Campbell v. North Carolina Department of Health and Human Services et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:25-cv-68-MR-WCM
LINDA CAMPBELL, )
)
Plaintiff, )
) MEMORANDUM AND
) RECOMMENDATION
v. )
)
NORTH CAROLINA )
DEPARTMENT OF HEALTH )
AND HUMAN SERVICES, )
d/b/a Broughton Hospital; )
CARL EPLEY; and )
MARCUS GUY, )
)
Defendants. )
______________________________ )
This matter is before the Court on Defendants’ Motion to Dismiss the
Second Amended Complaint (the “Motion to Dismiss,” Doc. 19), which has been
referred to the undersigned for the entry of a recommendation pursuant to 28
U.S.C. § 636.
I. Relevant Procedural Background
On January 6, 2025, Linda Campbell (“Plaintiff”) filed her original
Complaint in the Superior Court of Burke County, North Carolina against the
North Carolina Department of Health and Human Services (the “DHHS”), Carl
Epley (“Epley”), Marcus Guy (“Guy”), and John W. Warren & Associates, PA
d/b/a Complex Psychological Evaluations (“CPE”). Doc. 1-1.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 1 of 38

2
On March 7, 2025, the named defendants removed the matter to this
Court. Doc. 1.
On May 5, 2025, Plaintiff filed an amended complaint, Doc. 12, and, on
May 28, 2025, Plaintiff filed a Second Amended Complaint, asserting claims
against only DHHS, Epley, and Guy (“Defendants”). Doc. 18.
On June 11, 2025, Defendants filed the Motion to Dismiss. Plaintiff has
responded and Defendants have replied. Docs. 20, 21.
II. Plaintiff’s Allegations and Claims1
At the outset, the undersigned is compelled to note that Plaintiff’s
pleading does not constitute “a short and plain statement of the claim showing
that [Plaintiff] is entitled to relief,” as contemplated by Rule 8 of the Federal
Rules of Civil Procedure. The document itself, exclusive of exhibits but
1 Plaintiff has attached several documents to her Second Amended Complaint,
including materials from the Equal Employment Opportunity Commission (the
“EEOC”), DHHS, and the North Carolina Office of Administrative Hearings (the
“OAH”). Likewise, Defendants have attached various documents to their Motion to
Dismiss, including charges of discrimination submitted by Plaintiff and related
letters advising Plaintiff of her right to sue. See Doc. 19-5. The undersigned has
considered the materials attached to Plaintiff’s Second Amended Complaint as well
as the documents related to Plaintiff’s charges of discrimination and notices of right
to sue. Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396 (4th Cir. 2006) (“[A] court may
consider official public records, documents central to plaintiff's claim, and documents
sufficiently referred to in the complaint so long as the authenticity of these documents
is not disputed.”); Caison v. Thermo Fisher Scientific, No. 5:22-cv-00013, 2022 WL
10146542, at *2 (W.D. Va. Oct. 17, 2022) (“In ruling on a motion to dismiss, a court
may consider documents referenced by a plaintiff in the complaint and attached to a
motion to dismiss, such as a right-to-sue letter from the EEOC, without converting a
motion to dismiss into a summary judgment motion.”).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 2 of 38

3
including the signature page, is 59 pages long and contains 453 numbered
paragraphs. The factual allegations are, at times, duplicative, unnecessarily
detailed or, alternatively, vague, and somewhat difficult to follow
chronologically. Nonetheless, in relevant part, Plaintiff appears to allege as
follows:
Plaintiff, a white female, was employed by DHHS at Broughton Hospital,
a psychiatric hospital owned and operated by DHHS, in Morganton, North
Carolina. Doc. 18 at ¶¶ 2-5.
Plaintiff worked in patient financial services. She was supervised at
different times by Epley, who is a white male, and Guy. Plaintiff herself
supervised Catherine Largent (“Largent”) and Jennifer Lowery (“Lowery”). Id.
at ¶¶ 8, 10, 13, 36.
On October 8, 2018, Plaintiff was struck by a motor vehicle and sustained
serious injuries, including a traumatic brain injury (“TBI”) that “impaired her
nervous system and altered her personality. In addition to attention-deficit
hyperactivity disorder (‘ADHD’) and post-traumatic stress disorder (‘PTSD’),
Plaintiff developed difficulties typing…, intense hyper-sexual behavior, and
other neurological issues.” Id. at ¶¶ 37-38.
Plaintiff was out of work from October 9, 2018 to October 14, 2018 and
attempted to return on October 15, 2018. Id. at ¶¶ 74-75. At various times over
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 3 of 38

4
the following years, she went back out on leave, returned to light duty work,
and returned to full duty work. Id. at ¶¶ 85-87, 103.
At some point while Plaintiff was on leave, Epley recognized the ways in
which Plaintiff had become vulnerable following her accident and began
texting Plaintiff. His texts turned sexual in nature, and he began making
strong and persistent sexual advances toward Plaintiff. Epley and Plaintiff
subsequently exchanged sexually explicit text messages. Id. at ¶¶ 74-90.
In the spring of 2021, Plaintiff received therapy that alleviated most of
her symptoms. At approximately the same time, Epley informed Plaintiff that
“their boss” was retiring and that Epley would be taking over the position.
Plaintiff alleges that Epley pressured her to engage in physical sexual activity
with him before he took the new position but that Plaintiff informed Epley that
she was not interested in him and that Epley needed to stop making sexual
advances toward her. Id. at ¶ ¶ 93, 96, 100.
Plaintiff returned to light duty work on May 24, 2021 and to full duty
work on June 4, 2021. Id. at ¶ 103.
Subsequently, Epley “began a relentless campaign of retaliation against
Plaintiff….” Id. at ¶ 107.
Plaintiff also alleges that Epley “turned Largent and Lowery against
Plaintiff,” id. at ¶ 113, and that Plaintiff experienced harassment and
retaliation in various forms, including Largent submitting a complaint about
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 4 of 38

5
Plaintiff that was later retracted, Lowery and Largent “suddenly [growing]
obstinate and insist[ing] they did not need to listen to Plaintiff,” and Lowery
making false statements including that Plaintiff was going to “shoot up the
place.” Id. at ¶ 115. At one point, Lowery apologized to Plaintiff and told
Plaintiff that Epley and Largent “were actively working together to get
Plaintiff fired” and had “pressured her [Lowery] to complain about Plaintiff.”
Id. at ¶¶ 118, 120.
On March 13, 2022, Plaintiff provided a “written report of concerns”
about Epley and Largent. It was forwarded to Broughton Hospital’s CEO,
Vivian Streater, who called for an investigation. Id. at ¶ ¶ 125, 128-129.
On March 29, 2022, Plaintiff was reassigned and began reporting to Reba
Yancey. Id. at ¶ 133.
On April 13, 2022, “the investigators” informed Streater that they had
not substantiated Plaintiff’s allegations “but had identified certain areas for
improvement regarding interpersonal interactions and communications
between employees in the department.” Id. at ¶ 138. Plaintiff contends, upon
information and belief, that the investigators’ failure to substantiate her
allegations was the result of Epley’s undue influence. Id. at ¶¶ 139-42.
Streater and an investigator met with Plaintiff on April 29, 2022. They
communicated the outcome of the investigation and Plaintiff was permanently
reassigned to be supervised by Yancey. Id. at ¶¶ 144- 145.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 5 of 38

6
At some point, Epley was promoted and became Broughton Hospital’s
chief financial officer, id. at ¶ 153, and in “May and June 2022…began looking
for reasons and ways to enter Plaintiff’s new work location.” Id. at ¶ 156.
Plaintiff alleges that on one day, Epley walked past Plaintiff’s office “at least
20 times while staring in at Plaintiff,” id. at ¶ 158, and that when Plaintiff
complained, she was told he was “only ‘conducting normal business activities
and utilizing the copier.’” Id. at ¶ 163.
On June 30, 2022, Plaintiff filed a charge of discrimination with the
EEOC (the “First Charge”). Id. at ¶ 334; Doc. 19-5 at 1.
On September 7, 2022, Plaintiff emailed an employee relations specialist
to discuss “ongoing concerns in her department,” but “there was no
investigation or effective response” and, on September 9, 2022, Plaintiff made
a complaint to “HR” “about a false allegation Largent made against Plaintiff
involving notes.” Id. at ¶¶ 171 – 174.
The issues regarding Largent continued, and on October 19, 2022,
Plaintiff emailed the assistant human resources manager and the employee
relations specialist to request another meeting. Id. at ¶ 178.
On October 28, 2022, Largent complained to the assistant human
resources manager and the employee relations specialist about Plaintiff,
specifically, that “Largent thought Plaintiff was going to try to terminate
Largent for poor work performance and insubordination.” Id. at ¶ 180.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 6 of 38

7
On December 16, 2022, Lowery falsely reported that Plaintiff had
exposed Plaintiff’s “breasts and hip area to Lowery in the workplace” and that
“Plaintiff had threatened to bring a gun to work and kill everyone.” Id. at ¶¶
182-83. That same day, Plaintiff was placed on investigative leave with pay.
Id. at ¶ 187. Plaintiff contends that Lowery made the false report to distract
from her own poor performance, to harass Plaintiff, and to try to get Plaintiff
fired. Id. at ¶ 184. Plaintiff further alleges, upon information and belief, that
“Epley and Largent were pressuring Lowery to attack Plaintiff.” Id. at ¶ 186.
On January 4, 2023, the investigation into Lowery’s December 16, 2022
report concluded and it was determined that there was insufficient evidence to
support Lowery’s allegations. Id. at ¶ 190.
Plaintiff was reinstated on January 14, 2023 and returned to work on
January 17, 2023. Id. at ¶ 191. However, Plaintiff was “stripped of supervisory
duties,” her responsibilities were reduced, and her job title was changed. Id. at
¶ 192.
Thereafter, Streater “moved Plaintiff’s department under” Guy, whose
“real task”, Plaintiff alleges upon information and belief, “was to appear to be
objective while contriving a reason to terminate Plaintiff….” Id. at ¶ 196, 205.
To that end, and despite knowing that Plaintiff’s TBI continued to affect
Plaintiff’s typing speed and word processing ability, Guy assigned Plaintiff
multiple lengthy writing assignments and then complained about how long it
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 7 of 38

8
took Plaintiff to complete them, and publicly criticized Plaintiff’s writing in a
meeting. Id. at ¶¶ 211-13. Guy also made intimidating and threatening
comments to Plaintiff during meetings, such as that he would “bring troubles
down upon [employees’ heads] until they quit,” and that Plaintiff did not “want
to know the depths of me. I am a monster. But, I keep it in the cage.” Id. at ¶¶
207, 220.
Guy, however, “was unsuccessful in finding a legitimate reason to
terminate Plaintiff or [make] Plaintiff resign,” so he falsely reported to Streater
that Plaintiff had stated “…if you betray me, I’ll cut you like I cut myself.” Id.
at ¶ 227.
On April 18, 2023, Plaintiff met with the assistant human resources
manager and the employee relations specialist to discuss Guy’s false
allegations. Id. at ¶ 233. The same day, Guy met with Streater, Epley, the
assistant human resources manager, and the employee relations specialist, id.
at ¶ 257, and stated that Plaintiff was “erratic, unstable, and potentially
dangerous.” Id. at ¶ 258. Based on Guy’s statements, Plaintiff was required to
undergo a fitness for duty (“FFD”) evaluation. Id. at ¶ 260.
On April 21, 2023, Plaintiff filed her second charge of discrimination with
the EEOC (the “Second Charge”). Doc. 19-5 at 10.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 8 of 38

9
On April 26, 2023, Plaintiff was placed on investigative leave with pay
pending the outcome of the FFD evaluation, which was to be conducted by
CPE. Doc. 18 at ¶¶ 262 – 263.
On May 15, 2023, CPE issued a report of the FFD evaluation. Id. at ¶
264. It was signed by “Dr. Warren,” even though he did not participate in
Plaintiff’s evaluation2 and was “closely connected with Broughton leadership,”
including Streater, Guy, and Epley, such that there was a conflict of interest.
Id. at ¶¶ 263-69. Plaintiff further contends that CPE improperly issued two
versions of the FFD report, and that DHHS intentionally withheld from
Plaintiff one version that was provided to DHHS. Id. at ¶¶ 272-73. Plaintiff
alleges that she was “accidentally made privy to the hospital’s copy of the CPE
report, which contained additional medical history of Plaintiff, other
information about Plaintiff, and recommendations that Plaintiff was not
supposed to see.” Id. at ¶ 274.
Effective May 26, 2023, DHHS changed Plaintiff’s employment status to
“Extended Illness Leave” and offered Plaintiff the option of taking FMLA leave.
Plaintiff refused though, believing that doing so would be used against her
later. Id. at ¶¶ 280 – 282.
2 The report was also signed by Christopher Baker, Psy.D., who did conduct the FFD
evaluation. Id. at ¶¶ 263, 265.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 9 of 38

10
On June 1, 2023, Plaintiff’s “long-time specialist, Amy Boison, PMHNP-
BC” (“Boison”), performed an independent FFD review. Boison found that
CPE’s evaluation “was in stark contrast to Boison’s experience with Plaintiff,”
and that it was “nonsensical” that Plaintiff’s mild PTSD and mild ADHD
symptoms “would lead to an ‘unfit for duty’ determination.” Id. at ¶¶ 284, 286,
291. Plaintiff contends, upon information and belief, that once Plaintiff and
Boison criticized the CPE evaluation, CPE “issued a revised report with new
findings that better supported Defendants’ goal of terminating Plaintiff.” Id. at
¶ 293.
On June 7, 2023, Boison recommended that DHHS provide Plaintiff
“with reasonable accommodations.” Id. at ¶ 297.3 DHHS, however, disregarded
the information provided by Plaintiff and Boison and moved to separate
Plaintiff from her employment based on CPE’s report. Id. at ¶ 299.
On June 9, 2023, Plaintiff attended a “separation conference” with Guy,
the assistant human resources manager, and the employee relations specialist.
During that conference, Plaintiff was not allowed to review the hospital’s FFD
report, present witnesses, or bring an attorney. Id. at ¶¶ 300 – 301.
3 Plaintiff does not allege what specific accommodations were requested.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 10 of 38

11
Thereafter, Plaintiff received a letter from Guy dated June 27, 2023
stating that she was separated from employment at DHHS. Id. at ¶ 302.
Largent was given Plaintiff’s previous position. Id. at ¶ 306.
On August 16, 2023, Plaintiff received a Right to Sue Letter from the
EEOC regarding the First Charge. Id. at ¶ 334; Doc. 19-5 at 7.
On February 28, 2024, Plaintiff received a Right to Sue Letter from the
EEOC regarding the Second Charge. Doc. 19-5 at 13.
“In late February 2024,” Plaintiff received a letter from an investigator
with DHHS informing Plaintiff that an allegation that Plaintiff had
misappropriated patient funds on December 21, 2022 had been posted on the
Health Care Personnel Registry (“HCPR”).4 Doc. 18 at ¶ 312. Plaintiff asserts
that the allegation was “undisputedly false” because she was on leave between
December 16, 2022 through January 14, 2023. Id. at ¶ 313. The allegation was
later rescinded, but Plaintiff learned that it had been made anonymously by
an employee of a separate entity located on Broughton Hospital’s campus. Id.
at ¶ 316. Plaintiff alleges that a “trustworthy witness” informed her that
“Epley was having a sexual relationship with a female employee” of that entity
and that upon information and belief Epley “directed his paramour to make
the false complaint against Plaintiff….” Id. at ¶¶ 318-19.
4 Plaintiff does not describe this registry in further detail in her pleading.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 11 of 38

12
On April 1, 2024, Plaintiff was suspended from her “new job” pending
the outcome of the “DHHS investigation” (presumably, the investigation into
the HCPR complaint). Id. at ¶ 321.
On September 27, 2024, Plaintiff filed her third charge of discrimination
with the EEOC (the “Third Charge”). Id. at ¶ 335; Doc. 19-5 at 18.5
On October 8, 2024, Plaintiff received a Right to Sue Letter from the
EEOC regarding the Third Charge. Doc. 18 at ¶ 335; Doc. 18-1 at 1; Doc. 19-5
at 21.
On December 18, 2024, Plaintiff filed her fourth charge of discrimination
with the EEOC (the “Fourth Charge”). Doc. 18 at ¶ 336; Doc. 19-5 at 26.
On December 20, 2024, Plaintiff received a Right to Sue Letter from the
EEOC regarding the Fourth Charge. Doc. 18 at ¶ 336; Doc. 18-1 at 2; Doc. 19-
5 at 29.
5 Plaintiff refers to this charge as her “second charge” and states that the date she
submitted this charge was August 5, 2024. However, the documentation submitted
by Defendants indicates that this charge was signed by Plaintiff on September 27,
2024, and followed two previous charges signed by Plaintiff on June 30, 2022 (the
First Charge) and on April 21, 2023 (the Second Charge).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 12 of 38

13
Plaintiff asserts the following claims:
Claim DHHS Epley Guy
Count I: Title VII: Sexual Harassment X
Count II: Title VII: Disparate Treatment
Race/Color X
Count III: Title VII: Retaliation X
Count IV: ADA: Failure to Engage in
Interactive Process and Failure to
Accommodate X
Count V: 14th Amendment United States
Constitution X
Count VI: Wrongful Discharge in Violation of
Public Policy X X X
Count VII: Blacklisting X X
Count VIII: Breach of Contract X
Count IX: Civil Conspiracy X X X
Count X: Violation of the N.C. Constitution X
Count XI: 42 U.S.C. § 1983 X X
Count XII: Punitive Damages X X
III. Legal Standards
A. Rule 12(b)(1)
A motion to dismiss made pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure addresses whether the court has subject-matter jurisdiction.
See Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction is a threshold question
that relates to the power of the court to hear a case and must be resolved before
a court addresses the merits of a case.” Cap. Associated Indus., Inc. v. Cooper,
129 F. Supp.3d 281, 299 (M.D.N.C. 2015) (citing Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005)).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 13 of 38

14
An assertion of Eleventh Amendment or sovereign immunity may be
considered in the context of a motion made pursuant to Rule 12(b)(1). See e.g.,
MciLwain v. Hensley, No. 1:23-CV-295-MOC, 2024 WL 3708871, at *1
(W.D.N.C. Aug. 7, 2024) (collecting cases) (“Where a defendant raises either
Eleventh Amendment or sovereign immunity in seeking dismissal of a claim,
that motion is properly considered pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure, as the defendant is contending that the court lacks
subject matter jurisdiction over the plaintiff's claim.”).
B. Rule 12(b)(6)
When considering a motion made pursuant to Rule 12(b)(6), the court
accepts the allegations in the complaint as true and construes them in the light
most favorable to the claimant. See Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
The court, however, is not required to accept “legal conclusions, elements
of a cause of action, and bare assertions devoid of further factual
enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d
at 192. That is, while “detailed factual allegations” are not required, the
complaint (or counterclaim) must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007); see Consumeraffairs.com, 591 F.3d at 255. “A claim has facial
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 14 of 38

15
plausibility” when the claimant “pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord
Consumeraffairs.com, 591 F.3d at 255. In short, the well-pled factual
allegations must move a claim from conceivable to plausible. Twombly, 550
U.S. at 570; Consumeraffairs.com, 591 F.3d at 256.
IV. Discussion
The undersigned is likewise compelled to note that the parties' briefing
with regard to the Motion to Dismiss is not particularly helpful. Plaintiff has
asserted a variety of claims under federal and state law and Defendants have
raised multiple challenges to those claims, including arguing that they are
barred by numerous immunity doctrines, but the parties' briefing conflates
those various doctrines and how they apply specifically to each defendant and
each claim.
A. The Federal Claims
1. Against DHHS
Defendants contend that Plaintiff’s Title VII and ADA claims are time
barred and that there is no direct cause of action against DHHS for violation
of the Fourteenth Amendment.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 15 of 38

16
a. Title VII and ADA Claims6
i. Timeliness of the Charges
Both Title VII and the ADA require that a charge be filed with the EEOC
within 180 days after the alleged unlawful employment practice occurred. Fort
Bend Cnty. v. Davis, 587 U.S. 541, 544 (2019) (citing 42 U.S.C. § 2000e–5(b),
(e)(1)); Johnson v. Novant Health Brunswick Med. Ctr., No. 7:19-CV-155-BO,
2021 WL 3686239, at *2 (E.D.N.C. Aug. 19, 2021) (stating that the 180-day
period imposes a “mandatory deadline” that “bars any claim not filed within
the time limit, even if it is only one day late”) (collecting cases); Lunn v. Clerk
of Circuit Court for Baltimore City, No. CV CCB-19-729, 2020 WL 1034070, at
*4 (D. Md. Mar. 3, 2020) (noting that while the Supreme Court has held that
Title VII's charge filing requirement was “not of a jurisdictional cast, ... the
charge filing rule is mandatory, and a plaintiff's failure to exhaust
administrative remedies thus justifies a claim's dismissal”) (citing Fort Bend
Cnty.); Meadows v. Blue Ridge Cmty. Coll., No. 1:19 CV 251, 2020 WL 2761037,
at *4 (W.D.N.C. May 5, 2020), report and recommendation adopted, No. 1:19-
CV-00251-MR-WCM, 2020 WL 2748305 (W.D.N.C. May 27, 2020) (“The ADA
6 Title VII “abrogates [Eleventh Amendment immunity] for suits against a state in
its capacity ‘as employer.’” Savage v. Maryland, 896 F.3d 260, 275 (4th Cir. 2018)
(citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976)); see also Russell v. Univ. of N.
Carolina at Charlotte, No. 3:20-CV-00172-FDW-DSC, 2020 WL 6216827, at *3
(W.D.N.C. Oct. 22, 2020) (“Congress abrogated state sovereign immunity when it
enacted Title VII pursuant to its powers under Section 5 of the 14th Amendment.”).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 16 of 38

17
requires a plaintiff to file a charge of discrimination with the EEOC within 180
days of the alleged adverse employment action.”) (quoting Sexton v. Skyline
Membership Corp., No. 5:16-CV-00044-RLV-DSC, 2017 WL 1386019, at *2
(W.D.N.C. Apr. 12, 2017) (citing 42 U.S.C. § 12117(a) and 42 U.S.C. § 2000e-
5(e)(1))).
However, if “the person aggrieved has initially instituted proceedings
with a State or local agency with authority to grant or seek relief” from the
unlawful employment practice, the person’s “charge shall be filed . . . within
three hundred days after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1).
In this case, the parties agree that the 300-day period applies. See Doc.
19-1 at 20; Doc. 20 at 18.
Plaintiff filed the First Charge on June 30, 2022 alleging discrimination
that occurred, at the earliest, on May 24, 2021 and, at the latest, on June 14,
2022. Doc. 19-5 at 1.
Plaintiff filed the Second Charge on April 21, 2023 alleging
discrimination that occurred, at the earliest, on October 23, 2022 and, at the
latest, on April 21, 2023. Doc. 19-5 at 10.
Plaintiff filed the Third Charge on September 27, 2024 alleging
discrimination that occurred, at the earliest, on February 26, 2024 and, at the
latest, on March 31, 2024. Doc. 19-5 at 18-19.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 17 of 38

18
Plaintiff filed the Fourth Charge on December 18, 2024 alleging
discrimination that occurred on June 27, 2023. Doc. 19-5 at 26-27.
Accordingly, the First, Second, and Third Charges were filed within 300
days of the allegedly discriminatory conduct and were therefore timely, but
Plaintiff’s Fourth Charge was not.
ii. Timeliness of the Complaint
Title VII and the ADA also require a plaintiff to file suit within 90 days
after the receipt of a right to sue letter. See Quinn v. Copart of Connecticut,
Inc., 791 F. App'x 393, 395 (4th Cir. 2019) (“The 90-day requirement is in the
nature of a statute-of-limitations defense.”); Angles v. Dollar Tree Stores, Inc.,
494 F. App'x 326, 328 (4th Cir. 2012) (“Title VII requires that aggrieved
persons file a civil action within 90 days of receiving a right-to-sue letter.”);
Abria v. Owens-Illinois, No. 1:02-CV-00111, 2003 WL 21297330, at *3
(M.D.N.C. June 4, 2003) (“For a claimant to be entitled to relief under both
Title VII and the ADA, she must file a civil action within 90 days of receipt of
the EEOC's right-to-sue letter . . . Otherwise, a claimant's failure to bring suit
within 90 days generally forfeits her right to pursue the claim.”).
Here, as to the Charges that were filed timely, Plaintiff received Right
to Sue Letters on August 16, 2023 (for the First Charge), February 28, 2024
(for the Second Charge), and October 8, 2024 (for the Third Charge). Doc. 19-5
at 7, 13, and 21.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 18 of 38

19
Because she filed her original Complaint on January 6, 2025, Doc. 1-1,
only Plaintiff’s Third Charge was filed within the 90-day period.7
iii. Equitable Tolling
The doctrine of equitable tolling applies only in limited situations;
specifically, where there are “(1) extraordinary circumstances, (2) beyond [a
plaintiff’s] control or external to his own conduct, (3) that prevented him from
filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003); see also Chao
v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (“Any invocation of
equity to relieve the strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individual hardship supplant
the rules of clearly drafted statutes.”) (citing Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000)).
7 Plaintiff argues that Third Charge should be considered to be an amendment to the
First and Second Charges (such that the First and Second Charges were also timely).
However, the Right to Sue Letters relative to the First and Second Charges were
issued before Plaintiff filed the Third Charge. Since those earlier charges were no
longer pending, they could not be amended. See Balazs v. Liebenthal, 32 F.3d 151,
157 (4th Cir. 1994) (“Thus we conclude that a reasonable construction of the EEOC's
regulation would simply allow charges to be verified and to relate back only so long
as the charge is a viable one in the EEOC's files, but that where, as here, a right to
sue letter has issued . . . there is no longer a charge pending before the EEOC which
is capable of being amended.”); Merchant v. Prince George’s Cnty., Md., 948 F.
Supp.2d 515, 523 (D. Md. 2013) (“the issuance of a right-to-sue letter by the EEOC
functions as a cut-off date for amendments because, at that point, there is no longer
a charge pending before the EEOC which is capable of being amended”) (citation and
quotation marks omitted).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 19 of 38

20
“The party seeking the ‘extraordinary remedy’ of equitable tolling bears
‘a considerable burden to demonstrate that it applies.’” Caudill v. N. Carolina
Symphony Soc'y, Inc., 750 F. Supp.3d 531, 556 (E.D.N.C. 2024) (quoting CVLR
Performance Horses, Inc. v. Wynne, 792 F.3d 469, 476 (4th Cir. 2015)).
Here, Plaintiff argues that equitable tolling should apply to her Title VII
and ADA claims because she was misled by EEOC personnel, did not
understand the regulatory framework, and was taking care of her terminally
ill husband during the pertinent timeframe.
Neither Plaintiff’s previous
pro se status nor her lack of understanding
of the regulatory process, standing alone, provide a basis for the application of
equitable tolling. See Robinson v. Driven Brands Shared Servs., No. 3:19-cv-
375-MOC-DCK, 2020 WL 506754, at *2 (W.D.N.C. Jan. 30, 2020) (“A plaintiff’s
pro se status provides no independent basis for an equitable tolling of the Title
VII filing period.”) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,
150-52 (1984)); McCaskill v. Dep’t of Army, No. 1:05-cv-536, 2006 WL 314555,
at *8 (M.D.N.C. Feb. 8, 2006) (“[The plaintiff’s] lack of understanding about
how the relevant time limitation operates is not a basis for equitable tolling.”)
(citing United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)).
Further, although Plaintiff contends that she was misled by EEOC
personnel, Plaintiff alleges only that
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 20 of 38

21
The EEOC and OAH both provided Plaintiff with a lot
of incorrect information, which resulted in certain
claims (like ongoing harassment) not being included
when Plaintiff was told she was amending a charge.
The EEOC investigator also did not tell Plaintiff until
after the EEOC and OAH determinations that she
could not hear Plaintiff’s audio recordings, which were
very important to the case. Had Plaintiff known,
Plaintiff could have produced better copies.
Doc. 18 at ¶ 345.
The undersigned finds this allegation too vague to support application of
equitable tolling. See McCaskill, 2006 WL 314555, at *5 (explaining that
equitable tolling is rarely available and is limited to those situations where a
plaintiff filed a defective pleading during the statutory period or where a
plaintiff was “induced or tricked by [her] adversary’s misconduct into allowing
the filing deadline to pass.”) (quoting Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990)); Zow v. Bd. of Governors of Univ. of N.C., No. 5:23-cv-290-
M-RJ, 2024 WL 1285532, at *5 (E.D.N.C. Mar. 26, 2024) (declining to apply
equitable tolling where an EEOC employee gave “an accurate, but incomplete,
oral statement”) (citing Conaway v. Control Data Corp., 955 F.3d 358, 363 (5th
Cir. 1992)); Donald v. Novant Health, Inc., 689 F. Supp.3d 170, 178-79
(E.D.N.C. 2023) (declining to apply equitable tolling where the plaintiff alleged
that an EEOC employee told her she could not file an EEOC charge with direct
evidence of discrimination).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 21 of 38

22
Finally, Plaintiff alleges that “[a]t various times during the filing of
claims with the EEOC and those claims being investigated, Plaintiff was
caring for her husband (now deceased), who had been battling aggressive
cancer.” Doc. 18 at ¶ 347. The undersigned acknowledges the difficulty of
Plaintiff’s circumstances but Plaintiff has not alleged facts sufficient to
establish that she was precluded from timely filing suit based on the First or
Second Charges or from submitting the Fourth Charge in a timely manner.
iv. Post-Employment Conduct Related to the
Third Charge
Reading Plaintiff’s Second Amended Complaint in the light most
favorable to her, it appears that Count III encompasses the alleged retaliation
referenced in Plaintiff’s Third Charge.
Defendants point out that Plaintiff was not an employee of DHHS
between February 26, 2024 and March 31, 2024 (the dates of the alleged
retaliation in the Third Charge) and argue that Plaintiff is not entitled to the
protection of Title VII for conduct that occurred after her termination.8
8 Defendants also appear to argue that Plaintiff cannot state a claim based on “being
subjected to a complaint filed with the HCPR” because there was “a difference of eight
months between Plaintiff’s separation and when the notice of allegation was
received….” Doc. 19-1 at 23. The Second Amended Complaint alleges that Plaintiff
was terminated in June of 2023 and that she received a letter regarding the HCPR
report in February of 2024. Doc. 18 at ¶¶ 302, 312. However, the record is not clear
as to when the allegation that Plaintiff had misappropriated patient funds was posted
on the HCPR. See Doc. 18 at ¶ 322 (“While Plaintiff received the notice letter in late
February 2024, the complaint could have been made several months earlier.”)
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 22 of 38

23
However, a former employee may bring a retaliation claim under Title
VII for post-employment conduct. See Ream v. Pennsylvania Dep't of Human
Servs./Polk Ctr., No. 1:16-CV-173 (BJR), 2017 WL 5626197, at *3 (W.D. Pa.
Nov. 22, 2017), aff'd sub nom, Ream v. Pennsylvania Dep't of Human Servs.,
Polk Ctr., 738 F. App'x 83 (3d Cir. 2018) (“The anti-retaliation provisions of
Title VII provide former employees with a legal recourse against post-
employment retaliation.”) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346
(1997)).
b. Direct Fourteenth Amendment Claim
Plaintiff contends that she may assert a direct cause of action against
DHHS for an alleged violation of the Fourteenth Amendment, but she has
provided no persuasive authority to support that position. See e.g., Hearth, Inc.
v. Dep't of Pub. Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980) (stating that “the
federal courts…have been hesitant to find causes of action arising directly from
the Constitution” and that 42 U.S.C. § 1983 provides the means for seeking
relief against a state actor who violates the Constitution); Arpin v. Santa Clara
Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“[A] litigant
complaining of a violation of a constitutional right does not have a direct cause
of action under the United States Constitution but must utilize 42 U.S.C. §
1983.”); Wax 'n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000)
(holding that a “claim may not be brought directly under the [F]ourteenth
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 23 of 38

24
[A]mendment”); Housecalls Home Health Care, Inc. v. U.S. Dep't of Health &
Hum. Servs., 515 F. Supp.2d 616, 628 (M.D.N.C. 2007) (“The claims raised
against the NCDHHS Defendants under the United States Constitution fare
no better. They cannot stand, or at least cannot stand as independent claims.
This is because direct causes of action do not ordinarily exist under the United
States Constitution.”).
2. Against Epley and Guy
As a threshold matter, Defendants argue that Plaintiff’s claims against
Epley and Guy are asserted against them in their official capacities. However,
in her response to the Motion to Dismiss, Plaintiff states that Epley and Guy
are sued in their individual capacities only. Doc. 20 at 9. Considering this
statement, as well as the allegations in Plaintiff’s Second Amended Complaint
as a whole, the undersigned has analyzed Plaintiff’s claims against Epley and
Guy as individual capacity claims. See e.g., York v. Lutz, No. 2:22-CV-38-BO,
2023 WL 2979536, at *4 (E.D.N.C. Apr. 17, 2023) (analyzing state law claims
against individual defendant as individual capacity claims where the plaintiff
“clarified in her response that the state law claims are alleged against Lutz in
his individual, not official capacity”); Biggs v. Meadows, 66 F.3d 56, 61 (4th
Cir. 1995) (“Another indication that suit has been brought against a state actor
personally may be a plaintiff's request for compensatory or punitive damages,
since such relief is unavailable in official capacity suits.”).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 24 of 38

25
Additionally, the undersigned notes that although Defendants seem to
indicate that they believe Epley and Guy are entitled to qualified immunity
with respect to Plaintiff’s Section 1983 claim, they do not develop that
argument in their briefing.
Rather, Defendants argue that Plaintiff has failed to state a claim
against either Epley or Guy pursuant to 42 U.S.C. § 1983.
The Federal Civil Rights Act, 42 U.S.C. § 1983, imposes civil liability
upon a person who, under color of law, deprives another of rights secured by
the Constitution or laws of the United States. To prevail on a Section 1983
claim, the plaintiff has the burden of establishing 1) the deprivation of a right
secured by the Constitution or laws of the United States, and 2) that the
alleged deprivation was committed under color of state law. Austin v.
Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999) (citing American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)).
Defendants argue that “Plaintiff is attempting to sue [Epley and Guy]
under § 1983 but cites no color of state law or constitutional violation brought
against either employee.” Doc. 19-1 at 22.
In response, Plaintiff contends that Epley and Guy discriminated against
her “for exercising her right to protected speech (specifically, her making
complaints of unlawful discrimination, harassment, and retaliation),” “based
on race through less-preferential treatment than a black employee in the
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 25 of 38

26
complaint – and disciplinary-processes,” and by “trying to terminate Plaintiff’s
employment (i.e., constitutionally-protected property right) based on race and
other unlawful reasons, and in fact, doing so” and by “making a false complaint
about her misappropriating patient funds.” Doc. 20 at 22.
Reading Plaintiff’s Second Amended Complaint generously and in the
light most favorable to her, it is arguable that Plaintiff seeks to hold Epley and
Guy liable for retaliating against Plaintiff in response to complaints she made
to DHHS (and, perhaps, later to the EEOC). See Blakenship v. Manchin, 471
F.3d 523, 528 (4th Cir. 2006) (discussing the three-part standard for pleading
a First Amendment Section 1983 retaliation claim). The Fourth Circuit has
explained, though, that
“[i]n the absence of unusual circumstances, a public
employee's speech ‘upon matters only of personal
interest’ is not afforded constitutional protection.”
Seemuller v. Fairfax Cty. Sch. Bd., 878 F.2d 1578,
1581 (4th Cir. 1989) (quoting [Connick v. Myers, 461
U.S. 138, 147 (1983)]); see also Jurgensen v. Fairfax
County, 745 F.2d 868, 879 (4th Cir. 1984) (“If the
speech relates primarily to a matter of ‘limited public
interest’ and ... center[s] instead on matters primarily,
if not exclusively ‘of personal interest’ to the employee
... that fact must be weighed in determining whether
a matter of true public concern is involved....”). To that
end, “[t]he Supreme Court has warned us to guard
against ‘attempt[s] to constitutionalize the employee
grievance.’” Brooks v. Arthur, 685 F.3d 367, 373 (4th
Cir. 2012) (second alteration in original) (quoting
Connick, 461 U.S. at 154, 103 S.Ct. 1684). Accordingly,
“[p]ersonal grievances [and] complaints about
conditions of employment ... do not constitute speech
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 26 of 38

27
about matters of public concern.” Campbell v.
Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (internal
quotation marks omitted) (quoting Stroman v.
Colleton Cty. Sch. Dist., 981 F.2d 152, 156 (4th Cir.
1992)).
Grutzmacher v. Howard Cnty., 851 F.3d 332, 343 (4th
Cir. 2017).
Further, while Plaintiff argues that she was discriminated against based
on her race, there are no factual allegations in the Second Amended Complaint
to support that position.
In sum, the Second Amended Complaint fails to identify sufficiently a
federal constitutional or statutory right Epley or Guy allegedly violated that
could support a Section 1983 claim.
B. The State Law Claims
1. Against DHHS
a. Immunity Principles
The Eleventh Amendment states that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State.”
U.S. Const. amend. XI. The Supreme Court “has drawn on principles of
sovereign immunity to construe the Amendment to establish that an
unconsenting State is immune from suits brought in federal courts by her own
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 27 of 38

28
citizens as well as by citizens of another State.” Port Auth. Trans–Hudson
Corp. v. Feeney, 495 U.S. 299, 304 (1990) (internal quotation marks omitted).
A State’s immunity extends to “state agents and state
instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
(1997). DHHS is an agency of the State of North Carolina and, therefore, is
entitled to Eleventh Amendment immunity. See Stewart v. N. Carolina Dep't
of Health & Hum. Servs., No. 5:06-CV-29-BO(2), 2006 WL 8438814, at *5
(E.D.N.C. July 14, 2006) (“Defendants DHHS, and Dorothea Dix Hospital, a
state hospital operated by DHHS, are state agencies entitled to Eleventh
Amendment immunity”); N. Carolina Supported Emp. v. N. Carolina Dep't of
Health & Hum. Servs., No. 5:10-CV-135-FL, 2010 WL 4696556, at *3 (E.D.N.C.
Nov. 12, 2010) (The Eleventh Amendment “applies equally to state agencies
such as DHHS….”) (internal citations omitted).
A State, though, “remains free to waive its Eleventh Amendment
immunity from suit in a federal court.” Lapides v. Bd. of Regents of Univ. Sys.
of Ga., 535 U.S. 613, 618 (2002); see also Walton v. N.C. Dep't of Commerce,
No. 1:17-CV-00054-MR-DLH, 2018 WL 1368364, at *4 (W.D.N.C. Mar. 16,
2018), aff'd sub nom. Walton v. N. Carolina Dep't of Commerce, 732 F. App'x
239 (4th Cir. 2018) (“A state may waive the protection of the Eleventh
Amendment by state statute or state constitutional provision.”) (citing
Edelman v. Jordan, 415 U.S. 651, 673-74 (1974)).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 28 of 38

29
But a waiver of a State’s sovereign immunity is distinct from a waiver of
a State’s Eleventh Amendment immunity; “a State does not waive Eleventh
Amendment immunity in federal courts merely by waiving sovereign
immunity in its own courts.” Welch v. Texas Dep't of Highways & Pub. Transp.,
483 U.S. 468, 473-74 (1987) (citations omitted); see also Walton v. N.C. Dep't
of Commerce, No. 1:17-CV-00054-MR-DLH, 2018 WL 1368364, at *5 (W.D.N.C.
Mar. 16, 2018) (the “fact that North Carolina has waived its sovereign
immunity against breach of contract claims brought in its own state courts…
does not constitute a waiver of Eleventh Amendment immunity”), aff'd sub
nom. Walton v. N. Carolina Dep't of Commerce, 732 F. App'x 239 (4th Cir.
2018).
However, where a State has explicitly waived its immunity from being
sued in state court, its removal of a case to federal court will also constitute a
waiver of its Eleventh Amendment immunity. Lapides v. Board of Regents of
the Univ. Sys. of Georgia
, 535 U.S. 613 (2002); Guseh v. N. Carolina Cent.
Univ., 423 F. Supp. 2d 550, 562 (M.D.N.C. 2005) (“Lapides would operate to
preclude Eleventh Amendment immunity in this case if North Carolina had
waived immunity from Plaintiff's state law claims in its own courts.”), report
and recommendation adopted, No. 1:04-CV-00042, 2006 WL 694621 (M.D.N.C.
Mar. 13, 2006), aff'd sub nom. Guseh v. N. Carolina Cent. Univ. ex rel. Bd. of
Governors of Univ. of N. Carolina, 206 F. App'x 255 (4th Cir. 2006).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 29 of 38

30
On the other hand, “where a state retains its sovereign immunity from
suit in state court, it does not lose that immunity by removing the case to
federal court.” Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019) (citing
Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005)); Stewart v. North
Carolina, 393 F.3d 484, 488 (4th Cir. 2005) (explaining that “Lapides addresses
whether a state that removes an action to federal court having already
consented to suit in its own courts can invoke Eleventh Amendment immunity;
it does not resolve whether a state that has not consented to suit in its own
courts maintains either the broader concept of sovereign immunity or Eleventh
Amendment immunity upon voluntarily removing a case to federal court” and
holding that “North Carolina, having not already consented to suit in its own
courts, did not waive sovereign immunity by voluntarily removing the action
to federal court for resolution of the immunity question”); Alston v. N. Carolina
A & T State Univ., 304 F. Supp. 2d 774, 783 (M.D.N.C. 2004) (“because North
Carolina has not expressly waived its sovereign immunity in state court
against Alston's claims, the Lapides decision does not compel a finding that
NC A & T has waived its immunity through removal to federal court”).
Since the instant matter originated in state court, the question is
whether—with respect to each claim—DHHS waived its state sovereign
immunity prior to removal.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 30 of 38

31
b. Tort Claims
With respect to her claims of wrongful discharge, blacklisting, and civil
conspiracy, Plaintiff argues that DHHS’ sovereign immunity has been waived
by the purchase of insurance.
North Carolina law, though, does not support this position; N.C. Gen.
Stat. § 58-32-15(c) states that the “purchase, by any State department…of
professional liability insurance covering the…employees of such
department…shall not be construed as a waiver of any defense of sovereign
immunity by such department….” See also Walton v. North Carolina Dept. of
Agriculture, No. 5:09-CV-302-FL, 2010 WL 11482933, at *3 (E.D.N.C. Feb. 17,
2010) (“[w]hile a state agency may purchase liability insurance, pursuant to
N.C. Gen. Stat. § 58-32-15(c), this statute specifically provides that purchase
of this insurance does not amount to a waiver of the defense of sovereign
immunity”) (citing Wood v. N.C. State Univ., 147 N.C. App. 336, 343 (2001)).
Therefore, Plaintiff’s claims for wrongful discharge, blacklisting, and
civil conspiracy against DHHS should be dismissed. See e.g., Miller v. N.C.
State Univ., No. 5;18-CV-523-FL, 2019 WL 3686592, at *2-3 (E.D.N.C. Aug. 6,
2019) (dismissing a blacklisting claim against a state agency on sovereign
immunity grounds).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 31 of 38

32
c. Contract Claim
Whether DHHS has waived its state sovereign immunity by entering
into a contract with Plaintiff is less clear.
As a general matter, when the “State of North Carolina, through its
authorized officers and agencies, enters into a valid contract, the State
implicitly consents to be sued for damages on the contract in the event it
breaches the contract.” Can Am South, LLC v. State, 234 N.C. App. 119, 126
(2014) (quoting Smith v. State, 289 N.C. 303, 320 (1976)).
Here, Plaintiff has not submitted a copy of any such contract (assuming
it was in writing) and DHHS contends that her breach of contract claim “may
only be assumed at this time to exist as by virtue of her being a State
employee.” Doc. 19-1 at 12.9 Further, Plaintiff has not cited controlling
authorities to support the proposition that by entering a garden variety
employment relationship with an individual, DHHS should be deemed to have
waived its state sovereign immunity.
Nonetheless, given the general proposition that entering a contract
constitutes implicit consent by the State to be sued if that contract is breached,
and given Plaintiff’s (albeit general) representations about the existence of a
contract, the undersigned will recommend that Plaintiff’s breach of contract
9 The parties agree that Plaintiff was a “career state employee.” See Doc. 19-1 at 13;
Doc. 20 at 1.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 32 of 38

33
claim be allowed to proceed at this time, subject to further development of the
record and the attendant legal arguments.
d. North Carolina State Constitutional Claim10
Sovereign immunity does not bar a plaintiff from asserting a direct claim
in state court against the State under the North Carolina Constitution. Corum
v. Univ. of N.C., 330 N.C. 761 (1992).
And since Defendants removed this matter, the Eleventh Amendment
does not prohibit such a claim from proceeding in this Court. Lapides v. Board
of Regents of the Univ. Sys. of Georgia
, 535 U.S. 613 (2002).11
10 In their reply, Defendant raise a substantive challenge to this claim, contending
that it should be dismissed because Plaintiff otherwise has an adequate state remedy.
See Doc. 21 at 5. However, as this argument was raised for the first time in
Defendants’ reply, the undersigned has not addressed it. See Local Civil Rule 7.1(e)
(“A reply brief should be limited to a discussion of matters newly raised in the
response.”).
11 The undersigned does not find that Corum itself also constituted a waiver of the
State’s Eleventh Amendment immunity. See e.g., Jennette v. Beverly, No. 5:15-CT-
3019-D, 2015 WL 7176452, at *3 (E.D.N.C. Nov. 10, 2015) (“Simply put, the court
rejects Jennette's argument that the Supreme Court of North Carolina's
interpretation of the North Carolina Constitution in Corum informs how this court
should interpret the Eleventh Amendment.”).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 33 of 38

34
2. Against Epley and Guy12
a. Wrongful Discharge
A wrongful discharge claim is only available against a plaintiff’s
employer. Here, Plaintiff was employed by DHHS, not Epley or Guy, so this
claim cannot proceed against the individual defendants. See Sides v. Duke
University, 74 N.C. App. 331, 343 (1985) (“But this [wrongful discharge] claim
was properly dismissed as to Ms. Farmer and Dr. Harmel, since it is alleged
that her employment contract was with Duke University, rather than either of
them….”); Iglesias v. Wolford, 539 F. Supp.2d 831, 840 (E.D.N.C. 2008) (“Under
North Carolina law, the individual defendants cannot be liable for wrongfully
discharging [the plaintiff], because by [the plaintiff’s] own admission, the
individual defendants were not her employer.”).
12 Defendants argue that Plaintiff’s claims against Epley and Guy should be analyzed
as official capacity claims and that those claims are barred by DHHS’s immunity.
Yet, they also seem to reference the defense of public official immunity, which
pertains to individual capacity claims. R.A. v. Johnson, 36 F.4th 537, 542 (4th Cir.
2022) (Public official immunity “precludes suit against public officials in their
individual capacities….”). As described above, the undersigned has analyzed the
claims against Epley and Guy as individual capacity claims. Further, Defendants do
not develop an argument sufficient to support public official immunity. For example,
Defendants do not explain why Epley and Guy should be considered to be public
officials as opposed to public employees. See R.A. v. Johnson, 36 F.4th at 542 (“The
immunity applies only to public officials, not public employees—a distinction which
turns on whether the position is created by statute, exercises sovereign power, and
requires discretion.”).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 34 of 38

35
b. Blacklisting (Against Epley)
To state a claim for blacklisting under North Carolina law, “a plaintiff
must show that: (1) defendant had been the plaintiff’s employer and had
discharged the plaintiff from its service; and (2) without solicitation, the
defendant by oral or written communication prevented the plaintiff from
obtaining employment with another employer.” Edwards v. PCS Phosphate
Co., Inc., 812 F. Supp.2d 689, 696 (E.D.N.C. 2011) (citing Wright v. Fiber
Indus., Inc., 60 N.C. App. 486, 491-92 (1983)).
Again, Plaintiff has not alleged that Epley was her employer.
Further, Plaintiff has not alleged that Epley made any statement to any
new or potential employer. See Joiner v. Revco Discount Drug Centers, Inc.,
467 F. Supp.2d 508, 517-18 (W.D.N.C. 2006) (concluding that the plaintiff’s
complaint failed to state a claim for blacklisting against CVS for making a
report to a third-party consumer reporting agency about the nature of the
plaintiff’s termination because CVS never made a statement to the plaintiff’s
potential new employers).
c. Civil Conspiracy (Against Epley and Guy)
To state a claim for civil conspiracy, Plaintiff must allege facts showing
“(1) an agreement between two or more individuals; (2) to do any unlawful act
or to do a lawful act in an unlawful way; (3) resulting in injury inflicted by one
or more of the conspirators; and (4) pursuant to a common scheme.” Nexus
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 35 of 38

36
Techs., Inc. v. Unlimited Power Ltd., No. 1:19-CV-00009-MR, 2019 WL
4941178, at *7 (W.D.N.C. Oct. 7, 2019) (citing State ex. Rel. Cooper v.
Ridgeway Brands Mfg., LLC, 362 N.C. 431, 443 (2008)). Plaintiff's “recovery
must be on the basis of sufficiently alleged wrongful overt acts.” Dove v.
Harvey, 168 N.C. App. 687, 690 (2005) (quoting Fox v. Wilson, 85 N.C. App.
292, 301 (1987) (citation omitted)). “A civil conspiracy claim fails when the
underlying tort claims are dismissed.” Crossroads Trucking Corp. v. TruNorth
Warranty Plans of N. Am., LLC, No. 3:21-CV-00318-RJC-DSC, 2022 WL
3952221, at *8 (W.D.N.C. Aug. 31, 2022) (citing Williams v. United Cmty.
Bank, 218 N.C. App. 361, 371 (2012)).
Here, as the undersigned is persuaded that Plaintiff’s underlying tort
claims against the individual defendants are subject to dismissal, the
undersigned will also recommend that Plaintiff’s civil conspiracy claim be
dismissed.
C. Punitive Damages
Since Plaintiff’s claims against Epley and Guy (discussed above) are
subject to dismissal, her request for punitive damages likewise cannot proceed.
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 36 of 38

37
V. Recommendation
For the reasons set out herein, the undersigned RESPECTFULLY
RECOMMENDS that the Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint (Doc. 19) be GRANTED IN PART and DENIED IN PART
as follows:
(1) That the following claims be allowed to proceed:
a. the Title VII claim for retaliation against DHHS (Count III);
b. the claim for breach of contract against DHHS (Count VIII); and
c. the claim for violation of the North Carolina Constitution
against DHHS (Count X); and
(2) That all other claims be DISMISSED.
Signed: March 3, 2026
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 37 of 38

38
Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States
Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the presiding District Judge will preclude the parties
from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140
(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Case 1:25-cv-00068-MR-WCM Document 23 Filed 03/03/26 Page 38 of 38