#### Daquanta ROBERTS, Plaintiff, v. WAL-MART STORES, INC., and Wal-Mart Stores East, Inc., Defendants.

No. 5:07-CV-37-D.

United States District Court, E.D. North Carolina, Western Division.

Aug. 27, 2007.

*788Ta-Letta Bryant Saunders, Bryant Saunders PLLC, Raleigh, NC, for Plaintiff.

Angela B. Cummings, Julie Kerr Adams, L. Stanford Sherrill, Jr., Littler Mendel-son, PC, Charlotte, NC, for Defendant.

ORDER

DEVER, District Judge.

On February 2, 2007, Daquanta Roberts (“plaintiff’) filed a complaint concerning her employment by Wal-Mart Stores East, Inc. (“Wal-Mart”). Plaintiff alleges that Wal-Mart failed to promote her because of her race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) and in violation of 42 U.S.C. § 1981. *See*Compl. ¶¶ 47-50. The complaint also requests “[a]n Order enjoining defendants from engaging in discrimination on the basis of race in accordance with N.C.G.S. § 143-422.1.... ” Compl., Prayer for Relief, ¶ 2.

Wal-Mart moved to dismiss the Title VII claim because plaintiff allegedly did not file her claim within 90 days of her receipt of her right to sue letter. *See*Def. Mem. 3-5 (analyzing 42 U.S.C. § 2000e-5(f)(1)); Fed.R.Civ.P. 12(b)(6). Wal-Mart also moved to dismiss plaintiffs request for relief under N.C. Gen.Stat. § 143-422.1 for failure to state a claim. *See*Def. Mem. 5-6. Plaintiff responded in opposition, and Wal-Mart replied.

Wal-Mart’s argument concerning the timeliness of plaintiffs Title VII claim is not without force. Nonetheless, the court denies Wal-Mart’s motion to dismiss the Title VII claim because a more complete record is needed to resolve Wal-Mart’s argument. Specifically, discovery needs to take place concerning the factual issues described in Wal-Mart’s memorandum and plaintiffs response. Following discovery, Wal-Mart may (of course) file a motion for summary judgment and challenge whether the Title VII claim was timely filed.

As for plaintiffs request for relief under N.C. GemStat. § 143-422.1, plaintiff concedes that the North Carolina Supreme Court and the North Carolina Court of Appeals have never recognized a private cause of action under N.C. Gen.Stat. § 143-422.1. PI. Resp. 7. She also appears to recognize that North Carolina appellate decisions citing N.C. Gen.Stat. § 143-422.1 as a source of public policy for a tort claim of wrongful discharge in violation of public policy have never recognized a tort claim of wrongful failure to promote in violation of public policy. *See id.*Nevertheless, plaintiff argues that she “is not asking the court to recognize a private cause of action. She is requesting the court to enjoin the Defendants from engaging in future discrimination based on race in the spirit of [N.C. Gen.Stat. § 143-422.1].” PI. Resp. 7-8.

The court rejects plaintiffs argument. If this court were to grant the requested relief under N.C. Gen.Stat. § 143-422.1, then the court would be creating a private cause of action under N.C. Gen.Stat. § 143-422.1. Such a private cause of action would contradict North Carolina law. *See, e.g., Smith v. First Union Nat’l Bank,*202 F.3d 234, 247 (4th Cir.2000). “Neither the North Carolina Supreme Court nor the North Carolina Court of Appeals has recognized a private cause of action under [N.C. Gen.Stat. § 143-422.1]. Instead, most courts have applied [N.C. Gen.Stat. § 143-422.1] only to common law wrongful discharge claims or in connection with other specific statutory remedies.” *Id.) see also McLean v. Patten Cmtys., Inc.,*332 F.3d 714, 719 (4th Cir.2003); *Jones v.*
      *789
      *Duke Energy Corp.,*43 Fed.Appx. 599, 600 (4th Cir.2002) (per curiam) (unpublished); *Schulze v. Meritor Auto., Inc.,*13 Fed.Appx. 89, 91 (4th Cir.2001) (per curiam) (unpublished); *Baucom v. Cabarrus Eye Ctr., P.A.,*2007 WL 1074663, at *6-7 (M.D.N.C. Apr. 4, 2007) (unpublished); *Kerry v. Harris Teeter, Inc.,*2006 *WL*2497088, at *4 (W.D.N.C. Aug.25, 2006) (unpublished); *Helmstetler v. Borden Chem., Inc.,*2002 WL 1602432, at * 1 (M.D.N.C. June 13, 2002) (unpublished); *Chung v. BNR, Inc.,*16 F.Supp.2d 632, 634-35 (E.D.N.C.1997). Thus, the court grants Wal-Mart’s motion to dismiss plaintiffs request for relief under N.C. Gen. Stat. § 143-422.1.

As explained above, the court GRANTS IN PART Wal-Mart’s motion to dismiss. Plaintiffs request for relief under N.C. GemStat. § 143-422.1 is DISMISSED. Wal-Mart’s motion to dismiss plaintiffs Title VII claim is DENIED.

SO ORDERED.