Opinion
C. A. 3:21-317-MGL-PJG
03-29-2021
Elizabeth Felder, Plaintiff, v. TD Bank U.S. Holding Company, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Elizabeth Felder, a self-represented litigant, originally filed this employment discrimination action in the Lexington County Court of Common Pleas. The Complaint raises claims of race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981, and disability discrimination and failure to accommodate pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Defendant TD Bank U.S. Holding Company (“TD Bank”) removed the case to this court. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on TD Bank's motion to dismiss Felder's Title VII and failure to accommodate claims for failure to exhaust administrative remedies. (ECF No. 5.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Felder of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to TD Bank's motion. (ECF No. 6.) Felder filed a response in opposition to the motion (ECF No. 12), to which TD Bank replied (ECF No. 13). Having reviewed the record presented and the applicable law, the court finds TD Bank's motion should be granted in part and denied in part.
DISCUSSION
TD Bank also seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, but failure to exhaust a federal employment claim does not implicate the court's subject matter jurisdiction. See Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843 (2019) (holding that Title VII's charge-filing requirement is mandatory but not jurisdictional).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “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 Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. TD Bank's Motion
TD Bank argues that Felder's race discrimination and retaliation claims under Title VII and failure to accommodate claim under the ADA are barred because they have not been administratively exhausted.
Before filing suit under Title VII or the ADA, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843 (2019) (Title VII); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (Title VII); see also Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (ADA). In the employment discrimination context, courts have interpreted statutory requirements to exhaust administrative remedies to mean that each discrete incident of discriminatory treatment must be administratively exhausted. Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)); Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge' ”) (quoting Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith, 202 F.3d at 247 (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”). Only those claims stated in the initial administrative charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred).
Moreover, “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.” Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002) (internal quotation marks and citations omitted). Therefore, a discrimination suit “is limited to discrimination charged in the report to the EEOC or to discrimination actually found by the EEOC upon investigation of the original charge.” Stehle v. Gen. Mills Rest., Inc., 875 F.Supp. 320, 323 (D.S.C. 1994) (Title VII). When a discrimination claim “exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, ” it is procedurally barred. Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995).
“At the same time, however, the exhaustion requirement should not become a tripwire for hapless plaintiffs. While it is important to stop clever parties from circumventing statutory commands, we may not erect insurmountable barriers to litigation out of overly technical concerns.” Sydnor, 681 F.3d at 594. The United States Court of Appeals for the Fourth Circuit has discussed the parameters for when different unlawful employment practices are considered “reasonably related” to those raised in an administrative charge. For example, “where both the administrative complaint and formal litigation concerned ‘discriminat[ion] in promotions' but involved different aspects of the ‘promotional system,' ” the charges are reasonably related and may be advanced in a subsequent civil suit. Id. (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). Similarly, courts have permitted a claim raised in litigation that was not specifically described in the administrative charge to go forward “where both the EEOC charge and the [federal] complaint included claims of retaliation by the same actor, but involved different retaliatory conduct.” Id. (citing Smith, 202 F.3d at 248). On the other hand, when the claim raised in the district court litigation involves a different form of unlawful employment practice than the one described in the administrative charge, courts have found the claim not to be administratively exhausted. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009) (finding that claims of age, sex, and race discrimination were not exhausted where a charge alleged only retaliation), abrogated on other grounds by Fort Bend Cnty., Tex., 139 S.Ct. 1843; Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33 (4th Cir. 2002) (finding that claims of sex and color discrimination were not exhausted where a charge alleged only race discrimination); Riley v. Tech. & Mgmt. Servs. Corp., Inc., 872 F.Supp. 1454, 1459-60 (D. Md. 1995) (finding that claims of sexual harassment and retaliation were not exhausted where a charge alleged only sex discrimination).
Here, Felder checked the boxes for retaliation and disability discrimination on her Equal Employment Opportunity Commission (“EEOC”) and South Carolina Human Affairs Commission (“SCHAC”) charge of discrimination forms. (Ex. 1, Def.'s Mot. to Dismiss, ECF No. 5-1.) On the SCHAC form, Felder claims her boss harassed her, treated her differently from other employees, and retaliated against her based on her disability. (Id. at 3-4.) Felder's charges of discrimination and retaliation do not mention race. Felder argues that she told a supervisor that the supervisor's actions were racially discriminatory and that she mentioned race discrimination in a letter to SCHAC during the investigation. However, Felder's conversations with her employer outside of the EEOC process are irrelevant to the exhaustion requirement, which is limited to the claims raised in the charge of discrimination. See Smith, 202 F.3d at 247. Also, Felder's unilateral reference in a letter to claims not raised in her charge of discrimination is not sufficient to put the defendant on notice that those claims are part of the EEOC investigative process. See, e.g., Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999) (providing that the plaintiff failed to exhaust her administrative remedies for a retaliation claim based on race where the plaintiff's only mention of such a claim before the EEOC was a letter sent by the plaintiff two months after she filed the charge of discrimination indicating she wanted to add a race discrimination claim). Consequently, Felder failed to exhaust her administrative remedies on her claims of race discrimination and retaliation under Title VII.
However, Felder's claim of failure to accommodate appears to be reasonably related to her ADA disability discrimination claim and would naturally arise from any investigation of that claim. See Sydnor, 681 F.3d at 594; Dennis, 55 F.3d at 156. In her charge of discrimination to SCHAC, she checked the box for disability discrimination and alleged that she was denied personal time off because of her disability, while other employees were not denied personal time. (Ex. 1, Def.'s Mot to Dismiss, ECF No. 5-1 at 3.) In her Complaint, Felder claims TD Bank failed to accommodate her disability by, among other things, allowing her to work a modified work schedule. Therefore, the court concludes that Felder exhausted her administrative remedies for her failure to accommodate claim under the ADA.
RECOMMENDATION
Based on the foregoing, the court recommends TD Bank's motion to dismiss (ECF No. 5) be granted as to Felder's race discrimination and retaliation claims pursuant to Title VII but denied as to Felder's failure to accommodate claim under the ADA.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).