BRITTANY BAILEY v. ISLANDS MECHANICAL CONTRACTOR INC (2026)

ORDER

On July 21, 2025, Brittany Bailey (“Bailey” or “plaintiff”) filed an amended complaint against Islands Mechanical Contractor, Inc. (“IMC”), Kyle Dixon (“Dixon”), Jason Baker, Wayne Hermes (“Hermes”), and Kristen Long (“Long”) [D.E. 32]. Bailey brings 15 claims under federal and state law arising from her employment at IMC. See First Am. Compl. (“FAC”) [D.E. 32] 29-58. On August 25, 2025, IMC, Dixon, Hermes, and Long moved to dismiss the FAC [D.E. 38] and filed a memorandum in support [D.E. 39]. On August 28, 2025, Jason Baker moved to dismiss the FAC [D.E. 43] and filed a memorandum in support [D.E. 42]. That same day, Jason Baker answered the FAC [D.E. 41]. On September 15, 2025, Bailey responded in opposition to IMC, Dixon, Hermes, and Long [D.E. 45]. On September 16, 2025, Bailey filed a corrected response in opposition [D.E. 46]. On September 18, 2025, Bailey responded to Jason Baker [D.E. 48]. On September 29, 2025, Jason Baker replied [D.E. 50]. As explained below, the court grants in part and denies in part defendants' motions to dismiss the FAC.

I.

Bailey is an African-American woman. See FAC at 2–3.¹ IMC employed Bailey from September 12, 2023, to February 5, 2024. See id. at 1. On or about September 12, 2023, Bailey began as a mechanic on an IMC jobsite at a Coast Guard base. See id. at 4. Dixon served as Bailey's supervisor, and Hermes served as Bailey's “second-level supervisor.” Id. Jason Baker later supervised Bailey after IMC transferred her to plumbing and piping. See id. at 4, 15. Long served as Vice President of IMC and controlled personnel decisions, including hiring and firing. See id. at 4, 15, 21–22.

On September 13, 2023, during the day's lunch break, Dixon told Bailey to hide her tools under scaffolding. See id. at 5. When Bailey returned from lunch and noticed a few tools missing, Dixon told Bailey, “This is a construction site and you need to look after your tools.” Id. He also said, “No one is going to babysit you.” Id. That day, Dixon repeatedly checked Bailey's work and shook his head. Id. When Bailey asked Dixon if anything was wrong, he replied, “No, everything is fine.” Id.

The next day, Dixon assigned Bailey to work alone on a job that required two people. See id. Dixon told Bailey to complete the job by lunchtime. See id. Dixon also told Bailey that he would have assigned Noel Perez (“Perez”), another foreman, to help Bailey, but Perez was busy. See id. That day, however, Perez told Bailey that he was available to help Bailey. See id. at 6. Throughout the day, Perez attempted to help Bailey with the job, but Dixon intervened to stop him. See id. At the day's end, Dixon faulted Bailey for failing to complete the job and told Bailey to finish it the next day. See id. Five minutes later, Hermes told Bailey that she did a “good job” and the task “did not even need to be completed for a couple of weeks.” Id.

When Hermes left the jobsite, Dixon told Bailey to follow his instructions and that, in the construction world, “We're not going to babysit women.” Id. Perez told Dixon that Dixon was not running the jobsite properly. See id. Dixon and Perez left the jobsite. See id. Bailey believed that Dixon treated her differently from other employees because of her sex and race. See id. When Dixon returned, Dixon asked Bailey if she was wearing cologne. See id. at 6–7. Bailey denied wearing cologne, but Dixon insisted because Dixon had a black friend and knew a “gay girl” who wore the same cologne that he claimed Bailey wore. See id. at 7. Dixon also told Bailey that her long nails “were probably the reason that her job was not completed that day.” Id.

On September 15, 2023, Dixon told Bailey to work on a different job than the one Bailey started the day before. See id. Dixon, however, told Hermes that he assigned Bailey to complete the other job first. See id. When Bailey told Hermes of Dixon's instruction, Hermes stated that “Dixon had falsely told him” Bailey was to finish the job started on September 14, 2023. See id. Later that day, Dixon remarked to Bailey that “there were ․ not a lot of ‘her type’ ” on the jobsite. Id. Dixon did not clarify what “her type” meant. See id. Bailey told Perez about Dixon's comments, and Perez told Bailey to speak with Hermes. See id. Perez also told Bailey that he felt Dixon “was targeting her.” Id. at 8.

Bailey spoke to Hermes about Dixon's comments. See id. Bailey and Hermes did not know what Dixon meant by Bailey's “type.” See id. Hermes told Bailey that Dixon reported she worked “too slowly and that her nails [were] holding up job productivity.” Id. Bailey asked Hermes if she should cut her nails, and Hermes replied that he did not know. See id. Hermes also told Bailey that he overheard remarks about her sexual orientation, but that “it did not matter to him.” Id. Bailey asked to work for Perez instead of Dixon, but Hermes denied her request. See id.

After speaking with Hermes, Bailey told Perez that Hermes said he “had her back.” Id. As Perez and Bailey spoke, Dixon passed them and interjected. See id. Dixon asked Perez if he was “helping the handicapped again.” Id. Bailey told Dixon that she carried heavy materials on the jobsite upstairs, and Dixon responded that Bailey should “go up and down the stairs more often.” Id. Bailey asked Dixon for clarification, and Dixon said, “It just wouldn't hurt, you could lose some calories.” Id. Bailey told Perez about Dixon's remarks. See id.

Bailey also told Hermes about this interaction with Dixon and told Hermes that “she had never been treated like this on the jobsite anywhere else.” Id. Hermes responded to Bailey, “This is construction and sometimes people make jokes.” Id. at 9. Hermes told Bailey to go home for the day, and she would be paid. See id. Bailey suffered a migraine that night “because of the stress of the job.” Id.

On or about September 16, 2023, Bailey called Hermes and told him about the migraine and her displeasure with how Dixon was treating her. See id. Hermes told Bailey to come in a few hours late. See id. When Bailey arrived, Dixon assigned her a job. See id. On the jobsite, Bailey overheard Dixon tell Perez, “This is a man's world. I don't know why she is here.” Id. Dixon also told Perez that he was not sure why “they would hire a n—r” and “[l]ook at her nails.” Id. Perez told Dixon that his comments were “not right.” Id. Bailey called Hermes and told him that she needed to take an early lunch break because she did not feel well. See id. After the lunch break, Bailey returned to the jobsite and told Dixon that she did not want to speak with him. See id. Bailey also told Perez about Dixon's remarks. See id. Bailey and Perez went to Hermes's office and told Hermes about Dixon's remarks. See id. Hermes said he would speak to Dixon about the comments. See id.

On or about September 17, 2023, Hermes told Bailey to complete a drug screening. See id. at 10. Later that day, Bailey overhead Dixon say, “I hope people are clean. They're about to start doing random drug tests around here.” Id. Bailey believed that Dixon directed his comments at her. See id. On or about September 19, 2023, Bailey completed the drug screening. See id. At the jobsite, Dixon remarked to Bailey that “he knew people of [Bailey's] ethnicity had problems with drugs.” Id. (quotations omitted). When Bailey confronted Dixon about his comment, Dixon told her, “This is construction[ ] and ․ it's a man's world.” Id. Dixon also told Bailey to “get her ass on the ladder.” Id.

On or about September 20, 2023, Dixon told the jobsite's other foremen that he wanted to “get rid of” Bailey and that her employment was “a waste of [the] company's time and money.” Id. After the meeting, three foremen on the jobsite viewed Bailey's work. See id. One foreman said, “I don't know what Dixon is talking about. The work looks good to me.” Id. Later that day, Hermes told Bailey that Dixon said Bailey's productivity was “not up to par.” Id. at 11. Bailey complained again to Hermes about Dixon's comments and told Hermes that she felt uncomfortable on the jobsite. See id. Hermes told Bailey, “Don't worry. I've got you.” Id.

On or about September 25, 2023, Bailey told Dixon that she would not work for him and left for lunch. See id. When she returned, Hermes and Bailey spoke. See id. Hermes told Bailey that Dixon complained about her. See id. Bailey again asked to work for Perez. See id. Hermes denied her request. See id.

On or about September 26, 2023, Hermes told Bailey that she could work with HVAC on the jobsite. See id. While she worked with HVAC, Bailey overhead Dixon speaking to Josh Baker, the lead pipe welder on the jobsite. See id. Dixon referred to Perez as a “wetback” and said that IMC should get rid of “all the spicks.” Id. (quotation omitted). Dixon also said that the “n—r” they hired is “only good for f—king,” and that he could not believe “he had ‘n—rs’ ” working for him. Id. Josh Baker later spoke with Bailey. See id. Josh Baker consoled Bailey and told her she needed to have thick skin. See id. At the end of the day, Bailey again spoke with Hermes and told him she felt uncomfortable working with Dixon because he was racist. See id. at 11–12. Hermes replied that calling Dixon racist was “a little extreme.” Id. at 12. Bailey then told Hermes that she intended to call Hermes's supervisor. See id. Hermes said calling his supervisor was unnecessary and asked Bailey what was wrong. See id. Bailey told Hermes that Dixon used racist language to refer to her and Perez. See id. Hermes responded that he would talk to Dixon. See id. Josh Baker corroborated Dixon's use of racial slurs to refer to her and Perez. See id. Hermes told Josh Baker and Bailey that he would talk to Dixon. See id. When Dixon did not answer Hermes's phone call, Hermes told Bailey that he would ask human resources to transfer Bailey to a different position. See id.

On or about September 27, 2023, Bailey told Hermes that she did not want to work that day. See id. Hermes told Bailey to come to work and that she could work with HVAC. See id. During that day, Dixon “pop[ped] in and out looking at” Bailey. Id. Bailey renewed her request to be permanently transferred, and Hermes again said that he needed to speak with human resources. See id.

At the beginning of October 2023, Bailey developed migraines and took time off work. See id. at 12–13. On October 5, 2023, Bailey returned to work. See id. at 13. Hermes told Bailey that she had been transferred to HVAC. See id. On October 9, 2023, Hermes told Bailey that her HVAC supervisor was Josh Baker. See id. Around this time, Dixon approached Josh Baker to inquire about Bailey's job performance. See id. Dixon and Josh Baker verbally sparred, and Bailey interjected. See id. Dixon told Bailey, “Shut up, bitch.” Id. Josh Baker told Dixon, “Get off the jobsite before I drag you out of here.” Id. Dixon responded, “F—king n—er!” Id. Dixon left the jobsite. See id. Josh Baker told Bailey that he “was tired of hearing that racist stuff.” Id. (quotations omitted).

On or about October 23, 2023, Hermes evaluated Bailey's work. See id. Bailey “passed all evaluations.” Id. Hermes told Bailey that she would receive welder's pay at $42 per hour, but she never received that wage. See id. at 14. A week later, Bailey asked when she would begin receiving welder's pay and Hermes told her that it “takes a while for HR to make the change” and the change would “probably” be reflected on her next paycheck. Id.

On or about November 2, 2023, Bailey told Hermes that her apartment was robbed on November 1, 2023. See id. On the jobsite, Bailey overheard Dixon remark to another employee, “See I told you. [Bailey] is bringing that hood n—er shit to the job. I told you!” Id. Bailey immediately told Hermes of this remark and Hermes responded, “That's [Dixon] being Dixon.” Id. Hermes gave Bailey the rest of the day off work. See id. Later in November 2023, Dixon and Josh Baker verbally sparred again. See id. at 14–15. During this argument, Josh Baker threatened to leave IMC and threw a welding torch to the ground. See id. at 15. Dixon responded, “You want to bet, you've been training that monkey long enough.” Id. Josh Baker and Bailey told Hermes about the argument. See id. Hermes told Josh Baker that Hermes would speak with Dixon. See id. Hermes told Bailey to work for Jason Baker, the foreman in charge of plumbing and piping. See id.

On or about December 1, 2023, Jason Baker told Bailey that “he has a black girlfriend and only dates black girls,” asked Bailey if she still made “twenty something an hour,” and said that “he might be able to help with that.” See id. at 16. Later that day, Jason Baker told Bailey that “he could get her a raise if she had a threesome with him and his girlfriend.” See id. Bailey refused Jason Baker's advance. See id.

On or about December 7, 2023, Jason Baker arrived intoxicated to the jobsite. See id. He asked Bailey about her pay. See id. He also asked Bailey, “Are you going to bust it out today[?]” See id. Bailey believed this statement was related to Jason Baker's earlier sexual advance. See id. Bailey told Perez about Jason Baker's remarks. See id. Bailey and Perez spoke to Hermes about Jason Baker's conduct. See id. Hermes stated that he would speak to Jason Baker. See id.

On or about January 9, 2024, Jason Baker said to Bailey, “I bet you don't know how tall the handicap water fountain is supposed to be. I'll bet you $300!” Id. at 16–17. Jason Baker added, in reference to Bailey, “I need my f—king bitch!” Id. at 17. Bailey called Hermes and put him on speaker phone. See id. With Hermes on Bailey's speaker phone, Jason Baker said to Bailey, “You won't even lay down like you're supposed to, you dumb bitch! I have to train your fat ass!” Id. Bailey, Perez, and two other IMC employees went to Hermes's office and told Hermes that this “sexual and racial harassment was outrageous and cannot keep happening.” Id. One employee told Hermes that Bailey would report Dixon's and Jason Baker's conduct to a news outlet. See id. Hermes told the group that he “was going to take care of it” and that the group “did not need to write a statement.” Id. At an unspecified time, Bailey alleges that Jason Baker touched Bailey and referred to her using racial slurs. See id. at 33, 56.

On or about January 17, 2024, Jason Baker and Dixon approached Bailey. See id. at 17. Jason Baker said, “You're not done with the job.” Id. Dixon said, “I told you she's only good for f—king with her fat ass.” Id. Bailey replied that she was “done” and started packing her tools. Id. Dixon said, “Get your ass back on the ladder!” Id. Bailey responded, “No,” and walked away. See id. As she left, Bailey saw the base operational inspector, Obie Akwara (“Akwara”). See id. Bailey went to Akwara's office and told Akwara “everything that had happened.” Id. While in Akwara's office, another IMC employee called Bailey and told her that everyone on the jobsite “overheard what happened.” Id. at 18. That same employee then joined Bailey in Akwara's office and told Akwara what happened. See id. Akwara told Bailey that he “was sending the information to Washington DC.” Id.

After Bailey spoke to Akwara, she spoke to Hermes. See id. In Hermes's office, Bailey spoke to Long on the phone. See id. Bailey emailed Long the statement Bailey gave to Akwara. See id. Long and Hermes began a formal investigation, and IMC placed Bailey on paid leave. See id. Bailey alleges that the investigation was “superficial and only interviewed one witness.” Id. Bailey also alleges that IMC discounted Perez's statements “because [Perez] had previously been terminated by Dixon, at least in part because of his complaints of discrimination against Dixon.” Id.

On or about January 22, 2024, Bailey spoke to Long and IMC's human resources manager. See id. The pair told Bailey that IMC took complaints of discrimination seriously and that Bailey would receive her normal pay during the investigation. See id. Long told Bailey to call her if retaliation occurred. See id. at 18–19. Long also asked Bailey to return to work on January 23, 2024. See id. at 19. The same day, Jason Baker sent Bailey a text message which said, “Liar. I'll catch up to u. I owe u [sic] know.” Id. at 24. Bailey told Long that she “was afraid to return because Jason Baker had sent her a text saying he was going to get her.” Id. at 19. Bailey also told Long that Bailey heard from friends that Jason Baker said that “he was waiting for [Bailey].” Id. Long told Bailey not to return to work until Jason Baker checked out of his nearby hotel room. See id. Jason Baker checked out of the hotel room on January 31, 2024. See id.

On January 31, 2024, Bailey sought emergency medical care for “the severe physical effects caused by the stress of the harassment and the threats by Jason Baker.” See id. The next day, the hospital released Bailey, and her doctor cleared her to return to work on February 5, 2024. See id. That same day, Long reminded Bailey to return to work on February 5, 2024, at 7:30 a.m. See id. Bailey responded that she was in the hospital. See id. Long emailed Bailey and told her that IMC accepted her resignation. See id. Bailey denied resigning. See id. Long then told Bailey that she could report to work on February 5, 2024, with medical documentation. See id. Long sent Bailey a notice of separation for job abandonment. See id. at 20.

On or about February 5, 2024, Bailey returned to the jobsite. See id. Dixon, upon seeing Bailey, said, “Look at this. They let the ape back!” Id. Bailey emailed Long and asked why Dixon was on the jobsite. See id. Dixon also said to Bailey, in reference to the investigation into Dixon's remarks, “Nice try, monkey, this isn't the circus.” Id. Bailey called Long and told Long that she did not feel safe. See id. Long responded, “If you're not willing to work with Dixon you're no longer needed.” Id.

Bailey went to Hermes's office. See id. Hermes told Bailey that Dixon was “not supposed to be” at the jobsite and that Bailey could leave work for the day and return the next morning once Hermes “had everything figured out.” Id. While on the jobsite, Bailey sent Long a location pin showing her current location on the jobsite. See id. at 20–21. The next morning, Bailey called Hermes. See id. at 21. Hermes told Bailey that she would work in the office with Hermes because Long “did not want her working in the field anymore.” See id. Hermes also told Bailey that Dixon was being assigned “ethics training” instead of being terminated, a decision that Hermes attributed to Long. See id. Hermes directed Bailey to report to the jobsite for training. See id. Bailey asked to work remotely, but Hermes told Bailey to report to work and “he would figure out a way to keep her away from Dixon.” Id.

On or about February 6, 2024, Bailey attempted to enter the jobsite. See id. A security guard told Bailey that Long revoked her base access. See id. Bailey called Hermes, and Hermes told Bailey that he “believed Long took [Bailey's] name off the access list because Long was not terminating Dixon.” Id. That day, Long emailed Bailey and stated that “IMC had accepted her resignation[ ] and wished her luck.” Id. Bailey called Hermes, and Hermes attributed the decision to Long. See id. at 21–22.

Bailey alleges that, to the extent IMC terminated Bailey for absenteeism, that decision was pretextual and violated IMC's discipline policy. See id. at 22, 24. Since her termination, Bailey received diagnoses for major depressive disorder and generalized anxiety disorder, began weekly therapy, and has been prescribed medication. See id. at 26–27.

Bailey alleges that IMC paid Bailey less than various IMC employees who performed the same day-to-day responsibilities as Bailey. See id. at 27. Two of these employees, Keyanna and Gabe, are white. See id. Bailey also alleges that the comparators received priority for overtime, and that some comparators who performed the same responsibilities as Bailey are male and were paid at least $14 per hour more than Bailey. See id. at 27–28.

On May 21, 2025, Bailey filed a complaint. See [D.E. 1]. On July 21, 2025, Bailey filed the FAC. See FAC. Bailey brings 15 claims. Bailey brings claims under 42 U.S.C. § 1981 (“section 1981”) for race discrimination (claim one), retaliation (claim two), and hostile work environment (claim three). See FAC at 29–36. Bailey brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) for race discrimination (claim four), retaliation (claim five), a racially hostile work environment (claim six), sex discrimination (claim seven), quid pro quo sexual harassment (claim eight), and a sexually hostile work environment (claim nine). See id. at 36–47. Under North Carolina law, Bailey brings claims for wrongfull discharge in violation of North Carolina public policy against IMC, Jason Baker, Dixon, Long, and Hermes (claim ten), intentional infliction of emotional distress against IMC, Jason Baker, Dixon, Long, and Hermes (claim eleven), negligent infliction of emotional distress against IMC and Hermes (claim twelve), negligent retention and supervision against IMC (claim thirteen), and assault and battery against IMC, Jason Baker, Dixon, Long, and Hermes (claim fourteen). See id. at 47–57. Bailey also brings a claim under the Equal Pay Act, 29 U.S.C. § 206, against IMC (claim fifteen). See id. at 57–58.

II.

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677–80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to [the nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678–79. Rather, a plaintiff's factual allegations must “nudge[ ] [her] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678–79.

“Determining whether a complaint states a plausible claim for relief ․ [is] a context specific task that requires the reviewing court to draw on judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint does not suffice. Id.

In an employment discrimination case, a plaintiff need not plead a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), to survive a motion to dismiss. See, e.g., Johnson v. Balt. City, 163 F.4th 808, 814 (4th Cir. 2026); Barnett v. Inova Health Care Servs., 125 F.4th 465, 471 (4th Cir. 2025); Barbour v. Garland, 105 F.4th 579, 590 (4th Cir. 2024); Holloway v. Maryland, 32 F.4th 293, 298 (4th Cir. 2022); Lemon v. Myers Bigel, P.A., 985 F.3d 392, 399 (4th Cir. 2021); Bing v. Bravo Sys., LLC, 959 F.3d 605, 616 & n.8 (4th Cir. 2020); McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 584–85 (4th Cir. 2015). Nonetheless, a plaintiff must plausibly allege a claim for relief under governing law. See, e.g., Iqbal, 556 U.S. at 677–80; Twombly, 550 U.S. at 554–63; Johnson, 163 F.4th at 814; Barnhill v. Bondi, 138 F.4th 123, 132 (4th Cir. 2025); Barnett, 125 F.4th at 470; Barbour, 105 F.4th at 590; Laurent-Workman v. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022); Holloway, 32 F.4th at 298–301; Nadendla v. WakeMed, 24 F.4th 299, 304–05 (4th Cir. 2022); Bing, 959 F.3d at 616–18; McCleary-Evans, 780 F.3d at 585–86, 588.

A.

Bailey brings three claims under section 1981. Section 1981 prohibits race discrimination and retaliation in contracting. See 42 U.S.C. § 1981; CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446–57 (2008). Section 1981 provides, in relevant part, that “[a]ll persons within the jurisdiction of the United States shall have the same right ․ to make and enforce contracts ․ as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Section 1981 “protects all persons from racial discrimination in making and enforcing contracts.” Woods v. City of Greensboro, 855 F.3d 639, 645 (4th Cir. 2017). To succeed on a section 1981 claim, a plaintiff must “initially plead ․ that, but for race, [she] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. 327, 341 (2020).

Section 1981, unlike Title VII, permits individual liability as distinct from employer liability. Individual liability under section 1981 “must be predicated on the actor's personal involvement.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (quotation omitted); see Hawthorne v. Va. State Univ., 568 F. App'x 203, 204–05 (4th Cir. 2014) (per curiam) (unpublished); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000); Tillman v. Wheaton-Haven Recreational Ass'n, Inc., 517 F.2d 1141, 1146 (4th Cir. 1975). “[A] plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action ․” Hawthorne, 568 F. App'x. at 204–05 (quotation omitted). For example, individual supervisors may be held liable under section 1981 if they intentionally cause an employer to discriminate based on race. See, e.g., Harriston v. Target Corp., No. GLR-23-2795, 2024 WL 4336093, at *5 (D. Md. Sept. 25, 2024) (unpublished); Timbers v. Telligent Masonry, LLC, No. JKB-21-293, 2022 WL 861849, at *7 (D. Md. Mar. 23, 2022); Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 483 (D. Md. 2002) (“Directors or managers can be held personally liable when they intentionally cause a corporation to infringe the rights secured by section 1981,” but cannot be held liable when there is no evidence that they “directed, participated in or even approved of intentional discrimination” (quotations omitted)), aff'd sub nom. Skipper v. Giant Food Inc., 68 F. App'x 393 (4th Cir. 2003) (per curiam) (unpublished). Individual liability under section 1981 extends only insofar as an individual's own actions cause a section 1981 violation. See, e.g., Harriston, 2024 WL 4336093, at *5; Luy v. Balt. Police Dep't, 326 F. Supp. 2d 682, 688 (D. Md. 2004), aff'd, 120 F. App'x 465 (4th Cir. 2005) (per curiam) (unpublished); Tibbs v. Balt. City Police Dep't, No. RDB-11-1335, 2012 WL 3655564, at *6 (D. Md. Aug. 23, 2012) (unpublished); Pearsall v. Child Advocacy Comm'n of the Lower Cape Fear, Inc., No. 7:98-CV-200,2000 WL 33682693, at *6 (E.D.N.C. Feb. 15, 2000) (unpublished) (collecting cases).

In analyzing whether a plaintiff has plausibly alleged sufficient individual action to allow a section 1981 claim to proceed, courts may examine whether the individual defendant had the capacity to terminate the plaintiff's employment. See, e.g., Carson, 187 F. Supp. 2d at 483. Courts also may examine whether the plaintiff plausibly alleges direct evidence of the defendant's racially discriminatory animus and shows that the individual defendant took part in interfering with plaintiff's contractual interest, including an adverse employment action. See, e.g., Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005); Benjamin v. Sparks, 173 F. Supp. 3d 272, 283 (E.D.N.C. 2016), aff'd, 986 F.3d 332 (4th Cir. 2021)

In claim one, Bailey brings a race discrimination claim against all defendants. To state a race discrimination claim under section 1981, Bailey must plausibly allege that defendants discriminated against her because of her race and the discrimination interfered with a contractual interest. See, e.g., Katti v. Arden, 161 F.4th 217, 227 (4th Cir. 2025); Gurrero v. Ollie's Bargain Outlet Inc., 115 F.4th 349, 354 (4th Cir. 2024); Nadendla, 24 F.4th at 305; Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006).

A plaintiff may establish a race discrimination claim in two ways. First a plaintiff can use direct evidence to show that race discrimination motivated interference with a contractual interest including an adverse employment action. See, e.g., Diamond v. Colonial Life & Accident Ins., 416 F.3d 310, 318 (4th Cir. 2005). Direct evidence in this context means “conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested employment decision.” Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (cleaned up); see Johnson v. United Parcel Serv., Inc., 839 F. App'x 781, 784 (4th Cir. 2021) (per curiam) (unpublished). Alternatively, if a plaintiff lacks direct evidence of race discrimination, a plaintiff can proceed under the McDonnell Douglas burden-shifting framework. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284–85 (4th Cir. 2004) (en banc), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167(2009). The McDonnell Douglas framework consists of three steps: “(1) the plaintiff must first establish a prima facie case of employment discrimination or retaliation; (2) the burden of production then shifts to the employer to articulate a non-discriminatory or non-retaliatory reason for the adverse action; (3) the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory or retaliatory.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). The McDonnell Douglas framework applies to claims under section 1981. See, e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 & n.3 (4th Cir. 2004); Beall v. Abbott Lab'ys, 130 F.3d 614, 619 (4th Cir. 1997), abrogated in part on other grounds by Gilliam v. S.C. Dep't of Juv. Just., 474 F.3d 134 (4th Cir. 2007).

To establish a prima facie case of race discrimination, Bailey must show that (1) she was a member of a protected class, (2) she suffered an adverse employment action, (3) she was fulfilling her employer's legitimate expectations at the time of the adverse action, and (4) she was treated differently than a similarly situated employee outside the protected class. See, e.g., Johnson, 163 F.4th at 814–15; Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 626 (4th Cir. 2015), abrogated in part on other grounds by Bing, 959 F.3d 605; White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); Tahir v. Sessions, No. 5:16-CV-781, 2017 WL 1735158, at *4 (E.D.N.C. May 2, 2017) (unpublished), aff'd, 703 F. App'x 211 (4th Cir. 2017) (per curiam) (unpublished).

An adverse employment action under Title VII does not require a “significant ․ [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar” change in working conditions. Muldrow v. City of St. Louis, 601 U.S. 346, 355 (2024) (cleaned up). Instead, it requires “some harm respecting an identifiable term or condition of employment.” Id. Moreover, to “[d]iscriminate against means [to] treat worse.” Id. (cleaned up). Thus, an adverse employment action includes a “disadvantageous change to the compensation, terms, conditions, or privileges of employment” because of a protected status. Cole v. Grp. Health Plan. Inc., 105 F.4th 1110, 1114 (8th Cir. 2024). The Muldrow test for adverse employment action applies not only to Title VII claims but also to section 1981 claims. See Johnson v. Navy Fed. Credit Union, No. 23-2057, 2025 WL 2437832, at *1 (4th Cir. Aug. 25, 2025) (per curiam) (unpublished); Collins v. Union Pac. R.R., 108 F.4th 1049, 1053 (8th Cir. 2024).

Bailey plausibly alleges a race discrimination claim against defendants Jason Baker, Dixon, and IMC. See, e.g., Johnson, 163 F.4th at 814–15; Goode, 807 F.3d at 626; White, 375 F.3d at 295. Bailey fails to plausibly allege a race discrimination claim against defendants Long and Hermes. As for Long, Bailey does not plausibly allege that Long intended to discriminate against Bailey because of Bailey's race. See, e.g., Barnhill, 138 F.4th at 131; Nadendla, 24 F.4th at 305–06; Dominguez-Curry, 424 F.3d at 1038; Benjamin, 173 F. Supp. 3d at 283. As for Hermes, Bailey does not plausibly allege that Hermes participated in an adverse employment action, had the capacity to terminate Bailey's employment, or intended to discriminate against Bailey because of Bailey's race. See Harriston, 2024 WL 4336093, at *5; Luy, 326 F. Supp. 2d at 688; Tibbs, 2012 WL 3655564, at *6; Pearsall, 2000 WL 33682693, at *6. Thus, the court dismisses Hermes and Long from claim one.

In claim two, Bailey brings a retaliation claim under section 1981 against all defendants. To state a claim, Bailey must plausibly allege that (1) she engaged in protected activity, (2) her employer took some action against her that a reasonable employee would find materially adverse, and (3) her employer took the adverse action because of the protected activity. See, e.g., Barnhill, 138 F.4th at 132; Barbour, 105 F.4th at 590; Massaro v. Fairfax Cnty., 95 F.4th 895, 902 (4th Cir. 2024); Cosby v. S.C. Probation, Parole & Pardon Servs., 93 F.4th 707, 718 (4th Cir 2024); McIver v. Bridgestone Ams., Inc., 42 F.4th 398, 411 (4th Cir. 2022); Walton v. Harker, 33 F.4th 165, 177 (4th Cir. 2022); Holloway, 32 F.4th at 299–300; Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021); Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 653 (4th Cir. 2021); Kitlinski v. U.S. Dep't of Just., 994 F.3d 224, 232 (4th Cir. 2021); Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020); Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019); Perkins v. Int'l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019); Savage v. Maryland, 896 F.3d 260, 276 (4th Cir. 2018); Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018); Guessous, 828 F.3d at 217; Foster v. Univ. of Md. E. Shore, 787 F.3d 243, 253 (4th Cir. 2015); DeMasters v. Carilion Clinic, 796 F.3d 409, 416 (4th Cir. 2015); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc); Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir. 2013); see also Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67–70 (2006); Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011).

“To establish a causal relationship between the protected activity and the [adverse action], a plaintiff must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.” Roberts, 998 F.3d at 124. An employee cannot demonstrate a causal connection between protected activity and the employer's adverse action without alleging that the decisionmaker who took the adverse action knew that the employee had engaged in protected activity. See Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001); Powe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998), abrogated on other grounds by White, 548 U.S. 53; see also Conrad v. CSX Transp., Inc., 824 F.3d 103, 108 (4th Cir. 2016); Gestamp S.C., LLC, v. NLRB, 769 F.3d 254, 261–62 (4th Cir. 2014).

Courts also consider the temporal proximity between an employer's knowledge of protected activity and an adverse action. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (per curiam); Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). An adverse action taken shortly after an employer learned of protected activity typically permits a reasonable inference of causation. See, e.g., Massaro, 95 F.4th at 902–03; Powe, 145 F.3d at 657. “A lengthy time lapse between the employer becoming aware of the protected activity and the alleged adverse employment action, [however,]․ negates any inference that a causal connection exists between the two.” Dowe, 145 F.3d at 657 (finding three years too long to infer causation); see Breeden, 532 U.S. at 274 (same for 20 months); Colley v. ISS Facility Servs., Inc., No. 24-1320, 2025 WL 1743498, at *1–2 (4th Cir. June 24, 2025) (per curiam) (unpublished) (same for four months); Barnhill, 138 F.4th at 132–35 (same for six months); Cosby, 93 F.4th at 721–22 (same for six years); Massaro, 95 F.4th at 902 (same for 18 months); Roberts, 998 F.3d at 126 (same for three months); Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017) (same for eight to nine months); Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (same for 13 months). A plaintiff can rebut this conclusion about time lapse by plausibly alleging that her employer's actions taken during the intervening period demonstrate retaliatory animus. See Barbour, 105 F.4th at 593–600; Massaro, 95 F.4th at 902–03; Alberti v. Rector & Visitors of the Univ. of Va., 65 F.4th 151, 156 (4th Cir. 2023); Walton, 33 F.4th at 177–78; Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007).

Bailey plausibly alleges a retaliation claim under section 1981 against defendants Long and IMC. See, e.g., Barnhill, 138 F.4th at 131–33; Barbour, 105 F.4th at 593–94; Holloway, 32 F.4th at 300; Roberts, 998 F.3d at 127. Bailey fails to plausibly allege a retaliation claim against defendants Jason Baker, Hermes, and Dixon because Bailey does not plausibly allege their involvement in Bailey's termination. See Harriston, 2024 WL 4336093, at *5; Luy, 326 F. Supp. 2d at 688; Tibbs, 2012 WL 3655564, at *6; Pearsall, 2000 WL 33682693, at *6. Thus, the court dismisses Jason Baker, Hermes, and Dixon from claim two.

In claim three, Bailey brings a hostile work environment claim under section 1981 against all defendants. To state a hostile work environment claim under section 1981, an employee must plausibly allege that (1) she experienced unwelcome conduct, (2) the conduct was based on race, (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (4) the conduct is imputable to the employer. See, e.g., Seabrook v. Driscoll, 148 F.4th 264, 271 (4th Cir. 2025); Cosby, 93 F.4th at 716; Laurent-Workman. 54 F.4th at 210–12; Chapman v. Oakland Living Ctr., 48 F.4th 222, 229 (4th Cir. 2022); Perkins, 936 F.3d at 207–08; Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 302 (4th Cir. 2019); Boyer-Liberto, 786 F.3d at 277; Okoli v. City of Balt., 648 F.3d 216, 220–21 (4th Cir. 2011); EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 327 (4th Cir. 2010); Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir. 2008); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc); Evans v. Capitol Broad. Co., 716 F. Supp. 3d 387, 402–04 (E.D.N.C. 2024). An employee also must plausibly allege that her protected characteristic was the “but for” cause of the alleged harassment. See, e.g., Gilliam, 474 F.3d at 142.

To determine whether conduct was sufficiently severe or pervasive to alter the employee's terms and conditions of employment and create an abusive working environment based on a protected characteristic, the court examines the allegations both subjectively and objectively. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993); Evans, 936 F.3d at 192. First, the employee must subjectively consider the conduct to be sufficiently severe or pervasive to alter her conditions of employment. See, e.g., Breeden, 532 U.S. at 270–71; Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998); Boyer-Liberto, 786 F.3d at 277. Second, a court views the conduct from the perspective of a reasonable person in the employee's position to determine whether it is objectively severe or pervasive. See, e.g., Breeden, 532 U.S. at 271; Faragher, 524 U.S. at 787–88; Oncale, 523 U.S. at 81–82; Boyer-Liberto, 786 F.3d at 277.

The objective component helps courts “to police the baseline for hostile environment claims.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc) (quotation omitted). The court considers all the circumstances, including 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, 510 U.S. at 23; see Seabrook, 148 F.4th at 272; Parker, 915 F.3d at 304. The conduct must be severe or pervasive to be actionable. See Harris, 510 U.S. at 23; Faragher, 524 U.S. at 787–88; Boyer-Liberto, 786 F.3d at 277–78. Section 1981 does not create a general civility code for the American workplace. See Faragher, 524 U.S. at 787–88; Oncale, 523 U.S. at 80; Boyer-Liberto, 786 F.3d at 277–81; Irani v. Palmetto Health. 767 F. App'x 399, 416 (4th Cir. 2019) (per curiam) (unpublished). Rather, the “conduct must ․ amount to a change in the terms and conditions of employment.” Faragher, 524 U.S. at 788; see Boyer-Liberto, 786 F.3d at 277–81. Simple teasing, sporadic rude language, offhand comments, jokes related to a protected status, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. See White, 548 U.S. at 68–69; Breeden, 532 U.S. at 270–71; Faragher, 524 U.S. at 788; cf. Chapman. 48 F.4th at 228–34; Boyer-Liberto, 786 F.3d at 277–81. Likewise, mere rude or insensitive treatment cannot sustain a hostile work environment claim. See, e.g., Bonds, 629 F.3d at 385–86; Baqir v. Principi, 434 F.3d 733, 746–47 (4th Cir. 2006); see also Breeden, 532 U.S. at 270–71; Faragher, 524 U.S. at 787–88; Oncale, 523 U.S. at 81–82; cf. Chapman, 48 F.4th at 228-34; Boyer-Liberto, 786 F.3d at 277–81; Walker, 775 F.3d at 207–10; Freeman v. Dal-Tile Corp., 750 F.3d 413, 420–24 (4th Cir. 2014); Okoli, 648 F.3d at 220–22.

“The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, 523 U.S. at 81–82. “Common sense, and an appropriate sensitivity to social context,” will enable courts to distinguish between teasing, distasteful jokes, sporadic rude language, vulgarity, stupidity, offhand comments, and insensitive treatment and “conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive” based on a protected characteristic. Id. at 82; Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772–73 (4th Cir. 1997).

Although hostile work environment claims often involve repeated conduct, an “isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment, if that incident is extremely serious.” Boyer-Liberto, 786 F.3d at 277 (quotations and alterations omitted); see Pryor v. United Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015); Okoli, 648 F.3d at 220 & n.5. In assessing the severity of the harassing conduct, harasser's status is an important factor. See Boyer-Liberto, 786 F.3d at 278; Sonnier v. Diamond Healthcare Corp., 114 F. Supp. 3d 349, 356 (E.D. Va. 2015). A “supervisor's power and authority invests his or her harassing conduct with a particular threatening character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998); see Boyer-Liberto, 786 F.3d at 278.

To impute liability to an employer for an employee's harassment, a plaintiff must demonstrate that “after having acquired actual or constructive knowledge of the allegedly harassing conduct,” the employer did not take “prompt and adequate remedial action to correct it.” Mikels v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999) (cleaned up) (collecting cases); see Pryor, 791 F.3d at 498; Freeman. 750 F.3d at 423; EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008). As for an employer's remedial actions, employers are required to “take steps reasonably likely to stop the harassment.” Bazemore v. Best Buy, 957 F.3d 195, 202 (4th Cir. 2020) (quotation omitted); see Xerxes Corp., 639 F.3d at 669. In assessing remedial actions, the court must consider, inter alia, “the promptness of the employer's investigation when complaints are made, whether offending employees were counseled or disciplined for their actions, and whether the employer's response was actually effective” in stopping the conduct of which plaintiff complains. Xerxes Corp., 639 F.3d at 669; see Bazemore. 957 F.3d at 202; Pryor, 791 F.3d at 498. “[S]o long as discipline is reasonably calculated to end the [offensive] behavior, the exact disciplinary actions lie within [the employer's] discretion.” Bazemore, 957 F.3d at 202. “A remedial action that effectively stops the harassment will be deemed adequate as a matter of law.” Xerxes Corp., 639 F.3d at 670 (quotation omitted); Bazemore, 957 F.3d at 201–02.

Bailey plausibly alleges a hostile work environment claim against defendants Jason Baker, Dixon, and IMC. See, e.g., Cosby, 93 F.4th at 716; Laurent-Workman, 54 F.4th at 210–12; Chapman, 48 F.4th at 229; Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 401 (5th Cir. 2021); Perkins, 936 F.3d at 207–08; Parker, 915 F.3d at 302; Boyer-Liberto, 786 F.3d at 277; Okoli, 648 F.3d at 220–21; Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184–86 (4th Cir. 2001); Powell v. Charter Cent., LLC, No. 6:23-CV-76, 2024 WL 3555369, at *2–4 (W.D. Va. July 26, 2024) (unpublished); Harriston, 2024 WL 4336093, at *5; Luy, 326 F. Supp. 2d at 688; Tibbs, 2012 WL 3655564, at *6; Pearsall, 2000 WL 33682693, at *6. Bailey's hostile work environment claim against Hermes and Long fails because Bailey does not plausibly allege their individual involvement in actions creating the alleged racially hostile work environment. See Harriston, 2024 WL 4336093, at *5; Luy, 326 F. Supp. 2d at 688; Tibbs, 2012 WL 3655564, at *6; Pearsall, 2000 WL 33682693, at *6. Thus, the court dismisses Hermes and Long from claim three.

B.

Bailey brings six Title VII claims in claims four through nine. Defendants argue that the court should dismiss Bailey's Title VII claims because Bailey does not allege that she ever filed a charge of discrimination with the EEOC. See [D.E. 39] 10–11.

“A person who believes her employer (or prospective or former employer) has violated Title VII ․ may not simply go down to the courthouse and file a lawsuit.” Thomas v. EOTech, LLC, ___ F.4th ___, 2026 WL 604730, at *2 (4th Cir. 2026); See, e.g., Balas, 711 F.3d at 407. Title VII requires a plaintiff to file a charge of discrimination with the EEOC and exhaust the administrative process before filing suit in federal court. See 42 U.S.C. § 2000e–5; Thomas, 2026 WL 604730, at *2. Failure to follow the administrative process has consequences. The content of the EEOC charge determines the scope of plaintiff's right to maintain a Title VII claim in court. See, e.g., Hoffman v. Inova Health Care Servs., ___ F.4th ___, 2026 WL 585771, at *6 (4th Cir. 2026); Hentosh v. Old Dominion Univ., 767 F.3d 413, 416–17 (4th Cir. 2014), abrogated on other grounds by Davis, 587 U.S. 541; Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132–33 (4th Cir. 2002). “Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996); see Sydnor v. Fairfax Cnty., 681 F.3d 591, 594 (4th Cir. 2012). “Thus, a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex.” Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009), abrogated on other grounds by Davis, 587 U.S. 541; see Bonds, 629 F.3d at 379. The same principle applies to a plaintiff who files an EEOC charge with respect to one adverse employment action (such as a failure to promote) but then seeks to expand the formal litigation claim to a separate adverse employment action (such as a termination). See Bonds, 629 F.3d at 379-80; Jones, 551 F.3d at 300; Evans, 80 F.3d at 963. The administrative exhaustion requirement serves the dual aims of providing fair notice to an employer about a charge and permitting the EEOC to investigate and (if appropriate) resolve the dispute without a lawsuit. See, e.g., Hoffman, 2026 WL 585771, at *6; Balas, 711 F.3d at 407–08.

Bailey admits that the FAC does not mention an EEOC charge. See [D.E. 46] 17–18. Bailey argues that administrative exhaustion is an affirmative defense which cannot merit dismissal under Federal Rule of Civil Procedure 12(b)(6) unless “all facts necessary to the affirmative defense clearly appear on the face of the complaint.” Id. at 18 (quotation omitted). Bailey reasons that the FAC's silence about the EEOC charge means the facts necessary to an administrative exhaustion affirmative defense do not clearly appear on the face of the complaint. See [D.E. 46] 17–18.

Bailey is mistaken. Although administrative exhaustion is an affirmative defense, courts routinely grant motions to dismiss Title VII and other claims with similar administrative exhaustion requirements for failure to exhaust. See, e.g., Hoffman, 2026 WL 585771, at *6–7 (Title VII and Americans with Disabilities Act); L.N.P. v. Kijakazi, 64 F.4th 577, 583–87 (4th Cir. 2023) (Social Security Act); Angus v. Mayorkas, No. 22-50600, 2023 WL 3918986, at *5 (5th Cir. June 9, 2023) (unpublished) (Americans with Disabilities Act); K.I. v. Durham Pub. Schs. Bd. of Educ., 54 F.4th 779, 790–94 (4th Cir. 2022) (Individuals with Disabilities in Education Act); Simko v. U.S. Steel Corp., 992 F.3d 198, 201, 204–07 (3d Cir. 2021) (Title VII); Batchelor v. City of Wilson, 747 F. Supp. 3d 845, 854–56 (E.D.N.C. 2024). To do otherwise would disserve Congress's intent “to use administrative conciliation as the primary means of handling claims, thereby encouraging quicker, less formal, and less expensive resolution of disputes.” Balas, 711 F.3d at 407 (quotation omitted).

The facts necessary to the affirmative defense plainly appear on the face of Bailey's complaint: Bailey does not allege any contact with the EEOC, let alone a timely filed charge of discrimination. On the face of Bailey's complaint, Bailey has not satisfied a “mandatory” precondition to filing a Title VII claim in federal court and cannot plausibly state a claim for relief under Title VII. Davis, 587 U.S. at 551.

In opposition, Bailey cites Bush v. Frederick County Public Schools, No. 23-1127, 2024 WL 639255, at *2 (4th Cir. Feb. 15, 2024) (per curiam) (unpublished), and Mills v. Inova Health Care Services, No. 23-2318, 2025 WL 40550, at *2-3 (4th Cir. Jan. 7, 2025) (per curiam) (unpublished). Bush does not help Bailey. There, the Fourth Circuit rejected the plaintiff's argument that the defendant forfeited an administrative exhaustion defense because the defendant raised the defense for the first time in its answer. See Bush, 2024 WL 639255, at *2–3. And the Bush plaintiff alleged that she filed an EEOC charge. See id. at *1–2. Likewise, in Mills, the plaintiff “affirmatively alleged that he timely filed a charge with the EEOC on April 26, 2022.” 2025 WL 40550, at *2. Bailey did not, and this failure appears on the face of the complaint. Thus, the court dismisses without prejudice claims four, five, six, seven, eight, and nine for failure to exhaust administrative remedies.

C.

Bailey brings five claims under North Carolina law in claims ten through fourteen. For these claims, this court must predict how the Supreme Court of North Carolina would rule on any disputed state-law issue. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the Supreme Court of North Carolina. See Plyler v. Cox, 145 F.4th 501, 512 (4th Cir. 2025); Stable v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from the Supreme Court of North Carolina, this court “may consider lower court opinions[,] ․ treatises, and the practices of other states.” Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted).² A federal court, however, “should not create or expand a [s]tate's public policy.” Time Warner Ent.-Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999). Moreover, in predicting how the highest court of a state would address an issue, this court must “follow the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently.” Toloczko, 728 F.3d at 398 (quotation omitted).

In claim ten, Bailey brings a wrongful discharge claim in violation of public policy as expressed in the North Carolina Equal Employment Practices Act (“NCEEPA”), N.C. Gen. Stat. § 143-422.2, against IMC, Jason Baker, Dixon, Long, and Hermes. See FAC at 47–49. Bailey alleges that IMC terminated her in retaliation for “opposing unlawful discriminatory conduct of Dixon and Baker.” Id. at 47; see id. at 47–49. North Carolina does not recognize wrongful discharge claims for retaliation, constructive discharge, or hostile work environment in violation of the NCEEPA's statement of public policy. See, e.g., Jones v. Duke Energy Corp., 43 F. App'x 599, 600 (4th Cir. 2002) (unpublished) (“North Carolina courts and federal courts applying North Carolina law have ․ [found] repeatedly that no private cause of action exists for retaliation, hostile work environment, disparate treatment, or constructive discharge in violation of public policy.”); Gelin v. N-Able Techs., Inc., No. 5:22-CV-345, 2023 WL 3079420, at *5 (E.D.N.C. Apr. 25, 2023) (unpublished) (collecting cases). North Carolina also does not recognize wrongful discharge claims against employees. See, e.g., Sides v. Duke Hosp., 74 N.C. App. 331, 343, 328 S.E.2d 818, 827 (1985), overruled on other grounds by Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 493 S.E.2d 420 (1997); Johnson v. North Carolina, 905 F. Supp. 2d 712, 726 (W.D.N.C. 2012); Iglesias v. Wolford, 539 F. Supp. 2d 831, 839 (E.D.N.C. 2008). Thus, the court dismisses claim ten. See, e.g., Jones, 43 F. App'x at 600; Gelin, 2023 WL 3079420, at *5; Sides, 74 N.C. App. at 343, 328 S.E.2d at 827.

In claim eleven, Bailey brings an intentional infliction of emotional distress (“IIED”) claim against IMC, Jason Baker, Dixon, Long, and Hermes. Under North Carolina law, intentional infliction of emotional distress requires (1) “extreme and outrageous conduct by the defendant” (2) “which is intended to and does in fact cause” (3) “severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992); Turner v. Thomas, 369 N.C. 419, 427, 794 S.E.2d 439, 446 (2016); Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). Conduct is extreme and outrageous only when it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123 (1986) (quotation omitted). Compare Chidnese v. Chidnese, 210 N.C. App. 299, 316, 708 S.E.2d 725, 738 (2011) (“[L]iability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (quotation omitted)), with Clark v. Clark, 280 N.C. App. 384, 397, 867 S.E.2d 743, 754 (2021) (holding that harassing and stalking after a separation, scaring someone by stating “[w]e are going to continue doing everything in our power to make your life miserable,” and posting advertisements and photographs online containing personal information sufficed as extreme and outrageous behavior), and Chapman ex rel. Chapman v. Byrd, 124 N.C. App. 13, 20, 475 S.E.2d 734, 739 (1996) (holding that repeating rumors that someone at the workplace had AIDS or was HIV positive and failing to investigate the truth and falsity of the alleged rumors before repeating them constituted extreme and outrageous behavior). Whether conduct is “extreme and outrageous” is a question of law for the court. Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990).

“Under North Carolina law, it is extremely rare to find conduct in the employment context that rises to the level of outrageousness necessary to support an IIED claim.” Miller v. Gerber Collision (Ne.), Inc., No. 4:19-CV-18, 2019 WL 2527105, at *3 (E.D.N.C. June 19, 2019) (unpublished) (collecting cases); see Ortiz v. Vance Cnty. Sch., Admin. Unit, No. 5:18-CV-91, 2019 WL 1940596, at *9 (E.D.N.C. Apr. 30, 2019) (unpublished); Everett v. Redmon, No. 7:16-CV-323, 2017 WL 2313468, at *9 (E.D.N.C. May 26, 2017) (unpublished); Howard v. Coll. of the Albemarle, 262 F. Supp. 3d 322, 340–41 (E.D.N.C. 2017), aff'd, 697 F. App'x 257 (4th Cir. 2017) (per curiam) (unpublished); Efird v. Riley, 342 F. Supp. 2d 413, 427 (M.D.N.C. 2004). Compare Hogan, 79 N.C. App. at 491, 340 S.E.2d at 122–23 (finding jury question concerning supervisor subjecting employee “to non-consensual sexual touching, constant suggestive remarks and on-going sexual harassment), with id. at 493–94, 340 S.E.2d at 121–22 (finding no extreme and outrageous conduct as a matter of law where a supervisor screamed at two employees, called them names, cursed at them, disrupted their work, threw menus at them, refused to grant pregnancy leave, and terminated an employee who left work due to labor pains). In cases where North Carolina courts have found IIED claims actionable, the conduct has been extremely egregious, involving sexual advances, obscene language, and inappropriate touching. See Miller, 2019 WL 2527105, at *3; Moody-Williams v. LipoScience, 953 F. Supp. 2d 677, 683 (E.D.N.C. 2013); Payne v. Whole Foods Mkt., Grp., 812 F. Supp. 2d 705, 710 (E.D.N.C. 2011), aff'd, 471 F. App'x 186 (4th Cir. 2012) (per curiam) (unpublished); see, e.g., Guthrie v. Conroy, 152 N.C. App. 15, 22-23, 567 S.E.2d 403, 409–10 (2002) (collecting cases); Groves v. Travelers Ins. Co., 139 N.C. App. 795, 800–01, 535 S.E.2d 105, 107–09 (2000) (McGee, J., dissenting) (collecting cases), rev'd per curiam on reasoning of dissent, 354 N.C. 206, 552 S.E.2d 141 (2001); Hogan, 79 N.C. App. at 493, 340 S.E.2d at 123. Moreover, taking adverse action in violation “of federal law alone, does not necessarily constitute extreme and outrageous conduct under North Carolina law.” Efird, 342 F. Supp. 2d at 427; see Bratcher, 545 F. Supp. 2d at 545; Pardasani v. Rack Room Shoes Inc., 912 F. Supp. 187, 192 (M.D.N.C. 1996).

Severe emotional distress means “any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.” Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Moreover, a plaintiff must produce “real evidence of severe emotional distress.” Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 450, 579 S.E.2d 505, 508 (2003) (emphasis added) (collecting cases); cf. McClean v. Duke Univ., 376 F. Supp. 3d 585, 613–14 (M.D.N.C. 2019) (holding plaintiff had stated a plausible IIED claim where plaintiff alleged she suffered from adjustment disorder, stress related peripheral nervous dysfunction, autoimmune flares, and suicidal ideation for which she received professional treatment); Radcliffe v. Avenel Homeowners Ass'n, Inc., 248 N.C. App. 541, 566 n.8, 789 S.E.2d 893, 910 n.8 (2016) (holding sufficient plaintiff's allegations that she “is now disabled, in pain, suffers from post-traumatic stress disorder and major depression ․ and is unemployable in her field”).

Under North Carolina law, an employer's liability for an employee's tortious act “arise[s] in three situations: (1) when the agent's act is expressly authorized by the principal; (2) when the agent's act is committed within the scope of his employment and in furtherance of the principal's business; or (3) when the agent's act is ratified by the principal.” Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121; Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66–67, 153 S.E.2d 804, 807–08 (1967). “Intentional tortious acts are rarely considered to be within the scope of an employee's employment.” Brown v. Burlington Indus., Inc., 93 N.C. App. 431, 437, 378 S.E.2d 232, 235 (1989); see Phelps v. Vassey, 113 N.C. App. 132, 135, 437 S.E.2d 692, 695 (1993). An employer ratifies an employee's tortious act when the employer, with “knowledge of all material facts and circumstances relative to the wrongful act, ․ by words or conduct, shows an intention to ratify the act.” Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122; see Wilson v. Gaston Cnty., 685 F. App'x 193, 202 (4th Cir. 2017) (unpublished); EEOC v. Joe's Old Fashioned Bar-B-Que, Inc., No. 5:18-CV-180, 2020 WL 3128599, at *4–6 (W.D.N.C. June 12, 2020) (unpublished). Ratification may be shown through a failure to act. Compare Brown, 93 N.C. App. at 437–38, 378 S.E.2d at 235–36 (holding that trial evidence of manager's failure to act on reports of sexual misconduct from employer could support a jury's finding of ratification) and Hogan, 79 N.C. App. at 492–93, 340 S.E.2d at 122 (holding that summary judgment should not have been granted for defendant employer where plaintiff's evidence indicated repeated complaints to a manager, who “did nothing to prevent further sexual harassment” of plaintiff by another employee), with Joe's Old Fashioned Bar-B-Que, 2020 WL 3128599, at *5 (finding evidence of ratification insufficient where employee who battered plaintiff “was immediately fired ․ , managers ․ clearly expressed disapproval of his actions, [and the employee] was unequivocally treated as the victim of the outburst and was asked to return to work”).

Bailey plausibly alleges an IIED claim against defendants Jason Baker, Dixon, and IMC. See, e.g., Guthrie, 152 N.C. App. at 22–23, 567 S.E.2d at 409–10 (McGee, J., dissenting); Groves, 139 N.C. App. at 800–01, 535 S.E.2d at 107–09; Brown, 93 N.C. App. at 437–38, 378 S.E.2d at 235–36; Hogan, 79 N.C. App. at 492–93, 340 S.E.2d at 122–23. Bailey does not plausibly allege extreme and outrageous conduct by Long or Hermes. Thus, the court dismisses Long and Hermes from claim eleven.

In claim twelve, Bailey brings a negligent infliction of emotional distress (“NIED”) claim against IMC and Hermes.³ To state an NIED claim, a plaintiff must plausibly allege that “(i) defendant negligently engaged in conduct; (ii) it was reasonably foreseeable the conduct would cause plaintiff severe emotional distress; and (iii) the conduct in fact caused plaintiff to suffer such distress.” Andersen v. Baccus, 335 N.C. 526, 531, 439 S.E.2d 136, 139 (1994); see Johnson, 327 N.C. at 304, 395 S.E.2d at 97; Acosta v. Byrum, 180 N.C. App. 562, 567, 638 S.E.2d 246, 250 (2006). A court should dismiss an NIED claim “when the material factual allegations charge nothing but intentional acts.” Soto v. Town of Rolesville, 729 F. Supp. 3d 533, 551 (E.D.N.C. 2024) (cleaned up); see, e.g., Mitchell v. Lydall, Inc., 16 F.3d 410, at *3 (4th Cir. 1994) (per curiam) (unpublished table decision); Fisher v. Frontline Nat'l, No. 1:18-CV-193, 2019 WL 1048848, at *4–5 (W.D.N.C. Mar. 5, 2019) (unpublished); Barbier v. Durham Cnty. Bd. of Educ., 225 F. Supp. 2d 617, 631 (M.D.N.C. 2002); Home v. Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142, 746 S.E.2d 13, 19 (2013).

Bailey does not plausibly allege an NIED claim against Hermes and IMC because she alleges only intentional acts. See, e.g., Mitchell, 1994 WL 38703, at *3; Soto, 729 F. Supp. 3d at 551; Barbier, 225 F. Supp. 2d at 631; cf. FAC at 52-53. Alternatively, Bailey fails to allege that Hermes owed Bailey a duty of care under North Carolina law. See Home, 228 N.C. App. at 149, 746 S.E.2d at 19; Magidson v. Wachovia Bank, NA, No. 1:07-CV-505, 2007 WL 4592230, at *5–6 (M.D.N.C. Dec. 27, 2007) (unpublished) (rejecting NIED claim because plaintiff could not cite, nor could the court find, authority “supporting the proposition that a supervisor has a legal duty to protect a subordinate from” co-workers' harassment). Thus, the court dismisses claim twelve.

In claim thirteen, Bailey brings a negligent retention and supervision claim against IMC. To state a negligent retention and supervision claim against IMC, Bailey must plausibly allege facts supporting an inference that an “incompetent employee committed a tortious act resulting in injury to plaintiff and ․ prior to the act, the employer knew or had reason to know of the employee's incompetency.” Smith v. Privette, 128 N.C. App. 490, 494–95, 495 S.E.2d 395, 398 (1998) (cleaned up); see Exum v. St. Andrews-Covenant Presbyterian Church, Inc., 296 N.C. App. 467, 472–73, 910 S.E.2d 5, 9–10 (2024); Graham v. Hardee's Food Sys., Inc., 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996); Hogan, 79 N.C. App. at 495, 340 S.E.2d at 123–24. Bailey plausibly alleges a negligent retention and supervision claim against IMC but no other defendant. See Smith, 128 N.C. App. at 494–95, 495 S.E.2d at 398; see Exum, 296 N.C. App. at 472–73, 910 S.E.2d at 9–10; Graham, 121 N.C. App. at 385, 465 S.E.2d at 560; Hogan, 79 N.C. App. at 495, 340 S.E.2d at 123–24.

In claim fourteen, Bailey brings an assault and battery claim against Jason Baker, Dixon, Long, Hermes, and IMC. “An assault is an offer to show violence to another without striking [her], and a battery is the carrying of the threat into effect by the infliction of a blow.” Dickens, 302 N.C. at 444–45, 276 S.E.2d at 330. Put differently, “[a] ‘battery’ is the offensive touching of the person of another without his/her consent.” City of Greenville v. Haywood, 130 N.C. App. 271, 275, 502 S.E.2d 430, 433 (1998). To state a battery claim, a plaintiff must plausibly allege (1) intent, (2) harmful or offensive contact, (3) causation, and (4) lack of privilege. See Sargent v. Edwards, 257 N.C. App. 540, 808 S.E.2d 927, 2018 WL 414332, at *6 (2018) (unpublished table decision); Wilkerson v. Duke Univ., 229 N.C. App. 670, 675, 748 S.E.2d 154, 159 (2013); Hawkins v. Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d 472, 475 (1991). A plaintiff need not show actual damage to state a battery claim. See Hawkins, 101 N.C. App. at 533, 400 S.E.2d at 475.

Bailey plausibly alleges an assault and battery claim against defendant Jason Baker but no other defendant. See Sargent, 2018 WL 414332, at *6; Wilkerson, 229 N.C. App. at 675, 748 S.E.2d at 159; Hawkins, 101 N.C. App. at 533, 400 S.E.2d at 475. Thus, the court dismisses defendants Hermes, Dixon, Long, and IMC from claim fourteen.

D.

Bailey brings an Equal Pay Act claim against IMC. See FAC at 57–58. The Equal Pay Act prohibits an employer from discriminating “between employees on the basis of sex by paying wages to employees ․ at a rate less than the rate at which he pays wages to employees of the opposite sex ․ for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). To state a claim under the EPA, a plaintiff must plausibly allege that: (1) the employer paid higher wages to an employee of the sex opposite of the plaintiff; (2) the plaintiff and comparator employee performed work that required equal skill, effort, and responsibilities; and (3) the plaintiff and comparator employee performed that work under similar working conditions. See Coming Glass Works v. Brennan. 417 U.S. 188, 195 (1974); Polak v. Va. Dep't of Env't Quality, 57 F.4th 426, 429–30 (4th Cir. 2023); Sempowich, 19 F.4th at 653–54; Evans, 936 F.3d at 196; Spencer v. Va. State Univ., 919 F.3d 199, 203 (4th Cir. 2019); EEOC v. Md. Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018); Wheatley v. Wicomico Cnty., 390 F.3d 328, 332–34 (4th Cir. 2004); Brinkley-Obu v. Hughes Training,. Inc., 36 F.3d 336, 343 (4th Cir. 1994). “This initial showing permits an inference that a pay disparity was based on sex discrimination,” even if plaintiff cannot demonstrate the employer acted with discriminatory intent. Spencer, 919 F.3d at 203; see Polak, 57 F.4th at 430; Md. Ins. Admin., 879 F.3d at 120. If a plaintiff plausibly alleges a claim under the EPA, the burden shifts to the employer to show that the pay differential “was based on a factor other than sex,” and “that the proffered reason did in fact explain the wage disparity, not merely that it could.” Spencer, 919 F.3d at 203, 206; see Md. Ins. Admin., 879 F.3d at 120.

Bailey does not plausibly allege an Equal Pay Act claim. Specifically, Bailey does not plausibly allege that the comparator employees pleaded in the FAC performed work that required equal skill, performance, and effort as the work that Bailey performed. See Corning Glass Works, 417 U.S. at 195; Polak, 57 F.4th at 429-30; Sempowich, 19 F.4th at 653–54; Evans, 936 F.3d at 196; Spencer, 919 F.3d at 203; Md. Ins. Admin., 879 F.3d at 120; Wheatley, 390 F.3d at 332–34. Although Bailey lists male employees who held the same title and received higher pay, these allegations are insufficient to state an Equal Pay Act claim. See, e.g., Polak, 57 F.4th at 430 (“[I]t is generally not enough to simply show that the comparator holds the same title and the same general responsibility as the plaintiff.” (cleaned up)); Evans, 936 F.3d at 196. Thus, the court dismisses claim fifteen.

III.

In sum, the court GRANTS IN PART and DENIES IN PART defendants Hermes's, Long's, Dixon's, and IMC's motion to dismiss [D.E. 38] and defendant Baker's motion to dismiss [D.E. 42]. The court dismisses Wayne Hermes as a defendant. The parties SHALL engage in a court-hosted mediation with United States Magistrate Judge Kimberly Swank.

SO ORDERED. This 20 day of March, 2026.

FOOTNOTES

1.   The FAC's paragraph numbering is discontinuous; therefore, the court cites to the FAC's page numbers.

2.   North Carolina does not have a mechanism to certify questions of state law to its Supreme Court. See Town of Nags Head v. Toloczko, 728 F.3d 391, 397–98 (4th Cir. 2013).

3.   Bailey attempts to add Long to this claim in her opposition to defendants' motion to dismiss. Compare [D.E. 46] 24, with FAC at 52-54. Bailey cannot amend her complaint through briefing. See U.S. ex rel. Carter v. Halliburton Co., 866 F.3d 199, 210 n.6 (4th Cir. 2017); Murray Energy Corp. v. Adm'r of Envt'l Prot. Agency, 861 F.3d 529, 537 n.5 (4th Cir. 2017); vonRosenberg v. Lawrence, 849 F.3d 163, 167 n.1 (4th Cir. 2017); S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013). Alternatively, Bailey alleges only intentional conduct by Long, which dooms an NIED claim against Long. See, e.g., Soto, 729 F. Supp. 3d at 551.

JAMES C. DEVER III United States District Judge