ORDER
Plаintiff Della McDougal-Wilson (“Wilson”), an African-American woman, sued her former employer, defendant Goodyear Tire and Rubber Company (“Goodyear”), for alleged employment discrimination in violation of 42 U.S.C. § 1981, Title VII, and North Carolina state law. Essentially, Wilson alleges that Goodyear discriminated against her based on race, gender, and pregnancy with respect to wages, promotion, discipline, and termination. She further claims that Goodyear retaliated against her and created a hostile work environment. Wilson also asserts three state law claims: negligent infliction of emotional distress, negligent supervision, and wrongful discharge in violation of North Carolina public policy. Goodyear moved for summary judgment on all claims.
As explained below, the court grants in part and denies in part Goodyear’s motion for summary judgment. Specifically, the court rejects all of Wilson’s federal claims except her Title VII claim concerning a sexually hostile work environment. As to that claim, the court defers ruling until it holds an evidentiary hearing on Goodyear’s laches defense. As for the state law claims, the court rejects Wilson’s negligent infliction of emotional distress claim and her wrongful discharge claim. As for the negligent supervision claim, the court defers ruling on that claim until the court resolves Goodyear’s laches defense.
I.
Wilson worked continuously with Goodyear from 1984 until her termination on August 7, 2002. (PI. Resp. Ex. 244; PL Dep. 11.) In January 1992, Wilson became a sales associate with the Goodyear Auto Service Center at Crabtree Valley Mall in Raleigh, North Carolina. (Pl. Resp. Ex. 64 at 2; Pl. Dep. 19.) She ultimately held positions as retail sales manager, store sales manager, and service manager at the Crabtree Valley Mall store. (McElroy Decl. Ex. C at D005109-11; PL Dep. 19-20.) In April 1996, Wilson was promoted to store manager and transferred from the Crabtree Valley Mall store to the Jones Franklin Road store in Raleigh. (PL Resp. Ex. 64 at 2; Pl. Dep. 22; McElroy Decl. ¶ 5)
As store manager, Wilson reported to a district manager. 1 From April 1996 until October 2001, Dave Montgomery was Wilson’s district manager. (McElroy Decl. ¶ 6.) In October 2001, all Goodyear Auto Service Centers were converted to the Just Tires format, and Jeff Stewart became Wilson’s district manager. (Id.)
Goodyear periodically audits its retail stores. The Jones Franklin Road store was audited three times while Wilson was store manager: July 1997, February 2000, and June 2001. (Coale Aff. ¶ 3.) Wilson received a satisfactory scorе on each of the audits.
(Id.
¶¶ 4, 6, 7.) Nonetheless,
From February 2002 to July 9, 2002, Wilson worked reduced hours or was on a medical leave of absence due to complications from her pregnancy. (Pl.Dep.286-87, 345.) During Wilson’s absence, Stewart discovered that multiple invoices had not been paid (Stewart Dep. 224, 244) and that employees in the store were not coding services properly. (Stewart Deck ¶ 14.) Upon Wilson’s return to work on July 9, 2002, Stewart sent her home to write a letter of commitment regarding unpaid bills and improper coding of services. {Id. ¶ 15; PI. Resp. Ex. 9-10; Stewart Dep. 246 — 47.) Plaintiff called Goodyear human resources to complain about the timing of the request, was allowed to return to work, and was given two weeks to write the letter of commitment. (Stewart Dep. 247-48; Walker Dep. 151-54.)
On or about August 7, 2002, Stewart called the Jones Franklin Road store at 7:30 a.m., when the store was to be open for business, but no one answered. (Stewart Dep. 250, 255.) Stewart reached someone at the store at 7:40 a.m. and was told that the store had just opened. {Id. at 250; Stewart Deck ¶ 16.) Stewart reviewed security records for the store and discovered that the store had openеd late 14 times in the 22 days since Wilson’s return from maternity leave. (Stewart Deck ¶ 17.) Stewart sent Wilson home pending human resources approval of her termination, which he received on August 9, 2002. {Id. ¶ 18; PI. Resp. Ex. 48.)
On August 7, 2002, Wilson filed her EEOC charge. (PI. Resp. Ex. 15; PI. Dep. 288.) Wilson received her right to sue notice on May 23, 2003, and she filed suit in state court on August 21, 2003.
II.
Wilson offers no direct evidence of discrimination as to any of her disparate treatment claims. Instead, she proceeds under
McDonnell Douglas Corp. v. Green,
The elements required to establish a prima facie case of race discrimination are the same under Title VII and section 1981; therefore, the court considers these claims together.
See Bryant v. Bell Atlantic Md., Inc.,
III.
“[I]n order to establish a prima facie case of racial discrimination in compensation under either Title VII or section 1981, [plaintiff needs] to show: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action with respect to compensation; and (4) that similarly-situated employees outside the protected class received more favorable treatment.”
White v. BFI Waste Servs., LLC,
From 1999 until her termination in August 2002, Wilson’s store was never classified as greater than a $650,000—$899,999 volume store. (McElroy Decl. ¶ 11.) During the time pеriods when Wilson compares their salaries, Burks, Marion, Hudgins, and Maybee each managed $1.2 million volume stores. (PI. Resp. Ex. 245; Montgomery Decl. II ¶¶ 6-9; Stewart Decl. II ¶ 2; McElroy Decl. II ¶¶2-4.) Higher volume stores require “more paperwork, processes, budgeting skills, and overall responsibilities.” (Montgomery Decl. ¶ 7; Stewart Decl. ¶ 3.) Because Burks, Marion, Hudgins, and Maybee’s positions required more responsibilities, none are similarly situated to Wilson.
See Wheatley v. Wicomico County,
Alternatively, even if Wilson had established a prima facie case, Goodyear compensates store managers using tiered pay ranges based on store volume. (McElroy Decl. ¶ 12.) As such, the pay differences that Wilson attacks fаll within two defenses.
See
42 U.S.C. § 2000e-2(h); 29 U.S.C. § 206(d)(1). Specifically, Goodyear’s compensation system measures earnings based on quantity or quality of production or some “factor other than sex.”
See, e.g., Brinkley v. Harbour Rec. Club,
IV.
Wilson alleges that she was denied promotion to either a larger sales volume
To establish a prima facie case of failure to promote based on race or sex, the plaintiff must show (1) that she belongs to a protected class; (2) that she applied fоr the position in question; (3) that she was qualified for that job; and (4) that the defendant rejected her application under circumstances that give rise to an inference of unlawful discrimination.
See Diamond v. Colonial Life & Accident Ins. Co.,
A.
Initially, the court analyzes whether Wilson has established a prima facie case. As an African-American woman, Wilson belongs to a protected class. Goodyear does not post store manager positions, rather the district manager selects candidates. (Walker Dep. 235-36.) “[I]f the employer fails to make its employees aware of vacancies, the application requirement may be relaxed and the employee treated as if she had actually applied for a specific position.”
Williams,
Turning to the third requirement, the district managers who made the promotion decisions concerning the store manager vacancies from August 1999 to 2002 determined qualification for store manager positions based on prior performance. As District Manager Montgomery explained:
If a store manager was not a strong performer and did not demonstrate strong operational and managerial abilities, I would not consider the store manager for promotion to a higher volume store, which would require at a minimum, more paperwork, processes, budgeting skills, and overall responsibilities. Instead, I would prefer to promote a highly skilled lower level manager.
(Montgomery Decl. ¶ 7.) District Manager Stewart echoed this analysis:
I would look to service managers and sales managers with outstanding performance in their current position and who are interested in promotion. I also considered current store managers who are performing well. With both groups, I consider the candidate’s performance in his or her current position and demonstrated knowledge of the Goodyear business as a whole. If a store manager was not performing well in a low volume store, I would not move them to a higher volume store requiring more paperwork, processes and budgeting skills.
(Stewart Decl. ¶ 3.)
Goodyear audits its stores periodically. During Wilson’s employment with Good
Wilson asserts that she was well qualified for the promotions, based on her experience, sales success, and satisfactory audits. (Pl.Resp.25.) Plaintiffs perception of her own experience, performance, and skills is not relevant. It is the perception of the decisionmaker that counts.
See King,
Wilson’s supervisors (Montgomery and then Stewart) expressed significant concerns about her organizational and operational skills. (Stewart Decl. ¶ 5; Montgomery Decl. ¶ 6.) Each supervisor disciplined Wilson for these deficiencies. (PI. Resp. Ex. 5 (December 2000 letter to Montgomery committing to organize paperwork, control costs, control inventory, and timely clear weekly document registers); PI. Resp. Ex. 9-10 (July 2002 letter of commitment to Stewart regarding unpaid bills and improper coding of services).) Both Montgomery and Stewart believed that Wilson’s performance as a low-volume store manager was not good. Thus, they “did not consider her qualified for a promotion to a higher volume store.” (Stewart Decl. ¶ 6; Montgomery Decl. ¶ 6.)
As for Wilson’s alleged sales success during the relevant period, for the year 2000, Wilson’s store ranked 11 out of 12 for store sales and 9 out of 12 for store profit. Through October 2001, Wilson’s store ranked 10 out of 12 for store sales and 5 out of 12 for store profit. (Montgomery Decl. II ¶ 4, Ex. A; PI. Resp. Ex. 256.)
As for the fourth requirement of her prima facie case (i.e.,‘ whether Goodyear rejected Wilson under circumstances that give rise to an inference of unlawful discrimination), “[j]ob performance and relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision.”
Evans v. Tech. Apps. & Serv. Co.,
Although “the burden of establishing a prima facie case of disparate treatment is not onerous,”
Burdine,
Alternatively, even if Wilson did establish a prima facie case, Goodyear has produced a legitimate non-discriminatory reason for each failure to promote: Goodyear chose a more qualified candidate for each position. (Montgomery Decl. ¶¶ 8, 9, 11; Montgomery Decl. II ¶¶ 6-9; Stewart Decl. ¶ 4; Stewart Decl. II ¶ 2.) An employer’s good faith belief that another candidate is better qualified due to job performance and experience is a legitimate non-discriminatory reason for not promoting someone.
Evans,
B.
Wilson also argues that a lateral transfer to another $650,000—$899,999 volume store would have been a “promotion.” She then argues that Goodyear denied her such a “promotion” based on her sex and race.
In order for Wilson’s theory to be viable, she must establish that the failure to transfer her laterally was an adverse employment action. A merе refusal to grant a lateral transfer that an employee desires, however, does not qualify as an adverse employment action unless the decision “had some significant detrimental effect” on the employee.
Boone v. Goldin,
Wilson relies on
Jones v. City of Elizabeth City,
Wilson has not presented evidence that the working conditions at the Jones Franklin Road store were marginally different than at any other $650,000— $899,999 volume store, much less the material disparity in working conditions that existed in
Jones.
Similarly, Wilson has not presented evidence that transfer to a same-volume store would have affected her title, salary, or hours.
See Wagstaff,
There are no material facts in dispute regarding Wilson’s failure-to-promote claims. Accordingly, Goodyear is entitled to summary judgment on Wilson’s failure-to-promote claims.
V.
Wilson allеges that she was singled out for harsher discipline than similarly situated white males. (Compl. ¶¶ 41-44, 50-53, 57.) To establish a prima facie case of discrimination in the enforcement of employee disciplinary measures, the plaintiff must show: (1) that she is a member of a class protected by Title VII, (2) that the prohibited conduct in which she engaged was comparable in seriousness to misconduct of employees outside the protected class, and (3) that the disciplinary measures enforced against her were more severe than those enforced against those other employees.
See Cook v. CSX Transp. Corp.,
In evaluating the disciplinary measures, “employment discrimination laws require as an absolute precondition to suit that some adverse employment action have occurred.”
Bristow v. Daily Press, Inc.,
Wilson initially attacks the letter to Montgomery acknowledging her responsibilities as a manager, the verbal and written warnings for tardiness at staff meetings, and the letter of commitment for paying vendor bills late. These actions, however, did not adversely аffect the “terms, conditions, or benefits” of her em
Alternatively, even assuming the letters or the warnings were an adverse employment action, Wilson has not shown that any similarly situated manager outside the protected class was treated less harshly. Wilson disagrees and argues that Stewart had her write a letter of commitment for paying bills late, yet Burks, Blumenstein, Hobgood, Phillips, Young, VanAken, and Woodall also paid bills late and were not disciplined. All of these people were white males. (Pl.Resp.Ex. 83, 246.)
To be similarly situated the employees must have been disciplined by the same supervisor.
See Radue, v. Kimberly-Clark Corp.,
Next, Wilson contends that she was punished more severely than some white-male managers for being late to staff meetings. (Pl.Resp.11-12.) The record demonstrates, however, that some white-male managers were also punished for tardiness. (Stewart Deck ¶¶ 11, 20, Ex. C.)
A plaintiff cannot establish a prima facie case of disparate discipline through evidence that an employer treated one similarly situated white-male employee more favorably where the evidence also shows other similarly situated white-male employees received discipline similar to plaintiff.
See Cook,
Here, the discipline that Wilson received fell within the same range as white-male managers. Thus, Wilson has failed to establish a prima facie case of discriminatory discipline.
See id.; Moore,
For employees to be similarly situated, the supervisor must have been aware of the infraction.
See Brasic,
VI.
Wilson next attacks her discharge. To establish a prima facie case of race, sex, or pregnancy discrimination, Wilson must show that “(1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employer’s legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class.”
Hill,
Wilson has failed to demonstrate that she was performing her job duties at a level that met Goodyear’s legitimate job expectations at the time of her August 2002 termination. Wilson has merely stated her perception that her performance was satisfactory. Wilson’s testimony about her own performance, however, “cannot establish a genuine issue as to whether [Wilson] was meeting [Goodyear’s legitimate] expectations.”
See King,
VII.
Wilson alleges Goodyear retaliated against her for taking pregnancy leave and for complaining about sexual harassment. (Comply 58.) To establish a prima facie case of retaliation, a plaintiff must show that “(1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the pro
In her August 7, 2002 EEOC charge, Wilson alleges that she was retaliated against “because [she] reported sexual harassment and because [she] refused to engage in racially discriminatory conduct.” (PI. Resp. Ex 15.) The EEOC charge does not mention alleged retaliation due to her pregnancy (including taking pregnancy leave). (Id. at ¶¶ II, VII.)
“If the claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.”
Chacko v. Patuxent Inst.,
Wilson only reported sexual harassment in 1996. The lengthy delay between Wilson’s 1996 report and her 2002 termination dooms Wilson’s ability to prove a causal connection between the two events.
See, e.g., Causey v. Balog,
VIII.
A.
Wilson alleges that Goodyear subjected her to a hostile work environment. (Compl.lffl 20-33, 55.) To make out a hostile work environment claim, Wilson must prove that the offending conduct: (1) was unwelcome; (2) was based on a protected status; (3) was sufficiently severe or pervasive to alter her terms and conditions of employment and to create an abusive working environment; and (4) was imputable to hеr employer.
See Ocheltree v. Scollon Prods., Inc.,
In examining whether the alleged harassment was sufficiently severe or pervasive, the court must consider the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Harris v. Forklift Sys., Inc.,
Under Title VII, the “severe or pervasive” requirement has both an objective and subjective component.
Harris,
In Wilson’s EEOC complaint, Wilson identified Randy Prosser (another store manager) as “the person who had sexually harassed me:” (PI. Resp. Ex 15 at ¶XIL) Wilson testified that before she was promoted to store manager at the Jones Franklin Road store, she worked at the Crabtree Valley Mall store, and that Pros-ser was the Crabtree Valley Mall store manager. According to Wilson, Prosser made sexual comments to her two or three times a week. (Pl.Dep.149-52.) These comments included telling Wilson how beautiful she was, that she kept herself so small, and that he wanted to kiss her. Wilson told a co-worker about these comments, told Prosser to stop making the comments, but did not report the comments to the district manager or human resources. (PI. Dep. 150-52; PI. Resp. Ex. 150 at D00800.)
After Wilson was promoted and transferred to the Jones Franklin Road store, her contact with Prosser decreased to one or two times per week. (Pl.Dep.152-53.) Prosser was no longer her supervisor and they no longer worked in the same store. (Pl.Dep.153.) Nonetheless, Wilson testified that Prosser’s sexual comments became more pronounced and graphic, including comments about having sexual intercourse and oral sex. (Pl.Dep. 154.) Wilson never reported these comments to anyone, including her district manager or human resources. (Pl.Dep. 155, 158, 164.)
In November 1996, Wilson was conducting inventory at her store with Prosser. During that process, Wilson testified that Prosser pulled his penis out of his pants. She said, “Stop it.” (Pl.Dep.136.) Prosser then said he was going to the bathroom to “relieve myself.” (Id.) When Prosser returned, he reached across Wilson’s shoulder and grabbed her breast. (Id.) According to Wilsоn, she again told Prosser to stop it and to leave. (Id. at 137.) Prosser apologized and left. (Id.)
Montgomery arrived that morning and spoke with Wilson at a nearby Hardee’s. (Id.) According to Wilson, Montgomery asked her to explain what happened with Prosser. (Id.) Wilson told Montgomery that Prosser exposed himself to her. (Id. at 162.) While talking to Montgomery, Wilson began to cry. (Id. at 138.) Montgomery then said that she did not have to say anything else and that whenever Wilson was ready to talk about it — whether it was today, tomorrow, next week, next month, whenever — then they could talk. (Id. at 139, 161-62.) Montgomery also told Wilson that he had stopped by Pros-ser’s store that morning and spoke with him, and that Prosser did not mention anything happening. (Id. at 139, 163.) According to the plaintiff, after meeting with Wilson, neither Montgomery nor human resources ever contacted her again about the incident. (Id. at 163-64.) Likewise, she never contacted Montgomery, human resources, or anyone else at Goodyear. (Id. at 163-64, 338.)
Goodyear’s witnesses tell a different story. (Montgomery Dep. 173-205.) Essentially, Montgomery testified that Bob Morris in Goodyear human resources called him, said that there was some problem between Wilson and Prosser, and asked him to find out “what’s going on.” (Montgomery Dep. 173.) 7 According to Montgomery’s testimony, Morris did not use the term sexual harassment and Montgomery did not know specifically what he was investigating. (Id. at 175-76.) Montgomery drove to Wilson’s store and asked to meet with her over a cup of coffee. (Id. at 178.) They went to a nearby Hardee’s to get coffee, and he asked Wilson what happened “last night.” Wilson left the table to go to the restroom for about five or ten minutes. When Wilson returned, she was upset and said that she did not want to discuss it. (Id. at 179, 186-87.) Montgomery denies that Wilson told her that Prosser exposed himself and groped her. (Id. at 186.) After speaking with Wilson, Montgomery then met with Prosser and asked him what happened. (Id. at 193— 94.) Prosser said that during the inventory, Prosser reached for a pencil in Wilson’s pocket and may have touched her breast. (Id. at 193-96.)
After the meeting with Wilson, Montgomery wrote and sent a letter to Wilson. (Montgomery Decl. ¶ 17.) The letter stated:
To: Della McDougal Store Manager #2345
This letter is to acknowledge the phone call you made to Roger Brown on the evening of November 18, 1996 concerning possible sexual harassment against Randy Prosser.
On the morning of November 19 Roger contacted you to reaffirm your callbut you then claimed you made a mistake and told Roger to forget about the call. Also that same morning Bob Harris, Mgr. Human Resources, also contacted you to obtain information and to handle the situation to a closure. He also was told by you that you were sorry for any inconvenience and that the whole situation was a mistake by you.
I then made a trip to Raleigh and met with you on Friday November 23. You also told me that you did not want to discuss the matter.
Della a call of this nature to anyone in management is very serious and we have no intention of taking it lightly. However, since you are now saying it was a mistake on your part we are not going to pursue it any further at this time but we do want you to understand that we will not condone such matters and also we will not condone false accusations by associates.
Should you want to talk with any of us further please feel free to do so.
J.D. Montgomery District Manager #2300
(Id. Ex. A; Montgomery Dep. 199-204.)
Wilson testified that she never received Montgomery’s letter. (Pl.Dep.163.) Wilson never again contacted Montgomery, human resources, or any other manager about Prosser’s conduct or about Prosser’s alleged comments that preceded the conduct. (Pl.Dep.163-64.) She did not promptly file an EEOC charge. (PLDep. 164.)
After Montgomery’s November 1996 meeting with Wilson, Montgomery did not meet with Prosser about the allegations. (Prosser Dep. 271-73.) Human resources never followed up or conducted any investigation. (Id.; Montgomery Dep. 208-09.)
Within 30 to 60 days after the alleged groping incident, Prosser replaced Brown as team leader responsible for assisting Wilson’s store. (Pl. Dep. 164-65; Pl. Resp. Ex. 250; Def. Resp. to P1.2d Inter-rog. # 37.) According to Wilson, Prosser continued to regularly make sexually related comments to her. (Pl.Dep.166-67.) Prosser remained the team leader from early January 1, 1997 until after Wilson’s termination. (Pl.Resp.Ex. 250.)
Wilson never reported the sexually related comments that Prosser made during her employment. (PL Dep. 166-172, 338-39; Stewart Decl. ¶ 19.) Thus, she never reported these comments to Montgomery, Stewart, or anyone in human resources. (PL Dep. 158, 163; Stewart Decl. ¶ 19.) Wilson did not file an EEOC charge until August 7, 2002. (Pl.Dep.Ex. 15.)
Wilson alleged one incident of sexual harassment within 180 days of her August 7, 2002 EEOC chаrge. Specifically, she alleged that during her pregnancy, Prosser told her that he wanted to perform oral sex on her, and that they could get a hotel room and no one would know. (Pl.Dep.167.) Wilson never complained to Goodyear about this comment. (PLDep. 158.)
Standing alone, Prosser’s alleged comment is not sufficiently severe to affect the terms and conditions of Wilson’s work environment.
See, e.g., Harris,
B.
Under
Morgan,
a court sometimes may consider events beyond the 180-day charge-filing period when analyzing a hostile work environment claim.
See Morgan,
Goodyear concedes that Prosser’s alleged comment within the 180-day period permits the plaintiff to rely on Prosser’s conduct outside the 180-day period so long as Prosser’s conduct is all part of a single hostile work environment claim. (Def.Mem.30.) Nevertheless, Goodyear argues that Wilson’s sexually hostile work environment claim fails due to the Faragher-Ellerth affirmative defense or due to laches. (Id. at 30-35.)
Under
Faragher-Ellerth,
if an employee is subject to harassment that does not culminate in tangible employment action, an employer may present an affirmative defense.
See Faragher,
As for the first requirement, an employer’s distribution of an anti-harassment policy provides “compelling proof that the [employer] exercised reasonable care in preventing and promptly correcting sexual harassment.”
Barrett v. Applied Radiant Energy Corp.,
The record is not clear concerning when Goodyear first distributed an anti-harassment policy. The record contains a Goodyear Field Personnel Manual dated January 1, 1993. (Pl.Resp.Ex. 150.) The manual contains a policy concerning sexual harassment. (Id. at D00800.) Bob Morris, a retired Goodyear human resources executive, testified that the Field Personnel Manual was in effect during the latter part of his tenure (i.e., from 1993 through March 1998). (Morris Dep. 44-45, 130.) The record does not reveal whether Goodyear distributed the Field Personnel Manuel to store managers or whether, in fact, Wilson ever received a copy. Morris did testify, however, that each store received a training video concerning equal employment opportunity (including a portion on sexual harassment) and that all employees could call a hotline to complain about anything (including sexual harassment). (Morris Dep. 130-34.)
At some point during her employment, Wilson received Goodyear’s employee handbook, but does not recall receiving the “Zero Tolerance” policy concerning sexual harassment. (PI. Dep. 330-31, 333; PI. Resp. Ex. 152.) Wilson, however, signed an acknowledgment concerning her receipt of the Zero Tolerance policy on November 30, 2001. (Def. Mem. Ex. K at D01484.)
In reviewing the evidence in the light most favorable to plaintiff, a genuine issue of material fact exists as to whether Goodyear distributed and effectively enforced a policy against sexual harassment from 1994 through August 2002.
See White,
Likewise, as to the second prong of the affirmative defense, a genuine issue of material fact exists as to whether Wilson unreasonably failed to take advantage of any preventative or corrective opportunities or to otherwise avoid harm. On the one hand, Goodyear contends that Wilson unreasonably failed to take advantage of any preventive or corrective opportunities. Specifically, Goodyear notes that Wilson never again contacted Montgomery after the meeting at Hardee’s, that Stewart replaced Montgomery as the district manager in October 2001, that Wilson never complained to Stewart about Prosser’s alleged comments or conduct, and that Wilson never again complained about sexual harassment to human resources (but did complain about Stewart to human resources). (Def.Mem.33-34.) On the other hand, Wilson testified that she reported to Brown and Montgomery that Prosser exposed himself in 1996 and shortly thereafter Prosser became her team leader; therefore, she believed any further complaints about Prosser were futile and would subject her to retaliation by Prоsser. (PI. Dep.338.) Unlike cases where the employee made no complaint to management about alleged sexual harassment, Wilson did make a complaint about alleged sexual harassment.
Cf. Matvia v. Bald Head Island Mgmt., Inc.,
C.
Finally, Goodyear cites
Morgan
and argues that this court should conclude that laches bars Wilson’s sexual harassment claim. (Def. Mem. 34-35 (citing
Morgan,
In support of the lack of diligence prong of this defense, Goodyear notes that Wilson waited over five years to file an EEOC charge concerning sexual harassment and “provided no sufficient justification for her failure to report her allegations of continuing harassment” to Goodyear. (Def.Mem.34.) In support of the prejudice prong, Goodyear asserts that it has been prejudiced in its ability to defend due to fading witness memories. Goodyear then cites the deposition testimony of Bob Morris who testified that he has no memory of Wilson’s alleged 1996 complaint. (Def. Mem. 35; Morris Dep. 6, 154-60, 167-68, 172-75.) Goodyеar also cites plaintiffs deposition testimony and argues that plaintiff cannot supply reliable dates as to the events at issue. (Def. Mem. 35; Def. Reply 12.)
Wilson responds that she filed her EEOC charge on the day that she was terminated and that there was no undue delay. (Pl.Resp.38.) Wilson also argues that Morris’ deposition testimony concerning a lack of memory conflicts with Goodyear’s October 2002 position statement to the EEOC. (PI. Resp. 38 (citing PI. Resp. Ex. 64).)
Laches is an equitable defense that the court, not a jury, decides.
See generally Liberty Oil Co. v. Condon Nat’l Bank,
A court faced with a laches defense “must make the requisite findings.”
Brzozowski v. Corr. Physician Servs., Inc.,
The court concludes that it should not resolve Goodyear’s laches defense on summary judgment.
See Jeffries v. Chicago Transit Auth.,
The court will hold this evidentiary hearing before scheduling the case for trial. If Goodyear establishes the laches defense and the court exercises its discretion to bar the plaintiffs hostile work environment claim, then there will not be a trial. In contrast, if the defense is not established or the claim is not barred, then there will be a trial.
IX.
Finally, the court turns to plaintiffs three claims under North Carolina law. The court has jurisdiction over these claims pursuant to supplemental jurisdiction.
See
28 U.S.C. § 1367;
Shanaghan v. Cahill,
A.
First, Wilson asserts a claim of negligent infliction of emotional distress against Goodyear based on its conduct in permitting discrimination to occur and its negligent supervision of those who allegedly discriminated against Wilson. (ComplJf 59-60, 88-101.) Under North Carolina law, to state a claim for negligent infliction of' emotional distress (“NIED”), “a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress ..., and (3) the conduct did in fact cause the plaintiff severe emotional distress.”
Johnson v. Ruark Obstetrics
North Carolina’s three-year statute of limitation applies to this claim.
See
N.C. Gen.Stat. § 1-52(5);
King v. Cape Fear Mem’l Hosp.,
Except for her negligent supervision claim, Wilson’s NIED claim does not describe negligent behavior on the part of Goodyear. Rather, she describes a course of alleged intentional discrimination and retaliation. For purposes of her NIED claim, Wilson’s allegations and proof are not sufficient to withstand summary judgment.
See Guthrie v. Conroy,
Further, Wilson has failed to raise a genuine issue of material fact concerning severe emotional distress within the statute of limitations.
See Schult,
B.
Next, Wilson contends that Goodyear was negligent in supervising Prosser, in failing to respond appropriately to her complaints of sеxual harassment, and in failing to respond to the disparate treatment alleged in this lawsuit. “[B]efore the employer can be held liable [for negligent supervision], plaintiff must prove that the incompetent employee committed a tor-tious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee’s incompetency.”
Hogan v. Forsyth Country Club Co.,
Turning to the first element (i.e., a tortious act resulting in injury to plaintiff), the only claim remaining that can serve as a basis for that element is Wilson’s Title VII sexual harassment claim. Although neither the Supreme Court of North Carolina nor the Fourth Circuit has addressed the issue, the Middle District of North Carolina has twice rejected motions to dismiss under Rule 12(b)(6) and held that a Title VII violation conceivably may serve as a “tortious act” for purposes of a negli
The court shall defer ruling on Goodyear’s motion for summary judgment on the negligent supervision claim. If the court ultimately concludes that Wilson’s Title VII sexual harassment claim is barred due to laches, then the negligent supervision claim would fail due to the absence of a tortious act resulting in injury to the plaintiff. If the sexual harassment claim is not barred due to laches, then the court will address whether the negligent supervision claim survives summary judgment.
C.
Finally, Wilson alleges that Goodyear wrongfully discharged her in violation of North Carolina public policy. She relies on the North Carolina Equal Employment Practice Act, N.C. Gen.Stat. § 143-422.2, as the source of North Carolina’s public policy against race or sex discrimination. Having failed to establish facts to support her claims under Title VII that Goodyear discharged her due to her race or sex, Wilson’s wrongful discharge claim is dismissed. See Jones v. Southcorr, LLC, 324 F.Supp.2d 765, 783 (M.D.N.C.2004).
X.
For the reasons stated above, defendant Goodyear’s motion for summary judgment is GRANTED IN PART AND DENIED IN PART. All of Wilson’s federal claims are DISMISSED except her Title VII claim concerning a sexually hostile work environment. As to that claim, the court defers ruling on it until the court holds an evidentiary hearing on Goodyear’s laches defense. All of Wilson’s state law claims are DISMISSED except her negligent supervision claim. The court defers ruling on that claim until the court resolves Goodyear’s laches defense.
Notes
. In addition, Goodyear designates certain store managers as team leaders. Goodyear contends that a team leader is a store manager with added responsibilities of providing assistance to other store managers, but team leaders are not supervisors of store managers and cannot hire, fire, or discipline store managers. (McElroy Decl. ¶ 8.) Wilson contends that team leaders sometimes provide input on discipline, promotions, and transfers. (Brandenburg Dep. 38-41; Pl. Resp. Ex. 48.)
. The statute of limitations under 42 U.S.C. § 1981 is four years. See 28 U.S.C. § 1658. Therefore, in this case, race discrimination that occurred after August 21, 1999 is actionable under section 1981.
. Under Title VII, plaintiff's failure-to-promote claims are limited to non-promotions occurring within 180 days of filing her August 7, 2002 EEOC charge.
See Nat’l R.R. Passenger Corp. v. Morgan,
. According to Wilson, some individuals who received promotions to store manager performed poorly as store managers. Plaintiff then attempts to rely on this alleged "post-decision” performance evidence as proof that she should have received the promotion. (PL Resp.8-11, 26-27.) Such "post-decision” performance evidence is irrelevant to the de-cisionmaker's original promotion decision.
. To the extent that the plaintiff complains about the level of staffing at her store or the speed with which her store was refurbished, these events do not constitute "adverse employment action.” Thus, they are not actionable. In any event, the court has examined the record and concludes that neither issue had anything to do with plaintiff’s race, sex, or pregnancy. (Stewart Deck ¶¶ 7-9; Montgomery Deck ¶ 13; McElroy Deck ¶¶ 36-37.) Thus, these claims fail.
. Wilson’s complaint does not allege retaliation based on her refusal to engage in racially discriminatory conduct (Comply 58); therefore, the court deems that allegation (which was in her August 7, 2002 EEOC charge) to have been abandoned.
. Morris was deposed. Essentially, he testified that he retired in March 1998 and does not recall Wilson, Brown, or Montgomery ever making any report of alleged sexual harassment by Prosser towards Wilson. (Morris Dep. 6, 154-60, 167-68, 172-75.) The record does not contain any testimony from Roger Brown.
. Wilson also complains that Stewart singled her out at a staff meeting, yelled at her for not wearing her uniform during her pregnancy, yelled at her for being late to meetings, pretended not to see Wilson at meetings, required Wilson to call in daily and then weekly to report on her pregnancy, and required Wilson to pay vendor invoices while on leave. (Pl.Resp.12-13, 16-17, 29, 32.) Wilson also claims that Prosser and another store manager commented that only the whites of Wilson’s eyes could be seen in the dark. (Pl.Dep. 261.)
The alleged conduct is not sufficiently severe or pervasive to alter her conditions of employment and create a hostile work environment based on her race or pregnancy.
See, e.g., Harris,