DOYLE,et al v. ADVANCED FRAUD SOLUTIONS, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KEVIN DOYLE and HASHIM )

WARREN, )

)

Plaintiffs, )

)

v. ) 1:18CV885

)

ADVANCED FRAUD SOLUTIONS, )

LLC, and THOMAS LAWRENCE )

REAVES, JR., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Currently before the court is Defendant Advanced Fraud

Solution, LLC’s (“AFS”) Motion to Dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 13.)

Plaintiffs’ Complaint lists four claims, including Unlawful

Employment Discrimination/ Retaliation in violation of 42 U.S.C.

§ 2000e-3, two state law claims, and a claim for punitive

damages. (Complaint (“Compl.”) (Doc. 1) ¶¶ 57–97). AFS moves for

a dismissal of Claims One and Two. Claim Three is directed only

at Defendant Thomas Lawrence Reaves, Jr. (“Reaves”). This court

finds that Claim One should be dismissed pursuant to Federal

Rule of Civil Procedure 12(b)(6). The court will decline to

exercise jurisdiction over the remaining state claims, Claims

Two and Three, and will dismiss Claim Four as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

Plaintiffs Kevin Doyle (“Doyle”) and Hashim Warren

(“Warren”) (collectively “Plaintiffs”) were both employed in

AFS’s marketing department and performed work for The Coder

Foundry, LLC.1 (Compl. (Doc. 1) ¶¶ 10–14.) Reaves was the

President of AFS and supervised Warren, the Director of

Marketing, who in turn supervised Doyle, the Marketing

Coordinator. (Id. ¶¶ 10-13.) Plaintiffs and Defendant Reaves are

all citizens of North Carolina; Defendant AFS is a limited

liability company organized under the laws of North Carolina.

(Id. ¶¶ 2–4.) Plaintiffs does not allege the citizenship of

AFS’s members.2

B. Factual Background

Plaintiffs allege that Reaves began an affair with a female

subordinate in either late 2016 or early 2017, subsequently

transferred this employee from Coder Foundry to AFS, gave her a

1 AFS was a 50% owner of The Coder Foundry. (Compl. (Doc. 1)

¶ 14.)

2 Since the court has jurisdiction under 28 U.S.C. § 1331,

this is an inconsequential omission.

substantial pay raise, and provided her with favorable treatment

compared to similarly situated male employees. (Id. ¶¶ 18–19.)

The favorable treatment allegedly included allowing the female

employee to work from home while male employees were not. (Id.

¶¶ 19, 20.) Plaintiffs further allege that Reaves provided

benefits to this female employee “at the company’s expense that

did not seem appropriate,” such as meals and hotel rooms. (Id.

¶ 22.) Plaintiffs state that they believe Reaves had previously

engaged in a similar relationship with at least one other

subordinate female employee. (Id. ¶ 25.) Doyle reported to

Warren that Reaves was showing “favoritism towards the Female

Employee . . . .” (Id. ¶ 23.) “Plaintiffs believed that Reaves’

misuse of company funds to further his relationship with the

Female Employee” were acts of embezzlement. (Id. ¶ 24.)

Plaintiffs then approached Bobby Davis, a member of the AFS

board:

27. In March of 2017, Plaintiffs each had

discussions with one of AFS’s board members and

managers, Bobby Davis, in which they reported Reaves’

conduct and their concerns, including not only the

preferential treatment of the Female Employee, but also

the misuse of company money to further the same.

28. Warren specifically raised concerns that

Reaves’ had a position of power over the Female

Employee, and was concerned that he was exerting his

influence to further the inappropriate relationship,

and questioned whether the relationship was consensual

under the circumstances. Warren’s concern was

essentially that Reaves was creating a hostile work

environment for female employees.

(Id. ¶¶ 27–28 (footnote omitted).) After the meeting, AFS’s

human resources (“HR”) department then investigated, took

statements from Plaintiffs, and concluded that Reaves had

behaved inappropriately and misused company funds. (Id.

¶¶ 30-32, 35.)

While the HR investigation was winding up, Warren filed a

charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on April 14, 2017, but he subsequently

withdrew the charge after the precipitating grievance was

remedied. (Id. ¶ 34). The Complaint does not state how much time

passed between the filing of the first charge and its

withdrawal. (See id.) On April 17, 2017, the AFS board issued a

letter of reprimand to Reaves and had his responsibilities cut

back, including his removal as director of the Coder Foundry.

(Id. ¶¶ 31–33, 35.) The female employee in question was assigned

a different supervisor. (Id. ¶ 35.)

AFS’s HR department also informed Reaves that Plaintiffs

would be reporting to Davis, not him, until further notice. (Id.

¶ 36). Though Plaintiffs were no longer reporting to Reaves, he

continued to exercise control over them. (Id. ¶ 37.) Plaintiffs

allege that “[a]lmost immediately after Reaves was reprimanded,

[Reaves] began a campaign of overt retaliation against the

Plaintiffs.” (Id. ¶ 38.) This course of retaliation included

withholding work from Plaintiffs, stripping Plaintiff Warren of

his authority and titles, spreading rumors about Plaintiffs,

changing passwords, removing furniture from Plaintiffs’ offices,

and eventually transferring Plaintiffs entirely to Coder

Foundry. (Id. ¶¶ 38–42, 46.) Plaintiffs allege that the transfer

to Coder Foundry reduced their benefits and negatively impacted

their career prospects, (id. ¶ 47), because Coder Foundry was on

the brink of insolvency when they were transferred, (id. ¶ 51).

When Coder Foundry declared bankruptcy in November 2017,

Plaintiffs were terminated. (Id.) Warren filed a second EEOC

charge on November 20, 2017, and Doyle filed his charge on

November 30, 2017. (Id. ¶¶ 34, 53–54.) The EEOC issued a right-

to-sue letter to each Plaintiff.

C. Procedural History

Plaintiffs bring the following claims against AFS: (1)

Title VII retaliation for engaging in protected activity and (2)

wrongful discharge in violation of public policy under N.C. Gen.

Stat. § 143-422.2, for reporting suspected discrimination and

embezzlement. Plaintiffs also bring a claim for tortious

interference with contract against Reaves in his individual

capacity (Claim Three), and a claim for punitive damages against

Reaves and AFS (Claim Four). Defendant AFS filed a Motion to

Dismiss for Failure to State a Claim, (Doc. 13), as well as a

supporting brief, (Def.’s Br. in Supp. of Mot. to Dismiss

(“Def.’s Br.”) (Doc. 14). Plaintiffs filed a Response in

Opposition to Defendant AFS’ Motion to Dismiss, (Pls.’ Mem. of

Law in Opp’n to Def.’s Mot. to Dismiss (“Pls.’ Resp.”) (Doc.

17), and Defendant AFS filed a Reply, (Doc. 18). The issue is

now ripe for ruling.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, “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)). A claim is plausible on its

face if “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable” and demonstrates “more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556–57). When ruling on a motion to

dismiss, this court accepts the complaint’s factual allegations

as true. Iqbal, 556 U.S. at 678. Further, this court liberally

construes “the complaint, including all reasonable inferences

therefrom, . . . in plaintiff’s favor.” Estate of Williams-Moore

v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646

(M.D.N.C. 2004) (citation omitted); see also Mason v. Mach.

Zone, Inc., 851 F.3d 315, 319 (4th Cir. 2017). This court does

not, however, accept legal conclusions as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678.

III. CLAIM ONE: RETALIATION UNDER 42 U.S.C. § 2000e-3

The court addresses Plaintiffs’ first claim against AFS for

Employment Discrimination/Retaliation under 42 U.S.C. § 2000e-3.

(Compl. (Doc. 1) ¶¶ 57–72.) Since the court finds Plaintiffs did

not harbor an objectively reasonable belief that they were

opposing conduct made illegal by Title VII, the court finds that

Claim One should be dismissed.

It is unlawful for an employer to discriminate against an

employee “because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. § 2000e-3(a). Plaintiffs with a Title VII retaliation

claim must allege facts that allow a court to find the following

elements: “(1) that she engaged in protected activity; (2) that

[the employer] took a material adverse employment action against

her, and (3) that a causal connection existed between the

protected activity and the adverse action.” Peters v. Jenney,

327 F.3d 307, 320 (4th Cir. 2003); see also Savage v. Maryland,

896 F.3d 260, 276 (4th Cir. 2018). A plaintiff may survive a

motion to dismiss by alleging direct evidence of a retaliation,

Peters, 327 F.3d at 320 n.15, but the parties in the case at bar

appear to assume that the prima facie case is the appropriate

metric, (compare Def.’s Br. (Doc. 14) at 8, with Pls.’ Resp.

(Doc. 17) at 5–6). Seeing no alleged direct evidence of

retaliation, this court will proceed under the same theory.

There are two kinds of activity for which Title VII

provides protection from retaliation, and Section 2000e-3(a)

identifies them in two clauses. The first clause of the statute

is known as the “opposition” clause; the second is known as the

“participation” clause. Crawford v. Metro. Gov’t of Nashville &

Davidson Cty., 555 U.S. 271, 274 (2009). The distinction is

important as it pertains to the first element of a prima facie

case for retaliation. In order to qualify as “protected

activity” under the opposition clause, a plaintiff must show

they had an objectively reasonable belief the conduct they were

opposing was actionable under Title VII; however, under the

participation clause, a plaintiff need not make that showing.

See Netter v. Barnes, 908 F.3d 932, 937–38 (4th Cir. 2018).

Plaintiffs allege that they engaged in both oppositional

and participation activities. (Compl. (Doc. 1) ¶¶ 59–61.) Most

of their activities are properly classified as oppositional, but

one relevant action qualifies as participation activity:

Warren’s April 2017 EEOC charge.

A. Warren’s Participation Activity: The April 2017 EEOC

Charge3

In summary, Plaintiffs allege participation activity in the

Complaint as follows:

59. Plaintiffs engaged in protected activity, to

wit, Plaintiffs reported their good faith and

reasonable belief that Reaves was engaging in unlawful

gender discrimination by showing favoritism to what

they believed to be the second female employee he had

an inappropriate relationship with, which constituted

preferential treatment available to female employees,

both in compensation and terms of employment, that were

unavailable to male employees . . . .

60. Furthermore, Warren specifically filed a

charge with the EEOC alleging gender discrimination in

violation of Title VII, which was also protected

activity.

. . . .

62. Upon information and belief, Reaves was

almost immediately made aware of the Plaintiffs’

protected activities.

(Compl. (Doc. 1) ¶¶ 59–60, 62.)

3 Plaintiffs’ later EEOC charges came well after the alleged

course of retaliation took place and after their discharge from

Coder Foundry. (Compl. (Doc. 1) ¶¶ 51–54.) For that reason, they

could not logically have caused any retaliatory conduct.

“Participation” activities include reports through official

channels and participation in formal investigations. Laughlin v.

Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998).

A participation claim is only valid if the plaintiff acted

within “the machinery set up by Title VII.” Lassiter v. LabCorp

Occupational Testing Servs., Inc., 337 F. Supp. 2d 746, 755

(M.D.N.C. 2004) (quoting Hashimoto v. Dalton, 118 F.3d 671, 680

(9th Cir. 1997)). At least one other court has expressly found

that a company’s internal investigation, even if it was

“formal,” did not qualify as a participation activity because it

was outside the scope of Title VII’s formal processes. Johnson

v. Portfolio Recovery Assocs., LLC, 682 F. Supp. 2d 560, 583

(E.D. Va. 2009).

Defendant argues that “if Plaintiffs’ retaliation claim is

based on participation in [the] internal HR investigation, that

claim fails for lack of any allegations that the investigation

was part of a Title VII proceeding.” (Def.’s Br. (Doc. 14) at

16.) Plaintiffs respond that Warren was retaliated against for

filing a charge with the EEOC alleging gender discrimination.

(Pls.’ Resp. (Doc. 17) at 6–7.) Because Plaintiffs’ pleadings

are somewhat confusing as to whether Plaintiffs contend Doyle

was retaliated against for participation activity, this court

will briefly address participation activity as to Doyle before

turning to Warren’s participation activity.

With respect to Doyle, Plaintiffs make no allegation that

Doyle filed an EEOC charge, or that he participated in any

formal Title VII process until after his termination. (See Pls.’

Resp. (Doc. 17) at 6–7.) Furthermore, Plaintiffs do not contend

that any of the internal investigation constituted protected

activity. (Id. at 10–11.) Absent some allegation that Doyle

participated in a Title VII process in some fashion, Doyle has

failed to state a claim as to Defendants for retaliation based

upon participation activity. Defendants cannot be held liable to

Doyle for any participation activity engaged in solely by

Warren. Accordingly, to the extent Doyle could be construed to

assert a claim of retaliation for participation activity prior

to his termination, that claim should be dismissed.

Only Warren’s April 2017 EEOC Charge can qualify as

protected activity under the retaliation analysis and,

therefore, any claim of retaliation for participation activity

accrues only as to Warren. Warren’s April 2017 EEOC charge

qualifies as participation activity. However, although Warren

has alleged a participation activity, Defendants argue that:

Warren filed his first EEOC charge two weeks later and

then withdrew it. ([Compl. (Doc. 1)] at ¶ 34.) There is

no allegation that an internal investigation was

conducted after Plaintiff Warren’s EEOC charge, and no

allegation that Plaintiffs were retaliated against for

participation in an investigation of that charge.

(Def.’s Br. (Doc. 14) at 16.) Plaintiffs respond to that

argument:

The Complaint alleges, in sequence under the

unlawful retaliation claim, that “Warren specifically

filed a charge with the EEOC alleging gender

discrimination in violation of Title VII, which was

also a protected activity[;]” “Reaves was almost

immediately made aware of the Plaintiffs’ protected

activities,” and that “[f]ollowing his knowledge of the

Plaintiffs’ protected activities, Reaves engaged in a

campaign of retaliation as set forth herein, that

culminated with Plaintiffs’ termination.” [D.E. 1,

¶¶ 60, 62-63]. Warren alleged retaliation specific to

himself occurring within a short period after he filed

his EEOC charge. [D.E. 1, ¶¶ 39] It undisputed that

Plaintiff Warren alleged protected “participation

activity” in that he made a charge and that he suffered

“adverse employment action,” inter alia, being stripped

of his title approximately 2 months after filing his

charge, which was causally linked to his protected

activity. [D.E. 1, ¶¶ 34, 39, 44].

(Pls.’ Resp. (Doc. 17) at 6–7.) Contrary to their argument,

however, Plaintiffs have not plausibly alleged a causal

connection between Warren’s protected activity and any

retaliation.

The Fourth Circuit has held that “very little evidence of a

causal connection is required to establish a prima facie case of

retaliation,” and temporal proximity is sufficient. Burgess v.

Bowen, 466 F. App’x 272, 283 (4th Cir. 2012) (internal quotation

marks and alterations omitted). Though establishing causation at

the pleading stage is not “an onerous burden[,] . . . no causal

connection can exist between an employee’s protected activity

and an employer’s adverse action if the employer was unaware of

the activity.” Strothers v. City of Laurel, 895 F.3d 317, 335–36

(4th Cir. 2018).

Here, Warren’s EEOC charge was filed on April 14, 2017.

(Compl. (Doc. 1) ¶ 34.) Plaintiffs allege that “[f]ollowing his

knowledge of the Plaintiffs’ protected activities, Reaves

engaged in a campaign of retaliation . . . .” (Id. ¶ 63.) These

facts might give rise to an inference of a causal connection

between Warren’s protected activity and retaliation because of

the close timing between the events. However, this court

construes the Complaint to plausibly allege retaliation by

Reaves in response to AFS’s internal investigation, not Warren’s

EEOC charge. Although Plaintiffs appear to use the “protected

activities” to refer to Warren’s EEOC charge and Defendant AFS’s

internal investigation, (see e.g., Compl. (Doc. 1) ¶¶ 29–38),

this court finds the Complaint fails to plausibly allege that

either Reaves or Defendant AFS were aware of Warren’s EEOC

charge. Plaintiff must allege facts plausibly alleging that the

employer was somehow motivated by the employee’s participation

activities when taking the retaliatory actions. Villa v.

CavaMezze Grill, LLC, 858 F.3d 896, 901 (4th Cir. 2017). “[T]he

facts the decision-maker actually perceived matter. If an

employer . . . never realized that its employee engaged in

protected conduct, it stands to reason that the employer did not

act out of a desire to retaliate for conduct of which the

employer was not aware.” Id.

First, unlike other cases where charges were filed and

employers were aware of the charges prior to the retaliatory

conduct, see Williams v. Cerberonics, Inc., 871 F.2d 452, 454,

457 (4th Cir. 1989), Warren withdrew his first EEOC charge after

receiving “certain commissions . . . which he lost as a direct

result of the Female Employee’s failure to carry out job

duties.” (Compl. (Doc. 1) ¶ 34). Plaintiffs fail to allege a

time frame between the filing of the EEOC charge and withdrawal

of the charge that might support a plausible inference as to

Reaves or AFS’s knowledge of the filing of the charge.4 Under the

circumstances here where Warren filed and then withdrew his EEOC

charge, there is nothing to support a finding Defendants were

aware of the charge. See e.g., Carter v. Ball, 33 F.3d 450, 460

(4th Cir. 1994) (allowing a retaliation claim to go forward

4 EEOC’s own website states that, once a charge is filed,

the EEOC will contact the complainant’s employer within ten

days. What You Can Expect After You File a Charge, U.S.

E.E.O.C., https://www.eeoc.gov/employees/process.cfm (last

visited Mar. 13, 2020). It is entirely possible Warren withdrew

his charge before anyone at AFS was ever notified by the EEOC,

and there are no facts alleged to refute that possibility or

make it less likely than the alternative.

because the plaintiff pleaded facts showing that his employer

helped him complete his EEOC charge, and his adverse employment

action occurred only weeks after his first EEOC hearing).

Second, Plaintiffs allege no facts suggesting the

underlying issues about which both Plaintiffs complained were

somehow remedied because of AFS’s knowledge of the EEOC charge

or in an effort by AFS to respond to the EEOC charge. Regardless

of the absence of any direct knowledge, those circumstances

might make it clear that at least AFS knew of the EEOC charge.

Instead, AFS’s actions are far more reasonably inferred to have

been the direct result of their own internal investigation.

AFS’s response to that investigation, reprimanding Reaves,

occurred only three days after Warren filed his EEOC charge.

Third, and most importantly, Plaintiffs’ own allegations

suggest it was the HR findings, not the April 14, 2017 EEOC

charge, that motivated Reaves’ retaliation. As Plaintiffs

allege, Reaves was reprimanded on April 17, 2017, (Compl. (Doc.

1) ¶ 35), and “[a]lmost immediately after Reaves was reprimanded

[by HR], he began a campaign of overt retaliation against the

Plaintiffs,” (id. ¶ 38). Plaintiffs’ own allegations plausibly

suggest any retaliation resulted from the HR reprimand, not the

EEOC charge, which at that time had only been filed for a period

of three days. (See id. ¶¶ 35, 38.) Although Plaintiffs have

inartfully and confusingly alleged retaliation for “protected

activities” to include both participation and opposition, (see

Compl. (Doc. 1) ¶¶ 58–63), the well-pleaded allegations

establish retaliation in response to the HR investigation, not

the EEOC charge.

Plaintiffs make a general assertion that “Reaves was almost

immediately made aware of the Plaintiffs’ protected activities.”

(Id. ¶ 62.) This allegation, however, is a conclusory statement

supported by plausible facts as to the HR reprimand but not

supported by any plausible factual allegations as to knowledge

of the EEOC charge. Because the internal AFS investigation is

not protected participation activity, Plaintiffs only allege

facts that support the conclusion that Reaves knew of

Plaintiffs’ protected oppositional activities, that is, the AFS

HR investigation process. Indeed, they allege more than enough

facts to reach that conclusion. (See id. ¶¶ 36, 38, 43, 45–46.)

There are no facts alleged, however, that support the same

conclusion for Reaves or AFS’s awareness of Warren’s EEOC

charge. Furthermore, inferring that Reaves found out about the

EEOC charge is far from reasonable since the charge was

withdrawn after an unknown period of time. “[N]aked assertions

devoid of further factual enhancement [will] not suffice.”

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

Cir. 2015) (quoting Twombly, 550 U.S. at 557) (internal

quotation marks omitted). The court is left to speculate whether

Reaves knew or did not know about Warren’s protected activity,

and “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Coleman v. Md. Ct. of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Twombly, 550

U.S. at 555).

Finding Plaintiffs have not plausibly alleged that Reaves

or AFS were aware of Warren’s April 2017 EEOC charge, the court

turns to Plaintiffs’ oppositional activity.

B. Plaintiffs’ Oppositional Activity

In addition to Warren’s participation activity, both

Plaintiffs also engaged in oppositional activity. Since

Plaintiffs did not have an objectively reasonable belief the

conduct they were challenging was actionable under Title VII,

however, their opposition activity cannot be classified as

“protected” under Title VII.

“Employees engage in protected oppositional activity when,

inter alia, they ‘complain to their superiors about suspected

violations of Title VII.’” Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264, 281 (4th Cir. 2015) (quoting Bryant v. Aiken Reg’l

Med. Ctrs. Inc., 333 F.3d 536, 543–44 (4th Cir. 2003)). The

definition of oppositional conduct is “broad . . . [and] and the

threshold for oppositional conduct is not onerous.” DeMasters v.

Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015). In this

case, Plaintiffs’ decisions to complain to Bobby Davis, a board

member and manager at AFS, (Compl. (Doc. 1) ¶ 27), and to

participate in the internal investigation by AFS’s HR

department, (id. ¶¶ 30–36), are acts that qualify as

oppositional activity.

To bring a retaliation claim for oppositional activity, an

employee must have an objectively reasonable belief that the

conduct they opposed was illegal under Title VII. Peters, 327

F.3d at 321; see Boyer-Liberto, 786 F.3d at 282; Jordan v. Alt.

Res. Corp., 458 F.3d 332, 340–41 (4th Cir. 2006) (“Navy Federal

holds that an employee seeking protection from retaliation must

have an objectively reasonable belief in light of all the

circumstances that a Title VII violation has happened or is in

progress.”), overruled in part by Boyer-Liberto, 786 F.3d 264

(4th Cir. 2015); E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d

397, 406 (4th Cir. 2005) (requiring a “reasonable basis” for

believing the opposed practice was unlawful).

In determining what beliefs are and are not reasonable,

“Title VII must be read ‘to provide broader protection for

victims of retaliation than for [even] victims of race-based,

ethnic-based, religion-based, or gender-based discrimination,’

because ‘effective enforcement could . . . only be expected if

employees felt free to approach officials with their

grievances.’” Boyer-Liberto, 786 F.3d at 283 (quoting Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 66–67 (2006)). It

is necessary to Title VII’s success that employees feel free to

report, and report early, what they perceive to be acts of

discrimination. See id.

Despite these policy underpinnings, objectively

“reasonable” still means there must be a minimum level of

reasonableness beyond an employee’s subjective beliefs. In

determining what constitutes objective reasonableness, this

court will start by examining the case law pertaining to the

complained-of conduct.

i. Reasonableness of Beliefs: Gender Discrimination

The court begins with Plaintiffs’ alleged belief that they

were victims of gender discrimination.

The parties disagree on whether the current state of the

law regarding paramour preference is relevant to the objective

reasonableness of Plaintiffs’ belief that Reaves’ conduct

violated Title VII. While AFS asserts in its Reply that case law

is relevant, (Doc. 18 at 5–6), Plaintiffs “contend that the

reasonableness of their beliefs should be objectively viewed

under a ‘reasonable person’ standard, not the trained analytical

eyes of lawyers.” (Pls.’ Resp. (Doc. 17) at 12 n.3.) The court

agrees with Defendant.

In at least one unpublished opinion, the Fourth Circuit

paralleled an approach used in the Eleventh Circuit that

accounts for the current state of case law when evaluating

reasonableness in the Title VII retaliation context. See, e.g.,

Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 n.2

(11th Cir. 1998) (“If the plaintiffs are free to disclaim

knowledge of the substantive law, the reasonableness inquiry

becomes no more than speculation regarding their subjective

knowledge.”); see also Sherk v. Adesa Atlanta, LLC, 432 F. Supp.

2d 1358, 1370 (N.D. Ga. 2006) (“[T]he unanimity with which the

courts have declared favoritism of a paramour to be gender-

neutral belies the reasonableness of Plaintiff’s belief that

such favoritism created a hostile work environment.”).

As a panel of the Fourth Circuit has said, “[t]he most

obvious measure of the objective reasonableness of a plaintiff’s

belief that the conduct of which he complained violated Title

VII is the state of the case law at the time the plaintiff

engaged in the protected activity.” Mayo v. Kiwest Corp., No.

95-2638, 1996 WL 460769, at *4 (4th Cir. Aug. 15, 1996),

overruled on other grounds by Scott v. Norfolk So. Corp., No.

97-1490, 1998 WL 387192 (4th Cir. June 24, 1998);5 see also

Wainwright v. Carolina Motor Club, Inc., No. 1:03 CV 01185, 2005

WL 1168463, at *10 (M.D.N.C. Apr. 27, 2005) (“‘Objectively

reasonable’ means reasonable in light of the facts of the case

and current, substantive caselaw.”); Cyr v. Perry, 301 F. Supp.

2d 527, 535–36 (E.D. Va. 2004) (“Subjective ignorance [of the

law] cannot create objective reasonableness. If a belief is

unreasonable, plaintiff’s ignorance in believing it does not

make it reasonable.”).

None of the cited authority is binding on this court, but

the reasoning in those cases is persuasive. It is true, as

Plaintiffs assert, that retaliation victims should not be forced

to view the law with the “trained analytical eyes of lawyers.”

Ferrell v. Harris Ventures, Inc., 812 F. Supp. 2d 741, 746 (E.D.

Va. 2011). A “trained analytical eye” is not required when it

5 Mayo held that a plaintiff’s allegation of sex

discrimination by someone of the same sex was clearly not

actionable under existing case law and thus any opposition was

not objectively reasonable and could not support a retaliation

claim. Mayo is no longer good law in that the Supreme Court has

subsequently ruled “that sex discrimination consisting of same-

sex sexual harassment is actionable under Title VII.” See Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–82 (1998).

However, Mayo’s approach to determining the objective

reasonableness of a plaintiff’s belief that conduct violates

Title VII remains valid and instructive.

comes to favoritism and Title VII.6 Nevertheless, the facts of

the case and current substantive caselaw are a factor.

Courts, and the EEOC itself, almost universally declare

that relationships such as Reaves’, and the conduct with the

female employee, are not actionable under 42 U.S.C. § 2000e-2.

“The Fourth Circuit has expressly held that a supervisor’s

preferential treatment of a paramour on the basis of a sexual

relationship that is consensual is not discrimination based on

sex.” Ahern v. Omnicare ESC LLC, No. 5:08-CV-291-FL, 2009 WL

2591320, at *5 (E.D.N.C. Aug. 19, 2009) (citing Becerra v.

Dalton, 94 F.3d 145, 149–50 (4th Cir. 1996));7 see also Tenge v.

6 “Although it is appropriate to construe Title VII’s

prohibition on retaliation generously, and we do not require a

sophisticated understanding on the part of a plaintiff of this

relatively nuanced area of law, it is difficult to see how

[plaintiff] could have had even a subjectively reasonable, good-

faith belief that her conduct was protected. She made no

complaints that suggested a belief that she was being

discriminated against on the basis of any trait, protected or

otherwise.” Kelly v. Howard I. Shapiro & Assocs. Consulting

Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013).

7 Becerra was decided on a motion for summary judgment

rather than a motion to dismiss. However, it seems the defendant

in Becerra never filed a motion to dismiss, and it appears that

the Becerra court’s conclusion would also have required granting

a motion to dismiss in that case. See Becerra, 94 F.3d at 150

(“[E]ven accepting as true the fact that the commanding officer

was accepting sexual favors from Pallas, this conduct does not

amount to sexual discrimination.”). Plaintiffs argue that

Becerra can be distinguished because it relates solely to a

(Footnote continued)

Phillips Modern Ag Co., 446 F.3d 903, 909-10 (8th Cir. 2006);

Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 382 (5th Cir.

2003); Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 732-33

(7th Cir. 2002); Womack v. Runyon, 147 F.3d 1298, 1300-01 (11th

Cir. 1998); Taken v. Oklahoma Corp. Comm’n, 125 F.3d 1366, 1370

(10th Cir. 1997); DeCintio v. Westchester Cty. Med. Ctr., 807

F.2d 304, 308 (2d Cir. 1986); Miller v. Aluminum Co. of Am., 679

F. Supp. 495, 501 (W.D. Pa. 1988), aff’d, 856 F.2d 184 (3d Cir.

1988). But see King v. Palmer, 778 F.2d 878, 878–80 (D.C. Cir

1985) (permitting a Title VII failure-to-promote claim based on

alleged sexual favoritism, where the defendant did not dispute

that such a claim was within Title VII and where the court

applied a now-discredited approach to pretext), abrogated by St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). These holdings

are aligned with EEOC guidance. As the EEOC has stated,

Title VII does not prohibit . . . preferential

treatment based upon consensual romantic relationships.

An isolated instance of favoritism toward a “paramour”

. . . may be unfair, but it does not discriminate

against women or men in violation of Title VII, since

factual situation where a subordinate offers sexual favors to a

supervisor to enhance his or her own career prospects (rather

than the supervisor soliciting sex). (See Pls.’ Resp. (Doc. 17)

at 12–13.) But the Fourth Circuit in Becerra explicitly endorsed

DeCintio’s broader holding “that voluntary, romantic

relationships cannot form the basis of a sex discrimination

suit” and thus covers the factual allegations here. DeCintio v.

Westchester Cty. Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986).

both are disadvantaged for reasons other than their

genders.

EEOC Policy Guidance on Employer Liability under Title VII for

Sexual Favoritism, EEOC Notice No. 915.048 (Jan. 12, 1990). Case

law and EEOC guidance all declare that the preferential

treatment of paramours is not actionable under Title VII. For

that reason, at least one recent court in the Fourth Circuit has

found the state of the law sufficient to declare, as a matter of

law, that a plaintiff who opposed a paramour relationship did

not have reasonable belief he was opposing conduct barred by

Title VII. Tucker v. Shinseki, C/A No. CA 3:11-3123-CMC-PJG,

2013 WL 5309143, at *2 (D.S.C. Sept. 18, 2013).

Of course, if the “paramour” is engaged in the relationship

against his or her will, then it is possible for a plaintiff to

make out a Title VII claim. See 29 C.F.R. § 1604.11(g) (“Where

employment opportunities or benefits are granted because of an

individual’s submission to the employer’s sexual advances or

requests for sexual favors, the employer may be held liable for

unlawful sex discrimination against other persons who were

qualified for but denied that employment opportunity or

benefit.”) (emphasis added). “In their general [interpretation]

of this . . . regulation, courts have concluded that the word

‘submission’ in the regulation indicates that the relationship

must be non-consensual.” Ahern, 2009 WL 2591320, at *9 n.2.

“Here, [Plaintiffs] makes no allegation that the relationship

between [Reaves] and [the female employee] was non-consensual or

coerced. In fact, the allegations in [their] complaint indicate

otherwise.” Id. at *6. Reaves’ status as a supervisor is not,

without further allegations, sufficient to plausibly allege that

the relationship was not consensual. See id.

Finally, even assuming case law played no role in

determining the reasonableness of Plaintiffs’ beliefs, the

objective circumstances surrounding Reaves’ relationship

undermine any objective belief that Title VII was being

violated. Plaintiffs point out that, since Reaves only chose

female companionship, male employees were denied the chance to

enjoy his favoritism. (See Compl. (Doc. 1) ¶ 26.) While this is

true, it was also patently clear that other female employees

with whom Reaves did not become involved were denied the

opportunities of the female employee. Plaintiffs saw that it was

not only males who were being discriminated against — it was

also other females. It is that very reason that the vast

majority of case law and the EEOC are unanimous in their

conclusion that providing favors to a paramour is not

actionable: there is no discrimination based on gender since

male and female alike suffer. See, e.g., Becerra, 94 F.3d at 149

(“The plaintiffs were not prejudiced because of their status as

males; rather, they were discriminated against because the

[employer] preferred his paramour. The plaintiffs faced exactly

the same predicament as that faced by any woman applicant for

the promotion.”) (quotation marks omitted). The facts alleged

support the conclusion that male and female alike were being

denied the benefits of Reaves’ “favoritism,” (Compl. (Doc. 1)

¶ 32), an objective fact that makes it less reasonable to call

the situation one of gender discrimination.8

8 It is this objective circumstance, that Reaves’ favoritism

discriminated across gender lines, that also makes it more

appropriate to consider the state of the law in assessing

reasonableness. One court in the District of Maryland rejected

imputing knowledge of the law to laypersons except in the

“broadest sense.” Young v. Giant Food Stores, LLC, 108 F. Supp.

3d 301, 316 n.8 (D. Md. 2015) (citing and distinguishing Harper

v. Blockbuster Entm’t. Corp., 139 F.3d 1385, 1388 n.3 (11th Cir.

1998)).

In Young, the issue was that a female plaintiff claimed she

was being subjected to a sexually hostile work environment,

though her pleadings fell short of what the law requires. Id.

This court agrees that it would go too far to require a

retaliation plaintiff to understand the “contours of Title VII.”

Id. However, the present case is not one of contours, but one of

hard boundaries. The question Plaintiffs faced was not if the

degree of the conduct violated Title VII, but if the kind of

conduct violated Title VII. This is where the law in the

“broadest sense” was clear, and that should matter in what is a

reasonable belief. The law unanimously declares that paramour

preference is not actionable. The objective fact that male and

female employees alike suffered from Reaves’ preference of one

paramour makes it unreasonable to think Reaves was engaging in

gender discrimination. See Murray v. City of Winston-Salem, 203

F. Supp. 2d 493, 501–02 (M.D.N.C. 2002) (citing Becerra, 94 F.3d

at 149–50).

Given the state of the case law and the facts underlying

most paramour cases, courts generally conclude that retaliation

plaintiffs in paramour cases cannot claim a reasonable belief

that they were opposing gender discrimination. As a court in the

Western District of Kentucky noted when ruling on a motion for

summary judgment:

As far as this court is aware, every other court

to have considered the issue has found that a plaintiff

who expressed opposition to favoritism resulting from a

consensual affair did not have a reasonable basis to

believe he or she was opposing an unlawful practice.

Krasner [v. HSH Nordbank AG], 680 F. Supp. 2d [502,]

520–522 [(S.D.N.Y. 2010)] (dismissing retaliation claim

where “the overall content and context of [the

plaintiff’s] internal complaints suggest, at most, a

consensual affair that — while perhaps unfair, bad for

morale and detrimental to the department and the

company — in itself harmed no one on account of a

protected characteristic”); Sherk v. Adesa Atlanta,

LLC, 432 F. Supp. 2d 1358, 1370–1372 (N.D. Ga. 2006)

(holding that “the unanimity with which the courts have

declared favoritism of a paramour to be gender-neutral

belies the reasonableness of Plaintiff’s belief that

such favoritism created a hostile work environment”);

see Anderson v. Oklahoma State Univ. Bd. of Regents,

342 F. App’x 365, 367–368 (10th Cir. 2009); Mair v.

Napolitano, 2011 WL 6209799, at *5–*6 (W.D. Mich.

Dec. 14, 2011); Sullivan–Weaver v. New York Power

Auth., 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000); Harvey

v. Chevron U.S.A., Inc., 961 F. Supp. 1017, 1033–1034

(S.D. Tex. 1997); O’Patka v. Menasha Corp., 878 F.

Supp. 1202, 1206–1209 (E.D. Wis. 1995). This court sees

no reason to depart from the unanimous precedent on the

subject.

Stanley v. Insights Training Grp., LLC, Civil Action No. 3:09-

CV-00231, 2013 WL 76123, at *7 (W.D. Ky. Jan. 4, 2013); see also

Watkins v. Fairfield Nursing & Rehab. Ctr., LLC, No. 2:11-CV-

2380-VEH, 2012 WL 1566228, at *8 (N.D. Ala. Apr. 26, 2012)

(dismissing Title VII retaliation claim in paramour case because

of plaintiff’s “incurable inability to demonstrate a ‘reasonable

belief’ that plaintiff was opposing conduct sanctioned by Title

VII).

Like the Stanley9 court, this court also does not see a

reason to “depart form the unanimous precedent” on this subject.

In light of the state of the case law and the alleged facts

surrounding Reaves’ relationship, this court finds that

Plaintiffs could not have had an objectively reasonable belief

that they were opposing gender discrimination under Title VII.

9 At least one of the cases cited by Stanley focused its

analysis not on what the employee reasonably believed, but what

the employer could reasonably have been expected to discern from

the employee’s complaint to his supervisors. See Krasner v. HSH

Nordbank AG, 680 F. Supp. 2d 502, 520 (S.D.N.Y. 2010). Stanley

itself mixed its own analysis between what the plaintiff

reasonably believed and what he communicated to his employer.

See Stanley, 2013 WL 76123, at *7. The other case cited by

Stanley analyzed the reasonableness of those plaintiffs’ beliefs

that they were opposing conduct prohibited by Title VII.

Plaintiffs’ complaints to AFS are open to the same criticism

about what they reasonably conveyed to AFS. Plaintiffs’

allegations regarding their complaints to AFS do not indicate

they complained about gender discrimination, but about

“favoritism.” (Compl. (Doc. 1) ¶¶ 23–24, 27–28, 30–31.) Warren’s

April 2017 EEOC charge named gender discrimination, but, as laid

out above, the allegations do not support the inference that AFS

knew about that charge. (Id. ¶ 32.)

ii. Reasonableness of Beliefs: Sexual Harassment and

Hostile Work Environment

Plaintiffs allege that they were also opposing what they

believed to be an emerging hostile work environment. The court

finds Plaintiffs could not have reasonably believed that they

were opposing a sexually hostile work environment.

First, however, the court notes that it appears Plaintiffs

make more of their concerns about a sexually hostile work

environment in their response brief than their Complaint does

with facts. (See Pls.’ Resp. (Doc. 17) at 10–12.) Plaintiffs

argue that, given the Fourth Circuit’s direction in Boyer-

Liberto that reasonableness be read broadly in the retaliation

context, their beliefs about Reaves’ emerging modus operandi

were reasonable. (Id. at 11–12.) However, Plaintiffs’ own claim

for relief in Claim One is that Reaves’ “favoritism” was

affecting their own careers, not any type of sexually hostile

environment. Plaintiffs allege “gender discrimination”

throughout their first claim. (Compl. (Doc. 1) ¶¶ 58-61.)

Warren’s April 2017 EEOC Charge alleged “gender discrimination,”

not sexual harassment or hostile work environment. (Id. ¶ 60.)

Even Plaintiffs’ November 2017 EEOC charges did not mention a

hostile work environment. (Id. ¶¶ 53–54.) Concerns about

“preferential treatment” pervades Plaintiffs’ allegations

regarding their cooperation with the HR investigation. (Id.

¶ 59.) There is a brief mention of a “hostile work environment”;

Plaintiffs allege that, after relaying their concerns to HR

about Reaves’ preferential treatment and misuse of company

funds, they “further raised concerns of a potentially hostile

work environment.” (Id.) Viewing Plaintiffs’ allegations as a

whole, these “concerns” seem minor when compared to the

complaints of favoritism and preferential treatment. Still, the

court will address the reasonableness of any belief a hostile

work environment was emerging.

“[W]hen the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment, Title VII is

violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(internal citations and quotations omitted). Plaintiffs who are

victims of a sexually hostile work environment must allege facts

that allow a court to infer the following elements: “(1)

unwelcome conduct; (2) that is based on the plaintiff’s sex; (3)

which is sufficiently severe or pervasive to alter the

plaintiff’s conditions of employment and to create an abusive

work environment; and (4) which is imputable to the employer.”

Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 192

(4th Cir. 2000) (emphasis added). “[A] single, non-coercive

sexual relationship between a co-worker and supervisor resulting

in preferential treatment to her and not” a male coworker

“do[es] not rise to the level of alleging a workplace permeated

with sexually discriminatory ‘intimidation, ridicule, and

insult.’” O’Patka v. Menasha Corp., 878 F. Supp. 1202, 1208

(E.D. Wis. 1995) (quoting Harris, 510 U.S. 17); see also Tucker,

2013 WL 5309143, at *2; Sherk, 432 F. Supp. 2d at 1372;

Buenrostro v. Flight Safety Int’l, Inc., No. Civ.A.SA-99-

CA0819FB, 2001 WL 674171, at *6 (W.D. Tex. Mar. 2, 2001), report

accepted, No. Civ.A.SA-99-CA-819FB, 2001 WL 685719 (W.D. Tex.

Mar. 28, 2001), aff’d in part, 62 F. App’x 556 (5th Cir. 2003);

Murray, 203 F. Supp. 2d at 499; Elger v. Martin Mem’l Health

Sys., Inc., 6 F. Supp. 2d 1351, 1353 (S.D. Fla. 1998); Miller,

679 F. Supp. at 502. “The law is clear regarding so-called

paramour preferential treatment. A co-worker’s romantic

involvement with a supervisor does not by itself create a

hostile work environment.” Mathews v. City of La Verne, No.

CV 96-1163 JGD, 1997 WL 351073, at *5 (C.D. Cal. Mar. 13, 1997).

However, “[t]he EEOC states that widespread favoritism

based upon consensual sexual relationships may give rise to a

hostile work environment claim where such behavior conveys an

implicit message ‘that the managers view women as “sexual

playthings,” thereby creating an atmosphere that is demeaning to

women.’” Ahern, 2009 WL 2591320, at *7 (quoting EEOC Notice No.

915–048, § C (Jan. 12, 1990)). But “[w]idespread favoritism

refers to an environment where multiple supervisors are engaging

in [the] behavior.” Bartniak v. Cushman & Wakefield, Inc., 223

F. Supp. 2d 524, 532 (S.D.N.Y. 2002) (emphasis added).

Witnessing “favoritism by a single supervisor toward a single

employee” is not widespread and cannot be viewed as a hostile

work environment. Ahern, 2009 WL 2591320, at *7 (citing McGinnis

v. Union Pac. R.R., 496 F.3d 868, 874 (8th Cir. 2007) (“A single

allegation against [a supervisor] cannot constitute widespread

sexual favoritism.”)).

Plaintiffs’ allegations do not plausibly allege that AFS

had a sexually hostile work environment. Plaintiffs observed

only one supervisor engaged in a consensual relationship with

one employee. Though they do allege they were told about

another, previous affair between Reaves and another employee,

(1) the allegations still name only one supervisor, Reaves, and

(2) the fact that Plaintiffs did not personally observe that

affair reduces its potency.10

Plaintiffs’ allegations fail to plausibly allege a sexually

hostile work environment, but the key issue is still whether it

was reasonable for them to think they were opposing a hostile

work environment either presently or potentially. In other

cases, where plaintiffs alleged retaliation for reporting

paramour relationships they claimed were creating hostile work

environments, courts have held such beliefs unreasonable. Kelly,

716 F.3d at 15; Marcus v. Leviton Mfg. Co., No. 15-CV-656

(SJF)(GRB), 2016 WL 74415, at *6 (E.D.N.Y. Jan. 6, 2016), aff’d,

661 F. App’x 29 (2d Cir. 2016); Mathews, 1997 WL 351073, at *6;

see Clark v. Cache Valley Elec. Co., 573 F. App’x 693, 702 (10th

Cir. 2014) (affirming summary judgment); McManus v. Town of

Hamburg, No. 12-CV-036S, 2014 WL 2434949, at *8 (W.D.N.Y.

May 30, 2014) (summary judgment); Tucker, 2013 WL 5309143, at *2

10 “There is, of course, the other alleged affair Gott had

with a subordinate prior to the start of plaintiff’s employment

with defendant, about which she learned from other employees.

However, the contribution of this other alleged affair to any

hostile work environment is significantly diminished because

plaintiff did not witness the conduct during her own employment.

See Cowan v. Prudential Ins. Co. of America, 141 F.3d 751, 757

(7th Cir. 1998) (noting that an employee could not use

statements of a co-worker to make out a Title VII violation

because, in part, the employee was not exposed to the conduct).”

Ahern, 2009 WL 2591320, at *7.

(summary judgment); Dehaan v. Urology Ctr. of Columbus LLC, No.

4:12-CV-6 (CDL), 2013 WL 3227678, at *3 (M.D. Ga. June 25, 2013)

(summary judgment); Jackson v. Flowers Bakery of Cleveland,

L.L.C., No. 1:07-cv-112, 2008 WL 2002459, at *9 (E.D. Tenn.

May 7, 2008) (summary judgment); Drummond v. IPC Int’l, Inc.,

400 F. Supp. 2d 521, 535 (E.D.N.Y. 2005) (summary judgment).

This court finds that Plaintiffs did not have an objectively

reasonable belief that there was a sexually hostile work

environment at AFS.

Further, Plaintiffs’ allegations are devoid of any sexually

explicit conduct between Reaves and the female employee.11

Plaintiffs do not allege that Reaves and the employee engaged in

sexual banter, that Reaves made inappropriate sexual remarks, or

anything of the like. As the Second Circuit said in Kelly when

affirming dismissal of a retaliation claim for complaining about

an allegedly hostile environment stemming from a paramour

relationship,

[t]here is nothing in Kelly’s complaint, however, to

indicate that her sex, in one way or another, played a

substantial role in her brothers’ behavior. Although

Kelly alleges that she repeatedly used the words

11 It is for this reason that Plaintiffs’ reliance on Boyer-

Liberto is misplaced. That case involved limited, but

reprehensible conduct, including physically threatening behavior

and racial slurs. Boyer-Liberto, 786 F.3d at 269–70. If

Plaintiffs had alleged any hostile conduct by Reaves, Boyer-

Liberto might apply, but they did not, and it does not.

“discrimination” and “harassment” when complaining to

her employers, her argument that the widespread sexual

favoritism constituted gender discrimination because it

resulted in an atmosphere demeaning to women is

entirely unsupported by the allegations in her

complaint. Kelly does not allege that [the paramours]

engaged in sexually explicit behavior or conversations

in the office, or that [the supervisor] took any

actions or made any statements that were of a sexual or

gender-specific nature that could be perceived as

demeaning to women. Nothing in the complaint indicates

that sexual discourse displaced standard business

procedure in a way that prevented Kelly from working in

an environment in which she could be evaluated on

grounds other than her sexuality.

Kelly, 716 F.3d at 15–16 (alterations in original) (internal

quotations omitted). The same could be said of Plaintiffs’

Complaint here.

Finally, even if Plaintiffs had an objectively reasonable

belief that they were opposing a sexually hostile work

environment, their complaints to AFS did not convey that they

were complaining about Title VII conduct. Fourth Circuit

precedent holds “that an employee’s complaint constitutes

protected activity when the employer understood, or should have

understood, that the plaintiff was opposing discriminatory

conduct.” Burgess v. Bowen, 466 F. App’x 272, 282 (4th Cir.

2012); see also Strothers, 895 F.3d at 335; Richardson v.

Richland Cty. Sch. Dist., 52 F. App’x 615, 617 (4th Cir. 2002);

Krasner, 680 F. Supp. 2d at 520.

Plaintiffs’ complaints to AFS were not clearly tied to

Title VII. Plaintiffs’ allegations regarding their complaints to

AFS do not indicate they complained about gender discrimination

or a hostile work environment, but about “favoritism.” (Compl.

(Doc. 1) ¶¶ 23–24, 27, 30–31.) Specifically, Plaintiffs allege

the following:

23. Doyle reported his concerns that Reaves was

showing favoritism towards the Female Employee to

Warren, his immediate supervisor.

24. Plaintiffs believed that Reaves’ misuse of

company funds to further his relationship with the

Female Employee were tantamount to embezzlement of

company money.

. . . .

27. In March of 2017, Plaintiffs each had

discussions with one of AFS’s board members and

managers, Bobby Davis, in which they reported Reaves’

conduct and their concerns, including not only the

preferential treatment of the Female Employee, but also

the misuse of company money to further the same.

28. Warren specifically raised concerns that

Reaves[] had a position of power over the Female

Employee, and was concerned that he was exerting his

influence to further the inappropriate relationship,

and questioned whether the relationship was consensual

under the circumstances. Warren’s concern was

essentially that Reaves was creating a hostile work

environment for female employees.

(Id. ¶¶ 23–24, 27–28.) The only mention of gender discrimination

comes at the end of paragraph twenty-eight when Plaintiffs

summarize, after the fact, the gist of the discussion, and that

summary is not a well-pleaded fact. All other facts mention

“favoritism” and “misuse of company funds.”12 A few references

by Plaintiffs to “gender discrimination” and a “hostile

environment” do not change the nature of Plaintiffs’ allegations

about what they actually told AFS. See Kelly, 716 F.3d at 15

(“Although Kelly alleges that she repeatedly used the words

‘discrimination’ and ‘harassment’ when complaining to her

employers, her argument that the widespread sexual favoritism

constituted gender discrimination because it resulted in an

atmosphere ‘demeaning to women’ is entirely unsupported by the

allegations in her complaint.”).

The results of Plaintiffs’ complaints to AFS seem to

confirm their disassociation from Title VII. According to

Plaintiffs, AFS reprimanded Reaves because he was improperly

using company funds and showed “favoritism.” (Id. ¶¶ 31, 33

(“[HR] suggested Reaves had breached his fiduciary duties . . .

[and] [Reaves’] actions were a breach of the AFS Board’s

expectations and trust . . . .”).) Furthermore, as indicated by

the material quoted in the Complaint, Plaintiffs apparently had

the ability to read and quote from the HR investigation

findings, (see id. ¶¶ 31, 35), yet there is no quote from the

12 Warren’s April 2017 EEOC charge named gender

discrimination, but, as laid out above, Plaintiffs’ allegations

do not support the inference that AFS knew about that charge.

(Compl. (Doc. 1) ¶ 32.)

report mentioning concerns about Reaves as the creator of a

sexually hostile work environment. The HR report did note that

Reaves had shown “favoritism.” (Id. ¶ 32.)13

In summary, Plaintiffs did not have an objectively

reasonable belief that they were opposing a hostile work

environment. Even if they did, they have not plausibly alleged

that they reasonably communicated that concern to AFS. For these

reasons, any claim to have opposed a sexually hostile

environment will not save Plaintiffs’ retaliation claim.

iii. Plaintiffs’ Beliefs about Reaves’ Conduct were

not Reasonable

Considering all the alleged facts, as well as the clear

state of the case law regarding favors to paramours, this court

finds that Plaintiffs have failed to plausibly allege facts that

allow this court to conclude they had a reasonably objective

belief about Reaves’ conduct. As such, Plaintiffs’ oppositional

activity based on those beliefs does not qualify as protected

activity. Plaintiffs fail to plausibly allege facts allowing

13 Plaintiffs argue that “[i]t is incredible that AFS, who

acted upon Plaintiffs’ reports and eliminated the liability, now

contend those reports did not even meet the ‘reasonable belief’

standard.” (Pls.’ Resp. (Doc. 17) at 12.) Plaintiffs fail to

acknowledge the reasons AFS had to issue a reprimand: favoritism

and abuse of company funds, two reasons that are not related to

any Title VII allegations.

this court to find that the first element of a prima facie

retaliation case is present.

C. Claim One is Dismissed

In conclusion, Warren’s April 2017 EEOC charge that was

filed and then withdrawn cannot be linked to any retaliation.

Plaintiffs have failed to allege any facts from which this court

can conclude or infer that Reaves or AFS ever knew about

Warren’s participation activity. As to the oppositional

activities, Plaintiffs have also failed to allege facts that

allow this court to find their beliefs about Reaves’ behavior

reasonable. It is for these reasons that Plaintiffs have failed

to plead a plausible case of retaliation under Title VII.

Therefore, Defendant’s Motion to Dismiss pursuant to Rule

12(b)(6) will be granted as to Claim One.

IV. CLAIMS TWO, THREE, AND FOUR

With the only claim over which this court had original

jurisdiction to be dismissed, Claims Two, Three, and Four will

also be dismissed. A district court may dismiss a state law

claim brought before it under supplemental jurisdiction if “the

district court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3). The decision to

do so is completely within the court’s discretion. Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009); Arbaugh

v. Y & H Corp., 546 U.S. 500, 514 (2006) (“[W]hen a court grants

a motion to dismiss for failure to state a federal claim, the

court generally retains discretion to exercise supplemental

jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent state-

law claims.”).

Since this matter has not progressed past the motion-to-

dismiss stage and only state-law claims remain, the court

declines to exercise its supplemental jurisdiction over Claims

Two or Three. With all claims dismissed, Claim Four is also

dismissed as moot.

V. CONCLUSION

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendant Advanced Fraud

Solution, LLC’s (“AFS”) Motion to Dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, (Doc. 13), is

GRANTED. Claim One is DISMISSED pursuant to Fed. R. Civ. P.

12(b)(6). Furthermore, Claims Two and Three are also DISMISSED

pursuant to 28 U.S.C. § 1367(c)(3). Claim Four is DISMISSED AS

MOOT. All claims are dismissed without prejudice.

A judgment in accordance this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 19th day of March, 2020.

% .

A A L. Shun ~

United States District Jud

-Al-