BOONE v. WELLS FARGO BANK, NATIONAL ASSOCIATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ADRIENNE BOONE, )

)

Plaintiff, )

)

v. ) 1:22-cv-51

)

WELLS FARGO BANK, NATIONAL )

ASSOCIATION, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is Plaintiff Adrienne Boone’s

Motion to Amend Complaint. (Doc. 11.) Defendant Wells Fargo

Bank, National Association, (“Wells Fargo”) filed a response in

opposition. (Doc. 14.) Plaintiff replied. (Pl.’s Reply in Supp.

of Pl.’s Mot. to Am. (“Pl.’s Reply”) (Doc. 15).) For the reasons

provided herein, Plaintiff’s motion will be denied as futile.

I. BACKGROUND

The facts, as originally alleged by Plaintiff, are

presented fully in this court’s prior Memorandum Opinion and

order addressing Defendant’s motion to dismiss. (Doc. 9.)1 For

context, they are summarized in brief as follows:

Plaintiff “is a [B]lack female over the age of [forty].”

(Mem. Op. and Ord. (Doc. 9) at 2–3 (quoting Compl. (Doc. 1)

¶ 8.) In 2017, Plaintiff was an IFS Associate at Wells Fargo.

(Id. at 2.) Plaintiff performed the duties of an Investment

Management Specialist (“IMS”) and was assigned a previous IMS’s

clients, but she was not salaried and did not receive the IMS

pay, bonus or benefits. (Id.) In February 2020, Plaintiff

applied and interviewed for an IMS position, and she was later

informed that the position was cancelled and left unfilled. (Id.

at 2–3.)

In September 2020, Plaintiff emailed Wells Fargo CEO

Charlie Scharf complaining of race, sex, and age discrimination.

(Id. at 3.) Subsequently, Plaintiff’s accounts were reduced such

that Plaintiff would no longer be eligible for promotion to the

IMS position, should one become available. (Id.)

In December 2020, Plaintiff filed a charge of employment

discrimination with the EEOC, and Plaintiff was issued a right

to sue letter in October 2021. (Id.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

On January 24, 2022, Plaintiff filed her complaint in this

court alleging race, sex, and age discrimination, as well as

retaliation. (Compl. (Doc. 1) at 5–8.) Specifically, Plaintiff

alleged: race discrimination for Plaintiff’s non-promotion to

the IMS position in violation of Title VII of the Civil Rights

Act (“Title VII”) and 42 U.S.C. § 1981; sex discrimination for

Plaintiff’s non-promotion to the IMS position in violation of

Title VII; age discrimination for Plaintiff’s non-promotion to

the IMS position in violation of the Age Discrimination in

Employment Act (“ADEA”); and retaliation in violation of

Title VII, 42 U.S.C. § 1981, and the ADEA. (Id.)

Defendant moved to dismiss all of Plaintiff’s claims.

(Doc. 5.) This court granted Defendant’s motion to dismiss

without prejudice as to Plaintiff’s claims of race, sex, and age

discrimination. This court denied Defendant’s motion as to

Plaintiff’s claims for retaliation. (Mem. Op. and Ord. (Doc. 9)

at 19–20.)

Plaintiff now moves to amend her complaint. (Doc. 11.) In

her motion to amend, Plaintiff alleges the following additional,

relevant facts:

Plaintiff’s “qualifications included 22 years of experience

in the financial industry, Certification from CFA Institute

Investment Foundations Program, Life and Health licensed in

North Carolina since November 10, 2000, and a Certified Trust

Financial Advisor since September 2015.” (Am. Compl. and Jury

Request (Doc. 11-1) ¶ 13.)

A regional manager informed Plaintiff “that she was

qualified for the Investment Management Specialist position.”

(Id. ¶ 14.)

Plaintiff “was informed the [IMS] position was cancelled on

July 1, 2020.” (Id. ¶ 19.)

“At the time, [Plaintiff] was 62 years old.” (Id. ¶ 21.)

“[T]here were 6 Investment Management Specialists: two [W]hite

females in their 30s, two [W]hite males in their 30s, a [W]hite

male who was roughly 40, and a [W]hite female who was 47.” (Id.

¶ 22.) “There [were] no Black Investment Management

Specialists.” (Id. ¶ 24.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 15(a)(1) allows a party to

amend its pleading once as a matter of course under certain

circumstances not applicable here. Otherwise, “a party may amend

its pleading only with the opposing party’s written consent or

the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should

freely give leave when justice so requires[,]” id., denying

leave “only when the amendment would be prejudicial to the

opposing party, there has been bad faith on the part of the

moving party, or the amendment would have been futile.” Laber v.

Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citation and internal

quotation marks omitted).

With respect to futility, leave to amend “should only be

denied . . . when the proposed amendment is clearly insufficient

or frivolous on its face.” Johnson v. Oroweat Foods Co., 785

F.2d 503, 510 (4th Cir. 1986) (citations omitted). “An amendment

would be futile if the amended claim would fail to survive a

motion to dismiss for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6).” Syngenta Crop Prot.,

Inc. v. E.P.A., 222 F.R.D. 271, 278 (M.D.N.C. 2004) (citation

omitted). A Rule 12(b)(6) motion tests the legal sufficiency of

a complaint. See Neitzke v. Williams, 490 U.S. 319, 326–27

(1989).

“To survive a [Rule 12(b)(6)] 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)). A claim

is plausible on its face “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Id. 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.

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.

See 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. McCleary-Evans, 780 F.3d at 585; see also

Iqbal, 556 U.S. at 682-83 (holding that the plaintiff must plead

facts supporting a reasonable inference she was discriminated

against because of her race or sex).

III. ANALYSIS

Plaintiff moves to amend her complaint with additional

factual allegations related to her claims for race, sex, and age

discrimination. This court finds those additional allegations

are futile to enable her race, sex, and age discrimination

claims to survive a Rule 12(b)(6) motion to dismiss, so this

court will deny her motion to amend.

Plaintiff alleges that she was not promoted to the IMS

position because of unlawful race, sex, and age discrimination.

(Compl. (Doc. 1) at 5–8.) “Section 1981 ‘guards generally

against race-based discrimination in the workplace.’” Marshall

v. C & S Rail Servs., LLC, No. 1:19CV986, 2021 WL 1341801, at *6

(M.D.N.C. Apr. 9, 2021) (quoting Lemon v. Myers Bigel, P.A., 985

F.3d 392, 399 (4th Cir.)); see also 42 U.S.C. § 1981. Title VII

makes it unlawful 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, . . . [or] sex.” 42 U.S.C. § 2000e-2(a)(1).

This includes failure to promote an employee on the basis of

race or sex. See, e.g., Carter v. Ball, 33 F.3d 450, 458 (4th

Cir. 1994) (discussing legal standard for failure to promote

under Title VII). “The ADEA prohibits employers from refusing to

hire, discharging, or otherwise discriminating against any

person who is at least 40 years of age because of the person’s

age.” Tickles v. Johnson, 805 F. App’x 204, 206–07 (4th Cir.

2020) (internal citations omitted); see also 29 U.S.C. §§

623(a), 631(a).

The elements required to establish a prima facie case of

race discrimination are the same under Title VII and section

1981; therefore, the court considers these claims together. See

Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 n.7 (4th Cir.

2002); Gairola v. Va. Dep’t of Gen. Servs., 753 F.2d 1281,

1285–86 (4th Cir. 1985); McDougal-Wilson v. Goodyear Tire and

Rubber Co., 427 F. Supp. 2d 595, 604 (E.D.N.C. 2006). A

plaintiff can prove race, sex, or age discrimination either

through direct evidence of discrimination or circumstantially

through the McDonnel Douglas burden-shifting framework. See

McDonnel Douglas, 411 U.S. 792, 802 (1973); see also Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.

1996) (same Title VII standard for sex discrimination); Henson

v. Liggett Grp., 61 F.3d 270, 274–75 (4th Cir. 1995) (applying

McDonnell Douglas to ADEA cases). “[I]n order to establish a

prima facie case of racial discrimination . . . under either

Title VII or section 1981, [a plaintiff] need[s] to show:

(1) membership in a protected class; (2) satisfactory job

performance; (3) adverse employment action . . .; and (4) that

similarly-situated employees outside the protected class

received more favorable treatment.” White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 295 (4th Cir. 2004).

At the motion to dismiss stage, a plaintiff is not required

to plead a prima facie case of discrimination. Swierkiewicz, 534

U.S. at 511; see also Iqbal, 556 U.S. at 682–83 (plaintiff must

plead facts supporting reasonable inference of discriminatory

intent). But a complaint alleging discrimination is not

sufficient

if, under the ordinary rules for assessing the

sufficiency of a complaint, it fails to state a

plausible claim for relief under Title VII. See

Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th

Cir. 2010) (“[W]hile a plaintiff is not required to

plead facts that constitute a prima facie case in

order to survive a motion to dismiss, factual

allegations must be enough to raise a right to relief

above the speculative level.”).

McCleary-Evans, 780 F.3d at 585 (cleaned up).

Plaintiff’s proposed amendment does not allege any facts to

plead direct or circumstantial discrimination based on race,

sex, or age. Assuming, arguendo, that Plaintiff has plausibly

alleged an adverse employment action — that is, failure to

promote — Plaintiff has not provided any facts to plausibly

allege that she was subject to unlawful discrimination.

Plaintiff’s allegations fail to “raise a right to relief above

the speculative level.” See McCleary-Evans, 780 F.3d at 585

(quoting Twombly, 550 U.S. at 555.)

Plaintiff’s allegations as to any discriminatory treatment

are merely conclusory statements. At most, Plaintiff alleges

that she is a sixty-two-year-old Black female and that the

individuals in the IMS position were younger and White. While

Plaintiff provided factual allegations concerning her

experiences and certifications, those facts standing alone

provide no basis for which to infer a discriminatory intent

sufficient to plausibly allege an adverse employment action due

to discrimination. See Tickles, 805 F. App’x at 207 (addressing

age discrimination); McCleary-Evans, 780 F.3d at 588 (applying

the same standard to race and sex discrimination).

In Tickles, the plaintiff, a 48-year-old man, alleged age

discrimination when he was “passed over” for a promotion in

favor of “two younger, less qualified individuals.” 805 F. App’x

at 205. A panel of the Fourth Circuit noted that the plaintiff’s

complaint lacked “specific allegations that would give rise to a

reasonable inference of age-based discrimination, such as the

nature of the requirements for promotion, [the plaintiff’s] own

qualifications, the qualifications and rule violations of his

proposed comparators, or even the proposed comparators’

proximity in age to his own.” Id. at 208. The Fourth Circuit

affirmed the lower court’s decision granting the defendant’s

motion to dismiss. Id.

Similarly, in Nadendla v. WakeMed, the plaintiff, a

physician of Indian origin, lost clinical and staffing

privileges at WakeMed’s hospital. 24 F.4th 299, 302 (4th Cir.

2022). The plaintiff, among other claims, sued WakeMed for race

discrimination in violation of § 1981. Id. at 303. The Fourth

Circuit affirmed the lower court’s dismissal of the plaintiff’s

§ 1981 claim, explaining that the plaintiff failed to allege

“factual details regarding race” that allowed the court “to draw

a reasonable inference as to those legal requirements” that

would enable the plaintiff to “survive a motion to dismiss.” Id.

at 305. The Fourth Circuit explained:

[The plaintiff] provides no details about any of these

conclusory allegations. For example, she does not give

any facts to suggest that [the defendant’s] treatment

of other physicians of Indian descent was unjustified.

She does not provide any details about how the peer

review process for physicians of Indian descent was

different from the process for white physicians

either. She does not even describe how she was treated

differently than the similarly situated white

physicians.

Id. at 305–06. In addition to allegations of discrimination, the

Fourth Circuit explained that the plaintiff’s “allegations about

causation fall short.” Id. at 306 (finding a pleading that

“[b]ut for Plaintiff’s race, [WakeMed]’s wrongful conduct [that]

Plaintiff alleged herein would not have occurred” does not

allege specific facts that state a plausible claim for relief)

(citing the joint appendix). The court found that the

plaintiff’s “allegations seem to be precisely the type that

Iqbal and Twombly tell us are insufficient. Because her

allegations do not provide sufficient detail to create a

plausible inference that WakeMed’s actions were because of

Nadendla’s race, she has failed to plausibly state a claim under

§ 1t981.” Id.

In comparison, the Fourth Circuit found that the plaintiffs

in Woods v. City of Greensboro, in bringing race discrimination

claims, had “alleged sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” 855 F.3d 639, 653 (4th Cir. 2017). The facts plaintiffs

alleged included: “(1) the results of a disparity study

demonstrating a pattern of the City almost exclusively lending

to nonminority-owned businesses; (2) facts which suggest that

the [business-owners’] residence had sufficient equity to fully

secure a third-position lien; and (3) examples of how the City

has treated nonminority businesses differently, including taking

a third-position lien in approving a loan to a nonminority

corporation.” Id. at 649.

Here, unlike Woods and like Nadendla, Plaintiff offers only

conclusory statements that speculate about why Plaintiff was not

selected for the IMS position, and Plaintiff fails to allege any

facts to plausibly suggest that the reason she was not promoted

to IMS Associate was because of her race, sex, or age. Plaintiff

does not allege any facts related to the qualifications required

for the IMS position or the qualifications listed in the job

posting, instead asking this court to guess that her

qualifications were those Defendant sought in the IMS position

it opened in 2020. While this court does not require that

Plaintiff “allege the qualifications of any of the other

applicants to the position,” (Pl.’s Reply (Doc. 15) at 6),

Plaintiff does not allege any facts describing “how she was

treated differently than any similarly situated [W]hite”

applicants, see Nadendla, 24 F.4th at 305–06. Similar to the

analysis in Nadendla, “factual details regarding race are

conspicuously absent.” See id. at 305.

Plaintiff alleges that the six Investment Management

Specialists were all White, but that allegation does not provide

factual support of discrimination specific to Plaintiff.

Furthermore, even if the allegation that the Management

Specialists were all White provides a circumstantial inference,

which standing alone it does not, Plaintiff fails to allege

facts to show how her qualifications compare to those six

individuals, nor does Plaintiff allege any facts which might

permit a reasonable inference as to Plaintiff’s circumstances,

or the alleged discrimination.

Accordingly, Plaintiff’s amended complaint still provides

no such factual allegations that “nudge [her] claims across the

line from conceivable to plausible.” See id. (citing Twombly,

550 U.S. at 570). Notwithstanding this court’s denial of

Defendant’s motion to dismiss Plaintiff’s retaliation claims,

her amended complaint is futile, as it “would fail to survive a

motion to dismiss for failure to state a claim [for race, sex,

or age discrimination] pursuant to Federal Rule of Civil

Procedure 12(b) (6).” See Syngenta Crop Prot., Inc., 222 F.R.D.

at 278. Plaintiff’s motion to amend, (Doc. 11), will be denied.

Iv. CONCLUSION

Plaintiff’s proposed amended complaint lacks sufficient

factual allegations to state a claim for race, sex, or age

discrimination that is plausible on its face. Accordingly,

Plaintiff’s motion to amend will be denied as futile.

For the foregoing reasons,

IT IS THEREFORE ORDERED that Plaintiff Adrienne Boone’s

Motion to Amend Complaint, (Doc. 11), is DENIED.

This the 25th day of August, 2023.

Le Minin _L. Webi Ve

United States District Type

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