United States District Court, E.D. North Carolina, Northern Division
CYNTHIA L. BITTLE, Plaintiff,
TWIDDY & COMPANY OF DUCK, INC., Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendant's partial
motion to dismiss pursuant to Rules 12(b)(1) and (6) of the
Federal Rules of Civil Procedure. Plaintiff has failed to
respond to the motion within the time allowed. For the
following reasons, defendant's motion is granted.
was hired by defendant in October 2011 as a reservationist by
defendant, a company specializing in vacation rentals and
property management on the Outer Banks of North Carolina.
Plaintiff was promoted to the position of Assistance
Maintenance Manager in February 2014. Plaintiff alleges that
she made internal complaints by email to her supervisors
about the conduct of another manager, Chuck Lewis, and a
supervisor, Otto Torres. Plaintiff further alleges that
female employees over the age of forty, including herself,
were either not promoted or were terminated for
nonperformance-related reasons and replaced by younger males.
Finally, plaintiffs complaint alleges violations of the
Family Medical Leave Act (FMLA) after plaintiff suffered a
heart attack in June 2015.
amended complaint alleges claims for retaliation, sex
discrimination, and age discrimination based on plaintiffs
termination from defendant's employment, defendant's
failure to promote plaintiff, and an alleged pattern or
practice of discrimination by defendant under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C.
§§ 621 et seq., and Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e
et seq. Plaintiff also alleges a common law claim of
wrongful discharge under the North Carolina Equal Employment
Practices Act (NCEEPA), N.C. Gen. Stat. §§
143-422.1 et seq., and a claim for violation of the
FMLA. 29 U.S.C. §2601(b)(2), et seq.
has moved to dismiss plaintiffs claims for age
discrimination, failure to promote, and pattern and practice
of discrimination pursuant to Fed.R.Civ.P. 12(b)(1) for
failure to exhaust administrative remedies. Defendant has
also moved to dismiss plaintiffs claim of retaliation under
Title VII of the Civil Rights Act of 1964 for failure to
allege that plaintiff engaged in a protected activity.
Finally, defendant has moved to dismiss plaintiffs North
Carolina Equal Employment Practices Act claim as having been
filed outside the statute of limitations.
Court notes at the outset that plaintiff, who is represented
by counsel, has failed to respond to the motion to dismiss.
"Rule 41(b) of the Federal Rules of Civil Procedure
provides a district court with the authority to dismiss an
action [or claim] if the plaintiff fails to respond to a
motion to dismiss. It is recognized, however, that courts
should not apply such an unforgiving and relentless sanction
simply because a motion to dismiss goes unopposed."
Mitchell v. First Cent. Bank, Inc., No. 2:08CV6,
2008 WL 4145517, at *2 (N.D. W.Va. Sept. 8, 2008) (internal
and other citations omitted). The Court will accordingly
consider whether plaintiffs claims merit dismissal.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Rule 12(b)(1) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When subject
matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th
Cir. 1999). "In determining whether jurisdiction exists,
the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
Failure to Exhaust
argues that this Court lacks subject matter jurisdiction to
consider plaintiffs age discrimination, failure to promote,
and pattern or practice of discrimination claims. The ADEA
and Title VII each require that an aggrieved employee must
file a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC), generally within 180 days
after the alleged unlawful employment practice occurred. 29
U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e)(1). A
plaintiff may proceed to file an employment discrimination
action in the federal courts only after a charge has been
filed with the EEOC. See, e.g., 42 U.S.C. §
2000e-5(f)(1). "Only those discrimination claims stated
in the initial charge, those reasonably related to the
original complaint, and those developed by reasonable
investigation of the original complaint may be maintained in
a subsequent... lawsuit." Evans v. Techs.
Application & Svc. Co., 80 F.3d 954, 963 (4th Cir.
1996). Failure to exhaust administrative remedies by filing
an EEOC charge serves to deprive the federal courts of
subject matter jurisdiction over such claims. Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (2009).
administrative charge filed with the EEOC, plaintiff
indicated that she was discriminated against based on
retaliation and sex. [DE 12-1]. When describing the particulars
of her complaint plaintiff stated that she believed she was
subjected to a hostile work environment because of her sex
and that she was terminated in retaliation for opposing and
reporting discriminatory actions of male employees.
Id. The specific incidents to which plaintiff refers
are April 1, 2015, when she was verbally assaulted by Chuck
Lewis, a male manager, and August 12, 2015, the date
plaintiff was terminated after she had complained to the
owner of the company about Otto Torres on August 8 and 10,
EEOC charge does not contain any reference to her age nor is
an age-related claim reasonably related to the particulars of
the charged discrimination. Plaintiffs ADEA claim is
therefore beyond the scope of her EEOC charge and the Court
is without jurisdiction to consider it. Nor is there mention
in plaintiffs EEOC charge of or any reasonable relation to a
claim for failure to promote. Plaintiff did not claim that
she sought any promotion or that she was not promoted. The
Court lacks jurisdiction over this claim as well. Finally,
the EEOC charge fails to make any mention of or reference to
a pattern or practice of ...