                                UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                No. 07-2188


PAULA MAY TOWNSEND,

                   Plaintiff - Appellant,

             v.

MARK WILLIAM SHOOK, individually and in his official
capacity as Sheriff of Watauga County; WATAUGA COUNTY;
WESTERN SURETY COMPANY,

                   Defendants - Appellees,

             and

JOHN DOE SURETY,

                   Defendant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Dennis L. Howell,
Magistrate Judge. (5:06-cv-00070-DLH)


Submitted:    March 19, 2009                  Decided:   April 24, 2009


Before WILLIAMS, Chief Judge,          TRAXLER,   Circuit   Judge,   and
HAMILTON, Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Angela Newell Gray, Greensboro, North Carolina, for Appellant.
James R. Morgan, Jr., Mary N. Craven, WOMBLE, CARLYLE, SANDRIDGE
& RICE, PLLC, Winston-Salem, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

      In this sexual harassment/wrongful discharge case alleging

various   federal      and   North    Carolina       state    law   claims,   Paula

Townsend (Plaintiff) appeals from the magistrate judge’s grant

of summary judgment in favor of:               (1) Mark Shook, individually

and in his official capacity as Sheriff of Watauga County, North

Carolina; (2) Watauga County; and (3) Western Surety Company.

We   affirm   in   part,     vacate   in     part,    and    remand   for   further

proceedings consistent with this opinion. 1



                                        I.

      In 1986, Plaintiff was hired as an administrative clerk for

the Watauga County Sheriff’s Office by her close family friend,

then Sheriff James Lyons (Sheriff Lyons). 2                  Under Sheriff Lyons,

Plaintiff     served   as    a   criminal     investigator      and   later   as   a

detective sergeant in the Watauga County Sheriff’s Office.




      1
       The parties consented to disposition of this case by a
United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).
      2
       Because Plaintiff’s claims on appeal are analyzed under
the summary judgment standard, we present the facts in the light
most favorable to Plaintiff, as the non-moving party. See Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004).




                                      - 3 -
       In 1998, Sheriff Lyons appointed Plaintiff to the position

of Chief Deputy Sheriff.               In December 2002, through an election,

Mark Shook (Sheriff Shook) became Sheriff of Watauga County.

Sheriff Shook immediately reappointed Plaintiff to the position

of     Chief      Deputy    Sheriff,         although      he     was       under    no     legal

obligation to do so.                 Plaintiff served in that position until

Sheriff Shook terminated her two and a half years later on July

12, 2005.

       As Chief Deputy Sheriff under Sheriff Shook, Plaintiff was

second       in   command       at   the     Watauga     County         Sheriff’s         Office,

wielded the authority to issue commands and directives in the

name    of     Sheriff     Shook,     and     served    as      the    acting       Sheriff    in

Sheriff Shook’s absence.                   Moreover, as Chief Deputy Sheriff,

Plaintiff was the policy administrator for the Watauga County

Sheriff’s Office, heavily involved in drafting policy and making

sure that such policies were carried out.                               In her position,

Plaintiff         was    also    responsible         for     handling          all     internal

investigations;          drafting      and    administering           the    office       budget;

and chairing the office hiring committee.                             Sheriff Shook, who

had the sole power to appoint Plaintiff to the position of Chief

Deputy Sheriff, also had the sole power to demote or terminate

her.

       In      support     of    her       allegations       of       sexual        harassment,

Plaintiff         presented       evidence       that,       on       numerous       occasions

                                             - 4 -
throughout her tenure as Chief Deputy Sheriff, Sheriff Shook

attempted to engage her romantically through physical and verbal

advances.   On each occasion, Plaintiff rebuffed his advances.

       For example, on New Years’ Eve 2002, while sitting alone in

a patrol car during a stakeout of a methamphetamine lab, Sheriff

Shook pulled Plaintiff towards him and started fondling one of

her breasts and kissing her.                 Plaintiff pulled away and told

Sheriff Shook that he “d[id]n’t need to be doing that.” (S.J.A.

37).     Sheriff       Shook    responded       that    he   had    been   crazy   about

Plaintiff since high school and that he had “always had a thing

for [her].”      Id.

       Sheriff Shook engaged in similar behavior towards Plaintiff

while the two attended an out-of-town training conference in

April 2003.        Plaintiff again rebuffed Sheriff Shook’s sexual

advances.     Also in April 2003, Sheriff Shook gave Plaintiff a

note expressing his romantic feelings for her at a time when he

believed his life was in danger as a result of death threats.

Another incident of aggressive sexual advances by Sheriff Shook

towards Plaintiff happened in 2003 in Sheriff Shook’s office.

On other occasions, Sheriff Shook touched Plaintiff’s hair and

shoulders and attempted to hold her hand.

       Sheriff     Shook       also    occasionally          told    dirty   jokes     in

Plaintiff’s presence and, in January or February of 2004, told

Plaintiff     of   a    sexual        fantasy    that    he    had    involving      her.

                                          - 5 -
Sheriff Shook also occasionally made derogatory comments about

Plaintiff or women in general in her presence.

       In     contending        that        Plaintiff       was        terminated       for    a

legitimate,      nondiscriminatory               reason,    Sheriff       Shook       presented

evidence that over the course of Plaintiff’s service as Chief

Deputy      Sheriff         during       his      administration,             Plaintiff       was

increasingly absent from work and generally behaved in a manner

that caused her to lose the respect and trust of many members of

the    Watauga       County    Sheriff’s         Office.         Plaintiff      acknowledges

that    she    was    warned        of   this     situation       by    Sheriff       Shook    on

several     occasions         and    that      she   was    advised       by    him    to   take

measures to earn the trust and respect of the deputies.

       According        to     Sheriff         Shook,       Plaintiff’s         professional

failings culminated in a magazine article that featured her in

early    July    2005,       which       angered     many    members      of    the    Watauga

County Sheriff’s Office.                   According to Sheriff Shook, this was

the final straw which resulted in his asking Plaintiff to resign

her position as Chief Deputy Sheriff, and when she declined to

do    so,   he   terminated          her    on    July     12,    2005.        In     rebuttal,

Plaintiff contends that the reasons given by Sheriff Shook were

not    legitimate,       nondiscriminatory               reasons,       but    were    a    mere

pretext for unlawful discrimination.

       On     June    13,     2006,      Plaintiff        filed    the     present      action

against Sheriff Shook in both his official capacity as Sheriff

                                               - 6 -
of Watauga County and in his individual capacity, also naming as

defendants Watauga County and John Doe Surety.                              The complaint

alleged two federal claims and four state law claims.                                   With

respect     to    her         federal     claims,       Plaintiff         alleged      sexual

harassment       and    wrongful        discharge    because         of   her    gender   in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., along with a concurrent § 1983 claim, 42

U.S.C. § 1983, against all defendants.                         Plaintiff alleged the

following     three       claims        against    all    defendants         under     North

Carolina    law:       (1)     wrongful     discharge         in   violation      of   North

Carolina    public       policy,     as    stated    in       North   Carolina       General

Statute § 143-422.2, because she rebuffed Sheriff Shook’s sexual

advances;     (2)       common     law    negligent       infliction        of   emotional

distress; and (3) common law intentional infliction of emotional

distress.        In     her    fourth     state   law    claim,       Plaintiff      alleged

common law negligent supervision and retention of Sheriff Shook

by Watauga County.

     Sheriff           Shook     counterclaimed           against         Plaintiff       for

defamation.            Plaintiff    then     filed       an    Amended      Complaint     on

December    12,       2006,     substituting       Western         Surety   Company,      the

surety on Sheriff Shook’s official bond obtained pursuant to

North Carolina General Statute § 162-8, for John Doe Surety as a

defendant.



                                           - 7 -
        After    the   close        of     discovery,         Sheriff    Shook,        Watauga

County,    and    Western         Surety     Company         (collectively       Defendants)

moved for summary judgment on all claims.                           Plaintiff moved for

summary judgment with respect to Sheriff Shook’s counterclaim

for   defamation.           The    magistrate       judge       first    determined        that

Plaintiff fell within Title VII’s exclusion of protection for

“any person chosen . . . to be on [the] personal staff” of “any

person    elected      to    public        office       in    any   State    or    political

subdivision of any State by the qualified voters thereof . . .

.”    42 U.S.C. § 2000e(f).                On this basis, the magistrate judge

granted summary judgment in favor of Defendants with respect to

Plaintiff’s Title VII and § 1983 claims and dismissed, for lack

of subject matter jurisdiction, such claims without prejudice to

Plaintiff filing a claim with the Equal Employment Opportunity

Commission       (EEOC)     based     upon    the       same    allegations       under     the

Government       Employee         Rights     Act    of       1991   (GERA),       42     U.S.C.

§ 2000e-16a et seq.               The magistrate judge also granted summary

judgment    in    favor     of     Defendants       with       respect      to   Plaintiff’s

North Carolina common law claims alleging negligent infliction

of emotional distress and wrongful discharge in violation of

North    Carolina      public       policy,        as    stated     in    North        Carolina

General Statute § 143-422.2, because she would not accede to the

sexual advances of Sheriff Shook, and dismissed such claims with

prejudice.         Moreover,        the     magistrate         judge     granted       summary

                                            - 8 -
judgment in favor of Watauga County with respect to Plaintiff’s

claim alleging negligent supervision and retention and dismissed

such   claim    with   prejudice.         Finally,    the   magistrate     judge

dismissed Plaintiff’s claim alleging intentional infliction of

emotional      distress    and    Sheriff        Shook’s    counterclaim    for

defamation without prejudice to their respective abilities to

refile such claims in state court in accordance with 28 U.S.C.

§ 1367(c)(3).

       Plaintiff timely noted the present appeal challenging the

adverse dispositions of her Title VII claim, § 1983 claim, North

Carolina    public     policy    claim,    and     negligent   infliction    of

emotional distress claim.        We address each claim in turn.



                                     II.

       We review the grant of summary judgment de novo, drawing

all reasonable inferences in favor of Plaintiff, the non-moving

party.     Hill, 354 F.3d at 283.         Summary judgment is appropriate

“if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment

as a matter of law.”      Fed. R. Civ. P. 56(c).




                                    - 9 -
                                         III.

       Plaintiff    first     contends        the   magistrate     judge     erred    in

determining      that   she     fell     under      Title   VII’s        exclusion    of

protection for the personal staff of an elected official, and

therefore,      reversibly     erred     by    granting     summary       judgment    in

favor of Defendants with respect to her Title VII claim and her

§ 1983 claim and by dismissing such claims for lack of subject

matter jurisdiction.           While we agree with Plaintiff that the

magistrate judge erroneously held that the court lacked subject

matter    jurisdiction        over     Plaintiff’s       Title     VII    and     § 1983

claims, we hold that such error was harmless and affirm the

judgment on these claims.

       Title VII defines the term “employee,” in relevant part,

as:

       an individual employed by an employer, except that the
       term “employee” shall not include any person elected
       to public office in any State or political subdivision
       of any State by the qualified voters thereof, or any
       person chosen by such officer to be on such officer’s
       personal staff . . . .

42    U.S.C.   § 2000e(f)     (emphasis        added).      “The   reach     of    Title

VII’s personal staff exclusion is a question of federal, not

state, law.”       Cromer v. Brown, 88 F.3d 1315, 1322 (4th Cir.

1996).     In    determining     whether        Plaintiff    falls       within    Title

VII’s personal staff exclusion, “[a] fact-specific examination

of [Plaintiff’s] role is what is required,” and “[i]n general,


                                        - 10 -
the examination should focus on whether the employee worked in

an   intimate      and       sensitive      position        of    trust,     close    to     the

elected official.”             Id. at 1323.              See also id. (setting forth

non-rigid       list    of    factors       for   consideration         in    fact-specific

examination of plaintiff’s role).

      Here, a fact-specific examination of Plaintiff’s role as

Chief    Deputy    Sheriff,          focusing       on    whether      she   worked     in    an

intimate    and        sensitive      position       of     trust,     close    to    Sheriff

Shook,    results       in    our    conclusion          that     Plaintiff    falls      under

Title VII’s exclusion of protection for the personal staff of an

elected official.            As Chief Deputy Sheriff under Sheriff Shook,

Plaintiff was second in command at the Watauga County Sheriff’s

Office, wielded the authority to issue commands and directives

in the name of Sheriff Shook, and served as the Acting Sheriff

in Sheriff Shook’s absence.                  Moreover, as Chief Deputy Sheriff,

Plaintiff was the policy administrator for the Watauga County

Sheriff’s       Office,       requiring       her    to     be     heavily     involved      in

drafting    policy       and    in    making      sure      that      such   policies      were

carried out.           Plaintiff also was responsible for handling all

internal investigations; drafting and administering the office

budget;    and     chairing         the   office         hiring    committee.         Sheriff

Shook,    who    had     the    sole      power     to     appoint     Plaintiff      to     the

position of Chief Deputy Sheriff, also had the sole power to

demote     or     discharge          her.         Under         the    totality      of      the

                                            - 11 -
circumstances         just    outlined,     Plaintiff’s         position        as     Chief

Deputy Sheriff was quintessentially an “intimate and sensitive

position of trust, close to [Sheriff Shook].”                          Id.      As such,

Plaintiff      is   excluded     from    coverage       under    Title    VII    and    her

Title VII claim fails as a matter of law.

       We note that the crux of Plaintiff’s argument below and on

appeal is that after several months in her position as Chief

Deputy Sheriff, she was Chief Deputy Sheriff on paper only and

that Sheriff Shook relied on her more as a friend with whom he

would    confide      personal    feelings,       rather       than    professionally,

based    on    their       respective     positions.            We    agree     with     the

magistrate judge’s reasoning in rejecting this argument:                               “such

an argument, if accepted, would eliminate the exclusion to any

member of any elected official’s personal staff inasmuch as a

loss    of    trust   and     intimacy    would    be    the    forerunner       of     most

terminations.”        (J.A. 220).

       Turning to the subject matter jurisdiction issue, we hold

that application of Title VII’s personal staff exclusion does

not present a lack of subject matter jurisdiction issue.                                See

Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (holding that

Title    VII’s      provision    limiting    its    application          to   businesses

with fifteen or more employees was not jurisdictional, on the

basis that “when Congress does not rank a statutory limitation

on     coverage       as     jurisdictional,       courts        should       treat     the

                                         - 12 -
restriction as nonjurisdictional in character”).                         Rather, at the

summary judgment stage, it presents the issue of whether a Title

VII plaintiff can prevail as a matter of law.                        Cromer, 88 F.3d

at 1324.      Here, Plaintiff’s § 1983 claim also fails as a matter

of   law,    because    Plaintiff        based    such   claim      solely       upon    her

ability to prevail upon her Title VII claim.                         Accordingly, we

affirm the magistrate judge’s entry of summary judgment in favor

of Defendants with respect to Plaintiff’s Title VII and § 1983

claims, and his dismissal of such claims without prejudice to

Plaintiff filing a claim under the GERA with the EEOC, based

upon the same allegations.



                                           IV.

      Plaintiff       next     contends    the     magistrate       judge      committed

reversible      error     by    granting      summary    judgment         in     favor    of

Defendants with respect to her North Carolina state law claim

alleging     that   she      was   wrongfully      discharged       in    violation       of

North    Carolina      public      policy,    as    stated     in    North       Carolina

General Statute § 143-422.2, because she would not accede to the

sexual advances of Sheriff Shook.                   We agree with Plaintiff’s

contention     with     respect     to    Sheriff    Shook,      sued     in     both    his

individual and official capacities, and with respect to Western

Surety      Company.         However,    we   affirm     the     grant      of    summary



                                         - 13 -
judgment         in    favor    of    Watauga    County,       albeit      on    a   different

ground than that upon which the magistrate judge relied.

        According to North Carolina General Statute § 143-422.2,

known       as    North        Carolina’s       Equal     Employment        Practices         Act

(NCEEPA):

        It is the public policy of this State to protect and
        safeguard the right and opportunity of all persons to
        seek,    obtain    and    hold   employment    without
        discrimination or abridgement on account of race,
        religion, color, national origin, age, sex or handicap
        by employers which regularly employ 15 or more
        employees.

Id. 3

        In Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir.

2000), we held that there is no private right of action under

NCEEPA for sexual harassment.                     Id. at 247.           Subsequently, in

McLean      v.    Patten       Communities,      Inc.,        332   F.3d   714       (4th    Cir.

2003), we held that a plaintiff does have a private cause of

action under North Carolina common law for violation of public

policy,      specifically            NCEEPA,    when     an    employee     is       discharged

because she has refused to accede to the sexual advances of her

supervisor.            Id.     722.     The distinguishing feature between the

claim disallowed in Smith and the claim allowed in McLean is

that the claim allowed in McLean alleged a wrongful discharge

because      of       the    plaintiff’s       refusal    of    sexual      favors      to    her

        3
       Defendants do not dispute that Watauga County Sheriff’s
Office has over fifteen employees.


                                            - 14 -
supervisor, while the claim disallowed in Smith did not allege

wrongful discharge, just sexual harassment.

        Here, the magistrate judge relied upon Smith in granting

Defendants’        motion     for     summary       judgment      with      respect   to

Plaintiff’s North Carolina public policy claim, with no mention

of McLean.         Based upon McLean, we:               (1) vacate the judgment

below     to     the     extent   the   magistrate        judge      granted    summary

judgment in favor of Sheriff Shook, sued in both his individual

and   official         capacities,    and     Western    Surety      with   respect   to

Plaintiff’s claim alleging wrongful discharge in violation of

North     Carolina       public     policy,    as    stated     in    North    Carolina

General        Statute    §   143-422.2,       because    she     rebuffed      Sheriff

Shook’s sexual advances and to the extent the magistrate judge

dismissed such claim with prejudice; and (2) remand for further

proceedings consistent with this opinion. 4

      We affirm the judgment below in favor of Watauga County

with respect to Plaintiff’s North Carolina public policy claim

on the basis that, under North Carolina law, Sheriff Shook, and


      4
        We express no opinion on Sheriff Shook’s claim to
governmental immunity in his official capacity, which argument
the magistrate judge did not reach below.   We also express no
opinion on Western Surety Company’s argument that, although
Plaintiff named it as a defendant in her Amended Complaint, she
nevertheless failed to assert a cause of action against it
pursuant to North Carolina General Statute § 58-76-5.       The
record on appeal does not disclose whether Western Surety
Company raised this argument below.


                                        - 15 -
not Watauga County, had exclusive responsibility for discharging

Plaintiff.        Knight v. Vernon, 214 F.3d 544, 552-53 (4th Cir.

2000) (“Although the county board of commissioners may fix the

number of salaried employees within the sheriff’s office, the

sheriff ‘has the exclusive right’ under N.C. Gen. Stat. § 153A-

103 (1998) ‘to hire, discharge, and supervise the employees in

his office.’         North Carolina courts interpret this statute to

preclude     county        liability    for    personnel      decisions   made   by

sheriffs.”).



                                          V.

      Lastly,        Plaintiff     argues      that     the    magistrate     judge

committed reversible error by entering summary judgment in favor

of   Defendants       with    respect    to    her    claim   alleging    negligent

infliction      of    emotional    distress.          Plaintiff’s    argument    is

without merit.

      A   claim      for    negligent    infliction      of   emotional    distress

under North Carolina common law has three elements:                         (1) the

defendant engaged in negligent conduct; (2) that such negligent

conduct would cause the plaintiff severe emotional distress was

foreseeable to the defendant; and (3) the negligent conduct, in

fact, caused severe emotional distress.                  Holleman v. Aiken, 668

S.E.2d 579, 591 (N.C. Ct. App. 2008).                      The magistrate judge

granted summary judgment in favor of Defendants with respect to

                                        - 16 -
Plaintiff’s negligent infliction of emotional distress claim on

the following basis:

     In this case, the only evidence plaintiff has to
     support this claim is the same evidence giving rise to
     her claim for intentional infliction of emotional
     distress.   Plaintiff simply has alleged no negligent
     acts on the part of any defendant and has provided no
     evidence of any act of negligence.

(J.A. 227).        After reviewing the record on appeal, we completely

agree    with     the   magistrate      judge’s     analysis      of    this    claim.

Accordingly, we affirm the magistrate judge’s grant of summary

judgment    in     favor   of   Defendants       with   respect    to       Plaintiff’s

negligent        infliction     of    emotional     distress      claim       and    the

dismissal of such claim with prejudice.



                                           VI.

     In summary, we: (1) affirm entry of summary judgment in

favor of Defendants with respect to Plaintiff’s Title VII claim,

but note that the magistrate judge committed harmless error when

he held the court lacked subject matter jurisdiction over such

claim;     (2)    affirm      entry   of    summary     judgment       in    favor   of

Defendants with respect to Plaintiff’s § 1983 claim, but note

that the magistrate judge committed harmless error when he held

the court lacked subject matter jurisdiction over such claim;

(3) affirm entry of summary judgment in favor of Watauga County

with respect to Plaintiff’s North Carolina public policy claim;


                                       - 17 -
(4) vacate the entry of summary judgment in favor of Sheriff

Shook and Western Surety Company with respect to Plaintiff’s

North   Carolina     public     policy    claim      and   remand      for   further

proceedings consistent with this opinion; and (5) affirm entry

of   summary   judgment    in    favor    of    Defendants      with    respect    to

Plaintiff’s    negligent      infliction       of   emotional    distress     claim.

We note that the magistrate judge remains free on remand to

dismiss,   without    prejudice,       Plaintiff’s      North    Carolina     public

policy claim, pursuant to 28 U.S.C. § 1367(c)(3).                       We dispense

with oral argument because the facts and legal contentions are

adequately     presented   in    the     materials     before     the    court    and

argument would not aid the decisional process.



                                                                AFFIRMED IN PART,
                                                                 VACATED IN PART,
                                                                     AND REMANDED




                                    - 18 -
