United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's motion to
dismiss. [DE 12]. Plaintiff has responded in opposition and
the matter is ripe for disposition. For the reasons that
follow, defendant's motion to dismiss [DE 12] is DENIED.
1991, plaintiff was hired by defendant, Craven County, to
join the Department of Tax Collections. [DE 1, ¶ 16]. In
November 2017, plaintiff s job title was Deputy Tax
Collection Clerk III, which she alleges was the highest rank
in the county's Department of Tax Collections.
Id. ¶ 19. Plaintiff alleges that she had a
history of positive performance reviews, had never been
subject to disciplinary action, and had a wide range of
responsibilities within the department. Id.
November 28, 2017, plaintiff received an email from her
supervisor, Mr. Ronnie Antry, announcing the creation of a
new position with the Department of Tax Collections: Tax
Collection Manager. Id. ¶ 23. In that same
email, Mr. Antry announced that the new position would be
filled by Ms. Cindy Glover. Id.
who is a black woman and was 61 years old in November 2017,
alleges that Ms. Glover joined the Department of Tax
Collections in January 1999. Id. ¶¶ 24;
51; 58. Ms. Glover, a white woman who was allegedly under the
age of 40 in November 2017, is also alleged to have been a
Deputy Tax Collection Clerk I at the time she was promoted to
the new position of Tax Collection Manager. Id.
¶¶ 23; 24; 63. Plaintiff alleges that there was
significant overlap between her responsibilities as a Deputy
Tax Collection Clerk III and the responsibilities of the new
Tax Collection Manager, with the latter position paying an
additional $15, 000. Id. ¶¶ 27-28.
contends that defendant did not announce or advertise the new
position, did not conduct any internal or external recruiting
process, did not provide anyone other than Ms. Glover with
the opportunity to apply for the new position, and violated
its own hiring and recruitment policies in selecting Ms.
Glover. Id. ¶¶ 29-30; 34-38. Plaintiff
alleges that the Tax Collection Manager job description
states a preference for a four-year college degree or an
associate's degree; plaintiff has bachelor's degree
in accounting and alleges that Ms. Glover does not.
Id. ¶¶ 27; 32-33. Plaintiff argues that
she was more qualified than Ms. Glover for the Tax Collection
Manager position and would have applied for it had she been
given the opportunity. Id. ¶¶ 31-32.
December 2017, plaintiff filed, a formal grievance with
defendant over its failure to promote her to the new position
of Tax Collection Manager. Id. ¶¶ 39-40.
Plaintiff met with Mr. Antry and was informed that she was
not chosen for the new position because defendant wanted to
"fill this role for the next four years."
Id. ¶ 40. A grievance hearing was held in
January 2018 before the County Manager, Mr. Jack Veit, and
the HR director, Ms. Amber Parker. Id. ¶ 42.
Mr. Veit then sent a letter to plaintiff reiterating the
finality of his decision to hire Ms. Glover but providing no
additional explanation. Id. ¶ 45. Plaintiff
filed her formal charge with the Equal Employment Opportunity
Commission (EEOC) in March 2018, alleging race and age
discrimination, and received her right-to-sue letter in
December 2018. Id. ¶¶ 46-49.
March 2019, plaintiff initiated the instant action, bringing
two causes of action. [DE 1]. First, plaintiff alleges that
defendant discriminated against her on the basis of her race
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. ¶¶ 2000e, et seq. Id. ¶¶
50-56. Second, plaintiff alleges that defendant discriminated
against her on the basis of her age in violation of the Age
Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C.
§§ 621, et seq. Id. ¶¶ 57-64.
Specifically, plaintiff alleges that defendant's failure
to promote her to the new position of Tax Collection Manager
in November 2017 was attributable to her race and her age.
2019, defendant moved to dismiss plaintiffs complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim on which relief can be granted. [DE 12]. Defendant
argues that plaintiff has failed to allege sufficient facts
to demonstrate that defendant's failure to promote her to
the new position of Tax Collection Manager was the result of
race or age discrimination. Id. Plaintiff has
responded in opposition to dismissal. [DE 17].
has moved to dismiss plaintiffs claims for failure to state a
claim upon which relief can be granted under Rule 12(b)(6).
When considering a motion to dismiss under Rule 12(b)(6),
"the court should accept as true all well-pleaded
allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint
must state a claim for relief that is facially plausible.
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," as merely reciting the
elements of a cause of action with the support of conclusory
statements does not suffice. Iqbal, 556 U.S. at 678.
The Court need not accept the plaintiffs legal conclusions
drawn from the facts, nor need it accept unwarranted
inferences, unreasonable conclusions, or arguments.
Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009).
parties agree that the elements of plaintiffs failure to
promote claim, premised on disparate treatment, is the same
under both Title VII and the ADEA. To state a claim for
failure to promote, plaintiff must plausibly allege (1) that
she is a member of a protected class; (2) that her employer
had an open position for which she applied; (3) that she was
qualified for the position; and (4) that she was rejected for
the position under circumstances giving rise to an inference
of unlawful discrimination. Taylor v. Va. Union
Univ., 193 F.3d 219, 230 (4th Cir. 1999) (en banc). But
when, as here, the plaintiff was unaware of the availability
of a new position, "requiring the plaintiff to show that
he or she applied for the specific job at issue would be
unrealistic." Williams v. Giant Food Inc., 370
F.3d 423, 431 (4th Cir. 2004). Indeed, when "the
employer fails to make its employees aware of vacancies, the
application requirement may be relaxed and the employee
treated as if she had actually applied for a specific
Court finds that plaintiff satisfies the criteria that the
Fourth Circuit provided in Taylor for stating a
failure-to-promote claim. Plaintiff, who alleges that she was
a 61-year-old African-American woman at the time defendant
announced that Ms. Glover would be the new Tax Collection
Manager, was a member of two protected classes. Defendant
concedes as much. Plaintiff alleges that defendant did not
make her or other employees aware of the new position, but
that she would certainly have applied if she had known of the
position. This is sufficient to satisfy the relaxed second
element of a failure-to-promote claim. Plaintiff was clearly
qualified for the position, given the high rank she held in
the Department of Tax Collection, her college degree in
accounting, and her 26 ...