United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Defendants'
Motions to Dismiss [Docs. 7, 10]; the Magistrate Judge's
Memorandum and Recommendation [Doc. 16] regarding the
disposition of those motions; the “Conditional”
Objections to the Memorandum and Recommendation filed the
Defendant H&S Asheville South, L.L.C., d/b/a Hand and
Stone Massage and Facial Spa (“H&S”) [Doc.
17]; and the Plaintiff's “Responses to
H&S's Condition[al] Objections to Memorandum and
Recommendation [Doc. 23].
to 28 U.S.C. § 636(b) and the standing Orders of
Designation of this Court, the Honorable W. Carleton Metcalf,
United States Magistrate Judge, was designated to consider
the Defendants' motions and to submit a recommendation
for their disposition.
April 9, 2019, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in
support of a recommendation regarding the motions to dismiss.
[Doc. 16]. The parties were advised that any objections to
the Magistrate Judge's Memorandum and Recommendation were
to be filed in writing within fourteen (14) days of service.
Defendant H&S timely filed its “Conditional”
Objections on April 23, 2019. [Doc. 17]. The Plaintiff, who
is pro se, did not file objections to the Memorandum
and Recommendation, nor did she file a reply to the
“Conditional” Objections filed by H&S. On May
22, 2019, the Court entered an Order accepting the Memorandum
and Recommendation and dismissing this action. [Doc. 18]. A
Clerk's Judgment was entered that same day. [Doc. 19].
6, 2019, the Plaintiff filed a motion for reconsideration of
the Order dismissing her case. [Doc. 21]. The Court granted
the Plaintiff's motion on June 24, 2019, and gave her
fourteen (14) days within which to file objections to the
Memorandum and Recommendation. [Doc. 22]. The Plaintiff filed
her “Responses to H&S's Condition[al]
Objections” on July 8, 2019. [Doc. 23].
filing, the Plaintiff objects to the Magistrate Judge's
proposed conclusion that her failure to file a timely EEOC
charge now bars her federal claim. She contends that she
“originally filed a complaint with the EEOC on time
immediately after” she was terminated in November 2017.
[Doc. 23 at 1]. The Plaintiff's Charge of Discrimination,
however, indicates that it was digitally signed by the
Plaintiff at 4:34 p.m. on June 7, 2018. [See Doc.
11-1 at 11]. While the Plaintiff refers to this Charge as her
“second discrimination complaint, ” [Doc. 23 at
2], there is nothing in the record before the Court to show
that a charge of discrimination was filed any earlier than
June 7, 2018. In fact, the documents presented by the
Plaintiff in support of her objection - her right-to-sue
letter and the Notice of Charge [Docs. 23-1, 23-2] - make no
reference to any earlier filed charge. The record is clear
that the Plaintiff's Charge of Discrimination was filed
on June 7, 2018, well beyond the 180-day time limit. This
untimely filing now bars her federal claims.
remainder of the Plaintiff's filing consists of responses
to H&S's “Conditional” Objections.
Because the Court accepts the Memorandum and Recommendation
on the grounds stated, the Court need not address
H&S's “Conditional” Objections or the
Plaintiff's responses thereto.
careful consideration of the Memorandum and Recommendation
and the parties' Objections thereto, the Court finds that
the Magistrate Judge's proposed conclusions of law are
correct and consistent with current case law. Accordingly,
the Court hereby accepts the Magistrate Judge's
recommendation that the motions to dismiss should be granted
on the grounds stated.
IS, THEREFORE, ORDERED that the parties'
Objections to the Memorandum and Recommendation [Docs. 17,
23] are OVERRULED; the Memorandum and
Recommendation [Doc. 16] is ACCEPTED; the
Defendants' Motions to Dismiss [Doc. 7, 10] are
GRANTED; and the Plaintiffs claims against
the Defendants are hereby DISMISSED WITH
Clerk of Court is respectfully directed to close this case.
IS SO ORDERED.
 The Motion to Dismiss filed by H&S
contains defenses and arguments for dismissal that were not
addressed by the Magistrate Judge in the Memorandum and
Recommendation. H&S submitted its
“conditional” objections in order to preserve
such arguments and defenses, and the Plaintiff has responded
to such objections. Because the Court accepts the Magistrate
Judge's Memorandum and Recommendation on the grounds as
stated therein, the Court need ...