BARNES v. QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC.

Filing 12

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 03/24/2024, that Defendant's Motion to Dismiss, (Doc. 8 ), is GRANTED. FURTHER ORDERED that Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE. A Judgment dismissing this action with be entered contemporaneously herewith. (al)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RONITA BARNES,
Plaintiff,
v.
QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC.,
Defendant.

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1:22-cv-736

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Before this court is Defendant’s Motion to Dismiss
Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 8.) For the reasons stated herein,
Defendant’s Motion to Dismiss will be granted.
I.

FACTUAL BACKGROUND
On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint and draw all
reasonable inferences in favor of the plaintiff.” Ray v. Roane,
948 F.3d 222, 226 (4th Cir. 2020) (cleaned up). The facts, taken
in the light most favorable to Plaintiff, are as follows.
Ronita Barnes (“Plaintiff”) began working for Quest
Diagnostics Clinical Laboratories, Inc. (“Defendant”) on
March 19, 2019, as a Physician Account Executive. (Compl. and

Jury Request (“Compl.”) (Doc. 1) ¶ 9.)1 Plaintiff’s job included
“establish[ing] new business” for Defendant and “upsell[ing]
accounts for different kinds of lab work.” (Id. ¶ 10.) Plaintiff
“brought in millions of dollars worth of new business and
received praise from both existing clients and new accounts.”
(Id. ¶ 14.) Plaintiff is a Black woman. (Id. ¶ 8.)
Plaintiff worked with Account Manager Vicki Hudson
(“Hudson”), who managed the accounts Plaintiff brought in. (Id.
¶ 12.) Jack Delia (“Delia”) was Plaintiff’s supervisor. (Id.
¶ 15.) Delia and Hudson are White. (Id. ¶¶ 12, 15.) Plaintiff is
“the only [B]lack employee in her territory.” (Id. ¶ 11.)
Plaintiff alleges several facts about her relationship with
Delia and Delia’s relationship with Hudson. Plaintiff alleges
that Delia was “angered” by Plaintiff’s success, and “constantly
put [Plaintiff] down.” (Id. ¶ 15.) “Meanwhile, Delia praised
Hudson for her work, even though Hudson frequently made mistakes
and ignored Delia’s direct orders.” (Id. ¶ 16.) “Hudson often
failed to complete assigned tasks and messed up accounts that
[Plaintiff] started.” (Id. ¶ 13.)

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
1

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“In July 2021, Delia wrote [Plaintiff] up for not getting
along well enough with Hudson,” but “Hudson did not get written
up for not getting along with [Plaintiff].” (Id. ¶¶ 19, 20.)
Delia also wrote Plaintiff up “because he mistakenly though
[sic] [Plaintiff] told a client something she had not.” (Id.
¶ 19.) Plaintiff “urged Delia to listen to the recording of the
customer conversation that Delia was writing her up for, but
Delia refused and wrote her up anyway.” (Id. ¶ 21.) The write up
itself “contained numerous additional alleged problems Delia had
never mentioned [prior].” (Id. ¶ 22.) After the July write up,
“Delia began intentionally interfering with [Plaintiff’s]
ability to onboard new accounts by telling IT not to set up
interfaces for them,” which “directly prevented [Plaintiff] from
making more money.” (Id. ¶ 23.) In October 2021, Plaintiff
“spoke to HR about Delia, but nothing was done.” (Id. ¶ 24.)
Additionally, Plaintiff “worked with [Defendant’s] African
American Business Leadership Program, a nation-wide program for
[Defendant’s] employees.” (Id. ¶ 17.) However, at an unspecified
time, Delia told the Program “not to talk to [Plaintiff]
anymore.” (Id. ¶ 18.)
On December 6, 2021, Delia fired Plaintiff a week before
Plaintiff was due to receive a large commission for a new
business she had brought in. (Id. ¶¶ 25, 28.) Delia told
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Plaintiff she was terminated because “in June 2021, prior to her
one write-up, she had sent him an [sic] calendar invitation to a
site visit for a new account late.” (Id. ¶ 26.) Delia did not
mention the late calendar invite at any time before he fired
Plaintiff. (Id. ¶ 27.)
Plaintiff’s Complaint contains two causes of action: race
discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq., and race discrimination in
violation of 42 U.S.C. § 1981. (Id. at 5–6.)
II.

PROCEDURAL HISTORY
Plaintiff filed her Complaint on September 6, 2022. (Compl.

(Doc 1).) On October 24, 2022, Defendant filed a motion to
dismiss, (Mot. to Dismiss (“Def.’s Mot.”) (Doc. 8)), and a brief
in support, (Br. in Supp. of Def.’s Mot. to Dismiss (“Def.’s
Br.”) (Doc. 9)). Plaintiff responded, (Resp. in Opp’n to Def.’s
Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 10)), and attached three
exhibits to her response: an Equal Employment Opportunity
Commission (“EEOC”) Charge Form, (Ex. 1 (“EEOC Charge Form”)
(Doc. 10-1)); an EEOC Acknowledgement of Charge, (Ex. 2 (“EEOC
Acknowledgement”) (Doc. 10-2)); and an EEOC Notice of Right to
Sue, (Ex. 3 (“Right to Sue Notice”) (Doc. 10-3)). Defendant
replied. (Reply Br. in Supp. of Def.’s Mot to Dismiss (“Def.’s
Reply”) (Doc. 11).)
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III. STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other
words, the plaintiff must plead facts that “allow[] the court to
draw the reasonable inference that the defendant is liable” and
must demonstrate “more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556–57).
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.” Twombly,
550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 680; Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (applying the
Twombly/Iqbal standard to evaluate the legal sufficiency of
pleadings). When ruling on a motion to dismiss, a court must
accept the complaint’s well-pleaded factual allegations as true
and view the complaint in the light most favorable to the
plaintiff. Iqbal, 556 U.S. at 676—79. However, “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678.
Employment discrimination complaints must meet the
Twombly/Iqbal plausibility standard; however, the plaintiff is
not required to make out a prima facie case or satisfy any
heightened pleading requirements at the motion to dismiss stage.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McClearyEvans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d
582, 584–85 (4th Cir. 2015). The plaintiff is, however, required
to plead facts that permit the court to reasonably infer each
element of the prima facie case. McCleary-Evans, 780 F.3d at
585; see also Iqbal, 556 U.S. at 682–83 (plaintiff must plead
facts supporting reasonable inference of discriminatory intent);
Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 191 (4th Cir. 2010)
(stating that a complaint must “assert facts establishing the
plausibility” that plaintiff was terminated based on race). Once
the plaintiff has made a plausible showing of each element, the
claim will survive a motion to dismiss and the burden then
shifts to the defendant to provide “some legitimate,
nondiscriminatory reason” for the disparate treatment. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

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IV.

ANALYSIS
Defendant argues: (1) Plaintiff fails to allege a Title VII

claim because she did not file a charge with the EEOC before
commencing suit; and (2) fails to allege a Section 1981 claim
because she does not plausibly allege race was the “but-for”
cause of her termination. (Def.’s Br. (Doc. 9) at 5.)
A.

Title VII Exhaustion Requirement

“As a precondition to the commencement of a Title VII
action in court, a complainant must first file a charge with the
Equal Employment Opportunity Commission.” Fort Bend Cnty. v.
Davis, 587 U.S. ----, 139 S. Ct. 1843, 1846 (2019) (citing 42
U.S.C. §§ 2000e–5(e)(1), (f)(1)). A charge must be filed by the
plaintiff within 180 days of the alleged discriminatory
incident. 42 U.S.C. § 2000e-5(e)(1). Upon receipt of the charge,
“the EEOC notifies the employer and investigates the
allegations.” Fort Bend Cnty., 139 S. Ct. at 1847 (citing 42
U.S.C. § 2000e-5(b)). If the EEOC determines that there is “n[o]
reasonable cause to believe the charge is true,” it dismisses
the charge and gives the complainant a “right-to-sue” notice.
Id.
In Fort Bend County, the Supreme Court held that while
Title VII’s administrative exhaustion requirement is not a
jurisdictional requirement and thus may be waived, it is a
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“mandatory claim-processing rule.” Id. at 1851. Therefore, if
timely raised by a defendant, failure to comply with the rule
warrants dismissal under Rule 12(b)(6). Cowgill v. First Data
Techs., Inc., 41 F.4th 370, 378 (4th Cir. 2022); Walton v.
Harker, 33 F.4th 165, 172 (4th Cir. 2022) (“It is well settled
that before filing suit under Title VII . . . a plaintiff must
exhaust her administrative remedies by bringing a charge with
the EEOC.”).
Here, Plaintiff alleges that this court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e
et seq. (Compl. (Doc. 1) ¶ 5.) However, on the face of the
Complaint, Plaintiff fails to allege that she exhausted her
administrative remedies. Plaintiff only states that “[o]n
December 6, 2021, Delia terminated [Plaintiff].” (Id. ¶ 25.)
Defendant raised the exhaustion requirement in its brief,
(Def.’s Br. (Doc. 9) at 6–8), and when Plaintiff responded she
attached exhibits showing she filed an EEOC Charge, obtained a
Notice of Right to Sue, and timely filed this lawsuit, (see
Pl.’s Resp. (Doc. 10) 1–2). The issue is whether this court may
properly consider the documents attached to Plaintiff’s response
at the motion to dismiss stage.
Generally, in resolving a Rule 12(b)(6) motion to dismiss,
“a district court cannot consider matters outside the pleadings
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without converting the motion into one for summary judgment.”
Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013)
(citing Fed. R. Civ. P. 12(d)). However, “when a defendant
attaches a document to its motion to dismiss, ‘a court may
consider it in determining whether to dismiss the complaint [if]
it was integral to and explicitly relied on in the complaint and
[if] the plaintiffs do not challenge its authenticity.’” Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004) (internal citations omitted). A court may also
consider extrinsic evidence at the motion to dismiss stage by
taking judicial notice of matters of public record. Philips v.
Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiff argues that the EEOC charge and Notice of Right
to Sue are integral to her Complaint because “Plaintiff relies
on them to meet Title VII’s time limit requirements.” (Pl.’s
Resp. (Doc. 10) at 4 (citing Holowecki v. Federal Express Corp.,
440 F.3d 558, 565–66 (2nd Cir. 2006) in support).) Plaintiff
alternatively argues the documents “are public records of which
the court may take notice.” (Id. (citing Sanchez v. Truse
Trucking, Inc., 74 F. Supp. 3d 716, 728–29 (M.D.N.C. 2014) in
support).)
Defendant replies: “[f]ar from ‘explicitly rel[ying]’ on
the EEOC Filings, Plaintiff’s Complaint makes no mention of the
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Charge or any proceeding before the EEOC. The Charge was not
attached to Defendant’s Motion to Dismiss.” (Def.’s Reply
(Doc. 11) at 9–10.) Defendant further argues that it did not
have notice of the EEOC filings before Plaintiff attached them
to her response,2 and courts generally only take judicial notice
of EEOC filings when the filings are referenced in the
plaintiff’s complaint. (Id. at 11.)
Plaintiff cites a Second Circuit case, Holowecki v. Federal
Express Corp., 440 F.3d 558 (2nd Cir. 2006), in support of her
argument that the EEOC filings are integral and thus should be
properly considered by this court, despite failing to reference
them in her Complaint. (See Pl.’s Resp. (Doc. 10) at 4.)
However, Holowecki is distinguishable because in Holowecki, the
plaintiff’s complaint specifically alleged the defendant was
placed on notice of the allegations in the complaint by EEOC
Charge. See Jury Demand ¶ 29, Holowecki v. Fed. Express Corp.,
No. 02CV03355, 2002 WL 34349050 (S.D.N.Y. Apr. 30, 2002)
(“Federal Express was placed on notice of the allegations that
it was discriminating . . . no later than May, 1995, by EEOC
Charge # 151951501 . . . .”). Furthermore, the rule articulated
in Holowecki applies to situations where a defendant attaches

Defendant states that “[a]t the time Plaintiff submitted
her EEOC Charge in May 2022, [Defendant] did not have a location
at the address listed.” (Def.’s Reply (Doc. 11) at 12 n.6.)
2

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documents to its motion to dismiss when those documents were
referenced in the complaint and integral to the case. See Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2nd Cir.
1991) (“[W]hen a plaintiff chooses not to attach to the
complaint or incorporate by reference a prospectus upon which it
solely relies and which is integral to the complaint, the
defendant may produce the prospectus when attacking the
complaint for its failure to state a claim, because plaintiff
should not so easily be allowed to escape the consequences of
its own failure.” (emphasis added)).
District courts in this circuit citing to Holowecki
interpret the rule similarly. See e.g., Coon v. Rex Hosp., Inc.,
No. 20-cv-00652, 2021 WL 3620282, at *2 (E.D.N.C. Aug. 16, 2021)
(considering a plaintiff’s EEOC right-to-sue letter when the
plaintiff alleged she “timely filed charges of discrimination”
with the EEOC and “complied with all administrative
prerequisites to bring this lawsuit,” and the defendant attached
the right-to-sue letter in its motion to dismiss to dispute the
claim was timely); Oglesby v. Itron Elec. Metering Inc., No. 17cv-00216, 2017 WL 9286980, at *3 (D.S.C. Mar. 14, 2017)
(considering a plaintiff’s EEOC right-to-sue letter when
defendant attached it to its motion to dismiss to dispute the
claim was timely). By contrast, in Chisholm v. Mountaire Farms
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of North Carolina Corp., 629 F. Supp. 3d 368 (M.D.N.C. 2022),
the district court declined to consider the plaintiff’s EEOC
charge documents attached to his response to the motion to
dismiss when the documents were not explicitly referenced in the
complaint. Id. at 374.
This case is distinguishable from Holoweckzi and similar to
Chisholm because, here, Plaintiff does not reference her EEOC
filings at all in her Complaint. Furthermore, Defendant does not
attach the filings to its motion to dismiss — Plaintiff attaches
them to her response. Accordingly, Plaintiff’s EEOC documents
are not considered “integral” to her Complaint.
Plaintiff’s argument that the court may take “judicial
notice” of the EEOC filings fails for similar reasons. District
courts in this circuit take judicial notice of EEOC filings when
they are attached to a defendant’s motion to dismiss. See, e.g.,
Yang v. Lai, No. 22CV5, 2022 WL 2440834, at *1 n.2 (M.D.N.C.
July 5, 2022) (taking judicial notice of the plaintiff’s EEOC
charge and right-to-sue letter as matters of public record when
the plaintiff: (1) alleged in his complaint that he filed
charges with the EEOC and received a right to sue letter; (2)
attached the right-to-sue letter to his complaint; and (3) the
defendants attached the plaintiff’s EEOC charge to their motion
to dismiss). Plaintiff fails to cite any case where a court took
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judicial notice of EEOC filings attached to a plaintiff’s
response when a plaintiff failed to reference any EEOC charge in
the complaint.
Accordingly, this court will not consider Plaintiff’s EEOC
filings attached to her response. Taking the allegations in the
Complaint as true and drawing all inferences in favor of
Plaintiff, Plaintiff has not alleged she exhausted her
administrative remedies as required by Title VII. Although
Plaintiff alleged this court has subject matter jurisdiction
pursuant to 42 U.S.C. §§ 2000e et. seq., Plaintiff failed to
specifically allege she exhausted her administrative remedies,
and Defendant timely raised the issue. Thus, this court will
dismiss without prejudice Plaintiff’s Title VII claim for
failure to exhaust.
This court notes that other courts in the Middle District
of North Carolina have similarly denied Plaintiff’s attorney’s
attempts to amend a complaint by attaching EEOC filings in a
response brief. See Chisolm, 629 F. Supp. 3d at 374. Alleging
administrative exhaustion is a clear requirement of Title VII.
Attempting to amend a complaint by attaching EEOC filings in a
response to a motion to dismiss results in unnecessary filings
and a waste of party and court resources. Plaintiff’s attorney
is warned that similar conduct in the future may result in the
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award of attorney fees for any fees incurred by an opposing
party for unnecessarily briefing the exhaustion issue.
B.

Race Discrimination in Violation of Section 1981

“Section 1981 provides, in relevant part, that ‘all persons
. . . shall have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens,’ and guards
generally against race-based discrimination in the workplace.”
Lemon v. Myers Bigel, P.A., 985 F.3d 392, 399 (4th Cir.
2021) (quoting 42 U.S.C. § 1981). In the case of discharge or
termination, the prima facie elements of a discrimination claim
are: “(1) membership in a protected class, (2) discharge, (3)
while otherwise fulfilling Defendants’ legitimate expectations
at the time of his discharge, and (4) under circumstances that
raise a reasonable inference of unlawful discrimination.” Bing
v. Brivo Sys., LLC, 959 F.3d 605, 616 n.8 (4th Cir. 2020); see
also Swaso v. Onslow Cnty. Bd. of Educ., 698 F. App’x 745, 747
(4th Cir. 2017).
As to the fourth element, Plaintiff must plead
circumstances that give rise to a reasonable inference that race
was the but-for cause of her termination. See Comcast Corp. v.
Nat‘l Ass‘n of African Am.-Owned Media, 589 U.S. ----, 140 S.
Ct. 1009, 1019 (2020) (“To prevail [on a Section 1981 claim], a
plaintiff must initially plead and ultimately prove that, but
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for race, it would not have suffered the loss of a legally
protected right.”).
In Bostock v. Clayton County, 590 U.S. 644 (2020), the
Supreme Court elaborated on the “but-for” causation standard:
[A] but-for test directs us to change one thing at a
time and see if the outcome changes. If it does, we
have found a but-for cause. This can be a sweeping
standard. Often, events have multiple but-for causes.
. . . [A] defendant cannot avoid liability just by
citing some other factor that contributed to its
challenged employment decision.
Id. at 656. The court further explained: “An employer violates
Title VII3 when it intentionally fires an individual employee
based in part on [a protected trait]. It doesn’t matter if other
factors besides the plaintiff’s [protected trait] contributed to
the decision.” Id. at 659. Importantly, Bostock clarifies that a
“but-for” cause does not require that a plaintiff’s protected
status be the “sole,” “primary,” or even “main” cause of the
employer’s action. Id. at 656, 664–65.

Although the court discussed the “but-for” causation
standard in the context of Title VII, it made clear it was
elaborating on the “traditional” and “ordinary” meaning of
“because of.” Id. at 656. The “traditional” “but-for” causation
standard applies in Section 1981 race discrimination cases. See
Comcast, 140 S. Ct. 1009, 1013, 1015 (2020); see also Harwani v.
Moses H. Cone Mem’l Hosp. Operating Corp., No. 21CV522, 2023 WL
2753655, at *6 (M.D.N.C. Feb. 28, 2023) (applying Bostock to a
Section 1981 claim); D’Andra Millsap Shu, The Coming Causation
Revolution, 43 Cardozo L. Rev. 1807, 1839 n.214 (2022)
(collecting cases that have applied Bostock’s but-for causation
language to Section 1981 race claims).
3

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Plaintiff has sufficiently alleged the first three elements
of a discrimination claim. There is no dispute that Plaintiff, a
Black woman, (see Compl. (Doc. 1) ¶ 8), is a member of a
protected class and that her termination, (see id. ¶ 25), is an
adverse employment action. See Smith v. UNC Health Care Sys.,
No. 20-CV-52, 2021 WL 1146936, at *7 (M.D.N.C. March 25, 2021).
Additionally, Plaintiff sufficiently alleges she was fulfilling
Defendant’s expectations at the time of discharge, (see Compl.
(Doc. 1) ¶ 25), which Defendant “accepts as true” “at this stage
of the proceedings,” (Def.’s Br. (Doc. 11) at 11 n.4).
As to the fourth element, Plaintiff alleges the
relationship between herself and Delia, her White supervisor,
and the circumstances surrounding her subsequent termination,
give rise to an inference of unlawful discrimination. (Pl.’s
Resp. (Doc. 10) at 5–6.)

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As an initial matter, Plaintiff states she is not relying
on comparator evidence to state her claim. 4 (Pl.’s Resp. (Doc.
10) at 6.) In the absence of direct evidence, comparator
evidence is useful for discerning whether a given adverse action
was the product of discrimination, but it is not required to
state a claim. See Laing v. Fed. Express Corp., 703 F.3d 713,
719–20 (4th Cir. 2013) (discussing the general use of comparator
evidence in race discrimination claims).
Plaintiff argues the following circumstances give rise to
an inference of unlawful discrimination:
[Plaintiff’s] success as the only black employee in
her territory angered her supervisor, Delia (white),
so much that he hindered her professional development
by telling the African American Business Leadership
Despite facts in Plaintiff’s Complaint alleging
differential treatment between Plaintiff and her White
co-worker, Hudson, Plaintiff states in her response: “comparator
arguments would not be feasible here because [Plaintiff] was the
only black employee in her territory.” (Pl.’s Resp. (Doc. 10) at
6.) However, to make a comparator argument, it would not matter
whether there were other Black employees in Plaintiff’s
“territory.” To make a comparator argument, Plaintiff must
allege “different treatment from similarly situated employees
outside the protected class.” Coleman v. Md. Ct. of Appeals, 626
F.3d 187, 190 (4th Cir. 2010) (emphasis added). Defendant argues
that a potential comparator argument fails here because
Plaintiff and Hudson had different jobs. (Def.’s Br. (Doc. 9) at
11—12.) This court will not consider whether Plaintiff has pled
sufficient facts to establish Hudson as a comparator at this
time because Plaintiff failed to respond to Defendant’s
arguments and explicitly stated she is not pursuing a comparator
argument. Sawyers v. United Parcel Serv., Inc., No. 18-cv-1037,
2019 WL 4305771, at *3 (M.D.N.C. Sept. 11, 2019) (“This district
and others within the Fourth Circuit agree that failing to
respond to an argument constitutes an abandonment of a claim.”).
4

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Program not to talk to her anymore, intentionally
interfered with her ability to do her job by
instructing IT not to set up interfaces for her
accounts, and fired her a week before she was
scheduled to make commission on $1.5 million in new
business she had brought in.
(Pl.’s Resp. (Doc. 10) at 6.) Defendant replies that without a
comparator argument, Plaintiff’s Complaint amounts to
“threadbare” allegations “that a white manager was not nice to a
black employee.” (Def.’s Reply (Doc. 11) at 2.) Defendant
further argues Plaintiff’s own allegations provide a plausible
alternative explanation to racial animus. (Id. at 7.)
This court rejects Defendant’s argument that Plaintiff’s
own allegations provide a plausible alternative explanation to
racial animus. Plaintiff alleges that in July 2021, “Delia wrote
[Plaintiff] up for not getting along well enough with Hudson,
and because he mistakenly though[t] [Plaintiff] told a client
something she had not.” (Compl. (Doc. 1) ¶ 19.) Plaintiff also
alleges that the July write-up “contained numerous additional
alleged problems Delia had never mentioned.” (Id. ¶ 22.)
Finally, Plaintiff alleges that the reason given for her
termination was a minor scheduling issue that occurred six
months prior that was never brought up before her termination.
(Id. ¶ 26; Pl.’s Resp. (Doc. 10) at 6.) Plaintiff argues the
reason given for her termination was pretextual. (Pl’s Resp.
(Doc. 10) at 6.)
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Inquiry into whether Defendant’s nondiscriminatory
explanation for terminating Plaintiff is in fact pretext is
generally not proper at the motion to dismiss stage. See Woods
v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017).
However, under the pleading standards of Iqbal and Twombly, this
court “must consider the plausibility of inferring
discrimination . . . in light of an ‘obvious alternative
explanation’ for the conduct.” Id. In other words, this court
must consider whether Defendant’s explanation for Plaintiff’s
termination is “so obviously an irrefutably sound and
unambiguously nondiscriminatory and non-pretextual explanation
that it renders [Plaintiff’s] claims of pretext implausible.”
Id.
For example, in Bingo v. Brivo Systems, 959 F.3d 605 (4th
Cir. 2020), the Fourth Circuit affirmed the lower court’s
dismissal of the plaintiff’s unlawful discrimination claim when
the plaintiff specifically alleged a non-racial reason for his
termination. Id. at 617. The plaintiff alleged that on his first
day of work, an employee fired him after finding an online
article that described the plaintiff’s “tangential involvement
in a shooting.” Id. at 609. The court declined to disregard the
obvious explanation for the plaintiff’s termination. Id. at 618;
see also McRae v. Niagara Bottling, LLC, No. 20-CV-00131, 2021
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WL 3518530, at *6 (W.D.N.C. Aug. 10, 2021) (dismissing the
plaintiff’s race discrimination claim “when considering the
‘obvious alternative explanation,’ that Plaintiff was discharged
as a result of his violation of company policy and/or alleged
subsequent threats.”).
Any “unchallenged performance issues” 5 do not provide an
“obvious alternative explanation” for Delia’s actions and
Plaintiff’s termination. Plaintiff argues that the reason given
for her termination, a minor scheduling issue that occurred six
months prior, was pretextual. (Pl.’s Resp. (Doc. 10) at 6.)
Plaintiff also contests the issues raised in the July write-up.
(Compl. (Doc. 1) ¶¶ 19—22.) These facts do not provide an
“obvious alternative explanation” for Delia’s actions and
Plaintiff’s termination. See Harwani v. Moses H. Cone Mem‘l
Hosp. Operating Corp., No. 21CV522, 2023 WL 2753655, at *6
(M.D.N.C. Feb. 28, 2023) (rejecting defendants’ argument that
the complaint included alternative, non-race-based explanations
for the adverse action when those explanations were “simply
Plaintiff’s recitation of the reasons given for the termination,

Defendant, in referring to the “unchallenged performance
issues,” cites to two allegations in Plaintiff’s Complaint: (1)
the “numerous additional alleged problems” in the July write up
that Delia never mentioned prior; and (2) the reason Delia gave
Plaintiff for her termination — that Plaintiff had sent Delia a
late calendar invite six months ago. (See Def.’s Reply (Doc. 11)
at 7–8 (citing paragraphs 19, 22, and 26–27 of the Complaint).)
5

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which Plaintiff contends were a pretext for discrimination, and
Plaintiff has alleged specific facts to at least plausibly
allege that those contentions were unfounded.”). Moreover, any
“performance issues” would not explain why Delia would
“intentionally interfere[] with [Plaintiff’s] ability to onboard
new accounts by telling IT not to set up interfaces for them.”
(Compl. (Doc. 1) ¶ 23.)
However, “[e]ven where the complaint plausibly alleges the
reason an employer gave for the termination of employment was
false, it still must ‘establish a plausible basis for believing
. . . that race was the true basis for [the plaintiff's]
termination.’” Weaver v. Cary Acad., No. 20-CV-593, 2021 WL
4428202, at *8 (E.D.N.C. Sept. 7, 2021) (quoting Coleman v. Md.
Ct. of Appeals, 626 F.3d 187, 190–91 (4th Cir. 2010). Thus, even
though Plaintiff has plausibly alleged the explanation for her
termination was pretextual, Plaintiff’s allegations must still
plausibly show that she was terminated because of racial
discrimination.
Plaintiff argues
there is no legitimate business reason for any of the
things Delia did to [Plaintiff], as all of them, from
interfering with the setup of new accounts to firing a
high-earning salesperson, would have hurt the company.
The only reasonable inference for these spiteful
actions is that Delia would rather the company make
less money than acknowledge the success of his
territory’s only black employee.
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(Pl.’s Resp. (Doc. 10) at 6.) However, “[b]eing aware of no
alternative explanation and guessing that conduct is racially
motivated does not amount to pleading actual facts to support a
claim of racial discrimination.” Bing, 959 F.3d at 618.
Furthermore, unfair or poor treatment from a supervisor outside
the protected class, combined with speculative or conclusory
allegations that that treatment is because of race
discrimination is not sufficient to allow a court to infer an
adverse action is based on race discrimination. See Smith v. UNC
Health Care System, No. 20-cv-52, 2021 WL 1146936, at *7–8
(M.D.N.C. March 25, 2021) (holding the plaintiff failed to
plausibly allege a Title VII claim when she failed to link her
difficulties with her supervisor with racial discrimination).
Here, Plaintiff does plead one non-conclusory fact that may
implicate racial bias. Specifically, Plaintiff alleges that
Delia told Defendant’s African American Business Leadership
Program to stop speaking to Plaintiff. (Compl. (Doc. 1) ¶ 18.)
The issue is whether this alleged fact can be plausibly
connected to the decision to terminate Plaintiff. See Lemon v.
Myers Bigel, P.A., 985 F.3d 392, 400 (4th Cir. 2021) (finding
the plaintiff failed to link the one factually-specific, nonconclusory allegation of racially-motivated conduct, namely that

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one shareholder complained about her “‘play[ing] the black card’
too often,” with the adverse action).
Plaintiff has failed to connect Delia’s statement to
Delia’s decision to terminate Plaintiff. Although Delia is the
same individual who allegedly talked to the African American
Business Leadership Program and terminated Plaintiff,
Plaintiff’s allegations lack details about the timing of the
statement, Plaintiff’s involvement with the African American
Business Leadership Program, or details about the African
American Business Leadership Program itself. Plaintiff’s
Complaint fails to allege sufficient detail to allow this court
to infer that Delia terminated Plaintiff because of her race,
based on the single fact that, at an unspecified time, Delia
told the African American Business Leadership Program to stop
speaking to Plaintiff. Plaintiff has failed to allege facts that
give rise to a reasonable inference that race was the but-for
cause of her termination.
C.

Race Discrimination in Violation of Title VII

Defendant has not challenged the plausibility of
Plaintiff’s Title VII claim. Defendant’s motion to dismiss
challenges Plaintiff’s Title VII claim for failure to exhaust
and Plaintiff’s Section 1981 claim for failure to state a claim.
(See Def.’s Mot. (Doc. 8) at 2–3.) Defendant’s brief in support
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specifically argues that Plaintiff’s Section 1981 claim fails
because Plaintiff failed to allege that race was the “but-for”
cause of her termination. (See Def.’s Br. (Doc. 9) at 5, 9, 14,
17.)
Defendant states in a footnote: “To the extent Plaintiff
fails to state a claim for violation of Section 1981, she also
fails to state a claim for violation of Title VII.” (Id.
at 2 n.1) In another footnote Defendant states: “Although
[Defendant] contends that Plaintiff’s Title VII Claim should be
dismissed based on her failure to file a charge with the EEOC,
the Complaint’s failure to plausibly allege facts raising an
inference of racial animus applies to both claims.” (Id. at 9
n.2.)
Local Rule 7.3 requires all motions to “state with
particularity the grounds therefor.” LR7.3(b). Defendant’s
motion did not challenge the plausibility of Plaintiff’s Title
VII claim — it specifically argues that Plaintiff failed to
allege that race was a “but-for” cause of Plaintiff’s
termination.6

To the extent Defendant attempts to expand its argument in
its reply brief, based on two footnotes in its initial
supporting brief, this court declines to allow Defendant to do
so.
6

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Defendant’s “but-for” arguments do not supply a basis for
dismissal of Plaintiff’s Title VII claim because for
status-based discrimination claims brought under Title VII, a
plaintiff is not required to allege “but-for” causation.
An employee who alleges status-based discrimination
under Title VII need not show that the causal link
between injury and wrong is so close that the
injury would not have occurred but for the act.
So-called but-for causation is not the test. It
suffices instead to show that the motive to
discriminate was one of the employer's motives, even
if the employer also had other, lawful motives that
were causative in the employer's decision.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013);
see also Comcast Corp. v. Nat‘l Ass‘n of African Am.-Owned
Media, 589 U.S. ----, 140 S. Ct. 1009, 1017—18 (2020)
(distinguishing Title VII and Section 1981 causation standards).
Although the prima facie elements of a discrimination claim
under Title VII and Section 1981 are the same, Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002),
Title VII offers an alternative path to establishing liability
if a plaintiff shows that race was a “motivating factor” in an
employer’s decision. See Bostock v. Clayton County, Georgia, 590
U.S. 644, 656—58 (2020).
Additionally, this court’s finding that that Plaintiff did
not sufficiently allege a Section 1981 claim does not
necessarily require a finding that Plaintiff failed to allege a
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Title VII claim because the pleading burden under Section 1981
is higher than under Title VII. See id. at 657 (“Under this more
forgiving [motivating factor] standard, liability can sometimes
follow even if [a protected trait] wasn’t a but-for cause of the
employer’s challenged decision.”); cf. Nadendla v. WakeMed, No.
18-CV-540, 2021 WL 1056521, at *2 (E.D.N.C. Feb. 23, 2021),
aff’d, 24 F.4th 299 (4th Cir. 2022) (finding, on a motion to
reconsider, that although plaintiff alleged that race may have
played some role, or even been a motivating factor of the
adverse action, she did not plausibly allege that race was a
but-for cause of employer’s actions); Strata Solar, LLC v. Fall
Line Constr., No. 22cv106, 2023 WL 4638943, at *9 (E.D. Va. July
20, 2023) (“[E]ven accepting that this allegation would satisfy
the Title VII ‘motivating factor’ standard, it falls short of
satisfying the ‘but for’ § 1981 causation test.”) Thus,
Defendant has not challenged the plausibility of Plaintiff’s
Title VII claim.
V.

CONCLUSION
For the reasons stated herein, this court finds Defendant’s

Motion to Dismiss, (Doc. 8), should be granted. Plaintiff’s
Title VII claim should be dismissed for failure to exhaust
administrative remedies and her Section 1981 claim should be
dismissed for failure to state a claim. This dismissal will be
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without prejudice to Plaintiff re-filing her Complaint if
merited.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss,
(Doc. 8), is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is
DISMISSED WITHOUT PREJUDICE.
A Judgment dismissing this action with be entered
contemporaneously herewith.
This the 27th day of March, 2024.

__________________________________
United States District Judge

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