United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant's motion to
dismiss plaintiff's harassment claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). (DE 18). Also before the
court is a joint motion for protective order instigated by
defendant. (DE 34). In this posture the issues raised are ripe
for ruling. For the reasons that follow, the instant motions
OF THE CASE
proceeding pro se and in forma pauperis, commenced this
employment discrimination action against defendant, her
former employer, on March 21, 2019. Plaintiff's complaint,
filed upon completion of frivolity review, asserts claims
under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., (“Title VII”), on
the basis of wrongful termination, unlawful retaliation, and
harassment because of race. Plaintiff attaches to her
complaint a narrative statement, along with a United States
Equal Employment Opportunity Commission (“EEOC”)
notice of rights to sue and charge of discrimination
(“EEOC charge”), a “list of ethnic slurs,
” and correspondence to plaintiff from Lincoln
Financial Group, defendant, and the North Carolina Board of
Review. (See DE 6-1 to 6-7). Plaintiff seeks back
pay, reinstatement, and damages.
instant motion to dismiss, defendant seeks dismissal of
plaintiff's harassment claim on the basis that plaintiff
did not exhaust administrative remedies prior to filing this
claim, which is not mentioned in plaintiff's EEOC charge.
In case management order entered July 16, 2019, the court
stayed discovery on plaintiff's harassment claim only
pending decision on the instant motion.
facts alleged in the complaint and documents attached thereto
may be summarized as follows. “Plaintiff is an African
American” who “was employed with Duke Energy
Progress” from approximately June 2016 to October 24,
2016. (Compl. (DE 6) at 3; Stmt. (DE 6-1) at 2).
2018, plaintiff was promoted to the position of
“Administrative Specialist, ” and was
“approved a corporate credit card, which allows for the
charging of personal expenses under extenuating
circumstances.” (EEOC Charge (DE 6-2) at 2). “On
October 16, 2018, [plaintiff] was suspended without pay,
without warning, pending an investigation into allegations of
misuse and inappropriate coding of personal expenses for the
corporate credit card.” (Id.). Plaintiff
alleges that she “was walked out of employment and
humiliated in front of co-workers[, ] reason being
investigation of misuse of corporate credit card.”
(Compl. (DE 6) at 4). “However, [plaintiff] provided
written explanation and receipts for each expense since July
2018, and was never told [she] was doing it
incorrectly.” (EEOC Charge (DE 6-2) at 2). That same
day, plaintiff “applied for Short Term Disability
(STD), which has a 7-day waiting period.”
(Id.). “On October 24, 2018, [plaintiff] was
terminated.” (Id.). Plaintiff “did not
expect termination and believe[s] [she] was retaliated
against when [she] filed for disability and then called [for]
investigation, ” when allegedly “there was no
reason for investigation other than racial
discrimination.” (Compl. (DE 6) at 5).
also alleges that “[d]uring the course of employment,
[d]efendant created an environment which encouraged and
fostered a hostile work environment for [plaintiff] due to
her race.” (Stmt. (DE 6-1) at 2). Plaintiff cites
examples of this alleged behavior including: 1) “A
white co-worker encircling Plaintiff among three other
co-workers, asking for an explanation as to why [p]laintiff
drives a new vehicle, ” and 2) “racial slurs were
used during employment at Duke Energy Progress by a white
co-worker asking ‘want crackers' pretending to eat
saltines.” (Id.). Plaintiff asserts
“demeaning and hostile treatment” and
“harassment, abuse and discrimination encouraged by
Duke Energy management's refusal to stop the
Standard of Review
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).
VII requires a plaintiff to exhaust administrative remedies
before filing suit in federal court. 42 U.S.C. §§
2000e-5(b), (f)(1). Exhaustion is “mandatory in the
sense that a court must enforce the rule if a party properly