United States District Court, M.D. North Carolina
GRACE J. CLARK, Plaintiff,
GUILFORD COUNTY, NORTH CAROLINA, Defendant.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE.
Grace J. Clark, initiated this action on July 26, 2016,
against Defendant, Guilford County of North Carolina
(“Guilford County” or “Defendant”),
in Guilford County Superior Court alleging employment
discrimination in violation of 42 U.S.C. § 2000e-2
et seq. (“Title VII”), the Americans
with Disabilities Act (“ADA”), and the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2612
et seq. On August 26, 2016, Guilford County filed a
Notice of Removal removing the case to this Court. (ECF No.
1.) Before the Court are Guilford County's Motion to
Dismiss, (ECF No. 6), and Plaintiff's Motion to Amend
Complaint, (ECF No. 8). For the reasons that follow the Court
grants in part and denies in part Defendant's motion to
dismiss, and the Court denies Plaintiff's motion to
background, from November, 2009 to September 1, 2015,
Plaintiff, who is Hispanic, was employed by Guilford County
Department of Social Services (“DSS”) as a
coordinator for the English as a second language program.
(ECF No. 3 ¶ 3.) Plaintiff was the only Spanish
interpreter and translator employed by DSS at that time.
(Id.) Plaintiff alleges that, beginning in February
2015,  her manager told her that she could no
longer have contact with Spanish speaking clients and that
her job as an interpreter and translator was being
terminated. (Id. ¶ 7.) Plaintiff then filed a
Charge of Discrimination against Defendant with the U.S.
Equal Employment Opportunity Commission (“EEOC”)
based on national origin.(Id. ¶ 8.) She also
complained to the County attorney and the attorney for DSS.
(Id. ¶ 9.) Plaintiff further claims that
“[u]p until February, 2015 [she] had always received
the very highest evaluation scores . . . and she had no
warnings, write ups, or other disciplinary events in her
career. (Id. ¶ 10.) However, in February,
Defendant reduced her evaluations to average and put in
writing that Plaintiff “was uncooperative, did not work
well with others, refused training, and did not follow
directions.” (Id.) Plaintiff alleges that
these actions by her manager were in retaliation for her
filing an EEOC Complaint. (Id. ¶ 11.)
Complaint further alleges that she was on medical leave from
March 20 to June 1, 2015 for surgery and convalescence.
(Id. at ¶ 4.) Also, from about June 20, 2015 to
September 1, 2015, Plaintiff was on medical leave due to an
automobile accident. (Id. at ¶ 5.) When
Plaintiff returned to work on September 1, 2015 she was fired
from her job. (Id. at ¶ 13.)
Complaint alleges that: (1) she was discriminated against
based on her race and national origin, (id.
¶¶ 14-25); (2) she was discriminated against based
on her disability, (id. ¶¶ 26-35); (3) she
was subjected to retaliatory discrimination for filing an
EEOC complaint, (id. ¶ 36-42); and (4) her
rights under the FMLA have been violated, (id.
¶ 43-47.) Defendant brings this motion to dismiss
pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction based on a failure to exhaust administrative
remedies, and pursuant to Rule 12(b)(6) for failure to state
a claim on which relief can be granted.
STANDARDS OF REVIEW
Rule 12 (b)(1)
motion under Rule 12(b)(1), which governs dismissal for lack
of subject matter jurisdiction, raises the question of
“whether [the plaintiff] has a right to be in the
district court at all and whether the court has the power to
hear and dispose of [the] claim.” Holloway v. Pagan
River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th
Cir. 2012). The burden of establishing subject matter
jurisdiction rests with the plaintiff. Evans v. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When
evaluating a Rule 12(b)(1) motion to dismiss, the court may
consider evidence outside the pleadings and should grant the
motion “only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as
a matter of law.” Id. (quoting Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991)). Once the Court determines
it lacks subject matter jurisdiction over a claim, it must
dismiss that claim. See Jones v. Calvert Grp., Ltd.,
551 F.3d 297, 300 (4th Cir. 2009).
Rule 12 (b)(6)
motion to dismiss under Rule 12(b)(6) “challenges the
legal sufficiency of a complaint.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A
complaint may fail to state a claim upon which relief can be
granted in two ways: first, by failing to state a valid legal
cause of action, i.e., a cognizable claim, see
Holloway, 669 F.3d at 452; or second, by failing to
allege sufficient facts to support a legal cause of action,
see Painter's Mill Grille, LLC v. Brown, 716
F.3d 342, 350 (4th Cir. 2013). Dismissal under Rule 12(b)(6)
is appropriate only when the complaint “lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Capital Associated
Indus., Inc. v. Cooper, 129 F.Supp.3d 281, 300 (M.D.
N.C. 2015) (quoting Brown v. Target, Inc., No.
ELH-14-00950, 2015 WL 2452617, at *9 (D. Md. May 20, 2015)).
In other words, “[t]o survive a motion to dismiss, a
complaint 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 Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible when the
complaint alleges facts that allow the court “to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The court must accept
all factual allegations as true and draw all reasonable
inferences in favor of the plaintiff. Johnson v. Am.
Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015). However,
the court is “‘not bound to accept as true a
legal conclusion couched as a factual allegation.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
on a Rule 12(b)(6) motion to dismiss, a court cannot consider
documents beyond the complaint without converting the motion
into a motion for summary judgment. See Occupy Columbia
v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). The court
can, however, properly consider “documents attached to
the complaint, as well as those attached to the motion to
dismiss, so long as they are integral to the complaint and
authentic.” Philips v. Pitt Cty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation
omitted). The Court will, therefore, consider certain
documents attached to Defendant's Reply Brief in support
of its Motion to Dismiss,  the authenticity of which have not been
challenged by any party.
outset, this Court addresses Guilford County's argument
that the County's Motion to Dismiss must be decided as
uncontested pursuant to this Court's local rules because
Plaintiff's response brief was not timely filed. Local
Rule 7.3(k) specifically provides that “failure to file
a brief or response within the time specified in this rule
shall constitute a waiver of the right thereafter to file
such brief or response, except upon a showing of excusable
neglect.” LR 7.3(k). Further, the rule provides
“[i]f a respondent fails to file a response within the
time required by this rule, the motion will be considered and
decided as an uncontested motion . . . .” Id.
The time specified under Local Rule 7.3(j) for the filing of
a response or brief in opposition to a motion is
“within 21 days after service of the motion.” LR
Defendant filed and served its motion to dismiss on September
29, 2016. (ECF No. 6.) Plaintiff's Memorandum in
Opposition to Defendant's Motion to Dismiss was filed on
October 26, 2016, (ECF No. 9), more than the 21 days after
service of Defendant's motion. In the opposition brief
filed by Plaintiff's counsel on behalf of his client,
there was no acknowledgement that the response was untimely,
no request seeking leave to file the untimely response, nor
did counsel provide any basis for this Court to conclude that
there was excusable neglect for the untimely filing, as
required by the local rule. This Court is seriously troubled
by the blatant disregard for, or lack of knowledge of, this
Court's rules exhibited by Plaintiff's counsel.
However, the Court concludes that, while Plaintiff will
suffer great harm if this Court does not consider each of the
parties' arguments with respect to her claims, Defendant
will not suffer prejudice since it has already ...