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Boyd v. TIAA-CREF Individual & Institutional Services, LLC

United States District Court, W.D. North Carolina, Charlotte Division

September 20, 2017

BARRINGTON BOYD, Plaintiff,
v.
TIAA-CREF INDIVIDUAL & INSTITUTIONAL SERVICES, LLC TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, Defendants.

          ORDER

          Graham C. Mullen United States District Judge

         THIS 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.

         I. BACKGROUND

         Plaintiff 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).

         Boyd 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).

         Boyd 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).

         Boyd 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, ¶ 24-28).

         On 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).

         II. LEGAL STANDARD

         When 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)).

         III. DISCUSSION

         A. Consideration of the Separation Agreement

         Because 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.

         The 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 ...


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