Shaw v. State of North Carolina

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:23-CV-624-FL

PAMELA TAYLOR SHAW, )

)

Plaintiff, )

)

v. )

)

STATE OF NORTH CAROLINA, NORTH )

CAROLINA DEPARTMENT OF ) ORDER

TRANSPORTATION, ERIC BOYETTE in )

his individual capacity, EBONY PITTMAN )

in her individual capacity, AMANDA )

OLIVE in her individual capacity, and )

TUNYA SMITH in her individual capacity, )

)

Defendants. )

This matter is before the court upon defendants’ motions to dismiss for lack of subject

matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). (DE 14, 16). The motions have been briefed fully, and in this posture the issues raised

are ripe for ruling. For the following reasons, defendants’ motions are granted in part and denied

in part.

STATEMENT OF THE CASE

Plaintiff began this employment discrimination and constitutional tort suit by filing

complaint in this court October 30, 2023. Plaintiff presents claims for violation of the Equal Pay

Act (“EPA”), sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), and retaliation in violation of the EPA and Title VII against the State of North Carolina (the

“state”) and the North Carolina Department of Transportation (“NCDOT”) (together, the “state

defendants”).

Plaintiff also sues defendants Eric Boyette (“Boyette”), Ebony Pittman (“Pittman”),

Amanda Olive (“Olive”), and Tunya Smith (“Smith”) (collectively, the “individual defendants”)

for violation of her rights under the First, Fifth, and Fourteenth Amendments to the United States

Constitution. Plaintiff seeks backpay, reinstatement or alternatively front-pay, liquidated and

compensatory damages, and costs and fees.

The state defendants filed the instant motion to dismiss plaintiff’s claims against them

November 21, 2023, relying upon two documents from the underlying administrative proceedings.

The individual defendants moved to dismiss plaintiff’s claims against them the same day.

STATEMENT OF FACTS

The facts alleged in the complaint are as follows. Defendants hired plaintiff November 2,

2019 as an “Agency HR Manager” to work in NCDOT’s Office of Civil Rights (“OCR”) as head

of the Equal Employment Opportunity Office (“EEOO”). (Compl. (DE 1) ¶¶ 12–13). Defendants

set plaintiff’s salary by assigning a grade based on experience, qualifications, and expertise. (Id.

¶ 14). Plaintiff alleges that she performed comparable work with the same duties and

responsibilities as three male human resources employees: 1) John Eley (“Eley”), an “Agency HR

Manager II (GN15),” who earned $101,615 per year; 2) Thomas Bridges, an “Agency HR Manager

II (GN15),” who earned $96,439 per year, and 3) Paul Boyles (“Boyles”), an “Agency HR

Manager II (GN15),” who earned $96,439 per year. (See id. ¶¶ 17–20). Plaintiff, head of the

EEOO section, earned $87,125 per year. (Id. ¶ 21).

On October 13, 2021, defendant Smith submitted a memorandum requesting a salary

increase for plaintiff, on grounds that “the [EEOO] Manager is a subject matter expert in her

field[,]” and to “establish equitable salary relationships amongst the OCR management staff.” (Id.

¶ 22). This memorandum listed the salaries of other “OCR management staff,” including: 1) Lisa

Wilson (“Wilson”), a “Program Manager I (GN15) [and] manager of the BOWD section,” who

earned $86,824 per year; 2) Mark Whisenant (“Whisenant”), “Title VI/ADA Manager, in a

Program Manager I (GN15) position,” who earned $94,087 per year; 3) Benny Sloan,

“Utilization/Compliance/DE Manager, in a program Manager I (GN15) position,” who earned

$94,087 per year, and 4) Timothy Moore (“Moore”), “OJT Manager, in a Program Manager I

(GN15) position,” who earned $91,792 per year. (Compl. ¶¶ 23–27). Defendants Smith and Olive

allegedly recognized that plaintiff’s duties were similar to Whisenant and Moore’s, because they

requested a salary increase for plaintiff up to $94,087 per year, and plaintiff’s reclassification to

“Human Resources Manager I.” (See id. ¶¶ 28, 32).

The Office of State Human Resources (“human resources office”) responded to Smith’s

request November 24, 2021. (Id. ¶ 32). The response stated that the office had reviewed the

request, the staff description for the positions supervised by plaintiff, information provided in a

November 17, 2021 meeting, comparable positions included in the “agency analyst notes,”

position descriptions for the current staff and three proposed human resources consultants, the

“Human Resources Manager Plaintiff and II positions in DOT” and the “Program Manager

Plaintiff” positions in the OCR. (See id. ¶ 33).

The human resources office denied Smith and plaintiff’s request on grounds that 1) the

comparable positions were more complex, with broader supervisory responsibilities and higher

level classifications; 2) the “DPS Human Resources Manager II over provides services for

approximately 23,000 state employees”; and 3) no changes in the position were identified. (Id. ¶

35). The response also recommended re-submission of the request once new positions were added

for plaintiff to supervise. (See id. ¶ 36).

At the time of the request, plaintiff supervised four employees; Moore supervised two,

Whisenant supervised four, Eley supervised none, and Boyles supervised four. (See id. ¶¶ 37–41).

NCDOT, Olive, and Smith made no efforts to submit any additional information to the state office

to rebut its conclusions. (Id. ¶ 42).

After learning of the denial of her request, plaintiff began to complain, which created

“enmity” between her and Smith. (Id. ¶ 45). On January 25, 2022, Smith instructed plaintiff to

issue formal discipline to another employee, Veronica Patterson (“Patterson”), for performance

that had occurred while Patterson was under Smith’s supervision. (Id. ¶ 48). Plaintiff believed

this order violated state human resources policies, and refused.

On February 4, 2022, plaintiff learned that Wilson, who was supervised by an employee

who answered to Smith, had been overheard making “derogatory statements about black males,”

and that these allegations had not been referred to the EEOO for investigation. (Id. ¶ 53). The

same day, Smith and plaintiff met with defendant Pittman, to whom Smith reported. At this

meeting, Smith voiced concerns that OCR employees were lodging complaints about Smith with

the EEOO team; plaintiff did not deny this. (See id. ¶¶ 57–58).

On February 5, 2022, Plaintiff submitted another memorandum requesting a

reclassification of her position, and an accompanying salary increase. (See id. ¶ 59). EEOO was

the only unit that did not receive increases for its employees during that legislative session’s budget

process. (Id. ¶ 69).

On February 8, 2022, Smith called plaintiff about Patterson; Smith again asked plaintiff to

issue written discipline to Patterson, and was “hostile” on the phone call. (Id. ¶ 61). Plaintiff again

refused to issue discipline. (Id. ¶ 62). The same day, Eley called plaintiff stating that Olive, the

“HR Director” wanted a copy of an unspecified EEOO policy. (Id. ¶ 63). Plaintiff unsuccessfully

contacted Smith, then reached out to defendant Pittman about the request. (Id. ¶ 64). Smith then

called plaintiff “furious and yelling” that plaintiff had called Pittman instead of waiting to hear

from her, and accused plaintiff of not following protocol. (Id. ¶ 65).

Smith contacted plaintiff March 14, 2022, “upset” that plaintiff’s section had produced a

report without Smith having read or vetted it. (See id. ¶¶ 113–14). Plaintiff confirmed with

Whisenant that plaintiff had not acted improperly. (See id. ¶ 115).

On April 21, 2022, plaintiff received an email from David Swalnick (“Swalnick”), about

an investigation he was conducting on allegations against plaintiff. (Id. ¶ 124). Swalnick stated

that Smith, Pittman, and two other employees had made these allegations. (See id. ¶ 127). Plaintiff

and Smith came back into contact, and plaintiff reminded Smith that Smith had declined to

investigate another employee’s emotional outburst in March 2022 against plaintiff. (Id. ¶ 130).

Smith responded by “talking loudly and interrupting” plaintiff, and saying plaintiff was “out of

line” for asking Swalnick questions about the investigations. (Id. ¶ 131). Plaintiff attempted to

leave her office but Smith followed her into the hallway, stating “Pam, you are standing in front

of me, staring plaintiff [sic] down, and I’m going to call security,” and that plaintiff was

“intimidating” her and “should leave”; finally, Smith called security. (See id.¶¶ 132–34). Later

that day, Smith called another employee into her office, appointed him as new EEOO manager,

and deactivated plaintiff’s badge and IT account. (Id. ¶ 137).

Plaintiff was told to report directly to Pittman while this incident was under investigation.

(Id. ¶ 142). Plaintiff provided her own version of the incident, under which Smith had followed

plaintiff out of the building while making “perplex[ing]” statements about intimidation. (See id.

¶ 143(e)–(j)). Plaintiff denied threatening or intimidating Smith. (Id. ¶ 143(l)).

Plaintiff was placed on investigatory leave from April 27, 2022 to May 26, 2022, at which

time she returned to work reporting directly to Pittman. (Id. ¶ 145) Plaintiff was not provided any

work, and no discipline was taken against Smith or other employees involved in the April 21

incident. (Id. ¶ 149). Plaintiff was never provided any notice or opportunity to be heard as to the

allegations against her, her reassignment to Pittman’s supervision, or her removal from position as

EEOO director. (Id. ¶ 150). Plaintiff was never returned to the EEOO, and decided she had no

choice but to retire. (Id. ¶ 151).

COURT’S DISCUSSION

A. Standard of Review

A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the plaintiff

bears the burden of showing that federal jurisdiction is appropriate when challenged by the

defendant. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.

Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either 1) assert the complaint fails

to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of

subject matter jurisdiction in fact, apart from the complaint. Bain, 697 F.2d at 1219. Where a

defendant raises a “facial challenge[] to standing that do[es] not dispute the jurisdictional facts

alleged in the complaint,” the court accepts “ the facts of the complaint as true as [the court] would

in context of a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018). 1

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.

1 Internal citations and quotation marks are omitted from all citations unless otherwise specified.

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

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

The state defendants move for dismissal on grounds that the state is not a proper party, and

that plaintiff fails to adequately plead her EPA and Title VII claims against them. The individual

defendants move separately to dismiss plaintiff’s § 1983 claims against them on the basis of

insufficient factual support or, alternatively, on grounds of qualified immunity. The court

addresses the motions sequentially.

1. State Defendants’ Motion

The state defendants argue that the state is not a proper party to this action, and that plaintiff

fails to plead sufficient facts to support her claims against NCDOT. The court disagrees with the

first contention, but agrees with the second in part.

a. State as Party

The state defendants argue that plaintiff’s claims against the state are duplicative of her

claims against NCDOT, and should be dismissed on that basis. (See State Defs’ Br. (DE 15) 8–

9). The court disagrees.

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

Specifically, the state defendants argue that the state was not plaintiff’s employer, as

required for liability under either Title VII or the EPA. (See id.). However, plaintiff pleads that

she was a state employee assigned to NCDOT’s OCR. (See Compl. ¶ 13). A Title VII plaintiff

may have more than one employer, and employer status should be construed liberally to effectuate

Title VII’s remedial purposes. See Butler v. Drive Automotive Indus. of Am., Inc., 793 F.3d 404,

409–10 (4th Cir. 2015). A nine-factor balancing test governs whether entities are joint employees,

see id. at 414, on which state defendants offer no argument. (See State Defs’ Br. 8–9).3

Defendants instead argue that the claims are duplicative because they seek to hold the state

and NCDOT liable for the same conduct. (State Defs’ Br. 8–9). But, as plaintiff points out,

NCDOT actually recommended that plaintiff’s salary be increased, which the state refused; these

claims therefore do not rest on the same conduct and are not duplicative. (See Pl’s Br. State Defs

(DE 27) 6). Further, plaintiff pleads that she was an employee of both the state and NCDOT.

(Compl. ¶¶ 8, 13–1). Given the liberal construction of employer status, see Butler, 793 F.3d at

409–10, these allegations are sufficient to plead joint employer status, particularly where the state

defendants make no arguments under Butler.

The court therefore concludes that this threshold challenge to plaintiff’s claims does not

succeed. Accordingly, that part of the state defendants’ motion to dismiss for lack of jurisdiction

is denied.

3 The Fourth Circuit has not expressly applied Butler to the EPA, but that case’s logic suggests that its test is

also applicable to the EPA; in addition, other federal courts of appeal have, at least implicitly, applied their respective

joint employer tests to EPA claims. See, e.g., Peppers v. Cobb Cnty., Ga., 835 F.3d 1289, 1298–1301 (11th Cir. 2016).

The court will therefore assume without deciding that Butler governs EPA claims.

b. EPA and Title VII Wage Claims

The state defendants move to dismiss plaintiff’s EPA and Title VII wage claims because,

among other reasons, plaintiff’s complaint fails to adequately identify appropriate comparators as

required. (State Defs’ Br. 11–13). The court agrees with this particular point.

As a threshold matter, plaintiff points out, correctly, that she need not establish the elements

of a McDonnell Douglas prima facie case to meet pleading standards, (Pl’s Br. State Defs 10–11);

however, she must still plead facts satisfying the elements of the cause of action created by the

EPA, in compliance with Iqbal. See Woods v. City of Greensboro, 855 F.3d 639, 647–48 (4th Cir.

2017).

The EPA prohibits wage discrimination on the basis of sex for equal work requiring equal

skill, effort, and responsibility, performed under similar working conditions. 29 U.S.C. §

206(d)(1). Plaintiff need not plead a prima facie case as set out in Spencer v. Va. State Univ., 919

F.3d 199, 203 (4th Cir. 2019). But under the plain terms of the statute, and as she recognizes in

her brief, she therefore still must identify comparators of the opposite sex who performed equal

work under similar conditions, who were paid more. (See Pl’s Br. State Defs 8); 29 U.S.C. §

206(d)(1).

Plaintiff fails to do so. The United States Court of Appeals for the Fourth Circuit has

cautioned that congress’s choice of the word “equal” in the EPA shows that jobs must be “virtually

identical,” and that jobs are not necessarily equal even if they require the same general duties and

have the same title. Wheatley v. Wicomico Cnty., Md., 390 F.3d 328, 333 (4th Cir. 2004).

Plaintiff’s complaint merely lists various other employees’ names, titles, salaries, and

number of employees supervised, while asserting in conclusory fashion that they and plaintiff

performed equal work. (See Compl. ¶¶ 17–21, 24–27, 37–41). Plaintiff argues that these named

employees’ work characteristics support her allegations alone, but she does not plead whether any

or all of these employees were included in her salary increase request, or if the state office made

its decision on any, all, or some combination of them. (Pl’s Br. State Defs 8–9; Compl. ¶¶ 33, 35–

36).

At bottom, plaintiff asserts that she performed equal work because her complaint uses those

magic words, and provides titles and lists which subordinates other employees supervised. While

the latter allegations create a closer question in the court’s view than the former, they do not allege

what any of these employees or plaintiff did, speak to qualifications or duties at all, or illuminate

whether any of the relevant employees engaged in comparable work; instead, they merely recount

respective numbers of subordinates without any further factual support. Indeed, that some named

employees had different titles than plaintiff suggests dissimilar work. (See Compl. ¶¶ 24–27).

This is insufficient to state a plausible claim under the EPA. See Wheatley, 390 F.3d at 333

Plaintiff points out that courts have recognized the burdens for this claim are not onerous.

See, e.g., Reardon v. Herring, 191 F. Supp. 3d 529, 548 (E.D. Va. 2016) (collecting cases in which

plaintiffs successfully pleaded EPA claims on relatively general allegations, but which had more

content than those here). But plaintiff’s failure to adequately identify any comparators dooms her

claim under the text of the EPA, even at this stage. See Wheatley, 390 F.3d at 333 (declining to

find positions equal on basis of titles and “routine duties”).

Next, plaintiff offers little argument on her Title VII wage discrimination claim, other than

to contend that this claim should survive because she has adequately alleged higher-paid male

comparators. (See Pl’s Br. State Defs 10). But the court has determined that plaintiff has not

identified male comparators who were paid more. The court therefore concludes that plaintiff has

not plausibly pleaded that any salary differential was due to sex, as Title VII requires. See 42

U.S.C. § 2000e-2(a); McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d

582, 585–86 (4th Cir. 2015). This argument cannot save her parallel Title VII claim.

The court therefore dismisses plaintiff’s EPA and Title VII wage discrimination claims,

for failure to state a claim upon which relief can be granted. The state defendants’ motion to

dismiss accordingly is granted in this part on this basis.

c. Title VII and EPA Retaliation

Plaintiff pleads retaliation under Title VII and the EPA, on the basis of her demotion and

allegedly forced resignation, and that defendants created a hostile work environment as a

retaliatory measure. The court concludes that plaintiff’s claims under the former theory may

proceed, but that her hostile work environment theory must be dismissed.

To state a claim for retaliation under Title VII or the EPA, a plaintiff must show that 1) she

engaged in protected activity; 2) her employer took adverse action; and 3) a causal relation exists

between the protected activity and the adverse employment action. See Noonan v. Consol. Shoe

Co., Inc., 84 F.4th 566, 574 (4th Cir. 2023).

Plaintiff characterizes her repeated requests for salary increases as protected activity, and

state defendants do not advance any argument on the first element, so the court focuses instead on

the latter two. (See State Defs’ Br. 15; Pl’s Br. State Defs 13).

Showing causation, even on the basis of temporal proximity alone, is not an onerous burden

at the pleading stage. See Strothers v. City of Laurel, Md., 895 F.3d 317, 335–36 (4th Cir. 2018).

Plaintiff adequately pleads causation at this stage because her alleged protected activity occurred

in January and February, 2022. (See Pl’s Br. State Defs 13; Compl. ¶¶ 45, 59). Plaintiff then

pleads that she was subjected to a retaliatory hostile work environment beginning in February,

2022 through April, 2022, then demoted and forced into retirement in April, 2022. (See Pl’s Br.

State Defs 12; Compl. ¶¶ 50, 72, 84, 124–135, 151). This timeline sufficiently alleges the

causation element at the pleadings stage. See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.

2003) (holding ten-week gap sufficient to support causation, even alone).

Viability of this claim therefore depends on whether plaintiff has adequately alleged an

adverse employment action. Plaintiff points to three adverse actions: 1) her removal from her

position as EEOO head; 2) her allegedly forced retirement; and 3) that defendants created a

retaliatory hostile work environment. The court examines each in turn.

First, the removal of plaintiff’s job title as head of the EEOO and allegedly forced

retirement unquestionably constituted an adverse employment action. (Compl. ¶¶ 141–42); e.g.,

Boone v. Goldin, 178 F.3d 253, 256–57 (4th Cir. 1999); Gaines v. Baltimore Police Dep’t, 657 F.

Supp. 3d 708, 737 (D. Md. 2023). State defendants argue that plaintiff’s retirement was voluntary

because she had already planned to retire in July, 2022 but plaintiff alleges that she was forced to

retire early. (See Compl. ¶¶ 148–51). The court therefore rejects this argument because it asks

the court to draw inferences against plaintiff at the pleading stage. Plaintiff’s retaliation claims

therefore survive as they rest upon these adverse actions.

However, plaintiff does not adequately plead a hostile work environment. Creating a

hostile work environment can constitute an adverse action under a retaliation claim. See Von

Gunten v. Maryland, 243 F.3d 848, 869–70 (4th Cir. 2001), overruled on other grounds by

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Fordyce v. Prince George’s Cnty.,

Md., 43 F. Supp. 3d 537, 552 (D. Md. 2014).

In turn, to plead a hostile work environment, plaintiff must show that harassment was 1)

unwelcome; 2) based on a protected characteristic, here sex; 3) sufficiently severe or pervasive to

alter the conditions of employment; and 4) imputable to the employer. EEOC v. Sunbelt Rentals,

Inc., 521 F.3d 306, 313 (4th Cir. 2008). The third element requires that the plaintiff subjectively

perceive the conduct as hostile or abusive, and that a reasonable person in the plaintiff’s position

would have perceived it as such. Id. at 315. The objective prong of this test is a “high bar”; Title

VII does not establish a “general civility code for the American workplace,” and does not reach

mere “rude treatment by coworkers,” “callous behavior by one’s superiors,” or “routine

difference[s] of opinion and personality conflict[s] with one’s supervisor[.]” Id. at 315–16.

State defendants argue that Smith’s conduct does not meet this high bar. (See State Defs’

Br. 15) (“Smith only reprimanded [p]laintiff verbally for a variety of workplace failings”). The

court agrees.

First, plaintiff does plead that she subjectively perceived Smith’s actions in Spring 2022 to

be abusive. (See Compl. ¶¶ 84, 140). But the pleaded conduct does not rise to the level of objective

abuse.

Plaintiff catalogues at great length personality conflicts, jealousies, and office politicking

before April, 2022. (See Compl. ¶¶ 46–123). But these incidents involved merely “rude treatment

by coworkers,” which does not suffice; for example, plaintiff points to Smith “irate[ly]

questioning” one of plaintiff’s decisions (Compl. ¶ 72), conflicts over issuing discipline to third

parties (id. ¶¶ 83–84), and that Smith contacted plaintiff another time “upset” about one of

plaintiff’s decisions (id. ¶ 113). These allegations might involve rude or unpleasant conduct, but

this showing is not sufficient. See, e.g., Baqir v. Principi, 434 F.3d 733, 746–47 (4th Cir. 2006)

(similar allegations did not suffice); Faulkenberry v. U.S. Dep’t of Defense, 670 F. Supp. 3d 234,

255 (D. Md. 2023) (same); Bouknight v. S.C. Dep’t of Corrs., 487 F. Supp. 3d 449, 475–76 (D.S.C.

2020) (same); cf. Sunbelt Rentals, Inc., 521 F.3d at 317–38 (holding that “extensive” harassment

and frequent use of grossly offensive epithets in workplace met objectively hostile standard). Nor

does the April 21 incident, in which Smith allegedly shouted at plaintiff as she exited the building,

meet this standard. (Compl. ¶¶ 124–35); see, e.g., Buchhagen v. ICF Int’l, Inc., 545 F. App’x 217,

219 (4th Cir. 2013) (holding that shouting at plaintiff during two meetings did not suffice, even

combined with other conduct); Faulkenberry, 670 F. Supp. 3d at 255 (having security escort

plaintiff from building did not suffice, even combined with numerous other actions). Plaintiff

therefore fails to establish the severe or pervasive element of her hostile work environment claim,

and her retaliation claims may not proceed under this theory.

In sum, plaintiff’s EPA and Title VII wage claims must be dismissed. Plaintiff’s EPA and

Title VII retaliation claims may proceed, but only insofar as they are based on plaintiff’s theory

that removal from her position and early retirement constituted the necessary adverse employment

actions. These claims may not proceed insofar as they rest upon state defendants’ alleged creation

of a retaliatory hostile work environment.

2. Individual Defendants’ Motion

Plaintiff presents claims under the First Amendment, the Due Process Clause, and the

Equal Protection Clause, against all four individual defendants. (See Compl. ¶¶ 187–99).

Individual defendants argue that the claims against Pittman, Olive, and Boyette should be

dismissed for failure to plead facts supporting supervisory liability under § 1983. Further, Smith

argues that plaintiff’s claims against her are inadequately pleaded and fail on the merits. The court

agrees.

a. Supervisory Liability

Plaintiff presents all her § 1983 claims against Pittman, Olive, and Boyette under the

framework of supervisory liability. Although she never uses that term in her papers, she suggests

she bases her claims against these three defendants on their knowledge of Smith’s alleged

misconduct and failure to intervene. (See Pl’s Br. 9–13). The court therefore agrees with

defendants that plaintiff attempts to assert these claims on the basis of supervisory liability.

Supervisory liability under § 1983 requires that 1) the supervisor had actual or constructive

knowledge that a “subordinate was engaged in conduct that posed a pervasive and unreasonable

risk of constitutional injury to citizens like the plaintiff”; 2) the supervisor’s response to that

knowledge was so inadequate as to demonstrate deliberate indifference or tacit authorization of

the alleged practices; and 3) there was an “affirmative causal link” between the inaction and

particular injury. Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014). The first element

requires the alleged conduct to have been widespread, or “at least” to have occurred on several

different occasions and to pose an unreasonable risk of constitutional injury. See id. at 227 (noting

lack of evidence that defendants had engaged in similar misconduct in past against others).

Plaintiff fails to satisfy the first element here. Plaintiff’s arguments rest entirely on her

assertions that Pittman, Olive, and Boyette had actual knowledge of Smith’s activities. (See Pl’s

Br. 8–13). But this knowledge of alleged misconduct directed against plaintiff is insufficient;

plaintiff must also allege that the conduct was widespread and at least occurred on several different

occasions, beyond the circumstances of the present case. Wilkins, 751 F.3d at 226–27; e.g.,

Armstrong v. City of Greensboro, 190 F. Supp. 3d 450, 467–68 (M.D.N.C. 2016); Weigle v. Pifer,

139 F. Supp. 3d 760, 793–94 (S.D.W. Va. 2015) (discussing allegations from numerous sources

about multiple incidents involving particular police officer); cf. Johnson v. McCowan, 549 F.

Supp. 3d 469, 479 (W.D. Va. 2021) (permitting supervisory liability claim to proceed when

plaintiff alleged widespread pattern of identical abuses). Because plaintiff’s claims against

Pittman, Olive, and Boyette rest entirely upon these officials’ alleged knowledge of Smith’s

activities in this case, plaintiff’s supervisory liability claims cannot survive.

b. Smith

i. Equal Protection

Plaintiff presents an equal protection claim against all four individual defendants. To plead

an equal protection claim, a plaintiff must first demonstrate that she has been treated differently

from others with whom she is similarly situated, and that the unequal treatment was the result of

intentional discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Only once

this showing is made does the court evaluate the claim under the appropriate level of scrutiny. Id.

Plaintiff has failed to show different treatment from any similarly situated person, for the reasons

discussed above. Her Equal Protection Clause claim therefore fails.

ii. First Amendment

Defendants’ only argument against plaintiff’s First Amendment Retaliation claim is that

plaintiff did not engage in protected speech. The court agrees.

When a government employee claims that she was disciplined because of speech, courts

use a three prong test to determine if the discipline violated the employee’s First Amendment

rights: 1) whether the employee was speaking as a citizen on a matter of public concern or as an

employee on a matter of personal interest; 2) whether the employee’s interest outweighs the

government employer’s interest; and 3) whether the speech caused the disciplinary action. See

Porter v. Bd. of Trs. of N.C. State Univ., 72 F.4th 573, 582–83 (4th Cir. 2023). Speech on

“matter[s] of interest to the community” is of public concern, while “complaints over internal

office affairs” are not. Crouse v. Town of Moncks Corner, 848 F.3d 576, 583 (4th Cir. 2017).

Plaintiff defines her allegedly protected speech as “rais[ing] the issue of inequitable salaries

in the [EEOO] on several occasions,” as well as “opposing favoritism,” “opposing . . . disciplinary

action” plaintiff saw as unwarranted, and “allowing employees to complain about . . .

mismanagement.” (See Compl. ¶ 155). All but the first are clearly “complaints over internal office

affairs.” See Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000)

(holding that “matters of internal policy, favoritism, and other employment-related matters” were

not of public concern).

Raising salary issues presents a closer question. Complaints about discrimination can, but

do not necessarily, address matters of public concern. See Campbell v. Galloway, 483 F.3d 258,

269 (4th Cir. 2007). The dividing line is whether the complaint, though about discrimination, can

be characterized as individually based or addressed, rather than group or community-based. See

Massaro v. Fairfax County, --- F.4th ---, 2024 WL 1162061, at *8–9 (4th Cir. 2024) (discussing

this principle in detail). “[T]he focus is . . . upon whether the ‘public’ or the ‘community’ is likely

to be truly concerned with or interested in the particular expression, or whether it is more properly

viewed as essentially a ‘private’ matter between employer and employee.” Id. at *8.

For example, in Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996), the Fourth Circuit held

that a group letter protesting racial discrimination in a police department signed by “virtually all”

black members of the force, and which expressed concern about the department’s ability to protect

the public, was on a matter of public concern. See id. at 1325–26. Cromer also distinguished

those circumstances from “the expression of a single disgruntled employee,” which would not

have been protected. See id. at 1326. Similarly, in another case a complaint about racial

discrimination by a single employee was not a matter of public concern, because the employee did

not “seek to communicate to the public or to advance a political or social point of view,” but rather

to obtain only “improvement of his own situation.” Brooks v. Arthur, 685 F.3d 367, 369–70, 374

(4th Cir. 2012).

Here plaintiff alleges merely that she complained about the denial of her request for a raise,

on grounds that such denial was discriminatory. (See Compl. ¶¶ 45, 155). These statements are

much closer to the individual complaints rejected in Arthur, than to the letter about group concerns

about a police department’s ability to function at issue in Cromer. They also align with the

plaintiff’s grievance in Massaro, which was a “qualm focused on [plaintiff’s] perceived

mistreatment,” made in private, and thus not on a matter of public concern. See Massaro, --- F.4th

---, 2024 WL 1162061, at *8–9. The court therefore concludes that plaintiff’s complaints, even

about her salary, did not concern matters of public import, and therefore cannot support her First

Amendment claim. Because plaintiff identifies no protected speech under her status as a

government employee, her First Amendment claim fails and must be dismissed. See Porter, 72

F.4th at 582.

iii. Due Process

Plaintiff presents a reputational liberty interest claim under the Due Process clause.

Defendants argue that plaintiff’s allegations do not satisfy any element of this claim. (Defs’ Br.

(DE 17) 13–14). The court agrees that plaintiff has not pleaded this claim’s publication element.

A constitutional liberty interest exists in one’s reputation. Elhady v. Kable, 993 F.3d 208,

225 (4th Cir. 2021). To plead a due process claim based on injury to that interest, a litigant must

show 1) a statement stigmatizing his good name; 2) damage to his standing in the community; 3)

dissemination or publication of the statement; and 4) some governmental action altering or

extinguishing one of his legal rights as a result. See id.

The third element requires the employer to have publicized the charges in some way. See,

e.g., Bishop v. Wood, 426 U.S. 341, 348 (1976); Sciolino v. City of Newport News, Va., 480 F.3d

642, 649 (4th Cir. 2007); Hodge v. Jones, 31 F.3d 157, 165 (4th Cir. 1994); Echtenkamp v. Loudon

Cnty. Public Schs., 263 F. Supp. 2d 1043, 1056–57 (E.D. Va. 2003) (internal critiques and charges

did not satisfy publication element); Young v. Annarino, 123 F. Supp. 2d 915, 925 (W.D.N.C.

2000) (same).

Plaintiff’s briefing does not address the publication element at all, (see Pl’s Br. 12–13), and

her complaint contains no non-conclusory allegations that any of Smith’s statements was ever

made public. (See Compl. ¶¶ 142–51, 157, 190, 193). This claim therefore cannot survive the

individual defendants’ motion.

Because plaintiff’s § 1983 claims all fail for the forgoing reasons, the court does not reach

individual defendants’ qualified immunity arguments.

CONCLUSION

Based on the forgoing, state defendants’ motion to dismiss (DE 14) is DENIED insofar as

it seeks dismissal of plaintiff’s retaliation claims resting on a theory of demotion and/or forced

resignation as an adverse action. This motion is GRANTED in all other respects, including

plaintiff’s retaliation claims insofar as they rest upon creation of a hostile work environment as an

adverse action, and these claims are dismissed for failure to state a claim under Rule 12(b)(6).

Individual defendants’ motion to dismiss (DE 16) is GRANTED, and plaintiff’s claims

against defendants Smith, Pittman, Olive, and Boyette are dismissed for failure to state a claim

under Rule 12(b)(6).

Stay imposed December 11, 2023, is now lifted. The court’s initial order regarding

planning and scheduling shall follow, including a deadline for the parties’ provision of a joint

report and plan to aid in the subsequent entry of the court’s case management order.

SO ORDERED, this the 25th day of March, 2024.

LOUISE W. FLANAGAN

United States District Judge

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