North Carolina Cases July 21, 2023: Ivery v. N.C. Ass'n of Educators

Case Description

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MEMORANDUM AND RECOMMENDATION

ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE

This matter is before the court on Defendant North Carolina Association of Educators, Inc.'s (the “NCAE”) motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), [DE-14], which the district court has construed as a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), see May 3, 2023 Text Order. Plaintiff Deborah Harris Ivery filed a response opposing dismissal, [DE-23], and the NCAE filed a reply, [DE-24]. The motion is referred to the undersigned for a memorandum and recommendation to the district court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1)a., E.D. N.C. For the reasons that follow, it is recommended that the motion be allowed.

I. Background

On October 11, 2022, Ivery filed a complaint alleging employment discrimination against the NCAE in violation of the Age Discrimination in Employment Act (the “ADEA”) and 42 U.S.C. § 1981 for failure to promote, hostile work environment, and retaliation. [DE-1], The NCAE filed the instant motion to dismiss, [DE-14], and the court stayed discovery pending ruling on the dismissal motion, [DE-19], The allegations of the complaint are as follows. Ivery, an approximately seventy year old African American female, initially worked for the NCAE from 1990 until 1998, she was reemployed by NCAE in 2010, and she presently works for the company as a Uniserv Director. Compl. [DE-1] ¶¶ 1, 7, 11. Ivery is employed under a contract with NCAE and may only be terminated for just cause. Id. ¶ 8. In 2018, Ivery took leave due to severe depression, and under her employment contract her position was to be held open during her leave of absence for a period of up to eighteen months. Id. ¶ 11. While on leave Ivery attempted to communicate with her supervisor, Ray Riffe, a white male, regarding returning to work but Riffe did not return her calls or emails. Id. ¶¶ 12-13.

Ivery returned to work in July 2019, after which she began to experience discriminatory patterns and practices and differential treatment. Id. ¶¶ 14-15. Beginning in 2010 and continuing through the present day, Ivery was denied training sessions to which she was entitled under her contract, and she was unable to receive the same or similar training afforded to other Uniserv Directors and her younger white colleagues. Id. ¶¶ 16-18. Riffe communicated to Ivery's colleagues that he wanted to remove and replace older employees and that he did not understand why senior staff who were sick and able to retire would continue working. Id. ¶ 19. Riffe did not mention Ivery by name but she was a senior staff member who had fallen ill and was continuing to work. Id. ¶ 20. Riffe subjected Ivery to grossly unprofessional conduct in attempts to force her to resign. Id. ¶ 21. For example, Riffe asked Ivery's colleagues if they could smell alcohol on her breath, insinuating she was drinking at work, and he implied Ivery was unfit for her position. Id. ¶ 22. Riffe assigned Ivery's colleagues to support the work of committees, consistent with staff duties, but did not assign Ivery to support a committee. Id. ¶¶ 24-25. Ivery was not permitted to attend trainings that other colleagues were allowed to attend. Id. ¶¶ 28-29.

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NCAE was on notice of Riffe's behavior but allowed it to continue until he retired. Id. ¶¶ 23, 27. Ivery filed several grievances regarding Riffe's treatment of her, including for chastising and reprimanding her and for calling her “an angry black woman,” and the grievances were resolved in her favor but she was nevertheless retaliated against for filing the grievances. Id. ¶¶ 26, 31-37. There were several managerial positions for which Ivery was qualified but they were not noticed in a manner for the African American Uniserv directors such as Ivery to apply, and the positions were filled by younger white individuals who were less experienced and unqualified. Id. ¶¶ 40-48.

II. Standard of Review

The court has construed the motion to dismiss as a motion for judgment on the pleadings. Courts apply the same standard of review to Rule 12(c) and Rule 12(b)(6) motions, Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014), which test the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a motion to dismiss or for judgment on the pleadings, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79.

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Rather, a plaintiffs allegations must “nudge[ ] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility,” Iqbal, 556 U.S. at 678-79.

III. Discussion

The NCAE contends that Ivery's claims must be dismissed because (1) with respect to her ADEA claims she failed to plead exhaustion before the Equal Employment Opportunity Commission (“EEOC”), failed to exhaust her administrative remedies, and failed to file this action within the ninety (90) day statute of limitations period, and (2) with respect to her § 1981 claims she failed to plead sufficient facts to state a claim and some or all of the allegations supporting her claim are barred by the applicable statute of limitations. Def.'s Mem. [DE-15] at 6-26; Def.'s Reply [DE-24] at 1-7. Ivery asserts that she properly exhausted her administrative remedies, and she pleaded sufficient facts to state a plausible § 1981 claim. Pl.'s Resp. [DE-23] at 8-15.

A. Briefing Exhibits

The NCAE submitted Ivery's EEOC Charge of Discrimination, Ex.l, and the EEOC Determination and Notice of Rights, Ex. 2, in support of the motion to dismiss. [DE-15-1, 15-2]. In support of Ivery's opposition to the motion to dismiss she filed an email regarding Riffe's retirement, Ex. 1; a letter from the NC Staff Organization Grievance Chair to Riffe regarding one of Ivery's grievances, Ex. 2; a letter to the Grievance Chair from the NCAE Executive Director regarding the investigation of Ivery's grievance, Ex. 3; a posting for an Organizing Project Manager position with the NCAE, Ex. 4; an email from the NCAE regarding the establishment of field director positions, Ex. 5; an email from the Grievance Chair to the Executive Director regarding Ivery's grievance against Riffe, Ex. 6; an EEOC Inquiry, Ex. 7; and Ivery's Charge of Discrimination, Ex. 8. [DE-23-1 through 23-8].

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The court may consider the EEOC inquiry, charge, and notice even though they were not attached to or expressly incorporated in the complaint, because the documents are integral to the complaint and there is no dispute about their authenticity. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citing Sec 'y of State For Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); Konate v. Norfolk State Univ., No. 2:22-CV-125, 2023 WL 2564337, at *2 n.4 (E.D. Va. Mar. 17, 2023) (considering right to sue notice attached to motion to dismiss as integral to the complaint despite plaintiffs failure to allege that he filed a charge with the EEOC or that he received a right to sue notice). To be integral to the complaint, a document must, “by its very existence, and not the mere information it contains, gives rise to the legal rights asserted.” Tagirova v. Elizabeth City State Univ., No. 2:16-CV-70-D, 2017 WL 4019516, at *4 (E.D. N.C. Sept. 11, 2017) (collecting cases); Jacobs v. Zurich Am. Ins. Co., No. CV 5:21-2617-MGL, 2022 WL 16952013, at *2 (D.S.C. Nov. 15, 2022) (concluding an integral document “must do more than contain information that is important to the plaintiffs claims. Instead, its very existence must give rise to the legal rights asserted.”) (citing United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021)).

Unlike the EEOC documents, the remaining exhibits do not give rise the legal rights asserted by Ivery and are not integral to the complaint. A complaint may not be amended by asserting information in briefs or exhibits filed in opposition to a motion to dismiss. See Mack v. E.C. Univ., No. 4.21-CV-00108-M, 2022 WL 945595, at *6 (E.D. N.C. Mar. 29, 2022) (citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); see also Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (same);

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Barclay White Skanska, Inc. v. Battelle Mem 'IInst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (citations omitted) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”)). Accordingly, the grievance and job posting exhibits are not properly considered in evaluating whether Ivery's complaint states a plausible claim.

B. ADEA Claims

The ADEA requires a charge of discrimination be filed with the EEOC prior to commencing a civil action. 29 U.S.C. § 626(d)(1); Mebane v. GKN Driveline N. Am., Inc., No. 1:18-CV-892, 2021 WL 4412326, at *3 (M.D. N.C. Sept. 27, 2021). “[A]fter filing a charge with the EEOC, plaintiffs have ninety days from the receipt of a right-to-sue letter to file an action in federal or state court.” Bannister v. Wal-Mart Stores E., L.P., 843 F.Supp.2d 610, 616 (E.D. N.C. 2012) (citing 29 U.S.C. § 626(e)). In Fort Bend County v. Davis, the Supreme Court held that while Title Vil's administrative exhaustion requirement is not a jurisdictional issue and thus may be waived, it is mandatory and can serve as grounds for dismissal when timely raised by a defendant. 139 S.Ct. 1843, 1850-52 (2019). Courts in the Fourth Circuit have applied Davis to the ADEA. See, e.g., Yang v. Lai, No. 1:22-CV-5, 2022 WL 2440834, at *3 (M.D. N.C. July 5, 2022) (collecting cases).

Ivery filed a Charge of Discrimination (No. 433-2021-02767) dated November 15, 2021 with the EEOC, in which she stated that her supervisor treated her unprofessionally, asked her colleagues if she was well enough to return to work after having been on medical disability for over twelve months and if they smelled alcohol on her breath, refused to give her committee assignments or allow her to attend employee training, accused her of being unprofessional to persons not of color, and addressed accusations to her in a professional email in violation of the progressive discipline policy. [DE-23-8], Ivery asserted that she believed she was being

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discriminated against due to her age, disability, race/color, and national origin, although she only checked the boxes on the form indicating the discrimination was based on race, color, and disability. Id. The EEOC issued a Determination and Notice of Rights on June 20, 2022, stating that it would not proceed with its investigation and made no determination regarding whether there was a violation of any statute. [DE-15-2], The notice stated that any lawsuit must be filed within ninety days of receipt of the notice. Id. Ivery filed her lawsuit on October 11, 2022, which was 113 days after the notice was issued.

Ivery did not allege in her complaint that she exhausted her administrative remedies with the EEOC. In response to the NCAE's argument that the ADEA claims should be dismissed for failure to exhaust, Ivery filed a copy of her EEOC inquiry and EEOC charge, [DE-23-7, 23-8], Plaintiffs EEOC charge does not include facts that would support failure to promote or hire claims. Plaintiff, however, argues that her EEOC inquiry, which does include some facts regarding a vacant position for which Ivery was not hired, is sufficient to satisfy the exhaustion requirement. Pl.'s Resp. [DE-23] at 6-8. Even assuming the EEOC inquiry was sufficient to exhaust Ivery's administrative remedies, her ADEA claims must be dismissed because her action in this court was not timely filed.

Ivery does not allege when she received the June 20, 2022 EEOC notice, but she is presumed to have received it three days after it was issued. See Brown v. Sears Holding Mgmt. Corp., No. 4:14-CV-33-D, 2015 WL 8207454, at *2 (E.D. N.C. Dec. 7, 2015) (citing Fed.R.Civ.P. 6(d); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.l (1984) (per curiam); Dixon v. Dig. Equip. Corp., 976 F.2d 725 (4th Cir. 1992) (per curiam); Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987)). Ivery has provided no evidence to rebut the presumption that she received the EEOC notice on June 23, 2022, and in her response to the motion to dismiss,

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she did not address the argument that her complaint was not timely filed within ninety days of receipt of the EEOC notice. Ivery did not file a civil action within ninety days from the date she presumably received notice of her right to sue and has provided no grounds for equitable tolling; thus, her ADEA claims are time-barred. See Brown, 2015 WL 8207454, at *2 (dismissing as time-barred ADEA claim filed more than ninety days after receipt of right-to-sue notice); Bannister, 843 F.Supp.2d at 617 (same); see also Harvey, 813 F.2d at 654 (finding no facts to support equitable tolling where the plaintiff knew of the right-to-sue letter within six days of its arrival, he had eighty-four days to file his complaint, and he made no showing that there was insufficient time to act). Accordingly, it is recommended that the NCAE's motion be allowed as to the ADEA claims.

C. §1981 Claims

1. Timeliness

The NCAE asserts that Ivery's § 1981 failure-to-promote claim is time barred to the extent it is based on any acts of discrimination that occurred prior to October 11,2018, Def.'s Mem. [DE-15] at 15-16, while Ivery contends NCAE's conduct outside the limitations period may be considered as part of a single, ongoing pattern of discrimination, Pl.'s Resp. [DE-23] at 8-11. A motion testing the sufficiency of the complaint is generally not appropriate to adjudicate the merits of an affirmative defense such as the expiration of the statute of limitations. See Briscoe v. W.A. Chester, LLC, 799 Fed.Appx. 183 (4th Cir. 2020) (citing Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Id. The statute of limitations for a § 1981 claim

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is four years. Id. (citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004); 28 U.S.C. § 1658(a) (2018)); Benson v. Vaughn Indus. LLC, 450 F.Supp.3d 655, 665 n.5 (E.D. N.C. 2020).

Plaintiff alleges that she was denied opportunities to attend training from approximately 2010 until present day and that the training was necessary for promotion. Compl. [DE-1] ¶¶ 18, 54. Plaintiff filed her complaint on October 11, 2022, so any incidents that occurred more than four years prior are generally time barred unless they are considered a continuing violation.

“The continuing violation theory allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination, i.e., when the incidents make up part of a hostile work environment claim.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)). Claimants alleging discrete violations cannot benefit from the continuing violations theory. Id. Thus, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 220 (quoting Morgan, 536 U.S. at 113).

Mack, 2022 WL 945595, at *5. The Fourth Circuit has characterized failure to promote as a “discrete act of discrimination” to which the continuing violation doctrine does not apply. See Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (citations omitted). Additionally, denial of a training opportunity is a discrete act. See Myers v. Montgomery Cnty., Md., No. CIV. A. DKC 14-3054, 2015 WL 3795915, at *6 (D. Md. June 17, 2015) (finding allegations of complaint, including the denial of proper training, pertained to discrete acts to which the continuing violations doctrine would not apply). It is clear from the facts alleged in the complaint that any acts occurring prior to October 11, 2018 are time barred, and accordingly, it is recommended that they not be considered and any claims that predate October 11, 2018 be dismissed. Notwithstanding, given that the bulk of Plaintiff s allegations relate to conduct by Riffe that occurred after she returned to work in July 2019, which is within the limitations period, the analysis proceeds to consider whether

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Plaintiff has alleged sufficient facts to state claims under § 1981 for failure to promote or retaliation.

2. Failure to Promote

Under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens,” and the Supreme Court has interpreted this statute “to forbid all racial discrimination in the making of private as well as public contracts,” including private employment contracts. Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 170-71 (4th Cir. 2020), as amended (Oct. 16, 2020) (quoting Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987), and citing Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975)). A § 1981 plaintiff is not required to plead facts demonstrating that she satisfies the McDonnell Douglas framework to survive a motion to dismiss. See id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)). Rather, “to state a § 1981 race-discrimination claim, a plaintiff must allege facts making it plausible ‘that, but for race, [she] would not have suffered the loss of a legally protected right' under the statute.” Id. at 171 (quoting Comcast Corp. v. Nat'l Ass 'n of Afr. Am.-Owned Media, - U.S. -, MO S.Ct. 1009, 1019 (2020)).

Ivery alleges that there were several vacant managerial positions for which she was more than qualified, she attempted to apply for promotions but the NCAE failed to properly make her aware of the position vacancies and requirements by “not notic[ing] the position in a manner for the African-American Uniserv directors” to apply, she was “uniquely and more than adequately qualified for the more senior position” based on her more than three decades of experience in the area, she was denied training necessary for the promotion, and the NCAE's “systematic discrimination” in failing to promote Ivery, changing the job requirements to be remote instead of on-site, and hiring a less qualified and less experienced white woman was the but for cause of

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Ivery's harm. Compl. [DE-1] ¶¶ 40-54. These allegations are insufficient to support a reasonable inference that Ivery was not promoted but for her race.

First, Ivery's allegations are vague and conclusory. There are no allegations regarding the specific positions referenced, when these positions were posted, how NCAE's noticing prevented African American Uniserv directors from applying, how changing a job requirement from on-site to remote is racially discriminatory, and who was hired for these positions. Ivery's allegations that she was unable to apply for unspecified managerial positions at unspecified times and that an unspecified white woman was hired for a position leave too much to speculation. See Cobb v. Arc Energy Sen's., Inc., No. 0:21-CV-01913-JMC, 2022 WL 970093, at *5 (D.S.C. Mar. 31, 2022) (the “court's inquiry focuses on whether Plaintiffs allege facts that plausibly state violations ‘above a speculative level.'”) (quoting Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020), cert, denied, 141 S.Ct. 1376(2021)). Second, the allegations are somewhat contradictory. Ivery alleges she was more than qualified for the positions based on her three decades of experience but also that she lacked training necessary for promotion. While she generally claims she was denied training opportunities for many years, she only specifically identifies one training on Advancing Racial Justice that she was denied. Third, none of the allegations support a reasonable inference that Ivery was not promoted due to race discrimination. See Ali, 832 Fed.Appx. at 171 (allegations that plaintiff applied for the position of structural engineer, that she was qualified for the position, and that someone of a different race was selected for the position, standing alone was insufficient to support a plausible race-discrimination claim) (citing Bing, 959 F.3d at 617-18; McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 586 (4th Cir. 2015)), as amended (Oct. 16, 2020).

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The complaint also contains allegations that provide non-discriminatory reasons for the NCAE's failure to promote Ivery and the denial of training. Ivery alleges that her supervisor believed she was underperforming and needed training but she was denied a request to attend Advancing Racial Justice training because there was a lack of staff coverage (although she disputes that assertion). Compl. [DE-1] ¶¶ 28-30. Ivery also alleges that the principal of a school in her region called Ivery's supervisor to complain that Ivery was unprofessional during a visit to the school campus. Id. ¶ 32; see Ali, 832 App'x at 171 (dismissing race discrimination claim for failure to promote where allegations did not support a reasonable inference of race discrimination and provided a non-discriminatory reason for the failure to promote).

An Ali, the Fourth Circuit was “unpersuaded that Ali's additional allegations-for instance, that a white man assumed her temporary structural engineering duties after her return home from Turkey in November 2015-support a reasonable inference of intentional race discrimination.” Id. (citing McCleary-Evans, 780 F.3d at 586; Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999)). Similarly here, Ivery's allegation that the NCAE failed to promote her and instead hired a “white woman with significantly less qualifications or experience,” Compl. [DE-1] ¶ 53, is insufficient to support a reasonable inference of race discrimination. In Barcliff v. N.C. League of Municipalities, the court dismissed § 1981 claims alleging that the plaintiff was denied promotions, denied training opportunities, and disciplined due to her race where she failed to provide any factual allegations to support her claims, such as identifying “the specific promotion for which she applied, when she was not selected, the person or persons selected, the specific training opportunity that she was denied, when it was denied, the specific discipline that she received, when it was received, and appropriate comparators.” No. 5:10-CV-244-D, 2011 WL 285559, at *3 (E.D. N.C. Jan. 25, 2011). After the Barcliff plaintiff amended the complaint, the

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court again found the failure-to-promote claim did not plausibly allege why the plaintiff was qualified for the promotions, why an inference of race discrimination existed concerning her nonselection, or why the selected applicants were less or equally qualified, and the court dismissed the amended complaint as failing to cross the Twombly/Iqbal threshold. Id., No. 5:10-CV-244-D, 2011 WL 3290578, at *5 (E.D. N.C. Aug. 1, 2011). Ivery's failure-to-promote claim is likewise unsupported by sufficient facts to state a plausible § 1981 claim and should be dismissed.

3. Retaliation

Section 1981 also prohibits retaliation for opposing race discrimination in employment. Ali, 832 Fed.Appx. at 172 (citing CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008)). “An employee opposes race discrimination when she ‘communicates to her employer a belief that the employer has engaged in' such discrimination.” Id. (quoting Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009) (alteration and internal quotation marks omitted)); Brown v. Gibson, No. 4:17-CV-180-FL, 2019 WL 7194069, at *5 (E.D. N.C. July 1, 2019). In order to state a § 1981 retaliation claim, “a plaintiff must allege facts rendering it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.” Ali, 832 Fed.Appx. at 172-73 (citations omitted).

Ivery alleges that she filed several grievances reporting acts of hostility against her by her supervisor, Riffe, and after she filed her initial grievance the NCAE refused to promote or hire her, hired a white candidate, and materially changed the job requirements, which influenced her ability to apply for the vacant position. Compl. [DE-1] ¶¶ 56-58. The NCAE contends that Ivery's first and second grievances did not constitute protected activity, the allegations are insufficient to show a materially adverse employment action, and the allegations are insufficient to plead the requisite but for causation to state a § 1981 claim. Def's Mem. [DE-15] at 21-26.

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Ivery's first grievance “surrounded the arbitrary and capricious standards under which Plaintiff was chastised and reprimanded for alleged under performance.” Id. ¶ 26. Ivery claims Riffe did not allow her to attend the same trainings as other Uniserv Directors, communicated to her that she was under performing and her training needed to be addressed, denied her request to attend Advanced Racial Justice training while allowing two of her colleagues to attend the training, and told her the denial was due to a lack of staff coverage, which Ivery disputes. Id. ¶¶ 28-30. Ivery's second grievance involved Riffe's response to a complaint from a white principal at a school within Ivery's region that Ivery was unprofessional during a visit to the school campus. Id. ¶¶ 32-33. Ivery alleges that Riffe chastised and reprimanded her by stating she was unprofessional, rude, and exhibiting a pattern of unprofessional behavior without investigating the incident in violation of the NCAE employment contract. Id. ¶ 33. Ivery asserts these two grievances were resolved in her favor. Id. ¶¶ 31, 34.

Neither grievance, as pleaded, is a complaint about race discrimination. The first grievance concerned a denial of training, and Ivery does not allege that she complained to the NCAE that she was wrongfully denied training based on her race. The second grievance, likewise, was not a complaint about race discrimination but concerned how Riffe responded to a complaint about Ivery. The fact that the principal who reported Ivery was white has no import because the grievance was about Riffe's alleged mistreatment of treatment of Ivery and did not implicate race discrimination. Complaints about general mistreatment are insufficient to plausibly plead that Ivery engaged in protected activity when she filed grievances about conduct unrelated to race discrimination. See Brown, 2019 WL 7194069, at *6 (dismissing § 1981 retaliation claim because the plaintiff did not allege that he engaged in protected activity by reporting racial discrimination). Accordingly, Ivery's first and second grievance do not support a § 1981 retaliation claim.

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The third grievance asserted that Riffe without provocation called Ivery “just an angry black woman.” Compl. [DE-1] ¶ 35. Assuming this grievance constitutes protected activity, the allegations of the complaint fail to “render[] it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.” AH, 832 Fed.Appx. at 172-73 (citations omitted). Ivery alleges in a conclusory fashion that she was retaliated against for the filing of her grievances and that there is a causal link between that protected activity and the failure to promote or hire her. Compl. [DE-1] ¶¶ 26, 58. However, the complaint lacks any factual allegations from which the court could reasonably infer a causal link between the filing of the third grievance and the failure to promote or hire Ivery. For example, the complaint is devoid of factual allegations to establish temporal proximity between the grievance filing and a materially adverse action. See Foster v. Univ, of Maryland-E. Shore, 787 F.3d 243, 253 (4th Cir. 2015) (finding evidence of temporal proximity tends to show causation).

Where temporal proximity is absent, other relevant evidence may be used to demonstrate causation. See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (citing Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998)). However, Ivery's allegations that Riffe continued to disparage her, question her ability to perform her job responsibilities, excessively scrutinize her performance, and impede her ability to perform her duties, Compl. [DE-1] ¶ 39, are simply too vague and conclusory for the court to infer the requite causal connection. The court is not required to speculate as to a causal connection between Ivery's filing of a grievance and the NCAE's failure to promote or hire her where the allegations of the complaint do not support a reasonable inference of discriminatory retaliation. See Lemon v. Myers Bigel, P.A., 985 F.3d 392, 400 (4th Cir.) (finding that where “allegations are conclusory, they cannot be woven together with [one factually-specific, non-conclusory allegation of racially-motivated conduct] to suggest a ‘general pattern' from which

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racial discrimination might be reasonably inferred.”) (quoting Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017)), cert, denied sub nom. Lemon v. Bigel, 211 L.Ed.2d 99, 142 S.Ct. 225 (2021). Accordingly, Ivery's third grievance does not support a § 1981 retaliation claim.

IV. Conclusion

For the reasons stated above, it is recommended that the NCAE's motion be allowed.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Friday, August 4,2023, t o fi le written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.

If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).