BOONE v. WELLS FARGO BANK, NATIONAL ASSOCIATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ADRIENNE BOONE, )

)

Plaintiff, )

)

v. ) 1:22cv51

)

WELLS FARGO BANK, )

NATIONAL ASSOCIATION, )

Defendant. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on Plaintiff’s “Second Motion

to Amend Complaint” (Docket Entry 26 (all caps font omitted)). For

the reasons that follow, the Court will grant in part and deny in

part the instant Motion.1

BACKGROUND

Plaintiff commenced this action by filing a Complaint on

January 24, 2022. (Docket Entry 1 (the “Original Complaint”).)

According to the Original Complaint:

1 For reasons stated in Deberry v. Davis, No. 1:08cv582, 2010

WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010), the undersigned

Magistrate Judge will enter an order, rather than a recommendation,

as to the Motion to Amend. See also Everett v. Prison Health

Servs., 412 F. App’x 604, 605 & n.2 (4th Cir. 2011) (explaining

that, where the plaintiff “moved for leave to amend her

complaint[] . . . to add a state-law claim of medical malpractice,”

“the magistrate judge denied [that] motion,” and the plaintiff

“timely objected, thereby preserving the issue for review by the

district court,” the district court “could not modify or set aside

any portion of the magistrate judge’s order unless the magistrate

judge’s decision was ‘clearly erroneous or contrary to law’”

(citing 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a))).

[Plaintiff] is a black female over the age of 40.

[Plaintiff] began working for Wachovia in 2006. In 2011,

[Plaintiff] was an officer at Wachovia when it was bought

by [Defendant]. [Plaintiff] continued to serve as an

officer for [Defendant] until 2017 when she took a

position as an IFS Associate. In her role as an IFS

Associate, she performed the duties of an Investment

Management Specialist, but was not salaried and did not

receive Investment Management Specialist pay, bonus[,] or

benefits.

(Id. at 3.)2 As summarized in a prior order, the Original

Complaint further alleged: “In 2019, [Defendant] terminated an

Investment Management Specialist (“IMS”)[ and] Plaintiff was

assigned that IMS’s clients but did not receive the IMS title. In

February 2020, [Defendant] posted an IMS position for which

Plaintiff applied and was interviewed.” (Docket Entry 9 at 2

(internal citations omitted).) Per the Original Complaint,

Plaintiff did not receive the position, as “[t]he position was then

cancelled and left unfilled.” (Docket Entry 1 at 4.)

Afterwards (as another prior order recounted from the Original

Complaint),

[i]n September 2020, Plaintiff emailed Wells Fargo CEO

Charlie Scharf complaining of race, sex, and age

discrimination. Subsequently, Plaintiff’s accounts were

reduced such that Plaintiff would no longer be eligible

for promotion to the IMS position, should one become

available. 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. On

January 24, 2022, Plaintiff filed her complaint in this

[C]ourt alleging race, sex, and age discrimination, as

well as retaliation. Specifically, Plaintiff alleged:

2 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

2

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.

(Docket Entry 16 at 2-3 (internal citations omitted).)

Instead of answering the Original Complaint, Defendant filed

a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) (“Rule 12(b)(6)”). (See Docket Entry 5 (Defendant’s

Motion to Dismiss); see also Docket Entry 6 (supporting

memorandum).) Thereafter, the Court (per United States District

Judge William L. Osteen, Jr.) granted Defendant’s motion to dismiss

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

discrimination but denied Defendant’s motion as to Plaintiff’s

claims for retaliation. (See Docket Entry 9 at 13-14 (“Plaintiff

offers only conclusory statements . . . and Plaintiff fails to

allege any facts to plausibly allege that the reason she was not

promoted to IMS Associate was because of her race, sex, or age.”).)

On April 28, 2023, Plaintiff, pursuant to Federal Rule of

Civil Procedure 15 (“Rule 15”), filed a Motion to Amend. (See

Docket Entry 11; see also Docket Entry 11-1 (the “First Amended

Complaint”).) However, the Court (per Judge Osteen) held that

“Plaintiff’s [First A]mended [C]omplaint lack[ed] sufficient

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

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discrimination that is plausible on its face” and, accordingly,

“denied [the motion] as futile.” (Docket Entry 16 at 14.) In

denying Plaintiff’s First Motion to Amend as futile, Judge Osteen

noted:

Plaintiff does not allege any facts related to the

qualifications required for the IMS position or the

qualifications listed in the job posting . . . . While

this [C]ourt does not require that Plaintiff allege the

qualification of any of the other applicants to the

position, . . . Plaintiff does not allege any facts

describing how she was treated differently than any

similarly situated White applicants. . . . Plaintiff

fails to allege facts to show how her qualifications

compare[d] to [the current] six [IMSs], nor does

Plaintiff allege any facts which might permit a

reasonable inference as to Plaintiff’s circumstances, or

the alleged discrimination.

(Id. at 12-13 (internal quotation marks, citations, and brackets

omitted).)

Plaintiff now has moved to amend the Original Complaint for a

second time. (See Docket Entry 26; see also Docket Entry 26-1 (the

“Second Amended Complaint”).) Defendant has responded in

opposition, asserting that the Second Amended Complaint “fails to

cure the defects . . . identified in [Judge Osteen’s] Opinion and

Order granting Defendant’s Motion to Dismiss . . . and [Judge

Osteen’s] order denying Plaintiff’s [First] Amend[ed]

Complaint . . . .” (Docket Entry 27 at 1.) More specifically,

Defendant maintained that “Plaintiff offers, again, nothing more

than conclusory allegations with respect to her discrimination

claims.” (Id.) Plaintiff replied, characterizing the Response as

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inaccurate due to the additional information provided in the Second

Amended Complaint. (See Docket Entry 28 at 5-6, 11).

RELEVANT STANDARDS

Given the procedural posture of this case and Defendant’s

refusal of consent, Plaintiff “may amend [her] pleading only

with . . . the [C]ourt’s leave. The [C]ourt should freely give

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Under

this standard, the Court has discretion, “but outright refusal to

grant the leave without any justifying reason appearing for the

denial is not an exercise of discretion.” Forman v. Davis, 371

U.S. 178, 182 (1962). The Fourth Circuit has further explained

that leave to amend a pleading should be denied “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) (internal citation and quotation marks omitted). “An

amendment is futile if the amended claim would fail to survive a

motion to dismiss pursuant to [Rule] 12(b)(6).” Hall v. Greystar

Mgmt. Servs., L.P., 637 F. App’x 93, 97 (4th Cir. 2016).

A Rule 12(b)(6) motion “tests the sufficiency of a complaint,”

but “does not resolve contests surrounding the facts, the merits of

a claim, or the applicability of defenses.” Republican Party of

N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, in

reviewing a motion to dismiss, the Court must “accept the facts

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alleged in the complaint as true and construe them in the light

most favorable to the plaintiff.” Coleman v. Maryland Ct. of App.,

626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom. Coleman v. Court

of App. of Md., 566 U.S. 30 (2012). The Court must also “draw all

reasonable inferences in favor of the plaintiff.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (Ath Cir.

2011) (internal quotation marks and citation omitted).

To avoid Rule 12(b) (6) dismissal, a complaint must contain

sufficient factual allegations “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 qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. See id.; Twombly, 550 U.S.

at 556. “Where a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Iqbal, 556

U.S. at 678 (internal quotation marks omitted). 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. “At bottom, determining whether a complaint states ...a

plausible claim for relief . . . will ‘be a context-specific task

that requires the reviewing court to draw on its judicial

experience and common sense.’” Francis v. Giacomelli, 588 F.3d

186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

To satisfy the Twombly/Iqbal plausibility pleading standard,

however, Plaintiff need not make out a prima facie case of

employment discrimination under any of the burden-shifting proof

schemes developed for such claims. See Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 515 (2002) (holding “an employment

discrimination plaintiff need not plead a prima facie case of

discrimination . . . to survive [a] motion to dismiss” because

“[t]he prima facie case . . . is an evidentiary standard, not a

pleading requirement”). Instead, Plaintiff must “allege facts to

satisfy the elements of a cause of action created by th[e

applicable] statute.” McCleary-Evans v. Maryland Dep’t of Transp.

State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).3

“Accordingly, [the Court’s] inquiry is whether [Plaintiff’s Second

3 Here, Plaintiff has alleged discrimination in violation of

Title VII, Section 1981, and the ADEA. (See Docket Entry 26-1 at

7-8.) Title VII prohibits an employer from “fail[ing] or

refus[ing] to hire or . . . discriminat[ing] against any individual

with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s race.” 42

U.S.C. § 2000e-2(a)(1). Section 1981 states that “[a]ll

persons . . . have the same right . . . to make and enforce

contracts, to sue, be parties, give evidence and to the full and

equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens.” 42 U.S.C.

§ 1981(a). The ADEA prohibits an employer from “fail[ing] or

refus[ing] to hire or . . . otherwise discriminat[ing] against any

individual with respect to [her] compensation, terms, conditions,

or privileges of employment, because of such individual’s age.” 29

U.S.C. § 623.

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Amended Complaint] alleges facts that plausibly state a violation

of Title VII[, Section 1981, and/or the ADEA] above a speculative

level.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020)

(internal quotation marks omitted).

ANALYSIS

The Second Amended Complaint includes additional factual

allegations related to Plaintiff’s claims for race, sex, and age

discrimination against Defendant. Compare Docket Entry 1 at 3-5,

and Docket Entry 11-1 at 3-5, with Docket Entry 26-1 at 3-7.

Plaintiff’s additional allegations provide sufficient facts to

enable her race and age discrimination claims to survive a Rule

12(b) (6) motion to dismiss, but her sex discrimination claims

remain deficient as a matter of law.

In the Second Amended Complaint, Plaintiff alleges Defendant

did not promote her to the IMS position because of unlawful race,

sex, and age discrimination in violation of Section 1981, Title

VII, and the ADEA. (See Docket Entry 26-1 at 7-8.) “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. 2021)); 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)(l); see also, 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 quotation marks and citation omitted); see also 29 U.S.C.

§§ 623(a), 631(a).

Plaintiff attempts to remedy the deficiencies from the First

Amended Complaint (see Docket Entry 16 at 12-14) by alleging “[t]he

required qualifications listed on the [2020 IMS] job posting”

(Docket Entry 26-1 at 4) and describing the circumstances

surrounding the promotion of the 29-year-old white female from IFS

to IMS (see id. at 5-6). Specifically, the Second Amended

Complaint alleges the following relevant facts:

The required qualifications listed on the [2020 IMS] job

posting [for which Plaintiff applied and interviewed]

were two years of investment support experience, which

[Plaintiff] more than met . . . . [T]here were six

IMS’s . . . [including] a 29-year-old white

female . . . . [N]one [of the six IMSs] had the industry

experience or certifications that [Plaintiff]

had . . . [and] at least one had less [experience than

Plaintiff]. The 29-year-old white female’s only

investment support experience was as an IFS, a position

she held with Wells Fargo for less than two years before

she was promoted to IMS. [Regional Manager David]

Wharton mentored the 29-year-old white female and Wells

Fargo paid for her to get CFP certification, a

certification that Wharton had not told [Plaintiff] was

needed for the position, and that Wells Fargo had not

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offered to help [Plaintiff] get. The 29-year-old white

female was promoted from IFS to IMS in 2019 without a

position being posted, immediately after she received her

CFP certification.

(Id. at 4-6.)

As previously established, “[P]laintiff need not plead a prima

facie case of discrimination” at this stage of the case.

Swierkiewicz, 534 U.S. at 515. Rather, Plaintiff must “allege

facts to satisfy the elements of a cause of action created by th[e

applicable] statute.” McCleary-Evans, 780 F.3d at 585.

To establish her causes of action, in her Original Complaint

and First Amended Complaint, Plaintiff alleged that “she is a

sixty-two-year-old Black female” and “provided factual allegations

concerning her experiences and certifications” relevant to the IMS

position. (Docket Entry 16 at 10.) With the Second Amended

Complaint, Plaintiff has supplemented the previously alleged “facts

to plausibly suggest that the reason she was not promoted to IMS

Associate was because of her race . . . or age” (id. at 12).

First, the Second Amended Complaint alleges the “qualifications

listed in the [2020 IMS] job posting” (id. at 13) as “two years of

investment support experience, which [she] more than met” (Docket

Entry 26-1 at 4). Next, regarding “facts describing ‘how she was

treated differently than any similarly situated white [employees]’”

(Docket Entry 16 at 13 (quoting Nadendla v. WakeMed, 24 F.4th 299,

305-06 (4th Cir. 2022)), the Second Amended Complaint alleges that

Defendant paid for the 29-year-old white female IMS associate to

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receive additional certification, which the Regional Manager “had

not told [Plaintiff] was needed for the position” (Docket Entry 26-

1 at 5). Further, according to the Second Amended Complaint,

Defendant “had not offered [the same] help [to Plaintiff].” (Id.)

Finally, the Second Amended Complaint alleges that the 29-year-old

white female received her promotion to the IMS position

“immediately after she received [the new] certification” (id. at

6), without going through a job-posting process (see id.).

These additional allegations provide “facts which suggest that

[Plaintiff] had sufficient [qualifications] to fully secure a[n IMS

position]” and an “example[] of how [Defendant] has treated

nonminority [employees] differently,” Woods v. City of Greensboro,

855 F.3d 639, 648 (4th Cir. 2017). See Brown v. Target Inc., No.

14-CV-0950, 2015 WL 6163609 at *6-7 (D. Md. Oct. 16, 2015) (“[The

plaintiff] has alleged facts sufficient to nudge her

claim . . . from conceivable to plausible. . . . [The plaintiff]

alleges . . . [the defendant] promoted younger,

white . . . associate[s] . . . [before the defendant] posted [the]

position[s] . . . . [The plaintiff] maintains that she was clearly

more qualified[ and] more experience[d] . . . than the individuals

who were selected and promoted.” (internal quotation marks

omitted)); see also Pouncey v. Guilford Cnty., No. 1:18cv1022, 2020

WL 1274264 at *9 (M.D.N.C. Mar. 17, 2020) (“[The p]laintiff has

alleged enough facts to raise her right to relief above the

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speculative level. . . . [T]he only other candidate was someone

with less experience and less time employed with [the

defendant] . . . . [T]hat employee was allegedly afforded training

that was denied to [the p]laintiff . . . . These allegations are

enough at this stage.”). Indeed, in discussing Swierkiewicz, the

Fourth Circuit indicated that such allegations would suffice to

state a claim. See McCleary-Evans, 780 F.3d at 586 (distinguishing

the plaintiff’s failure to state a claim from allegations in

Swierkiewicz by nothing that, in said Supreme Court case, the

plaintiff “alleged specifically that the new chief underwriting

officer was ‘less experienced and less qualified’ for the

position . . . [with] ‘only one year of underwriting experience at

the time he was promoted,’ whereas [the plaintiff there] ‘had 26

years of experience in the insurance industry’” and adding that

“this last detail is precisely the kind of allegation that is

missing from [the instant plaintiff’s] complaint” (quoting

Swierkiewicz, 534 U.S. at 508)).

In light of the foregoing authority, the Second Amended

Complaint’s new allegations, including (1) the listed

qualifications for the 2020 IMS job posting, (2) Plaintiff’s

qualifications in comparison with the qualifications of the newly

promoted 29-year-old white female IMS, and (3) the situation

surrounding the promotion of the 29-year-old white female IMS,

specifically that (i) Defendant provided the 29-year-old white

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female with an opportunity to receive additional certification,

(ii) Defendant did not offer Plaintiff the same certification

opportunity, (iii) Defendant told Plaintiff the additional

certification was not necessary, and (iv) without a public job

posting, Defendant promoted the 29-year-old white female to the IMS

position immediately after her completion of the additional

certification, taken together provide sufficient factual matter to

“nudge [Plaintiff’s race and age discrimination] claims across the

line from conceivable to plausible,” Twombly, 550 U.S. at 570.

However, the supplemental allegations provided in the Second

Amended Complaint remain insufficient as to Plaintiff’s claims of

sex discrimination. The Second Amended Complaint lacks any factual

allegations “which might permit a reasonable inference [of sex

discrimination].” (Docket Entry 16 at 13.) Plaintiff’s example

regarding the treatment of the 29-year-old white female IMS agent

in comparison to her own “does not provide factual support of [sex]

discrimination specific to Plaintiff.” (Id.) Consequently,

Plaintiff’s sex discrimination claim cannot proceed, as it “would

fail to survive a motion to dismiss for failure to state a claim

[for sex discrimination] pursuant to [Rule] 12(b)(6).” Syngenta

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

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CONCLUSION

Plaintiff’s Second Amended Complaint contains sufficient

factual allegations to state a claim for race and age

discrimination, but not a claim for sex discrimination.

IT IS THEREFORE ORDERED that the Second Motion to Amend

(Docket Entry 26) is GRANTED IN PART AND DENIED IN PART in that

(A) Docket Entry 26-1 is deemed the operative pleading with

Plaintiff’s sex discrimination claim stricken under Fed. R. Civ.

P. 12(f) and (B) Defendant is ordered to file an answer to said

pleading by June 17, 2024.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 3, 2024

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