IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CIVIL ACTION NO. 1:23-cv-50

MARLENE WILKINSON )
)
Plaintiffs, )
)
v. DEFENDANT’S OBJECTIONS
)
TO MEMORANDUM AND
HENDERSON COUNTY )
RECOMMENDATION
)
Defendants. )
)
)

Defendant objects to the October 6, 2023 Memorandum and Recommendation

of United States Magistrate W. Carleton Metcalf to the extent it recommends

denying Defendant’s motion to dismiss Plaintiff’s hostile work environment based

upon race claim. [Document 12, p. 11].

I. THE MEMORANDUM AND RECOMMENDATION ERRED IN

DENYING DEFENDANT’S MOTION TO DISMISS THE HOSTILE
WORK ENVIRONMENT BASED UPON RACE CLAIM
A. PLAINTIFF MUST DEMONSTRATE THAT THE CONDUCT
WAS SUFFICIENTLY SEVERE AND PERVASIVE WHICH
ALTERS THE CONDITIONS OF HER EMPLOYMENT

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

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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 Memorandum and Recommendation erred when it found that Plaintiff

sufficiently alleged that the allegations in the Amended Complaint were

sufficiently severe or pervasive to alter the conditions of her employment.

[Document 12, p. 11].

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

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
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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 must also show that based upon a “reasonable person”

standard, the “sufficiently severe or pervasive” conduct altered the conditions of

her employment. Robinson v. Priority Automotive Huntersville, Inc., 70 F.4th 776,

781-782 (4th Cir. 2023) (citations omitted).

As will be demonstrated below, the Memorandum and Recommendation

erred in finding that Plaintiff stated a claim for hostile work environment based

upon race because the allegations in her Amended Complaint do not meet the

“severe and pervasive” standard.

B. ALLEGATIONS IN PLAINTIFF’S AMENDED COMPLAINT

In her Amended Complaint, Plaintiff identifies the following instances of

conduct- occurring over a six year time period- to demonstrate that she was

subjected to severe and pervasive harassment: 1) in 2015, Defendant’s employees

stated that Plaintiff was not qualified to be a supervisor and played the “race card,”

[Document 6, ¶ 7]; 2) in March 2016, Plaintiff was investigated for “reverse

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racism,” which included allegations that Plaintiff used “threatening body

language,” the word “urban”, and that the County Manager told DSS Administrator

Sandy Morgan to “[g]et [Plaintiff] out of here. We don’t want a person like her

working for the County, ” id. at ¶¶ 12, 15; 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) Plaintiff was not given a window

office. 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

environment. Central Wholesalers, Inc., 573 F.3d at 175.

1. THE ALLEGED IMPROPER CONDUCT OCCURRED

INTERMITTENTLY WITH GAPS BETWEEN
INCIDENTS
Plaintiff does not allege that she was subjected to daily, or even monthly,

harassment. From February 2015 until she resigned in 2021, Plaintiff can only

identity two specific incidents- the 2015 comments made by her subordinates and

the 2016 investigation- 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 County, - U.S.-, 140 S. Ct. 1731 (2020) (“the

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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”).

2. THE 2015 COMMENTS MADE BY PLAINTIFF’S

SUBORDINATES
Plaintiff’s allegations that her subordinates complained about her promotion

in 2015, [Document 6, ¶¶ 7 ] also fails to sufficiently allege “severe and

pervasive” conduct. While Plaintiff contends that these complaints were “racially

motivated,” id, she does not allege who made these comments, how the comments

were racially motivated, or even that they were racial in nature. “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 the presumption of truth. Ashcroft v. Iqbal, 556 U.S.

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662, 678, 129 S.Ct. 1937, 1949-1950 (2009). The only arguable racial comments

in her Amended Complaint concerning this meeting were that she was a “token”

and “played the race card to get the position.” [Document 6, ¶ 7]. 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 these complaints, Morgan did not ignore them. [Document

6, ¶¶ 8-9]. Rather, she investigated it and asked Plaintiff to identify who made

comments about her. Id. at ¶ 10. Plaintiff’s dissatisfaction with the results of

Morgan’s investigation, id., 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, “[w]orkplaces

are not always harmonious locales, and even incidents that would objectively give

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rise to bruised or wounded feelings will not on that account satisfy the severe or

pervasive standard.” Sunbelt Rentals, 521 F.3d. at 315.

3. THE 2016 INVESTIGATION INTO PLAINTIFF

One year after Plaintiff’s subordinates made comments about her, Plaintiff

alleges that she was investigated in 2016 for “reverse racism” and for using

“threatening body language,” the word “urban”, and then escorted out of the office

by Morgan. [Document 6, ¶¶ 12, 15]. There are no allegations that the

investigators made racially demeaning comments to Plaintiff, or started this

investigation based upon Plaintiff’s race. Plaintiff makes no connection between

Plaintiff being investigated for “reverse racism,” and Defendant discriminating

against her because of her race. Moreover, Plaintiff does not demonstrate how her

use of the word “urban” demonstrates the racial bias of people- any of Defendant’s

employees- who didn’t use that word. In addition, Plaintiff was cleared of any

wrongdoing within one day of the investigation being started. Id. at ¶ 13. With

respect to Plaintiff’s allegations that she was escorted out of the office by Morgan,

that is not an allegation of racial bias. Faulkenberry v. U.S. Department of

Justice, -- F.Supp.3d--, 2023 WL 3074639 (D. Md. 2023) is instructive on this

allegation. In Faulkenberry, a hostile work environment claim was brought by a

transgender woman who claimed that she was subjected to a hostile work

environment for, among other things, being escorted from work for a perceived

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threat of violence. Id. at * 11. The district court concluded that this allegation did

not support a hostile work environment claim because “Plaintiff merely alleges that

she was escorted out of the work premises by security, albeit that this escorting

occurred through the main hallway of the work building and in view of other

employees. Even considering such conduct to be a show of potential force, far

worse is required.” Id. at * 12.

4. PLAINTIFF’S ALLEGATIONS THAT “RACIALLY

DEROGATORY COMMENTS WERE FREQUENTLY
MADE”
Plaintiff’s allegations that “[r]acially derogatory comments were frequently

made” [Document 6, ¶¶ 19] does not rise to the “severe and pervasive” level.

Plaintiff does not identify the specific comments which were “[r]acially derogatory,”

who made them, when they were made, or what “frequently made” means. Was it

every day, every week, or every month? Presumably, if her work environment was

permeated with these comments, Plaintiff could specifically identify the “racially

derogatory” comments, who made them, and when. Simply saying that “racially

derogatory” comments were made, without any factual support, does not make it so.

Several district court cases are instructive on this issue.

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 “y’all blacks

are sneaky people and always trying to get around the rules” was “insensitive and
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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.” ).

5. MORGAN’S COMMENTS ABOUT PLAINTIFF’S HAIR

AND SKIN

Similar to her lack of specificity regarding the alleged “racially derogatory”

comments, Plaintiff does not state what Morgan said about her hair and skin, but

only that Morgan made comments about both. [Document 6, ¶ 20]. While

Morgan’s questioning Plaintiff about her hair was undoubtedly not professional, it

does not support an objective inference of 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 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

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work environment). As the Fourth Circuit recently stated in a case where an

employer used the word “thug” to describe a Plaintiff, “[w]hether or not it would

violate someone’s subjective sensibilities or defy etiquette ideals, Beckley’s one-

time use of ‘thugs’ fails to support an objective inference of racial harassment-

never mind severe or pervasive racial harassment.” Robinson, 70 F.4th. at 782.

6. PLAINTIFF’S FAILURE TO RECEIVE A WINDOW

OFFICE

While Plaintiff points to the fact that she was not assigned an office with a

window as evidence of a hostile work environment, [Document 6, ¶ 22], she fails to

allege any facts to support such a claim. Finding that a work environment is altered

by assigning someone to an office without a window would trivialize Title VII.

See Ogbonna- McGruder v. Austin Peay State University, 2023 WL 3572891 at **

2-3 (M.D. Tenn. 2023) (unpublished) (dismissing hostile work environment claim

based, in part, upon allegations that Plaintiff was asked to move her office to a

basement office).

7. PLAINTIFF WAS PROMOTED DURING HER TIME

WITH DSS

Plaintiff’s promotions and achievements undercut her claim that her work

environment was hostile. Plaintiff’s Amended Complaint alleges that she was

promoted twice at DSS, [Document 6, at ¶¶ 7, 21], managed three supervisors and

thirty one income maintenance workers, id. at ¶ 21, and was the only black
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employee in a leadership position at DSS. Id. at ¶ 22. These allegations rebut any

inference that the alleged hostile working environment unreasonably interfered

with Plaintiff’s work performance. Okoli v. City of Baltimore., 648 F.3d 216, 220

(4th Cir. 2011) (internal citations omitted). These allegations are 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.)

8. THE ALLEGATIONS IN PLAINTIFF’S AMENDED

COMPLAINT ARE INSUFFICIENT TO STATE A
HOSTILE WORK ENVIRONMENT CLAIM

Plaintiff’s allegations fall short of numerous district court cases in which

Courts have dismissed hostile work environment claims on motions to dismiss. For

instance, in Covington v. Randolph Hospital, Inc., 147 F.Supp.3d. 399 (M.D.N.C.

2015), Plaintiff’s supervisor asked her if she was intimidated by white people,

accused her of using a wrong methodology with her patients which Plaintiff

attributed to racism, and made unspecified “racial bias comments.” Id. at 401. In

addition, like Plaintiff’s claim here that she was promoted due to “playing the race

card,” Covington alleged that her supervisor made her feel that “colorism” played a

role in her position. Id. at 401. The Court held that these allegations did not

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establish a hostile work environment claim because a reasonable person would not

perceive Defendant as hostile or abusive. Id. at 404.

In Tims v. Carolinas Healthcare System, 983 F.Supp. 2d 675, 681 (W.D.N.C.

2013), Plaintiff contended that her supervisor, Vanderweerken, treated her

differently than white employees by accusing her of not working and snapping her

fingers because “that is the only way ‘you people will listen’”, disciplined her for

using the phone for personal calls, and stated that she had to watch Plaintiff “because

y’all blacks are sneaky people’ and always trying to get around the rules.” The

district court held that while the comments and actions were rude and insensitive,

Plaintiff did not plausibly allege a hostile work environment claim. Id.

In Jones v. Sun Pharmaceutical Industries, Inc., 2020 WL 2501439 at * 7

(E.D.VA. 2020) (unpublished), Plaintiff alleged that the Head of Commercial

Operations, Freidberg, was rude to her at meetings, hated her according to her co-

workers, failed to respond to emails from her but did to males, and terminated her

for a mistake that males made. The district court held that “Title VII does not create

a general civility code in the workplace,” and dismissed the hostile work

environment claim because Plaintiff’s allegations “do not rise the level of ‘severe

and pervasive’ harassment that altered the conditions of Jones’ employment.” Id. at

* 8. (internal citations omitted).

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 The paucity of Plaintiff’s allegations are made even more clear when assessed

against a recent Fourth Circuit case which reversed the district court’s granting of

defendant’s motion to dismiss a hostile work environment claim. Laurent- Workman

v. Wormuth, 54 F.4th 201 (2022). In Laurent- Workman, Plaintiff, an African-

American woman, alleged specific instances of harassment including 1) a comment

from a co-worker, Adams, that “blacks cannot speak properly” and Adams “cannot

understand them”, id. at 207; 2) Adams “erupted in anger and said “this is NATO,

we do things differently than ‘you people,’”, id.; 3) Adams hurled accusations at

Laurent-Workman as she attempted to retreat to her office, id.; 4) during a meeting

to clarify Laurent-Workman and Adams’s duties, Adams again mocked Plaintiff,

referred to her as “you people,” abruptly stood up causing her chair to crash into the

wall, and then screamed at Plaintiff and stormed out of the room, id. at 208; 6)

Plaintiff’s direct supervisor Khalifeh announced his belief that Black male athletes

“excel” in sports “because the slave masters had bred the strongest slaves together,”

id. at 211; and 7) Plaintiff was not selected for a vacant position after her supervisor

and the director of human resources allegedly colluded against her. Id. at 209. The

Fourth Circuit reversed the district court’s dismissal of the hostile work environment

claim because “Laurent-Workman’s allegations describe just the sort of workplace

behaviors that Title VII serves to root out—repeated invectives of an overtly racial

tenor [and] Laurent-Workman endured a breadth of publicly humiliating comments

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from Adams on several occasions, some of which accompanied an element of

physical intimidation.” Id. at 212. Unlike Laurent- Workman, Plaintiff’s Amended

Complaint contains no allegations of “repeated invectives,” “publicly humiliating

comments,” or “physical intimidation.” In addition, while Lauren- Workman was

rejected for a new position, Plaintiff was promoted twice and was the highest ranking

African American working at DSS.

II. CONCLUSION

Plaintiff’s Amended Complaint details events over six years with

allegations of two investigations, unspecified racial comments and unspecified

comments about her skin and hair, and her failure to obtain an office with a

window. Noticeably absent in the Amended Complaint are any allegations

regarding physically threatening or humiliating conduct, or any allegations that the

conduct unreasonably interfered with her work.

Plaintiff’s 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. For these reasons, this Court should reject the

Memorandum and Recommendation to the extent it recommended denial of

Defendant’s motion to dismiss Plaintiff’s hostile work environment based upon

race claim.
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 Respectfully submitted this 20th day of October, 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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