Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT L. RILEY, JR., )

)

Plaintiff, )

)

v. ) 1:25cv1185

)

PIEDMONT ELECTRIC MEMBERSHIP )

CORPORATION (PEMC) a/k/a )

PIEDMONT ELECTRIC )

COOPERATIVE (PEC), et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This employment case is before the court on the second motion

to dismiss by Defendants Piedmont Electric Membership Corporation

(“PEMC”) and the members of its board of directors (collectively,

the “Board”). (Docs. 7, 8.) Plaintiff Robert L. Riley, Jr. brings

his claims pursuant to 42 U.S.C. § 1981, Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and

the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621

et seq. (“ADEA”). (Doc. 6.) Riley has filed a response in

opposition (Doc. 9), and Defendants replied (Doc. 10). For the

reasons set forth below, Defendants’ motion to dismiss will be

granted in part and denied in part.

I. BACKGROUND

The facts, as alleged in Riley’s first amended complaint and

taken as true for purposes of Defendants’ motion, show the

following:

Riley is an African American male over 50 years old. (Doc.

6 ¶ 2.) PEMC is a nonprofit electric utility with its Board

comprising nine members. (Id. ¶¶ 3-4.) Riley worked at PEMC for

32 years and 11 months, and he served as PEMC’s Vice President of

Operations for the last 11 years before his termination on January

7, 2025. (Id. ¶¶ 33, 135.) During Riley’s tenure as Vice President

of Operations, he implemented initiatives that led to a 15%

reduction in operational costs, achieved a 20% increase in employee

safety records, and “consistently contributed to operational

excellence and community engagement.” (Id. ¶ 36.) Overall, Riley

“performed in all of his roles in accordance with the standards

provided to him,” and he “received satisfactory or above

performance reviews with positive comments.” (Id. ¶ 38.)

On February 26, 2024, the Board announced its search for a

new President and General Manager. (Id. ¶ 41.) The Board

partnered with an executive search company to assist with the

search. (Id. ¶ 44.) Riley applied for the position on March 14,

2024, and, among approximately 40 applicants, he was automatically

placed on the initial list of ten candidates as an internal

applicant. (Id. ¶¶ 43, 45-46.) The Board did not provide Riley

with an initial interview, but he received a panel-style interview

that allowed “a more customized interrogatory-styled interview to

the other candidates.” (Id. ¶ 47.) Riley did not advance among

the five finalists chosen by the Board for an in-person interview,

however. (Id. ¶¶ 49-50.)

According to Riley, the Board unequally applied the selection

process to afford preferential treatment to a younger, white

candidate, Jordan Overbee. (Id. ¶¶ 54-55.) Riley received notice

of Overbee’s hiring on June 11, 2024. (Id. ¶ 84.) Nevertheless,

he alleges that the Board had already put into motion its plan to

hire Overbee by May 6, 2024. (Id. ¶ 57.)

Leigh Taylor, a recruiter, first informed Riley that he was

not selected as one of the five finalists because of his lack of

chief executive officer (“CEO”) experience. (Id. ¶¶ 64, 67.)

Finalist interviews continued “well after” Taylor told Riley he

would not advance, and Riley later became aware that Overbee and

other finalists also lacked CEO experience. (Id. ¶¶ 66-67, 70.)

Upon information and belief, none of the five finalists was African

American or over the age of 40. (Id. ¶¶ 73-74.) Riley further

alleges that he possessed twice as much relevant experience as

Overbee, and, unlike Overbee, he held both a bachelor’s and a

master’s degree. (Id. ¶¶ 75-77.)

Riley met with the Board on June 17, 2024. (Id. ¶ 87.) At

this meeting, Board member Randy Kinley informed Riley that he did

not have the “across the board” knowledge of PEMC needed for the

president and general manager position. (Id. ¶ 91.) Board member

Kinley also told Riley that he did not receive an in-person

interview because he had not attended a Management Internship

Program. (Id. ¶ 92.) Board member Darren Chalk further noted

that Riley had not submitted a vision statement, although Riley

contends that he did submit a vision for PEMC in his video review.

(Id. ¶ 93.) Riley alleges that these were shifting and

inconsistent reasons for his non-selection as a finalist that

evidence the Board’s decision to ignore his qualifications and

exclude him from the selection process. (Id. ¶ 94.)

Riley wrote a letter to the Board in response to the June 17,

2024 meeting, in which he requested an investigation into the

selection process. (Id. ¶ 100.) The Board met on July 15, 2024,

and Riley received a letter in response shortly thereafter that

“dismissed [his] core concerns.” (Id. ¶ 103.) Riley alleges,

upon information and belief, that the Board had directed Overbee

to take certain actions to “rein in” Riley. (Id. ¶ 104.)

Thus, on July 24, 2024, Overbee presented Riley with a non-

disclosure agreement (“NDA”) bearing Board member Kinley’s

signature. (Id. ¶ 106.) PEMC had never requested that Riley sign

an NDA previously. (Id.) Overbee told Riley that “all staff”

were required to sign the NDA, but after further inquiry from

Riley, Overbee responded that the NDA requirement only applied to

certain staff. (Id. ¶¶ 110-11.) PEMC never adopted a written

policy regarding the new NDA requirement. (Id. ¶ 113.) Riley

alleges that PEMC and the Board used the NDA as a retaliatory

measure in response to his expressed concerns over the selection

process. (Id. ¶ 119.)

Riley continued to inquire with the Board regarding his

concerns over the selection process. (Id. ¶ 116.) He also began

to experience increased scrutiny of his work performance along

with “negative and adverse responses,” which he alleges amounted

to a hostile work environment. (Id. ¶ 117.) Riley filed

additional complaints and letters of inquiry through September

2024, and he ultimately filed his first charge with the Equal

Employment Opportunity Commission (“EEOC”) to allege

discriminatory non-selection based on race and age on December 8,

2024. (Id. ¶ 118; see Doc. 6-1 at 1.) PEMC received notice of

his EEOC charge ten days later, and Overbee “issued a mandate” to

Riley to return the signed NDA on December 30, 2024. (Doc. 6

¶¶ 132-33.) Riley informed Overbee that he did not feel

comfortable signing the NDA before consulting an attorney. (Id.

¶ 134.) PEMC then terminated Riley on January 7, 2025,

“purportedly for failing to sign the NDA.” (Id. ¶¶ 135-36.) Five

days later, Riley filed a second charge with the EEOC to allege

retaliation and discriminatory termination based on race and age.

(See Doc. 6-1 at 2-3.)

Riley filed the present lawsuit on December 29, 2025 (Doc.

1), and he timely filed a first amended complaint as a matter of

course pursuant to Federal Rule of Civil Procedure 15(a) after

Defendants’ first motion to dismiss (Doc. 6; see Docs. 4, 5).

Riley brings four claims against all Defendants, including the

members of the Board in both their individual and official

capacities: (1) failure to promote, non-selection, and termination

pursuant to Title VII; (2) age discrimination pursuant to the ADEA;

(3) retaliation pursuant to Title VII and 42 U.S.C. § 1981; and

(4) failure to promote and termination pursuant to § 1981. (Doc.

6 ¶¶ 163-268.) Defendants then filed their second motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on

March 6, 2026. (Doc. 7.) The motion is now fully briefed and

ready for decision.

II. ANALYSIS

A. Standard of Review

A pleading must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). A Rule 12(b)(6) motion to dismiss is meant to

“test[] the sufficiency of a complaint” and not to “resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992). To survive such a motion, “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 considering a Rule 12(b)(6) motion, a court “must accept

as true all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all

reasonable inferences must be drawn in the non-moving party’s

favor, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

But the court “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v.

J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). Rule

12(b)(6) protects against meritless litigation by requiring

sufficient factual allegations “to raise a right to relief above

the speculative level” so as to “nudge[] the[] claims across the

line from conceivable to plausible.” Twombly, 550 U.S. at 555,

570; see also Iqbal, 556 U.S. at 678. Thus, mere legal conclusions

should not be accepted as true, and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.

B. Whether Riley Has Alleged Viable Claims Against the

Board Members

1. Title VII and the ADEA

Defendants contend that neither Title VII nor the ADEA

provides for individual or supervisor liability. (Doc. 8 at 12.)

They also point out that Riley failed to name any of the Board

members in his EEOC charge. (Id.) Riley never addresses this

argument.

Title VII’s remedial scheme “suggest[s] that Congress only

intended employers to be liable for Title VII violations.” Lissau

v. S. Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998). “To

permit individual liability would improperly expand the remedial

scheme crafted by Congress.” Id. Similarly, “the ADEA limits

civil liability to the employer.” Birkbeck v. Marvel Lighting

Corp., 30 F.3d 507, 511 (4th Cir. 1994). Further, “[u]nder Title

VII and the ADEA, a civil action may be brought only ‘against the

respondent named in the [EEOC] charge.’ The purposes of this

requirement include putting the charged party on notice of the

complaint and allowing the EEOC to attempt reconciliation.” Causey

v. Balog, 162 F.3d 795, 800 (4th Cir. 1998) (citation omitted)

(quoting 42 U.S.C. § 2000e-5(f)(1)).

Here, neither Title VII nor the ADEA provides a cause of

action against the members of the Board in their individual

capacities. Moreover, Riley asserted his first EEOC charge solely

against PEMC.1 (See Doc. 6-1 at 1.) Thus, Defendants are correct,

and Riley’s Title VII and ADEA claims against the members of the

Board in their individual capacities will be dismissed.

1 Riley’s second EEOC charge names PEMC “and its Board of Directors.”

(Doc. 6-1 at 2.) Regardless of whether this charge sufficiently put the

individual Board members on notice of Riley’s Title VII and ADEA

retaliation and discriminatory termination claims, the claims against

the individual Board members nevertheless fail because Title VII and the

ADEA do not provide for individual liability.

2. Section 1981

Defendants next contend that Riley has not advanced

sufficient factual allegations against the individual Board

members to support plausible claims of individual liability. (Doc.

8 at 13.) In fact, Defendants point out that seven of the nine

members of the Board are named only in the caption of the amended

complaint and in the section introducing the parties. (Id. at 13-

14.) Defendants further argue that the amended complaint fails to

demonstrate any discriminatory animus or conduct by Board members

Kinley and Chalk. (Id. at 14-15.) Riley counters that the

allegations regarding the Board members’ direct involvement and

responsibility for the hiring process, along with their shifting

explanations for his failure to advance to the finalist stage,

generate individual liability. (Doc. 9 at 8.)

To succeed on a § 1981 discrimination claim, a plaintiff must

ultimately “establish that (1) the defendant intended to

discriminate on the basis of [race], (2) the discrimination

interfered with a contractual interest, and (3) the interference

with a contractual interest would not have happened but for the

plaintiff’s [race].”2 Resendiz v. Exxon Mobil Corp., 72 F.4th 623,

628 (4th Cir. 2023). “Thus, to survive a motion to dismiss, a

2 Riley alleges he possessed “a valid oral contract of employment with

PEMC.” (Doc. 6 ¶ 145.) Cf. Spriggs v. Diamond Auto Glass, 165 F.3d

1015, 1018-19 (4th Cir. 1999) (finding an at-will employment relationship

contractual and holding that “such relationships may therefore serve as

predicate contracts for § 1981 claims”).

plaintiff must allege facts that, if accepted as true, allow the

court to draw a reasonable inference as to those legal

requirements.” Nadendla v. WakeMed, 24 F.4th 299, 305 (4th Cir.

2022). On the other hand, to establish a prima facie case of

retaliation pursuant to § 1981, “a plaintiff must prove (1) that

she engaged in a protected activity, as well as (2) that her

employer took an adverse employment action against her, and (3)

that there was a causal link between the two events.” Boyer-

Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015)

(en banc) (citation modified) (quoting EEOC v. Navy Fed. Credit

Union, 424 F.3d 397, 405-06 (4th Cir. 2005)).

Section 1981 “should be interpreted as neither enlarging nor

diminishing the liability of directors under general corporation

law for tortious acts performed nominally by the corporation.”

Tillman v. Wheaton-Haven Recreation Ass’n, 517 F.2d 1141, 1144

(4th Cir. 1975). “‘[T]o make out a claim for individual liability

under § 1981, a plaintiff must demonstrate some affirmative link

to causally connect the action with the discriminatory action,’

and the claim ‘must be predicated on the actor’s personal

involvement.’” Hawthorne v. Va. State Univ., 568 F. App’x 203,

204-05 (4th Cir. 2014) (per curiam) (alteration in original)

(quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d

62, 75 (2d Cir. 2000)).3 For example, “[d]irectors or managers

can be held personally liable when they ‘intentionally cause a

corporation to infringe the rights secured by’ section 1981,” but

they cannot be held liable if there is no evidence that they

“directed, participated in or even approved of intentional

discrimination.” Carson v. Giant Food, Inc., 187 F. Supp. 2d 462,

483 (D. Md. 2002) (quoting Tillman, 517 F.2d at 1145), aff’d per

curiam sub nom., Skipper v. Giant Food Inc., 68 F. App’x 393 (4th

Cir. 2003). “Individual liability under section 1981 extends only

insofar as an individual’s own actions cause a section 1981

violation.” Bailey v. Islands Mech. Contractor, Inc., --- F. Supp.

3d ---, 2026 WL 867008, at *7 (E.D.N.C. 2026) (collecting cases).

To determine whether a plaintiff has plausibly alleged

sufficient individual action to sustain a § 1981 claim, courts may

examine whether the individual defendant had the individual

capacity to undertake the adverse employment action. Benjamin v.

Sparks, 173 F. Supp. 3d 272, 283 (E.D.N.C. 2016), aff’d on other

grounds, 986 F.3d 332 (4th Cir. 2021). “Courts may also examine

whether [the] plaintiff plausibly alleges direct evidence of the

defendant’s racially discriminatory animus and shows that the

individual defendant took part in the adverse employment action.”

3 The Fourth Circuit does not ordinarily accord precedential value to

its unpublished opinions, which “are ‘entitled only to the weight they

generate by the persuasiveness of their reasoning.’” See Collins v.

Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (quoting Hupman

v. Cook, 640 F.2d 497, 501 (4th Cir. 1981)).

Id. (citing Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,

1038 (9th Cir. 2005)).

Here, Riley alleges that the members of the Board “controlled”

the hiring process for the general manager position and “directed

the hiring, the selections and the decision-making process.” (Doc.

6 ¶ 88.) He also alleges that the Board “failed to follow the

selection process in a manner that assured an equitable and non-

discriminatory outcome.” (Id. ¶ 54.) According to Riley, the

Board made its decision on finalists “with knowledge of the race

and estimated age of the candidates.” (Id. ¶ 62.) Riley further

alleges that Board members Kinley and Chalk gave shifting,

inconsistent reasons for his failure to advance among the five

finalists. (Id. ¶¶ 67, 91-93.) And finally, he alleges that Board

member Kinley served as the signatory for the NDA and, upon

information and belief, directed Overbee to force Riley to sign it

as a retaliatory measure. (Id. ¶¶ 106, 119-20.)

These allegations fall short of stating plausible failure to

promote, non-selection, or termination claims against the Board

members. Apart from not plausibly alleging that any of the Board

members had the individual authority to deny his promotion or

terminate his employment (indeed, Riley does not allege (or know)

who, if anyone, voted for or against his candidacy), he does not

plausibly allege that any of the individual Board members

intentionally acted to impair his employment contract, or that

they exhibited discriminatory animus towards him because of his

race. His allegation about the selection process is also vague

and conclusory.

As for the § 1981 retaliation claims against the individual

Board members, however, Riley has sufficiently alleged a § 1981

violation by Board member Kinley based on his involvement in

requiring Riley to sign the NDA. But the allegations do not

otherwise demonstrate any causal connection between an individual

Board member and the NDA requirement.4 Thus, Defendants’ motion

to dismiss Riley’s claims brought pursuant to § 1981 against the

Board members in their individual capacities will be granted,

except for his § 1981 retaliation claim against Board member

Kinley. See Benjamin, 173 F. Supp. 3d at 283-84; Bailey, 2026 WL

867008, at *9. In the event Riley can cure the deficiency,

dismissal will be without prejudice.

3. Claims Against Board Members in Their Official

Capacities

Defendants argue that the claims against the members of the

Board in their official capacities are duplicative of Riley’s

claims against PEMC and should therefore be dismissed. (Doc. 8 at

4 The court acknowledges that the amended complaint alleges that Board

members Kinley and Chalk “knew of” the oral employment contract between

Riley and PEMC and “acted with legal malice” to interfere with Riley’s

contractual rights. (Doc. 6 ¶ 147.) It also alleges that Board member

Chalk and others “actively supported” Board member Kinley. (Id. ¶ 148.)

These allegations are wholly conclusory and do not further the

plausibility of Riley’s claims against any individual Board member.

15.) Riley does not respond to this contention.

To the extent that official capacity claims can be properly

brought against board members of a nonprofit electric utility,

Riley’s official capacity claims are redundant and duplicative of

his claims against PEMC. See Alexander v. City of Greensboro, 762

F. Supp. 2d 764, 788 (M.D.N.C. 2011). Thus, the official capacity

claims will be dismissed.

C. Whether Riley Timely Filed His EEOC Charge for the

Title VII and ADEA Failure to Promote Claims

Defendants contend that Riley did not timely exhaust his

administrative remedies because the amended complaint indicates

that he knew on May 6, 2024, he would not be hired for the general

manager position. (Doc. 8 at 17.) Thus, his first EEOC charge

filed on December 8, 2024, would not have been within the 180-day

window from when he received notice of his non-selection. (Id.)

Defendants further argue that the amended complaint does not

otherwise allege specific facts showing that Riley timely filed

the EEOC charge.5 (Id. at 16.)

Riley counters that the adverse action occurred on June 11,

2024, when he became aware that PEMC had hired a younger white

male without CEO experience for the general manager position.

(Doc. 9 at 13-14.) He asserts in the alternative that equitable

5 Because Riley filed his second EEOC charge alleging retaliation and

discriminatory termination only five days after his termination, there

are no timeliness concerns over Riley’s Title VII and ADEA retaliation

and termination claims. (See Doc. 6-1 at 2-3.)

tolling or estoppel applies because PEMC misled him on the reason

he did not advance in the interview process, and that he did not

learn the true reason for his non-selection until he discovered

the eventual hire also lacked CEO experience on June 11, 2024.

(Id. at 14-15.)

Generally, a Title VII discrimination charge must be filed

“with the EEOC within 180 days of the occurrence of the alleged

unlawful employment practice.” EEOC v. Com. Off. Prods. Co., 486

U.S. 107, 110 (1988) (citing 42 U.S.C. § 2000e-5(e)); see also

Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.

2007)). Similarly, the ADEA requires that an age discrimination

charge be filed with the EEOC within 180 days after the alleged

unlawful practice occurred. Hamilton v. 1st Source Bank, 928 F.2d

86, 87 (4th Cir. 1990) (en banc). Failure to promote is an example

of a discrete act of discrimination. Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 114 (2002). Thus, “[t]he time a plaintiff

is informed of the employment decision triggers the commencement

of the limitations period.” Muir v. Winston-Salem State Univ.,

No. 11-cv-282, 2012 WL 683359, at *5 (M.D.N.C. Mar. 2, 2012),

abrogated on other grounds by Fort Bend County v. Davis, 587 U.S.

541 (2019); see also Hamilton, 928 F.2d at 88-89 (“To the extent

that notice enters the analysis, it is notice of the employer’s

actions, not the notice of a discriminatory effect or motivation,

that establishes the commencement of the pertinent filing

period.”).

Here, Riley alleges that on or about May 6, 2024, “the Board

had already put into motion its intention to hire Jordan Overbee.”

(Doc. 6 ¶ 57.) He alleges that finalist interviews continued “well

after” Taylor informed him that he would not advance to the list

of five finalists. (Id. ¶¶ 67, 70, 71.) Riley then alleges that

he did not realize discrimination based on race or age had occurred

until the Board announced Overbee’s hiring on June 11, 2024. (Id.

¶ 84.) Riley’s EEOC charge was filed exactly 180 days after this

announcement, on December 8, 2024. (Id. ¶ 118.)

The amended complaint never provides the date PEMC informed

Riley that he would not advance as a finalist for the general

manager position. And in his response, Riley never asserts that

he knew of his non-selection as a finalist within 180 days before

he filed the EEOC charge. Rather, Riley contends that the 180-

day window for his EEOC charge did not commence until he “became

aware that he had been lied to regarding the need of CEO experience

for the role.” (Doc. 9 at 13.) But as Defendants correctly argue,

the statute of limitations on the EEOC charge began to run on the

date Riley knew he would not be selected for the position. (Doc.

10 at 3.)

Riley’s allegations that by May 6, 2024, “the Board had

already put into motion its intention to hire Jordan Overbee” and

that finalist interviews continued “well after” Taylor informed

him of the end of his candidacy concede that he was told he was

not to be selected before the Board announced Overbee’s hiring.

And because the Board announced Overbee’s hiring exactly 180 days

before Riley filed his EEOC charge, any daylight between this

announcement and Riley’s knowledge of his non-selection would

render the EEOC charge untimely. At a minimum, because the factual

allegations indicate that Riley was informed of the employment

decision before June 11, 2025, and considering Riley’s failure to

contest that it fell outside the 180-day period, the court cannot

find his EEOC charge timely. See Montgomery v. Anson Cnty. Bd. of

Educ., No. 16CV309, 2016 WL 6139933, at *2 (W.D.N.C. Oct. 20, 2016)

(dismissing the plaintiff’s failure to promote claims because the

complaint lacked any supporting facts to establish the timeliness

of the EEOC charge).

Riley argues that even if his EEOC charge was untimely, he

should benefit from equitable estoppel or equitable tolling. (Doc.

9 at 14-15.) Equitable estoppel “applies ‘where, despite the

plaintiff’s knowledge of the facts, the defendant engages in

intentional misconduct to cause the plaintiff to miss the filing

deadline.’” Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 549 (4th

Cir. 2019) (quoting English v. Pabst Brewing Co., 828 F.2d 1047,

1049 (4th Cir. 1987)). Thus, “[t]he plaintiff’s failure to timely

file his claim derives not from his ignorance of the cause of

action, but rather from conduct taken by the defendant to induce

the plaintiff not to timely file his claim.” Id.

By contrast, equitable tolling “focuses on whether there was

excusable delay by the plaintiff.” Id. (quoting Johnson v.

Henderson, 314 F.3d 409, 414 (9th Cir. 2002)). It “is appropriate

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.’” Whiteside v. United States, 775 F.3d 180, 184 (4th Cir.

2014) (en banc) (quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.

2003) (en banc)). Equitable tolling “does not assume a wrongful

– or any – effort by the defendant to prevent the plaintiff from

suing.” Edmonson, 922 F.3d at 549 (quoting Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)). A plaintiff

seeking equitable tolling must establish “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.”

Menominee Indian Tribe v. United States, 577 U.S. 250, 255 (2016)

(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). At bottom,

Riley argues that either equitable estoppel or equitable tolling

applies because PEMC misled him on the reason for his non-selection

until the Board announced the final hire on June 11, 2024. (Doc.

9 at 15.) He cites two decades-old, non-precedential cases,

Wilkerson v. Siegfried Insurance Agency, Inc., 621 F.2d 1042, 1045

(10th Cir. 1980), and Baruah v. Young, 536 F. Supp. 356 (D. Md.

1982), for the proposition that purposely misleading actions by an

employer can justify equitable tolling when the actions cause the

employee to file an untimely EEOC charge. (Id. at 15.)

Riley never addresses the required elements for equitable

tolling set out by the Supreme Court in Menominee. Even assuming

that the Board members’ responses to Riley’s inquiries were

incorrect or even misleading, Riley fails to allege any facts to

show how PEMC induced him to miss the filing deadline, which came

months later. Riley points to no extraordinary circumstance that

prevented his timely filing, especially considering that he

alleges he investigated his concerns of discrimination from June

“through September 2024” but still did not file an EEOC charge

until December 8, 2024. (Doc. 6 ¶¶ 86-87, 100, 118.) Rather, he

alleges that PEMC “dismissed [his] core concerns with nothing more

than an unsubstantiated explanation” and was otherwise

unresponsive to “his request for the Board to support its assertion

of a non-discriminatory selection process and to provide

quantifiable criteria.” (Id. ¶¶ 103, 116.)

For these reasons, the amended complaint fails to demonstrate

why it would be unconscionable to enforce the limitation period

against Riley or how PEMC caused him not to timely file his claim.

Therefore, Defendants’ motion to dismiss Riley’s failure to

promote and non-selection claims brought pursuant to Title VII and

the ADEA as untimely will be granted.

D. Whether Riley Has Alleged a Plausible Failure to Promote

Claim Pursuant to § 1981

Defendants next argue that Riley has failed to plead facts

showing that he was significantly more qualified than Overbee for

the president and general manager position based on the job

posting’s specific standards. (Doc. 8 at 20-21.) They contend

that Riley cannot reconcile his argument that PEMC did not apply

a standardized hiring procedure with his allegation that PEMC used

a professional recruiter. (Id. at 21.) Further, Defendants assert

that even Riley’s own suggested metrics undermine his suitability

for the position and that Riley has not alleged inconsistencies

between the explanations provided to him for his non-selection and

the posted hiring criteria. (Id. at 22-23.) Finally, Defendants

argue that Riley’s allegation that the Board pre-selected Overbee

before the finalist interviews defeats his claims by suggesting

that “all other candidates were equally disfavored in comparison.”

(Id. at 24.) Riley responds simply that he has alleged facts

giving rise to an inference that he was not promoted because of

his race. (Doc. 9 at 9.)

In the Title VII context, a plaintiff may show discriminatory

pretext by “show[ing] that an employer’s proffered

nondiscriminatory reasons for the [adverse action] are

inconsistent over time, false, or based on mistakes of fact.”

Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir.

2019); see CBOCS W., Inc. v. Humphries, 553 U.S. 442, 450-57 (2008)

(discussing the “overlap” between § 1981 and Title VII). But

“employers may have multiple, legitimate reasons for their

actions, and an employer’s multiple reasons do not create the

inference of pretext where ‘there has been no retraction of any of

its reasons nor are any of its reasons inconsistent or

conflicting.’” Lyons v. City of Alexandria, 35 F.4th 285, 292

(4th Cir. 2022) (citation modified) (quoting Johnson v. Nordstrom,

Inc., 260 F.3d 727, 733-34 (7th Cir. 2001)).6

Here, Riley relies on an assertion that he alleged “sufficient

facts to support the reasonable inference that [he was] at least

as qualified for the position” as Overbee. (Doc. 9 at 9.) And in

the amended complaint, Riley does allege that he “had twice as

much executive leadership, field and managerial experience” as

Overbee. (Doc. 6 ¶ 77.) As an example, Riley alleges that he had

16 years of operational experience and spent 11 years as Vice

President of Operations at PEMC, whereas Overbee had only 17 months

of experience as a vice president of operations.7 (Id.) Riley

6 The court already provided the standard for a § 1981 claim on a motion

to dismiss. See supra Section II.B.2.

7 Riley further alleges that Overbee lacks a bachelor’s or master’s

degree, while Riley has both. (Doc. 6 ¶ 76.) Defendants point out that

Overbee appears on the North Carolina public registry of licensed

professional engineers. (Doc. 8 at 21 n.4 (citing License Lookup, N.C.

Bd. of Exam’rs for Eng’rs & Supervisors,

https://www.memberbase.com/ncbels/search (last visited June 4, 2026)).)

A four-year degree is a prerequisite for licensure. See 21 N.C. Admin.

Code 56 .0501.

also alleges that the reason PEMC gave for his non-selection

changed over time, shifting from his lack of CEO experience, to

his lack of broad knowledge of PEMC, his failure to attend a

management internship program, and finally his failure to submit

a vision statement. (Id. ¶¶ 67, 91-93.) And notably, according

to the amended complaint, both Riley and Overbee lacked CEO

experience, Overbee had no personal experience with PEMC, Riley

participated in internships as part of a Master of Business

Administration program, and he submitted a vision statement in his

video review. (Id. ¶¶ 79, 91-93.)

At this stage, and drawing every reasonable inference in his

favor, Riley has alleged a plausible § 1981 failure to promote

claim.8 He has provided specific facts to show that, at least by

one metric, he was more qualified than Overbee.9 He also alleges

that two of the proffered reasons for his non-selection were

8 Defendants are correct that the use of a professional recruiter, the

publication of the job opening and selection criteria, Riley’s automatic

advancement to the semifinalist round, and the alleged pre-selection of

Overbee as the preferred candidate all tend to cut against a finding of

intentional discrimination based on race. (See Doc. 8 at 21-22, 24.)

But here, the court must draw all reasonable inferences in Riley’s favor.

9 Defendants argue that Riley has failed to plead that he was

significantly more qualified than Overbee based on the specific standards

announced by PEMC. (Doc. 8 at 20-21.) In support, they have attached

PEMC’s job posting for the president and general manager position to

their motion to dismiss. (See Doc. 7-1.) Regardless of whether the court

may properly consider this posting at the Rule 12(b)(6) stage, the job

posting expressly denotes “an experienced leader” as PEMC’s ideal

candidate and lists requirements for “progressively responsible

leadership experience” and experience with electric utilities. (Id. at

2-3.)

contradicted by the underlying facts, while the other proffered

reasons would have similarly disqualified Overbee. Thus, the court

declines to dismiss his § 1981 failure to promote claim against

PEMC.

E. Whether Riley Has Alleged Plausible Termination Claims

Pursuant to the ADEA, Title VII, and § 1981

Finally, Defendants argue that the amended complaint concedes

Riley’s termination occurred because of his refusal to sign the

NDA. (Doc. 8 at 24-25.) Further, Defendants assert that Riley

failed “to adequately plead that any similarly situated employee

was treated more favorably.” (Id. at 25-26.) Riley counters that

PEMC replaced him with a white male who had less experience and

education. (Doc. 9 at 10.) He also contends that PEMC failed to

follow its own policies and procedures in requiring him to sign

the NDA. (Id.)

The ADEA makes it unlawful for an employer to discharge any

individual because of his age. See 29 U.S.C. § 623(a)(1). “To

prevail on an ADEA claim, a plaintiff must prove by a preponderance

of the evidence that age constituted the but-for cause of the

adverse employment action.” Bandy v. City of Salem, 59 F.4th 705,

710 (4th Cir. 2023). At the motion to dismiss stage, the plaintiff

must allege facts sufficient to satisfy the elements of an ADEA

cause of action. Tickles v. Johnson, 805 F. App’x 204, 207 (4th

Cir. 2020) (per curiam) (quoting McCleary-Evans v. Md. Dep’t of

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

Similarly, “[i]n the context of a Title VII case, ‘an

employment discrimination plaintiff need not plead a prima facie

case of discrimination’ to survive a motion to dismiss.” Bing v.

Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). Title VII

prohibits an employer from “discharg[ing] any

individual . . . because of such individual’s race.” 42 U.S.C.

§ 2000e-2(a)(1). Thus, the court must inquire whether the

plaintiff “alleges facts that plausibly state a violation of Title

VII ‘above a speculative level.’” Bing, 959 F.3d at 617 (quoting

Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)).10

Here, Riley’s amended complaint clearly connects his

termination to his failure to sign the NDA. According to the

amended complaint, Overbee first told Riley that all staff were

required to sign NDAs shortly after Overbee started as the new

President and General Manager, though he later clarified that the

NDA requirement only applied to “certain staff.” (Doc. 6 ¶¶ 110-

11.) Riley still had not signed the NDA more than five and a half

months later, and Overbee “issued a mandate” to Riley to return

the signed NDA. (Id. ¶ 133.) PEMC then terminated Riley’s

employment one week after this mandate for the stated reason that

10 Again, the court already provided the standard for a § 1981 claim on

a motion to dismiss. See supra Section II.B.2.

he refused to sign the NDA. (Id. ¶¶ 134-35.)

Riley alleges that PEMC did not require any other employee

“with his tenure” to sign the NDA, but he fails to allege that any

other vice president or executive was excused from the NDA

requirement. (See id. ¶ 108.) Nor does he provide any allegations

of comparators who similarly refused to sign the NDA but were not

terminated. And while a company’s alleged failure to follow its

own policies and procedures, “if true, could establish unfairness

in the process, it is not probative of discriminatory intent.”

Duggan v. Sisters of Charity Providence Hosps., 663 F. Supp. 2d

456, 470 n.6 (D.S.C. 2009) (collecting cases).

Ultimately, to survive Rule 12(b)(6) dismissal, Riley’s

allegations must indicate not only that he was treated differently,

but that he was treated differently because of his race or age.

See Lemon v. Myers Bigel, P.A., 985 F.3d 392, 400 (4th Cir. 2021);

Tickles, 805 F. App’x at 207 (quoting McCleary-Evans, 780 F.3d at

586). Yet beyond the plain facts that Riley is an African American

male who is over 50 years old and was replaced by a younger, white

male, the amended complaint is simply devoid of any allegations to

connect Riley’s termination to his race or age rather than his

failure to sign the NDA. Thus, the discriminatory termination

claims will be dismissed. See Katti v. Arden, 161 F.4th 217, 228

(4th Cir. 2025) (affirming the district court’s Rule 12(b)(6)

dismissal of the plaintiff’s race discrimination claims in part

because an “obvious alternative explanation” for the employer’s

adverse action “emerge[d] from [the] complaint” (quoting McCleary-

Evans, 780 F.3d at 588)).

To be sure, the NDA requirement also pertains to Riley’s Title

VII and § 1981 retaliation claims, which Defendants’ motion to

dismiss does not address. For example, the amended complaint

alleges that Riley “believed that the NDA was used as a retaliatory

measure” and that PEMC “terminated him because of his engaging in

the protected activity.” (Doc. 6 ¶¶ 119, 143.) Substantive

discrimination claims and retaliation claims contain different

elements, and the statutory provisions serve different purposes in

the employment context. Laurent-Workman v. Wormuth, 54 F.4th 201,

212-13 (4th Cir. 2022). Because Riley’s retaliation claims remain

unchallenged, these claims will go forward.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Defendants’ motion to dismiss

(Doc. 7) is GRANTED as follows:

1. As to all Title VII and ADEA claims against the members

of the Board, and those claims are DISMISSED.

2. As to all § 1981 claims against the members of the Board,

except for the § 1981 retaliation claim against Board

member Kinley, and those claims are DISMISSED WITHOUT

PREJUDICE.

3. As to all Title VII and ADEA failure to promote and non-

selection claims against PEMC, and those claims are

DISMISSED.

4. As to all Title VII, ADEA, and § 1981 termination claims

against PEMC, and those claims are DISMISSED.

In all other respects, the motion to dismiss is DENIED.

This leaves as the remaining claims: (1) the § 1981

retaliation claim against Board member Kinley; (2) the § 1981

failure to promote claim against PEMC; and (3) the Title VII and

§ 1981 retaliation claims against PEMC.

/s/ Thomas D. Schroeder

United States District Judge

June 5, 2026