (id. at 2), (C) “Plaintiff’s claim for breach of

implied contract is subject to dismissal because Plaintiff has

failed to plead facts sufficient to support such a claim” (id.),

(D) “Plaintiff’s claim for tortious interference with contract is

subject to dismissal because Plaintiff has failed to show that

Defendants acted with legal malice” (id.), (E) “Plaintiff’s claim

for breach of implied duty of good faith and fair dealing is

subject to dismissal because Plaintiff has failed to plead facts

sufficient to support such a claim” (id.), and (F) “[t]he claims

asserted against the individual Defendants in their official

capacities are duplicative of the claims against [Defendant] City

of Graham” (id.). Plaintiff has responded in opposition (see

Docket Entry 17 (Response); Docket Entry 18 (Brief in Opposition))

and Defendants have replied (see Docket Entry 20 (Reply)).3

3 The parties’ filings concerning the instant Motion presume

that North Carolina law governs Plaintiff’s state law claims.

(See, e.g., Docket Entry 16 at 5-11 (discussing North Carolina law

in seeking dismissal of state law claims); Docket Entry 18 at 5-11

(continued...)

3

DISCUSSION

“To survive a motion to dismiss [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)). “The purpose of a Rule 12(b) (6) motion

is to test the sufficiency of a complaint, not to resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Id. (internal quotation marks omitted). “Thus, when

3(...continued)

(discussing North Carolina law in opposing dismissal of state law

claims) .) “A federal court . . . exercising supplemental

jurisdiction over state law claims must apply the substantive law

of the forum state, including the for[u]Jm state’s choice of law

rules.” Hill v. AQ Textiles LLC, 582 F. Supp. 3d 297, 318

(M.D.N.C. 2022) (Biggs, J.). “North Carolina courts follow the

First Restatement of Conflict of Laws in actions sounding in tort

and apply the tort law of the state where the injury occurred.”

Id. (citing, inter alia, SciGrip, Inc. v. Osae, 373 N.C. 409, 420,

838 S.E.2d 334, 343 (2020)). As to contractual claims, North

Carolina law provides “that the interpretation of a contract is

governed by the law of the place where the contract was made.”

Tanglewood Land Co., Inc. v. Byrd, 299 N.C. 260, 262, 261 S.E.2d

655, 656 (1980). With those precepts in mind, the Court (like the

parties) should look to North Carolina law to resolve Plaintiff’s

state law claims, as the facts alleged in the Amended Complaint

indicate that he suffered any tortious injury at Defendants’ hands

in North Carolina and made any contract with Defendant City of

Graham in North Carolina (see Docket Entry 12 at 2-10 (setting out

“Factual Allegations” and asserting claims)). “[T]Jhe highest court

of the state is the final arbiter of what is state law.” West v.

American Tel. & Tel. Co., 311 U.S. 233, 236 (1940). “Because North

Carolina currently has no mechanism for [federal courts] to certify

questions of state law to its Supreme Court, .. . [the Court] must

follow the decision of an intermediate state appellate court unless

there is persuasive data that the highest court would decide

differently.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398

(4th Cir. 2013) (internal quotation marks omitted).

considering a motion to dismiss, a court must consider the factual

allegations in the complaint as true and draw all reasonable

inferences in favor of the plaintiff.” 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)); see also Igbal, 556 U.S. at 678

(“[The pleading standard] demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation. .. . Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). Finally, to avoid

dismissal for failure to state a claim, “[a] complaint must contain

‘factual allegations sufficient to raise a right to relief above

the speculative level.’” Bing, 959 F.3d at 616 (internal brackets

and ellipsis omitted) (quoting Twombly, 550 U.S. at 555); see also

Igbal, 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

between possibility and plausibility of entitlement to relief.”

(internal citation and quotation marks omitted)).

North Carolina Wage and Hour Act Claim

“Under the [North Carolina Wage and Hour A]lct, an employer is

obliged to pay wages . . . when due.” New _v. Thermo Fisher

Scientific, Inc., No. 1:19CV807, 2022 WL 787954, at *12 (M.D.N.C.

Mar. 15, 2022) (unpublished) (Schroeder, C.J.) (citing N.C. Gen.

Stat. § 95-25.6). Furthermore, “[t]he [North Carolina] Wage and

Hour Act . . . provides that ‘for the purposes of [Section] 95-25.6

. . . “wage” includes . . . vacation pay . . . when the employer

has a policy or a practice of making such payments.’” Id.

(internal brackets omitted) (quoting N.C. Gen. Stat. § 95-

25.2(16)). “Any employer who violates the provisions of . . .

[N.C. Gen. Stat.] §§ 95-25.6 through 95-25.12 (Wage Payment) shall

be liable to the employee . . . in the amount of . . . unpaid

amounts due . . ., plus interest at the legal rate . . . from the

date each amount first came due.” N.C. Gen. Stat. § 95-25.22(a);

see also N.C. Gen. Stat. § 95-25.22(a1) (authorizing liquidated

damages in some cases); N.C. Gen. Stat. § 95-25.22(b) (creating

private right of action for employees to recover amounts due); N.C.

Gen. Stat. § 95-25.22(d) (permitting recovery by employee of “costs

and fees of the action and reasonable attorneys’ fees”).

The Amended Complaint alleges that, “[o]n or around November

28, 1996, Plaintiff started working with [Defendant] City [of

Graham] and began working for [its] Fire Department [on] April 2,

2002.” (Docket Entry 12 at 2.) According to the Amended

Complaint, (A) “[Defendant] City [of Graham] offers an accrual

vacation benefit . . . based on the employee’s years of service.”

(Id. at 8 (citing Docket Entry 12-1); see also Docket Entry 12-1 at

6

3 (indicating that employees of Defendant City of Graham with “20+

Years of Service” receive “20 days / 13.33 hours” of vacation

“[a]ccrued [p]er [y]ear/[h]ours [p]er [m]onth”)), and (B) its

“Personnel Policy Manual provides that ‘employees shall be granted

the use of earned vacation leave upon request in advance at those

times designated by the department head which will least obstruct

normal operations of [Defendant C]ity [of Graham]’” (Docket Entry

12 at 8 (internal brackets omitted)). The Amended Complaint

additionally alleges that, “[o]n or around June 28, 2022, Plaintiff

requested vacation time off from [the Fire Department Chief,

Defendant] Cole” (id. at 5), who “responded that Plaintiff had to

sign his evaluation to get his time off” (id.), despite that fact

that “[t]here is nothing in the policy requir[ing] an employee to

sign an evaluation to exercise their earned vacation benefit” (id.

at 8). Finally (as concerns this claim), the Amended Complaint

alleges that “[Defendant] City [of Graham] improperly withheld the

wage benefit of paid vacation time off because Plaintiff did not

sign his evaluation, which is a reason not covered under North

Carolina law or [Defendant] City [of Graham’s] policy.” (Id.; see

also id. (“[Defendant] City [of Graham] failed to give all vacation

time off or payment in lieu of time off in accordance with the

company policy or practice.”).)

Defendants’ Brief in Support of the instant Motion

acknowledges that, under North Carolina law, “‘if an employer

7

provides [such] promised benefits for employees, the employer shall

give all vacation time off or payment in lieu of time off in

accordance with the company policy or practice.’” (Docket Entry 16

at 5 (quoting N.C. Gen. Stat. § 95-25.12).) In Defendants’ view,

“[the] Amended Complaint is still devoid of factual support that

[Plaintiff] was not allowed to take vacation time . . . .” (Id.;

see also id. (“[T]here is no allegation that [Plaintiff] was

prevented from taking off or receiving benefits.”).) “As such,

[Defendants have contended] this claim should be dismissed.” (Id.)

The Brief in Opposition to the instant Motion, in turn, points

to the plain language of the North Carolina Wage and Hour Act,

which mandates that “‘[e]mployees shall be notified in accordance

with [N.C. Gen. Stat. §] 95-25.13 of any policy or practice which

requires or results in loss or forfeiture of vacation time or pay.

Employees not so notified are not subject to such loss or

forfeiture.’” (Docket Entry 18 at 5-6 (quoting N.C. Gen. Stat.

§ 95-25.12).)4 Based on that statutory language and the Amended

Complaint’s allegations, the Brief in Opposition maintains that

“Plaintiff has sufficiently pled a plausible [North Carolina] Wage

and Hour Act violation.” (Id. at 5.) The Court should agree.

4 The cross-referenced provision requires, inter alia, written

notice to new employees “of the promised wages,” N.C. Gen. Stat.

§ 95-25.13(1), written or conspicuously posted notice of “practices

and policies with regard to promised wages,” N.C. Gen. Stat. § 95-

25.13(2), and written notice “at least one pay period prior to any

changes in promised wages,” N.C. Gen. Stat. § 95-25.13(3).

8

As noted above, the Amended Complaint alleges that “[t]here is

nothing in [Defendant City of Graham’s] policy requir[ing] an

employee to sign an evaluation to exercise their earned vacation

benefit.” (Docket Entry 12 at 8). That allegation supports a

reasonable inference that Defendant City of Graham could not have

“notified [Plaintiff] in accordance with [N.C. Gen. Stat. §] 95-

25.13 of any policy or practice [that failure to sign an

evaluation] requires or results in loss or forfeiture of vacation

time or pay,” N.C. Gen. Stat. § 95-25.12.5 Accordingly, under the

North Carolina Wage and Hour Act, Plaintiff was “not subject to

such loss or forfeiture [of paid vacation time],” id., but,

nonetheless (per the Amended Complaint), “[Defendant] City [of

Graham] improperly withheld the wage benefit of paid vacation time

off because Plaintiff did not sign his evaluation” (Docket Entry 12

at 8).6 “[C]onsider[ing] th[ose] factual allegations in the

[Amended C]omplaint as true and draw[ing] all reasonable inferences

in favor of [ P]laintiff,” Bing, 959 F.3d at 616, he has “plead[ed]

5 Simply put, if Defendant City of Graham’s policy did not

identify failure to sign an evaluation as a basis for denial of

paid vacation time (as the Amended Complaint alleges), then

Defendant City of Graham could not possibly have notified Plaintiff

of the existence of such a policy (as required by the North

Carolina Wage and Hour Act), because Defendant City of Graham could

not give proper notice of a policy that did not exist.

6 That last, above-quoted allegation belies Defendants’

argument in their Reply that “Plaintiff d[id] not allege that he

ever lost or forfeited any wages, either through loss of vacation

time or pay” (Docket Entry 20 at 2).

9

enough factual allegations to state a claim to relief that is

plausible on its face,” id. (internal quotation marks omitted).

Wrongful Termination in Violation of Public Policy

pursuant to N.C. Gen. Stat. § 143-422.2 Claim

“North Carolina is an employment-at-will state.” Kurtzman v.

Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420,

(1997). However, “[t]here are limited exceptions.” Id. Of

relevance here, “th[e North Carolina Supreme] Court has recognized

a public-policy exception to the employment-at-will rule.” Id. In

other words, “[i]n North Carolina, an at-will employee has a claim

for wrongful discharge if ‘the termination is done for an unlawful

reason or purpose that contravenes public policy.’” Mebane v. GKN

Driveline N. Am., Inc., No. 1:18CV892, 2021 WL 4412326, at *9

(M.D.N.C. Sept. 27, 2021) (unpublished) (Biggs, J.) (quoting Garner

v. Rentenbach Constructors, Inc., 350 N.C. 567, 571, 515 S.E.2d

438, 441 (1999)); see also Wray v. Northern Telecom, Inc., No.

1:93CV120, 1995 WL 945825, at *7 (M.D.N.C. Jan. 27, 1995)

(unpublished) (Bullock, C.J.) (observing that “North Carolina

Supreme Court . . . [has] created the tort of wrongful discharge in

violation of public policy”). “To state [such] a claim for

wrongful discharge in violation of public policy, an employee has

the burden of pleading that her [or his] dismissal occurred for a

reason that violates public policy.” Wilkes v. Argueta, No.

1:16CV260, 2017 WL 1215749, at *8 (M.D.N.C. Mar. 31, 2017)

(unpublished) (Biggs, J.) (internal brackets, ellipsis, and

10

quotation marks omitted). For purposes of pleading a wrongful

discharge claim under North Carolina law, “‘public policy is

violated when an employee is fired in contravention of express

policy declarations contained in the North Carolina General

Statutes.’” Id. (emphasis added) (quoting Amos v. Oakdale Knitting

Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992)).

The Amended Complaint asserts that Defendant City of Graham

wrongfully terminated Plaintiff “in violation of public policy

pursuant to N.C. Gen. Stat. § 143-422.2” (Docket Entry 12 at 8

(emphasis and space added)), in that “Plaintiff was wrongfully

terminated on the basis of his age and for complaining of actions

taken against him due to his age and disability” (id.), in

contravention of “public policy pursuant to N.C. Gen. Stat. § 143-

422.2” (id. (emphasis and space added); see also id. (“[D]efendant[

City of Graham’s] motivation in terminating [ P]laintiff violated

this public policy.”)). Thus, as accurately summarized by

Defendants, the Amended Complaint “alleges a violation of the North

Carolina Equal Employment Practices Act (‘NCEEPA’), N.C.[ Gen.

Stat. §] 143-422.2, as the public policy that supports

[Plaintiff’s] wrongful termination claim.” (Docket Entry 16 at 5-

6.) The statutory section invoked by the Amended Complaint - which

indeed lies within North Carolina’s “Equal Employment Practices

Act,” N.C. Gen. Stat. § 143-422.1 (giving that “Short title” to

N.C. Gen. Stat. §§ 143-422.1 -143.422.3) - states, in pertinent

11

part, as follows: “It 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

abridgement 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) (emphasis added).

The first alleged basis for Plaintiff’s wrongful termination

claim, i.e., “wrongful[] terminat[ion] on the basis of his age”

(Docket Entry 12 at 8 (emphasis added)), clearly falls within the

NCEEPA’s public policy proscription, see N.C. Gen. Stat. § 143-

422.2(a) (expressing “public policy” in favor of “protect[ing] and

safeguard[ing] the right and opportunity of all persons to . . .

hold employment without discrimination or abridgement on account of

. . . age”). Defendants have not requested dismissal of that first

part of the wrongful termination claim, but instead have requested

“dismissal regarding only the second purported reason, which is

effectively a retaliation claim.” (Docket Entry 16 at 6.) As

support for that request, they have argued “that North Carolina

does not recognize a claim for wrongful termination grounded in a

retaliation theory under [the] NCEEPA.” (Id. (citing, inter alia,

McLean v. Patten Cmtys, Inc., 332 F.3d 714, 719 (4th Cir. 2003)).)7

7 In that cited case, the United States Court of Appeals for

the Fourth Circuit “h[e]ld that there is no private right of action

under North Carolina law for retaliation under § 143-422.2.”

McLean, 332 F.3d at 719. Since then, “North Carolina courts and

(continued...)

12

Plaintiff’s Brief in Opposition to the instant Motion

acknowledges both that his claim for wrongful termination relies,

in part, on allegations of retaliation (see Docket Entry 18 at 6

(describing claim as one “for age discrimination as well as

retaliation”) and that “North Carolina courts do not recognize a

public policy exception of retaliation based on the [NC]EEPA”

(id.). Plaintiff nonetheless has opposed dismissal of the

retaliation prong of his wrongful termination claim by pointing to

(A) another North Carolina statute, “the Persons with Disabilities

Protection Act ([NC]PDPA)” (id. (citing N.C. Gen. Stat. §§ 168A-1 -

168A-12)), and (B) North Carolina decisional law “recogniz[ing] a

claim for wrongful termination in violation of public policy based

on the [NC]PDPA” (id. at 7 (citing Woody v. AccuQuest Hearing Ctr.,

LLC, 284 N.C. App. 540, 550, 877 S.E.2d 1, 8, appeal withdrawn, 878

S.E.2d 147 (N.C. 2022)); see also id. at 6 (arguing that North

Carolina “does recognize a public policy exception of retaliation

based on disability pursuant to [NC]PDPA’”)) .°

7(...continued)

federal courts applying North Carolina law have repeatedly found

that no private right of action exists for retaliation in violation

of public policy.” Long v. Walmart, Inc., No. 1:21CV215, 2021 WL

5762131, at *6 (M.D.N.C. Dec. 3, 2021) (unpublished) (Osteen, J.)

(internal ellipsis and quotation marks omitted).

8 As the Reply notes, the Brief in Opposition “does not refer

to any additional public policy supporting a claim for retaliatory

discharge[] based on complaints about age [discrimination]” (Docket

Entry 20 at 2 n.1). (See Docket Entry 18 at 6-7.)

13

The NCPDPA includes this provision: “No employer shall

discharge . . . any person . . . because the person has opposed any

practice made a discriminatory practice by th[e NCPDPA] . . . .”

N.C. Gen. Stat. § 168A-10(a). Furthermore, the NCPDPA makes “[i]t

[] a discriminatory practice for . . . [a]n employer . . . to

discriminate against a qualified person with a disability on the

basis of a disabling condition with respect to compensation or the

terms, conditions, or privileges of employment[.]” N.C. Gen. Stat.

§ 168A-5(a). The foregoing plain language of the NCPDPA prohibits

retaliatory discharge of employees for opposition to employment

discrimination based on disability and thus, under the NCPDPA,

“person[s] aggrieved by [such] conduct prohibited by [Section]

168A-10[] may bring a civil action to enforce [their] rights,” N.C.

Gen. Stat. § 168A-11(a), albeit solely to obtain “declaratory and

injunctive relief,” N.C. Gen. Stat. § 168A-11(b), along with “back

pay,” id., and subject to a limitations period extending only to

“180 days after the date on which the aggrieved person became aware

of or, with reasonable diligence, should have become aware of the

. . . prohibited conduct,” N.C. Gen. Stat. § 168A-12.

But the Amended Complaint does not assert a claim for

retaliation under those provisions of the NCPDPA; rather, the

Amended Complaint asserts a claim for “wrongful termination in

violation of public policy pursuant to N.C. Gen. Stat. § 143-422.2”

(Docket Entry 12 at 8 (emphasis and space added)) and reiterates,

14

as the basis for that claim, that “[P]Jlaintiff was protected by

th[e] public policy pursuant to N.C. Gen. Stat. § 143-422.2” (id.

(emphasis and space added}). The Court therefore does not need to

address Plaintiff’s arguments about the NCPDPA, because “parties

cannot amend their complaints through briefing,” Southern Walk at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,

713 F.3d 175, 184 (4th Cir. 2013). Moreover, the case cited by

Plaintiff for the proposition that North Carolina “recognize[s] a

public policy exception of retaliation based on disability pursuant

to [the NC]PDPA” (Docket Entry 18 at 6 (emphasis added)) concludes

only that the plaintiff there adequately alleged that ™“[the

djefendant violated the public policy of North Carolina as

expressed by [its] legislature by terminating [the p]laintiff’s

employment because of her disability,” Woody, 284 N.C. App. at 545,

877 S.E.2d at 5 (emphasis added); see also id., 284 N.C. App. at

553, 877 S.E.2d at 10 (“Our dissenting colleague posits that [the

pllaintiff may have difficulty proving that she was terminated

based on her disability; regardless, she has alleged facts

supporting such a claim... .”).

In reaching that conclusion, the Woody Court focused on this

language from the NCPDPA:

The [NC] PDPA provides, in pertinent part and as quoted by

[the p]laintiff:

(a) The purpose of [the PDPA] is to ensure equality

of opportunity, to promote independent living,

self-determination, and economic self-sufficiency,

15

and to encourage and enable all persons with

disabilities to participate fully to the maximum

extent of their abilities in the social and

economic life of the State, to engage in

remunerative employment, to use available public

accommodations and public services, and to

otherwise pursue their rights and privileges as

inhabitants of this State.

(ob) The General Assembly finds that: the practice

of discrimination based upon a disabling condition

is contrary to the public interest and to the

principles of freedom and equality of opportunity;

the practice of discrimination on the basis of a

disabling condition threatens the rights and proper

privileges of the inhabitants of this State; and

such discrimination results in a failure to realize

the productive capacity of individuals to their

fullest extent.

Id., 284 N.C. App. at 544, 877 S.E.2d at 5 (emphasis added) (block

quoting N.C. Gen. Stat. § 168A-2). That public policy declaration

within the NCPDPA condemns discrimination based on disability, not

retaliation for opposing discrimination based on disability. See

id. In sum, Woody does not establish that North Carolina

“recognize[s] a public policy exception of retaliation based on

[opposing] disability [discrimination] pursuant to [the NC] PDPA”

(Docket Entry 18 at 6) and any “[s]uch extension should come, if at

all, from the North Carolina courts,” Wray, 1995 WL 945825, at *7;

see also Myers v. Sessoms & Rogers, P.A., 781 F. Supp. 2d 264, 269

(E.D.N.C. 2011) (“Federal courts applying state laws should not

create or expand a state’s common law or public policy.”).?®

9 Alternatively, the Court should conclude (consistent with

Defendants’ position) that the Amended Complaint lacks factual

(continued...)

16

Given all these considerations, the Court should dismiss any

claim that “Plaintiff was wrongfully terminated . . . for

complaining of actions taken against him due to his age and

disability” (Docket Entry 12 at 8).

Breach of Implied Contract

Under North Carolina law, “the existence of the relation of

employer and employee . . . is essentially contractual in its

nature, and is to be determined by the rules governing the

establishment of contracts, express or implied.” Hollowell v.

North Carolina Dep’t of Conservation and Dev., 206 N.C. 206, 208,

173 S.E. 603, 604 (1934); see also Archer v. Rockingham Cnty., 144

N.C. App. 550, 557, 548 S.E.2d 788, 793 (2001) (“Employment

contracts may be express or implied.”), disc. rev. denied, 355 N.C.

210, 559 S.E.2d 796 (2002). “An implied contract refers to an

actual contract inferred from the circumstances, conduct, acts or

relations of the parties, showing a tacit understanding.” Archer,

144 N.C. App. at 557, 548 S.E.2d at 793. The Amended Complaint

alleges that “Plaintiff was an employee of the City [of Graham]

. . at the time of the acts and occurrences described in the

9(...continued)

matter showing “that Plaintiff was retaliated against due to his

complaints of disability discrimination” (Docket Entry 20 at 3; see

also id. (“Aside from one conclusory allegation, there are no

allegations that Plaintiff ever complained to anyone regarding any

alleged... disability discrimination.”)). (See Docket Entry 12

at 2-7 (setting forth Plaintiff’s “Factual Allegations”), 8

(asserting Plaintiff’s wrongful termination claim) .)

17

[Amended] Complaint.” (Docket Entry 12 at 2; see also id. (“On or

around November 28, 1996, Plaintiff started working with

[Defendant] City [of Graham] and [he] began working for [its] Fire

Department [on] April 2, 2002.”), 9 (“Plaintiff rendered services

as a fire equipment operator for [Defendant] City [of Graham].”).)

In addition, the Amended Complaint alleges that “Defendant [City of

Graham] paid Plaintiff approximately $51,500 a year.” (Id. at 9.)

The allegation “that there was a pay plan in place for . . .

[P]laintiff[] indicates that there was some agreement between [him]

and [Defendant City of Graham], and an implied oral contract for

services existed.” Archer, 144 N.C. App. at 557, 548 S.E.2d at

793. The Amended Complaint evidently asserts that Defendant City

of Graham breached that implied employment contract when “Plaintiff

received [a] Notice of Dismissal on November 8, 2022 effective

immediately.” (Docket Entry 12 at 6.) In particular, under the

heading “Breach of Implied Contract against Defendant City of

Graham” (id. at 8), the Amended Complaint alleges that “Plaintiff

is owed damages based on the period after he was terminated, as

well as [for] loss of retirement, loss of benefits and . . . his

anticipated fees for work and expenses plus a termination fee” (id.

at 9; see also id. (“[Defendant] City[ of Graham’s] termination of

Plaintiff resulted in reduced retirement benefits . . . . As a

terminated employee, Plaintiff is not eligible for health

retirement benefits . . . .”).

18

That claim fails as a matter of law, because “[t]he [North

Carolina Supreme] Court has repeatedly held that[,] in the absence

of a contractual agreement between an employer and an employee

establishing a definite term of employment, the relationship is

presumed to be terminable at the will of either party without

regard to the quality of performance of either party.” Kurtzman,

347 N.C. at 331, 493 S.E.2d at 422 (emphasis added); see also id.

(“[P]larties can remove the at-will presumption by specifying a

definite period of employment contractually.”). As the Brief in

Support of the instant Motion states, “Plaintiff has not pled facts

showing he was anything other than an at-will employee” (Docket

Entry 16 at 7), i.e., the Amended Complaint lacks any factual

matter which would permit a reasonable fact-finder to determine

that Plaintiff and Defendant City of Graham entered into an implied

contract “establishing a definite term of employment,” Kurtzman,

347 N.C. at 331, 493 S.E.2d at 422. (See Docket Entry 12 at 2-7

(setting forth Plaintiff’s “Factual Allegations”), 8-9 (asserting

Plaintiff’s breach of implied contract claim).)*°

10 Plaintiff’s Brief in Opposition to the instant Motion does

not offer any argument to the contrary and instead argues

exclusively about the existence of an implied employment contract

without showing that any such contract “establish[ed] a definite

term of employment,” Kurtzman, 347 N.C. at 331, 493 S.E.2d at 422

(emphasis added). (See Docket Entry 18 at 7-8 (opposing dismissal

of claim for breach of implied contract) .)

19

Tortious Interference with Employment Contract

Under North Carolina law:

The tort of interference with contract has five elements:

(1) a valid contract between the plaintiff and a third

person which confers upon the plaintiff a contractual

right against a third person; (2) the defendant knows of

the contract; (3) the defendant intentionally induces the

third person not to perform the contract; (4) and in

doing so acts without justification; (5) resulting in

actual damage to [the] plaintiff.

United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370

S.E.2d 375, 387 (1988). “Such a claim also applies to at-will

employment contracts.” Wilkes, 2017 WL 1215749, at *6 (citing

Smith v. Ford Motor Co., 289 N.C. 71, 84, 94-95, 221 S.E.2d 282,

290, 296 (1976)). However, “[a]s a general rule, ‘“non-outsiders”

to an employment contract often enjoy qualified immunity from

liability for inducing their corporation or other entity to breach

its contract with an employee.’” Id. (quoting Lenzer v. Flaherty,

106 N.C. App. 496, 513, 418 S.E.2d 276, 286 (1992)); see also

Smith, 289 N.C. at 87, 221 S.E.2d at 292 (“[A] non-outsider is one

who, though not a party to the terminated contract, had a

legitimate business interest of his own in the subject matter.”).

But that qualified immunity will not insulate a non-outsider from

“liab[ility] in damages to the [terminated] employee for so

procuring such termination of the employment if the [non-outsider]

so acted with malice and for a reason not reasonably related to the

protection of a legitimate business interest of the [non-

outsider].” Smith, 289 N.C. at 94, 221 S.E.2d at 296.

20

The Amended Complaint clearly satisfies the first two elements

of a claim for tortious interference with an employment contract

against Defendants Cole and Moore, by alleging (A) that “Plaintiff

had a valid employment contract with Defendant City of Graham since

November of 1996” (Docket Entry 12 at 9; see also id. at 2 (“On or

around November 28, 1996, Plaintiff started working with

[Defendant] City [of Graham] and [he] began working for [Defendant

City of Graham’s] Fire Department [on] April 2, 2002.”), 9

(“Defendant [City of Graham] paid Plaintiff approximately $51,500

a year.”)), and (B) that “Defendants [] Cole and [] Moore were

aware that Plaintiff was employed with [Defendant] City of Graham

as they were [his] supervisors” (id. at 9). “[C]onstru[ing] the

[Amended C]omplaint in the light most favorable to [Plaintiff], as

it must when ruling on a Rule 12(b)(6) motion to dismiss,” Covey v.

Assessor of Ohio Cnty., 777 F.3d 186, 189 (4th Cir. 2015), the

Court likewise should conclude that Plaintiff has pleaded

sufficient factual matter to meet the final three elements of his

claim that Defendants Cole and Moore tortiously interfered with

Plaintiff’s employment contract with Defendant City of Graham,

i.e., that Defendants Cole and Moore “intentionally induced

[Defendant City of Graham] not to perform the contract . . .

without justification[, which] result[ed] in actual damage to

[P]laintiff,” United Laboratories, 322 N.C. at 661, 370 S.E.2d at

387. In that regard, the Amended Complaint alleges:

21

1) in January 2022, approximately two months after Plaintiff

signed onto a document complaining about Defendant Moore’s

Management of Defendant City of Graham’s Fire Department and

Defendant Cole learned about Plaintiff’s action on that front (see

Docket Entry 12 at 2-3), Defendants Cole and Moore “questioned

Plaintiff in a condescending and pressuring manner to force an

admission that Plaintiff could not perform his duties” (id. at 3);

2) a short time later, “Plaintiff took a [month-long] leave of

absence from work due to mental stress at the hands of [Defendant]

Moore” (id.);

3) within about two months of Plaintiff’s return to work, once

again, ™“[Defendant] Cole exhibited aggressive behavior toward

Plaintiff by yelling at him and stating ‘I’m tired of your attitude

and I don’t want to hear anything else about targeting’” (id. at

4), despite the fact that “Plaintiff didn’t mention anything about

targeting in that meeting” (id.; see also id. (“[Defendant] Cole’s

behavior was a clear indication of his retaliation against

Plaintiff for his participation in the complaints against

[Defendant] Moore.”));

4) a few days thereafter, “Plaintiff filed a formal complaint

against [Defendant] Cole and [Defendant] Moore regarding the

hostile work environment they created against [Plaintiff]” (id.),

following which “Plaintiff continued to have issues with

[Defendant] Cole and [Defendant] Moore” (id. at 5; see also id.

22

(giving, as examples, accounts of incidents (A) “where [Defendant]

Cole scrutinized Plaintiff’s tone on how he responded over radio

traffic and threatened that he was contemplating sending Plaintiff

home,” but “all co-workers advised that [Plaintiff] sounded like he

always did,” and (B) where Defendant Cole “forced [Plaintiff] to

sign his evaluation that he did not agree with to receive his

accumulated paid time off”));

5) “Plaintiff received a final written warning on July 28,

2022 for not completing online training” (id.), which he “was

unable to complete . . . because he was out on medical leave and

[due to] the psychological distress he suffered in the hostile work

environment created by [Defendant] Cole and [Defendant] Moore”

(id.), notwithstanding the fact that “other employees [who] had not

completed training requirements [] had not been written up or given

a timeline” (id. at 6; see also id. (describing instance in which

Defendant Moore cleared “younger employee” to engage in work for

which he “had not completed [his] training”));

6) “[o]n or around October 31, 2022, [Defendant] Cole informed

Plaintiff to obtain a physical” (id.) and, despite having promptly

scheduled his physical, “[o]n or around November 4, 2022, Plaintiff

received a Pre-Disciplinary Notice” (id.) and then “received [a]

Notice of Dismissal on November 8, 2022” (id.), which “provided an

incomplete factual basis and omitted pertinent information that

would have avoided termination” (id.); and

23

7) “termination of Plaintiff[’s employment] resulted in

reduced retirement benefits” (id. at 10), as well as loss of

“eligib[ility] for health retirement benefits” (id.), “loss of

income, . . . and emotional pain and suffering” (id.).

Defendants have not contested Plaintiff’s satisfaction of

elements one through three and five of this claim; rather, they

have focused exclusively on the fourth element – whether Defendants

Cole and Moore acted “without justification,” United Laboratories,

322 N.C. at 661, 370 S.E.2d at 387 – and have asserted entitlement

to qualified immunity as non-outsiders to the contract. (See

Docket Entry 16 at 8 (“Because [Defendants Cole and Moore] are non-

outsiders and Plaintiff has not plausibly alleged that their acts

were malicious and done without legal justification, this claim

fails.”), 9 (observing that “defendant[s with] an interest in the

subject matter of the contract . . . enjoy[] a qualified immunity

for actions taken in furtherance of that interest” and arguing that

Plaintiff “ha[d] not alleged facts showing that Defendants [Cole

and Moore] acted with malice, without legal justification, and in

furtherance of personal rather than corporate interests” (internal

quotation marks omitted)).) “As [] manager[s] at the [Fire

Department], [Defendants Cole and Moore each] would be classified

as a ‘non-outsider [to Plaintiff’s employment contract].’” Wilkes,

2017 WL 1215749, at *6; see also Combs v. City Elec. Supply Co.,

203 N.C. App. 75, 84, 690 S.E.2d 719, 726 (2010) (holding that

24

“head supervisor of [company] . . . is considered a ‘non-

outsider’”).*' Accordingly, “the element that [they] acted without

justification is potentially vitiated by [their] position[s].”

Embree Constr. Grp., Inc. v. Rafcor, Inc., 330 N.c. 487, 498, 411

S.E.3d 916, 924 (1992) (emphasis added). Put another way, those

managerial positions gave Defendants Cole and Moore “a qualified

privilege to interfere with contractual relations between

[Defendant City of Graham] and [Plaintiff].” Id. (internal

quotation marks omitted). As a function of that privilege, their

alleged “acts [as managers] in inducing [Defendant City of Graham]

to sever contractual relations with [Plaintiff] are presumed to

have been done in the interest of [Defendant City of Graham].” □□□

(internal quotation marks omitted).

“The privilege, however, is qualified, not absolute; the

presumption that [Defendant Cole’s and Defendant Moore’s] acts

[we]re in [Defendant City of Graham’s] interest and thus justified

is overcome when the[ir] means or the[ir] motives [we]re improper.”

Id. (emphasis added); see also Smith, 289 N.C. at 87, 221 S.E.2d at

292 (equating effort “to bring about a termination of [the

plaintiff’s employment contract] for a reason unrelated to [a]

legitimate business interest” with “malicious procurement of the

termination of [the] contract”). Here, “[P]laintiff state[d] the

11 As quoted previously, the Amended Complaint (on its face)

establishes the status of Defendants Cole and Moore as “supervisors

of Plaintiff” (Docket Entry 12 at 9).

25

fourth element of the claim of tortious interference with contract

when he allege[d] facts supporting the allegation that [Defendant

Cole’s and Defendant Moore’s] actions were in their personal

interest,” Embree Constr., 330 N.C. at 499, 411 S.E.2d at 924-25.

Those factual allegations (reviewed at length above), when viewed

“in the light most favorable to [Plaintiff],” Covey, 777 F.3d at

189, support a reasonable inference that “Defendants Cole and Moore

acted with malice in [inducing] the[] termination of Plaintiff’s

employment with [Defendant] City of Graham by retaliating against

him for reporting them to [Defendant] City [of Graham] officials”

(Docket Entry 12 at 10), and by pursuing that improper (and

personally interested) motive via the improper (and unlawful) means

of “discriminating against Plaintiff and holding him to a different

standard than that of younger employees” (id.). See Wilkes, 2017

WL 1215749, at *7 (“Taking [the] factual allegations [that the

defendant-manager procured the plaintiff-employee’s firing to

retaliate for her complaints about his sexually harassing conduct]

as true, which is required at this stage of the litigation, [the

p]laintiff[-employee] has sufficiently stated a claim for tortious

interference with contract by [the defendant-manager].”).12

12 Notably, Defendants have conceded that the Amended

Complaint alleges sufficient factual matter to state a claim for

wrongful termination on the basis of age. (See Docket Entry 16 at

6 (“While Defendants believe the facts at summary judgment will

support that [Plaintiff’s] termination was not related to his age

in any way, Defendants now seek dismissal regarding only the second

(continued...)

26

Defendants endeavor to avoid that conclusion by adverting to

authority holding “that, in order to survive a motion to dismiss,

‘the complaint must admit of no motive for interference other than

malice.’” (Docket Entry 16 at 8 (quoting Filmar Racing, Inc. v.

Stewart, 141 N.C. App. 668, 674, 541 S.E.2d 733, 738 (2001)).)13

From that predicate, Defendants reason as follows:

While [the Amended Complaint] refers to complaints

[Plaintiff] made against [Defendants Moore and Cole],

. . . the [Amended] Complaint is filled with Plaintiff’s

admitted failures. Given that [Defendant] Moore and

[Defendant] Cole reasonably required the completion of

certification, online training, and physical exams by

their employees, Plaintiff cannot plausibly demonstrate

that either [Defendant] Moore or [Defendant] Cole acted

with malice, without legal justification, and in

furtherance of [their] personal rather than [Defendant

City of Graham’s] interests.

(Id. at 9-10.) The Court should reject that faulty reasoning.

To begin, Defendants’ characterization of the Amended

Complaint (without citation or elaboration) as “filled with

Plaintiff’s admitted failures” (id.) “essentially turns the Rule

12(b)(6) standard on its head,” SD3, LLC v. Black & Decker (U.S.)

Inc., 801 F.3d 412, 441 (4th Cir. 2015) (Wynn, J., concurring), by

12(...continued)

purported reason [for the wrongful termination claim], which is

effectively a retaliation claim.”).)

13 The North Carolina Supreme Court has endorsed that general,

legal principle. See Button v. Level Four Orthotics & Prosthetics,

Inc., 380 N.C. 459, 468, 869 S.E.2d 257, 265 (2022) (“Further, in

order to survive dismissal, a complaint alleging tortious

interference must admit of no motive for interference other than

malice.” (internal brackets and quotation marks omitted)).

27

casting the Amended Complaint “in a light least favorable to

[Plaintiff and] viewing the facts and reasonable inferences in the

light most favorable to Defendants [Cole and Moore],” id. In fact,

contradictory to Defendants’ contention that the Amended Complaint

establishes “Plaintiff’s admitted failures” (Docket Entry 16 at

10), the Amended Complaint explicitly alleges that Defendants Cole

and Moore improperly attempted “to force an admission that

Plaintiff could not perform his duties” (Docket Entry 12 at 3), but

“Plaintiff advised them that he could handle his duties” (id.).

Similarly, although the Amended Complaint refers to “Plaintiff

receiv[ing] a written warning for failure to complete daily duties

on or around May 19, 2022” (id. at 4), read fairly - let alone “in

the light most favorable to [Plaintiff], as [the Court] must when

ruling on a Rule 12(b) (6) motion to dismiss,” Covey, 777 F.3d at

189 —- the Amended Complaint does not concede the validity of that

warning; to the contrary, the reference to that warning appears as

a line item in the Amended Complaint’s list of unjustified actions

taken by Defendants Cole and Moore to retaliate against Plaintiff

for criticizing their conduct (see Docket Entry 12 at 2-6)."

14 That list also includes (for example) an incident “where

[Defendant] Cole scrutinized Plaintiff’s tone . . . respond[ing]

over radio traffic and threatened . . . [to] send[ him] home”

(Docket Entry 12 at 5), but “all co-workers advised that [he]

sounded like he always did” (id.), as well as Plaintiff’s “recei[pt

of] a final written warning . . . for not completing online

training” (id.), despite the fact that he “was unable to complete

this training because he was out on medical leave” (id.).

28

Nor, “constru[ing] the [Amended C]omplaint in the light most

favorable to [Plaintiff],” Covey, 777 F.3d at 189, “and draw[ing]

all reasonable inferences in [his] favor,” Bing, 959 F.3d at 616,

could the Court conclude “that [Defendant] Moore and [Defendant]

Cole reasonably required the completion of certification, online

training, and physical exams by their employees” (Docket Entry 16

at 10). First, the Amended Complaint does not mention anything

about any “certification” (id.). (See Docket Entry 12 at 1-11.)

The Rule 12(b)(6) standard “ordinarily limits [the C]ourt’s review

to the well-pled facts in the [Amended C]omplaint,” Goldfarb v.

Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015),

and Defendants have offered no rationale for the Court to

transgress those limits to entertain their undeveloped argument

about an unspecified certification (see Docket Entry 16 at 10).

Second, the Amended Complaint contradicts the notion “that

[Defendant] Moore and [Defendant] Cole reasonably required the

completion of . . . online training[] and physical exams by their

employees” (id. (emphasis added)). (See Docket Entry 12 at 6

(alleging that “other employees [who] had not completed training

requirements [] had not been written up or given a timeline,” that

Defendant Moore cleared a “younger employee” to engage in work for

which he “had not completed [his] training,” and that Plaintiff

promptly scheduled his physical as directed by Defendant Cole, but

29

nevertheless, in rapid succession, “received a Pre-Disciplinary

Notice” and “Notice of Dismissal . . . effective immediately”) □□

To summarize, viewed “in the light most favorable to

[Plaintiff],” Covey, 777 F.3d at 189, with “all reasonable

inferences in [his] favor,” Bing, 959 F.3d at 616, the Amended

Complaint “admit[s] of no motive for interference [in Plaintiff's

employment contract by Defendants Cole and Moore] other than

malice” (Docket Entry 16 at 8 (internal quotation marks omitted)).'°

The Court therefore should not dismiss this claim at this juncture.

Breach of Implied Duty of Good Faith and Fair Dealing

Plaintiff’s final claim asserts that “Defendant City of Graham

breached its implied duty of good faith and fair dealing in their

dealings with [PJlaintiff in connection with the employment

agreement regarding Plaintiff’s employment benefits provided by

[Defendant] City of Graham.” (Docket Entry 12 at 10; see also

15 The Reply describes Robinson v. Procter & Gamble Mfg. Co.,

No. 1:18CV133, 2019 WL 1005504, at *8 (M.D.N.C. Mar. 1, 2019)

(unpublished) (Osteen, J.), and Stasinopolous v. L.M. Sandler &

Sons, Inc., No. 5:18CV245, 2018 WL 6068056, at *4 (E.D.N.C. Nov.

20, 2018) (unpublished), as “analogous to this case and support[ive

of] dismissal.” (Docket Entry 20 at 6.) “[F]Jactual distinctions

. . . render [those two cases] inapposite.” David R. McGeorge Car

Co., Inc. v. Leyland Motor Sales, Inc., 504 F.2d 52, 55 (Ath Cir.

1974). Most significantly, in the latter case, the court concluded

that the plaintiff “ha[d] failed to allege any specific facts which

would support a finding that the individual defendants acted in

furtherance of personal rather than corporate interests,”

Stasinopolous, 2018 WL 6068056, at *4, and, in the former case, per

Judge Osteen, “this [C]ourt d[id] not find it plausible that [the

defendant’s] actions were driven by any personal motive,” Robinson,

2019 WL 1005504, at *7.

30

Docket Entry 18 at 11 (acknowledging that this claim rises and

falls with claim that Plaintiff’s firing breached his implied

employment contract) .) As Defendants have argued (and as, for

reasons discussed in relation to Plaintiff’s breach of implied

contract claim, the undersigned Magistrate Judge has recommended

the Court conclude), Plaintiff held only at-will employment because

the Amended Complaint does not “allege that there was any

contractual agreement establishing a definite term of employment

between Plaintiff and [Defendant] City [of Graham].” (Docket Entry

16 at 10.) “North Carolina law does not recognize a claim for

wrongful discharge of an at-will employee based on an implied

covenant of good faith and fair dealing.” Hardin v. Belmont

Textile Mach. Co., No. 3:05CV492, 2006 WL 2229002, at *4 (W.D.N.C.

Aug. 3, 2006) (unpublished) (citing Salt v. Applied Analytical,

Inc., 104 N.C. App. 652, 661, 412 S.E.2d 97, 102 (1991)); accord,

e.g., Ramos v. AAA of Carolinas, No. 1:17CV58, 2017 WL 5896904, at

*5 (W.D.N.C. Oct. 31, 2017) (unpublished), recommendation adopted,

2017 WL 5894185 (W.D.N.C. Nov. 29, 2017) (unpublished); Curran v.

First Union Mortg. Corp., No. 5:95CV975, 1997 WL 907909, at *2

(E.D.N.C. Mar. 24, 1997) (unpublished); Connolly v. Fieldcrest

Cannon, Inc., No. 2:93CV209, 1994 WL 752149, at *1 (M.D.N.C. June

27, 1994) (unpublished); see also Amos, 331 N.C. at 360, 416 S.E.2d

at 173 (reiterating that North Carolina law “d[oes] not recognize

a separate claim for wrongful discharge in bad faith”).

31

Under these circumstances, “[Plaintiff’s] claim for breach of

an implied covenant of good faith and fair dealing [should be]

dismissed.” Hardin, 2006 WL 2229002, at *5.

Official Capacity Claims

The Amended Complaint’s caption states that Plaintiff brought

this action against Defendants Cole and Moore,16 as well as the

other individual Defendant, Megan Garner, Defendant City of

Graham’s “City Manager” (Docket Entry 12 at 2), “individually and

in his [or her] official capacity” (id. at 1). According to the

instant Motion, “[t]he claims asserted against the individual

Defendants in their official capacities are duplicative of the

claims against [Defendant] City of Graham.” (Docket Entry 15 at

2.) Plaintiff lodged his claim for “deprivation of rights in

violation of 42 U.S.C. § 1983 against all Defendants.” (Docket

Entry 12 at 7.) “[T]he § 1983 claim[s] against [the individual

Defendants] in [their] official capacit[ies] as [Defendant City of

Graham’s employees are] essentially [] claim[s] against [Defendant

City of Graham] and thus should be dismissed as duplicative.”

Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004).17

16 The Amended Complaint identifies Defendants Cole and Moore

as employees of Defendant City of Graham’s Fire Department, where

they served as “supervisors of Plaintiff.” (Docket Entry 12 at 9.)

17 Plaintiff’s Brief in Opposition to the instant Motion does

not address this point, but instead discusses immunity doctrines

under North Carolina law. (See Docket Entry 18 at 11-12 (citing

and/or quoting North Carolina case law and statutes in arguing that

(continued...)

32

CONCLUSION

The Amended Complaint states plausible claims against

Defendant City of Graham for violation of the North Carolina Wage

and Hour Act and against Defendants Cole and Moore for tortious

interference with Plaintiff’s employment contract with Defendant

City of Graham; however, the Amended Complaint fails to state

plausible claims for wrongful termination in violation of public

policy premised on a theory of retaliation for opposing age or

disability discrimination, for breach of implied contract, and for

breach of implied duty of good faith and fair dealing. Lastly,

Plaintiff’s official capacity claims against Defendants Moore,

Cole, and Garner under Section 1983 merely duplicate his Section

17(...continued)

“[c]ourts make a distinction between public officials and public

employees in determining their immunity from liability” and that,

“[e]ven if the [C]ourt finds that the individual [D]efendants are

public officials, their actions puncture the veil of immunity”).)

Conversely, Defendants have not developed any argument for

dismissal of the official capacity aspect of Plaintiff’s claim(s)

for tortious interference with his employment contract against

Defendants Cole and Moore, which do not duplicate any claim against

Defendant City of Graham. (See Docket Entry 16 at 11-12 (arguing

that “Plaintiff’s claims against the [i]ndividual Defendants . . .

in their official capacities should be dismissed as duplicative,”

but without accounting for absence of any duplication as concerns

tortious interference claim); Docket Entry 20 at 7-8 (same); see

also Docket Entry 12 at 9 (bringing tortious interference claim

only “against Defendants Moore and Cole”).) In the absence of such

argument, the Court should not dismiss Plaintiff’s official

capacity claims against Defendants Cole and Moore for tortious

interference with contract. See Hughes v. B/E Aerospace, Inc., No.

1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)

(unpublished) (Schroeder, J.) (“A party should not expect a court

to do the work that [the party] elected not to do.”).

33

1983 claim against their employer, Defendant City of Graham, and

thus those official capacity claims should not proceed.18

IT IS THEREFORE RECOMMENDED that the instant Motion (Docket

Entry 15) be granted in part and denied in part, in that (A) the

Court should dismiss Plaintiff’s claims (i) for wrongful

termination in violation of public policy premised on a theory of

retaliation for opposing age or disability discrimination, (ii) for

breach of implied contract, (iii) for breach of implied duty of

good faith and fair dealing, and (iv) under Section 1983 as against

Defendants Moore, Cole, and Garner in their official capacities,

but (B) all other claims in the Amended Complaint should proceed.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 10, 2025

18 The instant Motion does not contest the sufficiency of the

Section 1983 claim(s) brought against Defendant City of Graham and

against Defendants Moore, Cole, and Garner in their individual

capacities, or the claim for wrongful termination in violation of

the public policy proscribing age discrimination brought against

Defendant City of Graham. (See Docket Entry 15 at 1-2.) The

resolution of the instant Motion thus does not affect those claims.

34