IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CIVIL ACTION NO. 1:23-cv-50

MARLENE WILKINSON )
)
Plaintiffs, )
) DEFENDANT’S BRIEF IN
v.
) SUPPORT OF MOTION TO
HENDERSON COUNTY ) DISMISS AMENDED
) COMPLAINT
Defendants. )
)
)

I. INTRODUCTION
This Amended Complaint was brought under Title VII of the Civil Rights Act

of 1964 by Plaintiff Marlene Wilkinson, a former Program Manager with Henderson

County Department of Social Services (“DSS”), who alleges that she was subjected

to a hostile work environment, paid less than other DSS employees based upon her

race, and was constructively discharged from DSS. [Document 6]

In her Amended Complaint, Plaintiff asserts the following claims for relief:

First Claim for Relief: Hostile Work Environment due to racial discrimination

in violation of Title VII [Document 6, ¶¶ 29-33];

Second Claim for Relief: Unlawful discrimination on the basis of

compensation, id. at ¶¶ 34-35; and

Third Claim for Relief: Constructive Discharge, id. at ¶ 36.

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 Defendant is filing this motion to dismiss because Plaintiff fails to allege

sufficient facts that the harassment she suffered was sufficiently severe or pervasive

to alter the conditions of her employment and create an abusive atmosphere.

Plaintiff also fails to allege any facts to support her claim that she was paid less than

other employees because of her race.

II. FACTS ALLEGED IN AMENDED COMPLAINT

In February 2015, Plaintiff, an African-American woman, was employed by

DSS as a supervisor [Document 6, ¶¶ 3, 7].

In March 2015, Plaintiff complained to the DSS administrator, Sandy

Morgan, regarding conversations and rumors about Plaintiff being promoted to

supervisor. Id. at ¶ 7. These comments, which Plaintiff contends “were racially

motivated based upon her being Black,” included the following: 1) Plaintiff was

not qualified to be a supervisor; 2) that she was a “token”, 3) that she played the

“race card to get the position”; 4) that the quality of her work was subpar; and 5)

that subordinates said that they refused to work on her team. Id. Morgan

performed an investigation into Plaintiff’s complaints. Id. at § 8.

One year later, in March 2016, Morgan told Plaintiff to come to a meeting

with Henderson County’s human resources director Jan Prichard. Id. at ¶ 12.

Morgan told Plaintiff that she was under investigation and when Plaintiff asked

“for what?”, Morgan said that she could not disclose it but that Jerri McFalls, the
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DSS director, approved the investigation. Id. Prichard informed Plaintiff she was

being placed on investigatory leave with pay and she would be escorted out of the

building. Id. Morgan escorted Plaintiff down the hallway in front of her

coworkers and made it obvious to anyone that could see that she was securing the

door behind Plaintiff. Id.

The following day, Plaintiff was informed by Morgan that the investigation

was closed, that the allegations were false, but she received no apologies. Id. at ¶

13. After returning to work, Morgan told Plaintiff “[w]e were trying to get you for

reverse racism.” Id. at ¶ 15. Morgan informed Plaintiff that there were

complaints that Plaintiff used “threatening body language” and used the word

“urban.” Id. According to Plaintiff, Morgan informed her that the county manager,

after receiving the allegations against Plaintiff, said “Get her out of here. We don’t

want a person like her working for the County.” Id.

Plaintiff also alleges that other evidence of harassment included: 1) being

“racially disparaged”, id. at 16; 2) Morgan made comments to her about her hair

and her skin, id. at ¶ 20; and 3) she was not given a window office. Id. at ¶ 22.

In March 2018, Plaintiff was promoted to DSS program manager, where she

managed 3 supervisors, and 31 income maintenance workers. Id. at ¶ 21. During

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her time as the Program Manager, Plaintiff’s subordinates were insubordinate to

her, and Plaintiff complained, but no actions were taken. Id.

In May 2021, a white co-worker showed Plaintiff a website that listed

Defendant’s employees’ salaries and the co-worker, who was equal in rank to

Plaintiff, had a higher salary. Id. at ¶ 23. Plaintiff filed her notice of charge with

the EEOC on July 7, 2021. Id. at ¶ 6. Plaintiff resigned from DSS claiming that

she was constructively discharged. Id. at ¶ 36.

III. ARGUMENT
A. PLAINTIFF MUST SUPPORT HER LEGAL CONCLUSIONS
WITH FACTUAL ALLEGATIONS
Plaintiff’s Amended Complaint must give Defendant “fair notice of what the

claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

544, 555, 127 S. Ct. 1955, 1964 (2007). To meet this requirement, the Amended

Complaint must be supported by factual allegations. “While legal conclusions can

provide the framework of the complaint,” neither legal conclusions nor conclusory

statements are themselves sufficient, and such statements are not entitled to

presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-

50 (2009). To survive a motion to dismiss, Plaintiff’s Amended Complaint must

allege “more than an unadorned, the defendant- unlawfully-harmed-me accusation.”

Id. at 678, 129 S.Ct. at 1949. As the United States Supreme Court explained in Iqbal,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice” to state a claim. Id. (internal citation

omitted). Courts “are not bound to accept as true a legal conclusion couched as a

factual allegation.” Id. at 678, 129 S.Ct. at 1949-1950.

B. PLAINTIFF FAILS TO STATE A HOSTILE WORK

ENVIRONMENT CLAIM BASED UPON RACE

Title VII makes it unlawful for an employer “to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race or sex.” 42 U.S.C. § 2000e-2(a)(1).

To bring a Title VII hostile work environment claim based upon race, Plaintiff

must allege sufficient facts to plausibly show that the harassment she suffered was

(1) unwelcome; (2) based on race; (3) sufficiently severe or pervasive to alter the

conditions of her employment and create an abusive atmosphere; and (4) imputable

to defendant. E.E.O.C. v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir.

2009)

The “sufficiently severe or pervasive” element requires Plaintiff to allege

sufficient facts plausibly demonstrating that the workplace was “permeated with

discriminatory intimidation, ridicule and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

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working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct.

367, 370 (1993) (internal citations omitted).

When considering whether a plaintiff has alleged sufficient facts to state a

Title VII hostile work environment claim, the Court will consider “the totality of

the circumstances, including the ‘frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.’” Okoli v. City of Baltimore., 648 F.3d 216, 220 (4th Cir. 2011)

(internal citations omitted). The standard for proving a hostile work environment is

“sufficiently demanding,” in order to “filter out complaints attacking the ‘ordinary

tribulations of the workplace such as the sporadic use of abusive language, gender-

related jokes, and occasional teasing.’” Faragher v. City of Boca Raton, 524 U.S.

775, 788, 118 S.Ct. 2275, 2284. (1998) (internal citations omitted)). As a result,

“[P]laintiffs must clear a high bar in order to satisfy the severe or pervasive test.”

EEOC v. Sunbelt Rentals, Inc, 521 F.3d 306, 315 (4th Cir. 2008).

Plaintiff identifies the following instances of conduct in alleging that she

was subjected to severe and pervasive harassment: 1) Plaintiff’s 2015 complaints

that Defendant’s employees stated that she was not qualified to be a supervisor and

played the “race card”, [Document 6, ¶ 7]; 2) a March 2016 investigation into

Plaintiff for “reverse racism”, id. at ¶¶ 12, 15, which included allegations that
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Plaintiff used “threatening body language,” the word “urban”, id. at ¶ 15, and that

the County Manager told Morgan to “[g]et [Plaintiff] out of here. We don’t want a

person like her working for the County.”; 3) unspecified times where Plaintiff was

“racially disparaged” , id. at ¶ 16; 4) Morgan made comments to Plaintiff about

Plaintiff’s hair and skin, id. at ¶ 20; and 5) she was not given a window office. Id.

at ¶ 22. Plaintiff also alleges that she was promoted twice at DSS, id. at ¶¶ 7, 21,

managed three supervisors and thirty one income maintenance workers, id. at ¶ 21,

and was the only black employee in a leadership position at DSS. Id. at ¶ 22.

These allegations do not rise to the level of “severe and pervasive harassment”

because Plaintiff does not allege acts that are sufficiently severe or pervasive to

alter the conditions of her employment and create an abusive atmosphere. Central

Wholesalers, Inc., 573 F.3d at 175. For several reasons, Plaintiff has failed to meet

her heavy burden to demonstrate that the conduct was “severe and pervasive.”

Sunbelt Rentals, Inc, 521 F.3d at 315.

First, from February 2015 until she resigned in 2021, Plaintiff points to two

specific incidents, the 2015 and 2016 investigations, as well as unspecified

comments made by DSS employees during that time period. The fact that these

alleged events span six years indicates that the alleged discrimination was not

widespread and pervasive. See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d

745, 753 (4th Cir.1996), abrogated on other grounds by Bostock v. Clayton

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County, - U.S.-, 140 S. Ct. 1731 (2020) (“the incidents that Hopkins recounts

occurred intermittently over a seven-year period, with gaps between incidents as

great as a year. That alone suggests the absence of a condition sufficiently

pervasive to establish Title VII liability.” ); see also Nurriddin v. Bolden, 674

F.Supp.2d 64, 94 (D.D.C.2009) (dismissing a hostile work environment claim in

part because “the alleged events are temporally diffuse, spread out over a four-year

period suggesting a lack of pervasiveness”); Childs–Pierce v. Utility Workers of

America, 383 F.Supp.2d 60, 79 (D.DC. 2005) (dismissing a hostile work

environment claim that plaintiff “attempt[ed] to cobble together ... from discrete

acts of alleged discrimination against her that are neither severe nor widespread”).

Second, Plaintiff’s allegations that her subordinates complained about her

promotion in 2015, were rude to her without repercussion in March 2018, and she

was not given a window office, [Document 6, ¶¶ 7, 21, 22] also fail to sufficiently

allege “severe and pervasive” conduct. As the Fourth Circuit stated, “Title VII

does not create a ‘general civility code in the workplace’” and “complaints

premised on nothing more than rude treatment by [coworkers], callous behavior by

[one’s] superiors, or a routine difference of opinion and personality conflict with

[one’s] supervisor, are not actionable.” Sunbelt Rentals, Inc., 521 F.3d. at 315-

316. After receiving complaints from Plaintiff in 2015, Morgan did not ignore

them. [Document 6, ¶¶ 8-9]. Rather, she investigated it and asked Plaintiff to

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identify who made comments about her. Id. at ¶ 10. Plaintiff’s dissatisfaction with

the results of Morgan’s investigation, [Document 6, ¶ 10] does not change the fact

that an investigation was conducted which contradicts any claim of a hostile

working environment. See Chenette v. Kenneth Cole Productions, Inc, 345 Fed.

Appx. 615 at * 4 (2nd Cir. 2009) (fact that employer conducted investigation into

Plaintiff’s complaint negates hostile work environment claim because employer

“rather than tolerating a hostile work environment, acted to forestall it.”).

While it is unfortunate that Plaintiff’s subordinates were rude to her, and not

punished for it, after she was promoted for the second time, those allegations do

not equate to a hostile work environment. As the Fourth Circuit recognized in

Sunbelt Rentals, Inc.: “[w]orkplaces are not always harmonious locales, and even

incidents that would objectively give rise to bruised or wounded feelings will not

on that account satisfy the severe or pervasive standard.” Id. at 315.

Third, Plaintiff’s allegations that Morgan questioned Plaintiff about her skin

and hair, and Plaintiff was accused of using the word “urban”, and that “[r]acially

derogatory comments in the workplace were condoned,” [Document 6, ¶¶ 15, 19 ]

do not rise to the “severe and pervasive” level. Plaintiff does not identify the

specific comments which were “[r]acially derogatory,” who made them, or when

they were made. In Tims v. Carolinas Healthcare System, 983 F.Supp.2d 675, 681

(W.D.N.C. 2013), the district court held that comments such as “you people” and
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“y’all blacks are sneaky people and always trying to get around the rules” was

“insensitive and reprehensible” but “these isolated comments do not rise to the

level of severity necessary to alter the terms and conditions of employment.” See

also Webster v. Town of Warsaw, 66 F.Supp.3d 706, 709 (E.D.N.C. 2014) (use of

the term “boy,” to refer to African American police chief was offensive but did not

create a hostile work environment based upon race); Murphy v. Danzig, 64

F.Supp.2d. 519, 522 (E.D.N.C. 1999) (defendant’s comment to plaintiff that

“’you’re black’ and that ‘you people’ are used to being targeted” was “a mere

offensive utterance that occurred once and did not unreasonably interfere with

[plaintiff’s] ability to work.” ).

Plaintiff’s claim that harassment existed because she was investigated for

using the word “urban” is misplaced. The relevant inquiry in a hostile work

environment claim is the conduct of the employer, not comments made by the

employee. Central Wholesalers, Inc., 573 F.3d 167, 175 (noting discriminatory

conduct must be imputed to Defendant). Plaintiff also does not state what Morgan

said about her hair and skin, but only that Morgan had comments about both.

[Document 6, ¶ 20]. These allegations do not rise to the level of severe and

pervasive harassment. See Andrews v. Virginia Polytechnic Institute, 2020 WL

714234 at * 10 (W.D.Va. 2020) (discussions with Plaintiff about wearing her “hair

naturally and in a fro” and requests to touch Plaintiff’s hair not severe and
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pervasive harassment.). See also Perches v. Elcom, Inc., 500 F. Supp. 2d 684, 692

(W.D. Tex. 2007) (occasional comments about the plaintiff’s hair and lips,

including asking whether her hair was real, though offensive utterances, were not

sufficiently severe or pervasive to establish a hostile work environment).

Last, Plaintiff’s promotions and achievements undercut her claim that the

work environment was hostile. Plaintiff was promoted twice in six years,

supervised three supervisors and thirty one income maintenance workers, and was

the highest ranking African American at DSS. [Document 6, ¶¶ 21, 22]. This is

the antithesis of discrimination. Jones v. Sun Pharmaceutical Industries, Inc,

2020 WL 2501439 at * 8 (E.D.Va. 2020) (unpublished) (allegation that Plaintiff

finished as the second ranked sales manager undercuts allegation that harassment

“unreasonably interfered with” Plaintiff’s work performance.)

C. PLAINTIFF FAILS TO STATE AN UNLAWFUL

DISCRIMINATION BASED UPON COMPENSATION CLAIM

To bring a Title VII unlawful discrimination based upon compensation

claim, Plaintiff must allege that she is female, the job she occupied was similar to

higher paying jobs occupied by males, and there is a connection between her race

and her pay. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d. 336, 343 (4th Cir.

1994). In support of this claim, Plaintiff alleges that 1) a white co-worker, who

was equal in seniority, and held a “comparable position” had a higher salary than

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Plaintiff, [Document 6, ¶ 23] and 2) she was paid less than “white program

managers,” despite performing “equal work” which required “equal skill, effort,

and responsibility” under “similar working conditions.” Id. at ¶24. Notably

absent from these allegations are any facts about 1) her rate of pay; 2) the

comparator’s rate of pay; 3) the name of the comparators; 4) her job duties; or 5)

her comparator’s job duties.

In Medeiros et al v. Wal-Mart, Inc. 434 F. Supp 3d. 395, 415 (W.D. Va.

2020), the district court considered a similar claim. Like Plaintiff in this case, one

of the Plaintiffs in Medeiros- Quirk- claimed that during her tenure at Walmart,

men earned more than similarly experienced and tenured women. Id. at 415. The

Court dismissed Quirk’s pay discrimination claim as too conclusory because “[s]he

did not allege any facts to support her allegations, such as her rate of pay compared

to men at Walmart, and she did not name or describe any similarly situated men

who earned more than she did.” Id. See also Michael v. Virginia Department of

Transportation, 2022 WL 3569004 at * 10 (E.D.Va. 2022) (allegations that two

male coworkers with the same title, work responsibilities and working conditions

made $ 20,000 per year more than Plaintiff insufficient to state either an Equal Pay

Act claim or Title VII claim because these were “recitations of the legal

requirements for her clam, and [Plaintiff] does not provide any details about her

coworkers’ job responsibilities and how they compared to hers.”); Spencer v.

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Virginia State University, 224 F.Supp.3d 449 457-458 (E.D. Va. 2016)

(dismissing EPA and Title VII claims where plaintiff failed to allege “appropriate

comparators.”); Clement v. Spartanburg Steel Products, 2020 WL 8713676 at *7

(D.SC 2020) (dismissing Title VII claim where Plaintiff only alleges that he was

paid less than his white co-workers, but fails to allege what positions he holds and

what positions his white co-workers who are allegedly paid more than him hold).

D. PLAINTIFF’S CONSTRUCTIVE DISCHARGE CLAIM

SHOULD BE DISMISSED
Plaintiff alleges that she was constructively discharged due to a hostile work

environment. [Document 6, ¶ 36]. Defendants assume that, while not

denominated as such, Plaintiff is bring her constructive discharge claim under Title

VII because the North Carolina Supreme Court has not recognized the tort of

constructive discharge. Gelin v. N-Able Technologies, Inc., 2023 WL 3079420 at *

3 (E.D.N.C. 2023) (unpublished).

As a constructive discharge claim under Title VII requires “more than is

required to state a hostile work environment claim under Title VII,” Plaintiff’s

failure to plausibly a hostile work environment means that she also fails to allege

working conditions sufficient to prove constructive discharge under Title VII.

Webster, 66 F.Supp.3d at 709. As set forth on pages 5-12, Plaintiff fails to state a

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cognizable hostile work environment claim and therefore cannot bring a hostile-

environment constructive discharge claim.

Even if Plaintiff has alleged a cognizable hostile work environment claim,

she has not met the higher burden of a hostile-environment constructive discharge

claim. To establish a constructive discharge, “a plaintiff must show ‘that [s]he was

discriminated against by h[er] employer to the point where a reasonable person in

h[er] position would have felt compelled to resign’ and that she actually resigned.”

Evans, 936 F.3d at 193 (internal citations omitted). The conditions must go

“beyond ‘ordinary’ discrimination.” Id. (internal citations omitted).

Courts evaluating constructive discharge claims must consider whether a

plaintiff’s workplace was made so intolerable by deliberate actions by DSS that

she was compelled to resign. Matvia v. Bald Head Island Management, Inc., 259

F.3d. 261, 272 (4th Cir. 2001). “However, mere dissatisfaction with work

assignments, a feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable person to

resign.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 378 (4th Cir.

2004)). Moreover, “[i]n assessing intolerability, the frequency of the conditions at

issue is important.” Evans, 936 F.3d at 193. Thus, “[t]he more continuous the

conduct, the more likely it will establish the required intolerability. On the other

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hand, when the conduct is isolated or infrequent, it is less likely to establish the

requisite intolerability.” Id.

As set forth earlier, Plaintiff was promoted two times in six years, and was

the highest ranking African American at DSS. [Document 6, ¶¶ 7, 21, 22]. That,

coupled with the paucity of any allegations that the working environment became

“intolerable,” mandates dismiss of Plaintiff’s hostile-environment constructive

discharge claim.

IV. CONCLUSION
Plaintiff was promoted two times in six years, supervised thirty four people,

and was the highest ranking African American employee at DSS. These

allegations do not constitute a hostile working environment. At best, Plaintiff’s

allegations point to complaints based upon rude treatment by coworkers, and

superiors, and not the severe and pervasive conduct required for a hostile work

environment claim. In addition, there are no facts to support her claim that she

was paid less because of her race. Plaintiff’s Amended Complaint should therefore

be dismissed.

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 Respectfully submitted this 26th day of May, 2023.

/s/Sean F. Perrin
N.C. State Bar. No. 22253
WOMBLE BOND DICKINSON (US) LLP
301 South College Street, Suite 3500
Charlotte, North Carolina 28202-6037
Telephone: 704-331-4992
Facsimile: 704-338-7814
Sean.Perrin@wbd-us.com
Attorney for Defendant

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