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Rogers v. Kings Bowl America, LLC

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

July 18, 2019




         This 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 defendant's motion.


         Plaintiff, 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.


         Plaintiff 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 fired. (Id.).


         A. Standard of Review

         A 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.

         “To 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., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         1. Failure to Exhaust Administrative Remedies

         Before 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. 2009).

         Plaintiff 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 ...

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