Labor & Employment Law Daily Wrap Up, DISCRIMINATION—4th Cir.: Black female fails to revive claims against Army due to lack of factual allegations about discriminatory bias, (Aug 5, 2025)

By Tulay Turan, J.D.

Guessing that conduct is racially motivated does not amount to pleading actual facts.

Affirming a district court’s dismissal of a Black female’s Title VII discrimination, hostile work environment, and retaliation claims for failure to state a claim, the Fourth Circuit found she failed to allege facts that the Army disciplined her because of her race, color, or sex. She was disciplined because an investigation showed she created a toxic work environment and made inappropriate physical contact with staff. In addition, none of the actions she identified were abusive or hostile. Her retaliation claim also failed because there were no allegations her supervisor was aware she had filed an EEO complaint prior to issuing her a poor performance evaluation. Judge Gregory, in a partial dissent, argued that the majority’s holding that the employee’s retaliation and disparate treatment claims failed at the motion to dismiss stage “represents an astonishing departure from circuit precedent. And its impact on plaintiffs bringing retaliation and disparate treatment claims in the future will be devastating” (Seabrook v. Driscoll, No. 20-1961 (4th Cir. Aug. 4, 2025)).

The employee, a Black woman, was the Family Programs Manager for the U.S. Army Reserve Command at Fort Bragg, North Carolina. In September 2013, she met with her first-level supervisor to evaluate the performance of a white male employee. Because she would soon take over as his supervisor, the employee relations representative told her to contact her before pursuing corrective action. About a month later, the representative recommended performance counseling and suspension, but the notice of proposed suspension was later put on hold.

Investigation. In early 2014, the Army investigated complaints about the program manager’s conduct and the work environment that existed under her leadership. After a five-month investigation, the Army concluded her negative leadership had created a toxic work environment, she made inappropriate comments and physical contact with employees.

As a result, her second-level supervisor issued her a notice of proposed two-week suspension and ordered her to leave the building. She was escorted out during work hours in view of other employees, and other personnel heard about the suspension.

Charges filed. In January 2015, the employee filed an EEO complaint, alleging the Army discriminated against her based on her race, color, and sex by undermining her authority, investigating her, and suspending her. A month later, she received a “needs improvement” performance evaluation. Believing the low rating was retaliation for her EEO compliant, she filed a second complaint a few months later. The EEOC found no discrimination by the Army.

Thereafter, the employee filed a complaint pro se in federal court, alleging disparate treatment, hostile work environment, and retaliation in violation of Title VII. The district court dismissed her complaint under FRCP 12(b)(6) for failure to state a claim and denied her motion to alter or amend the judgment. She filed this appeal.

No disparate treatment. Affirming the district court’s dismissal of the employee’s disparate treatment claim, the court found she did not allege facts to plausibly state a claim that the Army disciplined her because of her race, color, or sex. She was disciplined because an investigation showed she created a toxic work environment and made inappropriate or belittling comments and inappropriate physical contact with staff. Although she disputed the investigative findings, she failed to allege a factual basis to support the conclusion that discriminatory bias, rather than the outcome of the investigation, was the Army’s true motivation for disciplining her.

Subordinate as comparator? The employee asserted that discriminatory motivation was apparent from the preferential treatment shown to her subordinate, a white man who was involved in misconduct and performance issues but was never investigated. The court disagreed. Allegations that he was counseled but not investigated for performance problems and missing deadlines while she, his supervisor, was investigated for negative leadership and creating a toxic work environment, did not raise a plausible inference that the Army investigated her because of her race, color, or sex.

Others not similarly situated. The court also rejected the employee’s claim that she received disparate punishment from two comparators, a white man and a white woman. The court said her allegations about the two comparators were insufficient to provide a meaningful point of comparison. Both worked for different departments in the Army, and her complaint did not contain information about their jobs, whether their roles were similar to her leadership position, or the identity of the supervisors who disciplined them.

The most specific allegation that she offered—that both employees threatened their coworkers—cut against her claim, the court said. While they made verbal threats, she was suspended in part for improper physical contact with her subordinates, a more severe offense that could justify the purportedly disparate discipline, including her physical escort from the building. “[Her] comparator allegations do not raise a right to relief on her disparate punishment claim ‘above a speculative level,’” the court wrote.

No but-for causation. Turning to the employee’s hostile work environment claim, the court found she failed to allege facts supporting but-for causation. She asserted there was no reason—other than race, color, or sex—for the Army to halt the white, male employee’s discipline but then investigate, suspend, and disclose her suspension. The court said that did not suffice. “Being aware of no alternative explanation and guessing that conduct is racially motivated does not amount to pleading actual facts to support a claim of racial discrimination,” the court wrote. To the contrary, that constituted only speculation as to the employer’s motivation.

No hostile environment. The court found the employee’s hostile work environment claim also failed because none of the actions she identified were abusive, hostile, humiliating, or physically threatening. Instead, they reflected a difference of opinion about how to discipline the white employee and the steps taken to investigate her negative leadership and execute her own discipline. The Army’s alleged behavior did not rise to an objective level of abuse sufficient to sustain a Title VII hostile work environment claim. Thus, the court affirmed the dismissal of this claim.

Unaware of protected activity. Finally, the court also affirmed the dismissal of the employee’s retaliation claim. The employee alleged that her investigation, suspension, and poor performance evaluation were retaliation for participating as a witness in her first-level supervisor’s EEO activity and for filing her own EEO complaints. However, the retaliatory individuals were not aware of her participation in her supervisor’s EEO activity until after they investigated her and issued the notice of proposed suspension. In addition, she had not filed her own EEO complaints at that point. Thus, the investigation and suspension could not have been retaliatory.

Temporal gap. Regarding her poor performance review, her second-level supervisor issued her review approximately five to six months after he and others became aware of her participation as a witness in the EEO proceeding. She failed to allege “intervening events” to bridge the long temporal gap between him becoming aware of her participation and her poor performance evaluation.

Regarding her own EEO complaint, which she filed one month before the review, the court found she failed to allege facts that the supervisor was aware of the complaint when he issued her poor performance evaluation. She asserted he was made aware of all EEO activity within the command, but the court found this “insufficient to raise a nonspeculative inference that [he] knew about [her] complaint when he issued her performance review a month later, much less that he rated her poorly because of it.”

No notice. The majority disputed the dissent’s assertion that the supervisor would have been aware of the complaint because he was a named party. The majority noted he was not a named party. Within the EEO complaint, she claimed he discriminated against her, but she did not allege in her federal lawsuit that he would have received notice of it before her review. Thus, the court affirmed the dismissal of this claim.

Dissent. Judge Gregory concurred in part and dissented in part, arguing that the majority’s holding that the employee’s retaliation and disparate treatment claims failed at the motion-to-dismiss stage represented “an astonishing departure from circuit precedent.”

Based on the one-month gap between the employee’s protected activity of filing an EEO complaint, in which she named the second-level supervisor as an offending party, and the adverse action of him issuing her a poor performance review, Judge Gregory would find the employee sufficiently stated a claim for retaliation. He noted she also plausibly alleged a causal connection between the events, including the facts that the second-level supervisor was no longer her supervisor when he issued the evaluation and she was not counseled for poor performance, put on an improvement plan, or notified that her performance was less than satisfactory.

He also argued the employee had pled a plausible claim for disparate treatment based on the stark differences in how she and a white male employee were assessed during the performance evaluation process. Her alleged poor performance and misconduct were comparable in seriousness to the poor performance of the white male employee, who reported to the same supervisor and shared the same pay grade. However, she received a poor review, but he was never disciplined for the same actions.

The judge concurred in the majority’s holding that she failed to allege a hostile work environment claim or a disparate treatment claim in connection with being escorted out of the workplace.

The case is No. 20-1961.

Judge: Rushing, A.

Attorneys: Dennis L. Friedman (Law Offices of Dennis L. Friedman) for Dorothy A. Seabrook. Rudy E. Renfer, Office of the U.S. Attorney, for Daniel P. Driscoll.

MainStory: TopStory Discrimination RaceDiscrimination SexDiscrimination Retaliation MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews GCNNews