Alford

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:25-CV-418-BO-BM

CARLOS A. ALFORD, )

)

Plaintiff, )

) ORDER and

v. ) MEMORANDUM AND

) RECOMMENDATION

DEPARTMENT OF COMMERCE et al., )

)

Defendants. )

This pro se case is before the court on the motion by plaintiff Carlos A. Alford (“plaintiff”)

to proceed in forma pauperis [DE-2] pursuant to 28 U.S.C. § 1915(a)(1) and for a frivolity review

pursuant to 28 U.S.C. § 1915(e)(2)(B).1 This matter is also before the court on plaintiff’s motion

for pre-hearing conference [DE-5]. The motions were referred to the undersigned magistrate judge

pursuant to 28 U.S.C. § 636(b)(1).

The court finds that plaintiff has demonstrated appropriate evidence of his inability to pay

the required court costs, and the motion to proceed in forma pauperis [DE-2] will be ALLOWED.

Based on the court’s frivolity review and for the reasons stated below, the undersigned

RECOMMENDS that plaintiff’s complaint [DE-1] be DISMISSED IN PART and ALLOWED TO

PROCEED IN PART. Additionally, plaintiff’s motion for pre-hearing conference [DE-5] is

DENIED AS MOOT as premature.

1 Plaintiff has previously filed numerous complaints in this district. See, e.g., Alford v. United States, No. 7:23-

CV-1205-BO, 2023 WL 7927757, at *1 (E.D.N.C. Nov. 16, 2023); Alford v. Bridenstine, No. 7:21-CV-211-FL, 2022

WL 1311457, at *1 (E.D.N.C. May 2, 2022); Alford v. McDonough, No. 7:19-CV-186-FL, 2021 U.S. Dist. LEXIS

237475 (E.D.N.C. Dec. 13, 2021); Alford v. McGregor, No. 7:20-CV-31-D, 2020 WL 6139944, at *1 (E.D.N.C. Oct.

19, 2020); Alford v. Nelson, No. 7:23-CV-1670-BO-KS, 2024 WL 1776446, at *1 (E.D.N.C. Apr. 4, 2024),

memorandum and recommendation adopted, No. 7:23-CV-1670-BO-KS, 2024 WL 1776361 (E.D.N.C. Apr. 24,

2024); Alford v. Nelson, No. 7:22-CV-173-FL, 2023 WL 5577309, at *2 (E.D.N.C. Aug. 29, 2023); Alford v. White,

No. 7:23-CV-1206-D, 2023 WL 8199597, at *2 (E.D.N.C. Oct. 23, 2023), memorandum and recommendation adopted

sub nom. Alford v. Harris, No. 7:23-CV-1206-D, 2023 WL 8190156 (E.D.N.C. Nov. 27, 2023).

ORDER ON IN FORMA PAUPERIS MOTION

To qualify for in forma pauperis status, a person must show that he “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.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339

(1948) (internal quotation marks omitted). Based on the information in the motion to proceed in

forma pauperis, the court finds that plaintiff has adequately demonstrated his inability to prepay

the required court costs. Accordingly, plaintiff’s motion to proceed in forma pauperis [DE-2] is

therefore ALLOWED.

ORDER ON MOTION FOR PRE-HEARING CONFERENCE [DE-5]

Plaintiff filed a motion requesting a pre-hearing conference [DE-5]. In the caption of his

motion, plaintiff references the Equal Employment Opportunity Commission (“EEOC”), an EEOC

case number, an “Agency Number,” and the name of an administrative law judge. Plaintiff

provides that the “Agency” will not respond to his offers and “request[s] a second pre-hearing

conference so the agency can respond to my most recent offer of $100,000.00 and reinstatement

of position as a permanent Field representative GS-6.” [DE-5] at 1. Plaintiff also requests that

“the Agency [provide discovery] that has already been discussed at the initial conference.” Id. at

2. Based upon the context of the filings in this case, the court construes the “Agency” to be the

United States Census Bureau (the “Census Bureau”) under the United States Department of

Commerce.

It is unclear what type of conference, hearing, or other remedy, plaintiff seeks from this

court in his motion. On this basis alone, the motion is DENIED WITHOUT PREJUDICE. To the

extent plaintiff is seeking a discovery conference or other hearing with this court, once the

complaint survives a frivolity review and any defendants have been served with the complaint, the

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court will generally order the parties to engage in a Rule 26 conference. See Fed. R. Civ. Proc.

16(b)(1). Accordingly, plaintiff’s request for a pre-hearing conference is premature, and plaintiff’s

motion for pre-hearing conference is DENIED WITHOUT PREJUDICE.

MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

I. BACKGROUND

A. Factual allegations

While somewhat unclear based on his various filings, plaintiff appears to assert claims

against (i) the Department of Commerce Census Bureau; (ii) Acting Secretary of Commerce

Jeremy Pelter (“Mr. Pelter”); (iii) Holly Hillman (“Ms. Hillman”); and (iv) “Mr. Tighe.” [DE-1]

at 1; [DE-1-3] at 1-2 (proposed summons to Mr. Pelter); [DE-1-3] at 3-4 (proposed summons to

Ms. Hillman and “Mr. Tigh” [sic]); [DE-1-5].

Plaintiff claims that he was fired from his work as a field representative for the Census

Bureau on a children’s health survey. [DE-1] at 1. Plaintiff alleges that he received no training to

conduct the survey and that the director of the program cleared him of all wrongdoing. Id. Plaintiff

contends that “Mr. Tighe [sic] analogy of what happened is wrong” and that “if this is the basis of

firing [plaintiff,] it should be overturned, and [plaintiff] should be given [his] job back.” Id.

Plaintiff claims that his supervisors harassed him “for over a year” through (i) threatening calls;

(ii) emails confirming harassment; (iii) docking of plaintiff’s pay and theft of his hours. Id.

Plaintiff’s direct supervisor2 allegedly stated that as plaintiff’s supervisor, she could take plaintiff’s

2 Plaintiff’s filings suggest that Ms. Hillman was plaintiff’s direct supervisor. For example, the United States

Department of Commerce Report of Investigation, which plaintiff filed and which the undersigned generously

construes as a part of plaintiff’s complaint records plaintiff’s allegations that “[h]is former supervisor, Holly Hillman,

did not properly pay him for hours worked and reimburse him for mileage” and “interfered with his work assignments

by removing cases from his workload, without first telling him.” [DE-6-2] at 5-6. These allegations match conduct

plaintiff attributes to this “direct supervisor” in his complaint, including that she could take plaintiff’s hours whenever

she was so inclined. [DE-1] at 1. Additionally, plaintiff filed an exhibit showing a “Atlanta Regional Office

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hours whenever she was so inclined. Id. Plaintiff asserts that he requested reassignment to another

supervisor, reassignment to another county, and accommodation for his “Combat Mental,” but that

such requests were disregarded. Id. Plaintiff claims that his direct supervisor falsely told her

supervisor (the “second-level supervisor”)3 that plaintiff was only going to two-to-four houses in

a four-hour period, while he was in fact visiting six-to-seven houses during such a period. Id.

Plaintiff claims that when his supervisors stopped assigning him work, he “snapped and sent her

an e-mail outlining everything she was doing wrong.” Id. The second-level supervisor allegedly

read the email and fired plaintiff. Id.

Plaintiff believes that he was fired in retaliation for filing an EEOC complaint against his

direct supervisor. Id. Plaintiff provides that that he is 100% disabled and suffers from

“schizoaffective PTSD, Anxiety, and Sleep Apnea.” Id. He further asserts that he “hold[s] a 10-

Point Veteran’s Preference which means once [he] told [his] supervisors they were supposed to

accommodate him,” which would have required “no hollering or threatening [him].” Id. Plaintiff

also claims that he was suspended from work because he “would not [follow his supervisor’s

directions to] obtain information by [illegal] means . . . from this black website and invade people’s

privacy.” Id.4

B. Supplemental filings

Plaintiff filed three documents, each titled “Defamation of Professional Character and

Perjury.” See [DE-6], [DE-7], [DE-8] (collectively, the “supplemental filings”). In these

supplemental filings, plaintiff seeks to provide “the report from Investigation from the EEOC”

Organizational Chart Supervisory Relationship between Complainant and Management” showing that Holly Hillman

was the direct supervisor of the complainant, plaintiff. [DE-6-6] at 1.

3 Plaintiff’s filings suggest that Mr. Tighe was plaintiff’s second-level supervisor.

4 Plaintiff also attaches a civil cover sheet to his complaint reflecting a different case number, i.e., 4:25-CV-52-

FL, and different parties than the instant case, plaintiff: Jennie Nicole Walls, defendant: The State of North Carolina,

Halifax County. [DE-1-1]. The undersigned construes this document as having been filed in error in this case.

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([DE-6] at 1), as well as “several pages of emails that [plaintiff] sent into the agency administrative

judge who analyzed the emails and never used them” ([DE-7] at 1). The undersigned generously

construes these documents as seeking to supplement plaintiff’s complaint. In these supplements,

plaintiff alleges that “Ms. Holly [sic] field [sic] lied under oath and Mr. Tighe assisted her in her

lies leading him to fire Mr. Alford without cause.” [DE-6] at 1.

Under North Carolina law, there is no private cause of action for perjury. Brewer v.

Carolina Coach Co., 253 N.C. 257, 260, 116 S.E.2d 725, 727 (1960) (“[A] civil action in tort

cannot be maintained upon the ground that a defendant gave false testimony or procured other

persons to give false or perjured testimony.”); Gilmore v. Gilmore, 229 N.C. App. 347, 351, 748

S.E.2d 42, 45 (2013) (“It is well established in North Carolina that neither perjury nor subornation

of perjury may form the basis for a civil action.”) (citing Strickland v. Hedrick, 194 N.C. App. 1,

19, 669 S.E.2d 61, 74 (2008)). Accordingly, any attempt by plaintiff to supplement his complaint

to add such a cause of action would be futile.

Plaintiff’s filings also appear to assert claims for defamation based on statements made in

the context of and related to plaintiff’s EEOC investigation. See [DE-8]. Under North Carolina

law, “a defamatory statement is absolutely privileged if it is made in the due course of a judicial

or quasi-judicial proceeding and is relevant and pertinent to the subject matter of the proceeding.”

Bouvier v. Porter, 386 N.C. 1, 10, 900 S.E.2d 838, 847 (2024). EEOC proceedings are quasi-

judicial proceedings, and defendants’ statements that were relevant to such proceedings are

covered by absolute immunity. See Swindell v. Charlotte-Mecklenburg Bd. of Educ., No. 3:21-

CV-00676-FDW-DCS, 2024 U.S. Dist. LEXIS 100387, at *11 (W.D.N.C. June 5, 2024) (“This

Court finds Defendant’s statement to be in the course of the EEOC proceeding as it was a direct

response to the Plaintiff’s complaint. Accordingly, Defendant’s statement is privileged and unable

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to support a civil action for defamation.”).

Plaintiff also provides over 700 pages of exhibits as attachments to his filings. See [DE-6-

2 to 6-7]. To the extent that plaintiff attempted to make claims or legal arguments in those filings

that are not addressed herein, the undersigned finds that any such claims or arguments suffer from

deficient pleading under Rule 8, because their volume and lack of specificity fail to articulate “a

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

P. 8(a)(2); see also Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502,

at *1 (E.D.N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se

complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016);

Walker v. Prince George’s County, 575 F.3d 426, 429 n.* (4th Cir. 2009) (“Judges are not like

pigs, hunting for truffles buried in briefs.”) (quoting United States v. Dunkel, 927 F.2d 955, 956

(7th Cir. 1991)).

Accordingly, while the undersigned has considered plaintiff’s complaint, as supplemented

by the factual allegations made in plaintiff’s supplemental filings ([DE-6], [DE-7], [DE-8]), the

undersigned does not consider these filings to add any viable legal claims to plaintiff’s complaint.

C. Jurisdictional allegations

Plaintiff alleges that jurisdiction before this court arises based on federal question

jurisdiction and because the U.S. government is a defendant. [DE-1-5].

D. Legal claims and relief sought

Plaintiff alleges that defendants engaged in (i) a state law claim of “defamation of

professional character” because they “lied and perjured themselves.” Id. The undersigned also

generously construes plaintiff’s complaint as asserting a claim for (ii) hostile work environment,

(iii) failure to accommodate his mental disability of “schizoaffective PTSD, Anxiety, and Sleep

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Apnea,” and (iv) retaliatory discharge, each under the Rehabilitation Act of 1973, as amended (the

“Rehabilitation Act”); as well as (v) a claim for retaliation under the Civil Service Reform Act of

1978, 5 U.S.C. §§ 1101 et seq. (the “CSRA”) based on plaintiff’s suspension in response to his

refusal to engage in allegedly illegal activity. See [DE-1]. Plaintiff requests damages of

$100,000,000. [DE-1-5].

II. APPLICABLE LEGAL STANDARDS

After allowing a party to proceed in forma pauperis, as here, the court must conduct a

frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court

must determine whether the action is frivolous or malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to

dismissal. 28 U.S.C. § 1915(e)(2)(B); see also Denton v. Hernandez, 504 U.S. 25, 27 (1992)

(providing standard for frivolity review). A case is frivolous if “it lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In evaluating frivolity specifically, the court holds a pro se plaintiff’s pleadings to “less

stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th

Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff’s contentions as true.

Denton, 504 U.S. at 32. The court may “pierce the veil of the complaint’s factual allegations and

dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327.

Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328.

Provided that a plaintiff’s claims are not clearly baseless, the court must weigh the factual

allegations in plaintiff’s favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must

read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to

support the claims asserted. White, 886 F.2d at 724.

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Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for

relief must contain “a short and plain statement of the grounds for the court’s jurisdiction . . . [and]

a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(1)-(2). The factual allegations in the complaint must create more than a mere possibility

of misconduct. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010), aff’d sub

nom. Coleman v. Ct. of Appeals of Maryland, 566 U.S. 30 (2012) (citing Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). Likewise, 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.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555-57 (2007)) (alterations in original) (internal quotation marks omitted).

A court may also consider subject matter jurisdiction as part of the frivolity review. See

Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (“Determining the question of subject matter

jurisdiction at the outset of the litigation is often the most efficient procedure.”); Hill v. Se. Reg’l

Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D.N.C. Oct. 21, 2019), mem. &

recomm. adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D.N.C. Dec. 20, 2019), aff’d, 818

F. App’x 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity

jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited

jurisdiction and are empowered to act only in those specific instances authorized by Congress.”

Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks

jurisdiction in a particular case unless jurisdiction is affirmatively demonstrated. Lehigh Min. &

Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing subject matter jurisdiction

rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219

(4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party

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asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction.

Bowman, 388 F.2d at 760. If the court determines that it lacks subject-matter jurisdiction, it must

dismiss the action. Fed. R. Civ. P. 12(h)(3).

III. ANALYSIS

A. Rehabilitation Act claims

As noted above, the undersigned construes plaintiff’s claims as alleging three claims of

discrimination based on his disabilities: (i) hostile work environment, (ii) failure to accommodate

and (iii) retaliatory discharge. A federal agency employee’s claim for disability discrimination

must proceed under the Rehabilitation Act rather than the Americans with Disabilities Act

(“ADA”). See 42 U.S.C. § 12111(5)(B)(i) (“The term ‘employer’ does not include . . . the United

States”); see also Alford v. Nelson, No. 7:22-CV-173-FL, 2023 WL 5826902, at *2 (E.D.N.C. July

26, 2023) (“Disability discrimination claims against a federal agency are brought under the

Rehabilitation Act rather than the ADA.”), memorandum and recommendation adopted, No. 7:22-

CV-173-FL, 2023 WL 5577309 (E.D.N.C. Aug. 29, 2023); Green v. Garland, No. 4:21-CV-2514-

SAL-KDW, 2022 WL 3211217, at *14 (D.S.C. May 3, 2022) (“[F]ederal employee’s disability-

related claims lie under the Rehabilitation Act, not the ADA”), report and recommendation

adopted, 2022 WL 2965634 (D.S.C. July 27, 2022). The Rehabilitation Act “incorporates the

standards of Title 1 of the [ADA], 42 U.S.C. § 12111 et seq., as to complaints alleging non-

affirmative action discrimination.” Merrill v. McCarthy, 184 F. Supp. 3d 221, 236 (E.D.N.C.

2016) (first citing 29 U.S.C. § 791(f), then citing 29 C.F.R. § 1614.203(b)).

1. Retaliatory discharge

Plaintiff’s claim for retaliatory discharge appears to be based on plaintiff’s belief that

plaintiff “was fired in retaliation for . . . filing an EEOC complaint against [his] supervisor.” [DE-

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1] at 1. The Fourth Circuit has repeatedly held that filing of an EEOC complaint is generally a

protected activity. See King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003); Carter v. Ball, 33

F.3d 450, 460 (4th Cir. 1994). Yet plaintiff also alleges other grounds for his termination,

including his second-level supervisor reading an email plaintiff had sent to his direct supervisor

“outlining everything she was doing wrong” ([DE-1] at 1); “for working without pay on his days

off” ([DE-8] at 4); and that “[plaintiff] drove [a rental] vehicle for 2900 miles, and he billed the

Census for 3600 miles” (id.). Cf. also [DE-5] at 1 (“I was fired for going over the date of the

survey I was working on.”). In an ADA claim and hence in a Rehabilitation Act claim, when an

alleged retaliatory motive was only one motivating factor, but not the “but-for” cause of

termination, the claim must fail. Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 235 (4th

Cir. 2016) (“The only remaining question is whether the ADA’s text calls for a ‘but-for’ causation

standard. We hold that it does.”); Davis v. W. Carolina Univ., 695 F. App’x 686, 688 (4th Cir.

2017) (“If an employer acts with a mixed motive -- both a discriminatory and non-discriminatory

reason -- then the employer is not liable.”). Here, plaintiff attributes his termination to several

motives, at least some of which were non-discriminatory. Accordingly, his retaliatory termination

claim must fail and the undersigned RECOMMENDS this claim be DISMISSED.

2. Hostile work environment; Failure to accommodate

The undersigned RECOMMENDS that plaintiff’s claims for hostile work environment and

failure to accommodate under the Rehabilitation Act be ALLOWED TO PROCEED against the

Secretary of Commerce at this time. For the avoidance of doubt, the undersigned makes no

findings on whether such claims would survive a fully briefed 12(b) motion. Sofer v. N.C. Hertford

Police Dep’t, No. 91-7024, 1991 U.S. App. LEXIS 12918, at *7 (4th Cir. June 21, 1991)

(“[C]laims which are founded upon ‘indisputably meritless legal theories’ or ‘clearly baseless’

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factual contentions may properly be dismissed as ‘frivolous’ under § 1915(d)[;] . . . [i]n all other

cases, however, a case should be allowed to progress, even where it appears that it will not survive

a motion under 12(b)(6).”). For example, while the presence, absence, or timing of a Right to Sue

letter from the EEOC may be relevant to the disposition of plaintiff’s Rehabilitation Act claims,

such questions are better considered on a fully briefed 12(b) motion.

B. CSRA claim

Plaintiff claims that he was suspended from work because he “would not [follow his

supervisor’s directions to] obtain information by [illegal] means . . . from this black website and

invade people’s privacy.” [DE-1] at 1. The CSRA prohibits a federal agency from taking or failing

to take a “personnel action” against an employee for “refusing to obey an order that would require

the individual to violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D). The Fourth Circuit

has found that a suspension qualifies as a prohibited “personnel action” against an employee.

Mikhaylov v. Dep’t of Homeland Sec., 62 F.4th 862, 864 (4th Cir. 2023) (considering a two day

suspension by the Department of Homeland Security as a personnel action).

Such a claim is, however, also subject to an administration exhaustion requirement. See 5

U.S.C. § 1214(c)(1); Butler v. West, 334 U.S. App. D.C. 55, 164 F.3d 634, 638 (1999) (“An

employee who intends to pursue a mixed case . . . can choose between filing a ‘mixed case

complaint’ with her agency’s EEO office and filing a ‘mixed case appeal’ directly with the [Merit

Systems Protection Board].”). Yet, this question is best considered on a fully briefed 12(b) motion.

Accordingly, the undersigned RECOMMENDS that plaintiff’s CSRA claim be allowed to proceed

at this time.

C. Proper defendant

The only proper defendant to a federal-sector employment discrimination action under both

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the CSRA and the Rehabilitation Act is the “head of the department, agency, or unit . . . .” 42

U.S.C. § 2000e-16(b)(3); Alford v. Ballard, No. 1:18-cv-00917 (LMB/MSN), 2018 U.S. Dist.

LEXIS 236536, at *6-7 (E.D. Va. Dec. 27, 2018) (“Assuming plaintiff intended to assert claims

based on . . . the Rehabilitation Act, or the CSRA, those claims cannot proceed against the named

government employees in their individual capacities, as the only proper defendants would be the

agency itself or the head of the agency sued in her official capacity.”). While Mr. Pelter was the

Acting Secretary of Commerce earlier in 2025, the current Secretary of Commerce is Howard

Lutnick. The Federal Rules of Civil Procedure therefore require that Mr. Lutnick be substituted

as the proper defendant. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer

who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the

action is pending. The officer’s successor is automatically substituted as a party.”). Accordingly,

the undersigned RECOMMENDS that Mr. Lutnick in his official capacity as the Secretary of

Commerce be substituted as the defendant in this case.

D. Defamation

Plaintiff appears to raise a state law claim for defamation. To bring a claim for defamation,

“a plaintiff generally must show that the defendant caused injury to the plaintiff by making false,

defamatory statements of or concerning the plaintiff, which were published to a third person.”

Desmond v. News & Observer Publ’g Co., 241 N.C. App. 10, 16, 772 S.E.2d 128, 135 (2015). A

North Carolina Court of Appeals has explained that:

the term defamation applies to the two distinct torts of libel and slander. Libel per

se is “a publication which, when considered alone without explanatory

circumstances: (1) charges that a person has committed an infamous crime; (2)

charges a person with having an infectious disease; (3) tends to impeach a person

in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule,

contempt or disgrace” . . . Slander per se is “an accusation that the plaintiff

committed a crime involving moral turpitude; (2) an allegation that impeaches the

plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff

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has a loathsome disease.”

Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29-30, 568 S.E.2d 893, 898 (2002) (internal

citations omitted).

The undersigned construes plaintiff’s complaint to allege that plaintiff’s direct supervisor,

Ms. Hillman falsely told the second-level supervisor, Mr. Tighe, that plaintiff was only going to

two-to-four houses in a four-hour period, while he was in fact visiting six to seven houses in a

four-hour period. [DE-1] at 1. The undersigned generously construes this allegation as claim that

Ms. Hillman’s statement tended to impeach plaintiff in his trade or profession. Boyce & Isley,

PLLC, 153 N.C. App. at 29-30, 568 S.E.2d at 898. While defenses such qualified privilege may

ultimately present a bar to plaintiff’s defamation claim, such defenses are more appropriately

considered on a fully briefed Rule 12(b)(6) motion.

The undersigned does not discern a claim for defamation against any other defendants in

plaintiff’s complaint. To the extent that plaintiff contends that his supplemental filings assert a

claim for defamation by Mr. Tighe (see, e.g., [DE-8] at 4) (“Mr. Tighe stated that Dr. Alford

regularly inflated his hours”), such allegations were either made in the context of and are relevant

to the EEOC proceedings or otherwise fail to satisfy one or more of the elements for a defamation

claim. Accordingly, the undersigned RECOMMENDS that Mr. Tighe be DISMISSED as a

defendant.

The undersigned notes that the Federal Tort Claims Act (“FTCA”), as amended by the

Federal Employee Liability Reform and Tort Compensation Act (“FELRTCA”), codified at 28

U.S.C. §§ 1346(b), 2671-80, “immunizes a federal employee from liability for his ‘negligent or

wrongful acts or omissions . . . while acting within the scope of his office or employment . . . .’”

Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997) (alterations in original) (quoting 28

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U.S.C. § 2679(b)(1)). The FTCA expressly excludes claims of libel and slander from its scope.

See 28 U.S.C. § 2680(h); Johnson v. Carter, 983 F.2d 1316, 1323 n.9 (4th Cir. 1993) (“The United

States has not waived its sovereign immunity in defamation actions.”). “When a federal employee

is sued, the United States Attorney, acting on behalf of the Attorney General, must certify whether

that employee was in fact acting within the scope of his or her employment at the time of the

alleged tortious act.” Id. (citing 28 U.S.C. § 2679(d)(1)). Yet as defendants have not yet been

served in this matter, and the United States Attorney has not yet filed a certification, consideration

of this question is premature at this juncture.

Accordingly, the undersigned RECOMMENDS that plaintiff’s claim for defamation

against Ms. Hillman be allowed to proceed and that any other claims be DISMISSED for failure

to state a claim. For the avoidance of doubt, the undersigned makes no findings on whether the

defamation against Ms. Hillman would survive a fully briefed 12(b) motion. In addition, the

proposed summons that plaintiff provided for Ms. Hillman also includes “Mr. Tigh” as an

addressee. See [DE-1-3] at 3. Each summons must be addressed to one specific defendant. See

Fed. R. Civ. P. 4(a)(1)(B); Brissett v. Freemont Inv. & Loan Corp., No. 4:08-CV-77-F, 2010 WL

3003361, at *2 (E.D.N.C. July 29, 2010) (“[A] plaintiff must present a properly completed

summons for each defendant in an action to the clerk, who will then sign, seal, and issue the

summonses to plaintiff for service upon each defendant.”) (citing Fed. R. Civ. P. 4(b)).

Accordingly, plaintiff must provide a corrected proposed summons before service can be affected.

CONCLUSION

For the reasons set forth above, plaintiff’s motion for pre-hearing conference [DE-5] is

DENIED WITHOUT PREJUDICE.

Additionally, for the reasons set forth above, the undersigned RECOMMENDS that

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plaintiff’s claims be ALLOWED TO PROCEED IN PART and DENIED IN PART.

Specifically, the undersigned RECOMMENDS that court enter an order providing as

follows:

1. The Secretary of Commerce, Howard Lutnick (“Mr. Lutnick”), is substituted as the

defendant for plaintiff’s Rehabilitation Act and Civil Service Reform Act claims.

2. Plaintiff’s claim for retaliatory discharge under the Rehabilitation Act is

DISMISSED.

3. Plaintiff’s Rehabilitation Act claims for hostile work environment and failure to

accommodate, as well as plaintiff’s CSRA claim may proceed against the Secretary

of Commerce, Mr. Lutnick, but are DISMISSED with respect to all other

defendants.

4. Plaintiff’s state law defamation claim may proceed against Holly Hillman (“Ms.

Hillman”), but is DISMISSED with respect to all other defendants.

5. Defendants Mr. Lutnick and Ms. Hillman are government employees, and

therefore, pursuant to Fed. R. Civ. P. 4(i), summonses are required for the agency

or employee, the Attorney General of the United States, and civil process clerk for

the United States Attorney. Within 14 days of this order, plaintiff shall provide

proposed summonses for:

a. Mr. Lutnick;

b. Ms. Hillman;

c. the civil process clerk and addressed to the United States Attorney for the

Eastern District of North Carolina; and

d. Attorney General of the United States.

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6. Failure by plaintiff to file proposed summonses as directed within 14 days of the

date of this order, may result in the dismissal of this case without prejudice for

failure to prosecute.

7. If plaintiff files the proposed summonses within 14 days of the date of this order,

upon their submission, if properly completed, the Clerk shall issue the summonses

prepared by plaintiff. The United States Marshal is then DIRECTED to serve

defendants by delivering the summons to the addressee listed in the summons along

with a copy of the complaint pursuant to Fed. R. Civ. P. 4 once the summons has

been issued.

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

served on plaintiff or, if represented, his counsel. Plaintiff shall have until March 25, 2026, to file

written objections to this 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)(1);

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.

If a party does not file written objections to the Memorandum and Recommendation

by the foregoing deadline, the party 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, the party’s failure to file written

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objections by the foregoing deadline will bar the party 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).

Submitted, this 10th day of March, 2026.

Brian S. Meyers

United States Magistrate Judge

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