United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE .
matter is before the court on defendant's motion to
dismiss for failure to state a claim upon which relief can be
granted, pursuant to Federal Rules of Civil Procedure
12(b)(6). (DE 19). Pursuant to Federal Rule of Civil
Procedure 12(h)(3), the court also considers whether it lacks
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). The issues raised have been fully
briefed, and in this posture are ripe for ruling. For the
reasons noted, the court dismisses this case for lack of
subject matter jurisdiction, and in the alternative grants
OF THE CASE
proceeding pro se, initiated this action on October 29, 2018.
Plaintiff asserts claims for disability discrimination and
retaliation in violation of the Americans with Disabilities
Act, as amended (“ADA”), 42 U.S.C. § 12111
et seq.. On frivolity review, the court allowed
plaintiff's claims as to defendant Kings Bowl America,
LLC (“Kings Bowl”) to proceed, but dismissed
defendants Delima and Sheridan from this action pursuant to
28 U.S.C. § 1915(e). On April 11, 2019, defendant Kings
Bowl filed the instant motion to dismiss.
OF THE FACTS
worked as an employee for defendant Kings Bowl. (Compl. at
4). At that time, Delima was serving as general manager of
defendant Kings Bowl in Raleigh, North Carolina.
(Id.). Plaintiff requested a reasonable
accommodation for an unspecified disability. (Id.).
Plaintiff's r e q u e s t w a s d e n i e d . (I d
.). Thereafter, Delima allegedly harassed, bullied, and
discriminated against plaintiff. (Id.). Plaintiff
reported the incidents to Sheridan, and was subsequently
Standard of Review
motion to dismiss under Rule 12(b)(1) challenges the
court's subject matter jurisdiction. Such motion may
either 1) assert the complaint fails to state facts upon
which subject matter jurisdiction may be based, or 2) attack
the existence of subject matter jurisdiction in fact, apart
from the complaint. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). Where, as here, the court addresses a
factual predicate of subject matter jurisdiction, it
“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.” Richmond, Fredericksburg &
Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991). The plaintiff in such case “must set forth
specific facts beyond the pleadings to show that a genuine
issue of material fact exists.” Id.
survive a motion to dismiss” under Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
Failure to Exhaust Administrative Remedies
a plaintiff can file a lawsuit in federal court alleging
discrimination or retaliation under the ADA, he must first
timely exhaust his administrative remedies by filing a charge
of discrimination with the EEOC. 42 U.S.C. §§
2000e-5(b), (f)(1), 12117(a); Sydnor v. Fairfax Cty.,
Va., 681 F.3d 591, 593 (4th Cir. 2012); Chacko v.
Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005).
“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 maintained in a subsequent [ADA]
lawsuit.” Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 963 (4th Cir. 1996). “[A]
failure by the plaintiff to exhaust administrative remedies
concerning a[n] [ADA] claim deprives the federal courts of
subject matter jurisdiction over the claim.” Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.
does not allege that he timely filed any charge of
discrimination with the EEOC alleging violation of his rights
under the ADA. Accordingly, the court must dismiss
plaintiff's claims without prejudice for lack of subject
matter jurisdiction. Where plaintiff's complaint has
additional deficiencies that may be corrected through ...