United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
September 23, 2016, Cynthia Narrell Brown ("Brown"
or "plaintiff'), a pro se plaintiff proceeding in
forma pauperis [D.E. 1, 3], filed a complaint against the
Wake County Government ("Wake County") and County
Manager Jim Hartman ("Hartman") (collectively,
"defendants") claiming violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17 ("Title VII") [D.E. 4]. On December 7,
2016, defendants moved to dismiss Brown's complaint for
lack of subject-matter jurisdiction and for failure to state
a claim [D.E. 17] and filed a supporting memorandum [D.E.
18]. On December 8, 2016, the court notified Brown about the
motion to dismiss, the consequences of failing to respond,
and the response deadline [D.E. 19]. The letter was returned
as undeliverable [D.E. 20], and Brown never responded. As
explained below, the court grants defendants' motion to
dismiss for failure to state a claim upon which relief can be
December 2000, Brown began working as a human services
technician for Wake County. Compl. [D.E. 4] 4; [D.E. 17-2] 3.
In 2011, Brown filed a discrimination charge with the Equal
Employment Opportunity Commission ("EEOC") against
Wake County. Compl. at 3. On unspecified dates, unspecified
persons defamed Brown, disciplined her with "unjust
suspensions" and "write-ups, " treated her
differently than Hispanic coworkers, and denied her
educational opportunities granted to others. Id. at
On or about September 21, 2015, Brown returned from leave
under the Family and Medical Leave Act of 1993
("FMLA"), 29 U.S.C. §§ 2601-2654.
Id. at 4-5. When Brown returned from FMLA leave,
Safa Hamad, "WIC Program Manager, " fired Brown
"for unacceptable conduct by demonstrating disrespectful
treatment toward staff and unsatisfactory job performance for
not following work rules." Id. at 5; [D.E.
17-2] 3. Brown "den[ies] both accusations and
believe[s]" those reasons were pretextual and that
defendants really fired her in retaliation for her 2011 EEOC
charge. Compl. 5; [D.E. 17-2] 3.
March 18, 2016, the EEOC notified Wake County that Brown had
filed a charge of discrimination against Wake County and that
the EEOC would forward Brown's "perfected
charge" when received. [D.E. 17-1]. On April 6, 2016,
Brown filed a discrimination charge with the EEOC, claiming
retaliatory discharge and discrimination on the basis of
color, race, religion, and national origin. [D.E. 17-2] 3. On
April 21, 2016, the EEOC notified Wake County about
Brown's April 6, 2016 EEOC charge and enclosed a copy of
the charge. [D.E. 17-2].
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) tests subject-matter jurisdiction, which is
"the court's statutory or constitutional power to
adjudicate the case." Steel Co. v. Citizens for a
Better Env't 523 U.S. 83, 89 (1998) (emphasis
omitted); see Holloway v. Pagan River Dockside Seafood.
Inc., 669 F.3d 448, 453 (4th Cir. 2012). "[T]he
party invoking federal jurisdiction bears the burden of
establishing its existence." Steel Co., 523
U.S. at 104; see, e.g., Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). In considering a
motion to dismiss for lack of subject-matter jurisdiction,
the court may consider evidence outside the pleadings without
converting the motion into one for summary judgment. See,
e.g., Richmond. Fredericksburg & Potomac R.R. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991).
However, if a defendant "contend[s] that a complaint
simply fails to allege facts upon which subject matter
jurisdiction can be based, " then "all the facts
alleged in the complaint are assumed to be true and the
plaintiff, in effect, is afforded the same procedural
protection as he would receive under a Rule 12(b)(6)
consideration." Adams v. Rain, 697 F.2d 1213,
1219 (4th Cir. 1982); see Kerns v. United States,
585 F.3d 187, 192-93 (4th Cir. 2009). Thus, "when a
defendant asserts that the complaint fails to allege
sufficient facts to support subject matter jurisdiction,
" a court must "assume the trathfulness of the
facts alleged" in the complaint and any attached
materials. Kerns, 585 F.3d at 193; see Fed.R.Civ.P.
10(c). Here, defendants dispute the factual basis for
district court has jurisdiction to consider an employee's
Title VII claims only to the extent the employee included
those claims in a timely EEOC charge. See,
e.g., Jones v. Calvert Grp., Ltd., 551 F.3d
297, 300 (4th Cir. 2009); Webb v. N.C. Dep't of Crime
Control & Pub. Safety. Alcohol Law Enft Div., 658
F.Supp.2d 700, 707-09 (E.D. N.C. 2009). "Even after a
plaintiff has exhausted his administrative remedies, the
administrative framework plays a substantial role in focusing
the formal litigation it precedes." Chacko v.
Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). The
EEOC charge's content determines the scope of a
plaintiffs right to maintain a Title VII claim in court. See
id; Hentosh v. Old Dominion Univ., 767 F.3d 413, 416
(4th Cir. 2014); Webb. 658 F.Supp.2d at 707-08. This
court lacks jurisdiction over Title VII claims that exceed
the scope of the EEOC charge. See, e.g., Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 407-09
(4th Cir. 2013); Jones, 551 F.3d at 300;
Chacko, 429 F.3d at 509-10.
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
lawsuit." Jones, 551 F.3d at 300 (quotation
omitted); see Sydnor v. Fairfax cty.., Va., 681 F.3d
591, 594 (4th Cir. 2012); Chacko, 429 F.3d at
509-10. "Thus, factual allegations made in formal
litigation must correspond to those set forth in the
administrative charge." Bonds v. Leavitt, 629
F.3d 369, 379 (4th Cir. 2011) (quotation omitted). For
example, "a claim in formal litigation will generally be
barred if the EEOC charge alleges discrimination on one
basis, such as race, and the formal litigation claim alleges
discrimination on a separate basis, such as sex."
Jones, 551 F.3d at 300; see Chacko, 429
F.3d at 509-10. Nonetheless, because laypersons often
initiate the EEOC administrative process, courts construe
EEOC charges liberally, See Sydnor, 681 F.3d at 594;
Chacko, 429 F.3d at 509.
filed an EEOC charge at some time before the EEOC sent Wake
County the March 18, 2016 letter, although the EEOC charge
stated that it was not a "perfected charge."
Defendants concede they do not know any distinction between a
perfected EEOC charge and an unperfected EEOC charge.
Defendants also concede that Brown filed an EEOC charge,
although not a "perfected" charge, before March 18,
2016, which was 179 days after Wake County terminated
record does not include what claims Brown included in her
unperfected EEOC charge. The April 21, 2016 EEOC charge
included Brown's claims for retaliatory discharge and
discrimination, but not her hostile work environment claim.
Because the record is unclear concerning Brown's
unperfected EEOC charge, the court declines to dismiss the
complaint for lack of subject-matter jurisdiction based on
untimely filing. Thus, the court denies defendants'
motion to dismiss for lack of subject-matter jurisdiction.
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 684 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63
(2007); Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a
pleading "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Iqbal, 556 U.S. at 678
(quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano, 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Qjaniit 759 F.3d
343, 347, 352-53 (4th Cir. 2014) (quotation omitted); see
Clatterbuck v. City of Charlottesville, 708 F.3d
549, 557 (4th Cir. 2013). A court need not accept as true a
complaint's legal conclusions, "unwarranted
inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs
allegations must "nudge[ ] [her] claims, "
Twombly. 550 U.S. at 570, beyond the realm of
"mere possibility" into "plausib[iliry]."
Iqbal, 556 U.S. at 678-79.
evaluating a motion to dismiss, a court considers the
pleadings and any materials "attached or incorporated
into the complaint." E.I, du Pont de Nemours &
Co., 637 F.3d at 448; see Fed.R.Civ.P. 10(c);
Thompson v. Greene,427 F.3d 263, 268 (4th Cir.
2005); accord Erickson v. Pardus.551 U.S. 89, 93-94
(2007) (per curiam). A court also may take judicial notice of
public records without converting the motion to dismiss into
a motion for summary judgment. See, e.g.,
Fed.R.Evid. 201(d); Tellabs. Inc. v. Makor ...