# DOYLE,et al v. ADVANCED FRAUD SOLUTIONS, LLC

> District Court, M.D. North Carolina · March 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10253432

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253432

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253432. Public record. Not legal advice.