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 REPLY TO
v.
) PLAINTIFF’S “RESPONSE TO
HENDERSON COUNTY ) MEMORANDUM AND
) RECOMMENDATIONS”
Defendants. )
)
)

Defendant is filing this reply to Plaintiff’s “Response to Memorandum and

Recommendations” which objected to the Memorandum and Recommendation’s

dismissal of Plaintiff’s claims of 1) unlawful discrimination on the basis of

compensation and 2) constructive discharge. [Document 13, pp. 3-7].

As will be demonstrated, the Memorandum and Recommendation correctly

dismissed Plaintiff’s claim of unlawful discrimination based upon compensation

because Plaintiff failed to allege any facts to support her claim that she was paid less

than other similar employees because of her race. The Memorandum and

Recommendation also correctly dismissed Plaintiff’s constructive discharge claim

because Plaintiff failed to allege sufficient facts that she was discriminated against

by Defendant to the point where a reasonable person in her position would have felt

compelled to resign.
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I. THE MEMORANDUM AND RECOMMENDATION CORRECTLY
DISMISSED THE UNLAWFUL DISCRIMINATION ON THE BASIS
OF 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). The Memorandum and Recommendation correctly cited the law and held

that “Plaintiff has not made sufficient factual allegations to support a pay disparity

claim.” [Document 12, p. 12].

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

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; [Document 13, p.

3]. Plaintiff contends that these allegations warrant rejection of the Memorandum

and Recommendation’s dismissal of this claim because her allegations of having

lower pay was based on a county website and the “accuracy of the website can only

be determined by Defendant’s employee wage records which can be requested by

Plaintiff in discovery.” [Document 13, pp. 4-5]. These arguments should be

rejected for several reasons.

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 First, Plaintiff’s argument that Defendants’ motion should be denied because

discovery might reveal facts regarding her lower salary was rejected by the United

States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561, 127

S.Ct. 1955, 1968 (2007). The Court held that the “no set of facts” standard in Conley

v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957), would improperly allow a “wholly

conclusory statement of claim” to “survive a motion to dismiss whenever the

pleadings left open the possibility that a plaintiff might later establish some ‘set of

[undisclosed] facts’ to support recovery.” Id.

Post-Twombly, courts have rejected the same arguments Plaintiff makes in her

response. See e.g. Bailey v. Polk County, N.C., 2011 WL 4565469 at ** 3-4

(W.D.N.C. 2011) (unpublished), report and recommendation adopted, 2011 WL

4565449 (W.D.N.C. 2011) (unpublished) (rejecting Plaintiffs’ argument that

Defendants’ motion to dismiss should be denied on the ground that additional facts

would be revealed in discovery because a “wholly conclusory statement of claim”

cannot survive a motion to dismiss and “[t]his later establishment of some set of yet-

to-be disclosed facts is precisely the improper peg upon which plaintiffs have hung

their hats.”) (internal citations omitted); Jordan v. Davis, 2023 WL 2478862 at * 14

(D. Md. 2023) (“Furthermore, a lack of discovery cannot be used to excuse

plaintiff’s generic allegations on the premise that, if allowed to go forward, the

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Amended Complaint might ‘raise a right to relief above the speculative level.’”)

(internal citations omitted).

Second, notably absent from Plaintiff’s Amended Complaint are any facts

about 1) her rate of pay; 2) the comparators’ rates of pay; 3) the name of the

comparators; 4) her job duties; or 5) her comparator’s job duties. These

deficiencies are fatal to her claim.

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) (unpublished)

(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

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about her coworkers’ job responsibilities and how they compared to hers.”);

Spencer v. 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 alleged that he was

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

what positions his white co-workers who were allegedly paid more than him held).

Plaintiff’s citation to Robinson v. Proctor & Gamble Mfg. Co, 2019 WL

1005504 (M.D.N.C. 20019) to save her claim is without merit. [Document 13, p.

4]. In that case- unlike this case- Robinson identified the individual, Wright, who

allegedly received better pay than Plaintiff, as well as Wright’s job duties and

Plaintiff’s job duties. Id. at * 1. As a result, the Court denied Defendant’s motion

to dismiss. Id. at * 3. Plaintiff’s failure to make any allegations regarding the

individuals who are paid more or any comparison of her job duties versus her

comparator’s job duties mandates dismissal of her pay discrimination claim. See

also Harris v. McDonough, 2023 WL 6067028 at * 5 (D. Md. 2023) (unpublished)

(dismissing Plaintiff’s race discrimination claim which alleged “similarly situated

employees” were treated differently than Plaintiff where Complaint failed to

identify the “similarly situated employees’” race, gender, job titles or job

responsibilities); Boone v. Wells Fargo Bank National Association, 2023 WL

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5509147 at * 5 (M.D.N.C. 2023) (unpublished) (denying motion to amend racial

discrimination claim as subject to a motion to dismiss and therefore futile where

Plaintiff did not allege any facts related to the qualifications required for the

position she wanted, or how her qualifications compared to those six individuals

who got her position).

As a result, this Court should adopt the Memorandum and

Recommendation’s dismissal of Plaintiff’s pay discrimination claim.

II. THE MEMORANDUM AND RECOMMENDATION CORRECTLY

DISMISSED THE CONSTRUCTIVE DISCHARGE CLAIM

To establish a constructive discharge claim, “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 v. International Paper Company, 936 F.3d 183, 193 (4th Cir.

2019) (internal citations omitted). The conditions must go “beyond ‘ordinary’

discrimination.” Id. (internal citations omitted). The Memorandum and

Recommendation correctly cited the law and held that Plaintiff’s Amended

Complaint did not state a constructive discharge claim. [Document 12, pp. 14-15].

In her Amended Complaint, Plaintiff identifies the following instances of

conduct- occurring over a six year time period- in support of her constructive

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discharge claim: 1) in 2015, Defendant’s employees stated that Plaintiff was not

qualified to be a supervisor, was a “token,” and played the “race card,” [Document

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

Plaintiff contends that these allegations warrant rejection of the Memorandum

and Recommendation’s dismissal of the constructive discharge claim because 1) the

length of time Plaintiff was required to work in the “hostile work environment” goes

“beyond ordinary discrimination” and 2) “the failure of the Defendant to take any

action to alleviate the hostile work environment,” demonstrates that Plaintiff’s “only

recourse to avoid working in the severely hostile workplace was to resign.”

[Document 13, p. 5]. These conclusory arguments should be rejected for several

reasons. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-1950 (2009).

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 First, Plaintiff’s complaints from 2015 were investigated by Morgan, and not

swept under the rug. [Document 6, ¶ 8]. Plaintiff’s dissatisfaction with the results

of Morgan’s investigation does not mean that Defendants failed to “take any action

to alleviate the hostile work environment.” The fact that an investigation was

conducted 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.”). Second, the fact Plaintiff was investigated-

and then cleared one day later- in 2016 does not constitute discrimination.

[Document 6, ¶ 12]. It is well-established that employers are permitted to

investigate their employees’ alleged misconduct. Rogers v. City of Chattanooga,

2023 WL 6847115 at * 4 (E.D. Tenn. 2023) (rejecting constructive discharge

claim where Plaintiff alleged that a hostile work environment existed, in part, on

her employer’s investigations into her on-the-job conduct because “it is well-

established that ‘employers are permitted to investigate their employees for

wrongdoing.’”) (internal citations omitted).

Third, Plaintiff was promoted two times in six years, and was the highest

ranking African American at DSS when she resigned. [Document 6, ¶¶ 7, 21, 22].

These facts demonstrate that- rather than being forced to work in an intolerable
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environment- Plaintiff was working in an extremely tolerable environment which

valued her work and promoted her, and not one filled with 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.)

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

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

requisite intolerability.” Id.

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 The Fifth Circuit recently considered a case similar to this one in Sacks v.

Texas Southern University, 83 F.3d. 340 (5th Cir. 2023). Plaintiff, a law school

professor, brought a constructive discharge claim against her employer on the

grounds that she was forced to quit when the university dean added time-

consuming and menial tasks to her role, investigated her for discrimination but

didn’t find any evidence that Plaintiff committed misconduct, was subjected to

yelling by co-workers, and a co-worker made unspecified comments about her

race. Id. at 347-348. In affirming the dismissal of Plaintiff’s constructive

discharge claim, the Fifth Circuit held that Plaintiff did not allege any facts to

suggest that “a reasonable person [would] feel compelled to resign. Id. at 347.

Plaintiff did not allege that she was demoted, had her salary or job responsibilities

reduced, reassigned to work in a different area, or was made an offer to retire early.

Id. The Fifth Circuit concluded that although Sacks- like Plaintiff in this case-

alleged that she “reasonably felt compelled to resign because it was clear that the

racism and harassment would not be addressed,” this statement was conclusory and

not supported by sufficient facts, and therefore not sufficient to state a constructive

discharge claim. Id. at 348.

As a result, this Court should adopt the Memorandum and

Recommendation’s dismissal of Plaintiff’s constructive discharge claim.

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III. CONCLUSION

Defendant respectfully requests that this Court adopt the Memorandum and

Recommendation to the extent it recommended dismissal of Plaintiff’s unlawful

compensation based upon pay and constructive discharge claim.

Respectfully submitted this 26th 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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