Rios v. City of Raleigh

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:19-CV-00532-M

JOSE RIOS, )

Plaintiff, )

)

vs.

) OPINION AND ORDER

CITY OF RALEIGH and JENNIFER )

WOODY, in [her] official and individual )

capacity, )

Defendants. )

)

This matter is before the Court on Defendant City of Raleigh’s motion to dismiss [DE-27

(the “Motion”)]. For the reasons stated herein, the Motion is granted in part and denied in part.

I. Procedural Background

Defendant City of Raleigh removed this action from state court on November 22, 2019.

[DE-1.] On June 19, 2020, Plaintiff Jose Rios, with leave of Court, filed a second amended

complaint, leaving only a single claim pursuant to Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, seq., against a single defendant, Defendant City of Raleigh.

[DE-26 (the “Complaint” or “SAC”).] On July 6, 2020, Defendant City of Raleigh filed a

motion to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for

failure to state a claim upon which relief can be granted. [DE-27.] Plaintiff responded in

opposition on August 17, 2020 [DE-30], and Defendant filed its reply on August 31, 2020 [DE-

31]. The Motion is now fully briefed and is ripe for ruling.

II. Factual Background

Plaintiff Jose Rios brings this action against the City of Raleigh for alleged illegal

retaliation and discrimination that occurred throughout his employment with the Raleigh Police

Department (the “RPD”). [SAC at 1.] The Complaint includes allegations against various

individuals during Plaintiffs career at the RPD between 2008 and 2017 and may be summarized

as follows:

A. Discrimination in the Investigative Support Unit

Plaintiff was originally hired by the RPD as a police officer on or around October 2,

2000. [SAC § 7.] By 2010, Plaintiff was promoted to the rank of Detective. [SAC { 8.]

Between 2010 and July 2016, Plaintiff worked with the RPD’s South General Investigative Unit.

[SAC 4 9.] In July 2016, the Investigative Support Unit (the “ISU’) was created, and Plaintiff

was Selected as one of three detectives assigned to it. [SAC 4 10-11.] The ISU had favorable

daytime work hours, and “once word got out about the desirable hours of the ISU, other

Detectives were then interested.” [SAC ff 12, 16.] Within six months of working in the ISU,

Plaintiff was transferred to the Juvenile Investigative Unit (the “JIU”) and replaced by a more

senior Caucasian detective in the ISU. [SAC 17-19.]

B. Discrimination in the Juvenile Investigative Unit

In comparison with the ISU, the JIU was an undesirable assignment because of the types

of crimes it investigated, including sex crimes involving juveniles and child abuse cases. [SAC J

20.] The JIU consisted of seven detectives and one sergeant. [SAC § 21.] The sergeant, Robert

Latour, was a Causation male and was assigned to the JIU on or around February 2017. [SAC □

23.] Plaintiff discovered that two Caucasian male detectives—Detectives Hubbard and

Doughty—were tasked with the high profile sex abuse cases, while the rest of the unit—

composed of two African American males, one bi-racial female, one other Caucasian male, and

Plaintiff—was assigned the lesser cases. [SAC § 21-23.] Plaintiff discovered that Sgt. Latour

and Detectives Hubbard and Doughty would often go to breakfast together. [SAC § 24.] Shortly

after Sgt. Latour’s assignment, Plaintiff overheard a conversation between Sgt. Latour, Detective

Hubbard and Detective Doughty “regarding maintaining the ‘status quo’ within the unit, where

they would work only the sex abuse investigations.” [SAC 4 25.] Sgt. Latour held a JIU

meeting to discuss how cases should be handled and only Plaintiff spoke up, stating “that he

thought it would be fair that everyone carried a comparable number of cases and that the work

should be distributed evenly amongst the detectives.” [SAC § 27.]

C. Child Protective Services Targets Plaintiff

While Plaintiff was at the JIU, on or around April 28, 2017, an Assistant District

Attorney (“ADA”) informed Plaintiff that a mistake was made in one of his cases: the eight-

year-old victim was not interviewed and a Child Medical Examination (“CME”) was not done.

[SAC 28-30.] Plaintiff responded that it was the Child Protective Services (“CPS”)

caseworker’s decision not to have a CME done, not his. [SAC 7 31.] When the ADA spoke to

the CPS caseworker, Jennifer Woody, and her supervisor, Kizzy Thomas, they became upset.

[SAC J§ 32-33] Later that day, Plaintiff was told by another detective that he “should ‘watch

[his] back’ and that someone at CPS was looking to ‘screw [him] over.’” [SAC { 34.]

Sgt. Latour told Plaintiff that the CPS supervisor was upset by how Plaintiff handled the

eight-year-old victim’s case, and Plaintiff reassured Sgt. Latour that he would attempt to contact

the suspects involved in the case and take out warrants the following week. [SAC 9] 35-37.] On

May 1 and 2, 2017, Plaintiff attempted to contact the two listed suspects in the investigation—his

plan was to get voluntary confessions prior to swearing out the warrants—but could not get in

contact with either suspect. [SAC §¥ 38-39.] Plaintiff twice informed the CPS caseworker of

this development, but she did not respond. [SAC § 39.] Plaintiff informed Sgt. Latour that he

was scheduled to be off on May 3, 2017, and that he would have the warrants sworn on May 4,

2017. [SAC §.40.] Sgt. Latour contacted Plaintiff on May 4, 2017, asking if the warrants had

been taken out, and Plaintiff responded that he was on his way. [SAC § 41.] On May 8, 2017,

Sgt. Latour informed Plaintiff that, according to the CPS caseworker, the warrants were

incorrect. [SAC § 42.]

D. Start of the Investigation into Plaintiff's Conduct

A few weeks later, Plaintiff was summoned to the office of Lieutenant Eric Desimone,

Caucasian male. [SAC § 44.] Lt. Desimone informed Plaintiff that a complaint, citing “poor

police service,” had been filed against him by the CPS caseworker and her supervisor. [SAC J

45.] Lt. Desimone read Plaintiff his Garrity rights and Plaintiff gave a statement. [SAC {fj 47-

48.] Plaintiff told “Lt. Desimone that the complaint against him was done with malicious intent

as Ms. Woody did not like being called out for a mistake she made by the Asst. District

Attorney.” [SAC 7 49.] According to RPD policy, a typical investigation of a complaint would

be commenced by interview with the officer’s immediate superior, here, Sgt. Latour, which

Plaintiff alleges did not occur here. [SAC § 46.] Moreover, Plaintiff alleges that he was not

“informed that he was under investigation about the child abuse case,” in violation of RPD

policy. [SAC | 96.] A few weeks after Plaintiff gave his statement, he contacted Lt. Desimone,

who told him that no discipline would be imposed based on the complaint and that, as far as he

was concerned, the investigation was over. [SAC [ 49-50.]

E. Continued Investigation and Placement on Administrative Duty

On or around June 2017, an Internal Affairs (“IA”) sergeant, Sgt. Bridget Stranahan, a

Caucasian female, further questioned Plaintiff about the case involving the eight-year-old victim.

[SAC 4 51.] She asked why “he had incorrect dates on the final report he submitted in the

supplement to the investigation”; more specifically, while Plaintiffs report noted that he swore

the warrants out on May 2, 2017, they were not actually sworn out until May 4, 2017. [SAC □

51-56.] Plaintiff responded that the incorrect date he wrote was “an honest mistake” and that

“the correct date was on the warrants.” [SAC 9 56-57.] Plaintiff alleges that “if an officer was

cleared of an Internal Affairs investigation, then, that officer would be targeted again as Internal

Affairs would find something else to accuse the officer of.” [SAC § 59.]

A few weeks later, Plaintiff was again directed to speak with IA officer Sgt. Stranahan,

who questioned him about five different CPS reports that Plaintiff turned in late to Sgt. Latour in

May 2017. [SAC 9f 60-62, 68.] Plaintiff responded that the JIU was understaffed at the time,

that he had been unfamiliar and had difficulty operating the software used to create the reports,

and that the software was not working properly, which Plaintiff had reported to the technology

department. [SAC ff 65-71.] At this time, Plaintiff came to “believe that he was being targeted

by either Sgt. Latour and/or the Internal Affairs Unit as the questioning had nothing to do with

the original complaint nor the incorrect dates in his supplement.” [SAC § 63.]

On Wednesday, August 2, 2017, while on vacation, Plaintiff received a phone call from

Lt. Desimone who told Plaintiff “that they were looking for the case jacket for the Internal

Affairs complaint so they could ‘wrap up the investigation.’” [SAC 4 73.] Plaintiff thought the

jacket was in his file cabinet, but, a few minutes later, recalled that it was in the District

Attorney’s office and called Lt. Desimone to inform him of the same. [SAC 4 74.]

On August 7, 2017, Plaintiff was scheduled to return to work. [SAC 4 75.] That

morning, he received a call from Sergeant J.E. Neville, a Caucasian male in IA, who asked

Plaintiff to come to his office before going into work. [SAC 75.] Plaintiff arrived, and Captain

Todd Jordan, a Caucasian male, was also present. [SAC § 76.] Sgt. Neville informed Plaintiff

that he was being placed on administrative duty. [SAC § 76.] Plaintiff asked him why, and KS gt.

Neville responded that he did not know why but he was told to do so by Major Karen Riggsbee,

Caucasian female.” [SAC 4 77.] Plaintiff turned over his duty weapon, vehicle keys and

department-issued cell phone and identification and was told to report to the Call Response

Center. [SAC {J 78-79.]

F. “Found Property” Investigation

On September 6, 2017, Plaintiff was again called to speak with Sgt. Stranahan of Internal

Affairs, and Plaintiff was advised that a new complaint had been filed against him by the RPD.

[SAC § 80.] The complaint stated that Plaintiff did not follow policy regarding “found property”

and evidence. [SAC § 81.] Sgt. Stranahan informed Plaintiff that a license plate and four cell

phones were found inside of his work desk. [SAC J 81.] Plaintiff admitted to violating the

policy in connection with the license plate but told Sgt. Stranahan that two of the phones were

department-issued and two belonged to his son. [SAC 83-87.] Plaintiff alleges that the RPD

searched the phones and that “there is no departmental policy that covers the search of personal

belongings, even if on department property.” [SAC f 88-89, 91.] Plaintiff asked how this

found property investigation would affect the current investigation and his status, and Sgt.

Stranahan responded that the investigation involving the CPS matter was finished “months ago.”

[SAC 4 90.] Plaintiff alleges that his communications with Sgt. Stranahan should have been

transcribed and provided to him according to RPD policy, but were not. [SAC 7 93.] Itis IA

policy to conclude an administrative investigation within thirty (30) days of its commencement.

[SAC 4 99.]

G. Major Karen Riggsbee and Sgt. Floyd Riggsbee

Major Karen Riggsbee, who is referenced above as the IA officer ultimately responsible

for Plaintiff’s placement on administrative leave [SAC 4 77], is married to now-retired, former

RPD sergeant, Floyd Riggsbee [SAC § 102]. Approximately a decade before the investigation in

2017, between 2007 and 2008, Sgt. Floyd Riggsbee was Plaintiffs supervisor “in Field

Operations in the Southwest District on Squad ‘C’.” [SAC § 102.] During that time, Plaintiff

“and Sgt. Floyd Riggsbee had numerous incidents all surrounding Floyd Riggsbee's harassment

and bullying of the minority members of the squad,” [SAC 4 103] and Plaintiff “made several

complaints about harassment being perpetrated upon him by then Sgt. Floyd Riggsbee” [SAC §

113].

“On one such occasion, towards the end of Det. Rios’ tenure with Field Operations, he

and Sgt. Floyd Riggsbee were almost involved in a physical altercation.” [SAC § 104.] Sgt.

Floyd Riggsbee was writing up Plaintiff for an alleged incident that occurred the previous

workday, and Plaintiff told him he was not signing a counseling form without going to JA first.

[SAC { 105.] Sgt. Riggsbee “began loudly and angrily yelling at [Plaintiff], citing that he was

being insubordinate” all while Plaintiff “never raised his voice.” [SAC § 106.] When Plaintiff

stood up to leave, Sgt. Floyd Riggsbee told him that if he left, he would have him fired, and

Plaintiff left anyway. [SAC § 107.] As he left, two Caucasian officers, including J.C. Perry,

then District Lieutenant, “made eye contact with [Plaintiff] but did not say a word to him.”

[SAC ¥ 107.]

Plaintiff alleges that, “[u]pon information and belief, Major Riggsbee has been personally

aware of [Plaintiffs] interpersonal issues with her husband” [SAC § 101] and that “he was being

discriminated against by the RPD, and more particularly, Major Karen Riggsbee, where the

origins of the discriminatory animus against him began with her husband, Sgt. Floyd Riggsbee”

[SAC ¥ 116]. Plaintiff further alleges that “J.C. Perry, who witnessed at least one incident

involving Sgt. Floyd Riggsbee, was Deputy Chief at the time of [Plaintiffs] termination.” [SAC

q 114.]

H. Others have Received Lesser Sanctions

Plaintiff further alleges that “several Caucasian police officers that have actually

committed violations of RPD policies, more egregious in nature than any of the ‘allegations’

lodged against [Plaintiff], have either not been disciplined at all and/or have received far less

severe sanctions as compared with [Plaintiff],” who was placed on administrative leave. [SAC ]

120.] Plaintiff lists four examples of what he considers more egregious conduct and less serious

punishment involving Caucasian officers. [SAC 121-132.] Plaintiff alleges the following:

one police officer used profanity in an argument with his supervisor and was insubordinate and

was transferred [SAC ff 121-123]; another police officer was arrested for being impaired at an

airport and for illegally attempting to carry a weapon onto his flight, and he was allowed to retire

early with full benefits to date [SAC 9] 124-126]; another officer was involved in an extramarital

sexual relationship with a female trainee, and he was demoted but not terminated [SAC 4 127-

128]; and two other officers were involved in a public, physical altercation where a weapon was

drawn and neither was terminated [SAC {J 129-132].

I, EEOC Charges and Termination

On or around January 31, 2018, after several months on administrative leave and under

further investigation, Plaintiff filed his first Charge of Discrimination with the EEOC. [SAC {

115; DE-26-1 (“EEOC Charge A”).] In EEOC Charge A, Plaintiff alleges, “inter alia, that he

was being discriminated against by the RPD, and more particularly, Major Karen Riggsbee,

where the origins of the discriminatory animus against him began with her husband, Sgt. Floyd

Riggsbee.” [SAC J 116.]

After the RPD was informed that Plaintiff had filed the first charge of discrimination,

Plaintiff alleges that the RPD intentionally retaliated against Plaintiff by questioning him about

an alleged December 2016 incident involving a missing case file [SAC ff 117, 135], placing him

on suspension on February 23, 2018 [DE-26-2 (“EEOC Charge B”)], and finally terminating him

in March 2018 [SAC § 136]. On March 26, 2018, after Plaintiffs notice of termination, he filed

a second EEOC charge, alleging that he was retaliated against for filing his first EEOC charge.

[SAC 4 137-138; EEOC Charge B.]

1. January 31, 2018, Charge of Discrimination (EEOC Charge A)

Plaintiff filed his first EEOC charge on January 31, 2018. In that charge, Plaintiff

checked the boxes for “National Origin” and “Retaliation” and listed August 7, 2017, a single

date—the date of Plaintiffs placement on administrative duty—under the section titled “Date(s)

Discrimination Took Place.” [EEOC Charge A.] The text of the charge is as follows:

I was hired by the City of Raleigh Police Department on October 2, 2000. I

am currently employed in the position of Police Detective. In 2007-2008 I

worked in the Field Operations in the Southwest District on C squad. Sgt.

Floyd Riggsbee, was my Supervisor before he retired. Sgt. Riggsbee is

married to Major, Karen Rigsbee [sic], who is now my Major in Internal

Affairs. When Sgt. Riggsbee was my supervisor he subjected me to

harassment, and attempted to have me fired. I made several complaints [sic]

Lt. J.C. Perry. Because of this incident, I was asked to transfer. On August 7,

2017, Sgt. J.E. Neville, Internal Affairs Unit, requested that I come to his

office. Sgt. Neville told me that I was being placed on administrative duty

until further notice. I ask [sic] why? Sgt. Neville told me he did not know, he

was instructed by Major Riggsbee. Sgt. Neville told me to report to the Call

Response Center for further instructions and that was my assignment until

further notice. I believe I have been discriminated against because of my

national origin, Hispanic, my color, Brown, and retaliated against because I

complained about Sgt. Riggsbee in 2007 and 2008, in violation of Title VII of

the Civil Rights Act of 1964, as amended.

[EEOC Charge A.]

2. March 26, 2018, Charge of Discrimination (EEOC Charge B)

Plaintiff filed his second EEOC charge on March 26, 2018. Plaintiff checked only the

box for “Retaliation” and noted that the “Date(s) Discrimination Took Place” was between

February 23, 2018, the date Plaintiff was suspended with pay, and March 22, 2018, the date he

received notice of his termination. The text of the charge is as follows:

I. On February 23, 2018, I was suspended with pay. On March 22, 2018, I

learned that as of April 7, 2018, my employment as a Police Detective will

end. I was hired by Respondent on October 2, 2000. Respondent employs

more than fifteen (15) persons. II. After being placed on administrative duty

in August 2017, on February 23, 2018, I was transitioned to suspension with

leave. On March 20, 2018, I had a pre-determination hearing, and per a

memorandum authored by Major Karen Riggsbee dated March 22, 2018, my

termination was to be effective April 7, 2018. Major Riggsbbe [sic] wrote in

relevant part, it was determined that you were insubordinate when you violated

the following policies: Internal Affairs Investigations Compliance with Laws,

Regulations and Orders) [sic]. III. I believe that I have been retaliated against

for filing EEOC Charge 433-2018-01162 in violation of Title VII of the Civil

Rights Act of 1964, as amended.

[EEOC Charge B.]

II. Exhaustion

The Court must first determine the extent to which Plaintiff has exhausted his

administrative remedies and in turn, the claims properly before the Court. “The allegations

contained in the administrative charge of discrimination generally operate to limit the scope of

any subsequent judicial complaint.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

962-63 (4th Cir. 1996) (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir.

1976)).

Before bringing a Title VII suit in federal court, a plaintiff must exhaust his

administrative remedies by filing a charge of discrimination with the EEOC. See Cone-Swartz v.

10

Press Ganey Assocs., Inc., No. 4:13-CV-258-D, 2014 WL 5361343, at *1 (E.D.N.C. Oct. 21,

2014); see also Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (“Rather than ‘a

formality to be rushed through,’ this exhaustion requirement is ‘an integral part of the Title VII

enforcement scheme.’” (citing Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005)). The

filing of a charge puts the employer on notice of the alleged violations, giving it a chance to

address the alleged discrimination prior to litigation, and any claims that are not administratively

exhausted may not be subsequently brought in a judicial complaint. See Sydnor, 681 F.3d at

593-94. “The goals of providing notice and an opportunity for an agency response would be

undermined [] if a plaintiff could raise claims in litigation that did not appear in his EEOC

charge. To prevent such gamesmanship, we have held that the scope of the plaintiffs right to

file a federal lawsuit is determined by the charge’s contents. Thus, a plaintiff fails to exhaust his

administrative remedies . . . where his administrative charges reference different time frames,

actors, and discriminatory conduct than the central factual allegations in his formal suit.” Jd at

593 (internal quotation marks and citations omitted). “[S]o long as ‘a plaintiffs claims in her

judicial complaint are reasonably related to her EEOC charge and can be expected to follow

from a reasonable administrative investigation,’ she ‘may advance such claims in her subsequent

civil suit.”” Jd. at 594 (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 237 (4th Cir.

2000)). On the other hand, “when claims in [a] court complaint are broader than ‘the allegation

of a discrete act or acts in [the] administrative charge,’ they are procedurally barred.” Parker v.

Reema Consulting Servs., Inc., 915 F.3d 297, 306 (4th Cir. 2019) (citing Chacko, 429 F.3d at

508-10). The Court’s interpretation of the EEOC charges and the claims that are reasonably

related to them determines the proper scope of Plaintiffs judicial complaint.

11

Defendant contends the EEOC charges should be read narrowly, restricting the scope of .

this action; Plaintiff, in contrast, contends that they should be interpreted broadly, expanding the

scope of this action. More specifically, Defendant contends that “Plaintiffs claims are limited

entirely to his interaction with IAU Major Karen Riggsbee.” [DE-28 at 11.] Defendant argues:

first, that EEOC Charge A alleges only that Plaintiff was discriminated against on a single date,

August 7, 2017, by Major Riggsbee, who placed Plaintiff on administrative duty in retaliation for

Plaintiffs 2007-2008 complaints about her husband; and second, that EEOC Charge B alleges

that Plaintiff was suspended and discharged for filing EEOC Charge A. [DE-28 at 11.]

Plaintiff appears to agree with Defendant that EEOC Charge B alleges that Plaintiff was

suspended and terminated by Defendant for filing EEOC Charge A [DE-30 at 23], but disagrees

with Defendant’s interpretation of EEOC Charge A. Instead, Plaintiff argues that EEOC Charge

A, in addition to charging retaliation and discrimination by Major Riggsbee, includes claims for

discrimination based upon national origin and color against the RPD, generally, concerning

Plaintiffs placement on administrative duty and in which “Major Riggsbee and her position of

authority over the ‘investigations’ [w]as a factor, not the only actor [sic] responsible for this

treatment.” [DE-30 at 21; DE-30 at 14-16, 19.] Plaintiff also seeks to recover for the alleged

discrimination which occurred at the ISU (transfer to JIU) and at the JIU (unequal work

assignments). [See, e.g., DE-30 at 16 (“transferred from the more desirable position in the ISU

to the JIU, without requesting a transfer.”).] Plaintiff further asks the Court to consider the

EEOC Intake Questionnaire [DE-17-3] and Inquiry Response [DE-17-4], which Plaintiff

submitted to the EEOC and which include a broader set of factual circumstances, to supplement

and expand the scope of his EEOC charges. For the reasons that follow, the Court declines to

12

_..... consider the Intake Questionnaire and the Inquiry Response and adopts neither party’s view

concerning the proper scope of the Complaint.

A. Intake Questionnaire and Inquiry Response

As an initial matter, the Court will not consider the Intake Questionnaire or Inquiry

Response.

Defendant cites Balas v. Huntington Ingalls Indus., Inc., for the proposition that the Court

may not use an intake questionnaire to supplement a plaintiff's formal EEOC charges for

purposes of exhaustion. 711 F.3d 401, 408 (4th Cir. 2013); [DE-28 at 1-11.] In Balas, the

Fourth Circuit held precisely that, finding that “[t]he intake questionnaire . . . submitted to the

EEOC cannot be read as part of her formal discrimination charge without contravening the

purposes of Title VII” and the “district court properly declined to consider those allegations not

included in [plaintiff's] EEOC charge.” 711 F.3d at 408-09.

Plaintiff argues that Balas is no longer good law. Plaintiff argues that a case Balas relied

upon, Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009), was abrogated by the Supreme

Court in in Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843 (2019), that Balas is inconsistent

with the Supreme Court’s decision in Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402

(2008), and that a circuit split exists on the issue of whether an intake questionnaire may be

considered part of an EEOC charge for exhaustion purposes. [DE-30 at 16-20.]

With respect to Fort Bend Cty., one court recently rejected Plaintiff's first argument:

The Supreme Court’s recent decision in Fort Bend County, Texas v. Davis, 139

S. Ct. 1843 (2019)... does not change the Court’s analysis.

In Fort Bend County, the Supreme Court abrogated the Fourth Circuit’s

holding in Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009) and held

that Title VII’s administrative procedures were not jurisdictional in

nature. Fort Bend Cty., 139 S. Ct. at 1850 (“Title VII’s charge-filing

requirement is not of jurisdictional cast.”). Therefore, the defendant

13

in Fort Bend County was not permitted to raise the argument that plaintiff had

failed to exhaust administrative remedies for the first time after several years

of litigation. Jd. at 1848. In contrast, Defendant in this case has raised the

argument that Plaintiff had failed to exhaust administrative remedies

consistently throughout the course of this litigation. (See Doc. No. 19, p. 3

(raising the defense in the answer that Plaintiff’s claim exceeded the scope of

her EEOC charge); Doc. No. 9, p. 4 (raising the same defense in a motion to

dismiss)). While Defendant, following what was then Fourth Circuit

precedent, previously presented this argument as an issue of jurisdiction, the

substance of the argument was still validly invoked—that Plaintiff was limited

to the allegations brought in her EEOC charge. Fort Bend County did not

soften the administrative procedural requirements of Title VII. See 139 S. Ct.

at 1851 (noting that Title VII’s charge-filing requirement was “mandatory”

even though it was not “jurisdictional”). For these reasons, the Court finds that

Plaintiffs claim of retaliation is limited to the allegations contained in her

EEOC charge, and the claim fails as a matter of law because Plaintiff has not

shown that she engaged in “protected activity” under Title VII.

Abadi v. Mecklenburg Cty. Gov't, No. 3:17-CV-00435-FDW-DCK, 2019 WL 2546732, at *3

(W.D.N.C. June 20, 2019). This Court rejects Plaintiff's argument for the same reasons. Fort

Bend Cty. held only that Title VII’s charge filing requirement is a procedural claim-processing

tule, applicable and mandatory if timely raised, rather than a jurisdictional requirement that

could be raised at any stage of the proceeding. Fort Bend Cty., 139 S. Ct. at 1846, 49-51. Fort

Bend Cty. said nothing about Balas’ holding that a plaintiff cannot substantively expand the

scope of his EEOC charges through an intake questionnaire. Here, as in Abadi, Defendant raised

its exhaustion defense at the earliest possible time, in its motion to dismiss, and so it is properly

before this Court, although pursuant to Rule 12(b)(6) rather than as a jurisdictional issue under

Rule 12(b)(1). Other courts in the Fourth Circuit, including in this district, have also continued

to follow Balas after Fort Bend Cty. See Griffis v. Duke Energy Progress, 5:19-CV-119-FL,

2019 WL 3659992, at *2 (E.D.N.C. Aug. 6, 2019) (“In any subsequent lawsuit, the court ‘may

only consider those allegations included in the EEOC charge’ in order to determine whether

14

plaintiff has exhausted her remedies.” (quoting Balas, 711 F.3d at 407)); Major v. Cape Fear

Academy, 7:19-CV-11-D, 2020 WL 3513243, at *6 (E.D.N.C. June 26, 2020) (holding that the

plaintiff's failure to mention constructive discharge in EEOC charge “procedurally bars the court

from considering this claim” (citing Balas, 711 F.3d at 408-09)); Kenion v. Skanska USA Bldg.,

Inc., No. CV RDB-18-3344, 2019 WL 4393296, at *7-8 (D. Md. Sept. 13, 2019) (citing both

Balas and Fort Bend and declining to “reach beyond the administrative charge and probe the

EEOC investigative file, including [the] EEOC Inquiry intake questionnaire”; “This Court may

not reach beyond the EEOC Charge to broaden its scope.”); Clement v. Spartanburg Steel Prod.,

Inc., No. CV 7:19-666-MGL-KFM, 2020 WL 702751, at *3 (D.S.C. Feb. 11, 2020) (“The Court,

therefore, is unable to entertain any discriminatory failure to promote claims contained only in

[plaintiffs] EEOC Inquiry Form.” (citing Balas, 711 F.3d at 409)).

Plaintiffs contention that Balas is inconsistent with Holowecki is equally unavailing.

Balas addressed the issue of administrative exhaustion in the Title VII context, while Holowecki,

involving an Age Discrimination in Employment Act of 1967 action, “addresses whether an

intake questionnaire, accompanied by an affidavit requesting the agency to take action,

constitutes a ‘charge’ for statute of limitations purposes. Holowecki does not concern the

question of whether an intake questionnaire expands the scope of a formal administrative

charge.” Pruitt v. Peninsula Reg'l Med. Ctr., No. CIV.A. GLR-14-344, 2014 WL 2916863, at *6

(D. Md. June 25, 2014) (emphasis added); see also Lindsey v. Ricoh USA, Inc., No. 2:17-CV-

464, 2018 WL 1937062, at *5 (E.D. Va. Apr. 24, 2018) (“[T]his Court has limited the holding of

Holowecki to situations where a plaintiff seeks to have an EEOC filing other than the plaintiff's

formal charge be considered the ‘charge’ for purposes of defeating a Title VII time-bar defense.

Such is not the case here. Rather, Plaintiff asks the Court to treat her intake questionnaire as part

15

of her formal Charge for exhaustion purposes .... But Plaintiff has not identified any case in

which Holowecki was applied for this purpose. In fact, other federal courts have declined to

expand Holowecki in this way.” (citations omitted)). Courts in this Circuit have applied both

Holowecki—concerning statute of limitations and timeliness—and Balas—concerning

administrative exhaustion—distinctly and consistently. See, e.g., Brown v. Bratton, No. CV

ELH-19-1450, 2020 WL 886142, at *18 (D. Md. Feb. 21, 2020) (addressing exhaustion issue

and stating “[l]ooking, as I must, to the four corners of the EEOC Charge” (citing Balas, 711

F.3d at 407-08); also addressing statute of limitations issue and stating, relying on Holowecki,

sum, I am satisfied that plaintiff's EEOC Questionnaire is the operative ‘charge’ for the

purpose of Title VII’s limitations period” (citations omitted)). This case involves the issue of

administrative exhaustion, and the Court is bound by Balas.

Finally, Plaintiff notes that a circuit split exists regarding whether an intake questionnaire

can supplement a charge for exhaustion purposes. [DE-30 at 17 (citing Klotzbach-Piper v. Nat'l

R.R. Passenger Corp., 373 F. Supp. 3d 174, 188-89 (D.D.C. 2019).] Although interesting, this

Court is bound by Fourth Circuit precedent. Balas requires that only the formal EEOC charges

be considered for purposes of administrative exhaustion.

B. Proper Scope of the Complaint

Having resolved that it cannot consider the Intake Questionnaire and Inquiry Form, the

Court must now determine which claims are properly before this Court. As stated above,

Plaintiff has exhausted only those claims reasonably related to his EEOC charges and which can

be expected to follow from a reasonable administrative investigation into the conduct alleged

therein. See Sydnor, 681 F.3d at 594 (citation omitted).

16

1. January 31, 2018, Charge of Discrimination (EEOC Charge A)

The text of EEOC Charge A alleges that Plaintiff “ha[s] been discriminated against

because of my national origin, Hispanic, my color, Brown, and retaliated against because I

complained about Sgt. Riggsbee in 2007 and 2008 ... .” [EEOC Charge A.] The first portion of

that statement, referring to national origin and color discrimination—“discriminated against

because of my national origin, Hispanic, my color, Brown”—although broad, is immediately

preceded by eleven (11) sentences all concerning Major Riggsbee, Plaintiff’s relationship with

her husband, Sgt. Floyd Riggsbee, and Plaintiff’s placement on administrative duty by Major

Riggsbee. The text of the charge focuses on Plaintiff’s placement on administrative duty by

Major Riggsbee, either as a result of her discrimination on the basis of national origin or color or

in retaliation for Plaintiff's complaints about her husband a decade earlier.

However, the scope of exhaustion is not limited to the text of the charge. A reasonable

administrative investigation into Plaintiffs placement on administrative duty by Major Riggsbee

would also likely reveal other discriminatory conduct involving Plaintiffs placement on

administrative duty and concerning the precipitating, related investigations, if such evidence

exists. These allegations all involve the same form of discrimination—national origin and color

discrimination—all involve the same people—IA officers—all occur within the same time

period—between May 2017 and August 7, 2017—and all concern the same action—Plaintiff s

placement on administrative duty. Cf Hardy v. Lewis Gale Med. Ctr., LLC, 377 F. Supp. 3d

596, 612 (W.D. Va. 2019) (“While the specific allegations of discrimination in the Complaint

may not be contained in each Plaintiff's EEOC charge, the allegations involve the same type of

discrimination (race and/or national origin), the same source of discrimination (Booth and

LGMC), the same department (Security), the same time period of discriminatory conduct, and

17

the same foundational facts.”). Claims for RPD discrimination on the basis of national origin or

color relating to Plaintiff's placement on administrative duty, generally, have been exhausted and

are properly before this Court.

However, claims based upon facts separate from Plaintiff’s placement on administrative

duty, including his transfer from the ISU and work assignments at the JIU, are not properly

before this Court. They are not mentioned in the text of the charge and an administrative

investigation into the charge’s contents would not reveal such facts. One case from within this

District is a close analogue. In Herr v. Am. Kennel Club, “the administrative charge focuse[d] on

only one event: [the plaintiffs] termination,” but “the Amended Complaint s[ought] to recover

for a variety of allegedly discriminatory conduct including his demotion; a decrease in pay,

benefits, and bonuses; fabricating performance issues; giving unwarranted negative performance

evaluations; other unspecified adverse employment actions; and creation of a hostile work

environment.” Herr v. Am. Kennel Club, No. 5:17-CV-00547, 2018 WL 5291857, at *4

(E.D.N.C. Aug. 23, 2018), report and recommendation adopted, No. 5:17-CV-00547-BR, 2018

WL 4565386 (E.D.N.C. Sept. 24, 2018). The court found that “[t]hese are not the types of

closely connected issues that the Fourth Circuit has found to be reasonably related or that a

reasonable investigation would uncover.” Jd. (citing Syndor, 681 F.3d at 594); see also Marge v.

N.C. Detective Agency, No. 5:18-CV-592-FL, 2019 WL 2078773, at *3 (E.D.N.C. May 9, 2019)

(finding failure to exhaust plaintiffs claim that he was unlawfully discharged, where

“this EEOC charge [only] describes transfer from one work site to another,” and involved

different characters on a different date “four and a half months prior’). Similarly, here, an

investigation into Plaintiff's placement on administrative duty in August 2017 would not reveal

18

facts relating to Plaintiffs removal from the ISU and the distribution of work assignments at the

JIU, which occurred in late 2016 and early 2017 and involved different actors.

Finally, although Plaintiff has only checked the box for national origin discrimination in

EEOC Charge A, Plaintiff’s claims for color discrimination are also properly before this Court.

plaintiff's failure to check the boxes for ‘race,’ ‘color,’ or ‘national origin,’ does not, by

itself, preclude his claims for discriminatory discharge, so long as the narrative of the charge

alleges that form of discrimination in the complaint.” Scarborough v. Wachovia Bank Corp.,

No. 3:04CV249, 2006 WL 2828683, at *3 (W.D.N.C. Sept. 29, 2006) (citing Chacko, 429 F.3d

at 509). Here, the body of EEOC Charge A alleges that Plaintiff has also been discriminated

against because of his “color, Brown[.]” Cf Gray v. Walmart Stores, Inc., No. 7:10-CV-171-

BR, 2011 WL 1831780, at *4 (E.D.N.C. May 12, 2011) (‘If plaintiff thought that she had been

subjected to age and national origin discrimination, she could have, and should have, said so in

her charge.” (citation omitted)).

In sum, the following claims have been exhausted by EEOC Charge A and are properly

before this Court: (1) for national origin and color discrimination arising out of Plaintiffs

placement on administrative duty by members of the RPD and IA, including, but not limited to,

Major Riggsbee; and (2) for retaliation by Major Riggsbee for Plaintiff's complaints against her

husband.

2. March 26, 2018, Charge of Discrimination (EEOC Charge B)

In contrast to the parties’ disagreement over the scope of EEOC Charge A, the parties do

not appear to dispute that EEOC Charge B exhausts a single claim for retaliation: that Plaintiff

was suspended and terminated for filing EEOC Charge A. [DE-30 at 12, 22; DE-28 at 11 (“In

his second charge, Plaintiff contends that his February 23, 2018 suspension with pay and Major

19

Riggsbee’s March 22, 2018 termination notice for insubordination occurred in retaliation for

filing his first EEOC charge.”).] The text of EEOC Charge B alleges “I believe I have been

retaliated against for filing EEOC Charge 433-2018-01162 [i.e. the first charge]... .” The Court

agrees that EEOC Charge B exhausts Plaintiffs claim that he was suspended and terminated for

filing EEOC Charge A.

IV. Failure to State a Claim

The Court has addressed exhaustion and the proper scope of the Complaint, and three

distinct claims remain: first, for national origin and color discrimination by members of the RPD

and IA, including, but not limited to, Major Riggsbee, arising out of Plaintiff's placement on

administrative duty [EEOC Charge A]; second, for retaliation by Major Riggsbee for Plaintiff’ s

complaints against her husband a decade earlier [EEOC Charge AJ]; and third, for retaliation for

filing EEOC Charge A [EEOC Charge B].

A. Motion to Dismiss

In deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, this Court shall “‘accept as true all of the factual allegations contained in the

complaint,’ and ‘draw all reasonable inferences in favor of the plaintiff.’” Covey v. Assessor of

Ohio Cty., 777 F.3d 186, 192 (4th Cir. 2015) (citation omitted). To survive a motion to dismiss,

a complaint must contain facts and law sufficient to “state a claim to relief that is plausible on its

face.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). “While a plaintiff is not charged with pleading facts sufficient to prove her case, as an

evidentiary matter, in her complaint, a plaintiff is required to allege facts that support a claim for

relief.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003); see Iqbal,

556 U.S. at 677-80. However, in making this determination, the Court need not rely on “labels,”

20

Twombly, 550 U.S. at 555, “nor need [] ‘accept as true unwarranted inferences, unreasonable

conclusions, or arguments,” Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir.

2009) (citing Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006)).

B. National Origin and Color Discrimination

“Although an employee need not prove a prime facie case of discrimination to survive a

motion to dismiss, he must state a plausible right to relief.” Ofoche v. Apogee Med. Grp., 815 F.

App’x 690, 692 (4th Cir. 2020) (citation omitted). Plaintiff must “nevertheless plead facts

sufficient to support a reasonable inference that an alleged adverse employment action was

motivated by bias or discrimination.” Tonin v. Baltimore City Police Dep’t, No. CV DKC 19-

0323, 2020 WL 3259083, at *8 (D. Md. June 16, 2020) (citation and internal quotation mark

omitted).

Plaintiff alleges that he has been discriminated against on the basis of national origin and

color by members of the RPD, including, but not limited to, Major Riggsbee, and placed on

administrative duty. Plaintiffs claim appears to revolve around the following allegations: (1)

Major Riggsbee’s “discriminatory animus against him [that] began with her husband, Sgt. Floyd

Riggsbee” [SAC { 116]; (2) alleged disparate treatment from his Caucasian counterparts; and (3)

alleged policy violations by the RPD that occurred during the investigation into his conduct.

But, even accepting all the facts alleged in the Complaint as true, Plaintiff has not stated a claim

of discrimination.

1. Major Riggsbee and Sgt. Floyd Riggsbee

The only incident of possible overt discrimination alleged is that “[Plaintiff] and Sgt.

Floyd Riggsbee,” ten years before the events leading to his placement on administrative duty,

“had numerous incidents all surrounding Floyd Riggsbee’s harassment and bullying of the

21

minority members of [Squad C].” [SAC § 103.] Plaintiff does not, however, allege that Floyd

Riggsbee exclusively harassed and bullied minority members, and the Complaint leaves open the

possibility that Sgt. Riggsbee was simply a disagreeable man and a poor supervisor.

Plaintiff asks the Court to infer that Major Riggsbee’s decision in 2017 was somehow

motivated by discriminatory animus that originated with her husband a decade earlier, in 2007

and 2008. [SAC §§ 116 (“where the origins of the discriminatory animus against him began with

her husband, Sgt. Floyd Riggsbee.”).] This inference, absent more, is unwarranted. Plaintiffs

allegations concerning Sgt. Riggsbee occurred over a decade before Plaintiff's placement on

administrative duty, and Plaintiff has not alleged any direct evidence that Major Riggsbee herself

(or anyone else at the RPD or in JA responsible for his placement on administrative duty) acted

with discriminatory intent. See Vega v. Wake Cty. Gov't, No. 5:14-CV-00257-RN, 2015 WL

1433583, at *7 (E.D.N.C. Mar. 27, 2015) (“Vega does not allege that she made comments

reflecting a discriminatory animus... . Even if Vega's supervisor harbored a personal dislike for

him that made his job more difficult, ‘[aJn employer is not required to like his employees.”

(citing Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000))).

2. Disparate Treatment

“Absent direct evidence” of discrimination, like here, a plaintiff must allege the following

elements under the McDonnell Douglas burden-shifting framework to state a claim for disparate

treatment: “(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.” Murphy v. Cty. of New Hanover, No. 7:17-CV-229-FL, 2019 WL 95778, at *3

(E.D.N.C. Jan. 3, 2019) (citing Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012)); see

22

also Murphy v. Fed. Reserve Bank of Richmond, No. 3:19CV180, 2020 WL 365104, at *6 (E.D.

Va. J an. 22, 2020) (“Although a Title VII plaintiff need not plead facts that constitute a prima

facie case, a plaintiff still bears the burden of alleging facts sufficient to state all the elements of

her claim.” (citations and internal quotation marks omitted)). Plaintiff has not adequately alleged

the second or fourth elements.

i. Satisfactory Job Performance

Plaintiff has not alleged the second element of a discrimination claim based upon

disparate treatment claim, satisfactory job performance. Although Plaintiff alleges that he “had

performed his job more than satisfactorily prior to his removal as a Detective” [SAC § 144; see

also SAC ¥ 9], the Complaint contradicts his assertion of satisfactory performance. The

Complaint is filled with numerous admissions that Plaintiff's performance was not satisfactory,

including that Plaintiff included the wrong dates on a supplement [SAC [56-57], that he filed

five different CPS reports late [SAC {J 60-68], and that he violated the RPD’s “found property”

policy [SAC ff 80-87]. See Anderson v. Waste Mgmt. of Wilmington, No. 7:15-CV-14-FL, 2016

WL 1183114, at *6 (E.D.N.C. Mar. 28, 2016), affd, 669 F. App'x 678 (4th Cir. 2016) (Here,

plaintiff has failed to plead that his job performance was satisfactory beyond conclusory

recitations that he performed his work in a ‘professional and outstanding manner.’ Indeed,

plaintiffs allegation that he previously had been suspended—a disciplinary action that plaintiff

does not appear to take issue with—tends to belie his assertion that his performance was either

‘professional’ or ‘outstanding.’”).

Plaintiff, however, does specifically allege that he was promoted to the rank of Detective

in 2010 [SAC 4 8] and assigned to the ISU [SAC 4 10], but both allegations fall short of

providing the requisite inference of satisfactory job performance during the time period in

23

question.. The-promotion occurred seven years before the alleged discrimination at issue and

there is nothing to indicate initial selection for the ISU was a promotion or in any way based

upon merit. The facts alleged, without more, do not provide a reasonable inference that

Plaintiffs performance at the time of alleged discrimination was satisfactory. The Complaint

contains only barebones allegations that Plaintiff's performance was satisfactory, which is

insufficient. See Murphy, 2019 WL 95778, at *4 (“Here, plaintiff alleges that ‘[a]t all times

relevant to this complaint, Plaintiff performed his job in a satisfactory manner.’ However, the

court rejects this assertion as a legal conclusion couched as a fact.”); Battle v. Ruby Tuesday,

Inc., No. 4:19-CV-123-BR, 2020 WL 2513680, at *2 (E.D.N.C. May 15, 2020) (dismissing

complaint where, inter alia, plaintiff “provides only conclusory statements regarding his

purportedly satisfactory job performance.”).

il. Different Treatment from Similarly Situated Employees

Outside the Protected Class

Plaintiff also fails to allege that he was subject to different treatment from similarly

situated employees outside his protected class. While “evidentiary determinations regarding

whether the comparators’ features are sufficiently similar to constitute appropriate comparisons”

are generally left for summary judgment, Woods v. City of Greensboro, 855 F.3d 639, 650-51

(4th Cir. 2017), a plaintiff must nevertheless “show that [he or] she is similar in all relevant

respects to [his or her] comparator,” Martinez v. Constellis, LLC, No. 3:19CV720, 2020 WL

4589194, at *4 (E.D. Va. Aug. 10, 2020) (citation and internal quotation marks omitted).

“Employees are similarly situated where they dealt with the same supervisor, [were] subject to

the same standards and . . . engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or the employer’s treatment of

24

them for it.” Martinez, 2020 WL 4589194, at *4 (citations and internal quotation marks

omitted).

Plaintiff lists several Caucasian RPD employees he asserts have committed more

egregious policy violations and have received lesser discipline. [SAC J 121-132.] Plaintiff

alleges the following: one police officer used profanity in an argument with his supervisor and

was insubordinate and was transferred [SAC {J 121-123]; another police officer was arrested for

being impaired at an airport and for illegally attempting to carry a weapon onto his flight, and he

was allowed to retire early with full benefits [SAC 9 124-126]; another officer was involved in

an extramarital sexual relationship with a female trainee, and he was demoted but not terminated

[SAC □□□ 127-128]; and two other officers were involved in a public, physical altercation where a

weapon was drawn and neither was terminated [SAC 9f 129-132]. But, these incidents—

involving inappropriate amorous relationships, substance abuse, or fits of temper, almost entirety

outside of the work context itself—differ from what is alleged here, where Defendant had

repeated and self-admitted performance issues and was placed on administrative duty pending

investigation. Plaintiff has also not alleged that the same decisionmakers, including Major

Riggsbee, were involved in the disciplinary decisions, and Plaintiff has alleged the individuals

involved were police officers, not higher-ranking Detectives, which Plaintiff was. Cf Martinez,

2020 WL 4589194, at *4-5 (finding inadequate comparators where Plaintiff was terminated after

he was involved in a car accident which Defendants determined he was at fault for and Plaintiff

alleged other individuals who were involved in car accidents were treated differently, but did not

allege “that Defendants determined that these individuals were at fault for their car accidents”

nor “that these [] individuals held positions similar to [Plaintiff's] position”); see also Coleman,

626 F.3d at 191 (holding comparator not similarly situated where plaintiff was allegedly

25

disciplined for steering contracts to vendors in which he had an interest and comparator had

unspecified “outside business involvements” and was his supervisor); cf Mason v. Sun

Recycling, LLC, No. GLS-18-2060, 2020 WL 1151046, at *10-11 (D. Md. Mar. 9, 2020)

(finding comparator was similarly situated, although “a close call,” where comparator was

involved in the same rock-throwing incident that the plaintiff was terminated for). In sum, the

comparators are not sufficiently similarly situated to provide any plausible inference of

discrimination.

3. Alleged Policy Violations

Finally, none of the alleged policy violations provide an inference of discriminatory

intent. Plaintiff lists several alleged RPD policy violations, which he states support a claim of

discrimination: that the IA investigation took more than thirty (30) days [SAC ¥ 99]; that

Plaintiff's communications with Sgt. Stranahan were not transcribed and provided to him [SAC 4

93]; that Sgt. Latour did not interview Plaintiff [SAC § 46]; that Plaintiff was not informed he

was under investigation for the child abuse case [SAC § 96]; and that the phones in Plaintiff's

desk were searched [SAC §§ 88-89, 91]. However, most of these alleged violations are directly

contradicted by allegations in the Complaint and none provide an inference that Plaintiff was

treated differently because of his national origin or color.

First, Plaintiff alleges that the IA investigation took more than thirty (30) days, but, as

alleged, IA continued to uncover new problems with Plaintiff's work performance—that he

included the wrong dates on a supplement [SAC ff 56-57], that he filed five different CPS

reports late [SAC {J 60-68], and that he violated the RPD’s “found property” policy [SAC □ 80-

87], all of which Plaintiff admits. Moreover, Plaintiff provides his own neutral basis for the

continued investigation: “Upon information and belief, coupled with Det. Rios’ general

26

experience in the RPD, if an officer was cleared of an Internal Affairs investigation, then, that

officer would be targeted again as Internal Affairs would find something else to accuse the

officer of.” [SAC §59.] Further, the simple fact that Plaintiff did not receive transcripts of his

conversations with Sgt. Stranahan—absent allegations that the content of the conversations was

somehow improper—does not provide the requisite inference of discrimination.

Next, Plaintiff alleges that “a typical investigation of a complaint would be commenced

by interview of the officer’s immediate supervisor” [SAC { 46] and that Plaintiff was

interviewed by Lt. Desimone, not Sgt. Latour [SAC 44]. Plaintiff also alleges that he should

have been, but was not, “informed that he was under investigation about the child abuse case.”

[SAC 4 96.] The second allegation—that Plaintiff was not informed he was under

investigation—is inconsistent with the first, wherein Plaintiff alleges the investigation

commenced through the interview with Lt. Desimone where they discussed the CPS complaint.

[SAC J 45 “Lt. Desimone advised Det. Rios that a complaint had been filed against him by

Jennifer Woody and Kizzy Thomas, citing ‘poor police service’.”).] Further, Plaintiff alleges

that the CPS employees filed the complaint against him [SAC { 45] not because of any

discriminatory bias, but because one CPS employee did not “like being called out for a mistake

she made by the Asst. District Attorney” [SAC 4 48].

Finally, Plaintiff alleges that the RPD searched the phones found in his desk [SAC 89],

but he does not actually allege the search violated any RPD policy; to the contrary, the

Complaint states that “there is no departmental policy that covers the search of personal

belongings, even if on department property” [SAC § 91]. In sum, none of the conduct alleged

could provide an inference of discrimination.

27

C. Retaliation

Next, the Court address Plaintiff's retaliation claims. Plaintiff has two claims for

retaliation: first, that he was placed on administrative duty on August 7, 2017, for the complaints

filed by Plaintiff against Major Riggsbee’s husband between 2007 and 2008; and second, that he

was placed on suspension and terminated for filing his first EEOC charge. In order to state a

claim for retaliation, a Plaintiff must allege that: “(1) he engaged in protected activity; (2) his

employer took an action against him that a reasonable employee would find materially adverse;

and, (3) a causal connection between the protected activity and the adverse employment action.”

Brown v. Goodwill Indus. of E. N. Carolina, Inc., 361 F. Supp. 3d 558, 562 (E.D.N.C. 2019)

(citations omitted).

1. August 7, 2017, Placement on Administrative Duty

Plaintiff fails to state the third element of his first retaliation claim. Although alleging

“causation at the pleading stage is ‘not an onerous burden,”” a plaintiff must nevertheless “allege

facts plausibly supporting an inference of causation.” Pouncey v. Guilford Cty., No.

1:18CV1022, 2020 WL 1274264, at *13 (M.D.N.C. Mar. 17, 2020) (citations omitted). “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.’” Jd. (quoting

Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007). Courts have held that sixteen-month

gaps, id., at *14, eleven-month gaps, Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1204

(10th Cir. 2008), and thirteen-month gaps, Vasquez v. Cty. of L.A., 349 F.3d 634, 646 (9th Cir.

2003), are, without more, too long to support an inference of causation. Here, more than a

decade—or 120 months—passed between Plaintiff's complaints against Sgt. Floyd Riggsbee and

Plaintiffs placement on administrative duty; Plaintiff, therefore, must provide some other facts

28

to infer causation. Plaintiff has not done so. To the contrary, Plaintiff alleges no issues with

Major Riggsbee or IA and no investigations in the intervening decade. Major Riggsbee is

married to Sgt. Riggsbee, but given the amount of time that has passed, that link alone is

insufficient to allege causation.

2. Suspension and Termination

Plaintiff has adequately alleged all three elements of his second retaliation claim—that he

was terminated for filing EEOC Charge A. First, Plaintiff's filing of EEOC Charge A constitutes

a protected activity. See Jefferies vy. UNC Reg’l Physicians Pediatrics, 320 F. Supp. 3d 757, 761

(M.D.N.C. 2018) (“her filing of the June 19, 2017 EEOC charge did constitute

a protected activity.” (citation omitted)). Second, although Plaintiffs placement on suspension

with pay pending investigation does not appear to qualify as an adverse employment action, see

Lewis v. Richland Cty. Recreation Comm'n, No. 3:16-CV-2884-MGL-TER, 2018 WL 4957407,

at *7 n.3 (D.S.C. July 30, 2018) (“[A] number of courts addressing Title VII retaliation claims

have concluded that a suspension with pay pending a prompt investigation into allegations of

wrongdoing does not constitute an adverse employment action.” (citations and internal quotation

marks omitted), report and recommendation adopted, No. CV 3:16-2884-MGL-TER, 2018 WL

4214373 (D.S.C. Sept. 5, 2018), Plaintiff's termination surely does, see Scarborough, 2006 WL

2828683, at *4.

Defendant and Plaintiff mainly contest whether Plaintiff has alleged causation.

Defendant raises two primary arguments. First, Defendant argues that Plaintiff’s claim of

retaliation must fail because, based upon emails it attaches to its motion to dismiss, the RPD

began questioning Plaintiff about the December 2016 missing case file that ultimately led to his

firing on January 30, 2018 [DE-14-9], one day before Plaintiff filed EEOC Charge A [DE-28 at

29

20 (“It is impossible to claim that an investigation that began prior to the January 3 1, 2018 EEO

charge is in retaliation for the filing of that charge.”)]. However, the adverse employment action

at issue is not the investigation into the December 2016 incident, but is instead Defendant’s

ultimate decision to fire Plaintiff, which occurred after Plaintiff filed EEOC Charge A. Second,

Defendant argues that an alternative explanation for Plaintiff's termination, based upon its own

exhibits, exists: Plaintiff previously violated several work policies and refused to answer

questions in the final administrative investigation relating to the 2016 case. [See DE-27 at 1

(incorporating five declarations); see DE-31 at 8-10; see also SAC { 134 (“Det. Rios is

terminated for alleged insubordination for allegedly refusing to participate in an investigation.”). ]

Under certain circumstances, including those present here, temporal proximity alone may

suffice to allege causation. Burgess v. Bowen, 466 F. App’x 272, 283 (4th Cir. 2012) (‘temporal

proximity between the protected activity and the employer’s adverse action alone will suffice”

(citations omitted)). “‘[A] causal connection may exist where the employer takes adverse

employment action against an employee shortly after learning of the protected activity.’”

Lowman v. Maryland Aviation Admin., No. CV JKB-18-1146, 2019 WL 133267, at *8 (D. Md.

Jan. 8, 2019) (citing Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017)).

Recently, the Fourth Circuit observed that “although we have not drawn a bright temporal line,

we have observed that two-and-a-half months between the protected activity and the adverse

action” is too long to create the requisite inference of causation, but that just “one month” did

create a jury question regarding causation. Wilcox v. Lyons, --- F.3d ---, No. 19-1005, 2020 WL

4664794, at *3 (4th Cir. Aug. 11, 2020) (citations omitted).

Here, Plaintiff filed EEOC Charge A on January 31, 2018, Plaintiff was placed on

suspension on February 23, 2018 [see EEOC Charge B], and Plaintiff received notice of his

30

termination in March 2018 [SAC { 136; EEOC Charge B (“March 22, 2018”)]. Even assuming

Defendant was informed that Plaintiff had filed EEOC Charge A on the earliest possible date,

January 31, 2018—the date it was filed [but see SAC J 117 (‘RPD was informed . . . in late

January and/or early February 2018”)|—based on the facts alleged, less than two full months

had passed between the filing of Plaintiff's charge and his termination in March. This two-

month length falls in between the lengths recognized in Wilcox, and courts in the Fourth Circuit

have found two months sufficiently close to state the causation element of a Title VII retaliation

claim. See Lowman, 2019 WL 133267, at *8 (“Two months, on the other hand, is sufficiently

short.” (citations omitted)); Cox v. U.S. Postal Serv. Fed. Credit Union, No. GJH-14-3702, 2015

WL 3795926, at *4 (D. Md. June 17, 2015) (“Viewing the facts in the light most favorable to

Cox, the Court finds that the temporal proximity between the February meeting and the April

termination are close enough in time and circumstance to establish a causal connection.”); Wilkes

v. Argueta, No. 1:16CV260, 2017 WL 1215749, at *5 (M.D.N.C. Mar. 31, 2017) (“Courts have

found very close temporal proximity where two months or less lapsed between the alleged

protected activity and the adverse employment action.” (citations omitted)); cf Hines v. Blue

Cross & Blue Shield of N. Carolina, No. 1:19-CV-754, 2020 WL 3452155, at *4 (M.D.N.C. June

24, 2020) (finding, in the FMLA retaliation context, “[t]he Court has previously held that a

plaintiff satisfies the third element of a retaliation claim by alleging a gap of approximately two

months between the end of her FMLA leave and her termination. The Court holds the same

here.” (citation omitted)); cf Virginia Transformer Corp. v. Ebbert, No. 7:18-CV-00143, 2019

WL 1415467, at *5 (W.D. Va. Mar. 28, 2019) (finding, in Section 1981 retaliation context,

temporal proximity of two months alone was sufficient to satisfy pleading burden). Based on

temporal proximity alone, Plaintiff has alleged a retaliation claim for filing EEOC Charge A.

| 31

Although an inference of causation based upon temporal proximity can be undermined

where there is an alternative explanation for the alleged retaliation conduct on the face of the

Complaint, see Blakney v. N. Carolina A&T State Univ., No. 1:17CV874, 2019 WL 1284006, at

*22 (M.D.N.C. Mar. 20, 2019) (dismissing Title VII claim even where temporal proximity

existed based on plaintiff's own allegations), the Court declines to credit Defendant’s assertions,

based upon documents beyond the Complaint itself, at this stage. Further, although Defendant

asserts “Plaintiff admits that he ‘refus[ed] to answer any more questions about de minim/i/s

administrative matters that comparable officers did not have to endure’” [DE-31 at 8 (citing DE-

30 at 22)], the Complaint instead alleges that “[dJuring the course of all the IA ‘investigations’,

[Plaintiff] willingly answered any and all questions posed to him, truthfully, and based upon his

recollection of the events” [SAC 4 118; see also SAC 4 134 (“[Plaintiff] is terminated for alleged

insubordination for allegedly refusing to participate in an investigation.” (emphasis added))].

“Of course, discovery may ultimately reveal evidence that causes the Court to view this temporal

proximity differently. But for now, [Plaintiff] has met h[is] minimal pleading burden.” Cox,

2015 WL 3795926, at *4.

V. Conclusion

For the foregoing reasons, Defendant’s Motion [DE-27] is GRANTED IN PART and

DENIED IN PART. Only Plaintiff's retaliation claim that he was terminated for filing EEOC

Charge A remains. oe

SO ORDERED, this the /& day of September, 2020.

oy w/t Wyeth

RICHARD E. MYERS I

UNITED STATES DISTRICT JUDGE

32