CHERRY, et al v. THE CITY OF GREENSBORO

Filing 15

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 02/04/2013, that the City's motion to dismiss the Plaintiffs' Title VII disparate treatment claims (Doc. 8 ) is GRANTED without prejudice as to Plaintiff Cherr y, who shall have twenty days within which to file any amended complaint to cure the defects noted herein; GRANTED with prejudice as to Plaintiff Pryor; and DENIED as to Plaintiff Reyes. FURTHER that the City's motion to dismiss the Plaintiffs' equal protection claims (Doc. 8 ) is GRANTED as to Plaintiff Pryor and DENIED as to Plaintiff Reyes.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHARLES E. CHERRY, JOSEPH L.
PRYOR, AND ROBERT REYES,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
CITY OF GREENSBORO,
Defendant.

12-cv-217

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This

is

an

employment

action

by

Plaintiffs

Charles

E.

Cherry (“Cherry”), Joseph L. Pryor (“Pryor”), and Robert Reyes
(“Reyes”)

(collectively,

“Plaintiffs”)

against

the

City

of

Greensboro (“City”) arising out of their employment as officers
of the Greensboro Police Department (“GPD”).

All Plaintiffs

allege disparate treatment and retaliatory discharge pursuant to
Title VII of the Civil Rights Act of 1964 (as amended), 42
U.S.C.

§

violations

2000e

et

pursuant

seq.
to

(“Title
42

VII”),

U.S.C.

§

and

1983

equal

protection

(“section

1983”).

Before the court is the City’s motion to dismiss the disparate
treatment and equal protection claims pursuant to Federal Rule
of

Civil

Procedure

12(b)(6).

(Doc.

8.)

argument on the motion on January 15, 2013.

The

court

heard

For the reasons set

forth

below,

the

City’s

motion

will

be

granted

in

part

and

denied in part.
I.

BACKGROUND
The complaint, construed in the light most favorable to the

Plaintiffs, the non-movants, alleges the following:
Cherry is a former GPD captain, and Pryor and Reyes are
former

GPD

line

officers.

Cherry

and

Pryor

are

African-

American, and Reyes is Hispanic (his ancestors are from Puerto
Rico).

(Doc. 1 (Complaint (“Compl.”)) ¶¶ 6-8.)

Sometime after

2005, Cherry and Pryor filed charges of discrimination with the
Equal

Employment

Opportunity

Commission

(Id. ¶ 14.) 1

racially hostile work environment.
filing

of

additional

these

charges,

grievances

Cherry

against

helped

the

City

racial and national origin discrimination.
Thereafter,

Cherry

was

(“EEOC”),

required

Pryor

alleging

a

Following the
and

arising

Reyes

from

file

alleged

(Id. ¶ 16.)
by

his

participate in the GPD Employee Assistance Program.

superiors

to

(Id. ¶ 22.)

Cherry contends that the reason given for this requirement that he had engaged in an inappropriate exchange with another
officer - was pre-textual.
administrative

duty

and

(Id.)

required

1

Cherry was later placed on
to

undergo

a

psychological

Cherry and Pryor are pursuing their hostile work environment claims
in the related case of Alexander v. City of Greensboro, Case No. 1:09cv-934 (M.D.N.C.), pending in this court.

2

evaluation because of the number of complaints he had made and
grievances he had filed over a short time period.
He

was

cleared

to

return

to

duty

but

(Id. ¶ 25.)

was

placed

on

administrative leave without pay for rule violations (id. ¶ 2527) and terminated on August 30, 2010 (id. ¶ 27).
In 2009, the GPD investigated Pryor administratively and
criminally for allegedly kicking a suspect during a chase, even
though

injuries

Pryor

sustained

in

apprehending

physically prevented any ability to kick him.
white

officers

although

they

(Id.)

The

involved
stated

GPD

in

the

chase

were

never

touched

determined

that

the

sustained,” and later, “unfounded.”

suspect

(Id. ¶ 17.)

Pryor

that

the

never

charged,

the

allegations

The

suspect.

were

(Id. ¶ 18, 30.)

“not
Pryor

filed grievances with the City related to this incident and was
terminated on October 7, 2010, on the ground that he lied about
signing a document related to the investigation.
In

2009,

Reyes

reported

witnessing

excessive force against a suspect.

a

(Id. ¶ 30.)

white

(Id. ¶ 19.)

officer

use

Reyes claims

that, as punishment for reporting this, he was required to ride
with a white police officer, received a negative evaluation, and
had disciplinary memos placed in his file.
grievances
gossip

with

and

suspended

the

City,

untruthfulness.

without

pay,

but

he

was
(Id.

the
3

(Id.)

investigated
¶

32.)

suspension

After filing
for

Reyes
was

malicious
was

reduced

then
to

a

division-level

reprimand.

(Id.)

Reyes

was

terminated for insubordination on May 2, 2011.

subsequently

(Id. ¶ 33.)

Plaintiffs filed this action on March 2, 2012, alleging
that their race (Cherry and Pryor) and national origin (Reyes),
as well as the City’s retaliation for the Plaintiffs’ engagement
in activity protected by Title VII, were the true motivations
for their termination.
II.

ANALYSIS
Pursuant

to

Federal

Rule

of

Civil

Procedure

8(a)(2),

a

complaint must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

While the

complaint need only “give the defendant fair notice of what the
.

.

.

claim

is

and

the

grounds

upon

which

it

rests,”

the

plaintiff’s pleading obligation “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (internal quotations omitted).
When a court considers a Rule 12(b)(6) motion, the purpose
is

to

“test[]

the

sufficiency

of

a

complaint”

and

not

to

“resolve contests surrounding the facts [or] the merits of a
claim.”

Republican Party of N.C. v. Martin, 980 F.2d 943, 952

(4th Cir. 1992).
factual

allegations

The court “must accept as true all of the
contained

in

the

complaint,”

Erickson

v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all reasonable
4

inferences must be drawn in the plaintiff’s favor, Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997).
protects
factual

against

meritless

allegations

“to

litigation

raise

a

by

right

Rule 12(b)(6)

requiring
to

relief

sufficient
above

the

speculative level,” Twombly, 550 U.S. at 555, so as to “nudge[]
the[] claims across the line from conceivable to plausible,” id.
at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009).
Employment
pleading

discrimination

standard,

employment

see

claims

Twombly,

discrimination

550

complaint

carry

U.S.

need

no

at

not

heightened

569-70,
contain

and

an

specific

facts establishing a prima facie case, Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510-11 (2002); see also Chao v. Rivendell
Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005).

Yet the Fourth

Circuit has not interpreted Swierkiewicz as removing the burden
of

a

plaintiff

to

plead

elements of his claim.

facts

sufficient

to

state

all

the

Bass v. E.I. DuPont de Nemours & Co.,

324 F.3d 761, 764-65 (4th Cir. 2003) (holding that the plaintiff
failed to allege facts sufficient to support all the elements of
her hostile work environment claim); see also Jordan v. Alt.
Res. Corp., 458 F.3d 332, 346-47 (4th Cir. 2006) (affirming the
dismissal
because

of
the

a

discrimination

complaint

did

claim

not

under

allege

42

facts

U.S.C.

§

supporting

1981
the

assertion that race was a motivating factor in the plaintiff’s
termination).
5

Disparate Treatment Claims 2

A.

1.

Plaintiff Cherry

To state a prima facie case of disparate treatment under
Title VII, a plaintiff must allege membership in a protected
class,

satisfactory

action,

and

job

different

performance,
treatment

an
from

employees outside the protected class.

adverse

employment

similarly-situated

Coleman v. Md. Court of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010).

The City moves to

dismiss

ground

Cherry’s

complaint

fails

Title
to

VII

allege

claim
facts

on

the

that

that

the

similarly-situated

employees outside the protected class received more favorable
treatment.
The only allegation in the complaint on this point states
that senior white officers engaged in misconduct more serious
than that engaged in by Cherry and yet were not disciplined or
not disciplined as severely.

(Doc. 1 (Compl.) ¶ 28.)

This is

no more than a mere recital of an element of the cause of action
and

is

insufficient

to

survive

a

motion

to

dismiss.

See

Coleman, 626 F.3d at 191 (granting motion to dismiss where the

2

The City argues that any effort to construe Plaintiffs’ claims as
alleging discriminatory discharge fails for lack of any assertion that
Plaintiffs were replaced by individuals outside their protected class.
See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (showing the
position was filled from outside the protected class is an element of
a prima facie case for discriminatory discharge). Plaintiffs concede
that they disavow any discriminatory discharge claims (Doc. 11 at 7)
and reaffirmed this position at the hearing on the motion.

6

plaintiff only identified that a specific white co-worker had
similar

“outside

business

involvements”

as

the

terminated

plaintiff).
Cherry has attempted to bolster his claim by alleging that
GPD Captain Janice Rogers violated the privacy of the employee
personnel

records

of

GPD

officer

Frances

offense) but received no discipline.
an

“EEOC

Complaint

(Charles

E.

Banks

(a

criminal

This allegation comes from

Cherry)

Continuation

Sheet”

attached to Plaintiffs’ response brief (Doc. 11, Ex. 1).

The

document is dated January 31, 2011, yet Cherry’s EEOC charge was
not signed and filed until February 15, 2011.

(Id.)

Although a

court can consider an EEOC charge without converting a motion to
dismiss into one for summary judgment, Cherry has gone beyond
the EEOC charge.

See Brown v. Inst. for Family Centered Servs.,

394 F. Supp. 2d 724, 729 n.2 (M.D.N.C. 2005) (although court
could consider an EEOC charge for a motion to dismiss, it could
not consider the plaintiff’s entire EEOC file); cf. Dawson v.
Shinseki, No. 3:11-700-MBS, 2012 WL 909665, at *4 (D.S.C. Mar.
16,

2012)

(finding

that

a

motion

to

dismiss

was

in

fact

converted to a motion for summary judgment when the defendant
submitted additional documents from the administrative record as
well as a termination letter).
The

court

is

therefore

left

only

with

allegation made in paragraph 28 of the complaint.
7

the

general

Because that

is insufficient, the City’s motion to dismiss Cherry’s disparate
treatment claim will be granted.

See Curry v. Philip Morris

USA, Inc., No. 3:08cv609, 2010 WL 431692, at *3 (W.D.N.C. Feb. 4,
2010)

(granting

motion

to

dismiss

when

plaintiff

did

not

“describe the alleged misconduct for which [other] individuals
received no disciplinary action”).
2.

Plaintiff Pryor

Pryor claims that a GPD investigation arising out of his
alleged kicking of a suspect during an arrest was motived by
race.

The City argues that Pryor has failed to allege that

similarly-situated

officers

outside

the

protected

class

were

treated differently and, in any event, the investigation fails
to constitute an adverse employment action.
Unlike Cherry, Pryor does point to a specific comparator
incident

involving

similarly-situated

other

officers

employees

outside

were treated differently.

whom
the

he

alleges

protected

class

were
but

(Doc. 1 (Compl.) ¶ 17 (alleging that

two white officers used physical force with a suspect and were
not investigated, while he was investigated for allegedly doing
so).)

But assuming without deciding that this suffices to meet

the similarly-situated prong, the City is correct that Pryor has
failed

to

allege

that

he

was

the

victim

of

an

“adverse

employment action,” an essential element of a prima facie case

8

of disparate treatment under Title VII.

Coleman, 626 F.3d at

190.
According to Plaintiffs, the adverse employment action in
this

case

was

“the

discriminatory

treatment

Plaintiff

Pryor

received during the course of the investigation and after he
filed a grievance to get the initial ruling by GPD changed from
‘not sustained’ to ‘unfounded.’”

(Doc. 11 at 11.)

According to

Pryor, the officer charged with investigating him attempted to
conceal the fact that two white officers actually struck the
suspect and that the former police chief failed to investigate
Pryor’s allegations against the investigating officer.

(Doc.

11, Ex. 2 (Pryor’s EEOC charge).)
In Alexander v. City of Greensboro, this court found that
an

investigation

employment
allege

by

action,

that

any

the

GPD

did

particularly
concrete

not

where

constitute
the

investigative

an

plaintiff
findings

adverse
did

were

not
made

against him that he wanted cleared or for which he received any
reprimand.

762

F.

Supp.

2d

764,

798

(M.D.N.C.

2011).

Similarly, in this case, the only concrete findings made during
the

investigation

at

issue

were

that

the

allegations

declared “not sustained” and then “unfounded.”
¶

18.)

Pryor

does

not

allege

that

as

were

(Doc. 1 (Compl.)
a

result

of

the

investigation any disciplinary measures were taken against him.
Further, Plaintiffs cite no authority for the proposition that
9

discriminatory

treatment

during

an

investigation

under

these

circumstances constitutes an adverse employment action, and the
court is aware of none.

Cf. Boone v. Goldin, 178 F.3d 253, 255

(4th Cir. 1999) (noting that typical adverse employment actions
include “discharge, demotion, decrease in pay or benefits, loss
of

job

title

or

supervisory

responsibility,

opportunities for promotion”). 3

or

reduced

Accordingly, the City’s motion

to dismiss Pryor’s disparate treatment claim will be granted.
3.
Reyes
malicious

Plaintiff Reyes
claims

that

he

gossip

and

untruthfulness

insubordination

when

other

(Doc. 1 (Compl.) ¶¶ 32-34.)

was

suspended

without

and

non-Hispanic

pay

for

terminated

employees

were

for
not.

The City argues that Reyes fails to

satisfy the “similarly situated” prong as to his claim.

It

contends that the only allegation in the complaint to support
this

claim

is

contained

in

paragraph

34,

which

states,

generally, that “[s]imilarly situated employees of the GPD who
were not black or Hispanic were not subjected to the unfounded
disciplinary
ultimately

actions,

termination

adverse

employment

described

herein.”

3

consequences
Plainly,

this

and
is

Plaintiffs also argue that the “discriminatory investigation
ultimately led to Plaintiff Pryor’s termination,” whereas “similarly
situated white officers [] found responsible for significantly more
serious violations of departmental policy” were not terminated. (Doc.
11 at 11.)
This argument does not save Pryor’s claim because, as
previously noted, he has expressly disavowed any discriminatory
discharge claim.

10

nothing more than a threadbare recital of an element of the
cause of action.
Reyes points further to his EEOC charge, and specifically
to an allegation that Assistant GPD Chief Crotts (“Crotts”) is
recorded

on

confidential

YouTube,

an

personnel

Internet

information

video
about

site,

Cherry

divulging
and

giving

instructions to another officer about what evidence is needed to
terminate

Reyes,

yet

no

investigation

action was taken against Crotts.

or

adverse

employment

(See Doc. 11, Ex. 3 (Reyes

EEOC charge).)
As noted previously, the court can rely on the allegations
contained in the EEOC charge to supplement the complaint for
purposes of a motion to dismiss.

While the specific allegation

Reyes identified in his brief is not sufficient, 4 Reyes pointed
at

oral

argument

to

allegations

regarding

individuals contained in his EEOC charge.
charge

identifies

committed

white

violations

officers

related

suspended without pay.

to

who

similarly-situated

Specifically, Reyes'

were

alleged

untruthfulness

but

to

have

were

not

For example, “Betsey Colby-Strader, a

4

Specifically, Reyes fails to allege that he and Crotts are similarly
situated – Reyes and Crotts have different ranks, the offenses at
issue do not appear comparable, and there is no allegation that Crotts
is outside the protected class.
See Cepada v. Bd. of Educ. of
Baltimore Cnty., 814 F. Supp. 2d 500, 513 (D. Md. 2011) (dismissing
ADEA disparate treatment claim when plaintiff did not allege that he
and another employee who was not disciplined “had the same supervisor
or were subject to the same standard of conduct”).

11

white female police officer, was alleged to have been untruthful
regarding

hours

investigated

but

that
she

she
was

worked.
not

The

requested

allegations

to

take

a

examination and she was not suspended without pay.”
Ex. 4 at 3.)

were

polygraph
(Doc. 11,

Similarly, “Detective Corey Flowers, white male,

lied under oath during a court proceeding.

He was investigated

for untruthfulness but never requested to take a polygraph exam
nor

was

he

suspended

without

pay.”

(Id.)

Because

these

allegations point to line officers outside the protected class
who

were

investigated

for

untruthfulness

but

not

suspended

without pay like Reyes, they are sufficient at this stage to
survive a motion to dismiss.

See Glaser v. Levitt,

No. 98 C

210, 1998 WL 684207, at *5 (N.D. Ill. Sept. 23, 1998) (finding
that

plaintiff’s

claim

survived

a

motion

to

dismiss

when

he

alleged that non-orthodox Jewish employees with the same job
title and grade, but with fewer qualifications, were promoted).
Accordingly, the City’s motion to dismiss Reyes’ disparate
treatment claim will be denied.
B.

Equal Protection Claims

The City also moves to dismiss the second claim for relief
that

alleges

violations

of

Plaintiffs’

constitutional

(equal protection) pursuant to section 1983.

The City’s motion

addresses only the claims of Plaintiffs Pryor and Reyes.
8.)

rights

(Doc.

Invoking the maxim that justice is invoked, not dispensed,
12

the court will do likewise here and only consider the motion to
dismiss as to those two Plaintiffs.
The

elements

defendant

of

“deprived

Constitution

and

a

section

plaintiff

laws

of

1983
of

the

claim

a

are

United

(1)

the

secured

right

that

by

the

(2)

the

States,”

and

deprivation was performed under color of state law.

Philips v.

Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

To

state a prima facie case of race discrimination under section
1983, a plaintiff must establish the same elements as required
by

a

disparate

Dubberly,

210

treatment
F.3d

claim

1334,

under

1338

Title

(11th

VII.

Cir.

Abel

2000)

v.

(citing

Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir.
1995), which recognized that Title VII and section 1983 claims
have the same elements when the claims are based on the same set
of facts).
To

establish

plaintiff
liability.

must

municipal
demonstrate

liability
more

under

than

section

respondeat

1983,

a

superior

Monell v. Dep’t of Soc. Servs. of the City of New

York, 436 U.S. 658, 693 n.7 (1978).

A plaintiff must show (1)

an official policy or custom (2) that is fairly attributable to
the municipality (3) that proximately caused the deprivation of
a constitutional right.

Pettiford v. City of Greensboro, 556 F.

Supp. 2d 512, 530 (M.D.N.C. 2008).
must

show

that

the

officials
13

Additionally, the plaintiff
or

employees

at

issue

had

policymaking authority such that their acts constitute municipal
policy.

Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).

To support their claim under section 1983, Plaintiffs point
to the following allegation in the complaint:
of

Greensboro

acted

through

its

managers

“Defendant City

and

policymakers,

including its Chief of Police and City Manager, and the acts,
decisions, edicts, and practices of those persons represent the
official policies of the City of Greensboro.”
¶ 11.)

(Doc. 1 (Compl.)

This allegation suffers from two problems.

First,

this

allegation

is

merely

vague

boilerplate

and

fails to set forth facts to make a cognizable claim plausible.
Second, the Fourth Circuit has held that under the applicable
City ordinance,
policymaking

only

the

authority

relations in the City.

City

and

respect

with

Manager

to

City

Council

have

employer-employee

Greensboro Prof. Fire Fighters Ass’n,

Local 3157 v. City of Greensboro, 64 F.3d 962, 965 (4th Cir.
1995); Greensboro, N.C., Ordinances §§ 21-2, 21-2 (vesting the
City

Manager

with

authority
and

to

to

carry

establish
out

the

and

administer

intent

of

the

all

personnel

programs

City

Council).

Thus, to the extent Plaintiffs premise liability on a

decision by the GPD Chief of Police, it is not cognizable.
In response to the inadequate allegations of the complaint
and noting that under Pembaur v. City of Cincinnati, 475 U.S.
469,

480

(1986),

“municipal

liability
14

may

be

imposed

for

a

single

decision

by

municipal

policymakers

under

appropriate

circumstances,” Plaintiffs point further to information in the
EEOC charges:

Reyes’ EEOC charge alleges that he appealed his

grievance of racial discrimination and retaliation to the City
Manager, who reviewed the grievance and found no discrimination
(Doc. 11, Ex. 4 (Reyes First EEOC charge)); Pryor’s EEOC charge
alleges

that

Pryor

appealed

his

grievance

of

racial

discrimination and retaliation to the City Manager, who referred
it

to

the

Assistant

City

Manager,

who

found

no

evidence

of

discrimination (Doc. 11, Ex. 2 (Pryor EEOC charge)) and that the
City Manager terminated Pryor for lying about signing a document
(id.).
As an initial matter, Plaintiffs’ reliance on any appeal to
the

City

Manager

as

to

their

alleged

retaliatory

claims cannot support their section 1983 claim.

discharge

This is because

“a pure or generic retaliation claim . . . simply does not
implicate

the

Equal

Protection

Clause.”

Edwards

v.

City

of

Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (quoting Watkins v.
Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997)).
As noted, the court can properly consider the information
in the EEOC charge without converting a motion to dismiss into
one for summary judgment.

Brown, 394 F. Supp. 2d at 729 n.2.

The City maintains, however, that Plaintiffs have still failed
to plausibly allege that the City Manager made any different
15

decisions with respect to similarly-situated employees and that,
in any event, there is no plausible basis for concluding that
the

City

Manager’s

discrimination.

decision

was

the

result

of

purposeful

At the hearing on the motion, the City also

argued that there must be some evidence that the City Manager’s
decision reflected City policy.
To be sure, “[t]o succeed on an equal protection claim, a
plaintiff

must

first

demonstrate

that

he

has

been

treated

differently from others with whom he is similarly situated and
that

the

purposeful

unequal

treatment

discrimination.”

648, 654 (4th Cir. 2001).

was

the

result

Morrison

v.

of

intentional

Garraghty,

239

or

F.3d

Plaintiffs are obliged to support

their section 1983 claim with sufficient facts demonstrating a
constitutional deprivation.

Schultea v. Wood, 47 F.3d 1427,

1433 (5th Cir. 1995).
In Pembaur, the Supreme Court held that a single decision
by a county prosecutor, acting as the final decisionmaker, to
direct county deputies to forcibly enter the petitioner’s place
of business to serve capiases 5 could render the county liable
under section 1983.

475 U.S. at 484-85.

In so holding, the

Court stated that “municipal liability under § 1983 attaches

5

A “capias is a writ of attachment commanding a county official to
bring a subpoenaed witness who has failed to appear before the court
to testify and to answer for civil contempt.” 475 U.S. at 472 n.1.

16

where – and only where – a deliberate choice to follow a course
of

action

is

made

from

among

various

alternatives

by

the

official or officials responsible for establishing final policy
with respect to the subject matter in question.”
Since

Pembaur,

decision

need

the

Supreme

not

reflect

applicable rule.”
Brown,

520

U.S.

Court

has

Id. at 483.

clarified

implementation

that

of

a

such

a

“generally

Bd. of the Cnty. Comm’rs of Bryan Cnty. v.
397,

406

(1997)

(noting

that

the

Court

has

recognized a cause of action under section 1983 for a single
decision by a municipal policymaker where “fault and causation
were obvious in each case [and] proof that the municipality’s
decision was unconstitutional would suffice to establish that
the

municipality

itself

was

liable

for

the

plaintiff’s

constitutional injury”).
The Fourth Circuit applied Pembaur in Edwards, 178 F.3d
at 245, and reversed the district court’s dismissal of a police
officer’s section 1983 claim, finding that allegations that the
city manager reviewed and upheld the chief of police’s decision
to deny the officer an opportunity to teach a concealed handgun
course

were

Monell.
and

city

sufficient

to

avoid

a

motion

to

dismiss

under

In Edwards, the plaintiff alleged that the police chief
manager

similarly-situated

had

“condoned

employees

those imposed on the plaintiff.

and

without

ratified”
sanctions

Id. at 239-40.
17

actions
as

of

severe

ten
as

Edwards was decided before Twombly and Iqbal, but there is
no contention that the latter render the former infirm. 6
light

of

Plaintiff
contention
treatment.

Edwards,
Reyes’
of

therefore,
allegations

City

Pryor’s

this
fail

liability
claim

does

court
to

cannot

make

say

plausible

for

his

alleged

not

fare

as

well,

In
that
his

disparate
however.

Because Pryor has failed to allege that he is the victim of an
adverse employment action, his constitutional claim should be
dismissed as to him. 7

See

Williams v. New York City Housing

Auth., 335 F. App'x 108, at *2 (2nd Cir. 2009) (noting that an

6

Edwards acknowledged the standard that a motion to dismiss should be
granted unless “it appears certain that the plaintiff cannot prove any
set of facts in support of his claim” for relief.
178 F.3d at 244.
Twombly described this articulation of the standard as “best forgotten
as an incomplete, negative gloss on an accepted pleading standard.”
550 U.S. at 563. Edwards also went further, however, to acknowledge
that dismissal would not be warranted “unless it appears to a
certainty that the plaintiff would not be entitled to relief under any
legal theory which might plausibly be suggested by the facts alleged.”
178 F.3d at 244 (internal quotations and citation omitted). The City
has not argued that the analysis and conclusion of Edwards would not
withstand the Iqbal/Twombly standard, and the court therefore declines
to engage in that examination here.
7

Pryor’s claim suffers from another defect. He alleges in his EEOC
charge that the City Manager never reviewed and ruled on his appeal of
his grievance but rather delegated authority to the Assistant City
Manager to review it. (Doc. 11, Ex. 2.) There is no indication that
the City Manager delegated policymaking authority for the City.
See
Greensboro Prof. Fire Fighters Ass’n, 64 F.3d at 965-66 (indicating
that policymaking authority can be delegated, but decisionmaking
authority, even if final on an issue, is not necessarily policymaking
authority).
Thus, because the City ordinance limits policymaking
authority to the City Manager, Pryor’s allegations fail to make a
section 1983 claim against the City plausible.

18

adverse

employment

action

is

required

for

section

1983

liability).
C.

Amendment

Plaintiffs did not move formally to amend their complaint,
but the issue was raised during the hearing on their motion.
Federal Rule of Civil Procedure 15(a) provides that leave
to amend should be liberally granted “when justice so requires.”
Leave need not be granted when, among other reasons, it would be
futile.

Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en

banc).
The
believe

court
they

amendment.
counsel

inquired
could

As

argued

to

at

remedy
the

that

the
their

disparate
she

hearing

whether

pleading

defects

treatment

believes

she

Plaintiffs

claims,
has

through
Cherry’s

evidence

of

comparators, based on information contained in the EEOC file.
The court will therefore grant Cherry twenty days within which
to file any motion to amend his allegations.
claims,

it

is

apparent

that

any

attempt

to

As to Pryor’s
amend

would

be

futile, because he has not suffered an adverse employment action
that could be the basis of any claim.

See supra Part II.A.2.

Therefore, leave to amend his disparate treatment and section
1983 claims will not be granted.

19

III. CONCLUSION
For the reasons set forth above,
IT

IS

ORDERED

that

the

City’s

motion

to

dismiss

the

Plaintiffs’ Title VII disparate treatment claims (Doc. 8) is
GRANTED without prejudice as to Plaintiff Cherry, who shall have
twenty days within which to file any amended complaint to cure
the defects noted herein; GRANTED with prejudice as to Plaintiff
Pryor; and DENIED as to Plaintiff Reyes.
IT IS FURTHER ORDERED that the City’s motion to dismiss the
Plaintiffs’ equal protection claims (Doc. 8) is GRANTED as to
Plaintiff Pryor and DENIED as to Plaintiff Reyes.

/s/
Thomas D. Schroeder
United States District Judge
February 4, 2013

20