BOONE v. WELLS FARGO BANK, NATIONAL ASSOCIATION

Filing 29

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 6/3/2024; that the Second Motion to Amend (Docket Entry 26 ) is GRANTED IN PART AND DENIED IN PART in that (A) Docket Entry 26 -1 is deemed the operative pleading with Plaintiff's sex discrimination claim stricken under Fed. R. Civ. P. 12(f) and (B) Defendant is ordered to file an answer to said pleading by June 17, 2024. (sh)

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

ADRIENNE BOONE,
Plaintiff,
v.
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
Defendant.

)
)
)
)
)
)
)
)
)

1:22cv51

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s “Second Motion
to Amend Complaint” (Docket Entry 26 (all caps font omitted)). For
the reasons that follow, the Court will grant in part and deny in
part the instant Motion.1
BACKGROUND
Plaintiff commenced this action by filing a Complaint on
January 24, 2022.

(Docket Entry 1 (the “Original Complaint”).)

According to the Original Complaint:

1 For reasons stated in Deberry v. Davis, No. 1:08cv582, 2010
WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010), the undersigned
Magistrate Judge will enter an order, rather than a recommendation,
as to the Motion to Amend. See also Everett v. Prison Health
Servs., 412 F. App’x 604, 605 & n.2 (4th Cir. 2011) (explaining
that, where the plaintiff “moved for leave to amend her
complaint[] . . . to add a state-law claim of medical malpractice,”
“the magistrate judge denied [that] motion,” and the plaintiff
“timely objected, thereby preserving the issue for review by the
district court,” the district court “could not modify or set aside
any portion of the magistrate judge’s order unless the magistrate
judge’s decision was ‘clearly erroneous or contrary to law’”
(citing 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a))).

[Plaintiff] is a black female over the age of 40.
[Plaintiff] began working for Wachovia in 2006. In 2011,
[Plaintiff] was an officer at Wachovia when it was bought
by [Defendant]. [Plaintiff] continued to serve as an
officer for [Defendant] until 2017 when she took a
position as an IFS Associate.
In her role as an IFS
Associate, she performed the duties of an Investment
Management Specialist, but was not salaried and did not
receive Investment Management Specialist pay, bonus[,] or
benefits.
(Id. at

3.)2

As

summarized

in

a

prior

order,

the

Original

Complaint further alleged: “In 2019, [Defendant] terminated an
Investment

Management

Specialist

(“IMS”)[

and]

Plaintiff

assigned that IMS’s clients but did not receive the IMS title.
February

2020,

[Defendant]

posted

an

IMS

Plaintiff applied and was interviewed.”
(internal

citations

omitted).)

Per

the

position

for

was
In

which

(Docket Entry 9 at 2
Original

Complaint,

Plaintiff did not receive the position, as “[t]he position was then
cancelled and left unfilled.”

(Docket Entry 1 at 4.)

Afterwards (as another prior order recounted from the Original
Complaint),
[i]n September 2020, Plaintiff emailed Wells Fargo CEO
Charlie Scharf complaining of race, sex, and age
discrimination. Subsequently, Plaintiff’s accounts were
reduced such that Plaintiff would no longer be eligible
for promotion to the IMS position, should one become
available. In December 2020, Plaintiff filed a charge of
employment discrimination with the EEOC, and Plaintiff
was issued a right to sue letter in October 2021. On
January 24, 2022, Plaintiff filed her complaint in this
[C]ourt alleging race, sex, and age discrimination, as
well as retaliation. Specifically, Plaintiff alleged:

2 Docket Entry page citations utilize the CM/ECF footer’s
pagination.
2

race discrimination for Plaintiff’s non-promotion to the
IMS position in violation of Title VII of the Civil
Rights Act (“Title VII”) and 42 U.S.C. § 1981; sex
discrimination for Plaintiff’s non-promotion to the IMS
position in violation of Title VII; age discrimination
for Plaintiff’s non-promotion to the IMS position in
violation of the Age Discrimination in Employment Act
(“ADEA”); and retaliation in violation of Title VII, 42
U.S.C. § 1981, and the ADEA.
(Docket Entry 16 at 2-3 (internal citations omitted).)
Instead of answering the Original Complaint, Defendant filed
a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”).
Motion

to

Dismiss);

memorandum).)

see

(See Docket Entry 5 (Defendant’s
also

Thereafter, the

Docket

Entry

6

(supporting

Court (per United States District

Judge William L. Osteen, Jr.) granted Defendant’s motion to dismiss
without prejudice as to Plaintiff’s claims of race, sex, and age
discrimination but denied Defendant’s motion as to Plaintiff’s
claims for retaliation.

(See Docket Entry 9 at 13-14 (“Plaintiff

offers only conclusory statements . . . and Plaintiff fails to
allege any facts to plausibly allege that the reason she was not
promoted to IMS Associate was because of her race, sex, or age.”).)
On April 28, 2023, Plaintiff, pursuant to Federal Rule of
Civil Procedure 15 (“Rule 15”), filed a Motion to Amend.

(See

Docket Entry 11; see also Docket Entry 11-1 (the “First Amended
Complaint”).)
“Plaintiff’s
factual

However, the Court (per Judge Osteen) held that
[First

allegations

A]mended
to

state

[C]omplaint
a

3

claim

for

lack[ed]
race,

sufficient

sex,

or

age

discrimination that is plausible on its face” and, accordingly,
“denied [the motion] as futile.”

(Docket Entry 16 at 14.)

In

denying Plaintiff’s First Motion to Amend as futile, Judge Osteen
noted:
Plaintiff does not allege any facts related to the
qualifications required for the IMS position or the
qualifications listed in the job posting . . . . While
this [C]ourt does not require that Plaintiff allege the
qualification of any of the other applicants to the
position, . . . Plaintiff does not allege any facts
describing how she was treated differently than any
similarly situated White applicants. . . .
Plaintiff
fails to allege facts to show how her qualifications
compare[d] to [the current] six [IMSs], nor does
Plaintiff allege any facts which might permit a
reasonable inference as to Plaintiff’s circumstances, or
the alleged discrimination.
(Id. at 12-13 (internal quotation marks, citations, and brackets
omitted).)
Plaintiff now has moved to amend the Original Complaint for a
second time.
“Second

(See Docket Entry 26; see also Docket Entry 26-1 (the

Amended

Complaint”).)

Defendant

has

responded

in

opposition, asserting that the Second Amended Complaint “fails to
cure the defects . . . identified in [Judge Osteen’s] Opinion and
Order granting Defendant’s Motion to Dismiss . . . and [Judge
Osteen’s]

order

Complaint . . . .”

denying

Plaintiff’s

(Docket Entry 27 at 1.)

[First]

Amend[ed]

More specifically,

Defendant maintained that “Plaintiff offers, again, nothing more
than conclusory allegations with respect to her discrimination
claims.”

(Id.)

Plaintiff replied, characterizing the Response as

4

inaccurate due to the additional information provided in the Second
Amended Complaint.

(See Docket Entry 28 at 5-6, 11).
RELEVANT STANDARDS

Given the procedural posture of this case and Defendant’s
refusal of consent, Plaintiff “may amend [her] pleading only
with . . . the [C]ourt’s leave.

The [C]ourt should freely give

leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

Under

this standard, the Court has discretion, “but outright refusal to
grant the leave without any justifying reason appearing for the
denial is not an exercise of discretion.”
U.S. 178, 182 (1962).

Forman v. Davis, 371

The Fourth Circuit has further explained

that leave to amend a pleading should be denied “only when the
amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment
would have been futile.”

Laber v. Harvey, 438 F.3d 404, 426 (4th

Cir. 2006) (internal citation and quotation marks omitted).

“An

amendment is futile if the amended claim would fail to survive a
motion to dismiss pursuant to [Rule] 12(b)(6).”

Hall v. Greystar

Mgmt. Servs., L.P., 637 F. App’x 93, 97 (4th Cir. 2016).
A Rule 12(b)(6) motion “tests the sufficiency of a complaint,”
but “does not 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).

Accordingly, in

reviewing a motion to dismiss, the Court must “accept the facts

5

alleged in the complaint as true and construe them in the light
most favorable to the plaintiff.” Coleman v. Maryland Ct. of App.,
626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom. Coleman v. Court
of App. of Md., 566 U.S. 30 (2012).

The Court must also “draw all

reasonable inferences in favor of the plaintiff.”

E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011) (internal quotation marks and citation omitted).
To avoid Rule 12(b)(6) dismissal, a complaint must contain
sufficient factual allegations “to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.

See id.; Twombly, 550 U.S.

at 556. “Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” Iqbal, 556
U.S. at 678 (internal quotation marks omitted).

The factual

allegations must be sufficient to “raise a right to relief above
the speculative level” so as to “nudge[] the[] claims across the
line from conceivable to plausible.”
570.

Twombly, 550 U.S. at 555,

“At bottom, determining whether a complaint states . . . a

plausible claim for relief . . . will ‘be a context-specific task
that

requires

the

reviewing

court

6

to

draw

on

its

judicial

experience and common sense.’”

Francis v. Giacomelli, 588 F.3d

186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 679).
To satisfy the Twombly/Iqbal plausibility pleading standard,
however,

Plaintiff

need

not

make

out

a

prima

facie

case

of

employment discrimination under any of the burden-shifting proof
schemes developed for such claims.
N.A.,

534

U.S.

506,

515

See Swierkiewicz v. Sorema

(2002)

(holding

“an

employment

discrimination plaintiff need not plead a prima facie case of
discrimination . . . to survive [a] motion to dismiss” because
“[t]he prima facie case . . . is an evidentiary standard, not a
pleading requirement”).
satisfy

the

elements

applicable] statute.”
State

Highway

Instead, Plaintiff must “allege facts to
of

a

cause

of

action

created

by

th[e

McCleary-Evans v. Maryland Dep’t of Transp.

Admin.,

780

F.3d

582,

585

(4th

Cir.

2015).3

“Accordingly, [the Court’s] inquiry is whether [Plaintiff’s Second

3 Here, Plaintiff has alleged discrimination in violation of
Title VII, Section 1981, and the ADEA. (See Docket Entry 26-1 at
7-8.)
Title VII prohibits an employer from “fail[ing] or
refus[ing] to hire or . . . discriminat[ing] against any individual
with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s race.” 42
U.S.C. § 2000e-2(a)(1).
Section 1981 states that “[a]ll
persons . . . have the same right . . . to make and enforce
contracts, to sue, be parties, give evidence and to the full and
equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens.” 42 U.S.C.
§ 1981(a).
The ADEA prohibits an employer from “fail[ing] or
refus[ing] to hire or . . . otherwise discriminat[ing] against any
individual with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individual’s age.” 29
U.S.C. § 623.
7

Amended Complaint] alleges facts that plausibly state a violation
of Title VII[, Section 1981, and/or the ADEA] above a speculative
level.”

Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020)

(internal quotation marks omitted).
ANALYSIS
The

Second

Amended

Complaint

includes

additional

factual

allegations related to Plaintiff’s claims for race, sex, and age
discrimination against Defendant.

Compare Docket Entry 1 at 3-5,

and Docket Entry 11-1 at 3-5, with Docket Entry 26-1 at 3-7.
Plaintiff’s additional allegations provide sufficient facts to
enable her race and age discrimination claims to survive a Rule
12(b)(6) motion to dismiss, but her sex discrimination claims
remain deficient as a matter of law.
In the Second Amended Complaint, Plaintiff alleges Defendant
did not promote her to the IMS position because of unlawful race,
sex, and age discrimination in violation of Section 1981, Title
VII, and the ADEA.
‘guards

generally

workplace.’”

(See Docket Entry 26-1 at 7-8.)
against

race-based

“Section 1981

discrimination

in

the

Marshall v. C & S Rail Servs., LLC, No. 1:19CV986,

2021 WL 1341801, at *6 (M.D.N.C. Apr. 9, 2021) (quoting Lemon v.
Myers Bigel, P.A., 985 F.3d 392, 399 (4th Cir. 2021)); see also 42
U.S.C. § 1981.

Title VII makes it unlawful for an employer to

“discriminate

against

compensation,

terms,

any

individual

conditions,

8

or

with

respect

privileges

of

to

[her]

employment,

because of such individual’s race . . . [or] sex . . . .”

42

U.S.C. § 2000e-2(a)(l); see also, e.g., Carter v. Ball, 33 F.3d
450, 458 (4th Cir. 1994) (discussing legal standard for failure to
promote under Title VII).

“The ADEA prohibits employers from

refusing to hire, discharging, or otherwise discriminating against
any person who is at least 40 years of age because of the person’s
age.” Tickles v. Johnson, 805 F. App’x 204, 206-07 (4th Cir. 2020)
(internal quotation marks and citation omitted); see also 29 U.S.C.
§§ 623(a), 631(a).
Plaintiff attempts to remedy the deficiencies from the First
Amended Complaint (see Docket Entry 16 at 12-14) by alleging “[t]he
required qualifications listed on the [2020 IMS] job posting”
(Docket

Entry

26-1

at

4)

and

describing

the

circumstances

surrounding the promotion of the 29-year-old white female from IFS
to

IMS

(see

id.

at

5-6).

Specifically,

the

Second

Amended

Complaint alleges the following relevant facts:
The required qualifications listed on the [2020 IMS] job
posting [for which Plaintiff applied and interviewed]
were two years of investment support experience, which
[Plaintiff] more than met . . . .
[T]here were six
IMS’s
.
.
.
[including]
a
29-year-old
white
female . . . . [N]one [of the six IMSs] had the industry
experience
or
certifications
that
[Plaintiff]
had . . . [and] at least one had less [experience than
Plaintiff].
The 29-year-old white female’s only
investment support experience was as an IFS, a position
she held with Wells Fargo for less than two years before
she was promoted to IMS.
[Regional Manager David]
Wharton mentored the 29-year-old white female and Wells
Fargo paid for her to get CFP certification, a
certification that Wharton had not told [Plaintiff] was
needed for the position, and that Wells Fargo had not
9

offered to help [Plaintiff] get. The 29-year-old white
female was promoted from IFS to IMS in 2019 without a
position being posted, immediately after she received her
CFP certification.
(Id. at 4-6.)
As previously established, “[P]laintiff need not plead a prima
facie

case

of

discrimination”

Swierkiewicz, 534 U.S. at 515.

at

this

stage

of

the

case.

Rather, Plaintiff must “allege

facts to satisfy the elements of a cause of action created by th[e
applicable] statute.”

McCleary-Evans, 780 F.3d at 585.

To establish her causes of action, in her Original Complaint
and First Amended Complaint, Plaintiff alleged that “she is a
sixty-two-year-old Black female” and “provided factual allegations
concerning her experiences and certifications” relevant to the IMS
position.

(Docket Entry 16 at 10.)

With the Second Amended

Complaint, Plaintiff has supplemented the previously alleged “facts
to plausibly suggest that the reason she was not promoted to IMS
Associate was because of her race . . . or age” (id. at 12).
First, the Second Amended Complaint alleges the “qualifications
listed in the [2020 IMS] job posting” (id. at 13) as “two years of
investment support experience, which [she] more than met” (Docket
Entry 26-1 at 4).

Next, regarding “facts describing ‘how she was

treated differently than any similarly situated white [employees]’”
(Docket Entry 16 at 13 (quoting Nadendla v. WakeMed, 24 F.4th 299,
305-06 (4th Cir. 2022)), the Second Amended Complaint alleges that
Defendant paid for the 29-year-old white female IMS associate to
10

receive additional certification, which the Regional Manager “had
not told [Plaintiff] was needed for the position” (Docket Entry 261 at 5).

Further, according to the Second Amended Complaint,

Defendant “had not offered [the same] help [to Plaintiff].”

(Id.)

Finally, the Second Amended Complaint alleges that the 29-year-old
white

female

received

her

promotion

to

the

IMS

position

“immediately after she received [the new] certification” (id. at
6), without going through a job-posting process (see id.).
These additional allegations provide “facts which suggest that
[Plaintiff] had sufficient [qualifications] to fully secure a[n IMS
position]”

and

an

“example[]

of

how

[Defendant]

has

treated

nonminority [employees] differently,” Woods v. City of Greensboro,
855 F.3d 639, 648 (4th Cir. 2017).

See Brown v. Target Inc., No.

14-CV-0950, 2015 WL 6163609 at *6-7 (D. Md. Oct. 16, 2015) (“[The
plaintiff]

has

alleged

facts

sufficient

claim . . . from conceivable to plausible. . . .
alleges

.

.

.

[the

defendant]

to

nudge

her

[The plaintiff]

promoted

younger,

white . . . associate[s] . . . [before the defendant] posted [the]
position[s] . . . .

[The plaintiff] maintains that she was clearly

more qualified[ and] more experience[d] . . . than the individuals
who

were

selected

and

promoted.”

(internal

quotation

marks

omitted)); see also Pouncey v. Guilford Cnty., No. 1:18cv1022, 2020
WL 1274264 at *9 (M.D.N.C. Mar. 17, 2020) (“[The p]laintiff has
alleged enough facts to raise her right to relief above the

11

speculative level. . . .
with

less

experience

[T]he only other candidate was someone
and

less

time

employed

with

[the

defendant] . . . . [T]hat employee was allegedly afforded training
that was denied to [the p]laintiff . . . .
enough at this stage.”).

These allegations are

Indeed, in discussing Swierkiewicz, the

Fourth Circuit indicated that such allegations would suffice to
state a claim. See McCleary-Evans, 780 F.3d at 586 (distinguishing
the plaintiff’s failure to state a claim from allegations in
Swierkiewicz by nothing that, in said Supreme Court case, the
plaintiff “alleged specifically that the new chief underwriting
officer

was

‘less

experienced

and

less

qualified’

for

the

position . . . [with] ‘only one year of underwriting experience at
the time he was promoted,’ whereas [the plaintiff there] ‘had 26
years of experience in the insurance industry’” and adding that
“this last detail is precisely the kind of allegation that is
missing

from

[the

instant

plaintiff’s]

complaint”

(quoting

Swierkiewicz, 534 U.S. at 508)).
In light of the foregoing authority, the Second Amended
Complaint’s

new

allegations,

including

(1)

the

listed

qualifications for the 2020 IMS job posting, (2) Plaintiff’s
qualifications in comparison with the qualifications of the newly
promoted 29-year-old white female IMS, and (3) the situation
surrounding the promotion of the 29-year-old white female IMS,
specifically that (i) Defendant provided the 29-year-old white

12

female with an opportunity to receive additional certification,
(ii) Defendant did not offer Plaintiff the same certification
opportunity,

(iii)

Defendant

told

Plaintiff

the

additional

certification was not necessary, and (iv) without a public job
posting, Defendant promoted the 29-year-old white female to the IMS
position

immediately

after

her

completion

of

the

additional

certification, taken together provide sufficient factual matter to
“nudge [Plaintiff’s race and age discrimination] claims across the
line from conceivable to plausible,” Twombly, 550 U.S. at 570.
However, the supplemental allegations provided in the Second
Amended Complaint remain insufficient as to Plaintiff’s claims of
sex discrimination. The Second Amended Complaint lacks any factual
allegations “which might permit a reasonable inference [of sex
discrimination].”

(Docket Entry 16 at 13.)

Plaintiff’s example

regarding the treatment of the 29-year-old white female IMS agent
in comparison to her own “does not provide factual support of [sex]
discrimination

specific

to

Plaintiff.”

(Id.)

Consequently,

Plaintiff’s sex discrimination claim cannot proceed, as it “would
fail to survive a motion to dismiss for failure to state a claim
[for sex discrimination] pursuant to [Rule] 12(b)(6).”

Syngenta

Crop Prot., Inc. v. E.P.A., 222 F.R.D. 271, 278 (M.D.N.C. 2004).

13

CONCLUSION
Plaintiff’s
factual

Second

allegations

Amended

to

state

Complaint

contains

a

for

claim

sufficient

race

and

age

discrimination, but not a claim for sex discrimination.
IT IS THEREFORE ORDERED that the Second Motion to Amend
(Docket Entry 26) is GRANTED IN PART AND DENIED IN PART in that
(A) Docket

Entry

26-1

is

deemed

the

operative

pleading

with

Plaintiff’s sex discrimination claim stricken under Fed. R. Civ.
P. 12(f) and (B) Defendant is ordered to file an answer to said
pleading by June 17, 2024.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 3, 2024

14