United States District Court, W.D. North Carolina, Charlotte Division
FELICIA A. UNDERDUE, Plaintiff,
WELLS FARGO BANK, N.A., Defendants.
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's
Motion for Extension of Time, (Doc. No. 53); Defendant's
Response, (Doc. No. 56); Plaintiff's Motion to Appoint
Counsel, (Doc. No. 54); Defendant's Response, (Doc. No.
57); Plaintiff's Motion to Remand to the Equal Employment
Opportunity Commission (“EEOC”), (Doc. No. 55);
and Defendant's Response, (Doc. No. 58).
Plaintiff's First Amended Complaint
pro se, filed a Complaint on April 14, 2014, against Wells
Fargo, N.A. (Wells Fargo), and her three
supervisors. (Doc. No. 1). The only document attached
to the Complaint was the United States Equal Employment
Opportunity Commission (EEOC) Dismissal and Notice of Rights
dated January 28, 2014. (Id. at Exhibit 1). On April
15, 2014, Plaintiff filed an Amended Complaint detailing
three causes of action: employment discrimination in
violation of the Americans with Disabilities Act (ADA) and
the North Carolina Equal Employment Practices Act (NCEEPA),
intentional infliction of emotional distress (IIED), and
tortious interference with a contract. (Doc. No. 3).
12, 2014, Wells Fargo and the three individuals moved to
dismiss Plaintiff's claims under Rule 12(b)(6) of the
Federal Rules of Criminal Procedure for failure to state a
claim. (Doc. No. 7). This Court dismissed with prejudice all
claims as to all Defendants, finding that Plaintiff had
failed to allege a prima facie case under the ADA; that the
NCEEPA did not provide a private cause of action because
Plaintiff was not discharged; that Plaintiff's IIED claim
based on adverse employment action failed as a matter of law;
and that the named individuals, employees of Wells Fargo,
could not tortuously interfere with an employment contract to
which they were parties. (Doc. No. 16: Order at 3-5).
appeal, the United States Court of Appeals for the Fourth
Circuit affirmed the dismissal with prejudice of the ADA
claims against the individuals and the claims under North
Carolina law in their entirety. Underdue v. Wells Fargo
Bank, N.A., 599 F. App'x 499, 500 (2015). However,
the appellate court found that Plaintiff's Complaint
failed to establish this Court's subject matter
jurisdiction to rule on the merits of the ADA claim against
Wells Fargo; therefore, the dismissal of that claim was
modified to be without prejudice. Id. Specifically,
the Fourth Circuit noted that Plaintiff failed to provide
“any information as to the contents of the complaints
she filed with the EEOC, so that the district court could
assure that it had subject matter jurisdiction to assess the
merits of Underdue's allegations.” Id. at
Plaintiff's Second Amended Complaint
then moved to amend her Complaint again “to resolve the
issues raised by the 4th Circuit Court of Appeals regarding
this court having insufficient information to establish
‘subject matter jurisdiction'” and to remove
the named individuals as defendants. (Doc. No. 28 at 1-2).
After this Court granted the motion, Plaintiff filed her
Second Amended Complaint on August 24, 2015, naming only
Wells Fargo as Defendant, and listing seven Counts: (I)
failure to provide reasonable accommodation under the ADA and
Title VII of the Civil Rights Act of 1964 (Title VII); (II)
constructive demotion under Title VII; (III) harassment and
workplace bullying under Title VII; (IV) retaliation and
intimidation under Title VII; (V) age discrimination under
Title VII and Age Discrimination Employment Act (ADEA); (VI)
hostile work environment under Title VII; and (VII) IIED.
(Doc. No. 32). Plaintiff attached eighty-five pages of
documents to the Second Amendment Complaint, including
materials related to EEOC charges she filed in 2010, 2013,
and 2014. (Id., Exhibits 1-14).
then moved to dismiss the Second Amended Complaint with
prejudice on the bases that: the ADA, Title VII, and AEDA
claims are barred by statutes of limitations; Plaintiff
failed to exhaust administrative remedies with respect to her
age discrimination claim; Counts II through VII are beyond
the scope of the leave to amend granted by the Court; and the
IIED claim is barred by res judicata. (Doc. Nos. 33, 34).
This Court granted Defendant's motion and dismissed
Plaintiff's Second Amended Complaint in its entirety.
(Doc. No. 41). Specifically, the Court ruled that
Plaintiff's Claims in Counts I through VI were dismissed
for lack of subject matter jurisdiction and Count VII was
dismissed with prejudice under the doctrine of res judicata.
appeal, the United States Court of Appeals for the Fourth
Circuit affirmed in part, as modified, this Court's
dismissal of Plaintiff's Second Complaint. (Doc. No. 46).
In its unpublished opinion, the Fourth Circuit ruled that
this Court properly dismissed Plaintiff's claim for IIED
but found that the dismissal of Plaintiff's AEDA claim
was without prejudice. (Id.). The Fourth Circuit
also clarified that the timeliness of an EEOC charge was not
a jurisdictional matter and therefore Plaintiff's Title
VII and ADA claims were dismissed for failure to state a
claim for which relief could be granted. (Id.).
Plaintiff's New Motions to Amend Her Complaint
the Fourth Circuit affirmed this Court's dismissal of
Plaintiff's Second Amended Complaint and the case was
terminated, Plaintiff submitted another motion to amend her
complaint in May of 2017. (Doc. No 48). Within this motion,
Plaintiff cited Rule 15 of the Federal Rules of Civil
Procedure and stated that her new complaint would resolve the
issues raised by this Court and the Fourth Circuit.
(Id.). Defendant responded with a memorandum in
opposition, arguing that Plaintiff should be required to
submit a proposed Third Amended Complaint before this Court
ruled on her motion. (Doc. No. 50 at 4).
of 2017, Plaintiff filed yet another motion to amend before
the Court ruled on Plaintiffs May 2017 motion. (Doc. No. 51
¶ 2). Within this new motion, Plaintiff requested this
Court to deny Defendant the ability to receive a proposed
amended complaint, as well as the opportunity to respond,
prior to this Court ruling on the issue. (Id. at
¶ 1). Plaintiff also requested the appointment of
counsel for assistance with her complaint. (I ...