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Howell v. North Carolina Central University

United States District Court, M.D. North Carolina

July 5, 2017



          N. Carlton Tilley, Jr. Senior United States District Judge

         Plaintiff Matthew Howell has alleged nine claims against Defendants North Carolina Central University (“NCCU”) and Debra Saunders-White, Greg Marrow, Leon Lewis, Cameron Seay, Bijoy Sahoo, Sybil Henderson, Mark Stilemen, John Smith, Sylvia Anderson, Eva Kraus, Linc Butler[1], and Daphine Richards[2] in their individual capacities (collectively with NCCU referred to as “Defendants”) related to his former employment at NCCU. This matter is before the Court on Defendants' Motion to Dismiss (“Motion”) [Doc. #17] pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the Motion is granted.


         For purposes of evaluating a motion to dismiss, well-pled facts are accepted as true and construed in the light most favorable to Howell. Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). Howell is an approximately forty-nine year old “African American and Indian” whose physical appearance is that of a Caucasian and who is commonly referred to in the workplace as Caucasian. (Compl. ¶¶ 6, 94 [Doc. #1].) On or about February 1, 2006, Howell accepted full-time employment at NCCU in its Information Technology Services (“ITS”) Department as a computer consultant assigned to the Helpdesk. (Id. ¶¶ 30, 31.)

         On or about May 5, 2006, the Assistant Provost contacted the Helpdesk for assistance with his computer that had been infected with spyware and pornography. (Id. ¶ 32.) Howell was attending the Helpdesk at the time, began working on the issues, and ultimately traced the path of the virus through NCCU's server and database. (Id.) He immediately contacted Greg Marrow, the Chief Investigation Officer of the ITS Department, to inform him that pornography had been downloaded on the computer server and NCCU computers. (Id. ¶ 33.) The State of North Carolina investigated the breach and uncovered pornography, theft of copy-righted material, and theft of honest services. (Id. ¶ 34.) At least one manager was terminated, but no other managers were disciplined or jailed. (Id.)

         Soon thereafter, on or about July 1, 2006, Howell received a 7 out of 7 performance score from Roger Daniels, the Information Technology Manager in the ITS Department, and was reassigned to work as a field technician supporting the campus faculty and staff. (Id. ¶ 35.) Yet, just one month later, on or about August 1, 2006, Daniels gave Howell a letter stating that he was terminated from employment and refused to provide a justification for the termination. (Id. ¶ 36.) At an unspecified time, Howell filed a grievance “noting gender discrimination” because Howell's position was “transferred to a female staff employee.” (Id. ¶ 37.) At the hearing for his grievance, though, Howell presented copies of pornography “as evidence of his illegal termination.” (Id. ¶ 38.) “The recommendation was to reinstate” Howell, but Marrow refused to do so, “stating that Mr. Howell's managers disliked him.” (Id.) The hearing ended in an impasse, so Howell filed the paperwork for the second step of the mediation process and notified the North Carolina State Auditors Hotline. (Id.)

         “After further review, ” the then-Chancellor of NCCU reinstated Howell and awarded him back pay “and time.” (Id. ¶ 39.) Howell returned to work on or about November 1, 2006 in the School of Business, “[a]t the suggestion of Human Resource[s]” “for fear of retaliation working under” Marrow. (Id.) On or about that same day, Daniels, Leon Lewis, Assistant Director of the ITS Department, and Harry Monds, ITS Manager, met with Cameron Seay, Lead Professor of Computer Information Systems in the School of Business, and Janius Montague, Director of Information Technology in the School of Business. (Id. ¶ 40.) Although there are no allegations of the reasons for or the substance of the meeting, Howell contacted Human Resources and the North Carolina State Auditors Hotline “immediately.” (Id.) At an unspecified time, Howell “discovered that ITS was still selling movies[3] and Mr. Seay also had downloaded movies on his servers.” (Id. ¶ 41.) Howell reported this information to the North Carolina Central Police and the North Carolina State Auditors Hotline. (Id.)

         On or about February 2, 2007, Howell was again terminated. (Id. ¶ 42.) He contacted Human Resources and was directed to speak with NCCU's attorney. (Id.) In turn, Howell hired an attorney and “was asked to report back to work on or about April 1, 2007.” (Id.) However, before he returned to work, on or about March 20, 2007, Seay “sent several slanderous emails regarding Mr. Howell's return to the School of Business as IT support”, stating that Howell “made inappropriate and sometimes lewd comments to faculty, staff and students.” (Id. ¶ 43.) Although Seay stated that this was documented, he provided no documentation to Human Resources when asked to do so. (Id.) Two days later, on or about March 22, 2007, Bijoy Sahoo, Dean of School of Business, “sent an email threatening Mr. Howell and banning him from the Office of Business Services.” (Id. ¶ 44.)

         On or about April 1, 2007, Howell returned to work and reported to Sybil Henderson in the School of Business. (Id.) At an unspecified time, he requested a desktop audit to show his performance during the 2007-2008 period, but Daphine Richardson, “EEO”, provided a false report of the audit which led to a negative performance evaluation with no pay increase. (Id. ¶ 46.) Nevertheless, Henderson did give Howell a pay raise on or about May 1, 2008 as part of the “career banding raise across the system by the States Personnel.” (Id. ¶ 47.) However, not only did he not receive the back pay as part of the “career banding raise”, but his pay increase was $4, 000 less than “[a]ll other employees” in the ITS Department. (Id.) Howell filed a grievance, but, as of the date he filed his Complaint, had not received a hearing, nor had his pay checks reflected the pay raise he did receive. (Id.) “NCCU refused the back pay and equal pay settlement.” (Id.) After having filed several grievances, Howell's requests were ignored, and the grievances “disappeared from his personnel file.” (Id. ¶ 48.) He attempted to meet with Mark Stilemen, Human Resources Director, but to no avail. (Id.)

         On or about June 1, 2009, “Henderson unduly scrutinized” Howell's telephone bill and apparently threatened to terminate him for theft of services. (Id. ¶ 49.) Yet, after Howell's attorney contacted NCCU, Henderson stopped her threat. (Id.) The following month, on or about July 1, 2009, Howell sent Sahoo a letter “regarding the hostile work environment, incorrect pay raise and back pay”, after which Howell received back pay for July. (Id. ¶ 50.) On or about October 1, 2009, Howell was transferred back to ITS. (Id. ¶ 51.)

         Nearly four years later, on or about August 1, 2013, Howell “filed another grievance regarding the hostile work environment and bullying against John Nancy Smith, Chief Information Officer in the ITS Department.” (Id. ¶ 52.) Howell spoke with Sylvia Anderson, Director of “EEO, ” who ignored the grievance “regarding the hostile work environment”, and Howell “did not receive a hearing within the NCCU's policy of forty-five days.” (Id.)

         On or about May 5, 2014, Howell met with Eva Kraus, current Chief Information Officer of the ITS Department[4], and was given notice of Reduction in Force (“RIF”), presumably terminating Howell. (Id. ¶ 53.) However, the following day, Kraus created three new jobs and awarded some employees raises. (Id.) On or about May 15, 2014, Howell filed a grievance about the RIF, and a hearing was held on August 20, 2014 with Linc Butler, current[5] Human Resources Director, and Kraus present. (Id. ¶ 54.) Kraus would not offer Howell his previous position, and, although he “had applied for all the jobs that had posted at NCCU during the period[6]”, he was not hired. (Id.) He “immediately” filed for the second step in the mediation policy. (Id.) On or about October 20, 2014, Howell “had a hearing” with Kraus who, once again, would not offer him his previous position. (Id. ¶ 55.) Howell told Kraus that several employees had been promoted and temporary employees had been hired “contrary to the RIF regulations.” (Id. ¶¶ 53, 55.) Approximately two months later, on or about December 22, 2014, Howell's grievance was denied. (Id. ¶ 55.)

         On or about February 1, 2015, Howell received a letter from NCCU informing him that he was not hired for the position for which he had applied[7]. (Id. ¶ 56.) The person who was hired for the position was more than thirty years younger than Howell. (Id.) Three weeks later, on or about February 24, 2015, he filed a grievance “alleging that he had RIF priority, and the RIF was harassment, hostile working conditions, failure to follow Human Resources policy and state policy, and age discrimination.” (Id.) On or about April 1, 2015, Howell's “claim” was denied, after which he filed “for a mediation” that was held on or about May 28, 2015 to no avail. (Id. ¶¶ 57, 58.) NCCU repeatedly failed to address Howell's grievances or concerns about pay and retaliatory harassment. (Id. ¶ 59.)

         Howell filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”)[8] in which, at least as he alleges in his Complaint, he asserted age, race, and retaliation discrimination. (Id. ¶ 60.) On or about March 8, 2016, he received his right to sue letter (Ex. 1 to Compl. [Doc. #1-1]), after which he filed the instant action. He has alleged (1) whistleblower retaliation in violation of Title VII of the Civils Rights Act of 1964 (“Title VII”), (2) race discrimination in violation of Title VII, (3) retaliation in violation of Title VII, (4) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), (5) retaliation in violation of the ADEA, (6) gender discrimination in violation of the “Gender Discrimination in Employment Act”, (7) violation of equal protection pursuant to Fourteenth Amendment and 42 U.S.C. § 1981, (8) wrongful discharge, and (9) violation of the North Carolina Wage and Hour Act.


         Defendants first argue that Howell failed to exhaust his administrative remedies as to his claims of race discrimination under Title VII and age discrimination under the ADEA in Counts 2, 4, and 5, respectively. Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2(a), and the ADEA prohibits employment discrimination on the basis of age, 29 U.S.C. § 623. However, before instituting a civil action alleging violations of Title VII or the ADEA, an individual must first file a Charge of Discrimination with the EEOC or, in other words, exhaust his administrative remedies. See 42 U.S.C. § 2000e-5 (Title VII); 29 U.S.C. § 626 (ADEA); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The contents of the charge determine the “scope of the plaintiff's right to file a federal lawsuit”. Jones, 551 F.3d at 300; see also Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (stating that the “charge frames the scope of future litigation”). “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 Title VII [or ADEA] suit.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996); see also Chacko, 429 F.3d at 506 (holding that a plaintiff fails to exhaust his administrative remedies where the charge references “different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit”). Therefore, the Fourth Circuit Court of Appeals has found claims that allege different bases for discrimination than were alleged in the charge or that allege different types of discrimination than were alleged in the charge as barred. Chacko, 429 F.3d at 509 (citing cases). “[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII [or ADEA] claim deprives the federal courts of subject matter jurisdiction over the claim.” Jones, 551 F.3d at 300-01.


         In support of their argument, Defendants attached to their Motion a copy of Howell's Charge of Discrimination filed with the EEOC on August 20, 2015, (Ex. 1 to Mot. to Dismiss [Doc. #17-1]), and argue that the Court can properly consider it, (Defs.' Mem. of Law in Supp. of Mot. to Dismiss (“Defs.' Br. in Supp.”) at 5 n.2 [Doc. #18]). Howell argues otherwise, (Pl.'s Mem. Opposing Mot. to Dismiss (“Pl.'s Br. in Opp'n”) at 2-3 [Doc. #20]), but nevertheless cites to the exhibit in his brief, (id. at 4).

         A court may consider a document attached to a motion to dismiss if it is “integral to the complaint and there is no dispute about the document's authenticity.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016); see also Robinson v. Durham Pub. Sch. Bd. of Educ., No. 1:13CV652, 2014 WL 3894368, at *4 n.3 (M.D. N.C. Aug. 7, 2014) (considering an EEOC Charge that the defendant attached to the motion to dismiss because the plaintiff relied on the Charge for exhaustion of administrative remedies and the plaintiff did not appear to contest the authenticity of the Charge as he relied on it in his opposition to the motion to dismiss). Howell alleged that he filed a Charge with the EEOC and thereafter received his right to sue letter, prerequisites to his filing the instant action. In addition to his reliance on the Charge for that purpose, he cited Defendants' exhibit of the Charge in his opposition brief and did not contest its authenticity. In support of the exhibit's authenticity, the Charge number, 433-2015-02775, is the same Charge number on Howell's right to sue letter that he attached to his Complaint. Therefore, the Court will consider the EEOC Charge that Defendants attached to their Motion.



         According to Defendants, Howell did not exhaust his administrative remedies as to his claim in Count 2 of race discrimination in violation of Title VII. They argue that he not only failed to check the box on his Charge for race discrimination, but he also failed to raise the claim in the Charge. (Defs.' Br. in Supp. at 8.) Because “[t]here is no reference in the charge to any alleged actions taken by NCCU or any of its employees that were based on race”, (id.), Defendants conclude that the claim must be dismissed.

         In response, Howell acknowledges that he checked the box for color discrimination and described color discrimination in the Charge. (Pl.'s Br. in Opp'n at 4.) He also argues that “it is undisputed that Defendants treated him unfairly based on his color.” (Id.) Then, confusingly, he never mentions color again in his brief and, instead, argues that he alleged in his Charge that “he was discriminated against on the basis of his race”, (id. at 4-5), and erroneously cites to the Complaint in support of those arguments[9], (id. at 5).[10]

         “Even though race and color clearly overlap, they are not synonymous.” EEOC Compliance Manual, § 15-III at 15-6 (Apr. 19, 2006). In its Compliance Manual, the EEOC explains that, while Title VII does not define “color”, courts and the EEOC “read ‘color' to have its commonly understood meaning - pigmentation, complexion, or skin shade or tone.” § 15-III at 15-6. Compare Id. with id. § 15-II at 15-3 (referencing five racial categories provided by the Office of Management and Budget - American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White - and one ethnic category - Hispanic or Latino). “[C]olor discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person.” Id. The Fourth Circuit Court of Appeals has likewise explained, “Color discrimination arises when the particular hue of the plaintiff's skin is the cause of the discrimination, such as in the case where a dark-colored African-American individual is discriminated against in favor of a light-colored African-American individual.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 n.5 (2002); see also Williams v. Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (“Light-skinned blacks sometimes discriminate against dark-skinned blacks, and vice versa, and either form of discrimination is literally color discrimination.”).

         Similar to Howell, the plaintiff in Jones v. Jefferson Parish, No. 12-2191, 2013 WL 871539, at *4 (E.D. La. Mar. 8, 2013), checked the boxes on his two formal EEOC charges for discrimination based on color and retaliation, but, as is relevant here, did not check the box for race. In the narrative, he never mentioned race discrimination and concluded that he had “been discriminated against because of [his] color, light skinned, and retaliated against for opposing practices made illegal under Title VII.” Id. His attachments to the charge mentioned discrimination “'based on color . . . as compared to darker employees'” but not discrimination based on race. Id. The plaintiff subsequently filed a complaint against the defendant-employer alleging, among other things, what could have been interpreted as discrimination based on race and argued that the scope of his EEOC charge and the related investigation were broad enough to include his claim of race-based discrimination. Id. at *3. The court disagreed, found that he “clearly never filed a charge of discrimination based on . . . race”, and dismissed the claim because, assuming he did not abandon the claim by failing to brief the issue, he failed to exhaust his administrative remedies as to that claim. Id. at *5. Cf., e.g., Bryant, 288 F.3d at 132 n.5 (finding that the plaintiff failed to exhaust his administrative remedies as to his claim for color discrimination, among others, because he only alleged race discrimination in his EEOC Charge and “did not indicate that he was discriminated against on the basis of his skin color”, and, as such, his Charge was “devoid of any hint that his particular skin tone motivated the alleged discrimination”); Daniels v. James Lawrence Kernan Hosp., Inc., No. No. WMN-15-255, 2015 WL 5735397, at *3 (D. Md. Sept. 29, 2015) (quoting Bryant in support of dismissing the plaintiff's color discrimination claim because she stated in her charge that she was discriminated against due to “race, Black” when she was terminated and three Caucasians were not and failed “to put forth a specific allegation describing color discrimination or showing how color discrimination was related to her allegation that she was discriminated against” and describing the “[p]laintiff's assertion that the text of her EEOC charge plainly allege[d] discrimination on the basis of color” as “her conflation of race and color discrimination”); Richardson v. HRHH Gaming Senior Mezz, LLC, 99 F.Supp.3d 1267, 1273-74 (D. Nev. 2015) (dismissing the plaintiff's color discrimination claim, finding that the plaintiff's charge was “devoid of allegations of discrimination based on skin tone” and that he instead alleged that he was discriminated against “because of [his] race, Black”, and concluding that because there were no allegations in the charge that “would allow the EEOC to infer and investigate a claim of color discrimination, [the] color discrimination is not like or reasonably related to his EEOC charge”); Cooper v. Jackson-Madison Cty. Gen. Hosp. Dist., 742 F.Supp.2d 941, 950-51 (W.D. Tenn. 2010) (finding that the plaintiff failed to exhaust his administrative remedy for color discrimination because he alleged in his charge that he was discriminated against by an African-American director because of his Caucasian race not “because he was, for example, a fair-skinned Caucasian” and citing the EEOC's compliance manual and Bryant, among other cases).

         Here, represented by counsel at the time he filed his Charge with the EEOC, Howell only checked the boxes for color and retaliation. (Ex. 1 at 1.) ...

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