Nicholson

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:25-cv-00076-MR-WCM

CATHERINE NICHOLSON, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

)

HCA HEALTHCARE, INC., JAMIE )

GOSNELL, JARED ALLEN, MEGAN )

TIPTON, HEATHER MCFARLAND )

THORP, KRISTEN TILGHMAN, )

CHRISTOPHER BERRY, KELLY )

BRADY, AMANDA CARVER, NINA )

MURCHISON, EVADORA BOYD, )

JENNIFER MCFADDEN, TERI CLARK, )

and CHARLENE ATKINSON, )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on Defendant HCA Healthcare,

Inc.’s Motion to Dismiss [Doc. 48], Defendants Jamie Gosnell, Kristen

Tilghman, Christopher Berry, Kelly Brady, Amanda Carver, Jennifer

McFadden, Teri Clark, Charlene Atkinson, and Evadora Boyd’s Motion to

Dismiss [Doc. 50], Defendant Heather MacFarland Thorp’s Motion to

Dismiss [Doc. 71], and Defendant Nina Murchison’s Motion to Dismiss [Doc.

76].

I. PROCEDURAL HISTORY

On March 12, 2025, the Plaintiff initiated this action by filing a

Complaint asserting nine employment discrimination claims and a negligent

hiring, retention, and supervision claim against ANC Mission Hospital, Inc.

(“Mission”) and Defendant HCA Healthcare, Inc. (“HCA”), as well as four tort

claims against Defendants Jamie Gosnell, Kristen Tilghman, Christopher

Berry, Kelly Brady, Amanda Carver, Jennifer McFadden, Teri Clark,

Charlene Atkinson, Evadora Boyd, Heather MacFarland Thorp, Nina

Murchison, Jared Allen, and Megan Tipton (collectively, the “Individual

Defendants”). [Doc. 1]. After voluntarily dismissing Mission on April 22,

2025, [Doc. 17], the Plaintiff filed a First Amended Complaint on July 29,

2025 asserting the same claims but without Mission as a defendant.

Two of the Individual Defendants—Jared Allen and Megan Tipton—

have yet to make an appearance in this matter. On March 26, 2026, almost

four months after the Plaintiff’s thrice-extended deadline for service, the

Plaintiff filed a Certificate of Service by Publication asserting that Defendants

Allen and Tipton had been served by March 21, 2026. [Doc. 86]. However,

Defendants Allen and Tipton have not filed an Answer, and no motion

concerning the timeliness or sufficiency of the Plaintiff’s purported service or

Defendants Allen and Tipton’s lack of response is currently before the Court.

HCA and the other eleven Individual Defendants have filed timely

motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, [Docs. 48, 50, 71, 76], and all four motions have been fully

briefed, [Docs. 49, 51, 62, 63, 66, 67, 72, 73, 75, 77, 80, 81]. Accordingly,

these motions are ripe for disposition.

II. STANDARD OF REVIEW

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be

“plausible on its face,” a plaintiff must demonstrate “more than a sheer

possibility that a defendant has acted unlawfully.” Id.

In reviewing the Complaint, the Court must accept the truthfulness of

all factual allegations but is not required to assume the truth of “bare legal

conclusions.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). “The

mere recital of elements of a cause of action, supported only by conclusory

statements, is not sufficient to survive a motion made pursuant to Rule

12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012); see also

Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels or conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” (quoting

Twombly, 550 U.S. at 555)).

Determining whether a complaint states a plausible claim for relief is

“a context-specific task,” Iqbal, 556 U.S. at 679, which requires the Court to

assess whether the factual allegations of the Complaint are sufficient “to

raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555.

As the Fourth Circuit has explained:

To satisfy this standard a plaintiff need not forecast

evidence sufficient to prove the elements of the

claim. However, the complaint must allege sufficient

facts to establish those elements. Thus, while a

plaintiff does not need to demonstrate in a complaint

that the right to relief is probable, the complaint must

advance the plaintiff’s claim across the line from

conceivable to plausible.

Walters, 684 F.3d at 439 (citations and internal quotation marks omitted).

III. FACTUAL BACKGROUND

The allegations set forth in the Complaint, giving the Plaintiff the benefit

of all reasonable inferences, show the following.

The Plaintiff is a Registered Nurse who identifies as a Black, White,

and Native American woman over the age of 40. [Doc. 19 at ¶ 38]. In 2024,

the Plaintiff was an employee of Aya Healthcare, Inc. (“Aya”), and Aya

contracted with HCA for the Plaintiff to provide nursing services at Mission

for a term of twenty-one weeks, starting on or about February 5, 2024. [Id.

at ¶¶ 39-41]. At Mission, the Plaintiff was assigned the responsibilities of a

Charge Nurse, which is a leadership position within the hospital’s nursing

team. [Id. at ¶ 43]. This litigation arises from alleged discriminatory and

tortious conduct suffered by the Plaintiff during the period she was providing

nursing services at Mission. [Id. at ¶¶ 44-70].

Regarding her work schedule and duties, the Plaintiff alleges that

throughout her employment she was assigned to work every weekend

despite repeated requests for a first-shift schedule. [Id. at ¶ 44]. The Plaintiff

further alleges that her manager, Defendant Gosnell, denied her schedule

requests on grounds that first-shift positions were unavailable, but that

“newly hired Caucasian employees” were granted first-shift schedules. [Id.

at ¶ 45]. In May 2024, the Plaintiff requested to step down from her duties

as Charge Nurse, but Defendant Gosnell denied her request on grounds that

the Plaintiff was the only Charge Nurse available on the weekends. [Id. at

¶ 55]. The Plaintiff subsequently agreed to continue in her role as Charge

Nurse. [Id. at ¶ 56].

Regarding her work environment, the Plaintiff alleges that she

encountered “significant resistance” from staff that her “Caucasian

counterparts in similar roles” did not face, and that she was “subjected to

several incidents of hostility.” [Id. at ¶ 47]. One such incident occurred on

or about February 9, 2024, when a fellow employee remarked, in a manner

that the Plaintiff perceived as hostile, that the Plaintiff “did not look her age.”

[Id. at ¶ 48]. The Plaintiff “reported incidents of discrimination and

mistreatment” to Defendant Gosnell, but Defendant Gosnell “dismissed her

concerns” as arising from a “generational gap.” [Id. at ¶¶ 49-50]. The

Plaintiff subsequently learned that her private conversations with Defendant

Gosnell were being discussed by other staff members, giving the Plaintiff the

impression that Defendant Gosnell had disclosed her concerns to other

employees. [Id. at ¶¶ 51-52]. Another incident occurred on or about July 19,

2025 [sic], when a patient used a racially derogatory slur while speaking to

the Plaintiff, and Defendant Tilghman repeated the patient’s statement,

including the derogatory slur, to the Plaintiff. [Id. at ¶ 53]. The Plaintiff

alleges that she did not file a formal complaint about the incident with

Defendant Tilghman because Defendant Gosnell had dismissed her earlier

reports. [Id. at ¶ 54].

Additionally, on or about June 14, 2024, the Plaintiff filed a “Vigilance

report” regarding the conduct of Defendant Allen on grounds that Allen had

left a patient unattended. [Id. at ¶ 57]. After filing this report, the Plaintiff

perceived “increased tension” with Defendant Gosnell and “an increase in

hostility” from Defendants Allen, Berry, and Tilghman. [Id. at ¶ 58]. One of

the Plaintiff’s colleagues subsequently told her that at least eight of the

Individual Defendants were “discussing the possibility of removing her from

her Charge Nurse duties and had been discussing a plan to sabotage her

career.” [Id. at ¶ 59].

Finally, on or about July 23, 2024, the Plaintiff was informed that she

had been terminated from her position at Mission due to “clinical

performance concerns.” [Id. at ¶ 60]. On July 24, 2024, the Plaintiff received

notice that a complaint had been filed with the North Carolina State Board of

Nursing (“Nursing Board”) alleging that she had an inappropriate verbal

interaction with a patient on or about July 21, 2024. [Id. at ¶ 61]. The Plaintiff

alleges that the Individual Defendants fabricated the basis for the Nursing

Board complaint, erased or altered exculpatory camera footage of the patient

interaction at issue, and submitted the complaint. [Id. at ¶ 62]. Upon

investigation of the complaint by the Nursing Board, the Plaintiff was found

not to be at fault, and the complaint was dismissed. [Id. at 63].

IV. DISCUSSION

A. Employment Discrimination Claims against HCA

The Plaintiff’s nine employment discrimination claims against HCA can

be grouped into three categories, each of which contains three claims. The

three categories are: harassment and discrimination creating a hostile work

environment (Claims 1-3); retaliation and wrongful termination (Claims 4-6);

and disparate treatment (Claims 7-9). Each category contains three virtually

identical claims, except that each claim arises under a different statute: Title

VII of the Civil Rights Act (Claims 1, 4, 7); the Age Discrimination in

Employment Act (Claims 2, 5, 8); and the North Carolina Equal Employment

Practices Act (Claims, 3, 6, 9). HCA has moved to dismiss all nine claims

solely on the ground that the Plaintiff has not adequately pled that HCA was

the Plaintiff’s “employer,” as defined by Title VII of the Civil Rights Act (“Title

VII”), the Age Discrimination in Employment Act (“ADEA”), and the North

Carolina Equal Employment Practices Act (“NCEEPA”). [Doc. 49 at 6].

The Plaintiff alleges that at the time of the conduct alleged in the First

Amended Complaint she was “a direct employee of Aya Healthcare, Inc.”

[Doc. 19 at ¶ 39]. However, the Plaintiff also alleges that HCA was her

“temporary employer” because she was a “temporary ‘employee’ of Mission

Hospital,” and HCA “owns, operates, and manages” Mission. [Id. at ¶¶ 12-

14].

In the Title VII and ADEA contexts, the Fourth Circuit has adopted the

“joint employment doctrine,” under which “multiple entities could be

employers of a plaintiff,” to “prevent[ ] those who effectively employ a worker

from evading liability by hiding behind another entity, such as a staffing

agency.” Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 409 (4th Cir.

2015); see also Haavistola v. Cmty. Fire Co. of Rising Sun, 6 F.3d 211, 219

n.2 (4th Cir. 1993) (“[T]he operative language in ADEA is identical to the

operative language in Title VII, so the analysis utilized under either act is

interchangeable.”). Because the North Carolina Supreme Court has

“explicitly adopted” Title VII standards and principles of law in the context of

discrimination claims, the Court will also apply the Fourth Circuit’s joint

employment doctrine to the Plaintiff’s NCEEPA claims.1 See Johnson v.

Crossroads Ford, Inc., 230 N.C. App. 103, 111, 749 S.E.2d 102, 108 (2013);

see also [Doc. 49 at 7 n.3; Doc. 62 at 2].

1 The Court notes, however, that the “plaintiff has cited no authority showing that a private

cause of action exists under the [NCEEPA].” Bendross v. Town of Huntersville, 159 N.C.

App. 228, 582 S.E.2d 726 (2003). The Fourth Circuit has held that “[n]either the North

Carolina Supreme Court nor the North Carolina Court of Appeals has recognized a private

cause of action under the NCEEPA.” Smith v. First Union Nat. Bank, 202 F.3d 234, 247

(4th Cir. 2000). Instead, “[i]n enacting the Equal Employment Practices Act, the North

Carolina legislature chose not to provide any remedies beyond those available under

federal discrimination statutes.” Percell v. Int'l Bus. Machines, Inc., 765 F. Supp. 297, 302

(E.D.N.C. 1991), aff'd sub nom. Percell v. Int'l Bus. Machines Corp., 23 F.3d 402 (4th Cir.

1994). Courts have subsequently disagreed as to whether NCEEPA should be

interpreted as establishing legislative recognition of common-law wrongful discharge

claims in North Carolina, and if so, the scope of such claims. See, e.g., Efird v. Riley, 342

F. Supp. 2d 413, 428 (M.D.N.C. 2004) (interpreting NCEEPA and concluding that North

Carolina recognizes “a claim for wrongful discharge in violation of public policy based on

allegations that a plaintiff was fired because of her sex” but that North Carolina does not

recognize a claim for “wrongful discharge based on retaliatory discharge for complaints

about sex discrimination”). However, because HCA has moved to dismiss the Plaintiff’s

employment discrimination claims solely on the grounds that it cannot be held liable as

the Plaintiff’s employer, the Court need not address the merits of the discrimination claims,

including this issue concerning NCEEPA, at this time.

In Butler, the Fourth Circuit articulated a set of nine factors for courts

to use when applying the joint employment doctrine:

(1) authority to hire and fire the individual;

(2) day-to-day supervision of the individual, including

employee discipline;

(3) whether the putative employer furnishes the

equipment used and the place of work;

(4) possession of and responsibility over the

individual's employment records, including payroll,

insurance, and taxes;

(5) the length of time during which the individual has

worked for the putative employer;

(6) whether the putative employer provides the

individual with formal or informal training;

(7) whether the individual's duties are akin to a

regular employee's duties;

(8) whether the individual is assigned solely to the

putative employer; and

(9) whether the individual and putative employer

intended to enter into an employment relationship.

Butler, 793 F.3d at 414. Although “none of these factors are dispositive,” the

first three factors are “the most important,” and “the common-law element of

control remains the ‘principal guidepost’ in the analysis.” Id. The ultimate

question is “whether a putative employer exercise[s] significant control” over

the individual. Id. at 410.

Here, several key factors weigh in favor of the Plaintiff. The Plaintiff’s

allegations indicate that HCA was responsible for the day-to-day supervision

of her work. Her manager, Defendant Gosnell, was an HCA employee, and

Gosnell determined the Plaintiff’s work schedule and fielded her complaints

about her work environment at Mission. [Doc. 19 at ¶¶ 44-45, 49-50, 54-56,

58]. Moreover, as a Charge Nurse, the Plaintiff held “a leadership position

within Mission Hospital’s nursing team,” and she was responsible for

providing instructions to other HCA employees. [Id. at ¶¶ 43, 47]. As a result,

the Plaintiff appears to have been integrated into Mission’s nursing team and

performed duties akin to those of regular HCA employees. Therefore,

although the Plaintiff has not alleged facts regarding several of the relevant

factors, the Plaintiff has alleged sufficient facts for the Court to conclude at

this early stage in the litigation that HCA may qualify as her employer.2

Accordingly, the Court will deny HCA’s motion to dismiss as to the Plaintiff’s

first nine causes of action in the First Amended Complaint.

B. Tort Claims Against the Individual Defendants

The Plaintiff has asserted four tort claims against each Individual

Defendant: (1) defamation per se; (2) civil conspiracy; (3) intentional infliction

2 The parties dispute whether the Plaintiff has alleged that HCA had the authority to fire

the Plaintiff, and none of the Plaintiff’s allegations regarding her termination states who

terminated her. See [Doc. 49 at 11; Doc. 62 at 5; Doc 66 at 3]. However, in the context

of the Plaintiff’s negligent hiring, retention, and supervision claim, taking the allegations

in the light most favorable to the Plaintiff, HCA was responsible for her termination. [Doc.

19 at ¶ 222 (characterizing HCA’s conduct as “failure to address Plaintiff’s concerns

regarding discriminatory behavior and its subsequent termination of Plaintiff” (emphasis

added))]. Because this allegation implies that HCA was responsible for terminating the

Plaintiff, the joint employment factor concerning the authority to fire the Plaintiff also

supports a conclusion, at this stage, that HCA may qualify as the Plaintiff’s employer.

of emotional distress (“IIED”); and (4) negligent infliction of emotional

distress (“NIED”).

1. Defamation Per Se

“To be actionable, a defamatory statement must be false and must be

communicated to a person or persons other than the person defamed.”

Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993). An

actionable defamatory statement that “tends to impeach a person in that

person’s trade or profession” may be defamatory per se. Boyce & Isley,

PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002). To state

a plausible claim for defamation per se, “[t]he alleged defamatory statement

or statements made or published by the defendant need not be set out

verbatim in plaintiff's defamation complaint if alleged substantially in haec

verba, or with sufficient particularity to enable the court to determine whether

the statement was defamatory.” Andrews, 109 N.C. App. at 274, 426 S.E.2d

at 432; see also King v. Chaffin, 759 F. Supp. 3d 690, 695 (W.D.N.C. 2024).

Because defamation claims are not subject to a heightened pleading

standard, the key consideration on a motion to dismiss pursuant to Rule

12(b)(6) is whether the Plaintiff’s allegations are “sufficient to give the

defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Hatfill v. New York Times Co., 416 F.3d 320, 329 (4th Cir.

2005) (internal quotation marks omitted).

Here, the Plaintiff’s defamation claim is predicated on allegations that

the Individual Defendants communicated false statements about the Plaintiff,

including allegations of patient abuse, to the Nursing Board. [Doc. 19 at

¶¶ 189-93]. Although the Plaintiff does not allege the precise content or

timing of the statements at issue, she does identify the basis of her

defamation claim with sufficient particularity: the claim arises from

statements about a physical and verbal interaction between the Plaintiff and

a patient on or around July 21, 2024, as well as related statements regarding

patient abuse by the Plaintiff, that were communicated to the Nursing Board

pursuant to a Nursing Board complaint against the Plaintiff.3 [Id. at ¶¶ 60-

61, 190-91]; see also [Doc. 63 at 6]. As a result, the Plaintiff’s allegations put

the Individual Defendants “on notice of the crux of plaintiff’s grievance and

the facts [they] will be required to address during discovery.”4 Collins v. AB

3 While the Individual Defendants note that such Nursing Board complaints are typically

privileged, the relevant statutory privilege contains an exception for circumstances where

the persons making the report “knew the report was false or acted in reckless disregard

of whether the report was false.” N.C. Gen. Stat. § 90-171.47; see also [Doc. 51 at 12-

13]. The Plaintiff’s allegation that the Individual Defendants fabricated the basis for the

Nursing Board complaint is sufficient to allege that the Individual Defendants knew the

report was false and thus trigger the exception to the privilege. [Doc. 19 at ¶¶ 61-63].

4 The Plaintiff’s allegations are inconsistent regarding who made and communicated the

statements: she first asserts that “several individually named Defendants deliberately and

Biodisk N. Am., Inc., No. 5:08-CV-355-H, 2009 WL 10705350, at *6 (E.D.N.C.

Mar. 16, 2009). Accordingly, the Court will deny the Individual Defendants’

motions to dismiss as to the Plaintiff’s claim for defamation per se.

2. Civil Conspiracy

“North Carolina courts do not recognize an independent cause of

action for civil conspiracy.” Mason v. Health Mgmt. Assocs., LLC, 421 F.

Supp. 3d 237, 248 (W.D.N.C. 2019). Instead, “[a] cause of action for a civil

conspiracy under North Carolina law is really an action for damages caused

by acts in furtherance of the conspiracy and not for the conspiracy itself.”

Jackson v. Blue Dolphin Commc’ns of N. Carolina, L.L.C., 226 F. Supp. 2d

785, 791 (W.D.N.C. 2002). A civil conspiracy claim, therefore, “is premised

on the underlying act.” Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211 N.C.

App. 343, 350, 712 S.E.2d 328, 333 (2011) (internal quotation marks

omitted). “The charge of conspiracy itself does nothing more than associate

the defendants together and perhaps liberalize the rules of evidence to the

extent that under proper circumstances the acts and conduct of one might

be admissible against all.” Shope v. Boyer, 268 N.C. 401, 405, 150 S.E.2d

771, 774 (1966).

falsely accused Plaintiff of patient abuse,” [Doc. 19 at ¶ 61 (emphasis added)], but she

later asserts that all the Individual Defendants were responsible for the statements, [id. at

¶¶ 190-91, 193]. This inconsistency may also be addressed during discovery.

The North Carolina Supreme Court has held that “a complaint

sufficiently stated a claim for civil conspiracy when it alleged (1) a conspiracy,

(2) wrongful acts done by certain of the alleged conspirators in furtherance

of that conspiracy, and (3) injury as a result of that conspiracy.” State ex rel.

Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 444, 666 S.E.2d 107,

115 (2008). When the alleged conspirators are all members of a single

corporation, a civil conspiracy claim may be barred by the intra-corporate

immunity rule, which “provides that, because at least two persons must be

present to form a conspiracy, a corporation cannot conspire with itself, just

as an individual cannot conspire with himself.” Seguro-Suarez by & through

Connette v. Key Risk Ins. Co., 261 N.C. App. 200, 218, 819 S.E.2d 741, 754

(2018) (internal quotation marks omitted). The Fourth Circuit has

recognized, however, that an exception to the intra-corporate immunity rule

may apply if the alleged conspirators possess motives independent of their

employer or the alleged conspiratorial acts were taken outside the scope of

the alleged conspirators’ employment. Painter’s Mill Grille, LLC v. Brown,

716 F.3d 342, 353 (4th Cir.2013); see also Seguro-Suarez, 261 N.C. App. at

218 n.6, 819 S.E.2d at 755 n.6.

Here, the Plaintiff alleges that she was “informed by a colleague” that

at least eight of the Individual Defendants “had been discussing a plan to

sabotage Plaintiff’s career.” [Doc. 19 at ¶ 59]. The Plaintiff further alleges

that the Individual Defendants’ plan was “directly related to Plaintiff filing the

Vigilance report against Defendant Jared Allen and raising concerns about

discriminatory treatment” by the Individual Defendants, thereby giving the

Individual Defendants a distinct motive for their actions. [Id.]. Finally, the

Plaintiff alleges that the Individual Defendants put their plan into action by

filing a false complaint against her with the Nursing Board in order to damage

her reputation and career. [Id. at ¶¶ 61-63]. While the Plaintiff’s allegations

border on speculative and conclusory, they provide just enough particularity

to advance the Plaintiff’s claim from conceivable to plausible. Accordingly,

the Court will deny the Individual Defendants’ motions to dismiss as to the

Plaintiff’s claim for civil conspiracy.

3. Intentional Infliction of Emotional Distress

“To state a claim for intentional infliction of emotional distress, a plaintiff

must allege: (1) extreme and outrageous conduct (2) which is intended to

cause and does cause (3) severe emotional distress to another.” Clark v.

Clark, 280 N.C. App. 403, 414, 867 S.E.2d 704, 715 (2021) (internal

quotation marks omitted). As to the first element, the plaintiff must allege

“conduct that is so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Id. (internal quotation marks

omitted). As to the third element, “severe emotional distress means any

emotional or mental disorder . . . which may be generally recognized and

diagnosed by professionals trained to do so.” Id. at 414-415, 867 S.E.2d at

715 (internal quotation marks omitted). “Whether conduct meets this

standard is a question of law.” Bratcher v. Pharm. Prod. Dev., Inc., 545 F.

Supp. 2d 533, 544 (E.D.N.C. 2008).

“North Carolina courts have been extremely reluctant to find actionable

IIED claims in the employment context, and termination, allegedly in violation

of federal law alone, does not necessarily constitute extreme and outrageous

conduct under North Carolina law.” Efird v. Riley, 342 F. Supp. 2d 413, 427

(M.D.N.C. 2004). Moreover, “acts of discrimination are not necessarily

extreme and outrageous.” Id. (internal quotation marks omitted). For

example, when a defendant “threatened to make accusations” against a

plaintiff, “threw a package of papers” at her, and “filed a complaint of sexual

harassment” against her, the North Carolina Court of Appeals concluded that

the “defendant’s behavior was undeniably churlish and ill-mannered” but did

not “rise to the level of the extreme and outrageous conduct which is required

to sustain a claim for intentional infliction of emotional distress.” Smith-Price

v. Charter Behav. Health Sys., 164 N.C. App. 349, 355, 595 S.E.2d 778, 783

(2004). “Subjecting an employee to internal investigations and disciplinary

actions, even coupled with alleged discriminatory treatment and strained

working relationships, does not constitute extreme and outrageous conduct

under North Carolina law.” Stephenson v. Carolina Physicians Network Inc.,

No. 3:21-CV-103-FDW-DCK, 2021 WL 4558198, at *4 (W.D.N.C. Oct. 5,

2021).

Here, the Plaintiff alleges that she was subjected to discriminatory

treatment and that the Individual Defendants fabricated allegations of patient

abuse against her. Nevertheless, accepting the factual allegations as true

and drawing all reasonable inferences in the Plaintiff’s favor, the Plaintiff’s

allegations fall short of the high standard for extreme and outrageous

conduct that is required to state an IIED claim under North Carolina law.

Accordingly, the Court will grant the Individual Defendants’ motions to

dismiss as to the Plaintiff’s IIED claim.

4. Negligent Infliction of Emotional Distress

“To state a claim for negligent infliction of emotional distress under

North Carolina law, the plaintiff need only allege that: (1) the defendant

negligently engaged in conduct, (2) it was reasonably foreseeable that such

conduct would cause the plaintiff severe emotional distress, and (3) the

conduct did in fact cause the plaintiff severe emotional distress.” Demarco

v. Charlotte-Mecklenburg Hosp. Auth., 268 N.C. App. 334, 342, 836 S.E.2d

322, 328 (2019) (internal quotation marks omitted). Regarding the first

element, the Fourth Circuit has held that the allegations must specifically

implicate negligent conduct: when “the material factual allegations charge

nothing but intentional acts . . . [the court] must conclude that they do not

state a claim for negligent infliction of emotional distress.” Mitchell v. Lydall,

Inc., 1994 WL 38703, at *3 (4th Cir. 1994) (per curiam). Therefore, when the

only acts a plaintiff alleges to support an NIED claim are the “same

intentional acts” the plaintiff alleges to support an IIED claim, the plaintiff’s

NIED claim may be “subject to dismissal.” Bonham v. Wolf Creek Acad., 767

F. Supp. 2d 558, 573 (W.D.N.C. 2011) (emphasis in original) (concluding that

“[t]his manner of pleading negligent infliction has long been held to be

insufficient”).

Here, the only acts the Plaintiff alleges in support of her NIED claim

are identical to those she alleges in support of her IIED claim. Compare

[Doc. 19 at ¶ 206 (alleging intentional conduct that was “extreme and

outrageous” in support of IIED claim)], with [id. at ¶ 212 (repeating ¶ 206

verbatim except for replacing “extreme and outrageous” with “negligent”)].

Moreover, in the paragraph in the Plaintiff’s First Amended Complaint that

alleges conduct in support of her NIED claim, the Plaintiff alleges that all

such conduct was performed “with the intent to harm Plaintiff’s reputation

and career.” [Id. at ¶ 212 (emphasis added)]. Such intentional conduct

cannot sustain the Plaintiff’s NIED claim. Accordingly, the Court will grant

the Individual Defendants’ motions to dismiss as to the Plaintiff’s NIED

claim.

C. Negligent, Hiring, Retention and Supervision Claim

To state a claim for negligent hiring, retention, and supervision, a

plaintiff must allege:

(1) the specific negligent act on which the action is

founded . . . (2) incompetency, by inherent unfitness

or previous specific acts of negligence, from which

incompetency may be inferred; and (3) either actual

notice to the master of such unfitness or bad habits,

or constructive notice, by showing that the master

could have known the facts had he used ordinary

care in oversight and supervision, . . .; and (4) that

the injury complained of resulted from the

incompetency proved.

Turpin v. Charlotte Latin Schs., Inc., 293 N.C. App. 330, 353, 900 S.E.2d 352,

369–70 (2024) (quoting Medlin v. Bass, 327 N.C. 587, 591, 398 S.E.2d 460,

462 (1990)) (internal quotation marks omitted). North Carolina courts have

“recognized incompetency where employment or retention of employment

is dangerous to others, by previous specific acts of careless or negligent

conduct, or by inherent unfitness,” but “allegations of ‘animus’ or ‘hostility’

alone are insufficient to prove negligence by the employee, inherent

unfitness, or that retention of the employee is dangerous to others. Id. at

354, 900 S.E.2d at 370. Instead, the Plaintiff must allege that an

“incompetent employee committed a tortious act resulting in injury to plaintiff

and that prior to the act, the employer knew or had reason to know of the

employee's incompetency.” Hogan v. Forsyth Country Club Co., 79 N.C.

App. 483, 495, 340 S.E.2d 116, 124 (1986).

Here, the Plaintiff contends that her negligent hiring, retention, and

supervision claim is predicated on the tortious act of wrongful discharge.

[Doc. 62 at 5-7]. Wrongful discharge, however, “is a tort committed against

[a] plaintiff by her employer, rather than employees.” Whitfield v. DLP Wilson

Med. Ctr., LLC, 482 F. Supp. 3d 485, 494 (E.D.N.C. 2020) (emphasis added)

(rejecting negligent supervision and retention claim based on wrongful

discharge because such discharge involves “not alleged tortious conduct of

employees, but defendant as employer”). Moreover, to the extent the alleged

wrongful discharge is attributable to an HCA employee, the Plaintiff has

presented no material factual allegations regarding who was responsible for

her discharge, whether the employee responsible for her discharge was

incompetent, or whether HCA knew or had reason to know of that employee’s

incompetence. Therefore, the Plaintiff has failed to state a plausible claim

for negligent hiring, retention, and supervision claim predicated on her

alleged wrongful discharge. The Plaintiff makes additional general and

conclusory allegations to the effect that HCA “knew or should have known”

about its employees’ alleged discriminatory treatment of the Plaintiff. [Doc.

19 at ¶¶ 223-27]. However, the Plaintiff also alleges that Defendant

Gosnell’s dismissals of her concerns about mistreatment were intentional,

not negligent, [id. at ¶ 51], and she does not offer any other material factual

allegations regarding how HCA would know about her concerns.

Accordingly, the Court will grant HCA’s motion to dismiss as to the Plaintiff’s

negligent hiring, retention, and supervision claim.

V. CONCLUSION

At this early stage in the litigation, the Plaintiff has sufficiently alleged

that HCA may qualify as her employer, and she has identified the basis of

her defamation and civil conspiracy claims with sufficient particularity.

Accordingly, the Court will allow the Plaintiff’s claims for employment

discrimination, defamation per se, and civil conspiracy to proceed. The

Plaintiff’s claims for NIED, IIED, and negligent hiring, retention, and

supervision will be dismissed.

O R D E R

IT IS, THEREFORE, ORDERED that Defendant HCA’s Motion to

Dismiss [Doc. 48] is hereby GRANTED IN PART and DENIED IN PART.

The motion is GRANTED as to the Plaintiff's negligent hiring, retention, and

supervision claim. The motion is otherwise DENIED.

IT IS FURTHER ORDERED that Defendants Jamie Gosnell, Kristen

Tilghman, Christopher Berry, Kelly Brady, Amanda Carver, Jennifer

McFadden, Teri Clark, Charlene Atkinson, and Evadora Boyd’s Motion to

Dismiss [Doc. 50] is hereby GRANTED IN PART and DENIED IN PART.

The motion is GRANTED as to the Plaintiff's IIED and NIED claims. The

motion is otherwise DENIED.

IT IS FURTHER ORDERED that Defendant Heather MacFarland

Thorp’s Motion to Dismiss [Doc. 71] hereby GRANTED IN PART and

DENIED IN PART. The motion is GRANTED as to the Plaintiffs IIED and

NIED claims. The motion is otherwise DENIED.

IT IS FURTHER ORDERED that Defendant Nina Murchison’s Motion

to Dismiss [Doc. 76] is hereby GRANTED IN PART and DENIED IN PART.

The motion is GRANTED as to the Plaintiff's IIED and NIED claims. The

motion is otherwise DENIED.

IT IS SO ORDERED. Signed sung 2.208

Martiff Reidinger ty

Chief United States District Judge AS

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