CONNELLY v. TRIPLETT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANNETTE R. CONNELLY, )

)

Plaintiff, )

)

v. ) 1:24cv492

)

GUILFORD COUNTY SCHOOLS and )

ASHLEY TRIPLETT, )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Plaintiff’s Application to

Proceed In Forma Pauperis (Docket Entry 1) (the “Application”) in

conjunction with her pro se Complaint (Docket Entry 2) (the

“Complaint”). For the reasons that follow, the Court will grant

Plaintiff’s instant Application for the limited purpose of

recommending dismissal of this action under 28 U.S.C. § 1915(e)(2)

as frivolous and for failing to state a claim.

RELEVANT STANDARDS

“The federal in forma pauperis statute, first enacted in 1892

[and now codified at 28 U.S.C. § 1915], is intended to guarantee

that no citizen shall be denied access to the courts solely because

his poverty makes it impossible for him to pay or secure the

costs.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th

Cir. 1995) (en banc) (internal quotation marks omitted).

“Dispensing with filing fees, however, [is] not without its

problems. . . . In particular, litigants suing in forma pauperis

d[o] not need to balance the prospects of successfully obtaining

relief against the administrative costs of bringing suit.” Nagy v.

FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004). To address this

concern, the in forma pauperis statute provides that “the court

shall dismiss the case at any time if the court determines . . .

the action . . . (i) is frivolous . . . [or] (ii) fails to state a

claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

As to the first of those grounds, the United States Supreme

Court has explained that “a complaint . . . is frivolous where it

lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). “The word frivolous is

inherently elastic and not susceptible to categorical

definition. . . . The term’s capaciousness directs lower courts to

conduct a flexible analysis, in light of the totality of the

circumstances, of all factors bearing upon the frivolity of a

claim.” Nagy, 376 F.3d at 256-57 (internal citations and quotation

marks omitted). As relevant to this case, an action fails as

frivolous when “it appear[s] on the face of the complaint . . .

that the applicable statute of limitations bars [the plaintiff’s

claims].” Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983);

see also Nasim, 64 F.3d at 956 (“[T]he [district] court found that

[the plaintiff’s claim] was barred by the applicable . . . statute

of limitations. In these circumstances, the district court did not

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abuse its discretion in concluding that the action was frivolous

under 28 U.S.C. § 1915(d).”).?

As to the second ground for dismissal under 28 U.S.C.

§ 1915(e) (2) (B), a plaintiff “fails to state a claim on which

relief may be granted,” 28 U.S.C. § 1915(e) (2) (B) (ii), when the

complaint does not “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)). To gualify as

plausible, a claim needs sufficient factual content to support a

reasonable inference of the defendant’s liability for the alleged

misconduct. Id. (citing Twombly, 550 U.S. at 556). The complaint

need not contain detailed factual recitations, but must provide

“the defendant fair notice of what the claim is and the grounds

upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation

marks and ellipsis omitted). “At bottom, determining whether a

complaint states . ..a plausible claim for relief . .. will ‘be

a context-specific task that requires the reviewing court to draw

on its judicial experience and common. sense.’” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556

U.S. at 679).

1 Section 1915’s frivolousness provision, which now appears

in subsection (e), formerly appeared in subsection (d). See Nagy,

376 F.3d at 255.

Further, “[w]lhere a complaint pleads facts that are merely

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

between possibility and plausibility of entitlement to relief.”

Igbal, 556 U.S. at 678 (internal quotation marks omitted). This

standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. In other

words, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

BACKGROUND

Alleging discrimination during her employment with Guilford

County Schools (“GCS”), Annette R. Connelly (the “Plaintiff”) sued

GCS and Ashley Triplett, principal of Peck Elementary School,

2 Although “[a] document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted

by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

citations and quotation marks omitted), the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine

Twombly’s requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); see also Atherton v. District of Columbia Off. of the

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint

- . . ‘must be held to less stringent standards than formal

pleadings drafted by lawyers.’ But even a pro se complainant must

plead ‘factual matter’ that permits the court to infer ‘more than

the mere possibility of misconduct.’” (first quoting Erickson, 551

U.S. at 94; then quoting Iqbal, 556 U.S. at 679)).

(collectively, the “Defendants”) on June 14, 2024. (See Docket

Entry 2 at 1-3; Docket Entry 2-1 at 1.)3 GCS employed Plaintiff,

currently age 66 (see Docket Entry 2 at 4), as a school counselor

at Peck Elementary School from August 2017 (see Docket Entry 2-1 at

1) until the spring of 2024 (see Docket Entry 2 at 5 (alleging

employment incidents through at least April 2024), 6 (stating that

Plaintiff “had to resign from [GCS]”)).

According to the Complaint, Plaintiff first filed a charge

with the Equal Employment Opportunity Commission (the “EEOC”) on

“March 11, 2024” and received a right-to-sue letter on “March 12,

2024.” (Docket Entry 2 at 8.)4 As relevant here, the EEOC charge

asserts:

1. In August 2017, [GCS] hired [Plaintiff] as a

[p]rofessional [s]chool [c]ounselor to work at Peck

Elementary.

2. [Plaintiff] ha[s] been harassed by [] Triplett,

[p]rincipal[,] continuously since the fall of 2019. On

or around January 29, 2024, [Plaintiff] was given

write[-]ups which were based on false information. []

Triplett has continuously scrutinized [Plaintiff’s] work

compared to [her] co-workers and even gone as far as to

alienate [her] from other staff. [] Triplett has even

told the new [s]ocial [w]orkers to stay away from

Plaintiff[,] however[, their] positions interact on a

daily basis.

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

pagination. For legibility reasons, this Opinion omits bold and

italicized font in all quotations from Plaintiff’s materials.

4 Plaintiff attached a copy of her EEOC charge, but not her

alleged right-to-sue letter, to the Complaint. (See Docket Entry

2-1.)

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[3. Plaintiff] ha[s] complained to HR multiple times,

with very little help or assistance in this matter.

[She] last complained to HR about discrimination in March

2024 and ha[s] since been retaliated against by []

Triplett.

[4. Plaintiff] believe[s she is] being discriminated

against and retaliated against based on age[.]

(Docket Entry 2-1 at 1-2.)

Thereafter, Plaintiff filed her Complaint on June 14, 2024.

(See Docket Entry 2 at 1.) The standard form Plaintiff used for

the Complaint identifies a list of protected characteristics and

directs the filer to “check all [boxes] that apply” to her

discrimination claim and to “explain” the basis for each selection.

(Id. at 4.) Plaintiff checked the box beside “age” and stated her

date of birth in the space provided. (See id.) She also checked

the boxes beside “race” and “color,” but did not provide any

further explanation. (See id.) Similarly, the form language on

the Complaint directs Plaintiff to “check all” “bas[e]s for

jurisdiction” applicable to her claims. (Id. at 3.) Plaintiff

checked only the box next to the “Age Discrimination in Employment

Act of 1967” (the “ADEA”). (See id.)

In support of Plaintiff’s claims, the Complaint alleges:

Annette Connelly, [P]laintiff, states [how] the

defendant, Ashley Triplett[,] caused harm and violated

Annette Connelly’s rights.

• Nov. 2018: [Triplett] yelled at [P]laintiff in

front of a parent and two staff members.

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• Oct. 2019: [Triplett] yelled [at] and belittled

[P]laintiff in [the] front office in front of several

staff members.

• Jan. 2021 school year, 2021-22, 2022-23, 2023-24

school years: [in] [s]tudent [s]upport [m]eetings held on

vari[ou]s days and times during the noted school years,

[Triplett] humiliated, isolated, scowled [at], belittled,

and harassed [P]laintiff in front of two staff members

during these meetings in her office.

• Jan. 2022: [Triplett] yelled [at] and belittled

[P]laintiff in [the] front office in front of staff

members.

• August 2022: [Triplett] told the new [s]chool

[s]ocial [w]orker as she came to tour Peck Elementary to

stay away from [ P]laintiff (school counselor)[.]

• 2022-23 school year: [Triplett] cause[d] disparate

treatment towards [P]laintiff with bullying,

harass[ment], isolation, and humiliation during the

school year.

• August 2023: [Triplett] instructed the office

staff to tell the new [s]chool [s]ocial [w]orker to not

involve or tell [P]laintiff (school counselor) about

any activities.

• Sept. 2023: [Triplett] retaliated (disparate

treatment-harassing, bullying) against [P]laintiff for

going to HR against her.

• Nov./Dec. 2023: [While] [P]laintiff [was]

recovering from knee surgery with [a] medical note of

instructions from [her] doctor, [Triplett]

complained/harassed and accuse[d P]laintiff of not

responding to teacher[s’ requests for] assistance

quickly.

• January-April 2024: [Triplett] created write-ups

against [ P]laintiff based on false information, one

being students with suicidal ideation.

[•] [Triplett] harassed, isolated, and bullied

[P]laintiff during these months.

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Annette Connelly, [P]laintiff, so[ugh]t help and

assistance from [GCS’s] HR, HR [d]irector, and [b]oard

[m]embers. They did nothing!

(Id. at 5.) The Complaint continues:

[] Triplett[] harassed, bullied, humiliated, and

scrutinized [P]laintiff[ ] since 2019. This continued

and spanned over a period of years.

[Triplett] implemented a campaign as she escalated her

disparate treatment towards [ Plaintiff] in the school

year of 2023-24.

• [Triplett] scrutinized [Plaintiff’s] work

continuously and alienated [Plaintiff] from staff

members.

• [Triplett] place[d] false information in

[Plaintiff’s] evaluations.

• [Triplett] implemented false information in

write-ups to be placed in [Plaintiff’s] personnel file.

• [Triplett] asked the district not to renew

[Plaintiff’s] contract, basing it on the false

information she placed in [Plaintiff’s] personnel file.

• Due to [Triplett’s] false information in

[Plaintiff’s] personnel file, and the non-renewal of

[Plaintiff’s] contract, [Plaintiff] had to resign from

[GCS].

(Id. at 6.)

Finally, in the section entitled “Relief,” the Complaint

states:

[Plaintiff’s] deep desire is that [Triplett] is not

allowed to do this to anyone else. She became extremely

aggressive with her abuse against [Plaintiff] during this

2023-24 school year. She created [] letters of false

information to be placed in [Plaintiff’s] personnel file

and noted in [Plaintiff’s] evaluations. Her motivation

was for [Plaintiff] to not return to Peck Elementary and

not go into the new school, and she also requested that

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[Plaintiff’s] contract not be renewed with the

district[,] which is what they did.

(Id. at 7.) Also in this section, the Complaint asserts that

Plaintiff suffered “mental and physical stress” from the alleged

discrimination, including inability to sleep, hives, anxiety

requiring medication, and stomach issues that caused Plaintiff to

call out of work sick. (See id.) Based on the foregoing,

Plaintiff seeks, inter alia, one million dollars in punitive

damages. (See id.)

DISCUSSION

I. Preliminary Matters

Notwithstanding the checked boxes for discrimination against

Plaintiff based on her “race,” “color,” and “age” (see id. at 4),

the Complaint identifies the ADEA as the sole basis for

jurisdiction (see id. at 3). “The ADEA prohibits employers from

refusing to hire, discharging, or otherwise discriminating against

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

person’s age.” EEOC v. Baltimore Cnty., 747 F.3d 267, 272 (4th

Cir. 2014) (citing 29 U.S.C. §§ 623(a) (1), 631(a)). Thus, the ADEA

prohibits only age-based employment discrimination; it does not

prohibit discrimination based on race or color. see 29 U.S.C.

621-634.

However, Title VII of the Civil Rights Act (“Title VII”)

prohibits employment discrimination based on “race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (a) (1).

Liberally construing Plaintiff’s claims due to her pro se status,

see Erickson v. Pardus, 551 U.S. 89, 94 (2007), she thus appears to

allege claims for workplace harassment based on her age, race, and

color in violation of the ADEA and Title VII (collectively, the

“Acts”) (see Docket Entry 2 at 4-7). The Complaint also alleges

retaliation (presumably under both Acts). (See id. at 5-6.)

As relevant here, “[bJefore a plaintiff can bring an action

under Title VII .. . or the ADEA, the plaintiff must first exhaust

h[er] administrative remedies with the EEOC,” Sarteh v. Youth

Focus, Inc., No. 1:08CV113, 2008 WL 11355352, at * 4 (M.D.N.C. Dec.

17, 2008) (Sharp, M.J.) (internal quotation marks omitted),

recommendation adopted, 2009 WL 10680180 (M.D.N.C. Feb. 23, 2009)

(Beaty, C.J.), by filing a charge of discrimination, see Balas v.

Huntington Ingalls Indus., Inc., 711 F.3d 401, 406-07 (4th Cir.

2013). A plaintiff’s EEOC charge “limit[s] the scope of any

subsequent judicial complaint.” Evans v. Technologies Applications

& Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996). Plaintiff’s EEOC

charge alleges only age discrimination. (See Docket Entry 2-1.)

As such, Plaintiff failed to exhaust any claims regarding race or

color discrimination, necessitating dismissal of such claims. In

any event, such claims fail as a matter of law for the reasons

discussed below.

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II. The Complaint Fails as Untimely

The Court should dismiss the Complaint as legally frivolous

for failing to comply with the ADEA and Title VII’s time

limitations. Under both Acts, if the EEOC dismisses an

individual’s charge, it must notify the individual, see 29 U.S.C.

§ 626(e) (ADEA); 42 U.S.C. § 2000e-5(f) (1) (Title VII), through a

“right-to-sue” letter, see, e.g., Laber v. Harvey, 438 F.3d 404,

416 (4th Cir. 2006) (en banc). The individual must then file suit

within ninety days of receiving that right-to-sue letter. See 29

U.S.C. § 626(e) (ADEA); 42 U.S.C. § 2000e-5(f) (1) (Title VII).

That ninety-day period acts as a statute of limitations. See

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see

also Birch v. Peters, 25 F. App’x 122, 123 (4th Cir. 2001) (“A

claimant who fails to file a complaint within the ninety-day

statutory time period mandated by Title VII . . . and the

ADEA . . . generally forfeits her right to pursue her claims.”

(citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-51

(1984))). Thus, “[a]bsent an allegation that ‘reasonable grounds

exist for an equitable tolling of the filing period,’ a complaint

filed ninety-one days after the alleged date of receipt of a notice

of right to sue from the [EEOC] must be dismissed as time barred.”

Addison-Potts v. ECU Health Med. Ctr., No. 4:23-CV-103, 2023 WL

5183009, at *1 (E.D.N.C. Aug. 11, 2023) (quoting Harvey v. City of

New Bern Police Dep’t, 813 F.2d 652, 653 (4th Cir. 1987)).

11

Notably, equitable tolling, which may excuse late filing, can occur

only in “those rare instances where — due to circumstances external

to the party’s own conduct — it would be unconscionable to enforce

the limitation period against the party and gross injustice would

result.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (internal

quotation marks omitted).

Here, the Complaint alleges that Plaintiff received her right-

to-sue letter from the EEOC on March 12, 2024 (see Docket Entry 2

at 8), making June 10, 2024, the deadline for filing suit, see Fed.

R. Civ. P. 6(a) (1) (A). Plaintiff did not file suit until June 14,

2024 (see Docket Entry 2 at 1, 9) and the Complaint fails to

explain its tardiness or allege reasonable grounds for equitable

tolling (see id. at 1-9). Due to the Complaint’s unexcused

untimeliness, the Court should dismiss this action as legally

frivolous. See Nasim, 64 F.3d at 956.

III. The Complaint Fails to State a Viable Claim

Even setting aside its time-barred nature, the Complaint fails

to state a viable ADEA or Title VII claim, necessitating its

dismissal.

A. Claims Against Defendant Triplett

To begin, the ADEA and Title VII provide causes of action

against employers only, not supervisors or fellow employees. See,

e.g., Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th

Cir. 1994) (rejecting individual liability under the ADEA); Lissau

12

v. Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998)

(rejecting individual liability under Title VII). As the principal

of the school where Plaintiff worked, Triplett served as

Plaintiff’s supervisor, not her employer. (See Docket Entry 2-1 at

1 (identifying “[GCS]” as Plaintiff’s “[e]mployer” and Triplett as

school “[p]rincipal”).) Accordingly, Plaintiff can only bring ADEA

and Title VII claims against GCS, and the Court should dismiss the

claims against Triplett.

B. Discrimination Claims

The ADEA and Title VII prohibit employers from discriminating

against an employee based on age and, as relevant here, race or

color, respectively. See 28 U.S.C. § 623(a) (ADEA); 42 U.S.C.

§ 2000e-2(a)(1) (Title VII). To establish an ADEA discrimination

claim, Plaintiff must plausibly allege that she: “(1) [was] over

the age of 40, and (2) experienced discrimination by an employer

(3) because of h[er] age.” Tickles v. Johnson, 805 F. App’x 204,

207 (4th Cir. 2020). Specifically, an employee claiming age

discrimination must “allege facts permitting an inference that her

age was the ‘but-for cause’” of the alleged discrimination.

Milligan v. Fayetteville State Univ., No. 5:23-CV-328, 2024 WL

3015737, at *5 (E.D.N.C. June 14, 2024) (quoting Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 180 (2009)). For example, “[s]imply

alleging that you were over age 40 and your employer [discriminated

against you] does not plausibly mean that your employer

13

[discriminated against you] because of your age.” Grant v. North

Carolina Dep’t of Transp., No. 5:23-CV-702, 2024 WL 2789388, at *4

(E.D.N.C. May 30, 2024). Title VII similarly requires a plaintiff

to allege facts indicating that she experienced employment

discrimination “because of,” as relevant here, her race or color.

42 U.S.C. § 2000e-2(a)(1); see also McCleary-Evans v. Maryland

Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.

2015) (explaining that, to state a Title VII claim, the plaintiff

must allege facts showing adverse employment action occurred

“because of [the plaintiff’s] race”).

Here, the Complaint alleges that Plaintiff’s age exceeds 40,

warranting ADEA protection (see Docket Entry 2 at 4), but contains

no information regarding Plaintiff’s race or color (see id. at 1-

9). Further, the Complaint’s conclusory allegations that Triplett

discriminated against Plaintiff by “belittl[ing],” “yell[ing] at,”

“isolat[ing],” “harass[ing], bull[ying], humiliat[ing], and

scrutiniz[ing]” Plaintiff (id. at 5-6), lack sufficient factual

content (particularly regarding any age-, race-, or color-based

aspect of any such activity) to give GCS “fair notice of what the

claim is and the grounds upon which it rests,” Twombly, 550 U.S. at

555. The Complaint’s assertions that Triplett placed “false

information in Plaintiff’s evaluations” and “write-ups” (Docket

Entry 2 at 6), similarly fail to provide sufficient facts regarding

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the contents and circumstances of these actions to satisfy

Twombly’s requirements to state a viable discrimination claim.

In addition, the Complaint lacks any facts indicating that any

alleged adverse employment action occurred “because of” Plaintiff’s

age, race, or color, rather than some other motivation. Regarding

Plaintiff’s age, beyond checking a box to indicate Plaintiff’s

belief that she experienced discrimination based on her age and

providing her date of birth in the space next to that box (see id.

at 4), the Complaint does not mention Plaintiff’s age at all, let

alone in connection with Triplett’s alleged actions (see id. at 1-

9). Plaintiff’s lone allegation in her EEOC charge that Triplett

“discriminated against [Plaintiff] . . . based on age,” (Docket

Entry 2-1 at 2), with no facts to connect her age to the conduct in

question, also does not plausibly allege that Plaintiff’s age

motivated any adverse employment actions taken against her. See

Grant, 2024 WL 2789388 at *4.

The Complaint falls even shorter regarding race or color.

Aside from checking boxes to indicate that Plaintiff believes

“Defendant[s] discriminated against [her] based on” her race and

color (Docket Entry 2 at 4), the Complaint makes no allegations

regarding race or color (see id. at 1-9). In fact, the Complaint

fails to identify Plaintiff’s race and color, let alone mention

either in connection with any of Triplett’s alleged actions. (See

15

id.) Accordingly, the Court should dismiss Plaintiff’s ADEA and

Title VII discrimination claims for failure to state a claim.

C. Retaliation Claims

The Complaint further alleges that “Defendant retaliated . . .

against [P]laintiff for going to HR against her.” (Id. at 5.)

Pursuant to the ADEA, it is “unlawful for an employer to

discriminate against any of his employees . . . because such

individual . . . has opposed any practice made unlawful by [the

ADEA] . . . .” 29 U.S.C. § 623(d). Title VII similarly renders it

unlawful “for an employer to discriminate against any of his

employees . . . because [s]he has opposed any practice made an

unlawful employment practice by [Title VII] . . . .” 42 U.S.C.

§ 2000e-3(a).

Importantly, although a complaint must include sufficient

factual matter to show the existence of a plausible claim under the

ADEA or Title VII, see Iqbal, 556 U.S. at 662, a complaint need not

state a prima facie case of retaliation under the so-called

McDonnell-Douglas burden-shifting framework, see Barbour v.

Garland, 105 F.4th 579, 590 (4th Cir. 2024) (“[A] Title VII

retaliation claim may survive a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6) even if the complaint does not

allege facts sufficient to establish [a] prima facie case.”). Put

another way, “‘the prima facie case is an evidentiary standard, not

a pleading requirement.’” McCleary-Evans, 780 F.3d at 584 (quoting

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)) (internal

brackets and ellipsis omitted).

Yet, in assessing whether a plaintiff plausibly stated a claim

for ADEA or Title VII retaliation, the United States Court of

Appeals for the Fourth Circuit often speaks of “a prima facie case

of retaliation,” Decoster v. Becerra, 119 F.4th 332, 342 (4th Cir.

2024); see also, e.g., Savage v. Maryland, 896 F.3d 260, 276 (4th

Cir. 2018) (considering the prima facie elements of a Title VII

retaliation claim in evaluating whether the plaintiff stated a

claim for retaliation). Additionally, in determining whether a

complaint plausibly stated a claim for retaliation, the Fourth

Circuit (recently and repeatedly) has relied on decisions rendered

on summary judgment that analyze the prima facie elements of a

retaliation claim. See, e.g., Decoster, 119 F.4th at 341 (citing

Okoli v. City of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011)

(summary judgment case)); Laurent-Workman v. Wormuth, 54 F. 4th

201, 212 (4th Cir. 2022) (citing Guessous v. Fairview Prop. Invs.,

LLC, 828 F.3d 208, 217 (4th Cir. 2016) (summary judgment case));

Savage, 896 F.3d at 276 (citing Foster v. University of Md.-E.

Shore, 787 F.3d 243, 250 (4th Cir. 2015) (summary judgment case)).

Consistent with that authority from the Fourth Circuit, judges

of this Court, while recognizing that a plaintiff need not plead

facts that establish a prima facie claim for retaliation,

nonetheless have looked to the prima facie elements of a

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retaliation claim to inform the assessment of the sufficiency of

such a claim at the pleading stage. See, e.g., Bean v. Trident

Mktg., No. 1:18CV581, 2019 WL 1979960, at *4-5 (M.D.N.C. May 3,

2019) (Tilley, S.J.) (“While [the plaintiff] is not required to

plead a prima facie case of retaliation, some courts nevertheless

consider the prima facie elements of the claim to help determine if

a plaintiff’s claims as pleaded allow the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged . . . . Using the prima facie elements as a

guide, [the plaintiff] has not alleged sufficient facts to state a

claim for retaliation under Title VII.” (internal quotation marks

omitted)). That approach makes sense given the overlap between the

plain language of the retaliation provisions of the ADEA and Title

VII (quoted above) and the elements of a prima facie claim for

retaliation (detailed below). See Dressler v. Daniel, Civ. Action

No. 00-489, 2001 WL 1175990, at *1 (D.N.H. Sept. 28, 2001)

(observing that courts “inferred from [Title VII’s] statutory

language that a prima facie case of retaliation requires evidence

that the plaintiff engaged in conduct protected by Title VII

and . . . suffered adverse action causally connected to the

protected activity”), aff’d, 315 F.3d 75 (1st Cir. 2003); Gross v.

Culbro Corp., Civ. Action No. 85-4193, 1987 WL 46324, at *8 n.13

(N.D. Fla. Dec. 16, 1987) (“Although the elements of a prima facie

case of retaliation were developed in the context of Title VII,

18

given the similarity of statutory language between 42 U.S.C.

§ 2000e-3(a) and 29 U.S.C. §$ 623(d), there appears to be no reason

not to use those elements in an ADEA case.”).

“In order to state a prima facie case of retaliation, a

plaintiff must show that (1) the plaintiff engaged in a protected

activity; (2) the employer acted adversely against the plaintiff;

and (3) the protected activity was causally connected to the

employer’s adverse action.” Decoster, 119 F.4th at 342 (internal

quotation marks and ellipsis omitted). “Protected activity

includes activity which opposes any practice made unlawful under

Title VII,” Wilson v. City of Chesapeake, 290 F. Supp. 3d 444, 461

(E.D. Va. 2018) (citing DeMasters v. Carilion Clinic, 796 F.3d 409,

416 (4th Cir. 2015)), or the ADEA, see Buchhagen v. ICF Intern.,

Inc., 545 F. App’x 217, 221 (4th Cir. 2013). As relevant here,

protected oppositional activity includes complaining to superiors

about suspected violations of the ADEA or Title VII. see id.

(citing EEOC v. Navy Fed. Credit Union, 424 F. 3d 397, 406 (4th

Cir. 2005) (“[P] rotected oppositional activities may

include . . . complaints about suspected violations.”)).

Turning to the second element, the Fourth Circuit historically

required a plaintiff to allege an “adverse employment action,”

defined as an adverse action that affected “the terms, conditions,

or benefits of employment.” Von Gunten v. Maryland, 243 F.3d 858,

866 (4th Cir. 2001), abrogated by Burlington N. & Santa Fe Ry. Co.

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v. White, 548 U.S. 53 (2006) (internal quotation marks omitted).

The Supreme Court thereafter clarified that the Title VII

retaliation provision “extends beyond workplace-related or

employment-related retaliatory acts and harm” to any “materially

adverse” action. Burlington, 548 U.S. at 67. An action qualifies

as “materially adverse” if ”it well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination.” Id. Despite recognizing the Supreme Court’s

distinction on that element, see, e.g., Laurent-Workman, 54 F.4th

at 213-14, the Fourth Circuit often continues to refer to “adverse

employment action” as an element of ADEA and Title VII retaliation

claims. See, e.g., Barbour, 105 F. 4th at 589-90 (“[T]o establish

a prima facie case of retaliation, the plaintiff must show . . . an

adverse employment action . . . .” (internal brackets omitted));

Loose v. CSRA Inc., Civ. Action No. 19-2394, 2021 WL 4452432, at *1

(4th Cir. Sept. 29, 2021) (referring to an “adverse employment

action” in affirming dismissal of ADEA retaliation claim for

failure to state a claim); Savage, 896 F.3d at 276 (“[T]o state a

prima facie claim of Title VII retaliation, [the plaintiff] must

allege facts establishing that . . . his employer took an adverse

employment action against him . . . .”). Nevertheless, as held by

the Supreme Court and the Fourth Circuit, to bring an ADEA or Title

VII retaliation claim, a plaintiff need only allege facts showing

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that her employer’s actions qualify as “materially adverse.” See

Burlington, 548 U.S. at 68; Laurent-Workman, 54 F.4th at 213-14.

Finally, at the pleading stage, the causation element of a

retaliation claim imposes “no requirement that the complaint

contain facts rebutting any legitimate, nondiscriminatory reason

articulated by the employer for its allegedly retaliatory action.”

Barbour, 105 F.4th at 590. Instead, the complaint simply must

“allege[] facts supporting a plausible inference” that the employer

took materially adverse action “‘because’ of [the plaintiff’s]

protected activity.” Holloway v. Maryland, 32 F.4th 293, 300 (4th

Cir. 2022). A plaintiff may make such a showing by alleging, for

example, “that the protected activity preceded the materially

adverse action and . . . that the employer knew the employee

engaged in a protected activity.” Brown v. University of N.

Carolina Health Care Sys., No. 1:20cv86, 2021 WL 512222, at *9

(M.D.N.C. Feb. 11, 2021) (Schroeder, J.).

Using the foregoing authority as a guide for assessing the

legal sufficiency of a claim for retaliation under the ADEA and

Title VII, the Court should conclude that the instant Complaint

lacks sufficient factual matter to plead a plausible claim. First,

the Complaint alleges only that “[Triplett] retaliated . . .

against [P]laintiff [for] going to HR against [Triplett].” (Docket

Entry 2 at 5.) Plaintiff also alleged in her EEOC charge that she

“ha[d] complained to HR multiple times,” and “last complained to HR

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about discrimination in March 2024.” (Docket Entry 2-1 at 2.)

Notably, however, Plaintiff alleged nowhere that her HR complaint

involved allegations of any age-, race-, or color-based

discrimination, rather than some other form of grievance not

protected by the ADEA or Title VII. (See Docket Entry 2 at 1-9;

Docket Entry 2-1 at 1-2.) As such, the Complaint does not show

that Plaintiff’s reports to HR qualify as “protected activity”

under either Act, thereby precluding any retaliation claim. See,

e.g., Iqbal, 556 U.S. at 678 (stating that a complaint must

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face,” and that, “[w]here

a complaint pleads facts that are merely consistent with a

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

possibility and plausibility of entitlement to relief” (internal

quotation marks omitted)).

In any event, even assuming Plaintiff adequately pleaded

protected activity, the Complaint only conclusorily links that

protected activity to Triplett’s alleged adverse actions, which the

Complaint also describes only in conclusory terms. (See Docket

Entry 2 at 5 (asserting that “[Triplett] retaliated” against

Plaintiff “for going to HR against her” without any further factual

development).) The Complaint similarly does not allege that

Triplett knew about Plaintiff’s complaints. (See id. at 5-7.)

Although Plaintiff need not plead facts establishing a prima facie

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claim of retaliation, the pleading standard requires more than

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” Iqbal, 556 U.S. at 678.

Under these circumstances, the Court should dismiss the Complaint’s

retaliation claims for failure to state a claim.

CONCLUSION

The Complaint qualifies as untimely and fails to state a

plausible claim, necessitating its dismissal.

IT IS THEREFORE ORDERED that the Application (Docket Entry 1)

be GRANTED for the limited purpose of considering this

recommendation of dismissal.

IT IS RECOMMENDED that this action be dismissed pursuant to 28

U.S.C. § 1915(e)(2) as untimely and for failure to state a claim.

This 19th day of February, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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