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Ferrell v. FMR, LLC.

United States District Court, E.D. North Carolina, Western Division

January 31, 2019

STEVEN WILLIAM FERRELL, SR., Plaintiff,
v.
FMR, LLC, Defendant.

          MEMORANDUM AND RECOMMENDATION

          Robert B. Jones, Jr. United States Magistrate Judge.

         This 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.

         I. BACKGROUND

         Ferrell, 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].

         The 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.

         In the 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.

         II. ANALYSIS

         A. Rule 12(b)(1)-Lack of Subject Matter Jurisdiction

         FMR 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.

         A court 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).

         Before 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).

         Ferrell's 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, [1] 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 check ...


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