United States District Court, E.D. North Carolina, Western Division
W. Flanagan United States District Judge
matter comes before the court on defendant's second
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). (DE 20). The issues
raised have been fully briefed, and in this posture are ripe
for ruling. For the reasons noted, defendant's motion is
OF THE CASE
a former lieutenant in defendant's police department,
initiated this action on November 28, 2018. Plaintiff alleges
discrimination and retaliation on the basis of race and sex,
in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. § 2000e
et seq., and disability discrimination and
retaliation in violation of the Americans with Disability Act
of 1990 (“ADA”), as amended, 42 U.S.C. §
12101, et seq. With leave of court, plaintiff filed
her amended complaint on June 3, 2019. Defendant filed the
instant motion to dismiss, arguing that plaintiff has failed
to state claims of unlawful discrimination or retaliation.
was hired by defendant in 2014. (Am. Compl. & 9). She
served as lieutenant, and was the only black female officer,
in defendant's police department. (Id.). In June
2017, plaintiff was diagnosed with congestive heart failure
and diabetes controlled with insulin injections, but
“continually and consistently” performed all her
duties for defendant despite her disability. (Id.
John Hunt (“Hunt”) became chief of police,
plaintiff received different treatment than white male police
officers. (Id. & 10). Hunt stripped plaintiff of
her supervisory and administrative duties. (Id.
& 13). Sergeant Hinson (“Hinson”), a white
male, was later promoted in July 2017 to second in command,
the position plaintiff formerly held. (Id. &
17). Hinson was paid higher wages than when plaintiff served
as second in command. (Id. & 17). He referred to
plaintiff as “bitch” without repercussion.
(Id. & 14). No. white employees in the police
department would communicate, coordinate or work with
plaintiff. (Id. && 15-16).
assigned police vehicle was taken away because it was
allegedly needed for second shift, but the male officers
assigned to second shift already had vehicles assigned to
them. (Id. & 18). After plaintiff turned her
vehicle in and it was used by other male officers, plaintiff
was disciplined for failing to maintain the vehicle.
(Id. & 19). On August 29, 2017, plaintiff was
required to submit to a medical fitness for duty evaluation,
although her conduct, attendance, and performance did not
give rise to the need for such evaluation. (Id.
& 20; see First EEOC Charge (DE 18-1) at 1).
When plaintiff asked Hunt why she was being referred for the
Medical Fitness for Duty Evaluation, Hunt allegedly
responded, “because you are a female and
diabetic.” (Am. Compl. & 21). One day later, she
was suspended for three days without pay for allegedly
listening to inappropriate music in her assigned vehicle.
(Id. & 23).
filed her first charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) based
upon the alleged discriminatory practices of defendant on or
about September 1, 2017. (Id. & 24). Plaintiff
was placed on administrative leave on or around September 8,
2017 pending the results of her Medical Fitness for Duty
Evaluation. (Id. & 25). Plaintiff was determined
physically fit to return to work, but defendant then required
a psychological evaluation prior to her return to work.
(Id. & 26). Plaintiff was determined to be
psychologically fit for duty as well. (Id. &
terminated plaintiff on or about January 11, 2018, allegedly
for failing to take evidence to the SBI crime lab on time in
May 2017. (Id. & 29). While working for
defendant, plaintiff requested training and access to the SBI
evidence portal, but her request was denied by defendant
Hunt. (Am. Compl. & 33; Appeals Decision (DE 18-5);
Higher Authority Decision (DE 18-6)). Plaintiff then filed
her second charge of discrimination with the EEOC. (Am.
Compl. & 34; Second EEOC Charge (DE 18-2) at 1). After
plaintiff's second charge was filed, Hunt allegedly said
that he “kn[e]w definitively that [plaintiff] was
discriminated against by the majority of the Board of
Commissioners, who all happen to be Caucasian.” (Am.
Compl. & 37; Wilson Times Article (DE 18-7) at 1).
Standard of Review
survive a motion to dismiss” under Rule 12(b)(6),
“a 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, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[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 ...