BANKS v. ALAMANCE-BURLINGTON BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KEISHA BANKS, )

)

Plaintiff, )

)

v. ) 1:23CV1112

)

ALAMANCE-BURLINGTON BOARD )

OF EDUCATION, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant Alamance-Burlington Board of

Education’s (“Defendant”) Amended Motion to Dismiss Plaintiff Keisha Banks’ (“Plaintiff”)

Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

(Docket Entry 10.) Plaintiff has filed a response in opposition and Defendant has filed a reply.

(Docket Entries 15, 17.) For the reasons stated herein, the undersigned recommends that

Defendant’s motion be granted in part and denied in part.

I. BACKGROUND

Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et. seq., and under North Carolina state law, seeking damages for

Defendant’s alleged unlawful employment discrimination. (See generally, Complaint, Docket

Entry 4.) More specifically, Plaintiff, an African American female and 20-year educator, began

serving as Defendant’s Executive Director of Exceptional Children around the start of August

2018 until approximately mid-July 2022 when she was demoted by Defendant’s then newly

appointed Chief Student Services Officer Kristi Davis (“Ms. Davis”), a Caucasian female. (Id.

¶¶ 1, 9-11.) Upon information and belief, Defendant allegedly hired a new Superintendent,

Dain Butler, a Caucasian male, a few weeks earlier on or around July 1, 2022. (Id. ¶ 12.)

Plaintiff alleges that prior to being demoted, she was one of three African American females

serving in a leadership position within Alamance-Burlington County School System’s

leadership cabinet, and upon information and belief, none remained in those positions after

Mr. Butler’s hiring. (Id. ¶¶ 13-14.) Further, upon information and belief, Plaintiff alleges that

the individual that replaced her was a Caucasian female who was unqualified and lacked the

required licensure for the position. (Id. ¶¶ 16-17.)

As to the time immediately preceding her demotion, Plaintiff alleges that in June 2022,

her performance evaluations were “exemplary.” (Id. ¶ 20.) In 4 of 5 categories, Plaintiff

received the highest rating, “Distinguished,” and received an “Accomplished” rating in the

fifth category. (Id. ¶ 21.) While, upon information and belief, Ms. Davis allegedly “never

evaluated Plaintiff’s job performance prior to demoting her,” on or around July 7, 2022, Ms.

Davis began “gathering ‘data’ on the ‘state of affairs’ within the Department of Exceptional

Children.” (Id. ¶¶ 23-24.) The Complaint notes a letter Ms. Davis addressed to Plaintiff,

regarding information from “‘various stakeholders’ within the district regarding Plaintiff’s

leadership,” and whereby Ms. Davis “cites issues with Plaintiff’s communication,

professionalism, leadership, priorities, and compliance.” (Id. ¶¶ 25-26.) Plaintiff further alleges

that, upon information and belief, the “compliance” issue referred to in the letter involved

funds used “with no collection of data” which Plaintiff asserts occurred during Ms. Davis’s

tenure as Executive Director of Exceptional Children, rather than Plaintiff. (Id. ¶ 33.) Plaintiff

alleges that she received the letter from Ms. Davis on or around July 19, 2022, which reassigned

Plaintiff to the Exceptional Children Program Specialist position effective July 20, 2022,

without any discussion on the “data” gathered, or information on the “stakeholders.” (Id. ¶¶

27-29.) The letter further stated that “Plaintiff would have an opportunity to work alongside

staff to improve [her] knowledge base and receive coaching from a new Executive Director,”

however, upon information and belief, the demotion involved Plaintiff working with people

she “previously supervised and evaluated.” (Id. ¶¶ 30-31.) Ultimately, Plaintiff formally

rebutted the content of Ms. Davis’s letter on July 21, 2022. (Id. ¶ 32.)

In addition, Plaintiff makes these allegations surrounding her demotion upon

information and belief: (1) no Caucasians in leadership positions were demoted without

warning like Plaintiff; (2) several Caucasians working within the Exceptional Children

Department “were evaluated and rated far less than Plaintiff;” and (3) no Caucasians in the

department were demoted like Plaintiff. (Id. ¶¶ 35-37.) The demotion resulted in Plaintiff

being relocated to another office and she alleges, upon information and belief, that she lost

her longevity pay. (Id. ¶¶ 38, 42.) Moreover, Plaintiff alleges that if her work performance

was in question, Defendant, upon information and belief, failed to follow its own policy by

not providing her with an action plan to address any deficiencies. (Id. ¶¶ 40-41.) As a result,

Plaintiff asserts a Title VII claim and a claim for intentional infliction of emotional distress

(“IIED”). (Id. ¶¶ 47-58.)

II. DISCUSSION

Defendant moves to dismiss on several grounds: (1) Plaintiff’s Complaint is untimely;

(2) Plaintiff’s Complaint fails to state a plausible Title VII claim for racial discrimination where

it pleads on its face the non-discriminatory reasons for the employment decision; (3) Plaintiff’s

IIED claim is barred by the doctrine of governmental immunity; and (4) Plaintiff’s Complaint

fails to allege facts sufficient to state an IIED claim. (Docket Entry 11 at 4-19.) In response,

Plaintiff contends that her Complaint was timely filed, and she has stated a prima facie Title VII

claim. (Docket Entry 15 at 6-10.)1

A motion to dismiss pursuant to Rule 12(b)(6)2 tests the sufficiency of a complaint.

Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A complaint that does not

“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face’” must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct.” Id.; see also Simmons v. United Mortg. and Loan Inv., LLC, 634 F.3d

754, 768 (4th Cir. 2011) (“On a Rule 12(b)(6) motion, a complaint must be dismissed if it does

not allege enough facts to state a claim to relief that is plausible on its face.”) (citations and

quotations omitted). The “court accepts all well-pled facts as true and construes these facts

1 Plaintiff did not address Defendant’s arguments related to the IIED claim. Rather, she

simply stated, “Plaintiff has elected not to brief the [C]ourt on the [IIED claim].” (Docket Entry 15

at 11.) By failing to respond, the undersigned construes Plaintiff’s response as a concession on these

arguments. See Kinetic Concepts, Inc. v. Convatec Inc., No. 1:08CV00918, 2010 WL 1667285, at *8

(M.D.N.C. Apr. 23, 2010) (unpublished) (“[I]n a variety of different contexts, a large number of courts

. . . have recognized the general principle that a party who fails to address an issue has conceded the

issue.”) (collecting cases). Accordingly, the undersigned will recommend that this claim be dismissed.

2 Defendant moves for dismissal of Plaintiff’s IIED claim pursuant to Rule 12(b)(1) arguing

that it is barred by the doctrine of governmental immunity. “[T]he governmental immunity defense

under North Carolina law presents a question of jurisdiction.” Frye v. Brunswick Cnty. Bd. of Educ., 612

F. Supp. 2d 694, 700 (E.D.N.C. 2009) (collecting cases). Again, Plaintiff has conceded to Defendant’s

arguments related to her IIED claim. Thus, the undersigned will not further address this claim.

in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements

of a cause of action, and bare assertions devoid of factual enhancement[,] . . . unwarranted

inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the standard requires

a plaintiff to articulate facts, that, when accepted as true, demonstrate the plaintiff has stated

a claim that makes it plausible she is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193

(4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

A. Plaintiff’s Title VII Complaint was timely filed.

Defendant first argues that Plaintiff’s Complaint is untimely. (Docket Entry 11 at 4-

10.) Defendant contends that Plaintiff failed to file her Complaint within 90 days of receiving

the right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”), and

“state procedural rules cannot be used to extend a federal statute of limitations.” (Id. at 9.)

Under 42 U.S.C. § 2000e-5(f)(1), “the Commission . . . shall so notify the person aggrieved

and within ninety days after the giving of such notice a civil action may be brought against the

respondent named in the charge . . . .” The ninety-day filing period does not act as a

jurisdictional bar but rather as a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393 (1982). Equitable tolling of the statute of limitations may be permitted in cases

where “a claimant has received inadequate notice, . . . or where a motion for appointment of

counsel is pending and equity would justify tolling the statutory period until the motion is

acted upon, . . . or where the court has led the plaintiff to believe that she had done everything

required of her,” or “where affirmative misconduct on the part of a defendant lulled the

plaintiff into inaction.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984). However,

mere “failure to comply with the Rules” is not sufficient to apply the equitable tolling doctrine.

See id. at 151-152.

Here, Plaintiff’s right-to-sue letter from the EEOC was issued on August 1, 2023. (See

Docket Entry 4-2.) Within 90 days thereafter on October 25, 2023, a “Civil Summons to be

Served with Order Extending Time to File Complaint” was issued by the state court (Docket

Entry 5), and on November 14, 2023, Plaintiff filed her Complaint in state court. (Docket

Entry 4.)

Pursuant to the North Carolina Rules of Civil Procedure:

A civil action may ... be commenced by the issuance of a

summons when

(1) A person makes application to the court stating the nature and

purpose of his action and requesting permission to file his

complaint within 20 days and

(2) The court makes an order stating the nature and purpose of

the action and granting the requested permission.

N.C. R. Civ. P. 3(a)(1)-(2). Plaintiff timely filed her action in state court. Indeed, Defendant

does not dispute Plaintiff’s compliance with the state procedural rules. (See Docket Entry 11

at 7 (“Plaintiff filed a motion for extension of time to file a complaint with the Alamance

County Superior Court and secured a summons from that court. Under Rule 3(a) of the North

Carolina Rules of Civil Procedure, a ‘civil action’ is technically commenced when a motion for

extension of time is filed and granted[,] and a summons is issued.”).) However, Defendant

argues that Plaintiff cannot use the state procedural rules “to obtain an additional 20 days to

file a complaint,” thereby “thwart[ing] the limitations period” under federal law. (Id. at 9.)

Defendant’s argument is unpersuasive. First, Title VII actions may be initiated in either

federal or state court. Lassiter v. LabCorp Occupational Testing Servs., Inc., 337 F. Supp. 2d 746,

751 (M.D.N.C. 2004). Second, this Court has held that compliance with Rule 3 of the North

Carolina Rules of Civil Procedure in commencing Title VII and similar actions is permissible.

See Allen v. Fed. Express Corp., No. 1:09CV17, 2009 WL 3234699 at *4 (M.D.N.C. Sept. 30,

2009) (“[A] plaintiff may initiate a Title VII action in a North Carolina state court utilizing

either means set forth in Rule 3 of the North Carolina Rules of Civil Procedure[.]”); Lassiter,

337 F. Supp. 2d at 752 (same); Sheaffer v. Cnty. of Chatham, 337 F. Supp. 2d 709, 723-25

(M.D.N.C. 2004) (holding that the plaintiff’s claims under the Americans with Disabilities Act

(“ADA”) filed after receiving a 20-day extension under Rule 3 were timely).3 Further, sister

courts within North Carolina have also agreed. See e.g., Sam-Kabba v. G4S Secure Sols. (USA)

Inc., No. 5:18-CV-330-FL, 2019 WL 1003628, at *3-4 (E.D.N.C. Mar. 1, 2019) (compliance

with state rule permitted); Koures v. Pfizer, Inc., No. 3:10-CV-00499, 2011 WL 1869970, at *7

(W.D.N.C. May 16, 2011) (“While Rule 3 of the Federal Rules of Civil Procedure does not

provide a mechanism for enlargement of time to file a Complaint, that rule simply does not

come into play or apply retroactively to an action timely commenced in a forum where

jurisdiction was properly laid.”).

In support of its argument, Defendant points to Cannon v. Kroger, 832 F.2d 303 (4th Cir.

1987). (Docket Entry 11 at 7-9.) However, this Court has already addressed Cannon in Sheaffer:

Defendants cite Cannon v. Kroger Co., in which the Fourth Circuit

held that the Rule 3 procedure could not be used to extend the

six-month statute of limitations for so-called “hybrid” § 301/fair

representation claims under the National Labor Relations Act.

Defendants seek to extend this rule to contexts beyond the

“hybrid” claims that Cannon discusses. The reasoning of Cannon,

3 The Court in Sheaffer noted that “[t]he ADA adopts the procedures of Title VII of the Civil

Rights Act of 1964 governing administrative review by the EEOC.” 337 F. Supp. 2d at 723.

however, makes clear that the rationale for barring the operation

of Rule 3 was motivated by a desire for uniformity in “hybrid”

cases that had been expressed by the Supreme Court. . . .

Cannon . . . suggest that the operation of Rule 3 should

only be barred when there are strong federal interests that favor

a strictly construed federal statute of limitations. Here, there are

no similar circumstances.

337 F. Supp. 2d at 724-25 (internal citations omitted); see also Smith v. Bank of the Carolinas, No.

1:11CV1139, 2012 WL 4848993, at *8 (M.D.N.C. Oct. 11, 2012) (addressing Cannon), report

and recommendation adopted, No. 1:11CV1139, 2013 WL 2156008 (M.D.N.C. May 17, 2013);

Koures, 2011 WL 1869970, at *4-5 (W.D.N.C. May 16, 2011) (same). In the case at hand,

Plaintiff’s Title VII claim is not hybrid in nature. Therefore, consistent with Sheaffer, the rule

as set forth in Cannon should not apply. Accordingly, Defendant’s motion to dismiss on this

ground should be denied.

B. Plaintiff’s Complaint sufficiently alleges a Title VII claim.

Defendant next argues that Plaintiff does not state a plausible claim for racial

discrimination because the Complaint pleads non-discriminatory reasons for the employment

decision. (Docket Entry 11 at 10-12.) “To survive a motion to dismiss [under Federal Rule

of Civil Procedure 12(b)(6)], a plaintiff must plead enough factual allegations ‘to state a claim

to relief that is plausible on its face.’” Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020)

(quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 570). As previously stated, “[t]he

purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, not to resolve

contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Id.

(internal quotation marks and citation omitted). Thus, at the pleading stage in a Title VII

action, a plaintiff “is ‘required to allege facts to satisfy the elements of a cause of action created

by that statute.’” Id. quoting McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin.,

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

Under Title VII, an employer is prohibited from “discharg[ing] any individual, or

otherwise discriminat[ing] against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-

2(a)(1). A plaintiff may ultimately prove racial discrimination through direct evidence or with

circumstantial evidence under the burden-shifting framework set forth by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Foster v. Univ. of Maryland-E. Shore, 787

F.3d 243, 249 (4th Cir. 2015). “To establish a prima facie case of race discrimination in

employment under the McDonnell Douglas framework, a plaintiff must demonstrate: ‘(1)

membership in a protected class; (2) satisfactory job performance; (3) an adverse employment

action; and (4) different treatment from similarly situated employees outside the protected

class.’” Rorie v. Bd. of Educ. of Charles Cnty., 653 F. Supp. 3d 217, 230 (D. Md. 2023) (quoting

Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015)). No prima facie case

of discrimination is required at the motion to dismiss stage. See Boone, v. Wells Fargo Bank,

N.A., No. 1:22CV51, 2024 WL 2817570, at *3 (M.D.N.C. June 3, 2024) (unpublished).

Instead, the Court must determine if Plaintiff “alleges facts that plausibly state a violation of

Title VII above a speculative level.” Bing, 959 F.3d at 617 (internal quotations and citation

omitted).

Here, the undersigned concludes that Plaintiff has stated a plausible claim of racial

discrimination under Title VII. She alleges that she is an African American who had

performed “exemplary” in her role as Executive Director and despite such, was reassigned

and demoted by Ms. Davis, who had “never evaluated Plaintiff’s job performance.” (Compl.

¶¶ 19-21, 23.)4 Plaintiff further alleges that in the reassignment letter, Ms. Davis noted that

she received information regarding Plaintiff’s leadership. (Id. ¶ 25.) While Ms. Davis “cite[d]

issues with Plaintiff’s communication, professionalism, leadership, priorities, and

compliance[,]” Plaintiff alleges that Ms. Davis did not disclose the “stakeholders” who

provided her with information nor the “data” itself prior to sending the letter. (Id. ¶¶ 26-27.)

Further, Plaintiff alleges that the “compliance” issue was something occurring during Ms.

Davis’s tenure as Executive Director rather than Plaintiff. (Id. ¶ 33.) In any event, Plaintiff

“formally rebutted every item of Ms. Davis’s letter.” (Id. ¶ 32.)

Furthermore, Plaintiff alleges that she was replaced by a Caucasian female that “did not

have the qualifications nor did she possess the licensure required for the position.” (Id. ¶ 17;

see also Lowman v. Maryland Aviation Admin., No. CV JKB-18-1146, 2019 WL 133267, at *5 (D.

Md. Jan. 8, 2019) (“[W]here a plaintiff alleges that she was the better qualified candidate for a

promotion and yet was denied it, circumstances giving rise to an inference of discrimination

exist.”). Furthermore, there are allegations that no Caucasians in leadership positions were

demoted without warning like Plaintiff, several Caucasians working within the Exceptional

4 As previously noted, the allegation that Ms. Davis “never evaluated Plaintiff’s job

performance” and several other allegations are “upon information and belief.” (See e.g., Compl. ¶¶ 14-

18, 22-23, 33-37, 40-42.) Defendant does not specifically challenge such designation. “A plaintiff is

generally permitted to plead facts based on ‘information and belief’ if such plaintiff is in a position of

uncertainty because the necessary evidence is controlled by the defendant[,]” Ridenour v. Multi-Color

Corp., 147 F. Supp. 3d 452, 456 (E.D. Va. 2015), and “a district court must take care at the 12(b)(6)

stage to avoid conflating the question of whether the asserted facts state a plausible claim with the

question of whether such facts are accurate and/or pled in good-faith.” Id.

Children Department “were evaluated and rated far less than Plaintiff,” and no Caucasians in

the department were demoted like Plaintiff. (See Compl. ¶¶ 35-37.) Therefore, accepting the

factual allegations as true and viewing all reasonable inferences in Plaintiff’s favor, the

undersigned concludes that the Complaint states a plausible claim of discrimination on the

basis of race in violation of Title VII.

Defendant argues that “Plaintiff has pled the precise, non-discriminatory basis for her

reassignment[,]” thus “she fails to plead a plausible claim that her reassignment was ‘because

of race.’” (Docket Entry 11 at 11-12.) The undersigned disagrees. “[U]nder Iqbal and Twombly,

the Court must consider the plausibility of inferring discrimination based on [a plaintiff’s]

allegations in light of an ‘obvious alternative explanation’ for the conduct.” Woods v. City of

Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (citation omitted). Stated differently, the Court

“must be satisfied that [Defendant’s] explanation for [its actions] does not render [Plaintiff’s]

allegations implausible.” Id.; see also Bing, 959 F.3d at 618 (“Rather than drawing a reasonable

inference, we would have to ‘speculate’ to ‘fill in the gaps’ as to [the employer’s] motivation

for the search and to disregard the reason given to [the plaintiff] for his termination.”).

Here, while Plaintiff pleads allegations of Ms. Davis’s reassignment letter, including

areas Ms. Davis took issue with, Plaintiff also alleges that she rebutted the content of the letter.

Further, as previously stated, Plaintiff alleges that no Caucasians in leadership were subject to

demotion in the manner in which Plaintiff was, and no Caucasians in the department were

demoted like Plaintiff. Therefore, the allegations of the reassignment decision, in light of other

allegations, are not “so obviously an irrefutably sound and unambiguously nondiscriminatory

and non-pretextual explanation that it renders [Plaintiff’s] claim of pretext implausible.”

Woods, 855 F.3d at 649; see also Khazanie v. Univ. of N. Carolina at Chapel Hill, No. 1:20CV1096,

2021 WL 5235296, at *5 (M.D.N.C. Nov. 10, 2021) (“[The plaintiff’s] allegations that she is a

woman of color and Indian descent coupled with [the defendant’s] treatment of her and the

consistent high praise she received, contrasted with the reasons given for her termination

“nudge[ ]” her claim “across the line from conceivable to plausible” (quoting Twombly, 550

U.S. at 570)). Therefore, Defendant’s motion should be denied as to this issue.

III. CONCLUSION

For the reasons stated above, IT IS HEREBY RECOMMENDED that Defendant

Alamance-Burlington Board of Education’s Amended Motion to Dismiss Plaintiff’s

Complaint (Docket Entry 10) be GRANTED IN PART AND DENIED IN PART. The

motion should be GRANTED as it relates to Plaintiffs’ state law intentional infliction of

emotional distress claim for lack of jurisdiction due to governmental immunity, or alternatively

for failure to state such a claim, but otherwise DENIED.

/s/ Joe L. Webster

United States Magistrate Judge

June 20, 2024

Durham, North Carolina