# Opinion

> District Court, M.D. North Carolina · June 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11338677

## Case

- **Full name:** Robert L. Riley, Jr. v. Piedmont Electric Membership Corporation (PEMC) a/k/a Piedmont Electric Cooperative (PEC), et al.
- **Court:** District Court, M.D. North Carolina
- **Decided:** June 5, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11338677

## How later opinions describe it (automated extraction)

- discussing the “overlap” between § 1981 and Title VII
- finding an at-will employment relationship contractual and holding that “such relationships may therefore serve as predicate contracts for § 1981 claims”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11338677. Public record. Not legal advice.