United States District Court, W.D. North Carolina, Charlotte Division
KAREN Y. FLOYD, Plaintiffs,
MICHAEL SABIK LGI HOMES SUSAN THOMPSON, Defendants.
C. Mullen, United States District Judge
MATTER is before the Court upon Defendants' Motion to
Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Plaintiff has filed a
response and Defendants have filed a reply. Accordingly, this
matter is ripe for disposition.
action was filed pro se on April 13, 2017. [Doc. No.
1]. Plaintiff claims that Defendants discriminated against
her based upon her race and disability in violation of Title
VII of the Civil Rights Act (“Title VII”) and the
Americans with Disability Act (“ADA”) by not
hiring her. Id. at 4. Plaintiff filed a charge with
the Equal Employment Opportunity Commission
(“EEOC”) on April 15, 2015 in which she asserted
that she was discriminated against based upon her disability.
Id. at 5. On February 24, 2017, Plaintiff received a
“right to sue letter” and subsequently filed the
current action. Id. In response to Plaintiff's
suit, Defendants filed the present Motion to Dismiss the
Corporate Defendant, LGI Homes - NC, LLC
(“LGI”), from the Title VII claim under Rule
12(b)(1) and the Individual Defendants, Michael Sabik
(“Sabik”) and Susan Thompson
(“Thompson”), from both claims under Rules
12(b)(1) and 12(b)(6) [Doc. No. 12].
12(b)(1) provides for dismissal of a lawsuit where a court
lacks jurisdiction over the subject matter of the
lawsuit.” Miller v. Ingles, No. 1:09-CV-200,
2009 WL 4325218, at *3 (W.D. N.C. Nov. 24, 2009);
Fed.R.Civ.P. 12(b)(1). “Lack of subject-matter
jurisdiction may be raised at any time either by a litigant
or the court.” Id. (citing Mansfield, C.
& L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
When a court considers subject-matter jurisdiction, the
burden of proof is on the plaintiff. Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982).
order to survive a motion to dismiss under Rule 12(b)(6),
Plaintiff's Complaint must contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). As
the United States Supreme Court has held, the “short
and plain statement of the claim, ” as set forth in
Rule 8(a)(2), “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). A complaint is only
plausible when it “pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. A court need
not accept as true a plaintiff's “unwarranted
inferences, unreasonable conclusions, or arguments.”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
courts must liberally construe pro se complaints,
the court is not required to accept a pro se
plaintiff's contentions as true, Denton v.
Hernandez, 504 U.S. 25, 32 (1992), and cannot ignore a
clear failure to allege facts which set forth a claim
cognizable in a federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990) (“The ‘special judicial solicitude'
with which a district court should view such pro se
complaints does not transform the court into an advocate.
Only those questions which are squarely presented to a court
may be properly addressed.”). “Like plaintiffs
who are represented by counsel, a pro se plaintiff
must still ‘allege facts sufficient to state all the
elements of [the] claim.'” Justice v.
Dimon, 2011 WL 2183146, at *4 (W.D. N.C. June 6, 2011)
(quoting Bass v. E.I. DuPont de Nemours & Co.,
324 F.3d 761, 765 (4th Cir. 2003)). “In light of
Twombly and Bass, conclusory statements
with insufficient factual allegations, even when asserted by
pro se plaintiffs, will simply not suffice.”
maintain a suit under Title VII, Plaintiff must first file a
charge with the EEOC and then receive a “letter to
sue” from the EEOC. See 42 U.S.C. §
2000(e)-5(f)(1) (2012). Plaintiff herein provided the
“letter to sue” she received from the EEOC. [Doc.
No. 1]. However, that letter only granted her the right to
sue under the ADA, not Title VII. Id. Failure to
attain a Title VII “letter to sue” deprives this
Court of subject-matter jurisdiction over that cause of
action and it must therefore be dismissed. See Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009)
(citing Davis v. N.C. Dep't of Corr., 48 F.3d
134, 138-40 (4th Cir. 1996)). The Court notes that Plaintiff
is pro se, but she presents no defense against a
failure to follow administrative procedure and its
consequential deprivation of subject-matter jurisdiction. As
such, Plaintiff's Title VII claim against all Defendants
shall be dismissed.
to the ADA claim, Plaintiff correctly followed administrative
procedure. [Doc. No. 1]. See 42 U.S.C. § 12117
(2012). However, the ADA does not allow for individual
liability. See Swaim v. Westchester Academy, Inc.,
170 F.Supp.2d 580, 583 (M.D. N.C. 2001) (“[Individual
defendants do not face personal liability under the Americans
with Disabilities Act.”) (citing Baird v.
Rose, 192 F.3d 462, 472 (4th Cir. 1999)). In fact, one
of the fundamental requirements of the ADA is that the
defendant be an “employer” of at least
fifteen individuals. 42 U.S.C. §§ 12111-12 (2012)
(emphasis added). Plaintiff again presents no argument as to
how individuals can be liable under the ADA. Consequently,
even when taking the facts in a light most favorable to
Plaintiff and taking into account her pro se status,
Plaintiff fails to state an ADA claim against the Individual
Defendants. Accordingly, Defendants' Motion to Dismiss
the ADA claim against the Individual Defendants shall be
THEREFORE ORDERED that Defendants' Motion to Dismiss is
hereby GRANTED, Defendants Michael Sabik and Susan Thompson
are TERMINATED from this case, and the Title VII ...