United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge.
matter is before the court on FMR LLC's
("Defendant" or "FMR") motion to dismiss,
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [DE-24].
Steven William Ferrell, Sr. ("Plaintiff' or
"Ferrell") filed a response in opposition to the
motion [DE-28], and FMR filed a reply [DE-29]. All issues
raised in the parties' briefing are ripe for decision,
and the motion is referred to the undersigned for a
memorandum and recommendation to the district court.
See 28 U.S.C. § 636(b)(1)(B); Local Civ. R.
72.3(c). For the reasons set forth below, it is recommended
that the motion to dismiss be allowed.
proceeding pro se, filed a complaint against
Fidelity Investments, Inc. ("Fidelity") alleging
claims of employment discrimination and retaliation in
violation of the Age Discrimination in Employment Act
("ADEA"). [DE-1]. Fidelity filed its corporate
disclosure statement asserting it was incorrectly named as a
defendant because it is merely a service mark under which
FMR, LLC does business. [DE-8]. With leave of court,
Plaintiff subsequently filed an amended complaint naming FMR
as the defendant. [DE-14].
allegations asserted in the amended complaint are as follows.
In December 2011, Ferrell was hired under a six-month
contract by Veritude, a subsidiary of Fidelity and FMR, to
perform work in Fidelity's Information Security Section.
Ferrell was 57 years old. Ferrell was told that contract
workers would be considered for full-time positions with
Fidelity as they came available. During the following four
and a half years Ferrell continued to work as a contractor.
He witnessed other contractors, who were recent college
graduates, receive full-time positions, but Ferrell was
passed over and did not even receive a pay increase.
summer of 2016, after a contractor less experienced than
Ferrell received a full-time position, he discussed it with
Kathryn Carr in Human Resources and subsequently received a
pay increase. On August 1, 2017, Carr notified Ferrell that
his contract would not be renewed and his last day would be
September 29, 2017, despite his end date under the contract
being October 31, 2017. Carr also told Ferrell that his
contract was not being renewed for monetary reasons rather
than due to his performance and that company recruiters were
looking for a position for him. Ferrell offered to take a pay
reduction to the salary equivalent of a peer contractor who
was retained, but no position materialized for Ferrell.
Ferrell later applied for his same position and other
positions with Veritude and Fidelity but was never hired.
Ferrell contends he was discharged in violation of the ADEA
based on his age (63) because peers outside his protected
class, i.e., younger, less-experienced employees, retained
their positions or received full-time positions. Ferrell
experienced financial and emotional injuries as a result and
seeks back pay, reinstatement to his former position, and
$300, 000 in punitive damages. Am. Compl. [DE-14] at 3.
Rule 12(b)(1)-Lack of Subject Matter Jurisdiction
seeks dismissal, pursuant to Fed.R.Civ.P. 12(b)(1), of
Ferrell's claims of retaliation and failure to hire
because he failed to include any allegations related to these
claims in his charge filed with the Equal Employment
Opportunity Commission ("EEOC"). Def.'s Mem.
[DE-25] at 4-6. Ferrell, without addressing the scope of his
EEOC charge, asserts that the court has subject matter
jurisdiction and should reach the merits of his claims.
Pl.'s Resp. [DE-28] at 3.
must dismiss all or part of an action over which it lacks
subject matter jurisdiction. Fed. R. Civ. R 12(b)(1). Whether
subject matter jurisdiction exists is a threshold question
that must be addressed before considering the merits of the
case. Jones v. Am. Postal Workers Union, 192 F.3d
417, 422 (4th Cir. 1999). The plaintiff, as the party
opposing a Rule 12(b)(1) motion, has the burden of proving
that subject matter jurisdiction does, in fact, exist.
Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991) (citing
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
"In determining whether jurisdiction exists, the
district court is to regard the pleadings' allegations as
mere evidence on the issue, and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment." Id. (citations omitted).
filing an ADEA claim in federal court, a plaintiff must first
exhaust his administrative remedies by filing a charge of
discrimination with the EEOC. Jones v. Calvert Group,
Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42
U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(d)).
"The allegations contained in the administrative charge
of discrimination generally limit the scope of any subsequent
judicial complaint." Hentosh v. Old Dominion
Univ., 767 F.3d 413, 416 (4th Cir. 2014) (citations
omitted). Although courts "recognize that EEOC charges
often are not completed by lawyers and as such must be
construed with utmost liberality," courts are "not
at ., liberty to read into administrative charges allegations
they do not contain." Balas v. Huntington Ingalls
Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013)
(citations and quotation marks omitted). "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 pursued in a lawsuit under the ADEA.
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 963 (4th Cir. 1996). "Thus, 'factual
allegations made in formal litigation must correspond to
those set forth in the administrative charge.'"
Bonds v. Leavitt, 629 F.3d 369, 379 (4th Cir. 2011)
(quoting Chacko v. Patuxentlnst, 429 F.3d 505, 509
(4th Cir. 2005)). "[A] plaintiff fails to exhaust his
administrative remedies where ... his administrative charges
reference different time frames, actors, and discriminatory
conduct than the central factual allegations in his formal
suit." Chacko, 429 F.3d at 506; see
Bonds, 629 F.3d at 379 ("[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.") (quoting Calvert Grp.,
Ltd, 551 F.3d at 300).
amended complaint alleges claims for (1) age discrimination
based on his termination and failure to hire and (2)
retaliation. Am. Compl. [DE-14] at 2-3. Ferrell's EEOC
charge,  filed on February 13, 2018, alleges age
discrimination based on his termination and is supported by
the following factual basis:
In December 2011, 1 was hired as a Business Information
Security Director by the above-named Respondent's
Contractor. Around the last week in July 2017 or the first
week in August 2017, Kathryn Kerr, Versitude [sic] Human
Resources Representative, informed me that my contract would
end on September 29, 2017, therefore benefits and pay would
stop. During 2017, Respondent offered early-out severance to
its full-time employees and discharged others inside and
outside of my protected class. It combined its Covington, KY
and Durham, NC contractor information security units as
cost-saving measure. September 29, 2017 was my final workday
for the Respondent's Contractor. Ms. Kerr said that I was
discharged for budgetary reasons. I believe that because of
my age (63), I was discharged in violation of the Age
Discrimination in Employment Act of 1967 as amended.
[DE-25-1 ]. Ferrell also indicates on the charge form that
the discrimination took place on July 31, 2017 at the
earliest and on August 4, 2017 at the latest, and he did not