Newel Ali v. BC Architects Engineers, PLC

                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-1582


NEWEL ALI,

                    Plaintiff - Appellant,

             v.

BC ARCHITECTS ENGINEERS, PLC,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:18-cv-01385-AJT-MSN)


Submitted: September 4, 2020                                  Decided: October 15, 2020
                            Amended: October 16, 2020


Before MOTZ and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.


Arinderjit Dhali, DHALI PLLC, Washington, D.C., for Appellant. Lars H. Liebeler, LARS
LIEBELER P.C., Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Newel Ali, 1 an Arab-American woman, appeals from the district court’s order

dismissing the 42 U.S.C. § 1981 claims she filed against her former employer, BC

Architects Engineers, PLC (“BC”). In her operative complaint, Ali alleges that BC refused

to promote her and fired her because of her race, created a racially hostile work

environment, and retaliated against her for reporting race discrimination within the

company, again by failing to promote her and by firing her.

       In dismissing each of Ali’s § 1981 claims, the district court held that Ali failed to

plausibly allege that BC had discriminated or retaliated against her on the basis of race.

While we mostly agree, we find that Ali has sufficiently stated a retaliatory-termination

claim. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

                                                 I.

       Per the operative complaint, Ali was hired by BC as a computer-aided design

(“CAD”) drafter in March 2015. Not long into her employment, she was assigned to assist

a structural engineer at the firm with his work. When that engineer left the company a few

months later, BC’s owners asked Ali—who has a background in structural engineering—

“to stop doing work as a CAD designer” and assume his duties instead. J.A. 23. 2 As

explained below, however, her time in that role would be brief.




       1
         Although the correct spelling of the Plaintiff’s first name is “Nawal,” we employ
the spelling used in the case caption.
       2
           Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.

                                                 2
       On September 30, 2015, Ali arrived late to work. A “project manager” for BC,

described as an “Iranian-American . . . male,” yelled at her and “accused her of cheating

the company by coming [in] late and leaving early.” J.A. 23-24. Ali immediately

complained about the project manager’s conduct to BC’s owners, specifically alleging that

he “was discriminating against her because of her race.” J.A. 24. The owners promised to

investigate the incident.

       A few weeks later, Ali traveled on vacation to Turkey. When she returned, she was

informed that BC had placed a different employee, a “Caucasian male,” in the structural

engineering position and reassigned her to work exclusively as a CAD drafter. J.A. 25.

       In December 2015, Ali learned that BC was looking to hire additional structural

engineers. She informed one of the company’s owners that she was interested in applying

for those positions. However, BC ultimately hired two other people for the jobs—a

“Chinese Asian male” and another man who was “maybe of a different race than Ali.” J.A.

26. BC later offered Ali a different position—“project coordinator”—which she accepted.

J.A. 27.

       Ali traveled to Turkey again that March, apparently to help facilitate her mother

moving to the United States. Upon her return, she “was demoted again from ‘project

coordinator’ to a CAD Drafter.” J.A. 27. On March 30, she spoke with BC’s owners about

her demotion. In the course of that conversation, Ali informed the owners of her belief that

“there was discrimination in [the] company” and that, more specifically, the project

manager involved in the September 30, 2015 incident continued to be “rude and

condescending to women and Arabs.” J.A. 28.

                                             3
       Then, on April 15, 2016, Ali emailed the owners a three-page letter “documenting

discrimination and retaliation within the company.”

Id. In that email,

Ali asserted that she

had “experienced female gender discrimination and retaliation” during her time of

employment, and that she had also been mistreated due to her national origin. J.A. 45-47.

Although the email did not expressly mention race, Ali “subjectively believed” that she

was complaining about racial discrimination. J.A. 28.

       BC fired Ali an hour after she sent her email. This lawsuit followed.

                                               II.

       We review an order granting a Rule 12(b)(6) motion de novo. Feminist Majority

Found. v. Hurley, 

911 F.3d 674

, 685 (4th Cir. 2018). “In conducting such a review, we are

obliged to accept the complaint’s factual allegations as true and draw all reasonable

inferences in favor of the plaintiff[].”

Id. “However, legal conclusions

pleaded as factual

allegations, unwarranted inferences, unreasonable conclusions, and naked assertions

devoid of further factual enhancement are not entitled to the presumption of truth.”

Wikimedia Found. v. Nat’l Sec. Agency, 

857 F.3d 193

, 208 (4th Cir. 2017) (internal

quotation marks omitted).

       “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544

, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”

Id. 4 III.

       Section 1981 provides that “[a]ll persons . . . shall have the same right . . . to make

and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Although

the statute does not mention “race,” the Supreme Court has interpreted it “to forbid all

racial discrimination in the making of private as well as public contracts.” Saint Francis

Coll. v. Al-Khazraji, 

481 U.S. 604

, 609 (1987) (internal quotation marks omitted). That

prohibition extends to “discrimination in private employment on the basis of race.”

Johnson v. Ry. Express Agency, Inc., 

421 U.S. 454

, 460 (1975). Thus, a person who

experiences intentional race discrimination in private employment may pursue a “federal

remedy” under § 1981.

Id. A plaintiff may

ultimately prove a race-discrimination claim under § 1981 through

“direct or circumstantial evidence showing that an adverse employment action was

[caused] by intentional discrimination aimed at the plaintiff’s [race],” or through the

“burden-shifting framework” of McDonnell Douglas Corp. v. Green, 

411 U.S. 792

(1973).

Guessous v. Fairview Prop. Inv., LLC, 

828 F.3d 208

, 216 (4th Cir. 2016). However, a §

1981 plaintiff need not plead facts demonstrating that she satisfies the McDonnell Douglas

framework to survive a motion to dismiss. 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. Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned

Media, 

140 S. Ct. 1009

, 1019 (2020).



                                              5
       On appeal, Ali challenges the district court’s dismissal of her race-discrimination,

hostile-work-environment, and retaliation claims. We address each in turn.

                                             A.

       Ali first claims that BC refused to promote her and, eventually, fired her because of

her race. In support of her refusal-to-promote claim, Ali alleges that she 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, however, those factual

allegations are insufficient to support a plausible race-discrimination claim. See Bing v.

Brivo Sys., LLC, 

959 F.3d 605

, 617-18 (4th Cir. 2020); McCleary-Evans v. Md. Dep’t of

Transp., State Highway Admin., 

780 F.3d 582

, 586 (4th Cir. 2015). 3            And we are

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. See McCleary-

Evans, 780 F.3d at 586

; Spriggs v. Diamond Auto Glass, 

165 F.3d 1015

, 1018 (4th Cir.

1999). In fact, Ali specifically alleged that BC did not want her working as a structural

engineer for an entirely non-discriminatory reason: she was a talented CAD designer, and

BC did not want to move her from that role until they could “find a CAD drafter as good

as [her].” J.A. 27; see 

Bing, 959 F.3d at 617

. We are therefore satisfied that the district



       3
         Although Bing and McCleary-Evans assessed claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, we have recognized the similarity of
a race discrimination claim pursued under that statute and one pursued under § 1981. See
Love-Lane v. Martin, 

355 F.3d 766

, 786 (4th Cir. 2004).

                                             6
court properly dismissed Ali’s race-discrimination claim predicated on BC’s refusal to

promote her.

       The same goes for Ali’s claim that she was fired because of her race. In support of

that claim, Ali specifically alleges that BC hired a non-Arab person to replace her, and that

BC treated other, non-Arab employees more considerately when terminating them—for

example, by giving them adequate time to collect their personal belongings. Once again,

however, these allegations are insufficient to support a reasonable inference of intentional

race discrimination.    See 

McCleary-Evans, 780 F.3d at 586

.          And Ali’s remaining

allegations in support of her discriminatory-termination claim are too speculative and

nonspecific to defeat a Rule 12(b)(6) motion. See 

Bing, 959 F.3d at 618

; Wikimedia

Found., 857 F.3d at 208

. We thus conclude that the district court correctly dismissed Ali’s

race-discrimination claim based on her termination. 4

                                             B.

       A plaintiff may also pursue a hostile-work-environment claim under § 1981. See

Boyer-Liberto v. Fontainebleau Corp., 

786 F.3d 264

, 277 (4th Cir. 2015) (en banc). A

hostile work environment exists “[w]hen the workplace is 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.”


       4
         To the extent that Ali might maintain that the district court erred by dismissing her
race-discrimination claim predicated on a reassignment of duties in November 2015, we
are satisfied that the claim was properly dismissed because the operative complaint fails to
plausibly allege that the reassignment of duties was an adverse employment action. See
James v. Booz-Allen & Hamilton, Inc., 

368 F.3d 371

, 375-77 (4th Cir. 2004).

                                              7
Harris v. Forklift Sys., Inc., 

510 U.S. 17

, 21 (1993) (internal citation and quotation marks

omitted). And to state a hostile-work-environment claim under § 1981, a plaintiff must

allege that “there is (1) unwelcome conduct; (2) that is based on the plaintiff’s [race]; (3)

which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment

and to create an abusive work environment; and (4) which is imputable to the employer.”

Guessous, 828 F.3d at 221

.

       Ali focuses on several details in the operative complaint that, she contends, make

her hostile-work-environment claim plausible: that BC’s owners repeatedly asked about

her travels to Turkey; that she was demoted—twice—after those travels; and that, at the

time she was fired, an owner commented that she was being terminated, in part, for

“bringing [her] mother’s problems” into the workplace. J.A. 24-29. But the operative

complaint fails to support a reasonable inference that any of that conduct related to Ali’s

race. And even if BC’s conduct was racially tinged, the operative complaint does not

plausibly allege that such conduct was severe or pervasive enough to alter Ali’s conditions

of employment and create an abusive work environment. See

id. Accordingly, the district

court properly dismissed Ali’s hostile-work-environment claim.

                                             C.

       Finally, Ali contends that the district court erred by dismissing her retaliation

claims. Section 1981 “encompasses retaliation claims” for opposing race discrimination

in employment. 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. Crawford v. Metro. Gov’t of Nashville &

                                             8
Davidson Cnty., Tenn., 

555 U.S. 271

, 276 (2009) (alteration and internal quotation marks

omitted). An employee is protected from retaliation not only for reporting “employment

actions actually unlawful under [§ 1981] but also employment actions she reasonably

believes to be unlawful.” 

Boyer-Liberto, 786 F.3d at 282

(alterations and internal quotation

marks omitted). And in line with other § 1981 claims, 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. See 

Guessous, 828 F.3d at 217-18

; cf. Comcast 

Corp., 140 S. Ct. at 1019

.

       Ali alleges that she was denied a promotion to structural engineer, in part, because

she orally complained about race discrimination within the company about three months

before applying for the position. However, the temporal proximity between that reporting

and BC’s failure to select her for the position is too tenuous to support a reasonable

inference of causation. See Clark Cnty. Sch. Dist. v. Breeden, 

532 U.S. 268

, 273-74 (2001)

(explaining that temporal proximity may suffice to establish causation when protected

activity and adverse action are “very close” and relying on decisions ruling that three- and

four-month intervals were insufficient (internal quotation marks omitted)); King v.

Rumsfeld, 

328 F.3d 145

, 151 n.5 (4th Cir. 2003) (explaining that ten-week period between

protected activity and employment action is generally “sufficiently long so as to weaken

significantly the inference of causation between the two events”). And as discussed above,

any inference of retaliation is further weakened by the operative complaint’s allegation that

Ali was not selected for the structural engineer position because she was more valuable to



                                               9
BC as a CAD drafter. See 

Bing, 959 F.3d at 617

. Accordingly, the district court properly

dismissed Ali’s claim that BC retaliated against her by denying her a promotion.

       In contrast, we conclude that Ali has sufficiently stated a claim for retaliatory

termination, and that the district court erred in dismissing that claim. Ali alleges that she

made another oral report of racial discrimination to BC’s owners on March 30, 2016. She

further alleges that her work performance was satisfactory throughout her tenure, and that

she was fired on April 15, 2016. 5 The district court never mentioned the March 30, 2016

report in assessing Ali’s retaliation claim. But the timing of that report is significant.

Unlike the three-month gap between Ali’s initial complaint and BC’s failure to promote

her, a mere two weeks passed between Ali’s March 30 report and her firing; a “close

temporal proximity” that supports an inference of causation. See Jacobs v. N.C. Admin.

Office of the Courts, 

780 F.3d 562

, 575 (4th Cir. 2015). Moreover, Ali alleges that, in the

time between her March 30 report and her firing, she was twice denied reasonable requests

to work from home to care for her sick son—the inference being that BC became hostile




       5
         BC suggests that we need not accept as true Ali’s allegation that she reported racial
discrimination to BC’s owners about two weeks before her termination. According to BC,
Ali’s allegation is contradicted by an exhibit attached to its motion to dismiss. We reject
BC’s contention, however, because any such contradiction is insufficiently clear to
override our obligation to accept the operative complaint’s factual allegations as true. See
Feminist Majority 

Found., 911 F.3d at 685

. Relatedly, because we rely on Ali’s March 30,
2016 oral complaint of race discrimination to resolve whether the district court properly
dismissed her retaliatory-termination claim, we need not decide whether Ali’s April 15,
2016 email also complained of racial discrimination, as the complaint indicates she
subjectively believed.

                                             10
toward her after she made her report. Taking these allegations together, we are satisfied

that Ali has plausibly stated a retaliatory-termination claim under § 1981.

                                             IV.

       Pursuant to the foregoing, we affirm the district court’s dismissal of Ali’s claims for

race discrimination, hostile work environment, and retaliatory failure to promote. We

reverse the dismissal of Ali’s retaliatory-termination claim, however, and remand for

further proceedings.    We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

                                             AFFIRMED IN PART, REVERSED IN PART,
                                                                 AND REMANDED




                                             11

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