United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant's motion to
dismiss [DE 12]. The time has elapsed for plaintiff to
respond and the matter is ripe for ruling. For the following
reasons, defendant's motion is GRANTED.
who is black, was employed by defendant as an associate from
October 1, 2015 until September 4, 2017. She was terminated
for reporting to work late, in violation of defendant's
attendance policy. She was told upon termination she could be
rehired, but later, was informed she could not be. A white
employee who had been terminated was rehired. Plaintiff then
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission ("EEOC"), alleging that she
was not rehired on the basis of her race. The EEOC issued a
dismissal, notifying her of her right to sue. Plaintiff,
appearing pro se, filed the instant action in this
court. She brings two claims under Title VII of Civil Rights
Act of 1964-discriminatory termination and discriminatory
failure to rehire. Defendant has now moved to dismiss both
12(b)(6) motion to dismiss tests the legal sufficiency of the
complaint. Papasan v. Attain, 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. The complaint must plead
sufficient facts to allow a court, drawing on judicial
experience and common sense, to infer more than the mere
possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009). The court need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or
arguments. Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009). In considering a motion to
dismiss pursuant to Rule 12(b)(6), the Court may 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. Fed.R.Civ.P. 10(c);
Sec'y of State for Defence v. Trimble Navigation
Ltd., 484 F.3d 700, 705 (4th Cir. 2007); Philips
v. Pitt County Mem'I Hosp., 572 F.3d 176, 180 (4th
Cir. 2009). A claim must be dismissed Under Rule 12(b)(1) of
the Federal Rules of Civil Procedure when a court lacks
subject matter jurisdiction.
the Court must construe the complaint of a pro se
plaintiff liberally, such a complaint must still allege
"facts sufficient to state all the elements of [her]
claim" in order to survive a motion to dismiss. Bass
v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765
(4th Cir. 2003).
plaintiffs claims must be dismissed. First, plaintiffs
discriminatory termination claim fails because she did not
exhaust her administrative remedies as required by law, and
so this Court lacks subject matter jurisdiction.
a plaintiff can make a claim of discrimination under Title
VII in federal court, she must exhaust her administrative
remedies. Jones v. Calvert Group, Ltd., 551 F.3d
297, 301 (4th Cir. 2009). If a plaintiff has not taken a
claim to an administrative forum before presenting it in
federal court, the court lacks jurisdiction over that claim.
Id; Tonkin v. Shadow Mgmt., Inc., 605 Fed.Appx. 194
(4th Cir. 2015). "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 Title VII lawsuit." Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
plaintiff only alleged that the failure to rehire her was
discriminatory in her EEOC complaint. [DE 13-1]. She did not
allege that she was terminated for discriminatory reasons. In
fact, she alleged she was terminated for a fair reason-her
attendance. Because of this, her allegation of discriminatory
discharge is not reasonably related to the original
complaint, nor, would it be developed by reasonable
investigation. She has failed to exhaust her administrative
remedies as to that claim. This court lacks jurisdiction, and
the claim must be dismissed.
plaintiffs failure to rehire claim must also be dismissed, as
she has failed to state a claim upon which relief could
plausibly be granted.
claim is of discriminatory failure to rehire. Such a claim
has four elements: first, that plaintiff is a member of a
protected class; second, that her employer had an open
position for which she applied or sought to apply; third,
that she was qualified for the position; and fourth, that she
was rejected for the position under circumstances giving rise
to an inference of unlawful discrimination. Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 959-60
(4th Cir. 1996); Texas Dep't. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
these elements must be alleged in order to state a claim.
Here, plaintiff has not done so. While she has established
that she is a member of a protected class, she has not
claimed that she applied or sought to apply for an open
position, that she was qualified, or that she was rejected
under a particular set of circumstances. Her statement that
the assistant general manager told her she could not be
rehired is not enough to allege that she sought to apply for
an open position for which she was qualified. She simply has
not made that claim. Nor is the claim that another person was
rehired, even thought that person is white, enough to
plausibly allege she was rejected under a ...