Alan Scot Tickles v. SHERIFF TERRY S. JOHNSON, in his official capacity as Alamance County Sheriff

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1577

ALAN SCOT TICKLES,

Plaintiff - Appellant,

v.

SHERIFF TERRY S. JOHNSON, in his official capacity as Alamance County
Sheriff,

Defendant - Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Senior District Judge. (1:17-cv-00709-NCT-JLW)

Submitted: March 24, 2020 Decided: April 7, 2020

Before WILKINSON, AGEE and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Craig Hensel, HENSEL LAW, PLLC, Greensboro, North Carolina, for Appellant. William
L. Hill, Torin L. Fury, FRAZIER HILL & FURY, RLLP, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:

Alan Scot Tickles (“Appellant”) appeals the district court’s order dismissing his
complaint, in which he alleged that Alamance County Sheriff Terry S. Johnson
(“Appellee”) refused to promote him and then terminated him in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–634 (the “ADEA”). The
district court concluded that Appellant’s complaint failed to state an ADEA claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For his part, Appellant contends
he alleged sufficient facts from which to conclude that Appellee failed to promote him and
terminated him because of his age. Because the allegations in Appellant’s complaint are
insufficient to raise a right to relief above the speculative level, we affirm.
I.
On August 2, 2017, Appellant filed a complaint (“Complaint”) against Appellee in
the Middle District of North Carolina alleging the following.
At all relevant times, Appellee was aware Appellant was over 40 years old.
Appellee is responsible for hiring deputies and other employees and has a hierarchical
system in which employees are assigned a rank, which affords them a certain pay and
authority over other employees. Before an employee can be promoted to a higher rank,
they were “supposed to meet minimum standards” set by Appellee called “Guidelines.”
J.A. 5–6.
*
The Guidelines are not available to the public and are maintained in a closed

*
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3

computer system in Appellee’s office. Appellee hired Appellant as a detention officer in
the Alamance County Detention Center on January 2, 2009, when Appellant was 42 years
old. Appellant was originally ranked as Detention Officer 1, and he received promotions
to Detention Officer 2, Detention Officer 3, and Corporal in “the shortest amount of time
possible.” Id. at 6.
Yet on May 22, 2015, at age 48, Appellant applied for a promotion to Sergeant, and
he was “passed over” for the job on June 8, 2015. J.A. 6. Under the Guidelines, “a Corporal
could not be considered for a Sergeant position until they served as a Corporal for 18
months.” Id. At that time, only Appellant and one other Deputy, Kevin Dickerson, met
the Guidelines’ requirement for promotion to Sergeant. Instead of promoting Appellant
and/or Dickerson, Appellee promoted “two younger, less qualified individuals”: Johnathan
Scott and Mathew Brinkley. Appellee alleged that Scott and Brinkley “both failed to meet
the requisite Guidelines for promotion to Sergeant.” Id. at 7.
On August 19, 2015, roughly two months after Appellee did not promote Appellant,
and when Appellant was 49 years old, Appellee reprimanded Appellant and fired him “for
making a comment about a former maintenance employee’s intolerance for people of other
races and ethnicities.” J.A. 7. Except for this reprimand, Appellant’s supervisors “only
ever said that they were satisfied with his work.” Id. at 6. Appellee alleged this reprimand
“was a pretextual reason for [his] termination” because the “real reason was [his] age.” Id.
at 7, 6. Appellant also alleged that another deputy, Deputy Calicutt, who was also over 40
years old, was terminated “with[in] a few weeks of [Appellant’s] termination.” Id. at 7.
Both Calicutt and Appellant “had exemplary records” prior to their terminations. Id.

4

“Meanwhile, [Appellee] retained and promoted younger officers who have been written up
and/or placed on probation for violating [Appellee’s] rules and policies.” Id.
Appellant brought a single cause of action pursuant to the ADEA: “Disparate
Treatment – Age,” which was based both on failure to promote and termination. J.A. 8.
On April 19, 2018, the district court dismissed the Complaint for failure to state a claim
pursuant to Rule 12(b)(6). The court explained:
[Appellant] refers to the “minimum standards” a person “was
supposed to meet” before he “could be promoted” as
“Guidelines.” These allegations do not require [Appellee] to
abide by the “Guidelines” in his promotion decisions, nor does
[Appellant] otherwise allege that they are a legal requirement,
normally followed, purely advisory, or in the nature of a
threshold requirement rather than a qualification. While he
alleges that he “met [Appellee]’s Guidelines for promotion to
Sergeant,” he does not allege any Guideline other than tenure
as Corporal. He alleges that Scott and Brinkley were “less
qualified,” but does not allege the qualifications for Sergeant,
his qualifications, those of Scott and Brinkley, or how theirs
were inadequate.

It is not reasonable to infer from these allegations that
[Appellee] did not promote [Appellant] because of his age.
Instead, the factual allegations leave to speculation the reason
why [Appellee] did not promote [Appellant] and instead
promoted Scott and Brinkley. . . .

The extent of [Appellant]’s allegations in support of his
discharge claim is that he was terminated two [months] after
he was not promoted and, a few weeks later, Calicutt, another
deputy over forty, with an exemplary record, was also
terminated. However, Calicutt’s termination is not a factor
because there are no allegations as to why he was terminated.
The fact of his being over forty is not alone sufficient to support
a reasonable inference that he was terminated because of age,
but, instead, leaves to speculation the reason for his
termination. [Appellant] further alleges that while he and
Calicutt were terminated, [Appellee] retained and promoted

5

younger officers who have violated [Appellee]’s rules and
policies. [Appellant] has not alleged what rules and policies
those officers violated, what those violations were, or how they
compared to his remark about a former employee. From these
scant allegations, it is not reasonable to infer that [Appellee]
terminated [Appellant] because of his age. In sum, [Appellant]
has failed to state a plausible claim for relief under the ADEA.

Id. at 24–26 (emphasis supplied). Appellant timely noted this appeal.
II.
We review de novo a district court’s order granting a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), “accept[ing] the factual allegations of the
complaint as true and constru[ing] them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). 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
complaint should not be dismissed as long as it provides sufficient detail about the claim
to show that the plaintiff has a more-than-conceivable chance of success on the merits.”
Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (alterations
and internal quotation marks omitted).
III.
A.
The ADEA “prohibits employers from refusing to hire, discharging, or otherwise
discriminating against any person who is at least 40 years of age because of the person’s
age.” EEOC v. Balt. Cty., 747 F.3d 267, 272 (4th Cir. 2014) (internal quotation marks

6

omitted); see 29 U.S.C. §§ 623(a), 631(a). A plaintiff can prove age discrimination through
either direct evidence of discrimination or circumstantially through the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019); see also Laber v.
Harvey, 438 F.3d 404, 430 (4th Cir. 2006) (en banc) (describing McDonnell Douglas prima
facie case of failure to promote pursuant to the ADEA).
Rule 8 of the Federal Rules of Civil Procedure requires that the complaint contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Determining whether a complaint states a plausible claim for relief
pursuant to Rule 8 is
a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
-- but it has not shown -- that the pleader is entitled to relief, as
required by Rule 8.

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)) (alteration and internal quotation marks omitted).
To survive a Rule 12(b)(6) motion to dismiss for failure to state an ADEA claim,
Appellant is not required to plead a prima facie case of discrimination, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515 (2002), but he must “allege facts to satisfy the elements
of a[n] [ADEA] cause of action,” McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582,
585 (4th Cir. 2015). The allegations must also state a “plausible claim” for relief -- the
complaint cannot contain “‘naked’ allegations,” a “‘formulaic recitation’ of the necessary

7

elements,” or factual allegations that are “no more than [legal] conclusions.” McCleary-
Evans, 780 F.3d at 585 (quoting Iqbal, 556 U.S. at 678–79). Rather, the complaint must
contain factual allegations sufficient “to raise a right to relief above the speculative level”
and to support a “reasonable inference” of discrimination. Id. at 585, 586 (emphasis and
internal quotation marks omitted).
B.
1.
The “elements of a[n] [ADEA] cause of action,” McCleary-Evans, 780 F.3d at 585,
are the following: the plaintiff is (1) over the age of 40, and (2) experienced discrimination
by an employer (3) because of his age, see Laber, 438 F.3d at 430; 29 U.S.C. § 623(a)(1).
It is undisputed that Appellant pled he was over 40, and pled that Appellee (his employer)
failed to promote him and then terminated him. See §§ 623(a)(1)–(2) (classifying
discrimination pursuant to the ADEA as “discharg[ing] any individual”; “discriminat[ing]
against any individual with respect to” “compensation, terms, conditions, or privileges of
employment”; and “limit[ing]” the employee “in any way which would deprive . . . an[]
individual of employment opportunities.”). Therefore, we focus on whether the Complaint
contains factual allegations “sufficient to raise a right to relief above the speculative level”
and that support a “reasonable inference” that Appellee discriminated against Appellant
“because of” his age. McCleary-Evans, 780 F.3d at 585, 586 (emphasis and internal
quotation marks omitted); § 623(a)(1).

8

2.
The allegations in the Complaint leave us to merely speculate that Appellant was
denied a promotion and/or terminated because of his age. Even construed in the light most
favorable to Appellant, his allegations are too conclusory and factually unadorned to give
rise to a reasonable inference that Appellee’s challenged employment decisions were made
because of his age. See McCleary-Evans, 780 F.3d at 585–88; Coleman v. Md. Court of
Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (affirming dismissal of a complaint where the
allegations of race discrimination “do not rise above speculation”). Notably absent from
the Complaint are specific allegations that would give rise to a reasonable inference of age-
based discrimination, such as the nature of the requirements for promotion, Appellant’s
own qualifications, the qualifications and rule violations of his proposed comparators, or
even the proposed comparators’ proximity in age to his own (i.e., whether they were
substantially younger than him). See O’Connor v. Consol. Coin Caterers Corp., 517 U.S.
308, 313 (1996) (observing the inference that employment decision was based on age
discrimination “cannot be drawn from the replacement of one worker with another worker
insignificantly younger”). Without such details, we are left with mere speculation. Thus,
we agree with the district court’s conclusion that the Complaint, while alleging facts
consistent with age discrimination, failed to nudge his claims “across the line from
conceivable to plausible.” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017)
(quoting Iqbal, 556 U.S. at 680).

9

3.
Appellant asserts that he is unable to allege additional information about the
promotion requirements or the qualifications and violations of his proposed comparators
because he lacks access to this information absent discovery. But Rule 8 of the Federal
Rules of Civil Procedure “does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Iqbal, 556 U.S. at 678–79 (citing Fed. R. Civ. P. 8).
Insofar as Appellant is unaware of adequate facts to support a plausible claim for relief, his
inability to marshal additional facts absent discovery cannot save his conclusory and
speculative allegations from dismissal.
IV.
For the foregoing reasons, and the reasons stated by the district court, we affirm.
AFFIRMED