United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on Lowe's Companies,
Inc.'s and Lowe's Home Centers, LLC's
(“Defendants” or “Lowe's”) Motion
to Dismiss Plaintiff's Complaint (Doc. 3) (the
“Motion”) and accompanying brief in support (Doc.
5), which were filed on July 19, 2016. Plaintiff Andrea
Spainhour (“Plaintiff”) filed a Complaint (Doc.
1-1) in Iredell County Superior Court on June 3, 2016,
followed by an Amended Complaint (Doc. 6-1) (the
“Complaint” or “First Amended
Complaint”) on June 27, 2016, which alleges that her
employer, Lowe's, had discriminated against her on the
basis of gender and age, creating a hostile work environment,
and unlawfully retaliated against her in response to her
filing of claims with the EEOC. Lowe's moves this Court,
pursuant to Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6), to
dismiss the Plaintiff's Complaint for lack of subject
matter jurisdiction and failure to state a claim upon which
relief may be granted (Doc. 3). For the following reasons,
the Defendants' Motion to Dismiss is
GRANTED in part and DENIED
PROCEDURAL & FACTUAL BACKGROUND
October 2009, Plaintiff, a 65 year-old female, began working
at Lowe's Headquarters in Wilkesboro, North Carolina, and
was later transferred to the Store 480 location in
Winston-Salem, North Carolina to work as a Human Resource
Manager (“HRM”). (Doc. 6-1 at 2). Plaintiff's
relevant education and experience relating to this position
include a Bachelor's Degree in Organizational Behavior, a
certification as a Human Resources Professional by the
Society of Human Resource Managers, and her time working as
an HR professional since 2004. (Doc. 6-1 at 2).
November 2013, Plaintiff noticed younger, newly-hired HR
personnel being offered starting salaries around $55, 000,
compared to her own salary of $38, 000. (Doc. 6-1 at 3). Upon
expressing her concern over such disparity with the Area HRM,
Mr. McArdle, he responded by increasing Plaintiff's
salary; this increase still left Plaintiff receiving a lesser
salary than younger, recently-hired employees. Id.
Plaintiff was also not being afforded the same opportunities
for special assignments as the younger HRMs, such as the task
of working on new-hire orientation which was given to an HRM
in his mid-30's. Id.
was denied the opportunity to transfer to another store, the
Lowe's at Hanes Mall in Winston-Salem, North Carolina, to
be closer to her residence. Id. Plaintiff is a
resident of Forsyth County, within which is where the city of
Winston-Salem is located, but the Complaint doesn't state
her address. (Doc. 6-1 at 1). Plaintiff states that the HRM
position at the Hanes Mall location was never posted, but a
younger, less-experienced HRM was transferred to this
position. Id. at 3. When Plaintiff asked why the
position was never posted and why she could not transfer, Mr.
McArdle said that the position was “confidential,
” and that Lowe's does not transfer employees based
on home location. Id. However, Plaintiff notes that
Mr. McArdle had on another occasion transferred an HRM based
on home location. Id.
April 26, 2015, Plaintiff filed an EEOC claim based on this
treatment, alleging age discrimination in violation of the
Age Discrimination Employment Act (the “ADEA”).
(Doc. 6-1 at 3; Doc. 3-1). About a month after filing the
EEOC claim, Plaintiff went on medical leave from May 29, 2015
through June 19, 2015. (Doc. 6-1 at 3). A non-HRM employee,
Marie Hippert, was delegated certain of Plaintiff's
responsibilities while Plaintiff was on leave that were not
tasks within Ms. Hippert's job title. Id. at 4.
For instance, Hippert was given the task of managing all
employee food events, despite the fact that there were no
food events during Plaintiff's leave, and Ms. Hippert was
also authorized to speak with employees regarding certain HRM
matters; this authorized activity continued even after
Plaintiff's return from medical leave. Id. These
actions were viewed by Plaintiff as an effort to reduce her
authority and distance her from the HRM position in
retaliation for her EEOC claim. Id. at 4-5.
states that another store associate informed Plaintiff that a
notebook belonging to Ms. Hippert was found at the customer
service desk. Id. at 5. Inside the notebook was a
letter, written in April 2015 to the Area HRM, Jennifer
Coady, alleging that Plaintiff was incompetent and unable to
carry out her designated responsibilities. Id. The
Complaint doesn't allege who wrote the letter. Plaintiff
states that she inquired about the letter and Ms. Coady
responded that she was aware of the allegations in the
letter, but took no action as a result. Id.
these events, Plaintiff applied for an “HR/Admin
Coach” position with Lowe's in Statesville, North
Carolina. Id. After receiving initial support from
one of the interviewing agents regarding her application,
this same individual appeared very “cold” while
conducting Plaintiff's interview such that Plaintiff
sensed the decision about her candidacy for the position had
already been made. Id. The reasoning provided for
why Plaintiff was not selected was her failure to provide
sufficient examples of working with senior management, yet
Plaintiff allegedly provided at least two such examples.
Id. Plaintiff again saw this adverse treatment as
retaliation after her EEOC claim. Id.
EEOC issued Plaintiff a Notice of Right to Sue on March 7,
2016. (Doc. 6-1) at 2. Plaintiff filed a Complaint (Doc. 1-1)
in Iredell County Superior Court on June 3, 2016, followed by
an Amended Complaint (Doc. 6-1) on June 27, 2016, which
alleged her employer, Lowe's, had discriminated against
her on the basis of gender and age, created a hostile work
environment, and unlawfully retaliated against her in
response to her filing of claims with the EEOC. Plaintiff
seeks relief from: (1) gender discrimination in violation of
Title VII of the Civil Rights Act of 1964; (2) harassment
based on gender creating a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964; (3)
age discrimination in violation of the North Carolina Equal
Employment Practices Act (the “NCEEPA”), N.C.
G.S. § 143-422.2; and (4) retaliation in violation of
the Title VII of the Civil Rights Act of 1964 and the NCEEPA.
Id. at 6-8. On July 13, 2016, Defendants filed a
Notice of Removal, asserting subject matter jurisdiction in
this Court pursuant to 28 U.S.C. § 1331 for
Plaintiff's federal causes of action and 28 U.S.C. §
1367(a) for Plaintiff's claim under the NCEEPA. (Doc. 1)
at 2. This action was removed from the Superior Court of
Iredell County, North Carolina, which is within this
Court's Statesville division of the Western District of
North Carolina. Therefore, venue is appropriate in this
filed the present Motion and an accompanying brief in support
on July 19, 2016. (Doc. 3; Doc. 5). On August 5, 2016,
Plaintiff filed a brief in opposition to the Motion (Doc. 7),
to which Defendants replied on August 15, 2016 (Doc. 8).
Defendants contend that this Court lacks jurisdiction over
Plaintiff's Title VII claims for gender and retaliation
because Plaintiff did not include these claims in the EEOC
charge, and therefore did not exhaust her administrative
remedies. (Doc. 3 at 2). Moreover, Defendants argue that
Plaintiff's claim for relief under the NCEEPA should be
dismissed because Plaintiff was not discharged from
employment, and therefore cannot seek relief under the
NCEEPA. Id. Plaintiff conceded this point and does
not dispute that the claims under the NCEEPA deserve
dismissal as a matter of law. (Doc. 7 at 4). Based on this
concession, Defendants claim that Plaintiff's allegations
regarding age discrimination are now fully absent from these
proceedings since no ADEA claims appeared in the Complaint.
(Doc. 8 at 1-2). Furthermore, Defendants argue that because
Plaintiff's other allegations regarding gender
discrimination and retaliation were not first included in the
EEOC claim, nor do they relate back to any EEOC claim
properly pending before the Court, the Court should not
consider either claim. Id. at 6.
response to these contentions by Defendant, Plaintiff
maintains that the factual allegations in the Complaint as
well as the initial EEOC claim support her claims of
discrimination, and she also provides additional facts
concerning the alleged issues with jurisdiction and
exhaustion of administrative remedies. (Doc. 7). Namely,
Plaintiff asserts that she completed her initial EEOC claim
without counsel present, and that it was subsequently
supplemented with information contained in documented email
communication between her counsel and an EEOC Federal
Investigator, Mr. Nieves. Id. at 3-4; (Doc. 6-3;
Doc. 6-4). Plaintiff asserts that such communication occurred
at the behest of Mr. Nieves. Id. at 3; (Doc. 6-3;
Doc. 6-4). Moreover, Plaintiff contends that this
communication was sufficient to update and amend her original
charge to include retaliation claims. (Doc. 7 at 3; Doc.