Tigner v. Charlotte-Mecklenburg Schools

          MEMORANDUM AND RECOMMENDATION

          David S. Cayer United States Magistrate Judge.

         THIS MATTER is before the Court on “Defendant's Motion to Dismiss, ” Doc. 2 and the parties' associated briefs and exhibits, Docs. 2, 3 and 5.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and this Motion is now ripe for consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be granted in part and denied in part as discussed below.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         Accepting the allegations of the Complaint, Doc. 1, Ex. 1, as true, Plaintiff was subjected to racially discriminatory conduct, retaliation, and a hostile work environment by at least one co-worker and one director, both of whom were Caucasian, at Charlotte-Mecklenburg Schools^[1]. Although management and human resources at CMS knew about the racially discriminatory conduct, harassment, and retaliation, they failed to take prompt and remedial action.

         Within weeks after Plaintiff's February 13, 2017 complaint of discrimination to human resources supervisor Sandra Gero, Defendant retaliated against her by intentionally locking her out of work programs and software necessary to perform her job. On March 3, 2017, Defendant disciplined Plaintiff with a formal write-up for not performing a co-worker's job functions. As further retaliation, Defendant placed the unjustified formal write-up in Plaintiff's personnel file, thus preventing her from transferring to another department.

         The harassment continued up to and including the date of Plaintiff's filing a charge of discrimination, retaliation, and harassment with the Equal Employment Opportunity Commission on March 3, 2017. Prior to and during the mediation process with the EEOC, Plaintiff attempted to transfer out of her department into at least five other positions for which she was equally qualified. She was passed over for those positions. In many cases those positions were given to Caucasian individuals who were less qualified than Plaintiff.

         Plaintiff filed this action in Mecklenburg County Superior Court on November 27, 2018. She asserts three claims for relief: (1) violation of 42 U.S.C. § 1981; (2) race-based discrimination in violation of Title VII; and (3) retaliation in violation of Title VII.

         On December 28, 2018, Defendant timely removed the action to this Court. Doc. 1. On January 4, 2019, Defendant filed this Motion to Dismiss. Doc. 2.

         II. STANDARD OF REVIEW

         Pursuant to Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The existence of subject matter jurisdiction is a threshold issue for the court before considering the merits of a case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4^th Cir. 1999). Plaintiff has the burden of proving subject matter jurisdiction. 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 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).

         Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires a plaintiff to exhaust administrative remedies before filing suit in federal court. 42 U.S.C. §§ 2000e-5(b), (f)(1). Failure to exhaust administrative remedies deprives the court of subject matter jurisdiction. Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 409 (4th Cir. 2013); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009). Accordingly, the issue is properly analyzed under Rule 12(b)(1). Agolli v. Office Depot, Inc., 548 Fed.Appx. 871, 875 (4th Cir. 2013).

         In reviewing a Rule 12(b)(6) motion, “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). The plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, ...