United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge
matter is before the Court upon Defendant's Motion to
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. The pro se Plaintiff has filed a
response, and the Defendant has elected not to file a Reply.
Accordingly, this matter is ripe for disposition.
pro se Plaintiff, an African-American female, filed
her Amended Complaint alleging race and sex discrimination
and retaliation. This action arises from the Plaintiff's
employment and subsequent discharge from her position as an
Occupational, Safety, and Health Specialist in Defendant
Resource Management Concepts, Inc.'s (“RMC”)
Environmental & Safety Division. Plaintiff was hired by
RMC on February 4, 2013. (Amd. Compl. ¶ 6). She alleges
that she was the only African-American and the only female
under the supervision of Brent Elrod. Id. at
¶¶ 8-9. She alleges that after Elrod became her
supervisor, she “began to be falsely blamed for not
completing assignments, missing meetings, and being
nonresponsive to [her] clients.” Id. at ¶
2014 annual performance review, Elrod commented that
Plaintiff “had an unprofessional and confrontational
tone/approach in written responses to customers and
peers” and that she was “unresponsive to calls
from [Elrod], and failed to attend scheduled team
meetings.” Id. at ¶ 12. On April 6, 2015,
Plaintiff was provided a performance improvement plan as a
result of the 2014 annual review. Id. at
¶¶ 14, 18. On the same day, at a meeting discussing
the review, Plaintiff indicated that she disagreed with Mr.
Elrod's evaluation. Id. At the same meeting,
Plaintiff also commented that she believed she was being
accused of being confrontational and aggressive
“because of misperceptions based on [her] sex and race.
Id. at ¶ 15. In August of 2015, Plaintiff was
told that she was responsible for presenting two Power Point
presentations. Id. at ¶ 19. She completed the
presentations but complained to Mr. Elrod that one did not go
well due to mistakes made by those who created the
November 2, 2015, Mr. Elrod called the Plaintiff and told her
that she was being discharged due to the poor presentations
in August and because “RMC had received negative
comments about [her] from all of [her] clients.”
Id. at ¶ 20. Plaintiff alleges that throughout
her employment with Defendant she has “satisfactorily
performed [her] job duties and met RMC's
expectations.” Id. at ¶ 21.
alleges that her termination was in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., in that she was terminated because of her race and
sex, and that she was retaliated against for complaining that
she was being discriminated against on the basis of her race
and sex. Defendant seeks to dismiss Plaintiff's Amended
Complaint for failure to state a claim upon which relief can
faced with a Rule 12(b)(6) motion to dismiss, courts are
instructed to “accept as true all well-pleaded
allegations and . . . view the complaint in a light most
favorable to the plaintiff.” Mylan Labs, Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However,
this procedural safeguard does not apply to both implausible
factual allegations and any of a plaintiff's legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 679-80
Plaintiff has the burden of pleading “more than a sheer
possibility that a defendant acted unlawfully.”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (internal quotations omitted). While
“hyper-technical” pleadings of earlier legal eras
are not required, Plaintiffs must make more than “naked
assertions of wrongdoing” without any “factual
enhancement.” Id., quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 557 (2007).
Fourth Circuit requires district courts to construe pro
se complaints liberally to ensure that valid claims do
not fail for lack of legal specificity. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). However, this
liberal construction need not extend to outright advocacy for
the pro se plaintiff nor will it permit a district
court to ignore a clear failure of the pro se
plaintiff to allege facts in the complaint which set forth a
claim that is cognizable under federal law. Id.;
Weller v. Dep't of Soc. Services, 901 F.2d 387
(4th Cir.1990). The Court does not have to divine facts not
disclosed by the Plaintiff in her Complaint, nor must the
Court invoke causes of action that are neither articulated
nor supported by factual allegations.
pro se plaintiffs, with the assistance of the
district court's lenient eye, must still do more than a
“formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (internal
citations omitted). Like plaintiffs who are represented by
counsel, a pro se plaintiff must still “allege
facts sufficient to state all the elements of [the]
claim.” See Bass v. E.I. Dupont de Nemours
& Co., 324 F.3d 761, 765 (4th Cir. 2003). In light
of Twombly and Bass, conclusory statements
with insufficient factual allegations, even when asserted by
pro se plaintiffs, will simply not suffice. To
survive a motion to dismiss under Twombly, a
plaintiff must allege enough facts “‘to raise a
right to relief above the speculative level' and must
provide ‘enough facts to state a claim to relief that
is plausible on its face.'” Robinson v. Am.
Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009)
(quoting Twombly, 550 U.S. at 555, 570).
order to allege a plausible prima facie claim for sex or race
discrimination, the Plaintiff must allege sufficient facts to
establish: (1) membership in a protected class; (2)
satisfactory job performance; (3) an adverse employment
action; and (4) more favorable treatment of
similarly-situated employees outside the protected class.
See Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010) aff'd 566 U.S. 30 (2012).
Amended Complaint fails to allege facts that establish that
the Plaintiff performed her job duties in a satisfactory
manner. There are no allegations that the Plaintiff was told
by any of her supervisors at RMC that her performance met
their expectations. Plainly stated, outside of the
Plaintiff's naked assertion that she
“satisfactorily performed [her] job duties and met
RMC's expectations, ” (Amd. Compl. ¶ 21), the
Amended Complaint is devoid of any facts that establish that
the Plaintiff performed her job in a satisfactory manner.
Instead, the Amended Complaint discloses facts that establish
the opposite - that the Plaintiff consistently failed to meet