United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge
MATTER is before the Court on Defendants' Motion
to Dismiss for Failure to State a Claim (Doc. No. 8) filed
with a Brief in Support of Motion to Dismiss (Doc. No. 8-1)
on June 26, 2017. On July 10, 2017 Plaintiff filed his
Memorandum in Opposition to the Motion to Dismiss (Doc. No.
9). Defendants filed a Reply in Support of Motion to Dismiss
on July 21, 2017. (Doc. No. 11). For the following reasons,
Defendants' Motion to Dismiss is DENIED.
Barrington Boyd (“Boyd”) is a licensed investment
advisor with Series 7 and 66 qualifications. (Compl. at 2,
¶ 9). He is an African-American man. (Compl. at 2,
¶ 9). Boyd began working for Defendants
Teachers Insurance and Annuity Association of America and
TIAA-CREF Individual and Institutional Services, LLC
(collectively, “TIAA”) in June 2005, and his
employment was terminated on March 15, 2015. (Compl. at 2,
¶¶ 10-11). On March 24, 2015, TIAA submitted to the
Financial Industries Regulatory Authority
(“FINRA”) a Uniform Termination Notice for
Securities Industry Regulation (“U-5”). (Compl.
at 2, ¶ 12). In the section on the U-5 form provided for
“Termination Explanation, ” TIAA stated,
“Did not meet internal performance expectations for
position. No violation of industry rules, no customer harm,
not securities related.” (Compl. at 2, ¶ 12).
filed two Charges of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”), asserting that
TIAA discriminated against him on the basis of race, and on
June 16, 2015, Boyd and TIAA participated in a mediation with
the EEOC. (Compl. at 2, ¶ 13-14). As a result of that
mediation, on June 26, 2015, Boyd and TIAA entered into a
Separation Agreement and Release in Full (“Separation
Agreement” or “the Agreement”). (Compl. at
2, ¶ 15). Pursuant to that Agreement, on July 22, 2015,
TIAA submitted a revised U-5, replacing the language in the
Termination Explanation section with “Disagreement
regarding internal policy requirements for position. No
violation of industry rules, no customer harm, not securities
related.” (Compl. at 3, ¶ 19). In the
“Amendment Explanation” box immediately below the
Termination Explanation, TIAA stated, “The failure to
meet internal policy expectations precipitated a conversation
with the employee as to what those expectations were and
should be. Ultimately, it was the inability to reach an
understanding as to what the job expectations were that
resulted in the separation.” (Compl. at 3, ¶ 20).
objected to the additional language in the Amendment
Explanation, and TIAA again amended the U-5 on December 7,
2015, stating in the Amendment Explanation section,
“Amended to accurately reflect the intent of the
previous amendment.” (Compl. at 3, ¶ 22-23).
alleges that he subsequently applied for numerous positions
in the securities industry and was denied as a result of the
inaccurate language provided in the U-5 form, as well as a
result of negative references provided by TIAA. (Compl. at 4,
December 27, 2016, Boyd filed a Charge of Discrimination with
EEOC asserting a claim of retaliation under Title VII of the
Civil Rights Act of 1964. (Compl. at 4, ¶ 29). On
January 23, 2017, the EEOC issued Boyd a Right to Sue Letter.
(Compl. at 4, ¶ 30). On April 26, 2017, Boyd filed his
Complaint alleging breach of contract and retaliation under
Title VII. (Compl. at 4-5).
faced with a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must
“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). The Court “assume[s]
the veracity” of these factual allegations, and
“determine[s] whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). However, the court “need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Mkts., Inc. v.
J.D. Assocs. LLP, 213 F.3d 175, 180 (4th Cir. 2000).
Thus, to survive a motion to dismiss, the plaintiff must
include within his complaint “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Consideration of the Separation Agreement
both the breach of contract claim and the retaliation claim
rely heavily on the terms of the Separation Agreement, the
Court must decide, as a threshold issue, whether or not the
Separation Agreement in its entirety may be considered at
this stage of the litigation. Boyd referenced it extensively
in his Complaint but did not attach the entire Separation
Agreement to his Complaint. (See Compl. at 4-5).
TIAA subsequently attached it to its Motion to Dismiss as
Doc. No. 8-2 and argues that the Court may consider it
because it “directly gives rise to Boyd's claims
and is expressly referred to in Boyd's Complaint.”
(Defs.' Br. at 6). Boyd likewise urges the Court to
consider the Separation Agreement without converting
Defendants' Motion into a motion for summary judgment.
Fourth Circuit has held that “[a]lthough as a general
rule extrinsic evidence should not be considered at the
12(b)(6) stage, . . . ‘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) (quoting Phillips v. LCI Int'l Inc., 190
F.3d 609, 618 (4th Cir. 1999)). Because the Separation
Agreement provides the basis for Boyd's claim, is
referenced throughout the Complaint, and ...