Perry v. NCDMV, No. 5:2010cv00028 - Document 17 (E.D.N.C. 2011)
Court Description: ORDER granting 12 Motion to Dismiss Plaintiff's Amended Complaint - Signed by Senior Judge Malcolm J. Howard on 01/10/2011. Copies served. (Baker, C.)
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Perry v. NCDMV Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO.5: 10-cv-28-H ALICIA PERRY, Plaintiff, v. ORDER NCDMV, Defendant. This dismiss matter is before pursuant to Federal Plaintiff has the court on defendant's of and responded, Rule civil this motion Procedure matter 12 (b) (6) . ripe is to for adjudication. BACKGROUND The plaintiff, Alicia Perry, this of action on May 17, Motor Vehicles Department of complaint ("NCDMV"), as purported Civil Rights Act. 2010 naming the North Carolina Division a Transportation, government agency, filed the amended complaint in Division a State the sole defendant. to allege See 42 U.S.C. claims of the of North North Carolina Carolina Plaintiff's original under Title VII of the §20003(e) (5). Dockets.Justia.com Plaintiff employment nature. asserts and that she that defendant's In her original was terminated conduct was complaint, she from discriminatory lists the names races of ten women who allegedly discriminated against her. states that harassment the and basis of retaliation her complaint stemming from her is a "from dildo in and She ongoing (sexually explicit object) being placed on my desk during the Christmas Season of 2003." (Original Complaint.) Attached to her original complaint is an addendum which outlines the incident described above and notes that plaintiff complained to management and asked to be transferred out of the call center due to harassment and retaliation, but that she was not allowed to transfer until June of 2007. Plaintiff's amended complaint again outlines the 2003 incident involving a dildo and notes that plaintiff complained in 2004 but was not allowed to transfer. The third paragraph notes that she was allowed to move into a different position in 2007. COURT'S DISCUSSION I. Standard of Review A federal district court confronted with a motion to dismiss for failure to state a claim should view the allegations 2 of the complaint in the See light most Ibarra v. United states, 120 F.3d 472, The intent of complaint. Cir. Rule 12 (b) (6) is 1999) A Rule 12 (b) (6) the facts, 980 F.2d 943, the 952 been stated adequately, facts consistent meri ts Id. evidence Chao v. II the (4th Cir. 1997). sufficiency of 178 F.3d 231, 243 a (4th of a claim, or the (4th Cir. 1992). "[O]nce a claim has it may be supported by showing any set with the allegations in the complaint." S. Ct. 1955, 1969 (2007). complaint need not 'make a case' against a defendant or 'forecast claim. 474 (quoting Republican Party v. Bell Atlantic Corp. v. Twombly, 127 "[A] test to the plaintiff. motion" 'does not resolve contests applicability of defenses.'" Martin, to Edwards v. City of Goldsboro, surrounding of favorable Cir. 2005) (4th Cir. sufficient to Rivendell Woods, (quoting Iodice v. 2002)). Procedure provides Rule 8 prove Inc., an 415 F.3d 342, United States, of the element' 289 Federal the 349 (4th F.3d 270, Rules "for simplicity in pleading of that of 281 Civil intends to give little more than notice to the defendant of the plaintiff's claims and those claims Retirement 2007). that Sys. defers until insofar of as LA v. after discovery they rely Hunter, 477 on any challenge facts." F.3d 162, 170 to Teachers' (4th Cir. A complaint is generally sufficient if its "'allegations are detailed and informative enough to enable 3 the defendant to respond. ,,, rd. Miller, Federal 2004)). Thus, notice" of (quoting 5 Practice and Charles Alan Procedure, Wright Arthur & § 1215 at 193 R. (3d ed. a complaint satisfies the Rules if it gives "fair the claim and "the grounds upon which it rests." Twombly, 127 S. Ct. at 1964. II. Analysis From plaintiff's complaint and amended complaint it is difficult to decipher the claims she seeks to bring. Her amended complaint contains no statutory authority for a she is fails. trying any a federal discrimination Assuming lawsuit, she (and the response to defendant's motion allege that she was treated unkindly and teased by coworkers that bring Her complaints to dismiss) her to suit. and such supervisors, teasing statutory discrimination was law. but the there type Plaintiff are not allegations proscribed has by simply federal failed to allege that she was treated differently from similarly situated individuals because of her gender or that she was subjected to a hostile work environment because of her sex. While she does allege one incident involving a dildo being placed on her desk, there is no evidence that apparent teasing by coworkers was part of a pattern of this one, isolated incident of (albeit unprofessional in nature) discrimination or of environment. 4 a hostile work Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. Oncale v. 1003 Sundowner Of f shore Services, (1998). 118 S. Inc., Ct. 998, "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that abusive-is Systems, a beyond 510 U.S. general civility. reasonable Title 17, person VII's 21 purview." (1993). See Oncale, would find Harris Title VII is hostile v. not a 118 S.Ct. at 1002. or Forklift code of Plaintiff has failed to plead a claim for discrimination under Title VII. In plaintiff's prayer for relief in her amended complaint, plaintiff Carolina While seeks Gen. N.C. special Stat. Gen. retaliation, N. C. limitations of Stat. Gen. one § damages 126-87, § the 126-85 Stat. year § in accordance "whistle-blower" protects state this North statute. employees from 126-86 provides for a statute of on such claims. terminated from her employment on October 8, file with suit until January 15, 2010. Plaintiff 2008, Therefore, was and did not any claims under this statute are barred. Finally, inasmuch claim for intentional as plaintiff is attempting to infliction of emotion distress, 5 bring a any such claim is state of barred by doctrine of sovereign immunity. The North Carolina has not waived sovereign immunity for intentional North the torts. Carolina See at Kawai Chapel America Hill, Corp. 152 v. N.C.App. Uni versi ty of 163 (2002) . Accordingly, this claim fails as well. Plaintiff has failed to plead any claim for which relief may be granted. Therefore, defendant's motion to dismiss is GRANTED. CONCLUSION For the foregoing reasons, defendant's motion to dismiss is GRANTED, and the clerk is directed to close this case. r,1J This /0 ~y of January 2011. Malcolm J. war Senior United States District Judge At Greenville, NC #26 6
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