UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1380

SHAWNA CANNON LEMON,

Plaintiff – Appellant, v. MYERS BIGEL, P.A., f/k/a Myers Bigel & Sibley and Myers Bigel Sibley & Sajovec, P.A.; LYNNE A. BORCHERS; UNNAMED OTHERS,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:18-cv-00200-FL)

Argued: December 9, 2020 Decided: January 19, 2021

Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Diaz joined.

ARGUED: Steven Wayne Seymour, SAMUELS YOELIN KANTOR LLP, Portland, Oregon; John Heydt Philbeck, BAILEY & DIXON, Raleigh, North Carolina, for Appellant. Kerry A. Shad, Isaac Augustin Linnartz, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Brandon S. Neuman, Nathaniel J. Pencook, SHANAHAN LAW GROUP, Raleigh, North Carolina, for Appellant. WILKINSON, Circuit Judge:

Appellant Shawna Lemon practiced patent law at Myers Bigel (MB), first as an associate and then as a shareholding partner and equal owner of the firm. Around ten years after her elevation to MB’s partnership and its Board of Directors, Lemon applied for short- term leave. A vote of the full Board, however, found Lemon did not qualify for the leave. Interpreting this denial, and certain events that followed, as driven by retaliatory and race- based motivations, Lemon resigned. She then filed suit, alleging claims of race- and gender-based discrimination under Title VII and racial discrimination under § 1981.

The problem was that Lemon, an equity partner at MB, was not an “employee” of the firm she sought to sue. Pressed at argument, Lemon could not identify any Title VII case authority that supported her position, but stated that the law must make room for novelty. While we respect her candor, we are unable to embrace the novelty and thus affirm the trial court’s dismissal of her action.

I.

This case presents a challenge to a dismissal for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), and we thus take the facts as pleaded to be true. Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001).

In 2001 Lemon, an African-American attorney, joined MB as an associate. The terms of her at-will employment agreement were unremarkable. She was bound inter alia to “comply with the personnel policies . . . and all other rules and regulations of the employer,” as well as to “carry out . . . orders, directions, and policies stated by the

2 employer . . . either orally or in writing.” J.A. 68–72. MB reserved “complete control and authority with respect to the acceptance or refusal of any client and the amount of any fee charged.” Id.

When Lemon executed a shareholder agreement in 2007, whereby she purchased 5,000 shares of MB for approximately $62,241, her relationship to the firm changed. She was no longer an associate, as the agreement elevated her to partnership status. She owned the same share of the firm as all other partners, and the voting power of her seat on the firm’s Board of Directors was likewise the same. Like all other partners, she was compensated according to a formula whose output varied with the profits and losses of the firm. She was subject to MB’s shareholder quality control policy, which mandated that each shareholder submit her work product to another shareholder for substantive review. And finally, she became equally eligible to serve on the Board’s Management Committee—which she did, in 2011—and in MB’s officer positions—which she did, as Vice President and Secretary, in 2016. Altho