IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION
FILE NO.: l:23-cv-00050-MR-WCM

MARLENE WILKERSON, )
Plaintiff ) PLAINTIFFS RESPONSE TO
) MEMORANDUM AND
V. ) RECOMMENDATIONS
HENDERSON COUNTY, a body politic )
organized and existing under the laws )
of the State of North Carohna, )
Defendant )

United States Magistrate Judge W. Carleton Metcalf on page 6 of the

Memorandum and Recommendation states the legal standard to be used by the
Court when considering a motion pursuant to Rule 12(b)(6) The Court must accept
the allegations in the Complaint as true and construe them in the Ught most
favorable to the Plaintiff. The Court must then determine whether the Complaint

states plausible claims upon which relief can be granted.

Plaintiffs first claim alleges that she was subjected to a hostile work
environment due to racial discrimination. She alleges that she complained to her
supervisor regarding racially denigrating remarks made by employees relating to
her. Even though the supervisor told Plaintiff that she had performed an
investigation, Plaintiff alleges that no perpetrators were named and no action was
taken to prevent continuing similar behavior by Defendant’s employees.

Plaintiff alleges in paragraphs 11 through 16 of her Amended Complaint that

similar behavior continued and that her supervisor and Defendant’s HR Director
suspended her, removed her from the premises in the view of her co-workers, and
told her not to have any contact with County employees. The following day she was
told to return and was told that it had been determined by use of video that charges

against her were false. This video could have been used to show that the charges
1

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were false before Plaintiff was suspended. She was also told by the supervisor that

they tried to get her on charges of reverse racism. These charges against the

Plaintiff were similar to the charges that had been previously investigated without
resolution.

Paragraph 17 of the Amended Complaint alleges that a white supervisor

charged with racially discriminatory behavior was not treated in the same manner
as the Plaintiff.

Plaintiff alleges in paragraph 21 that after she was promoted to Program

Manager, a position in which she managed three (3) supervisors and thirty-one (31)

income maintenance workers, several of the subordinate employees became verbally

aggressive toward her. Plaintiff alleges she reported these actions, characterizing

them as racially discriminatory, no action was taken by the Defendant.

Plaintiff also alleged that all the Social Services administrative employees in

leadership positions, who were white, were given offices with windows but she was

not given a window office even though she had greater seniority than the white

employees.

The Circuit Court of Appeals stated in Chapman v Oakland Living

Center. August 30, 2022, that in a hostile work environment claim, the Plaintiff

must show that there is (1) unwelcome conduct;(2) that it is based on the Plaintiffs

race; (3) that is sufficiently severe or pervasive to alter the plaintiffs conditions of

employment and to create an abusive work environment; and (4) which is imputable

to the employer.

The Plaintiffs Amended Complaint adequately alleges facts that support

each of the elements of a hostile work environment claim.

Case 1:23-cv-00050-MR-WCM Document 13 Filed 10/20/23 Page 2 of 8

 The Magistrate Judge’s recommendation to deny Defendant’s Motion to
Dismiss Plaintiffs hostile work nvironment claim should be accepted by the Court.

Plaintiffs second claim is unlawful discrimination based on compensation.

Title of the Civil Rights Act of 1964 makes it unlawful for an employer “to

fail or refuse to hire or to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or

national origin. (42 U.S.C. § 2000e-2(a)(l).

The Magistrate Judge’s recommendation states that Plaintiff has not made

sufficient allegations to support a pay disparity claim. The recommendation cites a

South Carolina District Court recommendation that a motion to dismiss should be

granted because the “Plaintiff makes a conclusory allegation that his white co
workers do the ‘exact same work’ but he fails to state what position he holds and

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

Plaintiff in this case alleged in paragraph 22 of her Amended Complaint that

she was a Social Service administrative employee in a leadership position who was

Black. In paragraph 24 Plaintiff alleges that she supervised more employees than

white program managers but was paid less wages even though she performed equal

work on jobs the performance of which required equal skill, effort, and

responsibility and which were performed under similar working conditions, than

white employees of the Defendant who performed the same duties under the same
conditions as the Plaintiff.

Case 1:23-cv-00050-MR-WCM Document 13 Filed 10/20/23 Page 3 of 8

 Plaintiff alleged in paragraph 35 of her Amended Complaint that the

Defendant discriminated against Plaintiff on the basis of race by paying wages at a

rate less than the rate at which it paid wages to employees of the opposite race for

equal work on jobs the performance of which required equal skill, effort, and

responsibility and which were performed under similar working conditions.

The Magistrate Judge recommendation cites Robinson v Proctor & Gamble

Mfg. Co.. No. 1:18-CV-133, 2019 WL 1005504, at *3 (M.D.N.C. March 1, 2019)

(denying motion to dismiss race-based pay disparity claim where Plaintiff alleged

she was paid less than a white employee despite having more experience and

holding the same title and position and explaining that the “Fourth Circuit has

explicitly instructed that ‘evidentiary determinations regarding whether the

comparators’ features are sufficiently similar to constitute appropriate comparisons

generally should not be made at the motion to dismiss stage.”) (quoting Woods v

City of Greensboro. 855 F 3d 639, 650 (4^^ Cir. 2017), cert, denied sub nom., City of

Greensboro v BNT Ad Agency. LLC. 583 U.S. 1044 (2017).

In considering a Motion to Dismiss, the Court must take all of the factual

allegations in the complaint as true.

“...only a complaint that states a plausible claim for relief survives a motion

to dismiss... Determining whether a complaint states a plausible claim for relief

will...be a context - specific task that requires the reviewing court to draw on its

judicial experience and common sense... (Ashcroft V Iqbal. 129 S. Ct. 1937, 173 L.

Ed. 2d 868, 556 U.S. 662, 77 USLW 4387 (2009).

Plaintiffs allegation in paragraph 23 of her Amended Complaint that a white

co-worker with equal seniority and a comparable position to Plaintiff had a higher

salarj" than Plaintiff was based on a website showing salaries for Henderson County

Case 1:23-cv-00050-MR-WCM Document 13 Filed 10/20/23 Page 4 of 8

employees. Many employers prohibit employees from disclosing their salaries to co

employees. Plaintiff had no way to determine if the website to which she was

referred was accurate. The accuracy of the website can only be determined by

Defendant’s employee wage records which can be requested by Plaintiff in

discovery. Based on the website information, it is plausible that Plaintiff was paid

less than similarly situated employees performing the same job as Plaintiff under
similar circumstances.

Defendant’s motion to dismiss the claim for discrimination in compensation

should be denied

The Magistrate Judge recommends that Plaintiffs claim for constructive

discharge be dismissed.

“To establish a constructive discharge claim, a plaintiff must show ‘that she

was discriminated against by her employer to the point where a reasonable person

in her position would have felt compelled to resign’ and that she actually

resigned’...’ Unless conditions are beyond ‘ordinary’ discrimination, a complaining

employee is expected to remain on the job while seeking redress’” (Evans v Int’l.

Paper Co.. 936 F 3d 183 (4^^ Cir. 2019).

The factor showing conditions beyond ordinary discrimination in this case is

the length of time that Plaintiff was required to work in a hostile work environment

and the failure of the Defendant to take any action to alleviate the hostile work

environment over the period from February 2015 through May 2021 as alleged in

the Amended Complaint, It was obvious, given the numerous incidences of

discrimination alleged in the Amended Complaint and the Defendant’s failure to

take appropriate action to prevent their continuance, that Plaintiffs only recourse

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

Case 1:23-cv-00050-MR-WCM Document 13 Filed 10/20/23 Page 5 of 8

 CONCLUSION

The Fourth Circuit Court of Appeals stated in Woods v City of Greensboro.

855 F3d 639 (4^^ Cir. 2017), in considering a motion to dismiss: “In reaching our

conclusion, we note that discrimination claims are particularly vulnerable to

premature dismissal because civil rights plaintiffs often plead facts that are

consistent with both legal and illegal behavior, and civil rights cases are more likely

to suffer from information - asymmetry, pre-discovery. See, e.g., Suzette M.

Malveaux, the Jury (or more accurately the Judge) Is still out for Civil Rights and

Employment Cases Post - Iqbal, 57 N.Y.L, Sch. L. Rev. 719, 722-23 (2012 - 2013).

There is thus a real risk that legitimate discrimination claims, particularly claims

based on more subtle theories of stereotyping or implicit bias, will be dismissed

should a judge substitute his or her view of the likely reason for a particular action

in place of the controlling plausibility standard. Such an approach especially treads

through doctrinal quicksand when it is undertaken without the benefit of a

developed record, one essential to the substantiation or refutation of common sense

allegations of invidious discrimination. Affirmance of the dismissal of the complaint

in this case, which catalogs numerous factual allegations beyond conclusory recitals

of law, would establish a precedent that would inevitably lead to the premature

dismissal of a host of other potentially meritorious discrimination claims where

plaintiffs offer fulsome allegations similar to those invoked by BNT here.

“[A] Well-pleaded Complaint may proceed even if it strikes a savvy judge that

actual proof of those facts is improbable, and ‘that a recovery is very remote and

unlikely’ “Twomblv. 550 U.S. at 556, 127 S. Ct. 1955 (quoting Scheuer v Rhodes. 416

U.S. 232, 236, 94 S. Ct. 1683, 40 L.Ed. 2d 90 (1974). Manifestly, the rule of

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Iqbal/Twombly was not intended to serve as a federal court door-closing mechanism

for arguably weak cases, even assuming this case fits the description of “arguably

weak”. Whether BNT will have a difficult time establishing the merits of its claim

is of little import now. The question before us is “’not whether [the defendant] will

ultimately prevail’...but whether [the] complaint was sufficient to cross the federal
court’s threshold. Skinner v Switzer. 562 U.S. 521, 529-30, 131 S. Ct. 1289, 179 L.

Ed. 2d 233 (2011),(quoting Swierkiewicz. 534 U.S. at 514, 122 S. Ct. 992)(citations

omitted). We conclude simply that BNT has alleged sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” See

Twomblv. 550 U.S. at 570, 127 S. Ct. 1955. No more was required of BNT to state a

claim, and no more is required of us to so hold. “

Plaintiffs Amended Complaint alleges sufficient factual matter, accepted as

true, to state claims for relief for a hostile work environment, discrimination in

compensation, and constructive discharge that are plausible on their face.

Defendant’s Motion To Dismiss should be denied.

Respectfully submitted this the 20^^ day of October, 2023.

THE MOORE LAW^ OFFICE, PLLC

By:
George W^ Moore
Attorney for Plaintiff
P.O. Box 7602
Asheville, NC 28802
NCSB#: 3073
828-258-8053
^eor^e@moorelawashe ville.com

Case 1:23-cv-00050-MR-WCM Document 13 Filed 10/20/23 Page 7 of 8

 CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date served the foregoing Plaintiffs
Response to Memorandum and Recommendations in the above-entitled action upon all
other parties to this cause by depositing a copy of the same in a post-paid, properly
addressed wrapper in a post office or official depository under the exclusive care and
custody of the United States Postal Service addressed to Sean F. Perrin, 301 South College
Street, Suite 3500, Charlotte, NC 28202-6037.

This the 20*^^ day of October, 2023.

By:
GEORGE W. MOORE

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