United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendants' motion to
dismiss plaintiffs amended complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff,
proceeding in this matter pro se, has failed to
respond to the motion within the time provided. For the
reasons that follow, defendants' motion to dismiss is
granted in part.
initiated this action by filing a motion to proceed in
forma pauperis on July 25, 2016, with an attached
complaint against Foot Locker, Inc. that alleged violations
of Title VII of the Civil Rights Act of 1964. [DE 1]. The
motion to proceed in forma pauperis was allowed, and
plaintiff was ordered to file a particularized complaint. [DE
3]. In her amended complaint, [DE 6], plaintiff alleges
claims against Foot Locker, Inc., Foot Locker Store No. 7910,
and Kerg Farrell in his official capacity. Plaintiff alleges
that her employment at Foot Locker in Fayetteville, North
Carolina was terminated because she was a female manager and
because of unlawful bias against her as a female.
of the Federal Rules of Civil Procedure "requires only a
short and plain statement of the claim showing that the
pleader is entitled to relief and which provides "the
defendant fair notice of what the claim is and the grounds
upon which it rests." Erickson v. Tardus, 551
U.S. 89, 93 (2007) (internal quotations, alterations, and
citations omitted). A Rule 12(b)(6) motion tests the legal
sufficiency of the complaint. Papasan v. Allain, 478
U.S. 265, 283 (1986). When acting on a motion to dismiss
under Rule 12(b)(6), "the court should accept as true
all well-pleaded allegations and should view the complaint in
a light most favorable to the plaintiff." Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir.1993). A complaint must allege enough facts to state a
claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Facial plausibility means that the facts pled "allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged, " and mere
recitals of the elements of a cause of action supported by
conclusory statements do not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint must be
dismissed if the factual allegations do not nudge the
plaintiffs claims "across the line from conceivable to
plausible." Twombly, 550 U.S. at 570.
April 13, 2016, plaintiff filed a charge with the Equal
Employment Opportunity Commission (EEOC). [DE 1-1]. In her
EEOC charge, plaintiff indicated that she was discriminated
against on the basis of her sex and retaliation. In her
narrative statement, plaintiff alleged that she was
discharged on March 24, 2016, from her employment and at the
time she was discharged she held the position of manager
trainer. Plaintiff alleged that she believes she was
discharged because approximately two years earlier she had
reporter a co-worker she had observed sexually harassing
another female employee. Plaintiff alleges that she also
believed that Kerg Farrell did not want her to be general
manager. The EEOC dismissed plaintiffs charge and notified
plaintiff of her right to sue on April 25, 2016.
the Court finds that plaintiff timely initiated this action
by the filing of a motion to proceed in forma
pauperis on July 25, 2016. The ninety-day limitations
period begins to run on the date of receipt, actual or
constructive, of the EEOC's right-to-sue letter. See
Watts-Means v. Prince George's Family Crisis Ctr., 7
F.3d 40, 42 (4th Cir. 1993). Ninety-days from the date of the
EEOC's letter expired on Sunday July 24, 2016, and
plaintiff initiated this action on the first business day
thereafter, Monday July 25, 2016. See Fed. R. Civ.
P. 6(a); Banner v. Morris, No. 1:05CV01156, 2006 WL
2569080, at *1 (M.D. N.C. Aug. 30, 2006) (Saturday, Sunday,
and court holidays not counted for purposes of ninety-day
deadline); see also Yelverton v. Blue Bell, Inc.,
530 F.Supp. 701, 702 (E.D. N.C. 1982) (limitations period
tolled on filing of motion to proceed in forma pauperis);
Nobles v. North Carolina, No. 5:07-CV-381-F(2), 2008 WL
2037417, at *3 (E.D. N.C. May 12, 2008) (same). Further,
plaintiff has not stated the date on which she received her
right-to-sue letter, and the Court may thus presume that she
received it three days later, on April 28, 2016. See
Dixon v. Digital Equip. Corp., 976 F.2d 725 (4th Cir.
1992) (unpublished); Taylor v. Potter, 355 F.Supp.2d
817, 819 (M.D. N.C. 2005). Plaintiffs initiation of this
action on July 25, 2016, was therefore plainly within the
may pursue claims of discrimination under Title VII against
their employers alone, and not against individual employees
or supervisors as they are not "employers" as that
term is defined by the statute. Lissau v. Southern Food
Service, Inc., 159 F.3d 177, 180 (4th Cir. 1998);
Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 595
(M.D. N.C. 2005). Plaintiff has named defendant Farrell in
his official capacity; however, because Farrell was not her
employer, the Court finds that her Title VII claim may not
proceed against Farrell, whether in his individual or
official capacity and he is properly dismissed. Taguinod
v. Amazon. com, Inc., No. 3:16CV869-HEH, 2016 WL
7319685, at *4 (E.D. Va. Dec. 15, 2016). Plaintiff has failed
to rebut defendants' argument that Foot Locker Store No.
7910 was also not plaintiffs employer, and this defendant is
plaintiff may proceed to file an employment discrimination
action in the federal courts only after a charge has been
filed with the EEOC. "Only 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... lawsuit." Evans v. Techs.
Application & Svc. Co., 80 F.3d 954, 963 (4th Cir.
1996). Failure to exhaust administrative remedies by filing
an EEOC charge serves to deprive the federal courts of
subject matter jurisdiction over such claims. Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (2009). While
courts typically construe the administrative charges
liberally, "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."
argue that, although plaintiff indicated in her EEOC charge
that she was discriminated against on the basis of her sex,
the narrative section of her charge recites facts related
only to a retaliation claim, and that her complaint thus
exceeds the scope of her EEOC charge. The Court is not
persuaded. First, as defendants note, plaintiff did indicate
on her charge that she was discriminated against on the basis
of her sex. Second, her narrative statement recites that she
believed that Mr. Farrell did not want her to be a general
manager. While the narrative section of plaintiffs EEOC
charge does not go into great detail as to why Mr. Farrell
did not want plaintiff to be promoted, plaintiffs claim for
sex discrimination raised in her complaint is reasonably
related to the claims in her EEOC charge and would be
developed by reasonable investigation into the original
complaint. The Court therefore concludes that it has subject
matter jurisdiction over plaintiffs sex discrimination claim.
remaining arguments relate to the proper party defendants.
Plaintiff has named Foot Locker, Inc. and Foot Locker Store
No. 7910 as defendants. As discussed above, only plaintiffs
employer may be held liable under Title VII, and only the
respondent named in the charge can be named in a subsequent
civil action. Causey v. Balog, 162 F.3d 795, 800
(4th Cir. 1998) (noting that the purpose of this requirement
is to put the charged party on notice of the complaint).
However, where "the purposes of the naming requirement
were substantially met, " Vanguard Justice Soc. Inc.
v. Hughes, 471 F.Supp. 670, 687 (D. Md. 1979), a
subsequent action against a different party need not be
barred. See also Tietgen v. Brown's Westminster
Motors, Inc., 921 F.Supp. 1495, 1498 (E.D. Va. 1996)
("Fourth Circuit has read the technical naming
requirement of 42 U.S.C. § 2000e-5(f)(1) to allow Title
VII plaintiffs to sue parties not named in an administrative
charge where the unnamed party is 'functionally
identical' to a named party."). Accordingly, so long
as the defendant has received fair notice and the EEOC was
able to attempt conciliation with the proper parties,
subsequent suit against a party not identified in the EEOC
charge may be permitted. See, e.g., Polite v. Spherion
Staffing, LLC, No. 2:14-CV-4756 DCN JDA, 2015 WL
1549050, at *2 (D.S.C. Apr. 7, 2015).
EEOC charge, plaintiff names "Foot Locker" as the
respondent. The dismissal and notice of suit rights filed by
the EEOC was mailed to the senior vice president and chief
human resources officer of Foot Locker, Inc. Plaintiff has
named Foot Locker, Inc. as defendant in this action. The
Court finds that plaintiffs claims against her employer
should not be barred because she named Foot Locker in her
EEOC charge, as Foot Locker, Inc. clearly had notice of
plaintiff s charge and was able to participate in the
conciliation process with the EEOC.
defendants' argument Foot Locker, Inc. did not employ
plaintiff and that Foot Locker Retail, Inc. is the proper
party defendant, the Court has determined that dismissal on
this basis is not warranted. Indeed, "the Fourth Circuit
has long held the tendency toward leniency is particularly
strong in cases where the defendant has either received
actual notice of the pendency of the action, or is unable to
demonstrate any prejudice from a delay in service."
Crespo v. Mortg. Elec. Registration Sys., Inc., No.
116CV00043MOCDLH, 2017 WL 1190381, at *4 (W.D. N.C. ...