ORDER
On February 26, 2014, Stephanie Yar-brough and Stephanie - Williams (“plaintiffs”) sued East Wake First Charter School a/k/a East Wake Academy (“EWA”) and Michael Lester, individually and in his official capacity as President of the EWA Board of Directors (collectively, “defendants”) [D.E. 1-2], Plaintiffs asserted fifteen claims under state and federal law. On March 27, 2014, defendants timely removed the action from Wake County Superior Court to this court [D.E. 1]. See 28 U.S.C. §§ 1331, 1441(b). On April 29, 2014, defendants filed a partial motion to dismiss [D.E. 8] with a supporting memorandum [D.E. 9]. On Junе 30, 2014, plaintiffs responded in opposition [D.E. 14] and voluntarily dismissed all claims against Lester in his official capacity and ten claims against Lester in his individual capacity [D.E. 13]. On December 23, 2014, defendants replied [D.E. 26], As explained below, the court grants defendants’ partial motion to dismiss.
I.
EWA is a North Carolina nonprofit corporation that operates a charter school in Zebulon, North Carolina. Compl. [D.E. 1-2] ¶ 4.
Brandon Smith was the headmaster of and head of human resources for EWA until March 2012. Id. ¶ 19. Before working at EWA, Brandon Smith worked for Durham County Public Schools (“DCPS”). When Smith worked for DCPS, a DCPS
In 2005, after Smith started working for EWA, a female employee who worked in close physical proximity to Smith complained to Lester that Smith had “engaged in unwanted touching of her.” Id. ¶ 14. Lester did not tell the EWA Board about this complaint but met with the employee at another board member’s home. Id. ¶ 16. Lester did not formally investigate the employee’s complaint. Id. Instead, Lester tоld the employee that she could move to a different location at EWA to avoid Smith. Id. This move occurred almost a year later. Id. ¶ 17. The EWA Board took no disciplinary actions against Smith and did not provide sexual harassment training to Smith or EWA employees. Id. ¶ 18.
In the fall of 2006, Stephanie Yarbrough started working as a substitute teacher at EWA. Id. ¶ 8. By October 2006, she was a full-time physical education teacher assistant at EWA. Id. In 2010, Stephanie Williams started working at EWA as a fifth-grade teacher. Id. ¶ 7. Between 2010 and 2012, Smith made numerous unwanted and inappropriate sexual comments to Yar-brough and to Williams. Id. ¶¶ 26-81, 33-39. Smith also made unwelcome and inappropriate physical contact with Yarbrough and with Williams on multiple occasions. Id. ¶¶ 27, 30, 35-36. In December 2011, Smith told Williams that she would not be receiving a longevity raise, and later he told her, in reference to her not receiving the raise, ‘You know you should have done what I asked you to do.” Id. ¶ 30.
In November 2011, Yarbrough and Williams raised their concerns about Smith’s conduct with other EWA emрloyees. Id. ¶¶32, 40. In early 2012, some EWA Board members learned of Smith’s alleged sexual harassment, and two board members raised the issue at a board meeting. Id. ¶ 41. The EWA Board took no actions at the meeting, and Smith asked the Board to sanction the two board members who raised the issue. Id. ¶ 42.
Following this board meeting, Yar-brough and Williams submitted written complaints to Lester. Id. ¶ 43. After Lester reviewed their complaints, Lester determined that the two board members had inappropriately raised the hаrassment issue. Id. ¶ 44. As a result, Lester sanctioned them, per Smith’s request. Id. Lester conducted another board meeting and did not address plaintiffs’ complaints. Id. ¶45. Lester also showed plaintiffs’ written complaints to Smith, and Smith took actions that led to plaintiffs’ inability to access their school email for some period of time. Id.
Later, the EWA Board held a special meeting to hear statements from plaintiffs and Smith. Id. ¶¶ 45-46. Following this meeting, the EWA Board took no immediate disciplinary action against Smith. Id.
In February 2012, Yarbrough and Williams filed a police report with the Ze-bulon Police Department for assault and battery against Smith. Id. ¶ 47. Smith was charged with two counts of assault on a female and two counts of sexual battery. Id. In March 2012, EWA ' terminated Smith’s employment. Id. ¶ 9. After Smith’s termination, EWA conducted sexual harassment training, which EWA management suggested “was the fault of Williams and Yarbrough.” Id. ¶ 56. EWA also organized some events during
On February 26, 2014, plaintiffs filed suit against EWA and Lester in Wake County Superior Court. Plaintiffs alleged assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, sexual harassment under Title YII, negligent hiring, negligent supervision and retention, and violations of the North Carolina Constitution. Id. ¶¶ 59-180. Defendants timely removed the action to this court.
II.
The court first considers defendants’ motion to dismiss plaintiffs’ North Carolina tort claims against EWA for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(2). See Fed.R.CivJP. 12(b)(1), (2); Mot. Dismiss [D.E. 8] 1-2. When analyzing North Carolina law, this court must рredict what the Supreme Court of North Carolina would do if faced with the issue. In doing so, the court may consider cases from the Supreme Court of North Carolina, the North Carolina Court of Appeals, treatises, and the practices of other states. See, e.g., Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C.,
Under North Carolina law, governmental immunity presents a question of jurisdiction. See, e.g., Medina v. United States,
A.
Under Rule 12(b)(1), a plaintiff must prove subject-matter jurisdiction. See, e.g., Richmond, Fredericksburg & Potomac R.R. v. United States,
Under Rule 12(b)(2), a plaintiff must prove personal jurisdiction. See, e.g., Mylan Labs., Inc. v. Akzo, N.V.,
B.
Initially, the court analyzes whether EWA, as a charter school, enjoys governmental immunity. Under North Carolina law, public schools “may be sued only when and as authorized by statute.” Smith v. Hefner,
In opposition to this conclusion, plaintiffs contend that N.C. Gen.Stat. § 115C-218.20 does not recognize or confer governmental immunity upon charter schools, and that this court should not “expand the scope of sovereign immunity” by extending it to сharter schools when the legislature has failed to do so. See Pis.’ Mem. Opp’n Mot. Dismiss [D.E. 14] 6-7. Specifically, plaintiffs argue that a close reading of section 115C-218.20 and its earlier drafts demonstrates a lack of legislative intent to establish governmental immunity for charter schools. Id. 7. In support, plaintiffs cite three things. First, plaintiffs cite the express language of section 115C-218.20, which states, in part, that “[a]ny sovereign immunity of the charter school ... is waived to the extent of indemnification by insurance.” N.C. GеmStat. § 115C-218.20(a) (emphasis added). Plaintiffs claim that the use of the word “any” rather than “the” shows a lack of legislative intent to establish governmental immunity for charter schools. See Pis.’ Mem. Opp’n Mot. Dismiss 7. Second, plaintiffs contend that an earlier draft of section 115C-218.20 shows that the legislature considered and rejected governmental immunity for charter schools. See id. 7-8. Third, plaintiffs argue that section 115C-218.20’s title, “Civil liability and insurance requirements,” suggests legislative intent not to grant charter schools governmental immunity. See id. 8-9; N.C. GemStat. § 115C-218.20.
The court rejects plaintiffs’ argument. As plaintiffs concede, governmental immunity in North Carolina is a “judge-made doctrine” that the legislature later recognized by statute. See Steelman v. City of New Bern,
Plaintiffs’ contrary arguments are unpersuasive. As for the express language of section 115C-218.20, the legislature’s use of “any” suggests, at most, an implicit command to the state courts to determine whether governmental immunity exists. Furthermore, plaintiffs misread section 115C-218.20’s legislative draft. The draft states:
No civil liability shall attach to any chartering entity, to the State Board of Education, or to any of their members or employees, individually or collectively, fоr any acts or omissions of the charter school. In the event a charter school has not elected total independence from the local board of education under subsection (e) of this section, the immunity established by this subsection shall be deemed to have been waived.
H.B. 955, 1995 Gen. Assemb., Reg. Sess. (N.C.1995) (proposed section 115C-238.29F(c)(2)). The immunity described in this draft subsection' references the governmental immunity of a chartering entity or the State Board of Education, not а charter school. Thus, the changes made in the final draft do not reflect an intent to abrogate a charter school’s governmental immunity. If anything, the changes bolster the conclusion that the legislature intended to grant charter schools governmental immunity by adding language directly referencing a charter school’s immunity. Lastly, although the title of an act may resolve “doubt[s] about the effect of [a] statute,” State v. Flowers,
Having concluded that EWA enjoys governmental immunity, the court next considers whether EWA waived its immunity by purchasing liability insurance. “Any sovereign immunity of the charter school ... is waived to the extent of indemnification by insurance.” N.C. Gen. Stat. § 115C-218.20(A). North Carolina courts strictly construe statutes authorizing waiver of governmental immunity. See, e.g., Frye,
EWA purchased three different insurance policies for the relevant time period. See [D.E. 8 — 2—8—6]. Each policy contains a nonwaiver endorsement that states: “Because you are a public institution, you may be entitled to governmental immunity. This policy does not constitute a waiver of any governmental immunity to which you are entitled.” [D.E. 8-2] 12; [D.E. 8^] 9; [D.E. 8-5] 12. The policies also specify that “it is hereby agreed and understood that the policy(ies) ... prоvide(s) no coverage for any ... claim or suit for which any insured would otherwise have an exemption or no liability because of sovereign immunity____” [D.E. 8-2] 13; [D.E. 8-4] 10; [D.E. 8-5] 13. Such endorsements preclude the waiver of governmental im
Next, plaintiffs argue that North Carolina appellate precеdent upholding nonwaiver endorsements does not apply because that precedent involved municipalities, not charter schools. See Pis.’ Mem. Opp’n Mot. Dismiss 9-15. In making this argument, plaintiffs suggest a statutory distinction between municipalities and traditional public schools, on one hand, and charter schools on the other. In support, plaintiffs note that municipalities and traditional public schools are not required to carry any liability insurance whereas charter schоols must carry some form of liability insurance. Compare N.C. Gen.Stat. § 160A-485(a) (“Any city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance.”), and N.C. GemStat. § 115C-42 (“Any local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability....”), with N.C. GemStat. §' 115C-218.20(a) (“The board of directors [of a charter school] shall obtain at least the amount of and types of insurance required by these rules to be included in the charter.”).
The court rejects plaintiffs’ argument. Whether charter schools are permitted or required to carry liability insurance does not address whether a charter school’s purchase of liability insurance waives its governmental immunity. Tellingly, section 115C-218.20 states that a charter school’s governmental immunity “is waived to the extent of indemnification by insurance.”' N.C. Gen.Stat. § 115C-218.20(a) (emphasis added). Plaintiffs erroneously conflate the mere possession of insurance with actual coverage and indеmnification under a specific insurance policy. Here, EWA’s insurance policies exclude liability coverage for suits where EWA has governmental immunity, and (as discussed) North Carolina’s appellate courts uniformly have upheld such nonwaiver provisions.
Although plaintiffs correctly note that North Carolina’s appellate courts decided these cases in the context of voluntary insurance purchases, the distinction between mandatory insurance and vоluntary insurance does not undermine the conclusion that the Supreme Court of North Carolina would examine the insurance policy at issue to determine whether a given charter school waived governmental immunity. Here, section 115C-218.20 required EWA'to carry “at least the amount of and types of insurance required by” rules established by the North Carolina State Board of Education. N.C. GemStat. § 115C-218.20(a). In turn, the North Carolina State Board of Education determined the minimum coverage required of EWA and explicitly authorized EWA to purchase additional liability coverage. See North
Next, plaintiffs argue that the terms of a “privately purchased insurance policy” cannot override the plain language of the law. See Pis.’ Mem. Opp’n Mot. Dismiss 10-11. The argument fails, however, because EWA’s insurance policies do not conflict with the plain language of the law. Rather, the statute explicitly сonditions the waiver of governmental immunity on the terms of the “privately, purchased insurance policy.” N.C. Gen.Stat. § 115C-218.20(a).
Finally, plaintiffs cite Dalenko v. Wake County Department of Social Services,
In sum, EWA enjoys governmental immunity from plaintiffs’ North Carolina tort claims. Thus, the court grants defendants’ motion to dismiss plaintiffs’ North Carolina tort claims (claims one through eight and eleven through fourteen) against EWA for lack of jurisdiction.
III.
Next, the court considers defendants’ partial motion to dismiss under Rule 12(b)(6). Defendants ask the court to dismiss plaintiffs’ negligence claims against Lester in his individual capacity (claims seven and eight), and plaintiffs’ claim under the North Carolina Constitution (claim fifteen) against EWA. See id. ¶¶ 6-7, 11.
A motion to dismiss under Rule 12(b)(6) tests the legal and factual suffiсiency of a complaint. See Fed.R.Civ.P. 12(b)(6); Ashcroft v. Iqbal,
A.
Defendants argue that plaintiffs have failed to state a claim of negligent infliction of emotionаl distress (“NIED”) against Lester-in his individual capacity. See Defs.’ Mem. Supp. Mot. Dismiss [D.E. 9] 21-22. To survive defendants’ motion to dismiss plaintiffs’ NIED claims, plaintiffs must plausibly 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. See, e.g., Andersen v. Baccus,
Plaintiffs’ complaint alleges intentional conduct repackaged and relabeled as negligence. Compare Compl. ¶¶ 102-04, 1Il-ls, with id. ¶¶ 118,124. For example, in their claim of intentional infliction of emotional distress against Lester, plaintiffs allege that Lester “actively took steps to protect Smith in his position at EWA. Lester ... took steps to protect Smith in his position at EWA, including trying to cover up Smith’s wrongdoing and аdmonishing board members who brought forward concerns about Smith’s improper and illegal conduct.” Compl. ¶ 102. In plaintiffs’ NIED claim, they allege, almost identically, that Lester “actively took steps to protect Smith in his position at EWA. Lester ... took steps to protect Smith in his position at EWA, including trying to cover up Smith’s wrongdoing.” Compl. ¶¶ 118, 124 (emphasis added). Plaintiffs allege only intentional actions. Accordingly, plaintiffs’ NIED claims against Lester fail, and the court grants defendants’ motion to dismiss claims seven and eight аgainst Lester in his individual capacity.
B.
Finally, the court addresses defendants’ argument that plaintiffs have failed to state a claim against EWA under article 1, sections 18 and 19 of the North Carolina Constitution. Under North Carolina law, plaintiffs first must demonstrate the absence of an adequate state remedy before the court may permit plaintiffs to proceed with a claim directly under the North Carolina Constitution against EWA. See, e.g., Copper ex rel. Copper v. Denlinger,
First, plaintiffs contend that EWA violated article 1, section 18 by failing to take the internal disciplinary measures that plaintiffs sought. Article 1, section 18 states that “[a]ll courts shall be open; every person for an injury done him in his lands, goods, person, or reputation' shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.” N.C. Const, art. I, § 18.
Plaintiffs do not plausibly allege that EWA barrеd them from judicial relief, which is the protection guaranteed in section 18. See, e.g., Teleflex Info. Sys., Inc. v. Arnold,
Second, plaintiffs contend that EWA violated their rights under article 1, section 19, which states:
No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be dеnied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.
N.C. Const, art. I, § 19. The Supreme Court of North Carolina interprets section 19’s “law of the land” clause and the federal due process clause of the Fourteenth Amendment synonymously. See, e.g., Perry,
Plaintiffs vaguely assert a due process violation.
IV.
In sum, the courts GRANTS defendants’ partial motion to dismiss [D.E. 8]. The court dismisses claims one through eight and eleven through fifteen against EWA and claims seven and eight against Lester. Lester is dismissed as a defendant. The sole surviving claims are plaintiffs’ Title VII claims against EWA (claims nine and ten).
Notes
. In analyzing defendants' motion to dismiss under Rule 12(b)(6), the court accepts the factual allegations in plaintiffs' complaints as true. See, e.g., Ashcroft v. Iqbal,
. Plaintiffs agreed with this position in a related case when, as defendants, they claimed governmental immunity as EWA employees. See [D.E. 8-7] 4-5; cf. Ralph Waldo Emerson, Self Reliance, in Essays: First Series (1841) (“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”).
. To the extent plaintiffs assert an equal protection claim, the court dismisses the claim because plaintiffs do not plausibly allege unequal treatment from similarly-situated persons, where the treatment was the result of intentional or purposeful discrimination. See, e.g., Morrison v. Garraghty,