United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. SCHROEDER, CHIEF DISTRICT JUDGE.
employment discrimination case, Defendants 1618 Concepts,
Inc. (“1618 Concepts”), 1618 Downtown, Inc.
(“1618 Downtown”), and Northern Lights, Inc.
(“Northern Lights”), move to dismiss the
complaint (Doc. 13), and Peter Matusik seeks to intervene as
a Plaintiff (Doc. 10). For the reasons set forth below, the
motion to dismiss will be denied, and Matusik's motion to
intervene will be granted in part and denied in part.
allegations of the complaint, taken in the light most
favorable to the Plaintiff, are as follows:
began work at 1618 Downtown, a restaurant, as a dishwasher in
June 2017. (Doc. 1 ¶ 31.) In the late fall of 2017, a
male co-worker began sexually harassing Matusik, including
multiple instances of unwanted, explicit sexual touching and
groping. (Id. ¶¶ 32-34.) One or more of
Defendants' managers witnessed at least one of
these instances of sexual harassment, and Defendants
generally were aware of this harassment. (Id.
¶¶ 40-41.) Defendants were also aware that in
September 2017 the male co-worker wore a “sex
mask” to work, which he showed to other employees, and
discussed his interest in websites related to unconventional
sex acts. (Id. ¶¶ 36-39.) Matusik
complained to Defendants' managers in November and
December of 2017, as well as in January 2018. (Id.
¶ 42.) After the co-worker again harassed Matusik on
January 20, 2018, a female co-worker reported the incident to
management. (Id. ¶ 44.) Following this
complaint, management verbally reprimanded the male
co-worker, but the co-worker began to act in a way that
Matusik viewed as intimidating and threatening. (Id.
¶¶ 45-47.) This included instances of the co-worker
standing close to Matusik in an effort to physically
intimidate him. (Id. ¶ 46.)
February 2018, Matusik attempted again to complain to
Defendants' managers about the co-worker's conduct,
but the managers refused to discuss the harassment.
(Id. ¶¶ 48-49.) Later, on February 20,
Matusik met with two managers to discuss his need to take off
from work that day and to discuss the negative work
environment he was experiencing. (Id. ¶¶
51-52.) When Matusik told them that he did not feel safe
working with the harassing male co-worker, the managers asked
why Matusik had not found a different job elsewhere and told
him that he should do so “quickly.” (Id.
¶¶ 53-55.) Following this meeting, Matusik did not
return to work. (Id. ¶ 56.)
2018, Matusik filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). (Doc.
13- 1.) He identified 1618 Concepts as his employer, and in
the section noting “discrimination based on, ” he
checked the box for “sex” and provided the date
of discrimination as February 14, 2018. (Id.) In the
“particulars” section, he described instances of
the harassment from the male co-worker as well as his
managers' failure to stop the harassment. (Id.)
On June 18, 2018, Matusik filed an amended charge of
discrimination in which he provided additional details
regarding the history of the harassment he endured, and he
marked the boxes indicating he had been discriminated against
based on “sex” and had experienced
“retaliation.” (Doc. 18-4.) In this amended
charge, Matusik again identified his employer as 1618
February 20, 2019, the EEOC sent 1618 Concepts, 1618
Downtown, and Northern Lights a letter of determination
finding reasonable cause to believe that Title VII violations
had occurred. (Doc. 1 ¶ 25.) After conciliation failed,
the EEOC filed this action on July 9, 2019. (Id.
August 16, Matusik moved to intervene. (Docs. 10, 11.)
Defendants filed a response in opposition (Doc. 16), and
Matusik replied (Doc. 17). Defendants also filed a motion to
dismiss for lack of subject-matter jurisdiction and failure
to state a claim (Docs. 13, 14), as well as an answer to the
EEOC's complaint. (Doc. 15). The EEOC filed an opposition
to Defendants' motion to dismiss. (Doc. 18.) Defendants
did not file a reply.
Motion to Dismiss
move to dismiss for lack of subject-matter jurisdiction and
for failure to state claim pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6), respectively.
Challenges to the EEOC Charge
first argue that the court must dismiss the case for lack of
subject-matter jurisdiction for failure of the EEOC to
exhaust its administrative remedies because (1) Matusik's
EEOC charge did not provide notice of a hostile work
environment claim, and (2) it identified only 1618 Concepts
and not 1618 Downtown or Northern Lights.
Identification of Claims in the EEOC Charge
first seek dismissal on the ground that Matusik's EEOC
charge did not allege a hostile work environment claim.
bringing a discrimination claim under Title VII, an
individual must first timely file an administrative charge
with the EEOC. “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 Title VII lawsuit.” Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996). Up until June 2019, “a failure by the plaintiff
to exhaust administrative remedies concerning a Title VII
claim deprive[d] the federal courts of subject matter
jurisdiction over the claim.” Jones v. Calvert
Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Neither
party has acknowledged, however, that on June 3, the Supreme
Court held that Title VII's charge-filing requirement is
not jurisdictional, but rather a claims-processing rule.
Fort Bend Cty. v Davis, 139 S.Ct. 1843, 1850-51
(2019). See Abadi v. Mecklenburg Cty. Govt., No.
3:17-cv-00435-FDW-DCK, 2019 WL 2546732, at *3 (W.D. N.C.
June 20, 2019) (noting that Title VII's requirement that
a plaintiff must exhaust all administrative remedies is no
longer a jurisdictional issue under Davis, but that the
substance of the requirement itself remains unchanged); see
also Oswaldo Argueta v. Fred Smith Co., No.
5:19-cv-84-FL, 2019 WL 6337426, at *3 (E.D. N.C. Nov.
26, 2019) (finding that Davis requires that the charge-filing
requirement be analyzed under Rule 12(b)(6)); Hodge v.
Walrus Oyster Ale House, Civil Action No. TDC-18-3845,
2019 WL 6069114, at *3 (D. Md. Nov. 15, 2019) (applying Rule
12(b)(6) and not Rule 12(b)(1) to defendants' alleged
failure to exhaust administrative remedies under Title VII).
Therefore, Defendants' arguments will be analyzed under
Rule 12(b)(6) and not under Rule 12(b)(1).
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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In considering the motion, a court
first “separates factual allegations from allegations
not entitled to the assumption of truth.” Sauers v.
Winston-Salem/Forsyth Cty. Bd. of Educ., 179 F.Supp.3d
544, 550 (M.D. N.C. 2016) (citing Iqbal, 556 U.S. at 681).
Conclusory allegations and allegations that are simply a
“formulaic recitation of the elements” are not
entitled to the assumption of truth. Id. (quoting
Iqbal, 556 U.S. at 681). The court then determines
“whether the factual allegations, which are accepted as
true, ‘plausibly suggest an entitlement to
relief.'” Id. (quoting Iqbal, 556 U.S. at
681). A claim is facially plausible when the plaintiff
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable,
” demonstrating “more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at
556-57). Of course, the court evaluates this burden against
the backdrop of Federal Rule of Civil Procedure 8(a)(2),
which provides that a complaint must simply contain a short
and plain statement of the claim showing that the pleader is
entitled to relief.
VII claim is subject to dismissal “if the EEOC charge
alleges discrimination on one basis, such as race, and the
formal litigation claim alleges discrimination on a separate
basis, such as sex.” Jones, 551 F.3d at 300
(applying jurisdictional analysis). A charge meets the
requisite standard if it is “sufficiently precise to
identify the parties, and to describe generally the action or
practices complained of.” Chacko v. Patuxent
Inst., 429 F.3d 505, 508 (4th Cir. 2005) (quoting 29
C.F.R. § 1601.12(b)).
rely primarily on Keener v. Universal Cos., Inc.,
128 F.Supp.3d 902 (M.D. N.C. 2015). But this case is readily
distinguishable. There, the female plaintiff filed an EEOC
charge alleging “sex” discrimination and
“retaliation” under Title VII. Id. at
912. She checked the respective boxes for those on the charge
form and listed her termination date as the date the
discrimination took place. Id. In her subsequent
federal lawsuit, she also claimed she was the victim of a
hostile work environment under Title VII. Id. at
913. However, no part of her EEOC charge described facts that
could be attributable to a hostile work environment claim.
Id. Thus, the court found that the plaintiff had not
exhausted her administrative remedies as to that claim. See
Id. at 914.
the details Matusik provided in his charge about the alleged
harassment were sufficient to put Defendants on notice that
he alleged a hostile work environment. He identified his
harasser, the harassment, alleged it occurred on multiple
occasions, and described how, despite his complaints to
management, no action was taken against the male co-worker.
(Doc. 18-2.) For example, he alleged, “I was sexually
harassed on numerous occasions by a cook, ”
“[t]he harasser physically touched my genitals on more
than one occasion, ” and “I believe I was
discriminated against, based on my sex, male when I was
sexually harassed . . . .” (Id. at 2.) He
alleged in his amended charge, which relates back to his
original charge, see 29 C.F.R. § 1601.12(b), that
“[w]hile employed, I was subject to a hostile work
environment and sexually harassed by a male coworker, ”
“[o]n no less than four occasions I was subjected to
significantly severe sexually harassing behavior by a male
coworker, ” and “I believe I have been
discriminated against, subjected to a hostile working
environment, sexually harassed . . . due to my sex, male . .
. in violation of Title VII of the Civil Rights Act of 1964,
as amended.” (Doc. 18-4 at 2.) Notably, there is no box
on the charge form labeled “hostile work environment,
” but only one labeled “other, ” which
would have required Matusik to then specify the claim in the
margin, which is essentially what he did in the description
of the alleged conduct. (Docs. 18-2, 18-4.) Matusik's