United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
S. Cayer United States Magistrate Judge.
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.
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.
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.
PROCEDURAL AND FACTUAL BACKGROUND
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. Although management and human
resources at CMS knew about the racially discriminatory
conduct, harassment, and retaliation, they failed to take
prompt and remedial action.
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
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
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.
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.
STANDARD OF REVIEW
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
(4th 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).
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).
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