HADLEY v. CITY OF MEBANE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MONTRENA HADLEY, )

)

Plaintiff, )

)

v. ) 1:18CV366

)

CITY OF MEBANE, DAVID CHEEK, )

CHRISTOPHER ROLLINS, and )

ESTHER BENNETT, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter comes before the court on Defendants City of

Mebane (“the City”), David Cheek, Christopher Rollins, and

Esther Bennett’s Partial Motion to Dismiss. (Doc. 18.)

Defendants filed a brief in support of their motion, (Doc. 19).

Plaintiff Montrena Hadley has responded, (Doc. 26), and

Defendants have replied, (Doc. 29). This matter is ripe for

resolution and for the following reasons, this court finds that

Defendants’ Partial Motion to Dismiss will be granted.

Defendants do not challenge Plaintiff’s First Claim as to the

City or Plaintiff’s Third Claim to the extent that Plaintiff

alleges a violation of her right to equal protection from

discrimination based on race and/or sex. (Doc. 19.)

I. PARTIES AND FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (citing King v.

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

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

A. Parties

Plaintiff Montrena Hadley is an African-American female

employee of Defendant, City of Mebane, North Carolina (the

“City”). (Am. Compl. (Doc. 13) ¶¶ 2, 14, 16.) The City hired her

as a Planning Director in 2001. (Id. ¶ 16.)1 The Planning

Director is a supervisory position and serves as the head of the

City’s Planning and Zoning Department. (Id.) Plaintiff was the

City’s first and only black department head until 2006. (See id.

¶ 21.) She was the City’s only black female department head

until Defendants replaced her with a white male in 2017. (Id.

¶ 22.)

Defendant David Cheek is a white male whom the City has

employed since 2009. (Id. ¶¶ 4, 40.) Cheek served as Assistant

City Manager until 2012 and has served as City Manager since

then. (Id. ¶¶ 4, 44.) Defendant Christopher Rollins is a white

1 Former City Manager, Robert Lee Wilson, hired Plaintiff.

(Am. Compl. (Doc. 13) ¶ 16.)

male whom the City has employed as Assistant City Manager since

2013. (Id. ¶ 5.) Defendant Esther Bennett, (collectively with

Cheek and Rollins, “Individual Defendants”), is a white female

whom the City has employed as Human Resources Director and Risk

Manager since 2009. (Id. ¶ 6.) Plaintiff sues Individual

Defendants in their individual and official capacities. (Id.

¶¶ 4-6.)

B. Plaintiff’s Equal Employment Opportunity Commission

(EEOC) Charge

A plaintiff “alleging discrimination in violation of Title

VII must first file an administrative charge with the EEOC

within a certain time of the alleged unlawful act.” Chacko v.

Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005). Plaintiff

must “describe generally the action or practices complained of.”

Id. at 508 (quoting 29 C.F.R. § 1601.12(b) (2004)). A

plaintiff’s Title VII claims in court, however, may not “exceed

the scope of the EEOC charge and any charges that would

naturally have arisen from an investigation thereof, they are

procedurally barred.” Id. (quoting Dennis v. Cty. of Fairfax, 55

F.3d 151, 156 (4th Cir. 1995)). Because Plaintiff’s EEOC Charge

necessarily circumscribes what Plaintiff may now plead, the

court will begin with that Charge.

In her May 9, 2017 EEOC Charge, Plaintiff’s allegations

relate primarily to her not receiving a promotion. (Am. Compl.

(Doc. 13) Ex. 1, EEOC Charge (Doc. 13-1) at 1.) She alleges that

she was hired by the City as a Planning Director in 2001 and has

been reporting to a white male Assistant City Manager since

2013. (Id.) Plaintiff further alleges that in 2014, her “title

was changed to Planning Officer, but [she] retained the same

responsibilities and pay.” (Id.) Finally, she claims that in

2016, the Assistant City Manager notified her that the City was

hiring a Development Director, which was an external job

posting. (Id.) Plaintiff charges that she applied and was

interviewed for the position but was not selected. (Id.)

Instead, Defendants hired a white male who was “neither more

qualified nor more experienced” than Plaintiff. (Id.)

C. Plaintiff’s Job as Planning Director

In her position as Planning Director, Plaintiff had a

variety of responsibilities, including overseeing the Mebane

Planning Board, making recommendations about zoning and planning

proposals, and maintaining the daily operations of the Planning

and Zoning Department, among others. (Id. ¶¶ 23–25.)

In addition to those responsibilities, Plaintiff alleges

that she effectively performed the responsibilities of a Zoning

Administrator, regularly working fifty to sixty hours per week —

more than any other salaried City employee. (Id. ¶¶ 27, 30–31.)

During Plaintiff’s employment with the City, the City Council

had not allocated funds to the Planning Department for

additional hires to alleviate Plaintiff’s workload, despite

certain assurances from former-City Manager Wilson that it

would. (Id. ¶¶ 34, 36–37.)

Wilson retired as City Manager in 2012, but the City did

not announce a job vacancy to recruit replacement candidates.

(Id. ¶¶ 42-43.) Rather, in the months leading up to Wilson’s

retirement, Defendant Cheek was chosen to replace Wilson, in

turn creating a vacancy for Assistant City Manager. (Id. ¶ 44.)

The City did not post a vacancy for the Assistant City Manager

position either. (Id. ¶ 45.)

Before he retired, Wilson told Plaintiff not to pursue the

Assistant City Manager position. (See id. ¶ 46.) Plaintiff

nevertheless informed Defendant Cheek of her interest in the

Assistant City Manager position. (Id. ¶ 47.) Cheek interviewed

Plaintiff but did not offer her the position, explaining that he

needed someone “more familiar with pump stations.” (Id. ¶ 47.)

Upon learning of Plaintiff’s interview with Defendant Cheek,

Wilson told Plaintiff that “she should only apply for positions

in cities where minorities or women are encouraged to apply.”

(Id. ¶ 48.) Defendant Cheek ultimately hired his long-time

friend, Defendant Rollins, as Assistant City Manager. (Id.

¶¶ 49-50.) Defendant Rollins previously served as the City

Manager for the City of Graham, North Carolina. (Id. ¶ 49.)

Plaintiff alleges that no City employee ever formally

interviewed Defendant Rollins for the position. (Id. ¶ 51.)

Plaintiff asked Defendant Bennett, the City’s Human

Resources Director, if she could file a grievance or appeal of

Cheek’s denial of her application for Assistant City Manager.

(See id. ¶ 54.) The City had no related policy or procedure

outlining such an appeal. (Id.) Defendant Bennett told Plaintiff

that she could ask to discuss it later but took no other action.

(Id.)

In January 2013, Defendant Rollins started as Assistant

City Manager, overseeing Plaintiff as Planning Director. (Id.

¶ 55.) Defendant Cheek and/or Defendant Rollins allegedly

approached former-City Manager Wilson after he retired to

discuss replacing Plaintiff as head of the Planning Department.

(Id. ¶ 62.) Wilson allegedly told them to wait until Plaintiff

retired. (Id. ¶ 63.) Plaintiff alleges that Defendant Rollins

did not want to work closely with Plaintiff due to her race

and/or sex, (id. ¶¶ 60–61), and subjected her to more scrutiny

than other employees under his supervision, who are all white,

(id. ¶ 58).2 Plaintiff alleges that she is the only City employee

2 Plaintiff still works for the City. (Am. Compl. (Doc. 13)

¶ 165.)

“who has been singled out and disparately treated to her

detriment in regards to performance evaluations and review

scores.” (Id. ¶ 59.)

D. Change in Job Title

In the spring of 2013, Defendants worked with the Piedmont

Triad Regional Council of Governments (“PTRC”) to conduct a

Classification and Pay Plan Study. (Id. ¶ 64.) The study

allegedly found that Plaintiff was performing the duties of a

Planning Officer, not a Planning Director. (Id. ¶¶ 66-67.) As a

result of the Classification and Pay Plan Study, Defendants

changed Plaintiff’s job title in 2014, from Planning Director to

Planning Officer. (Id. ¶ 65.) Plaintiff’s salary and

responsibilities did not change, and Plaintiff continued to act

in a “supervisory role as the sole-member of the Planning &

Zoning Department,” despite her new role being a nonsupervisory

position. (Id. ¶¶ 64-65, 77-78, 83.)3 Plaintiff alleges that she

continued to perform all the functions of the Planning Director

satisfactorily after her title change to Planning Officer. (Id.

¶ 81.) She also alleges that no grievance or appeal procedure

existed to allow her to challenge her job-title change. (Id.

¶ 76.)

3 Despite the reclassification, the placard outside of

Plaintiff’s office continued to read, “Planning Director.” (Id.

¶ 79.)

When Defendants changed Plaintiff’s title, they contended

that she was not performing several of the Planning Director’s

job functions and that Defendant Rollins was himself performing

several of those functions. (Id. ¶¶ 66-67.) Plaintiff disputes

this contention, alleging that Defendants’ decision to change

her job title was not based on her job performance, but rather

because, as Defendant Rollins told her, “a couple of

knuckleheads” on the City Council did not think she could do the

job. (Id. ¶¶ 68-70.) The City Council for the City of Mebane is

all-white. (Id. ¶ 71.) Plaintiff alleges that one councilman

and/or his company has been subject to multiple complaints of

racial discrimination, one resulting in a monetary settlement.

(Id. ¶¶ 73-74.)

Plaintiff alleges that the job-title change was an

“arbitrary and capricious adverse employment action.” (Id.

¶ 84.) She alleges that she was subjected to disparate treatment

because of her race and/or sex. (Id. ¶ 86.)

E. Creation of the Development Director Position

A few years later, on or around October 28, 2016, Defendant

Rollins told Plaintiff that he was “thinking about going in

another direction” with the Planning Department and that

Defendants Cheek and Bennett were drafting a description for a

new “Director” or “Manager” position. (Id. ¶ 90.) On or around

November 1, 2016, Defendant Bennett posted on the City’s website

a job announcement for a “Development Director,” made up of

portions of other municipalities’ job descriptions for planning

director positions. (Id. ¶¶ 91-93; see also Ex. 3 (Doc. 13-3).)

The Development Director’s responsibilities were substantially

similar to those of the City’s Planning Director and Planning

Officer. (Am. Compl. (Doc. 13) ¶ 97.)

Most job announcements are announced via the City’s

internal employee email listserv, but the Development Director

position was not. (Id. ¶ 94.) Plaintiff did not know if or when

she would be able to apply for the Development Director

position. (Id. ¶¶ 95-96.)

Defendant Cheek and/or Defendant Rollins allegedly

recruited a regional planner from the PTRC, who was a white

male, for the Development Director position. (Id. ¶ 98.) That

candidate declined but recommended Cy Stober, another white

male, for the position. (Id. ¶¶ 98-99.) Defendants Cheek and

Rollins encouraged Stober to apply, with Defendant Rollins

allegedly assuring Stober that Plaintiff would not be considered

seriously for the position. (Id. ¶¶ 101-02.) Plaintiff, Stober,

and three other white male candidates interviewed for the

position. (Id. ¶¶ 102-05.)

Defendants Rollins and Bennett interviewed Plaintiff. (Id.

¶ 103.) To obstruct Plaintiff’s candidacy, Rollins allegedly

asked Plaintiff questions from a list on his cell phone that

were not asked to other candidates, related to skills not

applicable to the position, and that Defendant Rollins knew that

Plaintiff could not perform, including her ability to create GIS

maps. (Id. ¶¶ 107-11.)

As the City’s Human Resources Director, Defendant Bennett

is allegedly responsible for ensuring equal opportunity to

employment candidates. (Id. ¶ 112.) Plaintiff alleges that

Defendant Bennett knew or should have known that Rollins was

interfering with Plaintiff’s right to fundamental fairness in

the selection process. (Id. ¶ 113.)

Defendants Cheek and Rollins hired Stober as the

Development Director, which Defendant Cheek announced via email

on January 31, 2017, specifically noting that Stober was “well

versed in GIS mapping and grant writing.” (Id. ¶¶ 117, 125.)

Stober is highly educated and has experience with environmental

planning, but Plaintiff alleges that Stober had no experience in

zoning or other code-related issues, is not a certified zoning

officer, and is not qualified to be the Development Director.

(Id. ¶¶ 124-27, 131.) Defendants allegedly maintained that

Stober was more qualified for the Development Director position.

(See id. ¶ 132.) Among other things, Defendants said that Stober

had experience creating GIS maps, which they said Plaintiff had

not mastered, (id. ¶ 135); he was well versed in grant writing,

(id. ¶ 125); and had more supervisory and management experience,

(id. ¶ 132). Plaintiff alleges that Defendants’ proffered

reasons for denying her the job of Development Director and

hiring Stober are false. (Id. ¶¶ 156-57.) Specifically,

Plaintiff asserts that she received GIS certification in June

2014 and that the City continues to outsource the creation of

GIS maps following Stober’s hiring anyways, (id. ¶¶ 136-37);

that she supervised interns in the Planning and Zoning

Department, (id. ¶ 133); and she has more experience writing

grant proposals than Stober, (id. ¶¶ 141-42). Notably,

Defendants and Stober allegedly continue to rely on Plaintiff to

“perform all of the work related to zoning administration” and

other regulatory and planning issues. (Id. ¶¶ 128-29, 145-46,

150.) Plaintiff alleges that she performs some of Stober’s

duties as Development Director. (Id. ¶ 149.)

Plaintiff alleges that Defendants created the Development

Director position to head the Planning and Zoning Department and

that they never hired a Planning Director after reclassifying

Plaintiff to Planning Officer. (Id. ¶¶ 118-19.) Plaintiff also

alleges that a City councilman stated the City created the

Development Director position because the City thought Plaintiff

would “be gone by now.” (Id. ¶ 151.)

Further, Plaintiff alleges that the Development Director

position was created to intentionally and purposefully remove

her as the de facto head of the Planning and Zoning Department

because of her race and/or sex. (Id. ¶ 160.) She also alleges

that hiring Stober to supplant her as the de facto head of the

Planning and Zoning Department was an adverse employment action.

(Id. ¶¶ 120-21.) Defendants denied her an opportunity to be

heard after her constructive removal. (See id. ¶ 123.)

Plaintiff alleges that City of Mebane Employee Handbook,

implemented in July 2015, states in part that no job applicant

“shall be deprived of employment opportunities or otherwise

adversely affected as an employee because of such individual’s

race, color, . . . [or] sex . . . .” (Id. ¶ 161.)4 The Handbook

also provides that, following the successful completion of a

six-month probationary period after their hiring, an employee

“may be dismissed only as provided in this policy.” (Id. ¶ 162.)

Plaintiff therefore alleges that the City created an implied

employment contract protecting an employee from dismissal unless

4 The Handbook explicitly states that it should not be read

to form an express or implied contract. (Am. Compl. (Doc. 13)

¶ 161.)

it is done in accordance with the Handbook’s policy.5 (See id.

¶ 163.) Plaintiff alleges that the Handbook creates an implied

contract that in turn created a constitutionally protected

property interest in continued employment and protection from

dismissal unless in accordance with City policy. (Id. ¶¶ 163-

64.)

Plaintiff alleges that, rather than promoting equal

opportunities for employment, the City, through its agents,

arbitrarily and capriciously sought preselected white candidates

to fill vacancies to her detriment and the detriment of other

similarly situated minority candidates. (Id. ¶ 166.) Plaintiff

alleges that Defendants are knowingly engaging in employment

policies, practices, and patterns that impede equal access and

opportunity to minority candidates in violation of their due

process rights. (Id. ¶¶ 167-68.)

F. EEOC Charge of Discrimination

On May 9, 2017, Plaintiff filed an EEOC Charge of

Discrimination, based on continuing race and sex discrimination

beginning on February 20, 2017, in violation of Title VII. (EEOC

Charge (Doc. 13-1) at 1.) Plaintiff’s EEOC Charge alleges that

the City hired a less qualified white male in January 2017 for a

new position, Development Director, for which Plaintiff had

5 The details of any dismissal policy are unalleged.

interviewed. (Id.) The EEOC Charge also describes the City

changing Plaintiff’s job title — with no corresponding changes

in her pay or responsibilities — from Planning Director to

Planning Officer in July 2014. (Id.) On December 1, 2017, the

EEOC mailed its Dismissal and Notice of Rights to Plaintiff,

which notified Plaintiff that the EEOC would not move forward

with her charge and informed Plaintiff that she had ninety days

to file suit. (Am. Compl. (Doc. 13) Ex. 2, Right to Sue Letter

(Doc. 13-2) at 1.) Assuming that Plaintiff received the Notice

of Rights on December 5, 2017, she had until March 6, 2018, to

file suit. (See id.)

G. Performance Review

Plaintiff filed her EEOC Charge of Discrimination in May

2017. (Am. Compl. (Doc. 13) ¶ 273.) In or around September 2017,

Stober conducted a performance review of Plaintiff. (Id. ¶ 274.)

Plaintiff alleges that at that time, Defendants were aware of

Plaintiff’s EEOC charges. (Id.) Plaintiff alleges that Defendant

Rollins helped prepare her performance review, which “included

negative comments and criticisms regarding Plaintiff’s job

performance.” (Id.) The City Handbook states that “[t]he

evaluation determines if performance is satisfactory and is not

necessarily related to salary increases. Satisfactory

performance, which is documented in the evaluation process,

would be a component considered at budget time.” (Id. ¶ 275.)

Plaintiff confronted Stober about “her concerns that someone

else had written her performance evaluation,” and “Stober did

not argue and agreed to delete the negative comments from her

evaluation.” (Id. ¶ 276.)

H. Procedural History

On March 5, 2018, Plaintiff filed her complaint in North

Carolina state court. (Complaint (Doc. 2).) Shortly thereafter,

Defendants removed this action to this court pursuant to 28

U.S.C. §§ 1331, 1441, and 1446, asserting that Plaintiff’s

complaint involves federal questions and that this court can

exercise supplemental jurisdiction over the remaining state

claims pursuant to 28 U.S.C. § 1367(a). (See Petition for

Removal (Doc. 1) at 1-3.)

On June 11, 2018, Defendants filed a motion to dismiss.

(Doc. 9.) On July 2, 2018, Plaintiff filed an Amended Complaint,

(Am. Compl. (Doc. 13)), mooting Defendants’ first motion to

dismiss, (see Order (Doc. 17)). On July 30, 2018, Defendants

moved to partially dismiss Plaintiff’s Amended Complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). (Defs.’ Partial Mot. to Dismiss (“Defs.’ Mot.” (Doc.

18.) Defendants filed a brief in support of their motion,

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

(Doc. 19)); Plaintiff responded, (Corrected Resp. in Opp’n to

Defs.’ Partial Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 26)); and

Defendants replied, (Defs.’ Reply Brief in Supp. of Partial Mot.

to Dismiss (“Defs.’ Reply”) (Doc. 29)).

Defendants argue that Plaintiff’s Second Claim for Relief

based upon disparate impact employment discrimination should be

dismissed for lack of standing, failure to state a claim, and

failure to exhaust administrative remedies. (Defs.’ Mot. (Doc.

18) at 1.) Defendants contend that Plaintiff’s federal and state

due process claims – Claims Three, Four, Six, and Seven – should

be dismissed for failure to allege deprivation of a

constitutionally protected interest. (Id.) Defendants also argue

that Plaintiff’s claims related to her reclassification as

Planning Officer are time-barred. (Id.) Defendants argue that

Plaintiff’s retaliation claim should be dismissed for failure to

state a claim. (Id. at 1-2.) Defendants assert that Plaintiff’s

official-capacity suits against Individual Defendants should be

dismissed as duplicative of those against the City. (Id. at 2.)

And finally, that Plaintiff’s Title VII claims against

Individual Defendants should be dismissed because they are not

her employer. (Id.)

Defendants also argue that Plaintiff’s failure to respond

to several of Defendants’ arguments in Defendants’ Brief should

be treated as a concession of those arguments. (Defs.’ Reply

(Doc. 29) at 1–4.)

Defendants do not move to dismiss Plaintiff’s First Claim

as to the City or Plaintiff’s Third Claim to the extent that

Plaintiff alleges a violation of her right to equal protection

from discrimination based on race and/or sex. (See Defs.’ Br.

(Doc. 19) at 2 n.1.)

II. LEGAL STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). In other words, the plaintiff must

plead facts that “allow[] the court to draw the reasonable

inference that the defendant is liable” and must demonstrate

“more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

556).

When ruling on a motion to dismiss, a court must accept the

complaint’s factual allegations as true. Iqbal, 556 U.S. at 678.

Further, “the complaint, including all reasonable inferences

therefrom, [is] liberally construed in the plaintiff’s favor.”

Estate of Williams-Moore v. All. One Receivables Mgmt., Inc.,

335 F. Supp. 2d 636, 646 (M.D.N.C. 2004).

Nevertheless, sufficient factual allegations must “raise a

right to relief above the speculative level” so as to “nudge[]

the[] claims across the line from conceivable to plausible.”

Twombly, 500 U.S. at 555, 570; see also Iqbal, 556 U.S. at 680.

A court cannot “ignore a clear failure in the pleadings to

allege any facts which set forth a claim.” Estate of Williams-

Moore, 335 F. Supp. 2d at 646. Consequently, even given the

deferential standard allocated to pleadings at the motion to

dismiss stage, a court will not accept mere legal conclusions as

true and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, [will] not

suffice.” Iqbal, 556 U.S. at 678.

III. ANALYSIS

The court will address each of Defendants’ arguments in

turn but will start with Defendants’ allegation that Plaintiff

conceded several arguments by failing to respond adequately to

Defendants’ Brief.

A. Plaintiff’s Failure to Respond to Defendants’ Arguments

Defendants allege that Plaintiff, in her response, failed

to respond adequately to several defense arguments raised in

Defendants’ Brief. (Defs.’ Reply (Doc. 29) at 1–4.)

The Rules of Practice and Procedure of the United States

District Court for the Middle District of North Carolina (the

“Local Rules”) govern submissions to the court. Local Rule

7.3(k) states that “[t]he failure to file a brief or response

within the time specified in this rule shall constitute a waiver

of the right thereafter to file such brief or response, except

upon a showing of excusable neglect.” Local Rule 7.2(a) requires

that response briefs shall contain an “argument, which shall

refer to all statutes, rules and authorities relied upon.” This

court has construed these rules to cover unresponded-to

arguments as well. See Brand v. N.C. Dep’t of Crime Control &

Pub. Safety, 352 F. Supp. 2d 606, 617–18 (M.D.N.C. 2004) (“In

Plaintiff’s brief in response to Defendants’ motion for summary

judgment, Plaintiff does not address Defendants’[] motion

concerning his hostile work environment claim. By failing to

respond, Plaintiff concedes that he has not stated a hostile

work environment claim.”); Kinetic Concepts, Inc. v. ConvaTec

Inc., No. 1:08CV00918, 2010 WL 1667285, at *7–8 (M.D.N.C.

Apr. 23, 2010) (citing various courts’ holdings that failure to

address an issue concedes it). Indeed, other courts have

interpreted analogous local rules similarly. See United States

v. Real Prop. Identified as: Parcel 03179-005R, 287 F. Supp. 2d

45, 61 (D.D.C. 2003) (finding that a similar local rule applies

to “specific arguments within a memorandum opposing a motion”);

Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 238 F.

Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this

Circuit that when a plaintiff files an opposition to a motion to

dismiss addressing only certain arguments raised by the

defendant, a court may treat those arguments that the plaintiff

failed to address as conceded.”).

Defendants contend that Plaintiff failed to respond to the

following arguments: (1) that Plaintiff lacks standing to bring

her disparate impact claim; (2) that Plaintiff has an alleged

constitutionally protected liberty or property interest; (3)

that Plaintiff stated inadequate facts to allege a retaliation

claim against the City; (4) that none of Individual Defendants

qualify as Plaintiff’s employer for the purposes of Title VII;

and (5) that Plaintiff failed to address the qualified immunity

argument as to her § 1983 claims against Individual Defendants.

(Defs.’ Reply (Doc. 29) at 1–4.)

Here, the court finds that Plaintiff did respond to

argument one, and therefore does not concede it. Plaintiff,

however, has failed to respond to the rest of Defendants’

arguments with anything but conclusory statements unsupported by

legal authority.6

The court therefore finds that Plaintiff failed to respond

to the following of Defendants’ arguments in Plaintiff’s

Corrected Response, (Doc. 26), in a manner conforming to the

Local Rules: that Plaintiff has an alleged constitutionally

protected liberty or property interest; that Plaintiff stated

inadequate facts to allege a retaliation claim against the City;

and that Plaintiff failed to address the qualified immunity

argument as to her § 1983 claims against Individual Defendants.

Plaintiff failed to include an “argument” per Local Rule 7.2(a),

and therefore failed to properly file a “brief” in accordance

with Local Rule 7.3(k). Due to these failures, the court will

deem Plaintiff’s arguments on these issues conceded, and

Defendants’ Partial Motion to Dismiss on these issues will be

granted.

6 For example, Plaintiff writes, “It is well-established

that, in regard to claims against the individual Defendants in

their official capacities, the application of 42 U.S.C. § 1983

to ‘persons’ does not act as a bar to the claims asserted, nor

are they duplicative in the purposes for which they are sought.”

(Pl.’s Resp. (Doc. 26) at 9.) Plaintiff fails to cite any

relied-upon authority to support this assertion, thereby truly

nudging a toe over the line of violating Local Rule 7.2(a) in

failing to “refer to all statutes, rules and authorities relied

upon.” Because this court will still address each of Defendants’

arguments on the merits, the court merely draws Plaintiff’s

attention to the local rules for future purposes.

The court nevertheless “has an obligation to review the

motions to ensure that dismissal is proper.” Stevenson v. City

of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014) (citing

Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 145 (1st

Cir. 2004))

When deciding a 12(b)(6) motion, the mere fact that a

motion to dismiss is unopposed does not relieve the

district court of the obligation to examine the

complaint itself to see whether it is formally

sufficient to state a claim. This obligation means

that a court may not automatically treat a failure to

respond to a 12(b)(6) motion as a procedural default.

Pomerleau, 362 F.3d at 145 (internal quotation marks omitted).

The court will thus address each of Plaintiff’s claims

Defendants contest on the merits in turn.

B. Plaintiff’s Claims Against Individual Defendants in

Their Official Capacities — Claims One, Two, Three,

Four, Six, and Seven

Because the issue of whether Plaintiff’s claims against

Individual Defendants in their official capacities determines

the course of analysis for several of Plaintiff’s claims, the

court addresses this issue first.

This court finds that Claims One, Two, Three, Four, Six,

and Seven against Individual Defendants in their official

capacities are duplicative of the claims against Defendant City,

or should be construed as claims against Defendant City, for the

reasons set forth, and will thus be dismissed as against

Individual Defendants in their official capacities.

In Kentucky v. Graham, the Supreme Court noted that

“[o]fficial-capacity suits . . . ‘generally represent only

another way of pleading an action against an entity of which an

officer [or employee] is an agent.’” 473 U.S. 159, 165–66 (1985)

(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978)); see also Love-Lane v. Martin, 355 F.3d 766, 783 (4th

Cir. 2004) (affirming the district court’s holding that an

official-capacity § 1983 claim against a county school board

superintendent is essentially a claim against the board and thus

should be dismissed as duplicative). Therefore, “[a]s long as

the government entity receives notice and an opportunity to

respond, an official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity. Graham,

473 U.S. at 167; Victors v. Kronmiller, 553 F. Supp. 2d 533, 544

(D. Md. 2008) (treating official capacity suit against only

state-employee individuals as a suit against the State, even

though the State was not officially named as a defendant).

Further, in North Carolina, “in a suit where the plaintiff

asserts a claim against a government entity, a suit against

those individuals working in their official capacity for this

government entity is redundant.” May v. City of Durham, 136,

N.C. App. 578, 584, 525 S.E.2d 223, 229 (2000); see also Wright

v. Town of Zebulon, 202 N.C. App. 540, 543, 688 S.E.2d 786, 789

(2010).

Here, Plaintiff has sued her employer, the City of Mebane,

and the City received notice and responded to this suit.

Plaintiff does not appear to seriously dispute this issue. As

noted, the court will treat the § 1983 claims against Individual

Defendants in their official capacities as claims against the

City. See Graham, 473 U.S. at 167. Plaintiff’s Third and Fourth

Claims brought against Individual Defendants in their official

capacities are therefore construed as claims against the City,

and Plaintiff’s First, Second, Sixth, and Seventh claims are

duplicative of their claims against the City.7

1. Plaintiff’s Claims for Injunctive Relief Against

Individual Defendants in their Official

Capacities

With regard to Plaintiff’s claims for injunctive relief

against Individual Defendants in their official capacities,

7 Because the court has dismissed Plaintiff’s Title VII

claims against Individual Defendants in their official capacity

as duplicative, the court need not address Defendants’ argument

that Individual Defendants are not Plaintiff’s employer for

Title VII purposes. See Johnson v. North Carolina, 905 F. Supp.

2d 712, 721 (W.D.N.C. 2012) (dismissing the plaintiff’s Title

VII official-capacity suit against supervisor as duplicative

under Graham). Further, Plaintiff did not respond to this

argument and this court sees no basis upon which to find that

Individual Defendants are Plaintiff’s employer.

Plaintiff argues that Ex Parte Young, 209 U.S. 123, 159 (1908),

applies. (Pl.’s Resp. (Doc. 25) at 8–9.) Ex Parte Young is an

exception to the Eleventh Amendment, which “allows private

citizens, in proper cases, to petition a federal court to enjoin

State officials in their official capacities from engaging in

future conduct that would violate the Constitution or a federal

statute.” Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002).

The court finds, however, that the Ex Parte Young doctrine

is inapplicable here. The Eleventh Amendment does not apply to

municipalities. Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977); Cash v. Granville Cty. Bd. of

Educ., 242 F.3d 219, 222 (4th Cir. 2001). It thus follows that

Ex Parte Young cannot apply when the Eleventh Amendment cannot

apply; the Eleventh Amendment must necessarily be implicated for

Ex Parte Young to apply. Here, there are no state actors; only

the City and its employees, to which the Eleventh Amendment

explicitly does not apply. See Mt. Healthy City Sch. Dist. Bd.

of Educ., 429 U.S. at 280.

The court thus finds that Plaintiff’s claims for injunctive

relief against Individual Defendants in their official capacity

are also duplicative for the same reasons stated above; the

court will dismiss Plaintiff’s claims for injunctive relief

against Individual Defendants in their official capacities.

2. Official Capacity Claims Conclusion

Plaintiff’s First, Second, Third, Fourth, Sixth, and

Seventh claims, for damages and injunctive relief, against

Individual Defendants in their official capacities will be

dismissed.

C. Individual Defendants in Their Individual Capacities

and North Carolina Constitutional Claims

Defendants argue that, to the extent Plaintiff sues

Individual Defendants in their individual capacities for

violations of the North Carolina Constitution, those claims must

be dismissed. The court agrees.

“Claims brought under the North Carolina Constitution may

be asserted only against state officials acting in their

official capacities.” Love-Lane, 355 F.3d at 789 (citing DeWitt

v. Mecklenburg Cty., 73 F. Supp. 2d 589, 605–06 (W.D.N.C. 1999);

Corum v. Univ. of N.C., 330 N.C. 761, 788, 413 S.E.2d 276, 293

(1992)). The court will therefore dismiss Claims Six and Seven

to the extent that they are alleged against Individual

Defendants in their individual capacities.

Given that the court has already dismissed Plaintiff’s

claims against Individual Defendants in their official

capacities as duplicative, the court will consider Plaintiff’s

North Carolina constitutional claims only as against the City.

See Sheaffer v. Cty. of Chatham, 337 F. Supp. 2d 709, 731

(M.D.N.C. 2004) (“While North Carolina does recognize claims

under the state constitution against officers named in their

official capacities, the claims against Clarke in her official

capacity are duplicative of Plaintiff’s claims against the

county and should be dismissed.” (internal citation omitted)).

The court will now address Plaintiff’s remaining claims on

the merits.

D. Plaintiff’s Disparate Impact Claim – Claim Two

Plaintiff brings a Title VII disparate impact claim under

42 U.S.C. § 2000e against Defendant City and Individual

Defendants in their official capacities. (Am. Compl. (Doc. 13)

¶¶ 191-223.) Because the court will dismiss Plaintiff’s claims

against Individual Defendants in their official capacities as

duplicative, the court will consider this claim as solely

against Defendant City.

Defendants move to dismiss Plaintiff’s Title VII disparate

impact claim on the basis of race and/or sex discrimination for

lack of standing and failure to exhaust administrative remedies

pursuant to Rule 12(b)(1), or, alternatively under Rule 12(b)(6)

for failure to state a claim. (Defs.’ Br. (Doc. 19) at 4.) For

the reasons set forth, the court will dismiss Plaintiff’s Title

VII Disparate Impact claim pursuant to Rule 12(b)(6).8

1. Failure to Exhaust Administrative Remedies

Defendants allege that Plaintiff failed to exhaust her

administrative remedies for her disparate impact claim prior to

bringing this suit. (Defs.’ Br. (Doc. 19) at 11–13.) The court

agrees and will grant Defendants’ motion to dismiss this claim

pursuant to Fed. R. Civ. P. 12(b)(6).

Defendants move to dismiss this claim under Rule 12(b)(1).

(Defs.’ Br. (Doc. 18) at 1.) Historically, when a defendant

sought to dismiss a complaint for the plaintiff’s failure to

exhaust administrative remedies, courts evaluated the motion to

dismiss under the Rule 12(b)(1) standard, which challenges

subject matter jurisdiction. See Kobraei v. Alexander, 521 F.

App’x 117, 118 (4th Cir. 2013); Collins v. Wash. Suburban

Sanitary Comm’n, Civil No. TJS-17-1530, 2017 WL 5187738, at *1

(D. Md. Nov. 19, 2017) (“Motions to dismiss employment

discrimination claims based on a failure to exhaust

administrative remedies are typically construed as motions to

8 The Supreme Court recently clarified that Title VII’s

charge-filing requirement is not jurisdictional and therefore a

motion to dismiss for failure to exhaust administrative remedies

must be brought under Rule 12(b)(6). Fort Bend Cty. v. Davis,

587 U.S. ____, ____, 139 S. Ct. 1843, 1851 (2019).

dismiss for lack of subject matter jurisdiction . . . .”). The

Supreme Court, however, recently held that “Title VII’s charge-

filing instruction is not jurisdictional,” but is “properly

ranked among the array of claim-processing rules that must be

timely raised to come into play.” Fort Bend Cty., 587 U.S. at

___, 139 S. Ct. at 1846. Title VII’s requirement that Plaintiff

file a charge with the EEOC prior to filing a complaint in

federal court nevertheless applies. See id. at ___, 139 S. Ct.

at 1851 (“Title VII’s charge-filing requirement is a processing

rule, albeit a mandatory one . . . .”). Thus, Defendants’ motion

will be evaluated under Rule 12(b)(6). See Lee v. Mkt. Am.,

Inc., No. 1:18CV1046, 2020 WL 1274226, at *5 (M.D.N.C. Mar. 17,

2020); Cowgill v. First Data Techs., Inc., Civil Action No. ADC-

19-2565, 2020 WL 551913, at *3 (D. Md. Feb. 4, 2020); EEOC v.

1618 Concepts, Inc., No. 19-cv-672, 2020 WL 87994, at *3

(M.D.N.C. Jan. 7, 2020).

Under the EEOC administrative framework, “an individual

alleging discrimination in violation of Title VII must first

file an administrative charge with the EEOC within a certain

time of the alleged unlawful act.” Chacko, 429 F.3d at 508.

Plaintiff must “describe generally the action or practices

complained of.” Id. (quoting 29 C.F.R. § 1601.12(b) (2004)). The

Fourth Circuit construes EEOC charges “liberally.” Id. at 509.

If a plaintiff’s claims raised under Title VII, however, “exceed

the scope of the EEOC charge and any charges that would

naturally have arisen from an investigation thereof, they are

procedurally barred.” Id. (quoting Dennis, 55 F.3d at 156).

“[A] plaintiff fails to exhaust [her] administrative

remedies where . . . [her] administrative charges reference

different time frames, actors, and discriminatory conduct than

the central factual allegations in [her] formal suit.” Id. at

506. Indeed, the Fourth Circuit has “held that the allegation of

a discrete act or acts in an administrative charge is

insufficient when the plaintiff subsequently alleges a broader

pattern of misconduct.” Id. at 509.

Here, Plaintiff filed an EEOC Charge, (EEOC Charge (Doc.

13-1)), in which she discussed the job interview at issue, as

well as the change in her job and pay classifications. (Id.) She

also stated that “the Assistant City Manager notified me that

the City was hiring a Development Director . . . . This was an

external, not internal, job posting.” (Id.) Rather than allege

any facially neutral practice, Plaintiff alleges specific,

discrete acts of discrimination in her EEOC Charge specifically

directed toward her, allegedly because she is an African-

American woman.9

A disparate impact claim under Title VII involves

“employment practices that are facially neutral in their

treatment of different groups but that in fact fall more harshly

on one group than another and cannot be justified by business

necessity.” Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 335 n.15 (1977).

As noted, Plaintiff fails to include any facts of a

facially neutral employment practice in the EEOC Charge. The

only fact Plaintiff includes which might be construed as an

employment practice is that the job posting was posted

externally. However, this fact hardly supports her present

claim, and is in fact inconsistent with a claim that Defendants

rely on “word-of-mouth hiring.” Plaintiff’s EEOC Charge

therefore “reference[s] different . . . discriminatory conduct

9 The parties have not addressed the issue of what activity

was timely complained of to the EEOC, but it appears the only

claim timely filed in the EEOC Charge is the failure to

hire/promote charge arising in 2017. As a result, at this stage

of the proceedings, the complained of activity in 2014 and

before may be considered as evidence of discriminatory intent,

but does not appear to be directly actionable. Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding

that Title VII plaintiffs may use “prior acts [of

discrimination] as background evidence in support of a timely

claim.”). Any timeliness or related issues may be resolved at

the summary judgment stage or at trial.

than the central factual allegations in [her] formal suit.”

Chacko, 429 F.3d at 506. Further, her “allegation of a discrete

act or acts in [her] administrative charge is insufficient when

[Plaintiff] subsequently alleges a broader pattern of

misconduct.” Id. at 509. Plaintiff thus failed to exhaust her

administrative remedies with respect to her disparate impact

claim.

The Fourth and Seventh Circuits have dealt with similar

situations and determined that the plaintiffs failed to exhaust

their administrative remedies. In Abdus-Shahid v. Mayor and City

Council of Balt., 674 F. App’x 267, 274–76 (4th Cir. 2017), the

plaintiff, in his EEOC Charge, only alleged instances of

discrimination against him personally. Id. at 275. When he

brought a Title VII claim, however, he asserted a disparate

impact claim. Id. at 274–75. The Fourth Circuit observed,

“Critically, the EEOC charge does not identify any policy

(neutral or otherwise) being challenged as discriminatory in its

effect . . . . [The plaintiff] also did not assert any facts

that would allow a conclusion that Muslims were being

disproportionately impacted by the City’s actions.” Id. at 275.

The court concluded that “[t]he problem is that the words used

in the EEOC charge do not correlate to the sort of assertions

and facts from which a future cause of action based on disparate

impact can be discerned,” and therefore the plaintiff had failed

to exhaust his administrative remedies for a disparate impact

claim under Title VII. Id. at 276.

The Seventh Circuit likewise held that a group of

plaintiffs failed to exhaust their administrative remedies with

regards to one part of their disparate impact complaint. Chaidez

v. Ford Motor Co., 937 F.3d 998, 1004-05 (7th Cir. 2019). There,

the plaintiffs filed an EEOC Charge focused on discrimination in

connection with a basic skills test and the post-test hiring

process. Id. When the plaintiffs filed a disparate impact Title

VII complaint concerning the test and post-test hiring process,

however, they also alleged that the unemployment office from

which the defendant hired engaged in discriminatory misconduct.

Id. The EEOC Charge did not contain any allegations of

misconduct on the unemployment office’s part. Id. The Seventh

Circuit held that the claims concerning the unemployment office

were not “like or reasonably related to the claims in the EEOC

charges,” and were thus properly dismissed for failure to

exhaust administrative remedies. Id. at 1006 (internal quotation

marks omitted).

These cases reinforce this court’s conclusion that

Plaintiff failed to exhaust her administrative remedies with

respect to her disparate impact claim. The court will grant

Defendants’ motion to dismiss this claim under Rule 12(b)(6) as

against Defendant City.

2. Failure to State a Claim

Alternatively, Defendants allege Plaintiff fails to state a

disparate impact claim. (Defs.’ Br. (Doc. 19) at 7–10.) Because

Plaintiff failed to exhaust her administrative remedies for a

disparate impact claim, the court will not reach the issue of

whether or not Plaintiff sufficiently pled a disparate impact

claim.

E. Plaintiff’s § 1983 Claims – Claims Three, Four, and Five

Plaintiff’s Third and Fourth Claims allege § 1983 claims

against Individual Defendants, in their individual and official

capacities, for deprivation of a constitutionally protected

liberty interest and a constitutionally protected property

interest, respectively. This court will construe Claims Three

and Four against Individual Defendants in their official

capacity as claims against Defendant City. See Graham, 473 U.S.

at 167.

Plaintiff’s Fifth Claim is a § 1983 claim against Defendant

City, alleging that the City, through the acts of Defendant

Rollins as Assistant City Manager, retaliated against Plaintiff

for filing an EEOC charge, in violation of the United States

Constitution and the North Carolina Constitution. (Am. Compl.

(Doc. 13) ¶¶ 283, 285, 288.)

Regarding Claims Three and Four, to the extent that

Plaintiff might be able to allege a claim based on her

reclassification, Defendants argue those § 1983 claims are time-

barred. (Defs.’ Br. (Doc. 19) at 4, 14.) As there is no federal

statute of limitation for a § 1983 claim, the court must look to

analogous state law for a statute of limitations. See Nat’l

Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1161 (4th Cir.

1991) (“Because there is no federal statute of limitations

applicable to suits under § 1983, it is the rule that the

applicable provision limiting the time in which an action [under

§ 1983] must be brought, must be borrowed from the analogous

state statute of limitations.” (alteration in original)

(internal quotation marks omitted)). The statute of limitations

in North Carolina for 42 U.S.C. § 1983 actions is three years.

Id. at 1162. The cause of action accrues when a plaintiff “knows

or has reason to know of the injury which is the basis of the

action.” Id. (quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.

1975)).

The original complaint was filed on March 5, 2018, and

Defendants reclassified Plaintiff in 2014, (Am. Compl. (Doc. 13)

¶ 65), over three years before this lawsuit was filed. Because

Plaintiff clearly knew of this injury when it originally

occurred in 2014, Plaintiff’s claims deriving from this action

under § 1983 are time-barred.

Defendants argue that Plaintiff fails to sufficiently

allege a constitutionally protected liberty or property interest

regarding Plaintiff’s Third and Fourth Claims. (Defs.’ Br. (Doc.

19) at 16, 18.) The court finds Plaintiff failed to respond to

this argument in her response brief and has thus conceded these

issues. This court also agrees with Defendants on the merits

that Plaintiff had no constitutionally protected liberty or

property interest for the reasons stated herein.

After addressing Plaintiff’s Third and Fourth Claims, the

court will then address Plaintiff’s Fifth Claim.

1. Plaintiff’s Deprivation of Constitutionally

Protected Liberty Interest — Claim Three

In Claim Three, Plaintiff alleges equal protection

violations as well as due process violations depriving her of a

constitutionally protected liberty interest. (Am. Compl. (Doc.

13) ¶¶ 231, 233, 238, 246, 248.)

Because Defendants do not move to dismiss Plaintiff’s Third

Claim to the extent that Plaintiff alleges a violation of her

right to equal protection from discrimination based on race

and/or sex, (see Defs.’ Br. (Doc. 19) at 2 n.1.), the court

focuses only on the alleged due process violations resulting in

a liberty interest deprivation.

A plaintiff may plead a due process violation when

“governmental action threatens [her] liberty interest in [her]

reputation and choice of occupation.” Ridpath v. Bd. of

Governors Marshall Univ., 447 F.3d 292, 307 (4th Cir. 2006). A

plaintiff may only succeed in pleading a deprivation of a

constitutionally protected liberty interest when her employer

“make[s] any charge against [her] that might seriously damage

[her] standing and associations in [her] community,” or “imposed

on [her] a stigma or other disability that foreclosed [her]

freedom to take advantage of other employment opportunities.”

Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972). Further, “an

injury to reputation alone does not deprive an individual of a

constitutionally protected liberty interest.” Tigrett v. Rector

& Visitors of Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002)

(citing Siegert v. Gilley, 500 U.S. 226, 233 (1991)). “Instead,

a plaintiff must demonstrate that h[er] reputational injury was

accompanied by a state action that ‘distinctly altered or

extinguished’ h[er] legal status if [s]he wants to succeed.”

Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th Cir.

2012) (quoting Paul v. Davis, 424 U.S. 693, 711 (1976)).

As noted, Plaintiff’s reclassification from director to

officer is time-barred as a source for § 1983 claims and

therefore cannot serve as a basis for this claim.

Alternatively, Plaintiff does not plead facts plausibly

indicating Defendants imposed a stigma foreclosing her freedom

to take advantage of other employment opportunities on Plaintiff

when they interviewed her for the Development Director position,

nor does Plaintiff plead facts that her legal status changed due

to her not getting the Development Director position sufficient

to establish a liberty interest. See Roth, 408 U.S. at 573;

Shirvinski, 673 F.3d at 315.

Further, regarding the City’s liability, the Supreme Court

has recognized that “municipal liability may be imposed for a

single decision by municipal policymakers under appropriate

circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480

(1986)). Here, Plaintiff alleges Individual Defendants committed

arbitrary and capricious acts “in their official capacities as

municipal policy makers.” (Am. Compl. (Doc. 13) ¶ 230.)

Nevertheless, the court has already found that Plaintiff has not

submitted sufficient facts to plausibly allege a liberty

deprivation at the hands of Individual Defendants in their

individual capacities; Plaintiff cannot plausibly allege

municipal liability on the same deficient set of facts.

Plaintiff’s claim for a constitutionally protected liberty

interest will therefore be dismissed as against Individual

Defendants in their individual capacities and as against the

City pursuant to Rule 12(b)(6).

2. Plaintiff’s Deprivation of Constitutionally

Protected Property Interest — Claim Four

Plaintiff’s Fourth Claim alleging due process violations

resulting in a property interest deprivation is similarly

without merit.10 The court will treat this claim as against

Individual Defendants in their individual capacities and as

against the City.

A plaintiff may have a property interest in employment

protected by procedural due process. See Roth, 408 U.S. at 576.

State law creates the property interest when it creates a

“legitimate claim of entitlement” to certain employment

benefits. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S.

1, 9 (1978). The state creates the claim of entitlement, but the

Federal Constitution protects against the arbitrary deprivation

10 While Plaintiff’s Fourth Claim alleges a property

interest deprivation, much of Plaintiff’s discussion of the

interest at issue for her Fourth Claim for Relief is dedicated

to her liberty interests, (see Am. Compl. (Doc. 13) ¶¶ 253–55),

and thus is inapplicable to her claim for a property interest

deprivation. Indeed, Plaintiff only specifically mentions her

property interests once in her Fourth Claim. (Id. ¶ 252.)

of benefits included in the state-created property interest. See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).

“[W]here a property interest . . . is claimed to be derived

from state law sources, it is obviously necessary to look to

those sources to determine the general nature of the interest,

for the process constitutionally due is dependent upon that.”

Siu v. Johnson, 748 F.2d 238, 244 (4th Cir. 1984) (citations

omitted).

North Carolina law does not provide Plaintiff with the

property interest entitlement she seeks. “At-will employees have

no property interests in their employment cognizable under the

due process clause.” Privette v. Univ. of N.C., 96 N.C. App.

124, 137, 385 S.E.2d 185, 192 (1989). “[A]bsent a contractual

agreement specifying a definite period of employment, only ‘a

statute or ordinance may create a property interest in continued

employment.’” Wilkins v. Guilford Cty., 158 N.C. App. 661, 668,

582 S.E.2d 74, 78 (2003) (quoting Kearney v. Cty. of Durham, 99

N.C. App. 349, 351, 393 S.E.2d 129, 130 (1990)).

Plaintiff does not allege that she signed an employment

contract nor does she allege the existence of a statute or

ordinance creating a property interest. Any property interest

would therefore have to be based in another contract.

Plaintiff alleges that the City’s employee handbook created

an implied contract which created her property interest. (Am.

Compl. (Doc. 13) ¶¶ 164, 252.) “Employee handbooks may form the

basis of a property right if they are included in the employee’s

employment contract, or in the case of local government, enacted

as ordinances.” Hinton v. Conner, 366 F. Supp. 2d 297, 311

(M.D.N.C. 2005) (citing Wuchte v. McNeil, 130 N.C. App. 738,

741, 505 S.E.2d 142, 144 (1998)); see also Bishop v. Wood, 426

U.S. 341, 344 (1976) (“A property interest in employment can, of

course, be created by ordinance, or by an implied contract.”).

However, “unilaterally promulgated employee manuals or personnel

memoranda do not create a property interest in continued

employment.” Wuchte, 130 N.C. App. at 741, 505 S.E.2d at 144-45.

Plaintiff neither alleges that the City’s employee handbook

was included as part of her contract nor that the handbook was

enacted as an ordinance. Indeed, the employee handbook

explicitly states that “[t]his handbook . . . should not be read

as . . . forming an . . . implied contract.” (Am. Compl. (Doc.

13) ¶ 161.) Plaintiff therefore cannot successfully make out a

claim for the deprivation of a liberty interest created by the

employee handbook.11

Plaintiff also alleges that “the City’s established

patterns and practices” gave rise to an implied contract

creating her property interest. (Id. ¶ 252.) This contention is

a stronger argument, but Plaintiff’s claim still fails for

failure to adequately plead sufficient facts.

A “person’s interest in a benefit is a ‘property’ interest

for due process purposes if there are . . . rules or mutually

explicit understandings that support [her] claim of entitlement

to the benefit and that [she] may invoke at a hearing.” Perry v.

Sindermann, 408 U.S. 593, 601 (1972). Plaintiff, in pleading the

creation of an implied contract out of “the City’s established

patterns and practices,” fails to elaborate on what those

patterns and practices are. (Am. Compl. (Doc. 13) ¶ 252.)

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 570). Here, there are

11 Even if the City’s employee handbook did create some type

of implied contract, at most that contract would protect a

person in their current position. Plaintiff does not

persuasively argue that the handbook creates a liberty interest

in obtaining a prospective position.

insufficient facts pled to allow the court to determine (1)

which patterns and practices gave rise to an implied contract,

and (2) that these patterns and practices alleged did indeed

create an implied contract for the purposes of assessing

Plaintiff’s complaint pursuant to a motion to dismiss under Rule

12(b)(6). Indeed, Plaintiff even alleges that “[w]hen Plaintiff

was denied the Assistant City Manager position, she asked

Bennett if she could file a grievance or appeal of the decision;

no such policy or procedure existed.” (Am. Compl. (Doc. 13)

¶ 54) (emphasis added).

Plaintiff thus fails to allege sufficient factual

allegations of other patterns or policies creating an implied

contract to “raise a right to relief above the speculative

level” so as to “nudge[] the[] claim[] across the line from

conceivable to plausible.” Twombly, 500 U.S. at 555, 570; see

also Iqbal, 556 U.S. at 680. Plaintiff’s Fourth Claim for a

violation of her constitutionally guaranteed property interest

will be dismissed as against Individual Defendants in their

individual capacities and as against the City pursuant to Rule

12(b)(6).

3. Individual Defendants in Their Individual

Capacities and Qualified Immunity

Individual Defendants sued in their individual capacity

allege they are entitled to qualified immunity on Plaintiff’s

Third and Fourth Claims alleging constitutional deprivations

under § 1983. (Defs.’ Br. (Doc. 19) at 19–20.) The court finds

Plaintiff failed to respond to this argument in her response

brief and has thus conceded this issue. The court will still

address the issue on the merits.

“To state a claim under § 1983, a plaintiff must aver that

a person acting under color of state law deprived him of a

constitutional right or a right conferred by a law of the United

States.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

615 (4th Cir. 2009).

State officials sued in their individual capacities are

“persons” within the meaning of § 1983 and are not absolutely

immune from suit. Hafer v. Melo, 502 U.S. 21, 31 (1991). A

government official sued in their individual capacity under

§ 1983 may, however, be entitled to qualified immunity. Id. at

25 (“[O]fficials sued in their personal capacities . . . may

assert personal immunity defenses such as objectively reasonable

reliance on existing law.”).

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Defendant

officials have the burden of pleading and proving qualified

immunity. See, e.g., Cloaninger ex rel. Estate of Cloaninger v.

McDevitt, 555 F.3d 324, 332 n.10 (4th Cir. 2009); Wilson v.

Kittoe, 337 F.3d 392, 397 (4th Cir. 2003).

In determining whether qualified immunity applies, courts

must engage in a two-step test “that asks first whether a

constitutional violation occurred and second whether the right

violated was clearly established.” Gregg v. Ham, 678 F.3d 333,

338–39 (4th Cir. 2012) (quoting Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (en banc)). This test, however, need not

proceed in this sequence; “[t]he judges of the district courts

and the courts of appeals [may] exercise their sound discretion

in deciding which of the two prongs . . . should be addressed

first in light of the circumstances in the particular case at

hand.” Pearson, 555 U.S. at 236.

Because Plaintiff has failed to allege a constitutional

violation in either Claim Three or Claim Four, Individual

Defendants in their individual capacities are entitled to

qualified immunity.12

4. Plaintiff’s § 1983 Claim for Retaliation — Claim

Five

This court finds that Plaintiff’s claim for retaliation

against the City under § 1983 fails.

Plaintiff alleges that Defendant Rollins’ negative comments

on Plaintiff’s performance review after Defendant Rollins had

learned of Plaintiff’s EEOC complaint were retaliatory. (Am.

Compl. (Doc. 13) ¶¶ 278–88.) Plaintiff alleges that “as

Assistant City Manager, employment acts of Rollins constitute

City policy.” (Id. ¶ 283.)

Defendants argue that Plaintiff’s allegations are

insufficient to impose municipal liability on the City under

Monell. (Defs.’ Br. (Doc. 19 at 24.) Plaintiff failed to respond

to this argument in her response brief and has thus conceded

this issue. The court also finds Plaintiff fails to plausibly

allege a claim for retaliation under § 1983 on the merits.

12 “There is support for the position that in the absence of

a constitutional violation, a defendant prevails not because of

qualified immunity but because the plaintiff has failed to

demonstrate an essential element of a section 1983 claim. In any

event, the result is the same here.” Swick v. Wilde, No. 1:10-

cv-303, 2012 WL 3780350, at *9 n.15 (M.D.N.C. Aug. 31, 2012)

(citing Henry v. Purnell, 501 F.3d 374, 378 n.3 (4th Cir.

2007)).

“[A] municipality may be subject to liability under section

1983 if the alleged injury was caused by an identifiable

municipal policy or custom.” Riddick v. Sch. Bd. of Portsmouth,

238 F.3d 518, 522 (4th Cir. 2000). When “individuals ‘whose

edicts or acts may fairly be said to represent official policy’”

create an alleged constitutional deprivation, the municipality

may be subject to liability under § 1983. Id. at 523 (quoting

Monell, 436 U.S. at 694). “Municipal liability attaches only

where the decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered.” Pembaur,

475 U.S. at 482. “To qualify as a final policymaking official, a

municipal official must have the responsibility and authority to

implement final municipal policy with respect to a particular

course of action.” Riddick, 238 F.3d at 523 (internal quotation

marks omitted).

“The question of who possesses final policymaking authority

is one of state law.” Id. The court must look to “relevant legal

materials, including state and local positive law, as well as

custom or usage having the force of law.” Id. (internal

quotation marks omitted).

“[I]t is true that a municipality may delegate its final

policymaking authority to other officials or governing bodies,

we must never “assum[e] that municipal policymaking authority

lies somewhere other than where the applicable law purports to

put it.” Hunter v. Town of Mocksville, 897 F.3d 538, 555 (4th

Cir. 2018) (citation omitted) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 126 (1988)). “When an official’s

discretionary decisions are constrained by policies not of that

official’s making, those policies, rather than the subordinate’s

departures from them, are the act of the municipality.” City of

St. Louis, 485 U.S. at 127.

Plaintiff therefore must demonstrate that Defendant Rollins

qualifies as a final policymaking official in order to defeat a

motion to dismiss. Plaintiff fails to provide any evidence at

all that Defendant Rollins’ decisions qualify as “final

municipal policy,” or that Defendant Rollins is himself a final

policymaking official.

Plaintiff alleges that “[a]ccording to the City Handbook,

performance evaluations are conducted for all probationary and

full-time status employees and should be performed by the

employee’s immediate supervisor who is most familiar with the

employee’s work.” (Am. Compl. (Doc. 13) ¶ 275.) Further, the

policy as set out in the City Handbook states that “[t]he

evaluation session is intended to provide an opportunity for the

employee to receive the supervisor’s assessment of the

employee’s work performance,” and that “[t]he evaluation

determines if performance is satisfactory. (Id.) Here, Plaintiff

alleges that Defendant Rollins “provided false negative feedback

on Plaintiff’s evaluation,” and “the negative comments and

criticism removed by Stober were not intended to provide

Plaintiff an opportunity for her to receive her supervisor’s

assessment of her work performance.” (Id. ¶¶ 278, 280.)

Taking Plaintiff’s allegations as true reveals that the

City Handbook policy concerning performance evaluations is the

“act of the municipality,” not Defendant Rollins’ “departure[]

from” the City Handbook policy; Defendant Rollins meant for his

performance evaluation to punish Plaintiff, not to determine

whether Plaintiff’s performance was satisfactory. This act thus

departs from the purpose of the policy and no longer qualifies

as an act of the City.

Plaintiff further alleges no facts to support the notion

that the City delegated to Defendant Rollins the authority to

create and implement policy concerning performance evaluations.

Defendant Rollins was therefore “constrained by policies not of

[his] making.” City of St. Louis, 485 U.S. at 127. Instead,

Plaintiff states that “[a]s Assistant City Manager, employment

acts committed by Rollins constitute City policy.” (Am. Compl.

(Doc. 13) ¶ 283.) This is the sort of “‘naked assertion[]’

devoid of ‘further factual enhancement’” that Twombly and Iqbal

sought to eradicate. Iqbal, 556 U.S. at 679 (quoting Twombly,

550 U.S. at 557).

This is a situation where an “official’s discretionary

decisions are constrained by policies not of that official’s

making,” and therefore, “the subordinate’s departures from”

those polices do not constitute the acts of the municipality.

City of St. Louis, 485 U.S. at 127.

Because Plaintiff fails to provide “further factual

enhancement” for her claim that Defendant Rollins is a final

policymaking official, her retaliation claims under § 1983 must

fail.

F. Plaintiff’s Due Process Claims under North Carolina

Constitution — Claims Six and Seven

Plaintiff pleads analogous liberty and property

deprivations under Article 1, §§ 1, 19 of the North Carolina

Constitution. (Am. Compl. (Doc. 13) ¶¶ 291–322.) Plaintiff’s

Sixth and Seventh Claims are analogous to Claims Three and Four

but are brought under N.C. Const. art. I, §§ 1, 19. (Id. ¶¶ 225–

27, 252–54, 291, 312–14.) Defendants move to dismiss these

claims pursuant to Rule 12(b)(6), arguing that Plaintiff alleges

no violation of a property or liberty interest protected by due

process. (Defs.’ Br. (Doc. 19) at 4, 13–18.) The court finds

Plaintiff failed to respond to this argument in her response

brief and has thus conceded these issues. The court will

nevertheless address Plaintiff’s North Carolina Constitution

claims on the merits.

1. Article 1, § 1 — Claim Six

Plaintiff alleges a deprivation of a constitutionally

protected liberty interest under § 1. Defendants argue that this

claim should be dismissed for failure to allege a violation of a

“clear, established rule.” (Defs.’ Br. (Doc. 19) at 21.) The

court finds Plaintiff failed to respond to this argument in her

response brief and has thus conceded this issue.

Article 1, § 1 of the North Carolina Constitution states

that “all persons are created equal; that they are endowed by

their Creator with certain inalienable rights; that among these

are life, liberty, the enjoyment of the fruits of their own

labor, and the pursuit of happiness.” Generally, the provision

protects “the right of the individual to be free to enjoy the

faculties with which he has been endowed by his Creator, to live

and work where he will, to earn his livelihoo[d] by [any] lawful

calling, and to pursue any legitimate business, trade or

vocation.” State v. Warren, 252 N.C. 690, 693, 114 S.E.2d 660,

663 (1960).

The North Carolina Supreme Court has interpreted § 1 to

create a constitutionally protected liberty interest. Tully v.

City of Wilmington, 370 N.C. 527, 534–35, 810 S.E.2d 208, 214–15

(2018). Further, “Article 1, Section 1 also applies when a

governmental entity acts in an arbitrary and capricious manner

towards one of its employees by failing to abide by promotional

procedures that the employer itself put in place.” Id. at 535–

36, 810 S.E.2d at 215 (collecting cases) (noting “that other

courts have recognized the impropriety of government agencies

ignoring their own regulations”). To succeed on a § 1 claim, the

court in Tully held:

a public employee must show that no other state law

remedy is available and plead facts establishing three

elements: (1) a clear, established rule or policy

existed regarding the employment promotional process

that furthered a legitimate governmental interest; (2)

the employer violated that policy; and (3) the

plaintiff was injured as a result of that violation.

If a public employee alleges these elements, he has

adequately stated a claim that his employer

unconstitutionally burdened his right to the enjoyment

of the fruits of his labor.

Id. at 537, 810 S.E.2d at 216.

Plaintiff argues two violations of the two allegedly

established policies as the bases for her § 1 claim. First that

“Defendants failed to make the appointment and/or promotion to

the Development Director position on the basis of each

candidate’s merit and fitness,” and second that “Plaintiff was

deprived of employment opportunities or otherwise adversely

affected as an employee because of her race, color, and/or sex.”

(Am. Compl. (Doc. 13) ¶¶ 295, 297.) The court will address each

alleged violation, starting with the alleged discrimination

based on her race, color, and/or sex.

a. Deprivation Due to Discrimination

Plaintiff alleges that Defendants violated the City’s

policy, which states that “[n]o applicant for City employment or

employee shall be deprived of employment opportunities or

otherwise adversely affected as an employee because of such

individual’s race, color . . . [or] genetic information . . . .”

(Id. ¶ 293.)

Before reaching the three Tully elements, Plaintiff must

first show that “no other state law remedy is available.” Tully,

370 N.C. at 537, 810 S.E.2d at 216. Plaintiff alleges that “[n]o

adequate state remedy exists for these state constitutional

violations and damages suffered by Plaintiff.” (Am. Compl. (Doc.

13) ¶ 307.) The court disagrees.

The court finds that Plaintiff’s § 1 claim based on

discrimination is essentially an equal protection claim that is

more properly brought under N.C. Const. art. I, § 19. § 19

provides that:

No person shall be taken, imprisoned, or

disseized of his freehold, liberties, or privileges,

or outlawed, or exiled, or in any manner deprived of

his life, liberty, or property, but by the law of the

land. No person shall be denied the equal protection

of the laws; nor shall any person be subjected to

discrimination by the State because of race, color,

religion, or national origin.

N.C. Const. art. I, § 19. While Plaintiff’s claim may seem to

address the violation of a policy regarding the employment

promotional process, upon closer inspection, the policy

addresses a situation § 19 contemplates: When an employee is

deprived of employment opportunities due to racial

discrimination in the employment setting.13 See Sheaffer, 337

F. Supp. 2d at 730 (examining disability discrimination in the

employment context under N.C. Const. art. I, § 19); Disher v.

Weaver, 308 F. Supp. 2d 614, 626–27 (M.D.N.C. 2004) (considering

racial discrimination in the employment setting under N.C.

Const. art. I, § 19).

Thus, because Plaintiff’s § 1 claim could be brought under

§ 19, Plaintiff may not base her § 1 claim upon charges of

13 The court acknowledges that even if Plaintiff brought an

equal protection claim under § 19, she would still need to

demonstrate a lack of an adequate state law remedy. See

Sheaffer, 337 F. Supp. 2d at 730. The court notes that neither

of North Carolina’s employment discrimination statutes, N.C.

Gen. Stat. § 143-422.2 nor N.C. Gen. Stat. § 126-16, would

likely apply to Plaintiff, because she was not wrongfully

terminated, see McLean v. Patten Cmtys., Inc., 332 F.3d 714, 720

(4th Cir. 2003) (noting that N.C. Gen. Stat. § 143-422.2 only

applies to common law wrongful discharge suits), nor does her

employment with the Planning & Zoning Department for the City

qualify her for the protection of N.C. Gen. Stat. § 126-16, see

N.C. Gen. Stat. § 126-5; Conran v. New Bern Police Dep’t, 122

N.C. App. 116, 118–19, 468 S.E.2d 258, 259–60 (1996) (holding

that § 126-5 did not cover the plaintiff as a police officer).

racial discrimination. The court will turn to the City’s alleged

violation of its policy to promote based on merit and fitness.

b. Deprivation Due to Failure to Hire

Based on Merit and Fitness

Plaintiff argues that “Equal employment policies such as

[the merit and fitness policy] set forth in the Handbook serve a

legitimate government interest of providing a fair procedure

that ensures qualified candidates are advanced throughout the

hiring and/or promotional process.” (Am. Compl. (Doc. 13)

¶ 294.)

The court first finds that there is no other state law

remedy available. For the first prong, Plaintiff alleges that

Defendants violated the “established policy” set forth in the

handbook stating that “‘[a]ll appointments and promotions shall

be made on the basis of merit and fitness.’” (Id. ¶ 293.)

Defendants contend that Plaintiff fails to allege a

violation of “a clear, established rule or policy.” (Defs.’ Br.

(Doc. 19) at 21.) Defendants contend that Plaintiff’s § 1 claim

“asks the Court to determine whether she should have received

the promotion on the merits, on the basis that she had a

protected interest in receiving it.” (Id.)

The court in Tully observed that the existing authority in

this area is “admittedly sparse.” Tully, 370 N.C. at 536, 810

S.E.2d at 216. The court thus finds that, in light of the sparse

precedent on this issue and absent any argument by Plaintiff

explaining why that rule is sufficiently clear to permit

enforcement under § 1 as interpreted by Tully, the court must

find that Plaintiff has failed to plausibly allege a “clear,

established rule,” and the court will dismiss this claim.

2. Article 1, § 19 — Claim Seven

Plaintiff alleges both liberty and property deprivations

under § 19, which fail. (Id. ¶¶ 312, 314.) Defendants argue that

Plaintiff cannot plausibly allege constitutionally protected

liberty or property interest. (Defs.’ Br. (Doc. 19) at 13–14,

23.) Plaintiff failed to respond to this argument and has

therefore conceded these issues. Further, the court finds that

Plaintiff’s claim also fails on the merits.

Article 1, § 19 of the North Carolina Constitution provides

for equal protection and due process. The North Carolina Supreme

Court interprets the Fourteenth Amendment of the Federal

Constitution and Article 1, § 19 of the North Carolina

Constitution conterminously. See Tri-Cty. Paving, Inc. v. Ashe

Cty., 281 F.3d 430, 436 n.6 (4th Cir. 2002); State v. Bryant,

359 N.C. 554, 563, 614 S.E.2d 479, 485 (2005); Rhyne v. K-Mart

Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004).

Plaintiff’s liberty and property deprivation claims fail

under § 19. Because the North Carolina Constitution and the

Federal Constitution are interpreted conterminously, see Tri-

Cty. Paving, 281 F.3d at 436 n.6, and Plaintiff’s claims for

deprivations of constitutionally protected liberty and property

interests fail under the Federal Constitution, Plaintiff’s

claims must fail here for the aforementioned reasons. See supra

Part III.E.1–2; see also Munn-Goins v. Bd. of Trs. of Bladen

Cmty. Coll., 658 F. Supp. 2d 713, 731 (E.D.N.C. 2009).

The court also notes that, even if Plaintiff had not

brought Federal Constitution claims, the North Carolina Supreme

Court has held that there is no constitutionally protected

property interest in a promotion under § 19 and thus Plaintiff

could not state a claim under § 19 for a property interest for

failing to be promoted.14 Tully, 370 N.C. at 539, 810 S.E.2d at

219.

The court will therefore dismiss Plaintiff’s § 19 claim

against the City under Rule 12(b)(6).

IV. CONCLUSION

Defendants’ partial motion to dismiss is granted or denied

as to each of the claims and parties as set forth

hereinabove. Neither party has addressed the Eighth or Ninth

Claims for relief in these briefs. However, Plaintiff’s Eighth

14 The court also notes that Plaintiff has not alleged a

discrimination claim under § 19.

and Ninth claims for relief are requests for attorney’s fees

under applicable federal and state law. Those requests are not

separate claims for relief under Fed. R. Civ. P. 8(a)(1) but are

instead demands for relief under 8(a)(3). Relief under either of

those designated claims is not ripe until the conclusion of the

case and only upon motion by a prevailing party. Those claims

are construed as prayers for relief rather than independent

claims and not addressed at this time.

The following claims remain for resolution at summary

judgment or trial: Plaintiff’s First Claim against Defendant

City of Mebane; and Plaintiff’s Third Claim against the

Individual Defendants in their individual capacities and

Defendant City of Mebane, regarding an equal protection

violation from discrimination based on race and/or sex.

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendants’ Partial Motion to

Dismiss, (Doc. 18), is GRANTED as to Claims One, Two, Three,

Four, Six, and Seven as to David Cheek, Christopher Rollins, and

Esther Bennett (“Individual Defendants”) in their official

capacities.

IT IS FURTHER ORDERED that Defendants’ Partial Motion to

Dismiss, (Doc. 18), is GRANTED as to Claim Three as to a

deprivation of a constitutionally protected liberty interest,

and Claims Four, Six, and Seven as to Individual Defendants in

their individual capacities under Rule 12(b) (6). Plaintiff’s

Third Claim regarding an egual protection violation as to

Individual Defendants in their individual capacities remains for

resolution.

IT IS FURTHER ORDERED that Defendants’ Partial Motion to

Dismiss, (Doc. 18), is GRANTED as to Claim Three as toa

deprivation of a constitutionally protected liberty interest,

and Claims Two, Four, Five, Six, and Seven as to Defendant City

of Mebane under Rule 12 (b) (6). Plaintiff’s Third Claim regarding

an equal protection violation as to Defendant City of Mebane

remains for resolution.

This the 31st day of March, 2020.

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LS Wi rn L. abun. □

‘United States District Ju

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