United States District Court, E.D. North Carolina, Northern Division
DR. TATIANA A. TAGIROVA, Plaintiff,
ELIZABETH CITY STATE UNIVERSITY, Defendants.
C. DEVER III, CHIEF UNITED STATES DISTRICT JUDGE
September 2, 2016, Dr. Tatiana Tagirova ("Tagirova"
or "plaintiff') filed a pro se complaint against
Elizabeth City State University ("ECSU" or
"defendant"), alleging discrimination and
retaliation under the Americans with Disabilities Act
("ADA"). See Compl. [D.E. 1, 1-1]. On November 14,
2016, ECSU moved to dismiss Tagirova's complaint [D.E.
12]. See Fed.R.Civ.P. 12(b)(1)-(2), (6). OnDecemberl, 2016,
Tagirova responded in opposition [D.E. 15]. OnDecember 16,
2016, ECSU replied [D.E. 16]. On April 27, 2017, Tagirova
moved for leave to amend her complaint to add two new parties
as defendants [D.E. 35]. As explained below, the court grants
ECSU's motion to dismiss in part, denies it in part, and
denies Tagirova's motion for leave to amend.
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 truthfulness of the
facts alleged" in the complaint and any attached
materials. Kerns, 585 F.3d at 193; see Fed.R.Civ.P.
district court has jurisdiction to consider an employee's
ADA claims only to the extent the employee included those
claims in a timely EEOC charge. See, e.g., Sydnor v.
Fairfax Cty., 681 F.3d 591, 593-94 (4th Cir. 2012);
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 Enf 't 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 plaintiff s
right to maintain an ADA 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 ADA 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
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 [ADA]
lawsuit." Jones. 551 F.3d at 300 (quotation
omitted); see Sydnor, 681 F.3d at 594;
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 three EEOC charges between November 2014 and July 2016.
See[D.E. 1-1, 1-2, 1-3]. These EEOC charges encompass the
following ADA claims: (1) disability discrimination, (2)
failure to accommodate, (3) retaliation, and (4) disability
harassment. Id. The EEOC charges do not encompass
any Title VJJ claims. To the extent Tagirova purports to assert
a Title VJJ claim in this action, the court dismisses any
such claim because Tagirova did not properly exhaust her
administrative remedies. Thus, this court lacks
subject-matter jurisdiction over any Title VII claim.
moves to amend her complaint to add as a defendant the
University of North Carolina-General Administration and the
Board of Governors. See [D.E. 35]. A party may amend her
complaint once as a matter of course, provided that the
amendment is filed either within 21 days of service or21 days
after service ofa responsive pleading or Rule 12(b), (e), or
(f) motion. See Fed. R. Civ.P. 15(a)(1). Further amendments
are allowed "only with the opposing party's written
consent or the court's leave." Fed.R.Civ.P.
15(a)(2). On September 2, 2016, Tagirova filed her complaint.
See [D.E. 1]. On April 27, 2017-more than 21 days
after ECSU served its Rule 12(b) motion-Tagirova filed her
motion to amend. See [D.E. 35]. ECSU does not consent to the
amendment; therefore, the court must resolve Tagirova's
motion to amend.
leave to amend should be freely given under Rule 15(a)(2), it
is not appropriate where the amendment "would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be
futile." Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986); see Newport News Holdings Corp.
v. Virtual Citv Vision. Inc., 650 F.3d 423, 439 (4th
Cir. 2011). If the court would lack subject-matter
jurisdiction over a proposed claim in an amended complaint,
the attempted amendment is futile. See U.S. ex rel.
Ahumada v. NISH, 756 F.3d 268, 274, 279-82 (4th Cir.
2014); Harris v. Army Review Bd. Agency, No.
4:15-CV-122-D, 2016 WL 4578074, at *5 (E.D. N.C. Aug. 31,
2016) (unpublished); see also Laber v. Harvey, 438
F.3d 404, 426 (4th Cir. 2006) (en banc).
discussed, a plaintiff who wishes to pursue an ADA claim in
federal court must first exhaust her EEOC remedies. See
Sydnor. 681 F.3d at 594; Jones. 551 F.3d at
300. Claims that "exceed the scope of the EEOC charge
... are procedurally barred.", 711 F.3d at 407
(quotation omitted). "[A] plaintiff fails to exhaust
[her] administrative remedies where... [her] administrative
charges reference different time frames, actors, and
discriminatory conduct than the central factual allegations
in [her] formal suit." Chacko, 429 F.3d at 506.
did not name the University of North Carolina-General
Administration or the Board of Governors in her EEOC charges.
See [D.E. 1-1] 2; [D.E. 1-2] 2; [D.E. 1-3] 2. Thus, Tagirova
has not exhausted her EEOC remedies against these entities,
and this court lacks subject- matter jurisdiction over any
ADA claims against them. Accordingly, Tagirova's proposed
amendment is futile, and the court denies leave to amend.
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. Ojaniit, 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); ...