Brown v. Greene

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

NO. 7:23-CV-1177-FL

CLEMENTINE BROWN, )

)

Plaintiff, )

)

v. )

)

STEADMAN JODY GREENE in his )

individual capacity; WILLIAM ROGERS in ) ORDER

his official capacity as Columbus County )

Sheriff; and WESTERN SURETY )

COMPANY in its capacity as Surety on the )

Official Bond of the Sheriff of Columbus )

County, )

)

Defendants. )

This matter is before the court upon motion to dismiss by defendant Steadman Jody Greene

(“Greene”) (DE 15). The motion has been briefed fully, and in this posture the issues raised are

ripe for ruling. For the following reasons, the motion is denied.

STATEMENT OF THE CASE

Plaintiff, who is a former employee of the Columbus County Sheriff, began this

employment discrimination suit against defendant Greene in his individual capacity as the former

Columbus County Sheriff, along with defendant William Rogers (“Rogers”) in his official capacity

as current Columbus County Sheriff, and Western Surety Company (“Western”), its surety.

Plaintiff brings claims for race discrimination under 42 U.S.C. §§ 1981 and 1983, for wrongful

discharge in violation of North Carolina Public Policy, and for violation of the North Carolina

Constitution as to defendant Rogers in his official capacity. Plaintiff seeks compensatory and

punitive damages, as well as declaratory relief, interest, fees, and costs.

Defendant Greene filed the instant motion seeking dismissal of all claims against him for

failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil

Procedure 12(b)(6). Plaintiff responded in opposition and defendant Greene replied. In the

meantime, defendants Rogers and Western filed an answer, and the court entered a case

management order setting a deadline for discovery October 1, 2024.

STATEMENT OF FACTS

The facts alleged in plaintiff’s complaint are as follows. Plaintiff “is a Black woman,”

who was “hired by the Columbus County Sherriff’s Office as a detention officer in 1998.” (Compl.

¶¶ 2, 10). “She was promoted several times throughout her years of service and held positions as

a corporal, sergeant, and lieutenant.” (Id. ¶ 11). “In 2010, [plaintiff] was promoted to Captain

over the Columbus County Detention Center.” (Id.). “In 2014, Columbus County elected its first

Black sheriff, Lewis Hatcher,” (“Hatcher”), and plaintiff “served as Captain of the Detention

Center under Sheriff Hatcher.” (Id.).

“Brown’s performance as an officer for the Columbus County Sheriff’s Office has always

been exemplary.” (Id. ¶ 12). “In 2018, Defendant Greene was elected as Columbus County Sheriff

in an election against Hatcher.” (Id. ¶ 13). “[H]e was sworn into office on December 3, 2018.”

(Id.). “At the time of Greene’s installment as Sheriff, [plaintiff] was on medical leave from work,”

and she “returned to work in January 2019.” (Id. ¶ 14). Plaintiff “was the only Black woman and

one of two Black employees on Greene’s command staff.” (Id.).

“Shortly after she returned to work, [defendant] Greene removed [plaintiff] from her

position as Captain.” (Id. ¶ 15). “Greene told [plaintiff] that she was being demoted and not

terminated because ‘unfortunately, he hadn’t heard nothing but good things about her.’” (Id.).

According to the complaint, “Greene wanted to fire [plaintiff] because of her race, and began

looking for false, race-neutral excuses that could provide him pretext for her termination.” (Id.).

Defendant Greene informed plaintiff that “another employee, Dawn Battle [‘Battle’],

would replace her as Captain of the Columbus County Detention Center.” (Id. ¶ 16). “Battle, a

white woman, was far less qualified for the job than Brown, who had held the position of Captain

for nearly ten years.” (Id.).

“In early 2019, [defendant] Greene was suspended from office pending the resolution of

challenges to his election.” (Id. ¶ 18). “Jason Soles [‘Soles’], then-Captain of the Columbus

County Sheriff’s Office Investigations Division, assumed the duties of Sheriff but was never sworn

into office.” (Id.).

“During his suspension, Greene called Soles on the phone,” and he allegedly “made highly

offensive and racist remarks during the call with Soles.” (Id. ¶ 19). “He also discussed firing

Black employees at the Sheriff’s Office because of their race.” (Id.). “Soles recorded a portion

of the call.” (Id.). According to the complaint, “Greene’s recorded statements from the call include

the following:”

(a) “I’m sick of it. I’m sick of these Black bastards. I’m gonna clean house and be

done with it. And we’ll start from there.”

(b) “Tomorrow’s gonna be a new f***ing day. I’m still the motherf***ing sheriff,

and I’ll go up and fire every god**** [inaudible]. F*** them Black bastards. They

think I’m scared? They’re stupid. I just don’t know what else to do with it. So it’s

just time to clean them out.”

(c) “Every Black that I know, you need to fire him to start with, he’s a snake!”

(Id. ¶ 19).1 “Around the time of his phone call with Soles, Greene fired Melvin Campbell

[‘Campbell’], a Black employee and sergeant at the Columbus County Sheriff’s Office.” (Id. ¶

20). “Campbell was not given any explanation for his termination,” and “[i]nstead, he was simply

told that ‘his services were no longer needed.’” (Id.).

Plaintiff “was concerned that Greene was looking for a pretextual reason to terminate her

employment because of her race.” (Id. ¶ 21). In July 2020, plaintiff was “working as a detention

officer in the Columbus County courthouse.” (Id. ¶ 23). On July 22, 2020, after her shift, plaintiff

purchased some items at a Walmart, but “mistakenly forgot to scan several bags of pecans.” (Id.

¶ 25). She realized her mistake, returned to the store, and paid for the pecans. “Out of an

abundance of caution, [plaintiff] decided to report the incident to the sergeant on duty at the

courthouse,” who told her she “had nothing to worry about.” (Id. ¶ 28).

According to the complaint, “Greene falsely claimed the pecan incident constituted

[plaintiff] engaging in conduct unbecoming an officer.” (Id. ¶ 35). “On July 30, 2020, Defendant

Greene terminated [plaintiff’s] employment” and “did not provide a rationale for the termination.”

(Id.). Plaintiff “had done nothing that warranted discipline, let alone termination.” (Id.).

“Sometime after terminating [plaintiff], Greene demoted [Jeremy] Barber—the only Black man

on the command staff—from his position as a lieutenant in the Investigations Division to a deputy

in the Civil Division.” (Id. ¶ 37).

The State of North Carolina filed a “removal petition” against defendant Greene on October

21, 2022, which, according to the complaint, alleged that defendant Greene “personally, and

through the direction of those under his command, engaged in racial profiling of Columbus County

1 For purposes of the instant analysis, the court has replaced portions of offensive terms in the quoted text with

asterisks.

Sheriff’s Office employees.” (Id. ¶ 41). “On October 24, 2022, [defendant] Greene appeared

before the Superior Court and resigned from his position as Sheriff.” (Id. ¶ 42). “Columbus

County commissioners appointed [d]efendant Rogers as Sheriff following Greene’s resignation.”

(Id. ¶ 43). “In or around December 2022, Rogers promoted Jerome McMillan [“McMillan”], a

Black man, to the position of Chief Deputy.” (Id.). Defendant Greene was, however, reelected as

Sheriff of Columbus County in November 2022, and was sworn into office December 29, 2022.

Shortly thereafter, defendant Greene demoted McMillan from the position of Chief Deputy.

On December 29, 2022, the State filed a second petition for defendant Greene’s removal

with the Columbus County Superior Court, including the same allegations as the first petition. “On

January 4, 2023, Greene again appeared before the Superior Court for a hearing on the State’s

second petition for his removal.” (Id. ¶ 46). “Greene again resigned from office at the outset of

the hearing.” (Id.). Defendant “Rogers was again appointed as Sheriff of Columbus County and

sworn into office on or around January 5, 2023.” (Id. ¶ 47).

COURT’S DISCUSSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).2

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

2 Throughout this order, internal quotation marks and citations are omitted unless otherwise specified.

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

B. Analysis

1. Section 1981 and 1983 Claims

Defendant Greene argues that the factual allegations in the complaint are insufficient to

state a claim for race-based employment discrimination under federal law against him. The court

disagrees.

To state a race discrimination claim under 42 U.S.C. § 1981, a plaintiff must plead facts

supporting an inference that “but for race, [plaintiff] would not have suffered the loss of a legally

protected right.” Comcast Corp. v. Nat’l Ass’n of African-American Owned Media, 140 S. Ct.

1009, 1019 (2020). “[W]hen suit is brought against a state actor, § 1983 is the exclusive federal

remedy for violation of the rights guaranteed in § 1981.” Dennis v. Cnty. of Fairfax, 55 F.3d 151,

156 (4th Cir. 1995). For purposes of the instant analysis, “the elements required to establish such

a case [of race discrimination] are the same under” §§ 1981 and 1983, and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”). Love-Lane v. Martin, 355 F.3d 766,

786 (4th Cir. 2004).

“[A]n employment discrimination plaintiff need not plead a prima facie case of

discrimination to survive a motion to dismiss.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th

Cir. 2020). Instead, such a plaintiff “is required to allege facts to satisfy the elements of a cause

of action created by th[e] statute.” Id. This means that a complaint’s allegations must “establish

a plausible basis for believing that race was the true basis for the adverse employment action.”

McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th

Cir. 2015). The court’s “inquiry is whether [the plaintiff] alleges facts that plausibly state a

violation . . . above a speculative level.” Bing, 959 F.3d at 616.

Plaintiff’s complaint meets this pleading standard for the federal discrimination claims

against defendant Greene. A plausible inference “that race was the true basis for the adverse

employment action” is drawn from a combination of allegations in the complaint. McCleary-Evans

v. Maryland Dep’t of Transp., 780 F.3d at 585. In particular, plaintiff alleges that soon after

defendant Greene started in January 2019, plaintiff, as “the only Black woman and one of two

Black employees on Greene’s command staff,” was demoted without explanation, and replaced in

her position by a white woman who “was far less qualified for the job.” (Compl. ¶¶ 14, 16). Then,

in early 2019, defendant Greene allegedly “discussed firing Black employees at the Sheriff’s

Office because of their race.” (Id. ¶ 19). He allegedly stated he was “sick of these Black bastards,”

and he stated his intention to “clean house.” (Id.). He also stated his intention to “fire every

goddamn [inaudible],” and to “F*** them Black bastards,” and “[e]very Black that I know, you

need to fire him,” all giving rise to an inference, viewing the complaint in light most favorable to

plaintiff, that defendant Greene then had the stated intention to fire each Black employee, including

plaintiff, because of their race. Thereafter, in July 2020, defendant Greene fired plaintiff even

though she “had done nothing that warranted discipline, let alone termination.” (Id. ¶ 35). He also

fired Campbell and “demoted Barber – the only Black man on the command staff.” (Id. ¶ 37).

The combination of these alleged circumstances are sufficient to state a claim for race

discrimination.

Defendant Greene argues that the alleged “derogatory comments” he allegedly made in

2019 are too separated in time from plaintiff’s termination in 2020 to give rise to an inference of

discrimination in plaintiff’s termination, relying upon Alberti v. Rector & Visitors of the Univ. of

Virginia, 65 F.4th 151, 155 (4th Cir. 2023). (Def’s Mem. (DE 16) at 7). However, this argument

is premised on a limited view of the alleged facts and does not draw inferences in plaintiff’s favor

as the court must, at this stage of the case. The instant complaint includes not only allegations of

“derogatory comments” by a supervisor, but also alleges express intentions by defendant Greene,

as employer, to “fire every god**** . . . Black” in his office, coupled with additional racially

offensive and derogatory comments. (Compl. ¶ 19).

Alberti is inapposite because of the differences between the facts alleged in the instant

case and those alleged in Alberti. There, a student in a research assistant position at the University

of Virginia alleged his “supervisor discriminated against him because he was a Swiss national.”

65 F.4th at 153. He claimed that when “he reported the incidents of alleged discrimination—

disparaging comments from his supervisor—to the school . . . his supervisor retaliated by giving

him bad grades” and dismissing him. Id. The allegedly “negative comments” began in 2016, four

years before he was dismissed, and included remarks such as “he did not speak the correct German

language because it is the German used by the Swiss,” and after the plaintiff brought Swiss

chocolates as a thank you gift, his supervisor said “at least, the Swiss are able to manufacture

chocolate.” Id. In 2018, he said “the Swiss are ‘nationalists’ and ‘hunters’ who must ‘defend their

country,’” and that “grocery stores in Switzerland don’t provide good salads and veggies.” Id. at

153-154.

The allegations in the instant case are categorically different in nature and degree from

those in Alberti, rendering comparison to Alberti inapt, for several reasons. First, where Alberti

concerned the inferences that can be drawn from “derogatory comments,” Id. at 155, the instant

complaint alleges not just derogatory comments by a supervisor but the employer’s express

statements of an intent to fire Blacks. (Compl. ¶ 19). Second, the alleged statements in the instant

case are also more overtly tied to race, using profanity and offensive slurs, whereas those in Alberti

are not. Indeed the court in Alberti “question[ed] whether comments about bad salads or

vegetables, predispositions to kidney stones and hunting and defending their country are even the

sort that give rise to Title VII liability.” Id. at 156 n. 4. Third, the derogatory comments in Alberti

took place over a more remote span of time than here. Finally, plaintiff here alleges intervening

events such as her demotion in favor of a less qualified white woman, as well as firing of Campbell,

and demotion of Barber, further giving rise to a “plausible basis for believing that race was the

true basis for the adverse employment action.” McCleary-Evans, 780 F.3d at 585. In sum, Alberti

is inapposite.

Defendant Greene argues that adverse employment actions against Campbell and Barber

cannot give rise to an inference of discrimination, suggesting they are not “valid comparator[s].”

(Def’s Mem. (DE 16) at 8). This argument is unavailing. For purposes of the instant analysis, the

court does not consider Campbell and Barber “comparators” in order to establish a claim of race

discrimination. Rather, the alleged adverse actions against Campbell and Barber, as described in

the complaint, provide additional circumstances giving rise to a plausible inference, when coupled

with the quoted statements by defendant Greene in the complaint, of discriminatory intent. See

Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“This Court may infer

discriminatory intent from evidence of a general pattern of racial discrimination in the practices of

a defendant.”).

Defendant Greene suggests that allegations about employment actions against Campbell

and Barber are too removed in time and not probative under the alleged circumstances, especially

where “the practice of newly elected sheriffs replacing deputies is no secret.” (Def’s Reply (DE

21) at 5) (quoting Jenkins v. Medford, 1:95cv126-T, 1995 U.S. Dist. LEXIS 21521, at *13-14

(W.D.N.C. Nov. 27, 1995)). This suggestion, however, relies upon drawing inferences from the

facts in favor of defendant Greene, as well as facts not alleged in the complaint, rather than drawing

inferences from the allegations in favor of plaintiff as the court must do at this juncture. See Nemet

Chevrolet, Ltd., 591 F.3d at 255. In this case, where plaintiff alleges defendant Greene made

statements about his intentions to fire “every Black” employee, (Compl. ¶ 19), allegations of

employment actions against Campbell and Barber support a plausible inference of race

discrimination in plaintiff’s termination.

Defendant Greene also contends that allegations about separate proceedings brought in

state court against defendant Greene “are not integral to the complaint and should not be

considered.” (Def’s Mem. (DE 16) at 9). This argument is beside the point, however, because the

court does not rely upon plaintiff’s allegations regarding state court proceedings to hold that

plaintiff has stated a claim for race discrimination. The court includes plaintiff’s allegations about

the state court proceedings to provide context to the conclusion of defendant Greene’s employment

as sheriff. The court leaves for another day, upon a more complete record, determination of the

relevance and significance of any allegations or charges brought against defendant Greene in other

proceedings.

Defendant Greene argues he is intitled to qualified immunity, suggesting that “[n]o

controlling authority supports the argument that racially derogatory comments, made 12 months

prior to the adverse employment actions and in connection with an unrelated event, give rise to

an[] inference of discrimination.” (Def’s Mem. (DE 16) at 12). As discussed above, however,

defendant Greene’s argument is based upon incorrect factual premises. The complaint does not

allege merely racially derogatory comments or connection to an “unrelated event.” (Id.). Instead,

defendant Greene’s statements reflect his intention to fire Blacks and it is plausible to infer such

statements are connected to plaintiff’s termination. Drawing inferences in plaintiff’s favor, it is

“clearly established” that plaintiff has “allege[d] facts to satisfy the elements of a cause of action

created by th[e] statute.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); Bing, 959 F.3d at 616.

Therefore defendant Greene is not entitled to dismissal on the basis of qualified immunity.

In sum, plaintiff has stated a claim for race discrimination under §§ 1981 and 1983 against

defendant Greene. Accordingly, defendant Greene’s motion to dismiss in this part is denied.

2. Wrongful Discharge in Violation of Public Policy

Defendant Greene argues that plaintiff’s wrongful discharge claim must be dismissed

because North Carolina law does not authorize an individual capacity wrongful discharge claim

against a sheriff. This argument presents a close and unsettled question of interpretation of North

Carolina law. At this juncture, dismissal of plaintiff’s claim on this basis is not warranted.

North Carolina General Statute § 143-422.2, also known as the North Carolina Equal

Employment Practices Act (“NCEEPA”), provides:

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.

N.C. Gen. Stat. § 143-422.2(a); Smith v. First Union Nat. Bank, 202 F.3d 234, 247 (4th Cir. 2000).

While “[n]either the North Carolina Supreme Court nor the North Carolina Court of Appeals has

recognized a private cause of action under NCEEPA,” Smith, 202 F.3d at 247, “this statute does

apply to common law wrongful discharge claims or in connection with other specific statutory

remedies.” McLean v. Patten Cmtys., Inc., 332 F.3d 714, 720 (4th Cir. 2003) (emphasis added);

see Amos v. Oakdale Knitting Co., 331 N.C. 348, 353 (1992) (“At the very least public policy is

violated when an employee is fired in contravention of express policy declarations contained in

the North Carolina General Statutes.”).

Under North Carolina law, a “sheriff has singular authority over his or her deputies and

employees and is responsible for their actions.” Young v. Bailey, 368 N.C. 665, 669 (2016).

“[E]ach sheriff has the exclusive right to hire, discharge, and supervise the employees in his

office.” Id. Accordingly, a sheriff is the proper defendant in a wrongful discharge action brought

by a sheriff’s office employment, provided the claim is based upon “acts [that] violate the public

policy of North Carolina.” Id. at 668.

The North Carolina Supreme Court has not addressed whether a sheriff in his or her

individual capacity and/or official capacity is the proper defendant in a common law wrongful

discharge action. The North Carolina Court of Appeals, as well as the Fourth Circuit in an

unpublished decision, however, has held that such an action may be brought against a sheriff in

his individual capacity, depending on alleged circumstances.

In particular, in Phillips v. Gray, 163 N.C. App. 52, 57 (2004), the North Carolina Court

of Appeals recognized that “[s]overeign immunity does not shield public officials from personal

liability for any actions which may have been corrupt, malicious or perpetrated outside and beyond

the scope of official duties.” Id. at 57. Accordingly, the court reasoned, “sovereign immunity

does not bar [a] plaintiff’s claim against [a sheriff] in his individual capacity.” Id. Further, in that

case, the court held that a plaintiff “sufficiently evidenced [a] wrongful discharge claim against [a

sheriff defendant] individually, where the plaintiff was fired for cooperating with FBI agents

investigating a sheriff for “mismanagement of . . . marijuana.” Id.

In Townsend v. Shook, 323 F. App’x 245 (4th Cir. 2009), the Fourth Circuit vacated the

grant of “summary judgment in favor of [a sheriff], sued in both his individual and official

capacities . . . with respect to [a 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 [the sheriff’s] sexual advances.” Id. at 251 (emphasis added). In so holding, the court

“express[ed] no opinion on [the sheriff’s] claim to governmental immunity in his official

capacity,” but expressed no reservation on the claim against the sheriff in his individual capacity.

Id.

Thus, in light of Phillips and Townsend, defendant Greene’s motion to dismiss plaintiff’s

wrongful discharge claim is without merit. Defendant Greene urges the court to disregard Phillips

and Townsend because they are not controlling law. Nevertheless, this court “must follow the

decision of an intermediate state appellate court unless there is ‘persuasive data’ that the highest

court would decide differently.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir.

2013). Defendant Greene has not at this juncture presented any such persuasive data.

Defendant Greene argues that Phillips is inapposite because the public policy violation at

issue was not based upon NCEEPA, but rather the “public policy of this state that citizens

cooperate with law enforcement officials in the investigation of crimes.” (Def’s Reply (DE 21) at

7). Defendant Greene also suggests Phillips is inapposite because it “did not rely upon Title VII

analysis.” (Id.). Defendant Greene, however, conflates two issues addressed in Phillips, with the

first being whether the discharge was in violation of public policy, and the second being who is

the appropriate defendant, and in what capacity, for a common law wrongful discharge claim

against a sheriff. Phillips is beside the point on the first issue, because it is established otherwise

that a wrongful discharge in violation of public policy may be based upon race discrimination in

violation of § 143-422.2. See McLean, 332 F.3d at 721 (“[W]hen the record indicates . . . that

[plaintiff’s] separation may have been caused because of her race, . . . she has stated a cause of

action under the state law of North Carolina under § 143-422.2.”).

Defendant Greene likewise has not forth persuasive evidence that the North Carolina

Supreme Court would rely upon Title VII analysis in determining the issue of the proper defendant

in a common law wrongful discharge claim against a sheriff. For example, defendant Greene cites

White v. White, No. 5:19-CV-467-BO, 2021 WL 2345352 (E.D.N.C. June 8, 2021), for the

proposition that “in North Carolina, each county’s sheriff is an ‘employer’ within the meaning of

Title VII and must be named as a defendant in a Title VII suit,” and that “[t]he sheriff is liable,

however, in his official not his individual capacity.” Id. at *2. White, however, did not address a

common law claim for wrongful discharge premised upon NCEEPA, and it did not address Phillips

or Townsend. Defendant Greene also cites Wilson v. Nash Edgecombe Econ. Dev., Inc., No. 5:19-

CV-322-FL, 2020 WL 5594538 (E.D.N.C. Sept. 18, 2020) for the proposition that “[i]n

interpreting the NCEEPA, North Carolina courts are guided by federal case law developed

pursuant to Title VII.” Id. at * 8. Wilson, however, also does not address Phillips or Townsend

and it does not address a wrongful discharge claim against a sheriff.

Defendant Greene also argues that plaintiff’s NCEEPA claim fails for the same reasons as

plaintiff’s federal discrimination claims. Where the court has determined that defendant Greene

is not entitled to dismissal of plaintiff’s federal discrimination claims against him, this basis for

dismissal of the NCEEPA claim also fails as a matter of law. In sum, the court leaves for

determination on a more complete record whether plaintiff’s claims against defendant Greene are

viable.

CONCLUSION

For the forgoing reasons, defendant Greene’s motion to dismiss (DE 15) is DENIED.

SO ORDERED, this the 1st day of February, 2024.

( Apis W. FLANASAN

nited States District Judge

15