United States District Court, M.D. North Carolina
Carlton Tilley, Jr. Senior United States District Judge.
matter is before the Court on Defendant Sheriff Terry S.
Johnson's Motion to Dismiss Complaint [Doc. #5].
Plaintiff Alan Scot Tickles has alleged violations of the Age
Discrimination in Employment Act (“ADEA”) of
1967, as amended, 29 U.S.C. §§ 621 et seq.
(See Compl. [Doc. #1].) Johnson argues that Tickles
has not alleged sufficient facts to state a plausible claim.
For the reasons explained below, the Motion is granted.
born on August 8, 1966, alleges that he was first hired by
Johnson in 2009 as a Detention Officer in the Alamance County
Detention Center. (Id. ¶¶ 9, 12.) Johnson,
whose duties include the hiring of deputies and other
employees, has a hierarchical system in which deputies and
other employees are assigned a rank. (Id.
¶¶ 10, 11.) With a higher rank comes higher pay and
authority. (Id. ¶ 11.) Before an employee
“could be promoted to a higher rank, [he] was supposed
to meet minimum standards that [Johnson] had set”,
which Tickles refers to as “the
‘Guidelines'”. (Id.) These
Guidelines are not publicly available and “were
maintained in a closed computer system in [Johnson's]
was initially hired as a Detention Officer 1, but received
promotions to Detention Officer 2, Detention Officer 3, and
Corporal “in the shortest amount of time
possible.” (Id. ¶ 14.) On May 22, 2015,
Tickles applied for a promotion to Sergeant. (Id.
¶ 18.) “Under [the] Guidelines[, ] a Corporal
could not be considered for a Sergeant position until they
served as a Corporal for 18 months.” (Id.) At
the time Tickles applied for the position, he had never
received a write-up and was one of only two deputies who
“met [Johnson's] Guidelines for promotion to
Sergeant.” (Id. ¶¶ 15, 16, 19.) Yet,
on or about June 8, 2015, instead of promoting Tickles to the
rank of Sergeant, Johnson promoted “two younger, less
qualified” deputies, Johnathan Scott and Mathew
Brinkley, who “both failed to meet the requisite
Guidelines for promotion to Sergeant.” (Id.
¶¶ 18, 19.)
two months” later, Johnson reprimanded Tickles
“for making a comment about a former maintenance
employee's intolerance for people of other races and
ethnicities” and terminated Tickles on August 19, 2015.
(Id. ¶¶ 20, 21.) Another deputy over forty
years old, Deputy Calicutt, was also terminated within a few
weeks of Tickles's termination. (Id. ¶ 22.)
Both Tickles and Calicutt had “exemplary
records”. (Id.) “Meanwhile, ”
Johnson “retained and promoted younger officers who
have been written-up and/or placed on probation for violating
[Johnson's] rules and policies.” (Id.
filed suit against Johnson on August 2, 2017, for allegedly
violating the ADEA when he failed to promote Tickles and when
he terminated Tickles. In response, Johnson argues that
Tickles does not allege (1) that Johnson was required to
follow the Guidelines, (2) “any significant
detail” about the applicable promotion standards other
than consideration of a Corporal for the position of a
Sergeant after the Corporal has served in his position for
eighteen months, (3) that he was qualified for the promotion
beyond his service as a Corporal for at least eighteen
months, (4) how Scott and Brinkley were less qualified, or
(5) that he was not promoted “but for his age”.
(Mem. in Supp. of Def.'s Mot. to Dismiss at 4-6 [Doc.
survive a Rule 12(b)(6) motion, the 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 Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556);
see also McCleary-Evans v. Md. Dep't of Transp.,
State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)
(noting that a complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face in the sense that the
complaint's factual allegations must allow a court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged”). When evaluating whether
the complaint states a claim that is plausible on its face,
the facts are construed in the light most favorable to the
plaintiff and all reasonable inferences are drawn in its
favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless,
“labels and conclusions[, ]” “a formulaic
recitation of the elements of a cause of action[, ]”
and “naked assertions . . . without some further
factual enhancement” are insufficient.
Twombly, 550 U.S. at 557.
context of an employment discrimination case, a plaintiff
need not allege facts to support a prima facie case of
discrimination at the pleading stage. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510-12 (2002). This remains
true even after Iqbal and Twombly.
McCleary-Evans, 780 F.3d at 586 (“To be sure,
those cases did not overrule Swierkiewicz's
holding that a plaintiff need not plead the
evidentiary standard for proving [an employment
discrimination] claim - indeed, Twombly expressly
reaffirmed Swierkiewicz's holding that the
‘use of a heightened pleading standard for [employment
discrimination] cases was contrary to the Federal Rules'
structure of liberal pleading requirements.'”).
And, this is true despite the inconsistent application of the
law. See id. at 588 (Wynn, J., dissenting) (noting
that the majority's affirmation dismissing the complaint
“brings into stark relief the tension embedded in the
Supreme Court's recent jurisprudence regarding Rule 8
pleading requirements” and “requires [the court]
to reconcile the Supreme Court's decisions in
[Twombly] and [Iqbal] with its decision in
[Swierkiewicz] - no small task as the inconsistent
case law in this area shows”).
Twombly and Iqbal do require that a
plaintiff claiming employment discrimination “allege a
plausible claim for relief”. Id. at
587. To do so, a plaintiff is “required to allege facts
to satisfy the elements of a cause of action created by that
[non-discrimination] statute”. Id. at 585.
Here, Tickles is required to allege sufficient facts to show
that he was “at least 40 years of age” and that
Johnson “fail[ed] or refus[ed] to hire” him
“because of [his] age” and that Johnson
“discharg[ed]” him “because of [his]
age”. 29 U.S.C. §§ 623(a)(1), 631(a);
Flanagan v. Syngenta Crop Prot., LLC, No. 1:17CV202,
2017 WL 3328168, at *6 (M.D. N.C. Aug. 3, 2017); Martinez
v. Conestoga Tile, No. JKB-15-3912, 2016 WL 1585637, at
*2 (D. Md. Apr. 20, 2016); Williams v. Guilford Tech.
Cmty. Coll. Bd. of Trs., 117 F.Supp.3d 708, 717 (M.D.
N.C. 2015). There is no question that Tickles has
sufficiently alleged his qualifying age and Johnson's
failure to promote him and termination of him. His
allegations that Johnson did so “because of”
Tickles's age, however, are insufficient.
support of his failure to promote claim, Tickles alleges
that, at the time he applied for the position, he had no
write-ups and his supervisors had been satisfied with his
work, that he was then a Corporal, and that he “met
Defendant's Guidelines for promotion to Sergeant.”
Yet, Johnson hired Scott and Brinkley who were
“younger”, “less qualified”, and
“failed to meet the requisite Guidelines for promotion
to Sergeant”. The sufficiency of this pleading can be
reduced to a singular question - whether or not an allegation
that “[u]nder Defendant's Guidelines[, ] a Corporal
could not be considered for a Sergeant position until they
served as a Corporal for 18 months” is sufficient to
remove this case from those in which a plaintiff conclusorily
pleads the elements of an offense. It is not.
refers to the “minimum standards” a person
“was supposed to meet” before he “could be
promoted” as “Guidelines”. These
allegations do not require Johnson to abide by the
“Guidelines” in his promotion decisions, nor does
Tickles otherwise allege that they are a legal requirement,
normally followed, purely advisory, or in the nature of a
threshold requirement rather than a qualification. While he
alleges that he “met Defendant's Guidelines for
promotion to Sergeant”, he does not allege any
Guideline other than tenure as Corporal. He alleges that
Scott and Brinkley were “less qualified”, but
does not allege the qualifications for Sergeant, his
qualifications, those of Scott and Brinkley, or how theirs
not reasonable to infer from these allegations that Johnson
did not promote Tickles because of his age. Instead, the
factual allegations leave to speculation the reason why
Johnson did not promote Tickles and instead promoted Scott
and Brinkley. Compare McCleary-Evans, 780 F.3d 582
(finding allegations insufficient to state a Title VII claim
where McCleary-Evans repeatedly alleged that the Highway
Administration did not select her because of the
decision-makers' bias against African-American women, but
did not allege any facts as to what happened during the
course of her interview to support that conclusion and,
instead, required the court to speculate that those who were
hired were not better qualified or did not perform better
during their interview or were not better suited for the
position based on experience and personality) with
Craddock v. Lincoln Nat'l Life Ins. Co., 533
Fed.Appx. 333 (4th Cir. July 22, 2013) (unpublished) (finding
allegations sufficiently stated an ADEA claim where Lincoln
trained all younger employees in the department to use a
scanner, but did not train Craddock despite her requests and
that Lincoln told Craddock she could not work again for
Lincoln sufficient to state a plausible ADEA claim) &
Fisher v. City of Winston-Salem, No. 1:12CV868, 2015 WL
471425 (M.D. N.C. Feb. 4, 2015) (finding allegations
sufficiently stated an ADEA claim where Fisher included
factual allegations of other applicants with similar or
inferior qualifications to Fisher's who were tested and
hired, description of conversations with city police
officers, a chronology of events, documents explaining the
qualifications for the police officer position and how Fisher
met each of those, and the Rating Scale System the police
department used to evaluate applicants).
extent of Tickles's allegations in support of his
discharge claim is that he was terminated two weeks after he
was not promoted and, a few weeks later, Calicutt, another
deputy over forty, with an exemplary record, was also
terminated. However, Calicutt's termination is not a
factor because there are no allegations as to why he was
terminated. The fact of his being over forty is not alone
sufficient to support a reasonable inference that he was
terminated because of age, but, instead, leaves to
speculation the reason for his termination. Tickles further
alleges that while he and Calicutt were terminated, Johnson
retained and promoted younger officers who have violated
Johnson's rules and policies. Tickles has not alleged
what rules and policies those officers violated, what those
violations were, or how they compared to his remark about a
former employee. From these scant allegations, it is not
reasonable to infer that Johnson terminated Tickles because
of his age. In sum, Tickles has failed to state a plausible
claim for relief under the ADEA.
reasons stated herein, IT IS HEREBY ORDERED that
Defendant's Motion to Dismiss Complaint [Doc. #5] be
GRANTED. A Judgment dismissing this action will be ...