United States District Court, E.D. North Carolina, Northern Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
(DE 38). The issues raised are ripe for ruling. For
the following reasons, the court grants defendant's
motion to dismiss as set forth herein.
proceeding pro s e, commenced this action against
her former employer, the County of Gates, and various County
employees and/or representatives on May 20, 2016, asserting
claims for race discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e, et seq. (“Title
VII”). Defendants filed motion to dismiss. Shortly
thereafter counsel entered appearance on behalf of plaintiff.
Motion to amend complaint followed.
court allowed plaintiff's motion together with
defendants' motion for a more definite statement, as set
forth in text order entered December 1, 2016. Defendants'
motion to dismiss was denied as moot. In amended complaint,
plaintiff proceeds only against defendant named above, having
abandoned any claims against individual defendants.
April 24, 2017, defendant filed the instant motion to
dismiss, asserting that plaintiff's claims must be
dismissed because they fail as a matter of law, are time
barred, and/or are outside the scope of plaintiff's
previously filed charges with the EEOC. Plaintiff responded
in opposition to the instant motion on May 25, 2017, and
defendant replied on June 7, 2017.
facts alleged in the complaint may be summarized as follows.
Valerie Tripp is a black female employed by defendant
beginning September 19, 2006. During her time working for
defendant, plaintiff held numerous job titles. Plaintiff
originally was hired as a secretary for the zoning/building
inspector at a rate of compensation of $11.63 an hour, with
subsequent “cost of living” pay increases over
the next few years. (Compl.¶ 7). In 2010, plaintiff
became a permit officer at a salary of $25, 038.00 per year.
Around March 2013, plaintiff assumed the additional duties of
county planner after the former county planner, who was a
white woman, left the position. In August 2013,
plaintiff's position title changed to special project
liaison in the finance department at a salary of $28, 024.21
per year. Approximately one month later, plaintiff's
position title was changed to include customer service clerk
and tax collections clerk in addition to surplus property
coordinator, both of which included additional
responsibilities but no salary increase. Weeks later,
plaintiff's position title was changed to include
planning and zoning administrator with no salary increase.
First EEOC Charge
August to October 2013, plaintiff allegedly was subjected to
unwarranted disciplinary actions for unapproved absence,
failure to train a co-worker, failure to organize a box of
documents, and for a phone call she connected to the county
manager. Plaintiff objected to these disciplinary actions in
writing and objected to the imposition of duties without
attendant pay increases, stating that her treatment was due
filed her first charge with the EEOC on November 19, 2013,
asserting race-based discrimination by her supervisor for
unapproved absences. Plaintiff's first EEOC charge was
resolved through settlement agreement dated February 19,
2014. The relevant terms of the settlement agreement are
memorialized in four parts: 1) plaintiff agreed not to
institute a lawsuit against the county; 2) the county agreed
not to discriminate or retaliate against plaintiff for filing
the EEOC charge; 3) the county agreed to expunge the last
three notices of deficiency from plaintiff's file; and 4)
the county agreed “to meet with [plaintiff] to review
her actual job duties to determine whether her salary ha[d]
been established correctly.” (Id. Ex.
one month after plaintiff filed her first EEOC charge,
plaintiff's supervisor filed a criminal complaint with
the local sheriff's department claiming, allegedly
falsely, that plaintiff had stolen $200.00 from the county.
Plaintiff never was charged with the crime, although the
accusation became known at plaintiff's workplace.
Settlement Agreement Implementation
April 1, 2014, the county had removed the notices of
deficiency from plaintiff's personnel file but had not
met with plaintiff regarding her job duties or salary. On
March 31, 2014, plaintiff submitted, as requested by interim
manager Ken Windley (“Windley”), a written list
of the job duties she had been performing. Roughly one month
later, Windley presented plaintiff with a
“sample” new job description but told her he
would need to “tweak” the description.
(Id. ¶ 29). On May 1, 2014, Windley informed
plaintiff that a new job description had been approved and
assigned to her. At some point Windley also informed
plaintiff that she would not be receiving a salary increase.
On May 19, 2014, the Gates County commissioners convened and
discussed plaintiff's job description, among other items,
during a closed portion of the meeting.
21, 2014, Windley responded to a request from an EEOC
Investigator, informing the EEOC that plaintiff had provided
information regarding her job duties, the information was
used to create a new job description, the County's
personnel board had reviewed and approved plaintiff's new
job description, the board had reviewed plaintiff's
salary and “felt the change made earlier in the fiscal
year was sufficient, therefore no change to the salary was
needed, ” and plaintiff approved of her new job
description in a meeting with him. (Id. ¶ 26,
around June 23, 2014, plaintiff received notification of her
new job title “planning and permitting
technician.” She was informed there would be no change
in salary, benefits, or hours and that she would now be
splitting her time between two departments while coordinating
with her previous department. She was also provided with an
extensive list of new work functions. Plaintiff did not sign
the memorandum evidencing agreement to her new job title and
description. She filed a written memorandum objecting to the
new job description on July 1, 2014, requesting re-
etvaluation. On July 7, 2014, plaintiff was informed that the
changes to her job title were effective July 1, 2014. In July
and August 2014, plaintiff lodged complaints with multiple
Gates County commissioners in person, by telephone, and
though emails concerning the treatment she was receiving and
the amount of work she was expected to accomplish for a
salary that was less than $30, 000.00 per year.
Hiring of County Planner
August 2014, the county initiated a hiring process to fill
the position of county planner/county director, with a salary
of $45, 000.00 per year, and concluded the hiring process in
November 2014. Plaintiff had been performing the duties of
this position “competently and fully” since the
position became vacant in April 2013. (Id. ¶
47). Plaintiff applied for the position and was not chosen,
although her experience and education met all the posted job
qualifications. Unlike plaintiff, the person hired lacked
qualifications in zoning that had been listed as a necessary
qualification for the position. Plaintiff was informed that
she did not receive the position because she did not have
experience with graphic information systems
(“GIS”), experience that was not listed as a
necessary qualification for the position nor a system used by
plaintiff in the time that she had performed the duties of
the position. She was also not given the opportunity to be
trained for the position in order to overcome her alleged
tendered her resignation to the county in February 2015.
Second EEOC Charge
April 20, 2015, plaintiff filed a second charge with the
EEOC, alleging race discrimination and retaliation. In
plaintiff's second EEOC charge, she stated white
employees are compensated for their management work, are paid
top salaries, are groomed for positions even when not yet
advertised, and are trained when they are under-qualified.
Plaintiff asserted race-based discrimination regarding the
county's decision to not promote her to county planner.
On February 16, 2016, the EEOC closed its investigation and
issued a notice of right to sue, which was received by
plaintiff on February 20, 2016. This suit was filed 90 days
later on May 20, 2016.
Standard of Review A motion to dismiss under Rule 12(b)(6)
tests the legal sufficiency of the complaint but “does
not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992). A complaint states a claim if it contains
“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)). “Asking for plausible grounds .
. . does not impose a probability requirement at the pleading
stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal [the] evidence”
required to prove the claim. Twombly, 550 U.S. at
556. In evaluating the complaint, “[the] court accepts
all well-pled facts as true and construes these facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement[, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
asserts breach of contract claims based on the parties'
settlement agreement and Title VII claims alleging both
discrimination and retaliation against defendant. The court
addresses each claim in turn below.
Settlement Agreement Claims
settlement agreement states that “[t]he parties agree .
. . that this agreement may be specifically enforced in court
by the EEOC or the parties and may be used as evidence in a
subsequent proceeding in which a breach of this agreement is
alleged.” (Compl. Ex. 5). Taking the facts as alleged
in the amended complaint as true, the court finds that
plaintiff has not sufficiently stated a claim for breach of
the parties' settlement ...