DIAL v. ROBESON COUNTY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTHONY DIAL, )

)

Plaintiff, )

)

v. ) 1:20CV1135

)

ROBESON COUNTY and ROBESON )

COUNTY DEPARTMENT OF SOCIAL )

SERVICES, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter comes before the court on the Motion to Dismiss

for failure to state a claim filed by Defendants Robeson County

and Robeson County Department of Social Services (“Robeson

DSS”). (Doc. 7.) This motion is brought pursuant to Fed. R. Civ.

P. 12(b)(6).

For the reasons stated herein, this court will grant in

part and deny in part Defendants’ motion.

I. FACTUAL AND PROCEDURAL 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) (quoting King v.

Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)).

Although a motion to dismiss “tests the sufficiency of a

complaint,” Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th

Cir. 2013), and this court’s evaluation is “thus generally

limited to a review of the allegations of the complaint itself,”

Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th

Cir. 2016), this court may consider documents that are

incorporated into the complaint by reference where the document

is integral to the complaint, see id. at 166, and the plaintiff

does not challenge the documents’ authenticity, see Phillips v.

LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999); see also

Norman v. Tradewinds Airlines, Inc., 286 F. Supp. 2d 575, 580

(M.D.N.C. 2003) (“The underlying concern in cases applying this

rule is to protect a plaintiff who might not have notice of (and

an opportunity to fully respond to) facts newly introduced by

the defendant in conjunction with motion of dismissal.”). Other

courts within the Fourth Circuit have considered Equal

Employment Opportunity Commission (“EEOC”) charges attached to

motions to dismiss, where plaintiffs relied on those documents

in their complaints and did not contest the exhibits’

authenticity. See, e.g., Alexander v. City of Greensboro, No.

1:09-CV-934, 2011 WL 13857, at *6-8 (M.D.N.C. Jan. 4,

2011); Cohen v. Sheehy Honda of Alexandria, Inc., No. 1:06cv441

(JCC), 2006 WL 1720679, at *2 (E.D. Va. June. 19, 2006) (finding

the EEOC charge was integral to complaint because plaintiff

“would have been unable to file a civil action without first

filing such a charge”).

This court finds that the Complaint incorporates by

reference Plaintiff’s Charges of Discrimination to the EEOC,

which Defendants attached as exhibits to their Memorandum in

Support of their Motion to Dismiss. (Ex. 1 – 2017 EEOC Charge

(Doc. 8-1); Ex. 2 – 2019 EEOC Charge (Doc. 8-2).)

First, the 2017 and the 2019 EEOC Charges are integral to

the Complaint. The same incidents form the basis for the

allegations in the Complaint and the 2017 and 2019 EEOC Charges,

(compare Complaint (“Compl.”) (Doc. 3) ¶¶ 4-13, 15-23, with 2017

EEOC Charge (Doc. 8-1); 2019 EEOC Charge (Doc. 8-2), and this

court’s jurisdiction is predicated on Plaintiff having filed the

Charges of Discrimination and received Right to Sue Letters, see

42 U.S.C. § 2000e-(5)(f) et seq. The Complaint establishes that

Plaintiff timely submitted charges to the EEOC, and the EEOC

issued Plaintiff right to sue letters for both charges. (Compl.

(Doc. 3) ¶¶ 12, 18, 22.)

Second, Plaintiff does not challenge the authenticity of

the Charges of Discrimination. Plaintiff refers to the charges

in his Complaint, (see id. ¶¶ 12, 18), and in support of his

arguments in his Memorandum in Opposition to Defendants’ Motion

to Dismiss, (see Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss

(“Pl.’s Br.”) (Doc. 10) at 2).

Defendants cite allegations in the Charges of

Discrimination in their Brief in Support of their Motion to

Dismiss. (See Br. in Supp. of Mot. to Dismiss (“Defs.’ Br.”)

(Doc. 8) at 4-5.)

In the absence of any objection, this court will consider

the allegations in the Complaint to incorporate those in the

Charges of Discrimination, and the facts contained therein will

be considered as part of Plaintiff’s Complaint. The facts, taken

in the light most favorable to Plaintiff, are as follows.

Plaintiff is a Native American male who has worked for

Defendants since 2000 “in a variety of capacities.” (Compl.

(Doc. 3) ¶ 4.) Plaintiff alleges that in 2014 he filed a charge

of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) regarding discrimination concerns. (Id.

¶ 7.)

A. Director of DSS Position

On October 10, 2016, Plaintiff applied for a position as

the Director of DSS. (Id. ¶ 8.) He interviewed and “scored the

highest of all the candidates.” (Id.) After Plaintiff’s initial

interview, “Defendants re-opened the interview phase of the

search, upon information and belief, to obtain a director of a

different race than Plaintiff.” (Id. ¶ 9). Plaintiff

re-interviewed for the position, but this time “the new

questions were specifically focused on areas in which Plaintiff

ha[d] limited experience and that the other candidate, Velvet

Nixon, had extensive experience.” (Id.) Plaintiff alleges these

questions were changed because Defendants wanted to hire a black

candidate. (Id.) The three finalists for the Director of DSS

position were black. (Id.) Ms. Nixon, a black female, was

offered and accepted the position. (Id. ¶ 10.) Plaintiff trained

Ms. Nixon in her new position. (Id. ¶ 11.)

Plaintiff filed an EEOC Charge of Discrimination within 180

days of these actions and incorporated concerns of retaliation

because of his prior EEOC activity in 2014. (Id. ¶¶ 12-13.)

B. Assistant County Manager Position

On May 1, 2019, Plaintiff applied and was interviewed for

the position of Assistant County Manager. (Id. ¶ 15.) Plaintiff

was told he was not offered the position because “he was not the

most qualified candidate.” (Id. ¶ 16.) He was also told “that

his prior EEOC activity was a negative factor in his scoring for

the position.” (Id.) Shelton Hill, a white male, “with less

education and experience and fewer qualifications than

Plaintiff” was offered and accepted the position. (Id.)

In July 2019, Plaintiff filed another EEOC Charge of

Discrimination and amended the 2017 EEOC Charge to include “this

new retaliatory information.” (Id. ¶ 18.)

On August 14, 2020 and September 9, 2020, Plaintiff

received right to sue letters on the Charges of Discrimination

from the office of the EEOC. (Id. ¶ 22.)

C. Other Allegations of Retaliation

Plaintiff makes several additional allegations of

retaliatory conduct by Defendants. First, Plaintiff alleges that

during the interview phase for the Director of DSS position, the

decisionmakers were told Plaintiff was under investigation for

Medicaid fraud. (Id. ¶ 25.) Second, in spring 2019, Plaintiff

was disqualified from consideration for the Deputy Director of

DSS position because of a potential lawsuit related to the

investigation. (Id. ¶ 27.) Third, Plaintiff alleges that because

he voiced concerns regarding racial disparity in promotions and

work environment for Native Americans, he “suffered excessive

scrutiny of his performance, was subjected to factually

unsubstantiated investigations, undermining of his authority

with staff, and deprived of promotions and a professionally

satisfying work environment as compared to his non-Native

American coworkers.” (Id. ¶ 29.)

D. Procedural History

Plaintiff filed a charge of employment discrimination

alleging race and sex discrimination and retaliation with the

EEOC on May 16, 2017. (2017 EEOC Charge (Doc. 8-1).) Plaintiff

filed another charge of employment discrimination alleging race

discrimination and retaliation with the EEOC on December 10,

2019. (2019 EEOC Charge (Doc. 8-2).)

Plaintiff filed his Complaint in Guilford County Superior

Court on November 12, 2020. (Compl. (Doc. 3).) Defendants filed

a Petition for Removal on December 16, 2020. (Doc. 1.)

Defendants then moved to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), (Doc. 7), and filed a brief in support of their

motion, (Defs.’ Br. (Doc. 8)). Plaintiff responded, (Doc. 9),

and filed a brief in support of his response, (Pl.’s Br. (Doc.

10)); and Defendants replied, (Doc. 11).

II. STANDARD OF REVIEW

Under federal law, “[t]o survive a motion to dismiss, 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)). To be

facially plausible, a claim must “plead[] factual content that

allows the court to draw the reasonable inference that the

defendant is liable” and must demonstrate “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing

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

dismiss, a court must accept the complaint’s factual allegations

as true. Id. Further, “the complaint, including all reasonable

inferences therefrom, [is] liberally construed in the

plaintiff’s favor.” Est. of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004) (citation omitted).

Nevertheless, the factual allegations must be sufficient to

“raise a right to relief above the speculative level” so as to

“nudge[] the[] claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 555, 570; see also Iqbal, 556

U.S. at 680; Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

2009) (applying the Twombly/Iqbal standard to evaluate the legal

sufficiency of pleadings). A court cannot “ignore a clear

failure in the pleadings to allege any facts which set forth a

claim.” Est. of Williams-Moore, 335 F. Supp. 2d at 646.

Consequently, even given the deferential standard allocated to

pleadings at the motion to dismiss stage, a court will not

accept mere legal conclusions as true and “[t]hreadbare recitals

of the elements of a cause of action, supported by mere

conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at

678.

Employment discrimination complaints must meet the

Twombly/Iqbal plausibility standard; however, the plaintiff is

not required to make out a prima facie case 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 is, however, required to plead facts that

permit the court to reasonably infer each element of the prima

facie case, including less favorable treatment than similarly-

situated employees outside of the protected class. McCleary-

Evans, 780 F.3d at 585; see also Iqbal, 556 U.S. at 682–83

(plaintiff must plead facts supporting reasonable inference of

discriminatory intent).

III. ANALYSIS

Plaintiff alleges the following causes of actions against

Defendants: First, race and sex discrimination in violation of

Title VII; second, retaliation in violation of Title VII; and

third, violation of §§ 1981 and 1983. (Compl. (Doc. 3) ¶¶ 7-39.)

As an initial matter, the parties disagree about whether

Defendant Robeson DSS is a proper party to this lawsuit.

(Compare Defs.’ Br. (Doc. 8) at 8-9 with Pl.’s Br. (Doc. 10) at

12-13.) Defendant Robeson DSS argues that it is not an entity

capable of being sued. (Defs.’ Br. (Doc. 8) at 8.) This court

agrees and will dismiss all claims against Defendant Robeson

DSS.

“The capacity of a governmental body to be sued in the

federal courts is governed by the law of the state in which the

district court is held.” Avery v. Burke Cnty., 660 F.2d 111,

113-14 (4th Cir. 1981); see also Fed. R. Civ. P. 17(b)(3). “In

North Carolina, in the absence of a statute, ‘the capacity to be

sued exists only in persons in being.’ Therefore, departments of

municipalities and counties are not susceptible to suit without

statutory authorization.” Evans v. Pitt Cnty. Dep’t of Soc.

Servs., 972 F. Supp. 2d 778, 788–89 (E.D.N.C. 2013), vacated in

unrelated part, appeal dismissed in part sub nom. Evans v.

Perry, 578 F. App’x 229 (4th Cir. 2014), and aff’d in part, 616

F. App’x 636 (4th Cir. 2015) (quoting McPherson v. First &

Citizens Nat’l Bank of Elizabeth City, 240 N.C. 1, 18, 81 S.E.2d

386, 397 (1954)).

Counties are legal entities capable of being sued, N.C.

Gen. Stat. § 153A-11; however, there is no statutory basis for

suing a department of social services, see Evans, 972 F. Supp.

2d at 788 (noting no statutory basis for suing a department of

social services in North Carolina); Malloy v. Durham Cnty. Dep’t

of Soc. Servs., 58 N.C. App. 61, 67, 293 S.E.2d 285, 289 (1982)

(“With respect to the County’s rights of subrogation,

its Department of Social Services is no more capable of suing in

its own name than is some lower echelon employee of such

Department.”). It is for this reason that many district courts

in North Carolina have dismissed claims against departments of

social services. See Hester v. Colvin, No. 1:16CV410, 2017 WL

375656, at *3 (M.D.N.C. Jan. 26, 2017); Evans, 972 F. Supp. 2d

at 789; Powell v. Nash Cnty. Dep’t of Soc. Servs., No. 5:14-CV-

281-FL, 2014 WL 4055831, at *2 (E.D.N.C. July 22, 2014), report

and recommendation adopted, No. 5:14-CV-281-FL, 2014 WL 4062715

(E.D.N.C. Aug. 14, 2014); Moua v. Alexander Cnty., No.

5:09CV19-V, 2012 WL 252648, at *6 (W.D.N.C. Jan. 26, 2012); see

also Johnson v. Marrow, 228 N.C. 58, 59, 44 S.E.2d 468, 470

(1947) (“Where a county is the real party in interest, it must

sue and be sued in its name.”).

Given the lack of statutory authority to proceed

independently against Robeson County’s Department of Social

Services and following the lead of many other federal courts in

this state, this court will dismiss Plaintiff’s Complaint

against Defendant Robeson DSS.

A. Title VII Discrimination

Plaintiff has alleged race-based employment discrimination

against Defendant1 pursuant to Title VII and 42 U.S.C. § 1981.2

Plaintiff’s Complaint alleges that Defendant failed to promote

Plaintiff for the Director of DSS and Assistant County Manager

positions in favor of a black female and a white male,

respectively. (Compl. (Doc. 3) ¶¶ 10, 16.)

Title VII makes it unlawful for an employer to

“discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, . . . [or] sex.” 42 U.S.C.

§ 2000e-2(a)(1). The elements of a Title VII employment

discrimination claim are: “(1) membership in a protected class;

(2) satisfactory job performance; (3) adverse employment action;

and (4) different treatment from similarly situated employees

outside the protected class.” Coleman v. Md. Ct. App., 626 F.3d

187, 190 (4th Cir. 2010); see also Gerner v. Cnty. of

Chesterfield, 674 F.3d 264, 266–68 (4th Cir. 2012) (gender). At

1 Because this court will dismiss the Complaint against

Defendant Robeson DSS, this court will use “Defendant”

hereinafter to refer to Defendant Robeson County, the remaining

defendant in these proceedings.

2 As the Fourth Circuit has explained, “[t]he elements an

employee must prove are the same under either provision.” Pryor

v. United Air Lines, Inc., 791 F.3d 488, 495 (4th Cir. 2015).

the motion to dismiss stage, Plaintiff’s allegations must also

show that discrimination is a more likely reason for disparate

treatment rather than any other “obvious alternative

explanation” that is present on the face of the complaint and

“justified by [] nondiscriminatory intent.” See Iqbal, 556 U.S.

at 682.

This court finds that Plaintiff has plausibly alleged the

first three elements of a Title VII employment discrimination

claim. First, Plaintiff has alleged that he is Native American.

(Compl. (Doc. 3) ¶ 4.) Second, Plaintiff has alleged

satisfactory job performance at the time he was not promoted.

(See id. (alleging “Plaintiff is highly qualified and has served

the Defendant in a variety of capacities, with distinction,

while so employed”).) Third, there is no apparent dispute

between the parties as to whether failure to promote constitutes

an adverse employment action, and the Fourth Circuit recognizes

the failure to promote as such. See, e.g., Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir.

2005). Therefore, the relevant question in this case is whether

Plaintiff has plausibly alleged that Defendant treated

similarly-situated non-Native American employees more favorably.

See Woods v. City of Greensboro, 855 F.3d 639, 641 (4th Cir.)

(2017).

1. Director of DSS Position

Plaintiff alleges that his non-selection as Director of DSS

was a violation of Title VII due to race and sex discrimination.

(Compl. (Doc. 3) ¶ 12.) Defendant argues that Plaintiff has

offered only conclusory statements that require this court to

speculate on the reason Plaintiff was not chosen. (Defs.’ Br.

(Doc. 8) at 12-13.) Plaintiff responds that he has established a

prima facie case of racial discrimination. (Pl.’s Br. (Doc. 10)

at 7.)3 Plaintiff further argues that at the motion to dismiss

stage he is not required to show he was more qualified than the

person selected; rather, all he is required to show is that

someone outside the protected class received the promotion. (Id.

at 8.)

The Fourth Circuit has held that conclusory allegations

that the employer was predetermined to select based on race do

not plausibly state a claim for relief under Title VII. See

3 Plaintiff’s response brief does not address sex

discrimination in violation of Title VII. (See Pl.’s Br. (Doc.

10) at 6-9.) Because Plaintiff failed to address Defendant’s

arguments regarding whether Defendant discriminated against

Plaintiff because of his sex, this court finds that Plaintiff

has abandoned this claim, and therefore this court will dismiss

Plaintiff’s claim of sex discrimination in violation of Title

VII. See Oliver v. Baity, 208 F. Supp. 3d 681, 690 (M.D.N.C.

2016) (“Courts have recognized that a party’s failure to address

an issue in its opposition brief concedes the issue.”); see also

Feldman v. L. Enf’t Assocs. Corp., 955 F. Supp. 2d 528, 536

(E.D.N.C. 2013) (gathering cases).

McCleary-Evans, 780 F.3d at 588. In McCleary-Evans, the

plaintiff, a black female, alleged her employer refused to hire

her for two different positions because of her race and sex in

violation of Title VII. Id. at 583. In support of that claim,

the plaintiff alleged the employer was “biased” and had

“predetermined” that it would select white applicants. Id.

Importantly, the complaint “did not include any allegations

regarding the qualifications or suitability of the persons hired

to fill the two positions.” Id. at 584. The Fourth Circuit thus

found it could “only speculate that the persons hired were not

better qualified, or did not perform better during their

interviews, or were not better suited based on experience and

personality for the positions.” Id. at 585-86. Therefore, the

Fourth Circuit dismissed the complaint. Id. at 586 (quoting

Iqbal, 556 U.S. at 678) (concluding the plaintiff’s complaint

“stop[ped] short of the line between possibility and

plausibility of entitlement to relief”).

This court finds that with respect to the non-hiring of

Plaintiff for the Director of DSS position, Plaintiff has failed

to plausibly allege a claim for relief. Although Plaintiff does

allege Defendant failed to hire him for the Director of DSS

position, he does not allege facts sufficient to show that the

reason Defendant failed to hire him as the Director of DSS was

because of his race. Plaintiff repeatedly alleges Defendant did

not promote Plaintiff because it wanted a non-Native American.

(See, e.g., Compl. (Doc. 3) ¶ 9.) But those “naked assertions” –

a “formulaic recitation” of the necessary elements – “are no

more than conclusions” and therefore insufficient. Iqbal, 556

U.S. at 678-79.

Specifically, Plaintiff alleges that Defendant re-opened

the interview phase “to obtain a director of a different race

than Plaintiff,” and that the questions in the second interview

were changed to favor Ms. Nixon because the questions were about

“areas in which Plaintiff has limited experience and that the

other candidate, Velvet Nixon, had extensive experience.”

(Compl. (Doc. 3) ¶ 9.) In short, Plaintiff is claiming that

Defendant predetermined to select someone who was a different

race than Plaintiff. This is conclusory and insufficient to

state a claim for relief under Title VII. See McCleary-Evans,

780 F.3d at 586 (“The allegation that the [employer] did not

hire [the employee] because its decision makers were biased is

simply too conclusory.”). Taking the facts alleged in the

Complaint in the light most favorable to Plaintiff, Defendant

decided to re-open the interview process and asked questions

regarding areas in which Plaintiff had limited experience.

(Compl. (Doc. 3) ¶ 9.) Plaintiff is asking this court to

impermissibly speculate that the reason for the re-interviewing

and the change in questioning was because Defendant wanted a

black person in the Director position. This court declines to do

so. See Coleman, 626 F.3d at 191 (affirming the district court’s

finding that the plaintiff failed to state a Title VII race

discrimination claim because “the complaint’s allegations of

race discrimination do not rise above speculation”).

Plaintiff also argues he is not required to show he was

more qualified than Ms. Nixon for the position of Director of

DSS. (Pl.’s Br. (Doc. 10) at 7-8.) However, in the absence of

any allegations of direct evidence of discrimination, Plaintiff

must plead facts supporting a reasonable inference of

discrimination. In Swierkiewicz, the Supreme Court noted that

the plaintiff specifically alleged that the hired employee was

“less experienced and less qualified” because that employee “had

only one year of underwriting experience at the time he was

promoted,” whereas the plaintiff “had 26 years of experience in

the insurance industry.” Swierkiewicz, 534 U.S. at 508. The

Supreme Court held that the plaintiff’s complaint was sufficient

to survive a motion to dismiss. Id. at 515. Moreover, the Fourth

Circuit in McCleary-Evans found that because the plaintiff in

McCleary-Evans alleged no facts indicating whether the plaintiff

was more experienced or qualified than the employee hired, the

plaintiff had not sufficiently stated a claim under Title VII.

See McCleary-Evans, 780 F.3d at 586 (citing Swierkiewicz, 534

U.S. at 508). An allegation that Plaintiff was more qualified

than Ms. Nixon may not be required pleading, but Plaintiff must

plead some facts to plausibly permit an inference of

discrimination.

Unlike the plaintiff in Swierkiewicz, Plaintiff has not

alleged Ms. Nixon was less experienced and less qualified for

the position of Director of DSS. At most, Plaintiff alleged he

had to train Ms. Nixon in her new position. (Compl. (Doc. 3)

¶ 11.) That allegation does not equate to a finding that Ms.

Nixon was less qualified than Plaintiff. Additionally,

Plaintiff’s allegation that “he scored the highest of all the

candidates and that he met the posted criteria,” (id. ¶ 8), for

the Director job does not plausibly allege he was more qualified

than Ms. Nixon or any other candidate when Plaintiff fails to

allege facts to explain why the “highest score” or meeting “the

posted criteria” establishes that Plaintiff was more qualified

than other candidates.

Even assuming Plaintiff has pled sufficient facts plausibly

alleging he was not promoted because he is Native American, the

face of the Complaint evidences a non-discriminatory reason for

why Plaintiff was not hired for the Director position. The

Complaint alleges that “during the interview phase for the

Director position, the decision makers were told that Plaintiff

was under investigation alleging Medicaid fraud unrelated to his

duties with the Defendants.”4 (Id. ¶ 25.) This court is not

precluded from considering obvious non-discriminatory reasons

for any disparate treatment. See Tabb v. Bd. of Educ. of Durham

Pub. Schs., No. 1:17CV730, 2019 WL 688655, at *8 (M.D.N.C.

Feb. 19, 2019) (citing Woods, 855 F.3d at 647, 648, 649, 652,

for the proposition that a court may consider “obvious non-

discriminatory alternative reasons for any disparate treatment”

at the motion to dismiss stage). The fact that Plaintiff alleges

a fact which plausibly proves a non-discriminatory basis for the

employer’s decision further dispels any possible plausible

inference of discrimination based on race. Thus, this court

finds Plaintiff has failed to sufficiently plead facts stating a

4 Plaintiff has not alleged that Defendant was investigating

the Medicaid fraud allegation against Plaintiff or who told the

decisionmakers for the Director of DSS position about the

investigation. Although it may be discriminatory for Defendant

to initiate a baseless investigation against Plaintiff in

retaliation against his protected activity, nothing in the

Complaint supports the contention that Defendant was in any way

involved with the Medicaid fraud investigation. Therefore, this

court finds that consideration of the Medicaid fraud

investigation during the interview process for the Director of

DSS position is somehow a suggestion of discrimination.

Similarly, Plaintiff offers no plausible reason why the fact of

that investigation should not have been considered by an

employer. Plaintiff appears to acknowledge he was under

investigation. (Compl. (Doc. 3) ¶ 26.)

plausible claim of race discrimination in violation of Title

VII. Accordingly, this court will grant Defendant’s Motion to

Dismiss Plaintiff’s claim for race discrimination in violation

of Title VII with respect to the non-hiring of Plaintiff as

Director of DSS.

2. Assistant County Manager Position

Plaintiff also alleges that Defendant violated Title VII’s

prohibition against racial discrimination when it failed to

promote Plaintiff to Assistant County Manager. (Compl. (Doc. 3)

¶¶ 15-18.) Defendant argues that “[m]erely stating that

Plaintiff, a Native American male, was not hired and Shelton

Hill, a Caucasian male, was hired, is not sufficient to

plausibly allege that the decision was made due to race

discrimination.” (Defs.’ Br. (Doc. 8) at 14.) Plaintiff responds

that he has made out a prima facie case of race discrimination

and has pled facts showing he was at least as qualified as

Mr. Hill. (Pl.’s Br. (Doc. 10) at 7-8.)

Here, Plaintiff alleges that he had “excellent

qualification[s]” for the Assistant County Manager position but

was told he was not promoted to the position “because he was not

the most qualified candidate.” (Compl. (Doc. 3) ¶ 16.) Plaintiff

further alleges “he was informed that his prior EEOC activity

was a negative factor in his scoring for the position.” (Id.)5

Plaintiff appears to allege that County Manager Kellie Blue was

a decisionmaker for the position, (see id. ¶ 17), but Plaintiff

does not allege Ms. Blue was aware of Plaintiff’s prior EEOC

charges. Because Plaintiff has not pled facts plausibly alleging

the decisionmakers for the Assistant County Manager position

knew of Plaintiff’s prior EEOC activity,6 Plaintiff’s prior EEOC

charge cannot be the basis of showing Defendant discriminated

against Plaintiff when it did not promote Plaintiff to Assistant

County Manager.

5 Although Plaintiff alleges that he was informed his prior

EEOC activity negatively affected his application, Plaintiff

does not describe who made this allegation, when it was made, or

whether the source had any plausible basis for that allegation.

Under these circumstances, the allegation is conclusory and

fails to provide any plausible factual support for a claim of

retaliation.

6 Plaintiff’s allegations as to the relationship between the

County Manager (Kellie Blue), the County Commissioners, and

Plaintiff’s application for Assistant County Manager is

confusingly pled. (See Compl. (Doc. 3) ¶ 17.) It appears

Plaintiff alleges that Ms. Blue was the decisionmaker in hiring

for the position. (Id. (alleging “while the selection decision

for assistant county manager was within the scope of County

Manager Kellie Blue’s duties . . . .”)) It also appears the

County Commissioners could have provided substantive input to

Ms. Blue. (Id.) Even construing these allegations in the light

most favorable to Plaintiff, Plaintiff offers no facts to

plausibly suggest the County Commissioners were aware of

Plaintiff’s EEOC claim or that the County Commissioners did in

fact provide input to Ms. Blue.

However, other allegations in the Complaint support a

finding by this court that Plaintiff has sufficiently stated a

claim for relief under Title VII. The Complaint alleges that

Mr. Hill had “less education and experience and fewer

qualifications than Plaintiff.” (Compl. (Doc. 3) ¶ 16.) This is

akin to the plaintiff in Swierkiewicz. See Swierkiewicz, 534

U.S. at 508, 515 (holding the complaint should not be dismissed

where the plaintiff alleged that he had more years of experience

and qualifications than the individual who was hired instead of

the plaintiff). Because the Complaint alleges that Plaintiff had

more education and experience than Mr. Hill (a white male), and

Defendant promoted Mr. Hill over Plaintiff, Plaintiff has

“allege[d] facts to satisfy the elements of a cause of action

created by [Title VII].” McCleary-Evans, 780 F.3d at 585.

Assuming the truth of Plaintiff’s allegations at this stage of

the proceedings, Plaintiff has alleged Defendant failed to

promote him over a white person despite Plaintiff having more

experience and qualifications. Thus, this court finds Plaintiff

has sufficiently pled facts stating a plausible claim of race

discrimination in violation of Title VII. Accordingly, this

court will deny Defendant’s Motion to Dismiss Plaintiff’s claim

for race discrimination in violation of Title VII with respect

to the non-hiring of Plaintiff as Assistant County Manager.

B. Title VII Retaliation

In addition to Plaintiff’s claim for Title VII

discrimination, Plaintiff alleges that Defendant retaliated

against him in violation of Title VII and Section 1981.7 Title

VII makes it 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). “To establish a prima facie case of

retaliation . . . , a plaintiff must prove ‘(1) that [the

employee] engaged in a protected activity,’ as well as ‘(2) that

[the] employer took an adverse employment action against [the

employee],’ and ‘(3) that there was a causal link between the

two events.’” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d

264, 281 (4th Cir. 2015) (quoting EEOC v. Navy Fed. Credit

Union, 424 F.3d 397, 405-06 (4th Cir. 2005)).

Proving causation at the pleading stage is “not []

onerous,” 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). Still, plaintiffs must allege

7 This analysis is identical for Plaintiff’s 42 U.S.C.

§ 1981 retaliation claim. Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264, 281 (4th Cir. 2015).

facts plausibly supporting an inference of causation, a task

that may be accomplished by alleging facts that show the

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 v. Ball, 33 F.3d

450, 460 (4th Cir. 1994) (dealing with termination following

notice employee filed EEOC charge); Welton v. Durham Cnty., No.

1:17-CV-258, 2018 WL 4656242, at *3 (M.D.N.C. Sept. 27, 2018),

aff’d, 781 F. App’x 242 (4th Cir. 2019) (discussing Strothers,

895 F.3d at 335–36).

If a plaintiff is proving causation by temporal proximity

alone, the adverse employment action must be “very close” in

time to the protected activity. Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001) (per curiam). “A lengthy time

lapse between the employer becoming aware of the protected

activity and the alleged adverse employment action, as was the

case here, negates any inference that a causal connection exists

between the two.” Dowe v. Total Action Against Poverty in

Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998); see also

Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th

Cir. 2017) (finding that eight to nine months between awareness

of the protected activity and the alleged adverse employment

action is not sufficiently close in time). 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).

Additionally, the Fourth Circuit has consistently required

the decisionmaker know of the protected activity at the time the

alleged retaliation occurred. See Roberts v. Glenn Indus. Grp.,

Inc., 998 F.3d 111, 124 (4th Cir. 2021) (quoting Talley v. U.S.

Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983)) (“Thus, where a

relevant decisionmaker is unaware of any prior complaints, a

plaintiff ‘cannot establish the necessary causal connection

between [his] filing a complaint . . . and [his]

termination.’”).

1. Director of DSS Position

The Complaint alleges that Plaintiff was not promoted to

Director of DSS because of his 2014 EEOC Charge. (Compl. (Doc.

3) ¶ 13.) Defendant argues that because three years separate the

2014 EEOC Charge and the non-hiring of Plaintiff for Director of

DSS in 2017, too much time has passed for this court to infer a

causal link. (Defs.’ Br. (Doc. 8) at 18.) Although, “evidence of

recurring retaliatory animus during the intervening period can

be sufficient to satisfy the element of causation,” Lettieri,

478 F.3d at 650, the Complaint does not allege additional

adverse employment actions between 2014 and 2017. This court

finds three years between the protected activity and the adverse

employment action does not establish a causal link. See Breeden,

532 U.S. at 273–74 (2001). Thus, Plaintiff has not plausibly

alleged that the failure to promote to Director of DSS was

caused by Plaintiff’s 2014 EEOC Charge. Accordingly, Plaintiff

has failed to state a Title VII retaliation claim with respect

to the non-hiring of Plaintiff for DSS Director.

2. Assistant County Manager Position

In addition to claiming Defendant retaliated against

Plaintiff when it did not hire him as Director of DSS, Plaintiff

claims Defendant retaliated against him when it did not hire him

as Assistant County Manager. (Compl. (Doc. 3) ¶ 18.) Plaintiff

claims he was not promoted because of his 2017 EEOC Charge.

(Id.)

Here, two years passed between the protected activity (the

2017 EEOC Charge) and the adverse employment action (not hired

as Assistant County Manager). This court finds that two years

between the protected activity and adverse employment action

does not establish a causal link, especially since Plaintiff has

not alleged any intervening circumstances of retaliatory conduct

by Defendants.8 See discussion supra Part III.B.1. Moreover,

Plaintiff has not alleged that the decisionmakers for hiring the

Assistant County Manager were aware of any of Plaintiff’s

protected activity. Although Plaintiff alleges “he was informed

that his prior EEOC activity was a negative factor in his

scoring for the position,” (Compl. (Doc. 3) ¶ 16), he does not

allege who informed him, nor does he allege that County Manager

Kellie Blue or any other decisionmaker was aware of Plaintiff’s

protected activity. Because two years lapsed before any

allegedly retaliatory conduct by Defendant, and because

Plaintiff has not alleged any decisionmaker was aware of his

protected activity, this court finds Plaintiff has not plausibly

alleged that the failure to promote to Assistant County Manager

was caused by Plaintiff’s 2017 EEOC Charge. Accordingly,

8 Plaintiff argues in his response brief that “[t]he causal

connection between the reporting of his concerns about racial

and gender discrimination in the first interview process and the

fraud allegations during the second interview process a few

weeks later creates a clear temporal proximity between the

events.” (Pl.’s Br. (Doc. 10) at 10.) That Plaintiff raised

concerns about race and gender discrimination in the interview

for the Director of DSS position is alleged nowhere in the

Complaint. “It is well-established that parties cannot amend

their complaints through briefing or oral advocacy.” S. Walk at

Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713

F.3d 175, 184-85 (4th Cir. 2013) (citations omitted). Therefore,

this court will not consider these new allegations in

Plaintiff’s response brief.

Plaintiff has failed to state a Title VII retaliation claim with

respect to the non-hiring of Plaintiff for Assistant County

Manager.

3. Deputy Director of DSS Position

The Complaint also alleges Defendant retaliated against

Plaintiff because Plaintiff was disqualified from consideration

for Deputy Director of DSS in spring 2019 because of a potential

lawsuit arising out of a Medicaid fraud investigation. (Compl.

(Doc. 3) ¶ 27.) This court finds Plaintiff has failed to

plausibly allege a claim for retaliation based on these facts.

First, assuming that being disqualified from consideration

for a position is an adverse employment action, it is unclear

what protected activity is linked to Defendant’s non-

consideration of Plaintiff for Deputy Director of DSS. The

Complaint contains no allegation linking Plaintiff’s non-

consideration to any protected activity. Further, the Complaint

offers a non-discriminatory reason for why Plaintiff was not

considered for the position: he was under investigation for

Medicaid fraud, which could ultimately result in litigation.

(Id.)

Second, it is unclear why this adverse employment action

was not mentioned in the 2019 EEOC Charge. The non-consideration

for Deputy Director of DSS occurred in “spring 2019” before

Plaintiff filed the 2019 EEOC Charge in July 2019, yet the 2019

EEOC Charge does not contain allegations that Plaintiff was not

considered for Deputy Director of DSS. (2019 EEOC Charge (Doc.

8-2).) Defendant argues this goes beyond the scope of the

allegations in the 2019 EEOC Charge, and “factual allegations in

formal litigation must correspond to the allegations in an EEOC

Charge.” (Defs.’ Br. (Doc. 8) at 19-20 (citing Chacko v.

Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005)).) Plaintiff

responds that Chacko does not apply because that case dealt with

one type of Title VII violation in the EEOC charge and a

different type of violation at trial. (Pl.’s Br. (Doc. 10) at

9.)9

Even if the non-consideration for Deputy Director of DSS

was linked to the 2017 EEOC charge – the most recent protected

activity prior to spring 2019 – Plaintiff has not plausibly

9 In Nealon v. Stone, the Fourth Circuit held that a

plaintiff may raise a retaliation claim for the first time in

federal court where the plaintiff did not initially allege

retaliation in the plaintiff’s EEOC charge. Nealon, 958 F.2d

584, 590 (4th Cir. 1992). Nealon engaged in protected activity

by reporting alleged gender discrimination due to different pay

grades for males and females at the same job. Id. at 587. Nealon

failed to include this protected activity as evidence of

retaliation in her EEOC charge. Id. The Fourth Circuit found a

plaintiff can raise a retaliation claim for the first time in

federal court. Id. However, Nealon does not apply because in this

case Plaintiff alleges retaliation that occurred after the

protected activity. The EEOC charge was in 2017, and the non-

selection for Deputy Director of DSS was in spring 2019. (Compl.

(Doc. 3) ¶¶ 12, 27.)

alleged a causal link between the two. Two years passed without

additional retaliatory acts between the protected activity and

retaliatory conduct. Moreover, Plaintiff does not allege that

Ms. Nixon – the decisionmaker – was aware of any of Plaintiff’s

prior EEOC charges. Therefore, this court finds Plaintiff has

failed to state a Title VII retaliation claim with respect to

the non-consideration of Plaintiff for Deputy Director of DSS.

4. Other Retaliation Allegations

The Complaint alleges additional retaliations against

Plaintiff. (Compl. (Doc. 3) ¶¶ 25, 29.) Plaintiff appears to

allege Defendant retaliated against him because he was subjected

to a Medicaid fraud investigation. (See id. ¶ 25; Pl.’s Br.

(Doc. 10) at 9.) This argument fails for several reasons. First,

Plaintiff does not allege what protected activity is linked to

the initiation of this fraud investigation. Second, Plaintiff

does not allege Defendant was initiating the investigation, or

that Defendant told the decisionmakers for the Director of DSS

position about this investigation. (Compl. (Doc. 3) ¶ 25.) For

these reasons, Plaintiff has not plausibly alleged a causal link

between the Medicaid fraud investigation and any protected

activity. See supra note 4.

Plaintiff further alleges he “suffered excessive scrutiny

of his performance, was subjected to factually unsubstantiated

investigations, undermining of his authority with staff, and

deprived of promotions and a professionally satisfying work

environment as compared to his non-Native American coworkers.”

(Compl. (Doc. 3) ¶ 29.) Although this may constitute an adverse

employment action, these allegations are unconnected to any

protected activity. Plaintiff does not allege when these

retaliatory acts occurred. Because Plaintiff has not alleged any

temporal connection between the additional retaliatory acts and

protected activity, Plaintiff fails to plausibly allege a Title

VII retaliation claim.

In sum, Plaintiff has failed to sufficiently plead facts

that plausibly allege Plaintiff was retaliated against in

violation of Title VII. Accordingly, this court will grant

Defendant’s Motion to Dismiss with respect to Plaintiff’s

retaliation claim.

C. §§ 1983 and 198110

Finally, Plaintiff alleges Defendant has violated

Plaintiff’s due process rights in violation of § 1983. (Compl.

(Doc. 3) ¶ 35-37.) “To state a claim for relief in an action

brought under § 1983, respondents must establish that they were

deprived of a right secured by the Constitution or laws of the

10 This court has previously addressed Plaintiff’s § 1981

claims in its discussion of Plaintiff’s Title VII discrimination

and retaliation claims. See supra notes 2, 7.

United States, and that the alleged deprivation was

committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49–50 (1999). Congress did not intend to

impose liability on a municipality for a violation of a

plaintiff’s constitutional rights unless deliberate action

attributable to the municipality itself was the “moving force”

behind the plaintiff’s deprivation. Bd. of Cnty. Comm’rs of

Bryan Cnty. v. Brown, 520 U.S. 397, 400 (1997) (citing Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Thus, a

plaintiff must prove two essential elements to establish

liability under § 1983: “(1) that the defendant[] acted under

color of state law and (2) that the plaintiff suffered a

deprivation of a constitutional right as a result of that

action.” Stevens v. Cabarrus Cnty. Bd. of Educ., 514 F. Supp. 3d

797, 808 (M.D.N.C. 2021) (quoting Davis v. Durham Mental Health

Developmental Disabilities Substance Abuse Area Auth., 320 F.

Supp. 2d 378, 403 (M.D.N.C. 2004)).

Under the “color of state law” requirement, a § 1983

plaintiff alleging race discrimination in violation of § 1981

and Title VII must adequately plead the following elements: “(1)

the existence of an official policy or custom (2) that is fairly

attributable to the local government (3) that proximately caused

the underlying § 1981 race discrimination.” Davis, 320 F. Supp.

2d at 403 (citing Jordan ex rel. Jordan v. Jackson, 15 F.3d 333,

338 (4th Cir. 1994)); see also Monell, 436 U.S. at 691

(“Congress did not intend municipalities to be held liable

unless action pursuant to official municipal policy of some

nature caused a constitutional tort.”).

The existence of an official policy or custom may be

established in four ways: “(1) through an express policy . . . ;

(2) through the decisions of a person with final policymaking

authority; (3) through an omission . . . that manifests

deliberate indifference to the rights of citizens; or (4)

through a practice that is so persistent and widespread as to

constitute a custom or usage with the force of law.” Lytle v.

Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal quotation

marks omitted).

In support of Plaintiff’s claim that Defendant violated his

right to due process, (Compl. (Doc. 3) ¶ 35), Plaintiff alleges

“[t]hat the Defendants’ conduct as herein set out was

purposeful, deliberate, intentional, and done with reckless

disregard of the rights of Plaintiff,” (id. ¶ 36). Plaintiff

further alleges “Defendants acted intentionally under color of

law.” (Id. ¶ 37.) This court finds that Plaintiff’s allegations

are unsupported by specific facts indicating there was any

express policy, decision of a person with final policymaking

authority, omission amounting to deliberate indifference, or

pervasive practice.

Because “[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, Plaintiff’s allegations do not

lead to a reasonable inference that Plaintiff’s constitutional

rights were violated by Defendant under color of law.

Accordingly, this court will dismiss Plaintiff’s § 1983 claim.

IV. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss,

(Doc. 7), is GRANTED IN PART AND DENIED IN PART. The motion is

GRANTED as to Plaintiff’s claim of Title VII race discrimination

in the non-promotion to Director of Department of Social

Services, Plaintiff’s Title VII retaliation claim, and

Plaintiff’s § 1981 and § 1983 claims. The motion is DENIED as to

Plaintiff’s claim of Title VII race discrimination in the non-

promotion to Assistant County Manager.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss is

GRANTED as to Defendant Robeson County Department of Social

Services and this Defendant is hereby DISMISSED from this

action.

This the 29th day of September, 2021.

LA; fir

Lb Udinm L. xX

‘United States District Ju

-35-