United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
ELIZABETH PEAKE UNITED STATES MAGISTRATE JUDGE.
employment discrimination action comes before the Court on a
Motion to Dismiss [Doc. #25] filed by Defendants Carolina
Dental Arts and Christy Baldwin pursuant to Federal Rule of
Civil Procedure 12(b)(6). Plaintiff Sabrina Cromratie
(“Plaintiff”), proceeding pro se, has
not responded to Defendants' motion. For the reasons set
out below, the Court recommends that Defendant's Motion
to Dismiss be granted, and that this action be dismissed.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
March 13, 2017, Plaintiff commenced this employment
discrimination action against her former employer, Defendant
Carolina Dental Arts, as well as her supervisor, Defendant
Christy Baldwin, alleging that Defendants discriminated
against her in violation of Title VII of the Civil Rights Act
of 1964, as amended. Plaintiff attached to her Complaint the
Charge of Discrimination that she filed with the Equal
Employment Opportunity Commission (“EEOC”) on
August 22, 2016 [Doc. #1-1] and the EEOC's Dismissal and
Notice of Rights letter (“Right to Sue Letter”),
mailed to Plaintiff on November 18, 2016 [Doc. #1-2].
construed, and reading Plaintiff's Complaint and
attachments together, Plaintiff claims discriminatory failure
to promote, retaliation, race-based discrimination, hostile
work environment, and harassment in connection with her
employment with Defendant Carolina Dental Arts from August
2014 to August 2016 as a dental assistant. (Compl. [Doc. #1]
at 1). Defendants filed an Answer denying the allegations and
subsequently filed the instant Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), contending that
Plaintiff fails to state a claim upon which relief can be
granted and that all claims should be dismissed for two
reasons. First, Defendants contend that Plaintiff's
claims are time-barred because Plaintiff failed to timely
file her Complaint after receiving the Right to Sue Letter
from the EEOC. Second, Defendants argue that they are not
“employers” within the ambit of Title VII and
thus all claims as against them should be dismissed
(Def.'s Br. [Doc #26].) Plaintiff did not file any
response to Defendant's Motion to Dismiss.
initial matter, the Court notes that Plaintiff's failure
to respond to Defendant's Motion to Dismiss is grounds
upon which to dismiss the instant action. Under Local Rule
7.3(k), “[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, and
ordinarily will be granted without further notice.”
Defendants filed the instant motion on September 11, 2017.
The Court provided Notice [Doc. #27] to Plaintiff of her
right to respond to the Motion to Dismiss, and specifically
warned her that a failure to respond to Defendants'
motion would likely result in dismissal of Plaintiff's
case. However, Plaintiff failed to file a response in
opposition. Therefore, the Motion to Dismiss should be
granted in light of Plaintiff's failure to file any
the Court has reviewed the substance of the Motion to Dismiss
and concludes that Plaintiff's claims are subject to
dismissal as time-barred. Section 2000e-5 of Title VII
requires that a Plaintiff filing under Title VII file suit
within 90 days of receiving a notice of the right to sue from
the EEOC. 42 U.S.C. § 2000e-5(f)(1). A plaintiff's
failure to timely file suit is not a jurisdictional defect
but is appropriately raised as an affirmative defense.
Stewart v. Johnson, 125 F.Supp.3d 554, 559 (M.D.
N.C. 2015). While affirmative defenses ordinarily cannot be
raised on a motion to dismiss, a defendant may properly raise
an affirmative defense of untimeliness, such as statute of
limitations, through Rule 12(b)(6) when the facts supporting
the defense plainly appear on the face of the Complaint.
See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007); Turner v. Afro-American Newspaper Co.,
572 F.Supp.2d 71, 73 (D.D.C. 2008).
case, based on the facts appearing in the Complaint and the
incorporated attachments, Plaintiff did not file the instant
action within the time period permitted under Title VII.
Plaintiff attached to her Complaint the Right to Sue Letter
that the EEOC dated as mailed on November 18, 2016. The date
of receipt of a right to sue letter triggers the 90-day time
period within which a plaintiff must file. Darden v.
Cardinal Travel Ctr., 493 F.Supp.2d 773, 775 (W.D. Va.
2007). Where a plaintiff does not allege a date of receipt,
the Court presumes the letter was received within three days
of its mailing. Id. at 776 (citing Ish v.
Arlington County, Va., No. 90-2433, 1990 WL 280127, at
*2 (4th Cir. Nov. 21, 1990) (unpublished)). Here, Plaintiff
presumptively received her Right to Sue Letter on November
21, 2016, and the time period within which Plaintiff was
required to file began to run. Her filing of this Title VII
action 112 days later, on March 13, 2017, was outside of the
90-day period and was untimely. Thus, it appears from the
face of Plaintiff's Complaint and the attached Right to
Sue Letter that the instant action was untimely filed.
Plaintiff has not filed any type of response disputing these
dates or setting out a basis for equitable tolling.
Therefore, this action should be dismissed as
THEREFORE RECOMMENDED that Defendant's Motion to Dismiss
[Doc. #25] be granted and that this action be dismissed with
 The Court also notes that Plaintiff
names Christy Baldwin, Plaintiff's former supervisor, as
a Defendant in this case. However, Fourth Circuit precedent
makes clear that individual supervisors are not proper
defendants in an employment discrimination claim filed
pursuant to Title VII. “Congress only intended
employers to be liable for Title VII violations [, and]
individual liability would improperly expand the remedial
scheme crafted by Congress.” Lissau v. Southern
Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998).
Thus, “supervisors are not liable in their individual
capacities” under Title VII. Id. Because
Defendant Baldwin cannot be held liable in her individual
capacity for an alleged Title VII violation, Plaintiff cannot
state a claim upon which relief may be granted against
Defendant Baldwin, and Baldwin's dismissal as a Defendant
in this case is warranted under Rule 12(b)(6). Defendant
Carolina Dental Arts also contends that it is does not have a
sufficient number of employees to fall under the Title VII
definition of “employer” and thus is not amenable
to suit in this case. As to this contention, Plaintiff's