FAIRLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

VIOLEY FAIRLEY, )

)

Plaintiff, )

)

v. ) 1:25CV83

)

CITY OF DURHAM, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Fairley filed suit, alleging unpaid moves to dismiss all FLSA claims

overtime/compensatory time off and preceding February 3, 2023 as time-

retaliation in violation of the Fair barred. See Docket Entry 13.

Labor Standards Act (“FLSA”), 29

U.S.C. § 201, et seq., for (Counts One In sum, the defendant argues that

and Two, respectively), unlawful even taking the facts in the light most

demotion in violation of Article I, favorable to Fairley as pled, she has

Section I of the North Carolina not alleged that the City violated the

Constitution (Count Three), and FLSA record-keeping provisions, nor

unlawful termination in violation of has she established that her demotion

that same provision (Count Four). In and termination were related to the

the First Amended Complaint, Fairley alleged unpaid overtime wages.

alleges that the defendant, the City of Further, the City maintains that

Durham (“the City”), did not pay her because Fairley has not alleged facts

owed overtime wages as required by indicating that the City either knew or

the FLSA and that when she lodged a showed reckless disregard for

complaint regarding the same, her purported violations of the FLSA, the

supervisors demoted her and then two-year statute of limitations (versus

fired her. three-year) applies to those claims.

Finally, the City argues that Fairley’s

Before the Court is the defendant’s North Carolina Constitutional claim

Motion to Dismiss Counts Two, does not apply to the alleged wrongful

Three, and Four, and the record- conduct.

keeping FLSA provision alleged in

Count One. Finally, the defendant

For the reasons set forth below, the receive compensatory “comp” time

Court should deny the City’s motion (instead of overtime pay) for all hours

to dismiss Count Two, as well as its worked beyond 40 a week “while we

motion to limit FLSA claims to the are full time back in the office with

two-year statute of limitations. The prior approval.” See id. ¶¶ 18-19. The

Court should grant the City’s motion agreement noted “Reminder while

to dismiss Counts Three and Four. teleworking no comp time or overtime

is given.” See id.

I. FACTS

Pursuant to the agreement, Fairley

Because all well-pled facts are earned comp time when working

accepted as true and considered in the more than 40 hours in the office, but

light most favorable to the plaintiff, not while working remotely. See id. ¶

below are the facts as Fairley has 20. The City scheduled Fairley to work

alleged in the First Amended from 8 am until 4 pm with an unpaid

Complaint, Docket Entry 11, half hour lunch break, totaling 37.5

(Compl.).1 See Nemet Chevrolet, Ltd. hours per workweek. Id. ¶ 22.

v. Consumeraffairs.com, Inc., 591 However, as alleged, Fairley

F.3d 250, 255 (4th Cir. 2009) (citation “routinely and frequently worked

modified). more than … 2.5 [] hours outside of

her regularly scheduled work shifts

The City hired Fairly on November 2, remotely from home.” See id.

2020 as a Senior Fiscal Specialist; in

February of 2023, the City promoted On May 6, 2024, Fairley complained

Fairley to the title of Accounts Payable to Tim Flora, the City’s Finance

Coordinator. See Compl. ¶¶ 13-14. Director, about the City’s failure to

Throughout her employment, the City award her comp time-off for remote

paid Fairly an annual salary and work hours. See id. ¶ 33. Fairley then

classified her as non-exempt under requested and received a copy of the

the FLSA, meaning she was eligible to City’s Flexible Working

earn overtime wages or accrue Arrangements policy. Id. ¶¶ 34-36.

compensatory time off when she Fairly then reached out to Joyce

worked in excess of 40 hours in a Cooper, writing:

workweek. See id. ¶ 17.

Joyce, as our previous

On January 28, 2021, Fairley signed conversation you have always

an Overtime/Compensatory Time stated to me that on the days we

Agreement, wherein she agreed to work from home (remotely)

1 On April 3, 2025, the defendant moved defendant then withdrew Docket Entry 8

to dismiss the original Complaint, see and filed the instant motion in response

Docket Entry 8; in response thereto, the to the First Amended Complaint, see

plaintiff filed the First Amended Docket Entry 12.

Complaint, see Docket Entry 11. The

that it doesn’t matter how much yes, you’re the supervisor and

we work over because we are really, they should work 8:00 to

not eligible for comp or over 4:00.

time. I advised you and HR that

can’t be correct and read it to …

you both. You stated to me

many time that it’s different As per my conversation with

because we are government and you Friday, I reminded you that

hours worked are different prior to signing the Comp

from [for-]profit places of work memo from David Boyd you

and you are sure that the city and I both worked late many

policy is correct. I told you the nights at home and

story about the time a place I occasionally from the office,

previously worked got in and I was not granted comp

trouble for this and they were time. After signing the comp

non-profit also. You advised me time memo from David Boyd is

just the other day that the when you stated telling [sic] me

policy says remote workers is that working remotely, I would

not eligible for comp time. not be eligible for comp time.

… Id. ¶ 37.

Once I became my staff That afternoon, Flora reached out to

supervisor, I noticed that they Fairley via Microsoft Teams. See id.

were working over 40 hours, ¶ 38. Flora “told Fairley that he was

logging into work at 5:00 am considering making Fairley and her

etc.. and I addressed to you my entire staff work from the office full-

concerned [sic] and again time to resolve the compensatory

advised that they should not be time-off issue.” See id. Shortly

doing that, and it could thereafter, Fairley sent Flora an email

potentially cause the City of with the subject line “Retaliation” and

Durham problems. You stated attaching a fact sheet from the North

that it would not be a problem, Carolina Department of Labor-Wage

because they are working and Hour Division, providing

remotely. You stated to me information about retaliation in the

Viola…we don’t want to raise workplace for complaints about wage

that issue again because it issues. See id. ¶ 39.

could make us all to have to

come back into the office full- Fairly then later emailed Flora: “Did I

time, and lord knows we don’t hear you correct when you stated that

want that. I asked you if it you may require non-exempt

would be ok to stop it and talk employees to come into the office full

with them about it. You said time and you asked would I agree to

that? I’m salary non-exempt. I feel showed her my acceptance

that would be punishing me and my letter from James O’Donnell in

staff for raising my concerns about the HR stating that I am salary

comp and over time.” See id. ¶ 40. non-exempt with

comp/overtime pay.

The next day, Flora, Cooper, and

Sheilah Faucette, the City’s Assistant I would ask my manager if I

Finance Director, met with Fairley. could work late from home.

See id. ¶ 41. As alleged, during this Joyce Cooper said to me several

conversation, “Flora belittled Fairley times “You don’t have to keep

and told her that her email to Cooper asking me about working over

‘is weak’ and told her that ‘if you at home because you don’t get

decide to go to the NCDOL [] you will comp or overtime anyway, you

not win.’” See id. Flora asked Cooper can work as long as you want

who advised Fairley that comp time- remotely”, but you do need

off was not rewarded for remote work, approval from working in the

and Cooper responded “David Boyd.” office. After expressing my

See id. Fairley alleges upon concerns and fear to my

information and belief, that David manager many times I

Boyd was the City’s Finance Director contacted HR 2021-2023 via

prior to Flora assuming the role. See email and in person as late as

id. November 2023 to Felecia

Nolan.

The next day, on May 17, Fairley

emailed Wanda Page, the City’s Cit …

Manager, and Leonardo Williams, the

City’s Mayor: I kept working the overtime

because it was needed and

I have worked many hours over although I felt that what Joyce

40 hours especially during the had advise me about not having

end of the year doing 1099 and comp remote was not right, I

other projects in the office started believing that I could be

alongside my manager Joyce the one that was wrong since

Cooper and mostly from home. she said it was different because

My manager had advised me the City of Durham is

several times after 4:00 instead government.

of working there to leave the

office and go home to work After becoming the Supervisor,

because when you work from I noticed that my staff was

home you do not get Comp or working over 40 hours some

Overtime pay. I advised Joyce weeks. Some would log on as

that working without comp or early as 5:00 a.m. in the

overtime can’t be right and morning and some would come

to work early on the days they but supported and provided

work in the office, but no one excuses for everything Joyce

asked for comp or overtime have said to me even for the

pay. I expressed my concern to Comp and over time. Joyce says

Joyce Cooper and asked if I she was doing only what she

could stop it and talk with was told to do about the Comp

them. Joyce said if they work time. Tim asked Joyce who told

remotely, it’s ok. I again you that and Joyce said David

expressed my concern and how Boyd. Tim ASKED med [sic] if I

I did not want it to come back would support my staff having

on me. Joyce said, you are their to do time sheets and I told him

supervisor, and you can talk only if everyone else have to do

with them and ask them to stop. it and that it would be unfair to

Upon speaking with my staff, I single out only my staff. Tim

was advised that they have been became upset and I reminded

told that it is ok to do it Tim that he asked me. I told

remotely. After speaking to my Tim that the over time is in an

staff about not working over email and Tim said to me “Your

and only working 8:00 am to email is weak and if you decide

4:00 some were still logging on to go to wage and hour you will

early and working. I expressed not win”.

my concern to Joyce Cooper

(my manager) and she sent a Id. ¶ 42.

reminder email in January

2024. On May 17, 2024, Flora emailed to

Fairley, Cooper, and Faucette, stating:

… “I believe this was a productive

meeting, and while not all issues are

On May 16, 2024 Tim called me resolved, we all agreed to the five

and asked me if I could come ‘wins’ below.” Id. ¶ 43. Flora then

into the office to meet at 3:00. I summarized the “wins” as:

inquire [sic] why and he said to

discuss your concerns and to 1) “All non-exempt employees

hash out your issue with Joyce. qualify for compensatory time

or overtime pay regardless of

… working in the office or

remotely … “In an effort to right

Meeting attended: Tim Flora, any wrong, perceived or

Sheila Faucette, Joyce Cooper otherwise, Tim has agreed to

and me. … Tim would not allow retroactively approve overtime.

me to express or say what I Viola is to provide a written

need to tell him. He discredits request outlining the

everything I said at the meeting

circumstances and time comp time-off; Cooper called Fairley

requested.” shortly thereafter to discuss how to

2) “Regular work hours are 8 a.m. find documents in support. Id. ¶ 45.

to 4 p.m. and there are no The next day, Fairley met with Cooper

expectations of non-exempt in his office about an unrelated

staff working outside of these matter; Flora came to the office, as

parameters without prior well, at which time Fairley left and

approval.” returned to her desk. Id. ¶ 46.

3) “Viola is empowered to manage

who processes CPP [Contract Soon thereafter, Cooper sent an email

Progress Payments] to staff.” to Fairley that attached a voice

4) “Viola would be responsible for recording and transcript of Cooper’s

processing voids/stop conversation with Flora. Id. ¶ 47.

payments/modifications.” Fairley told Cooper that she (Cooper)

5) “Conflict resolution between shared the attachments with her

Joyce and Viola (Fairley). Id. Cooper and Flora then

a. Both parties agree that came to Fairley’s office, where they

disagreements will be

resolved on a one-on-one told Fairley the attachments

basis and not involve were sent to her by mistake.

other Finance staff.” Flora and Cooper asked if

Fairley had listened to the

Id. ¶ 43. recording and/or read the

transcript. Flora informed

On June 3, 2024, Fairley met with Fairley that Cooper filed a

Bertha Johnson-Winbush, the City’s complaint with him regarding

Deputy City Manager and described Fairley’s complaints about

the May 16 meeting with Flora, unpaid overtime/earned

Cooper, and Faucette. Johns- compensatory time-off. Before

Winbush asked Fairley: ‘Do you want Fairley could respond, Cooper

your job?’ and ‘Do you like your job?’ yelled at her stating that the

Johnson-Winbush told Fairley that recording didn’t have anything

she supported Flora and Cooper and on it that Fairley could use

advised Fairley that she ‘can’t go against them. Flora

around complaining about wages and additionally told Fairley that

hours and not expect to get the “you now know how it feels

reaction you got from Tim and when you complained about the

Joyce.’” Id. ¶ 44. comp time and sent that letter

to upper management.” Flora

On June 6, Flora emailed Fairley, and Cooper began falsely

requesting that she provide accusing Fairley of causing

documentation substantiating her issues and making false

claimed unpaid overtime/earned complaints. Flora attacked

Fairley for “always wanting to City Managers. When I asked

have things your way and about what is said about

becoming defensive when they intimidation in the transcript

don’t.” Flora then threatened Tim says Joyce filed a

Fairley’s employment because complaint stating she feels

she wrote the email to Wanda intimidated by you because you

Page and Leonardo Williams[.] mentioned to her wage and

hour.

Id. ¶ 48.

Id. ¶ 51. Johnson-Winbush called

A little while later, Flora returned to Fairley later that day, per Fairley’s

Fairley’s office and told her “Joyce is request, “advised Fairley not to meet

not your friend. You are not to talk to one-on-one with Flora or Cooper

her about anything else.” Fairley tried anymore and instead have email

to speak but Flora interrupted. Flora discussions with them,” and told her

leaned across Fairley’s desk and that the City provides counseling

stated, “you are not to talk to her, eat services, as Fairley had told her she

lunch with her, or leave with her. She was experiencing suicidal ideations.

is your boss, not your friend.” Fairley See id. ¶ 53.

again attempted to speak and Flora

interrupted her, stating, “I don’t On June 11, Fairley emailed Flora

believe anything you say.” Flora then between 12-17 emails with multiple

left Fairley’s office. Id. ¶ 49. attachments supporting her claims

for comp time-off for overtime hours

That same day, Fairley emailed worked. See id. ¶ 55. Six days later,

Johnson-Winbush, including the Flora emailed Fairley, requesting a

audio recording and stating: “After meeting the next day to walk through

receiving this and Tim and Joyce the “methodology” for determining

talking to me the way they talked to what comp time-off Fairley was owed.

me today. I am leaving taking the See id. ¶ 58. Later that day, Flora

remaining of the day off from work emailed Fairley his computation,

sick, I feel sick, my blood pressure is calculating that “the City owes you

up and shaking.” See id. ¶ 50. Fairley’s 303.5 hours of comp time. That

email continued: number includes any time-and-a-half

hours worked over 40 hours.” See id.

When I try to talk to Tim and ¶ 62. Flora attached the worksheets he

Joyce about the attached used to “make sure [he] was capturing

recording and transcript, that is everything and used to determine the

when he says to me now you number of hours in a week worked

know how it feels when you over 40 hours.” Id. Flora further

complained about the comp noted that once they came to an

time and send that letter to agreement, he would “work with

upper management and talk to payroll to pay out any comp time over

240 hours, since the policy of the City with the bulk of the work done

is to pay out anything over 240 by management. I take your

hours.” Id. response of declining this

afternoon’s meeting as a refusal

Fairley ultimately wrote Flora: “I to understand the process and

would like to request to cancel the in consider your behavior

person resolution meeting and inappropriate. Further, as you

communicate via e-mail.” See id. have refused to meet, I stand

¶¶ 63-65. Fairley then challenged my calculation.

Flora’s calculation, and stated: “As an

effort to move on from the wages and Id. ¶ 69.

comp time that is owed to me I will

consider accepting the time that you That same day, Fairley forwarded

have provided as long as I am paid out Flora’s email to Johnson-Winbush

the 284 hours worked @ straight time and carbon copied Flora and Faucette.

and 19.5 hours of comp time is posted See id. ¶ 70. She added:

to me.” See id. ¶ 65.

I ask not to meet in person due

Fairley emailed Flora the next day, “I to the history and fear of the

feel that this complaint from Joyce way Tim talk and treats me and

Cooper and you Tim Flora on Friday due to my mental and physical

June 7, 2024 and other actions is state from his and Joyce

retaliation for talking about Wage and treatment. What behavior is

Labor and exercising my (FLSA) Fair inappropriate? Tim sent me the

Labor Standards Act. I feel that I will time and comp information for

Continue to be retaliated against review and now as usual, if I

especially during time of my have a voice or have anything to

evaluation.” See id. ¶ 66. Fairley then say or reply this is the

lodged a complaint with the City’s treatment I get from him. This

Human Resources department. See is not acceptable and I find it

id. ¶ 67. hostile and retaliatory. I also

put on the e-mail this morning

On June 18, Flora emailed Fairley: that I will consider accepting

the amount of time he have put

I have given you ample as long as I am paid for my

opportunities to provide hours that I worked and is due

documentation to bolster your to me, the hours that I should

assertions regarding extra have been paid the “Raw hours

hours worked. My requests worked” the 2.50 hours up to

have been met with resistance. the 40 hours week because I

I have worked to accommodate were paid for 37.5 hours weekly

your claims based upon limited = 284 hours per Tim at straight

information provided by you time. The 19.5 hours of comp

time not be paid out, but The City’s disciplinary policy related

recorded as comp time. to demotions provides, in relevant

part, that “[a] Department Director

Id. Two days later, a representative of may demote an employee in pay grade

the HR department advised Fairley and decrease the employee’s salary

that “an investigation was ongoing and job responsibilities, as

regarding her complaint.” Id. ¶ 71. appropriate, for such a time as is

Shortly thereafter, Fairley sought necessary to correct deficiencies in job

treatment for “suicidal ideations from performance, job behaviors, or job

the fear, stress, and depression cause qualifications if there is a suitable

by Flora and Cooper’s actions[.]” Id. position in the department.” Id. ¶ 76.

¶ 72. It further states that “[p]rior to the

effective date of the demotion, a pre-

Fairley alleges that from June 20 disciplinary conference must be held

through July 18, she “attempted to and the employee must be given an

participate in the investigation and opportunity to respond to the

provide any supporting documents or proposed demotion. If the demotion

information” to HR, but was is to occur, the employee must be

reminded that “she [Fairley] filed the given an [Employee Notice Form

complaint and needed to be patient.” (“ENF”)] which must indicate the

Id. ¶ 73. On July 18, the HR point of effective date of the demotion, new

contact emailed Fairley, informing salary, and required duties[.]” Id.

her that the investigation had ended

and “her complaint about retaliation “The Pre-disciplinary notice form

was unsubstantiated.” Id. ¶ 74. must contain the date, time, and

location of the conference … [and] the

On July 26, Flora informed Fairley proposed level of discipline and []

that “due to her complaint … he felt detailed specifics about the

Fairley did not trust him anymore[.]” accusations or charges against the

Id. ¶ 75. Flora further advised Fairley employee and the factual basis for the

that she “was being demoted from the disciplinary action.” Id. ¶ 77. “Once

Accounts Payable (Fiscal the employee is noticed via the Pre-

Coordinator) role back to the Senior disciplinary Conference Notice Form,

Fiscal Specialist role,” and that “she the conference can occur as soon as

needed to vacate her office and move possible but no earlier than three (3)

to her old cubicle.” Id. Flora issued business days from the date of notice.”

Fairly a written disciplinary action Id.

“for working outside of her normal

scheduled hours without prior Fairley alleges that despite this policy,

approval from her supervisor,” which Flora did not provide her with a Pre-

failed to indicate that “Fairley was disciplinary Conference Notice Form,

being demoted.” Id. nor did he schedule or conduct such a

conference. Id. ¶ 78. Fairley alleges

upon information and belief that

Flora did not include Fairley’s As to the first alleged offense, the form

demotion on the Employee Notice stated that

Form “to avoid Durham’s pre-

disciplinary conference requirement.” An investigation into Viola’s

Id. ¶ 79. behavior was initiated by

Christine Collum, Assistant

On August 5, Fairley told Meredith Finance Director on August 6,

“Kelly” Robertson, the City’s former 2024 after an employee spoke

Administrator, that she had been to Joyce Cooper about Viola’s

demoted and because of that, she comments to the employee

would no longer be training her. Id. about Viola’s Human

¶ 83. On August 7, Cooper and Resources investigation. On

Christine Collums, the City’s Assistant August 7, 2024, Viola was asked

Finance Director, held a meeting with about communicating to others

Fairley over Microsoft Teams, at about her investigation. Viola

which time Cooper advised Fairley stated she only shared with

“that an investigation was being other that she was being moved

conducted regarding Fairley’s alleged from her office. Viola denied

disclosure of information relating to discussing any other details of

the complaint she filed with Human the investigation with others.

Resources.” Id. ¶ 84. Five days later, Further investigation showed

Cooper instructed Fairley to work that Viola has shared details of

remotely for the remainder of the the investigation with multiple

week. Id. ¶ 85. On August 16, over a employees.

Microsoft Teams meeting with

Cooper and Collums, Collums advised Id. ¶ 89. As the second offense, the

Fairley that “she was being form stated:

terminated and provided her with a

Pre-disciplinary Conference Form,” One false statement made by

that set the conference for August 19. Viola was that she was

Id. ¶ 87. demoted. Viola denied making

this statement to anyone;

The form alleged four offenses: 1) however, multiple employees

creating an “uncomfortable work confirmed Viola has made that

environment”; 2) “[m]aking false statement to them[] … Another

and/or disparaging comments about statement made by Viola was

employees”; 3) not following an related to inappropriate

agreed upon directive; and 4) refusing behavior exhibited by her

to “train an employee per her supervisor and the Finance

supervisor’s direction and failing to Director. This behavior

end conversations when directed to included yelling and use of a

do so.” Id. ¶ 88. condescending tone with

employees. The investigation In sum, Fairley alleges that Flora

determined that Viola has miscalculated the total number of

made false statements to hours she worked in excess of 40 over

multiple employees. a three-year period, and that he

awarded her comp time off at a 1:1 rate

Id. ¶ 90. As to the third offense, the rather than the FLSA-required 1:1.5

form alleged that “[a]n employee rate. See id. ¶ 25. Specifically, Flora

informed Joyce that Viola told the determined Fairley had worked

employees she was recording 169.75 hours of compensable

employees. During the investigation, overtime during a three-year period

multiple employees acknowledged prior to the filing of the instant

Viola made the comment to them she matter2 and so awarded her 169.75 of

had recorded employees.” Id. ¶ 91. As comp time-off instead of 254.625, for

to the fourth offense, the form alleged a disparity of 84.88 comp time-off

multiple instances where Fairley hours. See id. ¶¶ 25, 29. And, despite

“would turn the conversation to the regularly working in excess of 40

investigation” and would not end a hours per workweek from February 3,

conversation when requested to do so. 2022 through June of 2024, the City

Id. ¶ 92. only paid her for earned overtime

and/or provided comp time-off one

Fairley alleges that these alleged time. See id. ¶ 27.

offenses were “pretextual” and

intended to “cover up the true reason On August 9, 2024, the City

for terminating Fairley’s compensated Fairley for 83.4 hours of

employment; being that she comp time-off and awarded 232.50

complained about unpaid comp time-off hours to her bank. Id.

overtime/unearned compensatory ¶ 31. On August 23, 2024, following

time-off in violation of the FLSA.” Id. her termination, the City

¶ 93. compensated Fairley for the

remaining 232.50 hours of comp

On August 19, Fairley arrived at her time-off. Id.

pre-disciplinary conference; a City

police officer escorted her to HR, II. PROCEDURAL

where Flora gave Fairley her POSTURE

belongings and requested that she

turn in her key and badge. Id. ¶ 96. On February 3, 2025, Fairley filed suit

Collums emailed Fairley a copy of the against the City, alleging claims of

ENF that same day, notifying her that FLSA violations – unpaid

termination was effective August 19, overtime/compensatory time-off

2024. Id. ¶ 98. (Count One) and retaliation (Count

Two), and violations of the Article I,

2 Fairley alleges that Florda determined hours of compensable overtime during

that Fairley had worked 303.5 unpaid her employment in total.

Section 1 “fruits of one’s labor” clause Scott v. City of Durham, No. 1:20-CV-

of the North Carolina Constitution 558, 2021 WL 3856168, at *2

arising from alleged unlawful (M.D.N.C. Aug. 27, 2021), but the

demotion (Count Three) and unlawful complaint’s allegations should “allow

termination (Count Four). See Docket the court to draw a reasonable

Entry 1. The City moved to dismiss inference that the defendant is liable

and Fairley then amended the for the misconduct alleged,” Int’l

complaint; in response, the City Refugee Assistance Project v. Trump,

withdrew its original motion to 961 F.3d 635, 648 (4th Cir. 2020)

dismiss but now moves to partially (cleaned up).

dismiss the First Amended

Complaint, arguing that Counts Two, On a motion to dismiss, courts view

Three, and Four fail to state a claim the allegations in the complaint as

under Federal Rule of Civil Procedure true, drawing all inferences in the

12(b)(6). See Docket Entries 8, 11, 12, plaintiff's favor. See Twombly, 550 at

14. The City further moves the Cour to 555–56 (2007); Langford v. Joyner,

dismiss any FLSA claims arising prior 62 F.4th 122, 124 (4th Cir. 2023). The

to February 3, 2023 as time-barred. purpose of Rule 12(b)(6) is “to test the

See Docket Entry 14. Fairley has sufficiency of a complaint and not to

responded in opposition and the City resolve contests surrounding the

has replied. See Docket Entries 17, 18. facts, the merits of a claim, or the

The matter is ripe for disposition. applicability of defenses.” Presley v.

City of Charlottesville, 464 F.3d 480,

III. DISCUSSION 483 (4th Cir. 2006). But courts are

not required to “accept as true ‘legal

“To survive a motion to dismiss, a conclusions drawn from the facts’ or

complaint must contain sufficient any other ‘unwarranted inferences,

factual matter, accepted as true, to unreasonable conclusions, or

‘state a claim to relief that is plausible arguments.’” Just Puppies, Inc. v.

on its face.’” Ashcroft v. Iqbal, 556 Brown, 123 F.4th 652, 660 (4th Cir.

U.S. 662, 678 (2009) (quoting Bell 2024) (quoting Giarratano v.

Atl. Corp. v. Twombly, 550 U.S. 544, Johnson, 521 F.3d 298, 302 (4th Cir.

570 (2007)). Legal conclusions “must 2008)).

be supported by factual allegations”

that amount to more than A. FLSA Statute of Limitations.

“unadorned, the-defendant-

unlawfully-harmed-me The Fair Labor Standards Act of 1938

accusation[s].” Iqbal, 556 U.S. at 678 (FLSA), 29 U.S.C. § 201, et seq.,

(citing Twombly, 550 U.S. at 555). A provides in relevant part that “no

plaintiff is not required to prove her employer shall employ any of his

case in the complaint, see, e.g., employees … for a workweek longer

Robertson v. Sea Pines Real Est. Cos., than forty hours unless such

679 F.3d 278, 291 (4th Cir. 2012); employee receives compensation for

his employment in excess of the hours Cir.1993)). Negligent conduct is

above specified at a rate not less than insufficient to meet this standard, see

one and one-half times the regular Desmond v. PNGI Charles Town

rate at which he is employed.” See 29 Gaming, LLC, 630 F.3d 351, 357 (4th

U.S.C. § 207(a)(1). “As a ‘remedial and Cir. 2011) (“Desmond II”). “An

humanitarian statute,’ the FLSA seeks employer acts with reckless disregard

to ‘protect all covered workers from of the FLSA where it ‘should have

substandard wages and oppressive inquired further into whether its

working hours.’” Chavez-Deremer v. conduct was in compliance with the

Med. Staffing of Am., LLC, 147 F.4th [FLSA] and failed to make adequate

371, 384 (4th Cir. 2025) (first quoting further inquiry.’” Chavez-Deremer v.

Salinas v. Com. Interiors, Inc., 848 Jerry’s Caring Hands, Inc., No. 1:24-

F.3d 125, 133 (4th Cir. 2017); then CV-00213-JRR, 2025 WL 2687344, at

quoting Barrentine v. Arkansas-Best *19 (D. Md. Sept. 19, 2025) (quoting

Freight Sys., Inc., 450 U.S. 728, 739 29 C.F.R. § 578.3(c)(3)).

(1981)). “Any employer who violates

the provisions of [29 U.S.C. § 206 or Here, the City does not move to

§ 207] shall be liable to the employee dismiss Fairley’s FLSA unpaid

or employees affected in the amount overtime/compensatory time-off

of their unpaid minimum wages, or claim for failure to state a plausible

their unpaid overtime compensation, claim, it simply asserts that the facts,

as the case may be, and in an as pled in the First Amended

additional equal amount as liquidated Complaint, do not establish willful

damages.” 29 U.S.C. § 216(b). These violation of the same, and thus the

claims are subject to a two-year two-year statute of limitations

statute of limitations from when such applies, encompassing only claims

claims accrue, or three years if the that accrued within two years of the

violation if “willful.” See 29 U.S.C. filing of the complaint, that is,

§ 255(a). between February 3, 2023 and

February 3, 2025.

In McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 133 (1988), the While a motion to dismiss under Rule

Supreme Court defined willful, for 12(b)(6) “generally cannot reach the

purposes of this subsection, as those merits of an affirmative defense, such

situations where the employer “either as the defense that the plaintiff’s claim

knew or showed reckless disregard for is time-barred,” the district court may

the matter of whether its conduct was evaluate the merits “if all facts

prohibited[.]” “The question of necessary to the affirmative defense

whether an employer acted willfully is clearly appear on the face of the

generally a question of fact.” Calderon complaint.” Goodman v. Praxair,

v. GEICO Gen. Ins. Co., 809 F.3d 111, Inc., 494 F.3d 458, 464 (4th Cir.

130 (4th Cir. 2015) (citing Martin v.

Deiriggi, 985 F.2d 129, 136 (4th

2007) (en banc) (emphasis and their claims at this stage.” Alcorn v.

alteration omitted). George Mason Mortg., LLC, No.

RDB-15-2727, 2016 WL 3440261, at

Here, the plaintiff asserts this is not *4 (D. Md. June 23, 2016).

such a case. And, indeed, courts

within this Circuit have viewed Even if such a finding were

granting a motion to dismiss certain appropriate at this stage in the

FLSA claims as time-barred at the proceedings, Fairley’s allegations

pleading stage with a skeptical eye. As would survive. She asserts that the

this Court has recently confirmed in City’s “violation of the FLSA was

Rose v. Harloe Management Corp., willful, intentional, and taken with

No. GLR-16-761, 2017 WL 193295, at reckless disregard for [her] rights.”

*4 (D. Md. Jan. 17, 2017), [b]ecause See Aviles-Cervantes, 276 F. Supp. 3d

the question of whether [a at 491 (finding plaintiffs’ FLSA claim

defendant’s] alleged [FLSA] adequately pled willfulness based, in

violations were willful is not an part, on allegations that the defendant

element of plaintiff[s’] claims; but “acted willfully or with reckless

rather an anticipat[ion of] a disregard in failing to pay [them] and

limitations defense that [the] the other class members in

defendant[ ] may raise, [plaintiffs] do[ conformance with the requirements

] not need to allege specific facts that of the FLSA.”). While the allegation is

[the] defendant[ ] willfully violated conclusory in nature, the First

the FLSA.” See Aviles-Cervantes v. Amended Complaint contains

Outside Unlimited, Inc., 276 F. Supp. multiple instances where Fairley

3d 480, 491 (D. Md. 2017) (internal raised the issue of receiving

quotations and citation omitted) compensatory time-off after 40 hours

(alterations in original). See also worked in a workweek. See, e.g.,

Aguilar v. ALCOA Concrete & Compl. ¶¶ 21, 30, 33, 37, 41. This is

Masonry, Inc., No. TDC-15-0683, sufficient for purposes of Rule

2015 WL 6756044, at *2 (D. Md. Nov. 12(b)(6). See generally White v. City

4, 2015) (rejecting defendant’s of Richmond, No. 3:18-CV-504-JAG,

argument in its motion to dismiss that 2019 WL 2141924, at *3 (E.D. Va. May

plaintiff did not adequately plead 16, 2019) (finding plaintiffs’ assertion

willfulness because it is an affirmative that “reporting overtime resulted in a

defense); Ford v. Karpathoes, Inc., verbal battle... with administration to

No. ELH-14-0824, 2014 WL 6621997, even get paid for it” created genuine

at *9, (D. Md. Nov. 20, 2014) issue of fact as to willfulness,

(“[P]laintiffs do not need to allege precluding summary judgment)

specific facts supporting their (internal quotation omitted); see also

allegation that defendants willfully Akers v. Cnty. of Sampson, No. 7:22-

violated the FLSA.”). Thus, while CV-43-FL, 2022 WL 16936034, at *7

plaintiffs “may bear the burden to (E.D.N.C. Nov. 14, 2022) (finding that

prove willfulness, … [Rule 12(b)(6) ] the plaintiff adequately pled

does not require that Plaintiffs prove willfulness with “allegations . . . of

altering time records, and ignoring Cir. 2008). This subsection of the

repeated requests by the sheriff for FLSA makes it unlawful “to discharge

different pay accounting, despite or in any other manner discriminate

alleged awareness of the against any employee because such

requirements of the FLSA[]”). employee has filed any complaint or

instituted or caused to be instituted

Thus, this Court should deny the any proceeding under or related to

City’s motion to dismiss all FLSA this chapter.” 29 U.S.C. § 215(a)(3).

overtime and/or compensatory time- And, as the Fourth Circuit has noted,

off claims accruing between February per the Supreme Court directive,

3, 2022 and February 3, 2023.3 courts should not “interpret[] or

appl[y this provision] in a narrow,

B. FLSA retaliation claim. grudging manner.” See Ball v.

Memphis Bar-B-Q Co., 228 F.3d 360,

The City next argues that the Court 364 (4th Cir. 2000) (internal

should dismiss Fairley’s FLSA quotation and citation omitted).

retaliation claim (Count Two) for

failure to plead a causal connection “A plaintiff asserting a prima facie

between the protective activity and claim of retaliation under the FLSA

adverse actions suffered. The Court must show that (1) he engaged in an

should deny the motion as to this activity protected by the FLSA; (2) he

Count, as well. suffered adverse action by the

employer subsequent to or

“The retaliation provision of the FLSA contemporaneous with such

is a central component of the Act’s protected activity; and (3) a causal

complaint-based enforcement connection exists between the

mechanism.” See Darveau v. employee’s activity and the

Detecon, Inc., 515 F.3d 334, 340 (4th employer’s adverse action.”4 Wai

3 The City also moves the Court to well-settled that a plaintiff claiming Title

dismiss a “recordkeeping” component of VII or ADEA violations, which also

Count One, see Docket Entry 14, at 12, employ the same burden shifting

but as Fairley correctly notes, the FLSA framework, “need not plead facts

does not provide for a private cause of constituting a McDonnell Douglas prima

action related to recordkeeping, nor does facie case of discrimination to survive a

she advance one, see Docket Entry 17, at motion to dismiss.” Johnson v. Lemonds,

10-11. No. 1:15CV410, 2016 WL 447494, at *1

4 Courts have applied the McDonnell (M.D.N.C. Feb. 4, 2016) (denying

Douglas burden-shifting framework to defendant’s motion to dismiss retaliation

FLSA retaliation claims. See Jackson v. claims, citing Swierkiewicz v. Sorema

Mayor & City Council of Baltimore City, N.A., 534 U.S. 506, 514-15 (2002)). “Yet,

No. CIV JFM 08-3103, 2009 WL in reviewing motion to dismiss rulings,

2060073, at *2 (D. Md. July 14, 2009), the Fourth Circuit continues to speak of a

citing Conner v. Schnuck Mkts., Inc., 121 prima facie Title VII retaliation claim.

F.3d 1390, 1394 (10th Cir. 1997). And it is Similarly, in analyzing motions to

Man Tom v. Hosp. Ventures LLC, 980 have been materially adverse to a

F.3d 1027, 1042 (4th Cir. 2020), citing reasonable employee because the

Darveau, 515 F.3d at 340. “[A] employer’s actions ... could well

plaintiff asserting a retaliation claim dissuade a reasonable worker from

under the FLSA need only allege that making or supporting a charge of

his employer retaliated against him by discrimination.” See Darveau, 515

engaging in an action ‘that would have F.3d at 343. It need not constitute “a

been materially adverse to a materially adverse employment

reasonable employee’ because the action.” See id.

‘employer’s actions ... could well

dissuade a reasonable worker from Fairley alleges both, as demotion and

making or supporting a charge of certainly termination constitute

discrimination.’” See Darveau, 515 adverse actions under any

F.3d at 343 (quoting Burlington N. & employment framework. The plain

Santa Fe Ry. Co. v. White, 548 U.S. language of the statute includes

53, 57 (2006)). prohibition on “discharging” any

employee for retaliatory purposes.

1. Fairley alleges she engaged in See Alley v. Quality Eco Techs., LLC,

protected activity. No. 3:20CV355, 2021 WL 1196188, at

*10 (E.D. Va. Mar. 29, 2021) (“[T]he

When analyzing retaliation claims, it Court also finds that QET took

is well-settled that “[c]omplaints adverse action against Plaintiffs

raised through internal company Atkinson and Bratton when it

procedures are recognized as terminated their employment.”). And

protected activity.” Roberts v. Glenn the City does not dispute that Fairley

Indus. Grp., Inc., 998 F.3d 111, 122 has adequately alleged this prong of

(4th Cir. 2021). And the City does not the analysis. See Docket Entry 14, at

dispute that Fairley has adequately 14-18.

pled this prong of the analysis. See

Docket Entry 14, at 14-18. 3. Fairley alleges a causal

connection between the

2. Fairley alleges that she suffered protected activity and adverse

adverse action by her employer. action.

As to the second prong, a “plaintiff The City disputes that Fairley has

asserting a retaliation claim under the adequately pled causality, the third

FLSA need only allege that her prong of a prima facie retaliation

employer retaliated against her by complaint. This prong “requires

engaging in an action “that would either: (1) that the retaliation closely

dismiss retaliation claims, district courts facie case.” See id. (collecting cases).

in the Fourth Circuit continue to rely on However, even applying the more

decisions evaluating, at or after summary exacting of the two standards, Fairley’s

judgment, the McDonnell Douglas prima retaliation claim survives.

followed the protected activity, or (2) “if you decide to go to the NCDOL, you

that the plaintiff put forth a sufficient will not win.” See id. ¶ 41. On June 7,

explanation for the delay between the 2026, Flora informed Fairley that

protected activity and the alleged Cooper had filed a complaint with

retaliation.” Reardon v. Herring, 201 Flora about Fairley’s “complaints

F. Supp. 3d 782, 784 (E.D. Va. 2016) about unpaid overtime/earned

(citations omitted). There is no hard compensatory time-off[.]” See id.

and fast rule as to “how closely the ¶ 48. In a meeting between Cooper,

adverse action must follow the Flora, and Fairley on that day, “Flora

protected conduct,” but “even a ten- and Cooper began falsely accusing

week delay ‘is sufficiently long so as to Fairley of causing issues and making

weaken the inference of causation false complaints” and “Flora then

between the two events.’” See id. at threatened Fairley’s employment

785 (quoting Perry v. Kappos, 489 F. because she wrote the email to Wanda

App’x 637, 643 (4th Cir. 2012)). Page and Leonardo Williams”

Where the time between the conduct regarding the comp time-off issue. See

and the adverse action “is too great to id.

establish causation based solely on

temporal proximity, a plaintiff must Fairley then provided Flora, per his

present other relevant evidence ... to request, documentation for

establish causation, such as retroactive comp time-off and they

continuing retaliatory conduct and engaged in a back-and-forth

animus in the intervening period.” regarding the proper figure. See id.

Perry, 489 F. App’x at 643 (internal ¶¶ 55, 58-66, 69. Fairley lodged an

quotations omitted). See also Lettieri official complaint with HR on June

v. Equant Inc., 478 F.3d 640, 650 (4th 18. See id. ¶ 67.

Cir. 2007) (“Specifically, evidence of

recurring retaliatory animus during On July 26, 2026, the City demoted

the intervening period can be Fairley. See id. ¶ 75. On August 19, the

sufficient to satisfy the element of City fired her. Id. ¶ 96.

causation[.]”).

Almost three months passed between

As alleged, Fairley complained to Fairley’s May 6 complaint to Flora

Flora on May 6, 2024 about the City’s and her demotion on July 26. The

failure to award comp time-off for Fourth Circuit has specifically noted:

remote work performed in excess of “Although neither we nor the

40 hours per workweek. Compl. ¶ 33. Supreme Court have adopted a bright

What followed was a series of back- temporal line, we have held that a

and-forth communications regarding three- or four-month lapse between

the same with Fairley, Flora, and the protected activities and discharge

Cooper. See id. ¶¶ 36-40. Ten days was too long to establish a causal

later, Cooper allegedly told Fairley connection by temporal proximity

that one of her emails was “weak” and alone[.]” Pascual v. Lowe’s Home

Ctrs., Inc., 193 F. App’x 229, 233 (4th

Cir. 2006) (unpublished). When examining continuing

retaliatory conduct and animus, the

The question then, is whether Fairley case law does draw a distinction

has pled “continuing retaliatory between “ordinary tribulations of the

conduct and animus in the work place ... petty slights or minor

intervening period.” See 489 F. App’x annoyances that often take place at

at 643 (internal quotations omitted). work and that all employees

See also Reardon v. Herring, 201 F. experience[,]” see Burlington N. &

Supp. 3d 782, 786 (E.D. Va. 2016) Santa Fe. Ry., 548 U.S. at 68, and

(“[A]n employer steadily working materially adverse actions. Cooper’s

toward effecting an adverse action comments on May 16 may debatably

and subsequently taking that action at constitute a petty slight or minor

the first convenient opportunity, annoyance, but filing a complaint

combined with articulated continuing against Fairley, accusing Fairley of

animus, can meet the plausibility making false claims, and threatening

standard for pleading causality, at Fairley’s employment hew closer to

least at the motion to dismiss stage.”). retaliatory conduct and animus,

To that end, Fairley has alleged: falling during the intervening period.

Drawing all reasonable inferences in

• May 16: Cooper stated one of Fairley’s favor here, she has

the emails related to the issue sufficiently alleged a causal

was “weak” and if she went to connection between the protected

the NCDOL she “would not activity and the adverse action. See,

win” e.g., Williams v. Newport News Sch.

• June 7: Cooper filed a Bd., No. 4:20-CV-41, 2021 WL

complaint against Fairley for 3674983, at *16 (E.D. Va. Aug. 19,

Fairley’s complaint about 2021) (finding that temporal

unpaid overtime/earned proximity between filing of EEOC

compensatory time-off charge and adverse action was too

• June 7: Cooper and Flora lengthy to demonstrate causation, but

accused Fairley of making false “the temporal proximity between

complaints Plaintiff's internal complaints

• June 7: Flora threatened [January 23, 2017] and the

Fairley’s employment for Defendant's placement of Plaintiff on

advising Page and Williams of administrative leave [February 6,

the alleged unpaid 2017] and involuntary transfer

overtime/earned [March 23, 2017] is sufficient to allow

compensatory time-off the Court to infer causation at this

[motion to dismiss] stage in the

Fairley’s demotion then occurred proceedings.”).

approximately five weeks after she

filed a complaint with HR.

This claim should survive and the not create or expand a [s]tate’s public

City’s motion to dismiss it should be policy.” Time Warner Ent.-

denied. Advance/Newhouse P’ship v.

Carteret-Craven Elec. Membership

C. North Carolina Constitutional Corp., 506 F.3d 304, 314 (4th Cir.

claims. 2007) (alteration and quotation

omitted).

The City next moves to dismiss

Counts Three and Four of the First Article I, Section 1 of the North

Amended Complaint, both premised Carolina Constitution provides in

on the “fruits of their own labor relevant part that “all persons are ...

clause.” The Court should grant the endowed by their Creator with certain

motion as to these counts. inalienable rights,” including “the

enjoyment of the fruits of their own

As this is a state law claim, the Court labor.” N.C. Const. art. I, § 1. The

must predict how the North Carolina North Carolina Supreme Court has

Supreme Court would rule on a noted that “[o]ur Constitution is more

disputed issue of state law. See Twin detailed and specific than the federal

City Fire Ins. Co. v. Ben Amold- Constitution in the protection of the

Sunbelt Beverage Co., 433 F.3d 365, rights of its citizens” and that “[w]e

369 (4th Cir. 2005). The court first give our Constitution a liberal

looks to opinions of that court, see interpretation in favor of its citizens

Stahle v. CTS Corp., 817 F.3d 96, 100 with respect to those provisions which

(4th Cir. 2016) and if there no such were designed to safeguard the liberty

governing opinions, the opinions of and security of the citizens in regard

the North Carolina Court of Appeals, to both person and property.” See

treatises, and “the practices of other Corum v. Univ. of North Carolina,

states.” See Twin City Fire Ins. Co., 413 S.E.2d 276, 290 (N.C. 1992).

433 F.3d at 369 (quotations and

citation omitted). “In predicting how The court has further extrapolated

the highest court of a state would this right to encompass “a public

address an issue, this court must employee’s liberty interest in

‘follow the decision of an intermediate pursuing her chosen profession free

state appellate court unless there is from unreasonable actions of her

persuasive data that the highest court employer.” Tully v. City of

would decide differently.’” Soto v. Wilmington, 810 S.E.2d 208, 214

Town of Rolesville, 729 F. Supp. 3d (N.C. 2018) (referencing Presnell v.

533, 543 (E.D.N.C. 2024) (quoting Pell, 260 S.E.2d 611, 613 (1979)). In

and citing Town of Nags Head v. Presnell, a school employee alleged

Toloczko, 728 F.3d 391, 398 (4th Cir. that the principal fired her based on

2013) and quoting Hicks ex rel. Feiock false allegations, and “while she had

v. Feiock, 485 U.S. 624, 630 & n.8 no cognizable property interest in

(1988)). However, the court “should continued employment, … her

complaint does however sketch a See Soto v. Town of Rolesville, 729 F.

colorable claim that a constitutionally Supp. 3d 533, 544 (E.D.N.C. 2024)

protected ‘liberty’ interest may be at (“This policy is not a promotional

stake. One of the liberty interests policy. It is a discretionary pay policy.

encompassed in the Due Process Thus, Soto cannot use it to seek relief

Clause of the Fourteenth Amendment under Article I, Section 1 [of the North

is the right ‘to engage in any of the Carolina Constitution].”) (internal

common occupations of life,’ citation omitted).

unfettered by unreasonable

restrictions imposed by actions of the Despite Tully’s plain language in this

state or its agencies.” See Tully, 810 regard, Fairley encourages the Court

S.E.2d at 214 (quoting Meyer v. to extrapolate upon it, arguing that

Nebraska, 262 U.S. 390, 399 (1923)). “[a]lthough Tully established the

framework in a promotional context,

The right, however, is “not without nothing in the court’s reasoning

limitation.” See id. at 216. “[T]o state explicitly limits ‘the fruits of their own

a direct constitutional claim grounded labor’ claim to the promotional

in this unique right under the North process only.” See Docket Entry 17, at

Carolina Constitution, a public 17. This is a direct invitation to “create

employee must show that no other or expand a [s]tate’s public policy,”

state law remedy is available and which Fourth Circuit precedent

plead facts establishing three clearly prohibits. See Time Warner

elements: (1) a clear, established rule Ent.-Advance/Newhouse P’ship, 506

or policy existed regarding the F.3d at 314. To the extent that Fairley

employment promotional process insists the North Carolina Court of

that furthered a legitimate Appeals’ decision in Mole v. City of

governmental interest; (2) the Durham, 866 S.E.2d 773 (N.C. Ct.

employer violated that policy; and (3) App. 2021) (Mole I) changes the

the plaintiff was injured as a result of calculus, the North Carolina Supreme

that violation.” See id. Court specifically ordered that it had

no precedential value, see Mole v. City

The City argues that Fairley has not of Durham, 884 S.E.2d 711 (N.C.

met the second prong, that is, the First 2023) (per curiam) (Mole II). And the

Amended Complaint does not allege district court’s suggestion in Akers v.

“a clear, established rule or policy” County of Sampson, No. 7:22-CV-43-

regarding “the employment FL, 2022 WL 16936034, at *7

promotional process.” And indeed, it (E.D.N.C. Nov. 14, 2022), that “failure

does not. While the First Amended to follow ‘pre-disciplinary procedures

Complaint sets forth the City’s . . . designed to further a legitimate

disciplinary policy, see Compl. ¶¶ 76- government interest’” violated Article

77, 94, it is not a promotional process I, Section 1 relied specifically on Mole

and so does not meet the pleading I and was issued in advance of Mole II.

requirements established by Tully.

The North Carolina Supreme Court

had the opportunity to apply this IV. CONCLUSION

clause to pre-disciplinary procedures .

and explicitly passed. Thus, Tully It is therefore RECOMMENDED

remains the standard and its language that the Court grant in part and deny

is clear. Because Fairley has not in part the defendant's Motion to

alleged a violation of a promotional Dismiss, in that the Court should

process, her claims reliant on Article grant in part the Motion to Dismiss as

I, Section 1 of the North Carolina to Counts Three and Four, dismissing

Constitution fail and it is those claims, and otherwise deny the

recommended that they be dismissed. Motion.

Vann Gibson McFadden

United States Magistrate Judge

June 10, 2026

Durham, North Carolina

21