# POUNCEY v. GUILFORD COUNTY

> District Court, M.D. North Carolina · March 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10253478

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 17, 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/10253478

## How later opinions describe it (automated extraction)

- noting that the use of such materials has “but one limitation: the document must be of unquestioned authenticity”
- discussing Desert Palace and noting the series of acts where plaintiff was treated differently than employees outside protected class
- noting that failure to quote specific evidentiary rules in an objection could result in a failure to preserve the issue
- noting that a “pattern of criticism and animosity” by plaintiff's supervisors that began almost immediately after her protected activity could serve as evidence of animus in the interim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MONICA POUNCEY, )
)
Plaintiff, )
)
v. ) 1:18CV1022
)
GUILFORD COUNTY, )
MARTY LAWING, in his official )
and personal capacities, )
HEMANT DESAI, in his official )
and personal capacities, and )
JEFFREY SOLOMON, in his )
official and personal )
capacities, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before the court is Defendants’ Motion to Dismiss, (Doc.
7), pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. 7.) Plaintiff’s Complaint includes eight claims
- two for failure to promote under Title VII and 42 U.S.C.
§ 1981, two for discrimination under Title VII and Section 1981,
and four for retaliation under Title VII and Section 1981. (Doc.
1.) As a part of their motion to dismiss, Defendants attach ten
exhibits. (See Docs. 9, 10.) Plaintiff filed a response to the
Motion to Dismiss which included objections to the exhibits
attached to Defendants’ motion.1 (Docs. 11; 14.) In that
Response, Plaintiff asks the court to strike all of Defendants’
exhibits. (Doc. 14.) Defendants filed a Reply to Plaintiff’s
Response, (Doc. 15), and Plaintiff filed an objection to the
propriety of Defendants’ Reply under the local rules, (Doc. 16).
The issues in Defendants’ Motion to Dismiss, (Doc. 7), and

Plaintiff’s Objection to Defendants’ Reply, (Doc. 16), are all
ripe for ruling. For the reasons stated herein, the court will
grant in part and deny in part Defendants’ Motion to Dismiss.
The court will sustain Plaintiff’s objection to Defendants’
Reply. Finally, the court will not consider any of Defendants’
exhibits.
I. FACTUAL AND PROCEDRUAL BACKGROUND
On a motion to dismiss, a court must “accept as true all of
the factual allegations contained in the complaint . . . .” Ray
v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (citing King v.
Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). The facts

alleged, taken as true, include the following.2

1 Plaintiff originally filed a Notice of Objection, (Doc.
11), which this court denied without prejudice to Plaintiff
raising the objections in the motion to dismiss, (Doc. 13 at 1).

2 These facts are taken only from the Complaint. As will be
explained below, the court will not consider any of Defendants’
exhibits.
A. Background
Plaintiff, Monica Pouncey, is a former employee with
Defendant, Guilford County. (Compl. (Doc. 1) ¶¶ 12, 14, 41.)
Plaintiff is an African American female. (Id. ¶ 11.) Defendants
are Guilford County, North Carolina, (id. ¶ 4), as well as
individual Defendants Marty Lawing, County Manager of Guilford

County; Hemant Desai, Guilford County Chief Information Officer;
and Jeffrey Solomon, the Enterprise Technology Team Lead for
Guilford County, (id. ¶¶ 5-7).
Pouncey started working for Guilford County as a software
engineer in February 2008. (Id. ¶ 12.) In 2011, she became an
email administrator on the Enterprise Technology Team. (Id.
¶¶ 14, 15.) Solomon became Pouncey’s supervisor in 2014. (Id.
¶ 15.) At that time, the Enterprise Technology Team that Solomon
led consisted of four employees: two white, and two African
American. (Id. ¶ 16.)
After Solomon began as the team leader, he started

excluding Pouncey and the other African American employee from
projects, communications, and meetings. (Id. ¶ 17.) Solomon also
spoke to the African American employees in a disrespectful tone
that he did not use with white employees. (Id. ¶ 18.) Requests
for training by white employees were granted, while requests by
African American employees were denied. (Id. ¶ 19.)
B. The 2016 Position
In early 2016, Pouncey saw a posting for a senior software
engineer position; this was a higher-level position, with higher
pay, in the same department where Pouncey was working. (Id.
¶ 20.) The opening was removed before the application deadline
and before Pouncey had applied; soon after the opening was

removed, Solomon and Desai announced they had given the job to
one of Pouncey’s white teammates. (Id. ¶ 21.)
Pouncey asked Desai why the position had been removed
early. (Id. ¶ 22.) He responded that he did not think she was
interested in the position and that, in any event, she was not
qualified. (Id.) Around this time, Pouncey filed a complaint
with human resources (“HR”); Pouncey complained about the fact
that the position had been closed before the deadline and before
she could apply. (Id. ¶ 24.) The position was then reopened to
allow Pouncey to apply. (Id. ¶ 25.)
Pouncey was not selected for the position. (Id.) Instead,

the same white employee who was originally selected still got
the job. (Id.) Pouncey had been with Guilford County’s
technology department longer than the selected employee and had
“more experience overall.” (Id. ¶¶ 12, 23.) When Pouncey asked
why she had not been selected, she was told she was “not
knowledgeable enough.” (Id. ¶ 28.)
C. Alleged Retaliation by Solomon
Solomon “seemed particularly angry” with Pouncey after she
filed her grievance with HR. (Id. ¶ 27.) He “began excluding her
from emails and meetings that were necessary for her job.” (Id.)
Pouncey also asked Solomon for training to remedy the fact she
was “not knowledgeable enough,” but Solomon again denied her

request. (Id.)
D. 2017 Position
In September 2017, there was another senior software
engineer position that opened. (Id. ¶ 29.) The only two
applicants were Pouncey and the other white employee on the
Enterprise Team. (Id.) This white employee had even less
experience and time with Guilford County than the previous white
applicant, and “far less than Pouncey.” (Id. ¶ 30.) Pouncey was
an “applicant[]” for the position, (id. ¶ 29), but she was
apparently terminated before the hiring decision was made, (id.
¶¶ 51, 56, 60, 65.)

E. Investigation and Termination
On September 28, 2017, Pouncey was brought into a meeting
with the Guilford County HR Manager, Ray Willis, and Desai to
discuss a suspected violation of county policies. (Id. ¶ 31.)
Desai and Willis accused Pouncey of giving herself access to
email inboxes without the users’ permission, all in an effort to
gain an advantage in the hiring process for the 2017 Position.
(Id. ¶¶ 31, 39.) Pouncey asked Willis and Desai to provide the
policy she had violated, but they did not. (Id. ¶ 32.)
Pouncey, as an email administrator, regularly had to access
inboxes to fix email problems. (Id. ¶ 33.) Pouncey admitted to
accessing the inboxes but allegedly provided documents proving
she was working on an ongoing issue “with help from Microsoft.”

(Id. ¶ 34.) Pouncey also alleges that of the email inboxes she
accessed, none of them belonged to anyone who played a role in
the hiring decision for the 2017 position. (Id. ¶ 40.) Pouncey
was terminated, and on October 26, 2017, she appealed her
termination to Lawing, but Lawing upheld the termination. (Id.
¶ 41.) After she was terminated, Pouncey was contacted by
concerned coworkers who overheard Solomon claiming he was going
to have Pouncey arrested. (Id. ¶ 43.) Solomon had also allegedly
been gloating about Pouncey’s termination. (Id. ¶ 42.)
F. Procedural History
Pouncey filed her EEOC charge on February 5, 2018, (id.

¶ 44), and received her right-to-sue letter on September 21,
2018, (id. ¶ 46). Pouncey filed suit in this court on
December 17, 2018. (Id. at 12.) Pouncey brings eight claims:
Failure to Promote under Title VII (Claim One); Failure to
Promote under 42 U.S.C. § 1981 (Claim Two); Retaliation based on
Failure to Promote under Title VII (Claim Three); Retaliation
based on Failure to Promote under 42 U.S.C. § 1981 (Claim Four);
Discrimination under Title VII (Claim Five); Discrimination
under 42 U.S.C. § 1981 (Claim Six); Retaliation based on her
termination, under Title VII (Claim Seven); and Retaliation
based on her termination, under 42 U.S.C. § 1981 (Claim Eight).
Defendants filed their motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6), (Doc. 7), as well as a supporting memorandum,

(Defs.’ Br. in Supp. of Mot. to Dismiss (“Defs.’ Br.”) (Doc.
8)). Attached to the memorandum are ten exhibits. (Docs. 9, 10.)
Plaintiff objected to the inclusion of the exhibits in a
separate objection. (Doc. 11.) The court summarily overruled the
objection without prejudice, (Doc. 13), citing to Local Rule
7.6. Plaintiff then refiled a response to Defendants’ motion to
dismiss that included several objections to Defendants’ exhibits
and requested this court to strike all exhibits. (Pl.’s
Objections and Br. in Response to Defs.’ Mot. to Dismiss (“Pl.’s
Resp.”) (Doc. 14).)3 Defendants filed a reply, (Doc. 15), to
which Pouncey objected, citing Local Rule 7.3, (Doc. 16).

3 While Plaintiff requests that the court “strike” the
exhibits, this court only finds it necessary to determine
whether any exhibits should be considered in ruling on
Defendants’ motion to dismiss. As will be explained, only
Exhibit Seven is properly before the court, though the court
will decline to consider it.
II. MATERIALS PROPERLY BEFORE THE COURT
Before turning to the motion to dismiss, the court will
first address Plaintiff’s objection to Defendants’ exhibits as
well as Plaintiff’s request to strike those exhibits. Following
that analysis, the court will also address Plaintiff’s
objections to Defendants’ Reply.

A. Defendants’ Exhibits
In their memorandum in support of their motion to dismiss,
Defendants rely heavily on materials they provided that are
outside the Complaint. (See generally Defs.’ Br. (Doc. 8).)
Citing to Stewart v. Johnson, 125 F. Supp. 3d 554 (M.D.N.C.
2015), Defendants argue that this court may take judicial notice
of these documents without converting their motion into one for
summary judgment. (Defs.’ Br. (Doc. 8) at 2.) Plaintiff
disagrees, arguing that the documents provided are not central
to her claim nor are they sufficiently referred to in her
Complaint; she further argues that these exhibits are not

adequately authenticated to permit their use at the motion to
dismiss stage. (Pl.’s Resp. (Doc. 14) at 4, 9–11.) Making these
arguments, Plaintiff requests the court to strike all of the
exhibits. (Id. at 4.) For the reasons stated below, the court
finds that only Plaintiff’s Human Resources (“HR”) Complaint
Form, (Defs.’ Br. (Doc. 8), Exhibit Seven, HR Complaint (“HR
Compl.”) (Doc. 10-2)), can be properly considered at this phase,
though the court will decline to do so.
A court dealing with a motion to dismiss may only consider
“public records, documents central to plaintiff's claim, and
documents sufficiently referred to in the complaint”; even with
those types of materials, a court may only consider them “so
long as the authenticity of these documents is not disputed.”

Stewart, 125 F. Supp. 3d at 558 (quoting Witthohn v. Fed. Ins.
Co., 164 F. App’x 395, 396 (4th Cir. 2006) (per curiam)); see
also Gasner v. Cty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va.
1995) (noting that the use of such materials has “but one
limitation: the document must be of unquestioned authenticity”).
The types of materials that qualify for this narrow exception
include widely disseminated publications, see Phillips v. LCI
Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) (considering a
Dow Jones article relied on in a complaint alleging securities
fraud), as well as documents the plaintiff herself helped create
or assented to at another time. See Alt. Energy, Inc. v. St.

Paul Fire & Marine Ins. Co., 267 F.3d 30, 34 (1st Cir. 2001)
(relying on a previous settlement agreement whose authenticity
was not questioned by either party).
Defendants rely exclusively on Stewart in attempting to
convince this court to consider their extraneous materials.
(Defs.’ Br. (Doc. 8) at 2.) It is noteworthy that the Stewart
court cited cases where the materials included court records,
Witthohn, 164 F. App'x at 397, and a widely published news
article, Phillips, 190 F.3d at 618. Stewart itself dealt with
emails written by the plaintiff and notice of an official agency
decision, and neither party challenged the exhibits’
authenticity. Stewart, 125 F. Supp. 3d at 558.
Defendants rely on Stewart to argue a host of materials

that are clearly improper at this stage of the proceedings, as
briefly outlined above and more specifically explained below.
Following Plaintiff’s objections to the materials attached to
Defendants’ brief, Defendants filed a reply. In that reply
brief, Defendants cast a number of unfounded and unhelpful
aspersions on Plaintiff’s brief. (See, e.g., Defs.’ Reply (Doc.
15) at 3 (“Plaintiff’s puerile arguments . . .”), and at 9 n.5
(“Plaintiff has been overwhelmingly aggressive . . . . ”).) In
all candor, this language is not helpful to the court, nor is it
consistent with the court’s reaction to the briefing. Counsel
for Defendants would be well-advised to recall the holding of

Iqbal — it is facts, not conclusions, that are persuasive. Given
all of the hearsay statements and the absence of any persuasive
supporting authority, Defense attorneys’ arguments reflect a
gross misunderstanding of relevant facts at this stage of the
proceedings and Stewart does not save Defendants’ arguments.
In their reply brief, Defendants attempt to convince this
court with new arguments, including encouraging this court to
take judicial notice of certain documents pursuant to Fed. R.
Evid. 201. (See Defs.’ Reply (Doc. 15) at 2–8.) Even assuming
that rule applies, the documents Defendants claim are public
records are not properly authenticated. See, e.g., Fed. R. Evid.
902. This court will not accept counsel’s unilateral
authentication for consideration of the exhibits or in taking

judicial notice. Nevertheless, in spite of the foregoing, this
court will address each document in turn, beginning with the one
document this court finds could be appropriate for
consideration.
Only one document put forward by Defendants might meet the
criteria outlined above: Plaintiff’s own HR complaint. (HR
Compl. (Doc. 10-2).) This document was produced by Plaintiff and
serves as the basis for all her retaliation claims. (Compl.
(Doc. 1) ¶¶ 24, 27–28, 57, 62, 75, 80.) Though Plaintiff raises
some perfunctory authenticity objections to all the exhibits,
Plaintiff raises no specific objection to the authenticity of a

document she helped create and submitted to her employer. It
bears her name and her signature. (HR Compl. (Doc. 10-2).) It is
the only document the court could classify as being “of
unquestioned authenticity.” Gasner, 162 F.R.D. at 282. Though
Exhibit Seven could be properly considered, it contains no
information that alters this court’s 12(b)(6) analysis.
Therefore, in the interest of simplicity, the court declines to
consider Exhibit Seven.
The rest of Defendants’ proffered exhibits do not qualify
for consideration at this stage without converting Defendants’
motion to one for summary judgment. See Blankenship v. Manchin,
471 F.3d 523, 526 (4th Cir. 2006).
Starting with Exhibit One, a “Merit Increase Spreadsheet,”

(Ex. 1, Doc. 9-1), the document lacks any foundation as to its
authenticity. It is not clear Plaintiff ever saw this
spreadsheet prior to filing her complaint. Though she may have
been aware of its contents in that she knew who her coworkers
were, this exhibit is (1) not self-explanatory and (2) lacks
assurances of its authenticity in that it was not widely
available, is not a public record in the way a court record or
agency decision is, and Plaintiff played no role in producing
it. Exhibit One will not be considered by the court.
In Exhibits Two, Three, and Eight, Defendants provide the
internal job posting for the first senior software engineer

position, (Ex. 3 (Doc. 9-3)), the email announcing the first
posting, (Ex. 2 (Doc. 9-2)), and the internal posting for the
second senior software engineer position, (Ex. 8 (Doc. 10-3)).
Plaintiff may have seen these documents or something like them,
but they, too, lack the requisite foundation of authenticity.
Plaintiff objects to their inclusion, see Stewart, 125 F. Supp.
3d at 558, and Defendants have not shown how they would qualify
under Fed. R. Evid. 901. The court will not consider Exhibits
Two, Three, or Eight.
Exhibits Four, Five, and Nine are also problematic. In
those, Defendants provide several spreadsheets showing when
application windows were opened, (Ex. 4 (Doc. 9-4)), and who
applied for the two senior software engineer positions, (Ex. 5

(Doc. 9-5); Ex. 9 (Doc. 10-4)). Exhibits Five and Nine both
contain captions listing them as “Internal to Department Only.”
(Id.) By their own terms, these are not widely available public
records. The fact that they are generated by an employer who
happens to be a public agency does not change the conclusion.
The court will therefore not consider Exhibits Four, Five, or
Nine.
In Exhibit Six, Defendants provide excerpts from its
policies regarding recruitment and hiring. (Ex. 6 (Doc. 10-1).)
For the same reasons the court will not consider Exhibits Two,
Three, or Eight, it will also not consider Exhibit Six.

Lastly, in Exhibit Ten, Defendants provide a copy of
Plaintiff’s termination form. (Ex. 10 (Doc. 10-5).) The form has
her name typed into the “Employee Name” space, but it lacks her
signature or a date next to her signature. (Id.) The form does
include the signature of the “Department Director.” (Id.) The
form expressly calls for Plaintiff’s signature. It does not have
it, but the form is already signed by an opposing party. This is
enough to conclude that the form lacks assurances of its
authenticity.4 The court will not consider Exhibit Ten.
In conclusion, only Exhibit Seven, Plaintiff’s HR
Complaint, (Doc. 10-2), could be considered by the court in its
analysis of Defendants’ Motion to Dismiss. Since that Exhibit
would have no effect on the court’s analysis, however, it

declines to consider it. No other exhibits should or will be
considered by the court.
The court now turns to Defendants’ Reply and Plaintiff’s
objection to that Reply.
B. Defendants’ Reply Brief and the Attached Exhibit
Defendants filed a Reply Brief that raised new arguments in
an effort to convince the court that the exhibits in their

4 The court also notes that the form’s narrative explaining
Plaintiff’s termination contains information that will be
addressed in discovery, yet that critical information has been
redacted by Defendants. (Defs.’ Br. (Doc. 8) Ex. 10, Termination
Form (Doc 10-5).) According to Defendants, that is necessarily
so because “[t]he written copy of the narrative of the final
decision setting forth the specific acts that were the basis of
the dismissal have not yet been disclosed publicly.” (Defs.’ Br.
(Doc. 8) at 8 n.5.) As noted by the Third Circuit, the exception
that allows materials outside the complaint exists, in part, to
ensure plaintiffs do not get to selectively quote from documents
in a way that is disingenuous and misleading. In re Burlington
Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
That purpose would be turned on its head by allowing Defendants
to provide some, but not all, of this critical document. The
court also notes that, even though the facts surrounding
Plaintiff’s termination are apparently not ready for public
disclosure, Defendants dedicate a significant portion of their
brief to just such facts. (See Defs.’ Br. (Doc. 8) at 6–8.)
motion were sufficiently authenticated to fit the exception
described in Stewart. (Doc. 15.) Plaintiff, pursuant to Local
Rule of Civil Procedure 7.3(h), objects to two parts of
Defendants’ Reply: (1) Defendants’ raising of new matters in the
form of arguments based on Federal Rules of Evidence 201 and
801, and (2) the use of a new exhibit in their reply. (Doc. 16

at 1–2.) Plaintiff does not move this court to strike the Reply.
(Id.) The court will sustain Plaintiff’s objections and will
therefore not consider Defendants’ Reply in its analysis.
Local Rule 7.3(h) governs reply briefs and states that “[a]
reply brief is limited to discussion of matters newly raised in
the response.” LR7.3(h). Courts in this district interpreting
Local Rule7.3(h) have consistently held that “[r]eply briefs
. . . may not inject new grounds” for argument.” Triad Int'l
Maint. Corp. v. Aim Aviation, Inc., 473 F. Supp. 2d 666, 670 n.1
(M.D.N.C. 2006). It is also improper, under Local Rule 7.3(h),
to wait until a reply brief to provide support for an

unsupported argument made in a party’s first motion. See Jarvis
v. Stewart, No. 1:04CV00642, 2005 WL 3088589, at *1 (M.D.N.C.
Nov. 17, 2005). Finally, as Local Rule 7.3(h) itself declares,
replies are limited to matters “newly raised” in a responsive
pleading. Henry v. N.C. Acupuncture Licensing Bd., No.
1:15CV831, 2017 WL 401234, at *4 (M.D.N.C. Jan. 30, 2017). In
sum, Local Rule 7.3(h) exists to give the replying party a
chance to rebut newly raised arguments, not to give the replying
party an unfair advantage in having a chance to make new
arguments that should have been raised initially. See id.; see
also Tyndall v. Maynor, 288 F.R.D. 103, 108 (M.D.N.C. 2013);
Campbell v. Town of S. Pines, No. 1:03CV00892, 2005 WL 1802405,
at *21 (M.D.N.C. July 28, 2005).

Here, Defendants asserted their right to use exhibits in
their original motion but provided minimal support for that
assertion. (Defs.’ Br. (Doc. 8) at 2.) The matter of
authenticity was indeed raised by Defendants in their brief.
(Id.) Plaintiff addressed this argument in her Response. (Pl.’s
Resp. (Doc. 14) at 4, 10–12.) In their reply, Defendants put
forward new arguments to support their contention that their
exhibits fit under the exception outlined in Stewart. (Doc. 15.)
This is precisely the kind of briefing tactic that Local Rule
7.3(h) seeks to prevent. The court will therefore not consider
Defendants’ Reply, (Doc. 15), or its additional exhibit, (Doc.

15-1).
III. MOTION TO DISMISS ANALYSIS
A. Standard of Review
Defendants move to dismiss the Complaint under Federal Rule
of Civil Procedure 12(b)(6).
A plaintiff’s complaint only needs to include “a short and
plain statement of the claim showing that he is entitled to
relief.” Glover v. United Parcel Serv., Inc., Civil Action No.
6:16-1985-TMC, 2017 WL 1160420, at *2 (D.S.C. Mar. 29, 2017)
(quoting Fed. R. Civ. P. 8(a)(2)) (alterations in original). 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). 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.
Employment discrimination complaints must meet this plausibility
standard; however, the plaintiff is not required to make out a
prima facie case of discrimination or satisfy any heightened
pleading requirements at the motion to dismiss stage.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McCleary-
Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584–85 (4th Cir.
2015). The plaintiff need only plead facts that permit the court
to reasonably infer each element of the prima facie case.

McCleary-Evans, 780 F.3d at 585; see also Coleman v. Md. Ct.
App., 626 F.3d 187, 191 (4th Cir. 2010) (stating that a
complaint must “assert facts establishing the plausibility” that
plaintiff was terminated based on race).
B. Individual Defendants
Before addressing the underlying claims, the court first
addresses Plaintiff’s suit against individual defendants.
Plaintiff is proceeding against Defendants Lawing, Desai, and
Solomon in both their official and personal capacities. (Compl.
(Doc. 1) at 1.) For the reasons stated below, the court will
dismiss all Title VII claims against the individual defendants,

but the court will deny Defendants’ motion as to the Section
1981 claims against individual defendants.
“Supervisors are not liable in their individual capacities
for Title VII violations.” Lissau v. S. Food Serv., Inc., 159
F.3d 177, 180 (4th Cir. 1998) (emphasis added); Blakney v. N.C.
A&T State Univ., No. 1:17CV874, 2019 WL 1284006, at *7 (M.D.N.C.
Mar. 20, 2019) (citing Birkbeck v. Marvel Lighting Corp., 30
F.3d 507, 510-11 (4th Cir. 1994); Lissau, 159 F.3d at 178). For
this reason, all Title VII claims against defendants in their
personal capacities will be dismissed.
Though there is some dispute about whether supervisors may
be sued individually in their official capacities under Title
VII,5 this court is unpersuaded that Lissau does not also

prohibit such suits. See Blakney, 2019 WL 1284006, at *8 n.11;
Lane v. Lucent Techs., Inc., 388 F. Supp. 2d 590, 595 (M.D.N.C.
2005); Jones v. Tyson Foods, Inc., 378 F. Supp. 2d 705, 708
(E.D. Va. 2004), aff'd, 126 F. App'x 106 (4th Cir. 2005) (“The
Fourth Circuit's decision in Lissau makes it clear that an
employee who claims that she has been sexually harassed in the
workplace must make her claim against her employer and not
against the supervisor whom she claims sexually harassed her.”).
Following the reasoning of these cases, this court will dismiss
all Title VII claims against individual defendants in their

5 See Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.
1989) vacated on other grounds, Paroline v. Unisys Corp., 900
F.2d 27 (4th Cir. 1990) (en banc) (holding that individuals may
be held liable for Title VII violations as “employers” as long
as the individual “serves in a supervisory position and
exercises significant control over the plaintiff’s hiring,
firing or conditions of employment,” but failing to discern
between individuals being sued in an individual versus official
capacity); Scannell v. Bel Air Police Dep’t, 968 F. Supp. 1059,
1067 (D. Md. 1997) (collecting cases) (“[A] long line of
authority makes plain that individuals may be sued in their
official capacity if they are substantially identified with the
defendant organization named in the EEOC charge.”).
official capacities as well.
As for Defendants’ motion to dismiss any Section 1981
claims against the individual defendants, the court denies that
motion for failure to comply with the Local Rules. Defendants’
brief on Section 1981 and individual liability is completely
devoid of citations to any supporting authorities. (See Defs.’

Br. (Doc. 8) at 22.) That portion of Defendants’ opening brief
is therefore in violation of Local Rule of Civil Procedure 7.2.
Local Rule 7.2(a)(4) requires opening briefs to contain “[t]he
argument, which shall refer to all statutes, rules, and
authorities relied upon.” LR7.2(a)(4); see also Pettiford v.
City of Greensboro, 556 F. Supp. 2d 512, 531 n.22 (M.D.N.C.
2008) (noting that failure to quote specific evidentiary rules
in an objection could result in a failure to preserve the
issue). “Judges are not expected to be mindreaders.
Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly or else forever hold its

peace.” Kirkman v. Tison, No. 1:09CV886, 2012 WL 4891624, at *4
(M.D.N.C. Oct. 15, 2012) (alterations in original) (quoting
Rivera–Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)).
Instead of trying to read Defendants’ collective mind regarding
their arguments against individual liability under Section 1981,
a particularly complex issue,6 the court will deny the motion to
dismiss Plaintiff’s Section 1981 claims against the individual
defendants; however, where Plaintiff has failed to plausibly
allege any claim at all, those claims will be dismissed as to
all defendants. As explained below, Plaintiff has failed to
plausibly allege any retaliation claim, so those claims (Claims

Three, Four, Seven, and Eight) will be dismissed as to all
Defendants. Since Plaintiff has plausibly alleged her Section
1981 failure-to-promote (Claim Two) and wrongful termination
(Claim Six) claims, the motion to dismiss those claims as
against the individual defendants will be denied without
prejudice.
C. Analysis of Plaintiff’s Claims
The court will now turn to the analysis of Plaintiff’s
underlying claims.
Title VII and Section 1981 each prohibit employment
discrimination on the basis of race. 42 U.S.C. § 2000e-2(a)(1);

42 U.S.C. § 1981. A race-based employment discrimination claim
must assert that the plaintiff “belongs to a racial minority”

6 This is especially true in the Fourth Circuit. See Howell
v. N.C. Cent. Univ., No. 1:16CV576, 2017 WL 2861133, at *12
(M.D.N.C. July 5, 2017) (“[T]here is an absence of controlling
precedent on the specific question whether § 1981 claims against
government officials in their personal capacities are
precluded.” (internal quotations and citations omitted)).
and was either not hired, fired, or suffered some adverse
employment action due to his race. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); see also Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002) (stating
that the legal standard is the same under both Title VII and
Section 1981).

1. Claims One and Two: Failure to Promote (Title VII
and Section 1981)

Plaintiff’s first and second claims allege discrimination
in Defendants’ failure to hire her for the senior software
engineer position that was posted in September 2017. (Compl.
(Doc. 1) ¶¶ 29, 48–56.)7 Defendants, relying upon facts that are
not properly before the court on this motion to dismiss, argue
that Plaintiff was terminated for nondiscriminatory reasons
before a hiring decision was made. (Defs.’ Br. (Doc. 8) at 6–7.)

7 The court notes that Plaintiff does not expressly tie her
claim to the September 2017 posting, but only does so
implicitly. (See (Compl. (Doc. 1) ¶¶ 51, 56 (“Pouncey was
terminated before she could apply . . . .”).) Indeed, Plaintiff
could not now sue under Title VII for a failure to promote in
May 2016 since she did not file her EEOC Charge until
February 5, 2018. “A charge under this section shall be filed
within one hundred and eighty days after the alleged unlawful
employment practice occurred . . . .” 42 U.S.C. § 2000e-5(e)(1).
An EEOC charge must be filed within 180 days of each discrete
action of discrimination. Id.; Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002). Failure to promote is a
discrete act that must be covered by the EEOC charge. Morgan,
536 U.S. at 114. As for Plaintiff’s Section 1981 claims, they
are not based on the May 2016 posting, so the court does not
address that issue in this Memorandum Opinion and Order.
Again referring to facts not before this court, Defendants
further argue that Plaintiff could not have known if she was
more qualified than the other candidates, and that the reason
for Plaintiff’s termination was nondiscriminatory. (Id. at 20.)
Defendants argue that Plaintiff herself admits to the
nondiscriminatory reason for her termination. (Id. (citing

Compl. (Doc. 1) ¶ 34).) Because this court will not consider
Defendants’ exhibits, and Defendants’ arguments rely upon facts
not before this court, this argument is not persuasive.
This court finds that Plaintiff has plausibly alleged a
claim for failure to promote under both Title VII and Section
1981. Because failure to promote claims under Title VII and
Section 1981 are analyzed under the same framework, the court
directs the following analysis at both claims. See Bryant v.
Aiken Reg'l Med. Ctrs Inc., 333 F.3d 536, 544–45 (4th Cir.
2003).
Title VII makes it “an unlawful employment practice for an

employer . . . to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Under that provision, it is unlawful for an employer to not
promote an employee for racially discriminatory reasons. See,
e.g., Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). In order
for a plaintiff to make out a prima facie case of failure to
promote based on race, she must allege facts that allow this
court to infer the following elements: “(1) that she is a member
of a protected group; (2) that she applied for the position in
question; (3) that she was qualified for the position; and (4)
that [defendant] rejected her for the position under

circumstances giving rise to an inference of unlawful
discrimination.” Robbins v. Rowan Vocational Opportunities,
Inc., No. 1:16CV310, 2018 WL 2338795, at *3 (M.D.N.C. May 23,
2018) (citing Carter, 33 F.3d at 458). These elements are not
“intended to be rigid, mechanized or ritualistic.” See
Swierkiewicz, 534 U.S. at 512.
There is no dispute that Plaintiff, an African American
female, is a member of a protected class. Apparently, there is
also no dispute that Plaintiff applied for the senior software
engineer position that was posted in September 2017.8 Defendants
do dispute Plaintiff’s allegations that she was qualified for
the position and that she was rejected for the position under
circumstances giving rise to an inference of unlawful
discrimination.
a. Third Element: Qualified for Position

Regarding qualifications for a position, a plaintiff’s raw
assertion that she was qualified is insufficient to meet the
12(b)(6) standard. See McKissick-Melton v. N.C. Cent. Univ., No.
1:16-CV-605, 2016 WL 6806234, at *2–3 (M.D.N.C. Nov. 17, 2016);
McCaskey v. Henry, No. 3:10-CV-390-GCM, 2012 WL 1118851, at *3
(W.D.N.C. Apr. 3, 2012). At the motion to dismiss stage,
however, a plaintiff need not conclusively establish that they
were as or more qualified for the position than the employee who

8 Plaintiff is not consistent in her allegations about
whether she applied for the position. In her Complaint, she
never expressly states that she applied for the September 2017
position, only alleging once that she was one of two
“applicants” for the position. (Compl. (Doc. 1) ¶ 29.) On the
other hand, Plaintiff states three times that she “would have
applied . . . had she not been terminated.” (Id. ¶¶ 49, 54, 58.)
In her Response to Defendants’ motion to dismiss, Plaintiff now
claims she applied for the September 2017 position. (Pl.’s Resp.
(Doc. 14) at 15.) To support this proposition, Plaintiff cites
not her Complaint, but Defendants’ motion to dismiss. (Id.)
Despite these inconsistencies, when viewing the Complaint in a
light most favorable to Plaintiff, the court concludes that she
has adequately alleged that she applied for the September 2017
position. The facts as determined at a later stage may establish
that this finding is incorrect.
was promoted. See Alexander v. City of Greensboro, 762 F. Supp.
2d 764, 795 (M.D.N.C. 2011). A plaintiff must only allege
sufficient facts to support the reasonable inference that they
were at least as qualified for the position as the chosen
candidate, see id., and thus raise the right to relief “above
the speculative level,” McCleary-Evans, 780 F.3d at 585 (quoting

Twombly, 550 U.S. at 555).
On this prong, Plaintiff has alleged enough facts to raise
her right to relief above the speculative level. At the time she
applied for the September 2017 software engineer position, she
had been with the Guilford County technology department for more
than eight years. (See Compl. (Doc. 1) ¶ 12.)9 She first served
as a software engineer, then as an email administrator. (Id.
¶¶ 12, 14.) According to the Complaint, when she applied for the
September 2017 senior engineer position, the only other
candidate was someone with less experience and less time
employed with Guilford County. (Id. ¶ 30.) As in Alexander, it

is unclear what qualifications this other candidate possessed,

9 Of course, length of tenure with an employer is not,
without more, necessarily enough to establish one’s
qualification for a job. See, e.g., Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 270 (4th Cir. 2005). With
certain exceptions, the qualifications for the position that
were actually set by Defendants will eventually control the
analysis. Id. At this stage, however, Plaintiff’s experience in
the same department where she would have been working in the new
position is a relevant fact.
but that employee was allegedly afforded training that was
denied to Plaintiff and the other African American on the
Enterprise Technology Team. (Id. ¶ 19.) These allegations are
enough at this stage. See Taylor v. N.C. Dep't of Revenue, No.
3:12-CV-860, 2014 WL 1315990, at *2 (W.D.N.C. Apr. 1, 2014).
Indeed, even the Fourth Circuit, when discussing Swierkiewicz,

seemed to suggest that similar allegations would plausibly
support a claim for failure to promote. See McCleary-Evans, 780
F.3d at 586 (“Swierkiewicz alleged specifically that the new
chief underwriting officer was ‘less experienced and less
qualified’ for the position because he ‘had only one year of
underwriting experience at the time he was promoted,’ whereas
Swierkiewicz ‘had 26 years of experience in the insurance
industry.’ . . . [T]his last detail is precisely the kind of
allegation that is missing from McCleary–Evans' complaint
. . . .”).
Plaintiff herself does raise a possible issue with her

qualification for both the 2016 and 2017 positions. After she
was not selected for the 2016 position, Plaintiff alleges she
was informed she was “not knowledgeable enough” for the job.
(Compl. (Doc. 1) ¶ 26.) This statement does not change the
analysis at this phase — Plaintiff also alleges that African
American employees were denied the training needed to gain
whatever knowledge they lacked for promotion. (Id. ¶¶ 19, 21,
28, 29.) Claiming Plaintiff was not knowledgeable enough while
also refusing her training that was allegedly provided to white
employees is all sufficient to permit an inference of
discrimination, creating an issue that cannot be resolved on a
motion to dismiss.
The court concludes that Plaintiff has alleged facts

plausibly supporting the inference that she, an eight-year
veteran of the Guilford County technology department, was
qualified10 for a senior posting in that same department.
b. Discriminatory Intent
Plaintiff has also alleged sufficient facts to support the
fourth element of the prima facie case, discriminatory intent.
“A showing that a member outside of the protected class received

10 Of course, another important qualification for any
internal promotion is that the employee be an employee of the
organization within which she seeks promotion. See Oliver v.
Nat'l Beef Packing Co., LLC, 294 F. App'x 455, 458 (11th Cir.
2008); Johnston v. Centurylink, Inc., No. C11-5588 BHS, 2012 WL
5295147, at *6 (W.D. Wash. Oct. 26, 2012). In both of those
cases, plaintiffs were unable to bring failure to promote claims
since they were not employed at the time the promotion decision
was made. Unlike the present case, however, both of those
decisions were rendered at summary judgment, after the
plaintiffs had a chance to probe the reasons for their
termination. A similar decision would be premature when, as
here, a plaintiff facing a motion to dismiss has plausibly
alleged that her employer was acting with discriminatory intent
leading up to her termination. Prima facie standards are
evidentiary standards, not pleadings standards, and were not
created as “rigid, mechanized or ritualistic” schemes of proof.
Swierkiewicz, 534 U.S. at 512.
a promotion instead of the plaintiff is sufficient to create an
inference of discrimination” and thus survive a motion to
dismiss. McCaskey v. Henry, 461 F. App'x 268, 270 (4th Cir.
2012) (citing Carter, 33 F.3d at 458); Rodriguez v. Elon Univ.,
No. 1:17CV165, 2018 WL 1997987, at *5 (M.D.N.C. Apr. 27, 2018),
aff'd, 751 F. App'x 395 (4th Cir. 2018). Plaintiff alleges that

the position she sought in September 2017 was filled by a white
coworker. (Compl. (Doc. 1) ¶ 30.) Plaintiff also alleges that
the previous senior software engineer position was filled by
another white coworker, and that in her team of four, the two
white employees were chosen over her both times. (Id. ¶¶ 19, 23,
30.) Both facts support a plausible allegation that Plaintiff’s
termination was racially motivated.
Further, if a plaintiff is denied the training necessary
for a promotion that is given to nonminority employees, then
that denial can also serve as evidence of discrimination. See
Alexander, 762 F. Supp. at 795 (discussing a situation where an

African American police officer was denied funding to attend a
certification course); see also Patterson v. McLean Credit
Union, 491 U.S. 164, 217–18 (1989) (Brennan, J., concurring in
part, dissenting in part) (abrogated by statute on other
grounds) (noting that failing to train a plaintiff for a
position can be one of the “innumerable different ways” a
plaintiff can prove intentional discrimination).
When Plaintiff was not promoted in May 2016, she was told
it was because she was “not knowledgeable enough.” (Id. ¶ 26.)
However, when Plaintiff asked for the training she needed to
gain that knowledge, Solomon denied her request. (Id. ¶ 28.)
Such training had been denied to Plaintiff and the other African
American employee in her section, but it had been provided to

the two white employees. (Id. ¶ 19.) Both of those white
teammates were eventually given the jobs for which Plaintiff
applied. (See id. ¶¶ 21, 29, 51.) These facts support an
inference of discriminatory intent.
For these reasons, the court finds that Plaintiff’s First
and Second Claims should be allowed to proceed against Defendant
Guilford County. Regarding individual defendants, as stated
above in Section III.B, Claim One will be dismissed against all
individual defendants, but Claim Two will proceed as to the
individual defendants, as Defendants have failed to put forth a
persuasive argument under the Local Rules.

2. Claims Five and Six: Discrimination Under Title
VII and Section 1981

Plaintiff’s Fifth Claim is for discrimination under Title
VII, and her Sixth Claim is for discrimination under Section
1981. In both claims, Plaintiff alleges that her October 2017
termination was motivated by racial bias. (Compl. (Doc. 1)
¶¶ 69, 74.) Defendants’ counter with factual assertions outside
the Complaint, and some outside their proffered exhibits, to
show that Plaintiff was terminated for violating county
policies. (Defs.’ Br. (Doc. 8) at 7-8.) Defendants rely heavily
on these exhibits, (see id. at 11, 19–20), most of which, for
the reasons stated above, are not proper on a motion to dismiss.
Staying within the Complaint, Defendants do assert that

Plaintiff herself admits to the nondiscriminatory reason for her
firing. (Id. at 20.) For the reasons stated below, the court
finds that Plaintiff has plausibly alleged discrimination claims
under Title VII and Section 1981 relating to her termination.
As with Plaintiff’s claims for failure to promote, her
claims for discrimination under Title VII and Section 1981 are
analyzed under the same framework. See, e.g., Wilson v. Legal
Assistance of N. Dakota, 669 F.2d 562, 563 (8th Cir. 1982); Dove
v. United Parcel Serv., Inc., 912 F. Supp. 2d 353, 361 (M.D.N.C.
2012) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295
(4th Cir. 2004)). Plaintiff offers no direct evidence of

discriminatory intent behind her termination, so she proceeds
under the McDonnell Douglas burden-shifting framework.
Under the McDonnell Douglas framework, a plaintiff must
allege facts allowing the court to infer the following elements:
that “(1) [she is a member of a protected class; (2) [she]
‘suffered an adverse employment action’; (3) [her] job
performance was satisfactory; and (4) the adverse employment
action occurred ‘under circumstances giving rise to an inference
of unlawful discrimination.’” Brown v. Gibson, No. 4:17-CV-180-
FL, 2018 WL 4113339, at *5 (E.D.N.C. Aug. 29, 2018) (quoting
Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 558
(4th Cir. 2011); Griggs v. Casual Corner Grp., Inc., No.
3:02CV277, 2005 WL 1983888, at *7 (W.D.N.C. Aug. 10, 2005); see

Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001) (ADA
case).
The fourth element, discriminatory intent, is satisfied if
“similarly-situated employees outside the protected class
received more favorable treatment.” White, 375 F.3d at 295. An
inference of discriminatory intent can also be made when there
are multiple motives behind an employer’s action; discrimination
need not be the only motivation behind an employer’s adverse
action, but it must have been a “motivating factor.” See Desert
Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003); Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 317 (4th Cir.

2005). What is more, “[a]fter Desert Palace, . . . a plaintiff
need not present direct evidence of discrimination, but must
only present sufficient evidence that racial (or other illegal)
discrimination motivated the employer's adverse employment
decision.” Jones v. Southcorr, L.L.C., 324 F. Supp. 2d 765, 774
(M.D.N.C.), aff'd, 117 F. App'x 291 (4th Cir. 2004). It is not
necessary that a plaintiff show that she was terminated under
circumstances where members outside the protected class were
not; instead, an inference of discrimination can be drawn from
differential treatment leading up to the termination. See
Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 192–93 (4th Cir.
2003) (discussing Desert Palace and noting the series of acts
where plaintiff was treated differently than employees outside

protected class).
Defendants do not contest that Plaintiff is a member of a
protected class or that she suffered an adverse employment
action in the form of her termination. Defendants implicitly
contest the satisfactory-performance prong11 and expressly
contest any inference of discriminatory intent.
Plaintiff alleges facts that give rise to a reasonable
inference of discriminatory motivation in Defendants’ decision

11 Since Defendants do not expressly raise the satisfactory
performance element, the court briefly addresses it here.
Defendants’ version of the events surrounding Plaintiff’s
termination portray her as unqualified in that she allegedly
violated county policies. (Defs.’ Br. (Doc. 8) at 21–22.)
Whatever the merit of Defendants’ claims, at the motion to
dismiss phase, the complaint generally controls, and this
Complaint alleges facts that, when taken as true, portray
Plaintiff as an email administrator accessing inboxes as a part
of her duties. (Compl. (Doc. 1) ¶¶ 33–34.) Further, Plaintiff
alleges she had been an email administrator since 2011, meaning
she had retained her job for almost seven years prior to her
termination. (Id. ¶¶ 14, 37-38.) These facts give rise to the
reasonable inference that her performance had been satisfactory
leading up to the inbox access incident in September/October
2017.
to terminate her. Of the four team members on the email
Enterprise Technology Team, the African American members were
both denied training that would have helped them to advance.
(Compl. (Doc. 1) ¶ 19.) When Plaintiff was told she was “not
knowledgeable enough” for the first senior software engineer
position, she asked for training, only to be denied. (Id. ¶ 28.)

The first senior software engineer position was filled by a
white employee with less experience on the team than Plaintiff.
(Id. ¶ 23.) According to the Complaint, Solomon excluded the
African American employees from emails and meetings and would
speak to them in a disrespectful tone he did not use with white
employees. (Id. ¶¶ 17–19.) The second senior software position
was filled by the other white employee, who had even less
experience than the first and “far less” than Plaintiff. (Id.
¶ 30.)
When Defendants started their initial investigation, they
accused Plaintiff of violating a policy they could not cite or

produce. (Id. ¶ 32.) Plaintiff admitted to accessing the inboxes
of others, but allegedly provided proof that the access was
pursuant to an ongoing technical issue she was helping address.
(Id. ¶ 34.) After she was terminated, Plaintiff was contacted by
concerned coworkers; they were concerned because Solomon had
allegedly been boasting about getting her fired and was even
threatening to have her arrested. (Id. ¶¶ 42–43.)
These facts, taken as true, support a reasonable inference
that Plaintiff’s termination was motivated, at least in part, by
racial animus. The court finds Plaintiff has plausibly alleged a
racially discriminatory motive in her termination. Plaintiff
alleges facts about how African Americans were excluded from
training, meetings, emails, and were denied promotions. That

alleged course of conduct is sufficient, at this stage, to infer
a racially discriminatory motive.
Since Plaintiff has alleged facts that plausibly support
her claim for wrongful termination, Defendants’ motion will be
denied as to Claims Five and Six against Defendant Guilford
County. As stated above in Section III.B, Claim Five will be
dismissed as to all individual defendants, but Claim Six against
individual defendants will proceed.
3. Retaliation: Claims Three, Four, Seven, and Eight
Plaintiff’s Third and Seventh Claims are for retaliation
under Title VII; Claims Four and Eight are for retaliation under

Section 1981. For the reasons explained below, the court finds
that Claims Three, Four, Seven, and Eight should all be
dismissed as against all Defendants.
It is unlawful for an employer to “discriminate against any
of his employees . . . because [the employee] has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII.
42 U.S.C. § 2000e–3(a). “A prima facie retaliation claim under
42 U.S.C. § 1981 has the same elements” as one under Title VII.
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th
Cir. 2015). “To establish a prima facie case of retaliation
. . . , a plaintiff must prove (1) that she engaged in a
protected activity, as well as (2) that her employer took an

adverse employment action against her, and (3) that there was a
causal link between the two events.” Id. (internal citations and
quotations omitted). Defendants do not challenge Plaintiff on
the first or second prong. (Defs.’ Br. (Doc. 8) at 16.) Instead,
Defendants focus their challenge on the causation prong.
Proving causation at the pleading stage is “not an onerous
burden,” and retaliation plaintiffs “do not have to show at the
prima facie stage that their protected activities were but-for
causes of the adverse action.” Strothers v. City of Laurel, 895
F.3d 317, 335 (4th Cir. 2018).12 Still, plaintiffs must allege
facts plausibly supporting an inference of causation, a task

that may be accomplished by alleging facts that show the

12 Defendants are incorrect that Plaintiff must show but-for
causation at this stage in the proceedings. If a plaintiff’s
complaint survives to the pretext stage in the McDonnell Douglas
framework, it is at that point that they must prove but-for
causation. Strothers, 895 F.3d at 335 (citing Foster v. Univ. of
Md.-E. Shore, 787 F.3d 243, 251 (4th Cir. 2015), and noting that
a “plaintiff need not establish but-for causation until pretext
stage of burden-shifting framework”); see also Perkins v. Int'l
Paper Co., 936 F.3d 196, 214 (4th Cir. 2019).
employer took an adverse action “soon after becoming aware” of
protected activity. Id. at 336 (emphasis added); see also Villa
v. CavaMezze Grill, LLC, 858 F.3d 896, 899, 901 (4th Cir. 2017)
(discussing importance of an employer’s subjective knowledge
since an adverse action must be motivated by a desire to
retaliate in order to be actionable); Carter, 33 F.3d at 460

(dealing with termination following notice employee filed EEOC
charge); Welton v. Durham Cty., No. 1:17-CV-258, 2018 WL
4656242, at *3 (M.D.N.C. Sept. 27, 2018), aff'd, No. 18-2340,
2019 WL 4051959 (4th Cir. Aug. 28, 2019) (discussing Strothers,
895 F.3d at 335–36). For these reasons, discriminatory conduct
that continues unchanged after protected activity cannot support
an inference of retaliatory motivation without some further
factual allegations. Hamilton v. Prince George's Cty., Civil
Action No. DKC 17-2300, 2019 WL 4735429, at *5 (D. Md. Sept. 27,
2019) (“[E]ven assuming that harassment sufficient to constitute
an adverse employment action occurred, Plaintiff has by no means

shown that the continuation of Sgt. Manley’s harassment after
her complaints was causally linked to the complaints
themselves.”); see also O'Connor v. Cameron, No. CV DKC 17-3394,
2019 WL 1112281, at *6 (D. Md. Mar. 11, 2019) (finding that a
causal connection exists when “the employer [took] the adverse
employment action because the plaintiff engaged in a protected
activity” (emphasis added) (quoting Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998));
Blackburn v. Commonwealth of Va. Dep't of Corr., No.
1:01CV00039, 2002 WL 242352, at *4 (W.D. Va. Feb. 19, 2002)
(noting that evidence that a plaintiff’s superiors “treated her
differently soon after the complaint was made” was sufficient to
survive a motion for summary judgment) (emphasis added).

If a plaintiff is proving causation by temporal proximity alone,
the adverse action must be “very close” to the protected
activity. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74
(2001) (per curiam). Gaps of three or four months between
protected activity and an adverse action have been found
insufficient to support an inference of causation in other
cases. See id. (citing, with approval, cases where courts found
periods of three and four months too long); King v. Rumsfeld,
328 F.3d 145, 151 n.5 (4th Cir. 2003) (finding that two-and-a-
half months probably too long a lapse in time, barring other
circumstances that explain the gap). Closer to this case, the

Fourth Circuit has found a lapse of thirteen months too long to
establish causation. Causey v. Balog, 162 F.3d 795, 803 (4th
Cir. 1998) (“A thirteen month interval between the charge and
termination is too long to establish causation absent other
evidence of retaliation.”). If too long a period of time passes
between the protected activity and the retaliatory conduct,
“courts may look to the intervening period for other evidence of
retaliatory animus.” Lettieri v. Equant Inc., 478 F.3d 640, 650
(4th Cir. 2007).
In the present case, more than sixteen months passed
between the time Plaintiff filed her complaint with HR and the
date upon which Defendants opened their investigation, the first
employment action coming close to “materially adverse.”13 (Compl.

(Doc. 1) ¶¶ 24, 31.) Sixteen months is too long a period to
support an inference of causation without some other facts. See
Causey, 162 F.3d at 803; see also Hinds v. Sprint/United Mgmt.
Co., 523 F.3d 1187, 1204 (10th Cir. 2008) (11-month gap too
long); Vasquez v. Cty. of L.A., 349 F.3d 634, 647 (9th Cir.
2003) (13-month gap too long); Bishop v. Bell Atl. Corp., 299
F.3d 53, 60 (1st Cir. 2002) (12-month gap too long). Since
Plaintiff cannot prove causation by temporal proximity alone,
she must allege some conduct that can serve as “evidence of
retaliatory animus” in the period between her HR complaint and
the September 2017 investigation.

Plaintiff alleges that Solomon “seemed particularly angry
with [her] after her grievance and began excluding her from

13 See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (“In our view, a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” (internal quotations and citations
omitted)).
emails and meetings that were necessary for her job.” (Compl.
(Doc. 1) ¶ 27.) Plaintiff also alleges that she was denied
training opportunities. (Id. ¶ 19.) Plaintiff does not specify
when these alleged acts took place, as similar conduct appear to
have occurred throughout Plaintiff’s association with Solomon.
Despite the allegation that Solomon “began” taking

retaliatory action soon after the HR complaint, most of his
conduct14 was actually an unchanged continuation of his conduct
prior to the HR complaint. Prior to Plaintiff’s HR complaint,

14 Plaintiff does argue that the 2016 promotion denial was
also a retaliatory act that provides circumstantial evidence of
retaliatory animus in the interim. (Pl.’s Resp. (Doc. 14) at
22.) There are several problems with this claim. First,
Plaintiff does not allege a date for when she was denied the
position or when Solomon first expressed anger towards her; the
court cannot conclude that Solomon knew about the protected
activity at the time he made a hiring decision. Second, even if
failing to promote in 2016 was retaliatory, it does not
adequately bridge the gap between the protected activity in
April/May 2016 and the retaliatory acts, Defendants’ 2017
investigation of Plaintiff and her termination. Plaintiff does
not allege a date when she was denied the 2016 position, but she
does allege she applied after her HR complaint. (Compl. (Doc. 1)
¶¶ 24, 25.) As stated above, even three or four months can be
too long. It is unlikely Defendants waited until April 2017 to
make a hiring decision about the May 2016 posting. Third, one
act of retaliatory conduct is very different from the patterns
that other courts have relied upon when finding a causal link
over a long period of time. See, e.g., Lettieri, 478 F.3d at
650–51 (noting that a seven-month gap between protected activity
and retaliatory act was filled with retaliatory behavior,
including stripping plaintiff of supervisory responsibilities);
Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir. 1997)
(finding that a two-year gap between protected activity and
retaliatory act was linked by a “pattern of antagonism”).
Solomon excluded “Pouncey and the other African-American
employee from projects, team meetings, and communications.” (Id.
¶ 17.) The white employees also received training while the
African American employee’s requests for training were denied.
(Id. ¶ 19.) Finally, before Plaintiff filed her HR complaint,
Solomon allegedly spoke to African American employees in a

disrespectful tone that he did not use with white employees.
(Id. ¶ 18.) Solomon was allegedly upset with Plaintiff for
complaining to HR, but Plaintiff does not allege that Solomon’s
conduct changed in kind or frequency.
In short, Plaintiff alleges conduct that occurred before
the HR complaint was filed and continued, unchanged, after her
filing. Conduct occurring before a complaint is filed cannot be
motivated by retaliatory animus. Strothers, 895 F.3d at 335; see
also Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d
Cir. 2007), as amended (Aug. 28, 2007) (noting that exclusion
from an important meeting, along with other acts, suggestive of

retaliatory animus when conduct occurred after supervisor was
informed of protected activity); Hunt-Golliday v. Metro. Water
Reclamation Dist. Of Greater Chicago, 104 F.3d 1004, 1014 (7th
Cir. 1997) (noting that a “pattern of criticism and animosity”
by plaintiff's supervisors that began almost immediately after
her protected activity could serve as evidence of animus in the
interim). When a plaintiff alleges that conduct occurring prior
to plaintiff’s protected activity continued unchanged, and
provides no other facts supporting an inference of retaliatory
intent in ongoing acts, there can be no reasonable inference of
retaliatory motive. See Hamilton, 2019 WL 4735429, at *5. Though
it is conceivable that Solomon was motivated by a retaliatory
animus following Plaintiff’s HR complaint, she has not alleged

facts that raise that conclusion “above the speculative level.”
Twombly, 550 U.S. at 555.
Finally, even if the court were to infer retaliatory
animus in Solomon’s continuing conduct, Plaintiff does not
allege when these acts occurred. Without any dates or range of
dates, this court is unable to conclude if this conduct
continued up until or shortly before her termination. If the
conduct stopped after a few months, then there would still be a
significant gap in time between Solomon’s last retaliatory act
evincing animus and Plaintiff’s termination.
For these reasons, the court finds that Plaintiff’s claims

for retaliation (Claims Three, Four, Seven, and Eight) should be
dismissed for failing to state a claim. Plaintiff’s retaliation
claims should be dismissed as to all Defendants since Plaintiff
fails to plausibly allege a claim for retaliation.
Iv. CONCLUSION
For the reasons set forth herein,
IT IS HEREBY ORDERED that Plaintiff’s Objections to
Defendants’ Reply, (Doc. 16), is SUSTAINED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss,
(Doc. 7), pursuant to Rule 12(b) (6) of the Federal Rules of
Civil Procedure, is GRANTED IN PART AND DENIED IN PART. The
motion is GRANTED as to all Defendants as to Claims Three (Title
VII Retaliation), Four (Section 1981 Retaliation), Seven (Title
VII Retaliation), and Hight (Section 1981 Retaliation). The
motion is DENIED as to Defendant Guilford County as to Claims
One (Title VII Failure-to-Promote), Two (Section 1981 Failure-
to-Promote), Five (Title VII Wrongful Termination), and Six
(Section 1981 Wrongful Termination). The motion is GRANTED as to
Defendants Marty Lawing, Hemant Desai, and Jeffrey Solomon as to
Claims One (Title VII Failure-to-Promote) and Five (Title VII
Wrongful Termination) and DENIED WITHOUT PREJUDICE as to Claims
Two (Section 1981 Failure-to-Promote) and Six (Section 1981
Wrongful Termination).
This the 17th day of March, 2020.

*
Ws Akin L. Cahir. f:
United States District Ju

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253478. Public record. Not legal advice.