Opinion
Civil Action 2:22-02071-DCN-MGB
02-03-2023
Theodoran Waters, Plaintiff, v. Univar Solutions USA, Inc., The Boeing Company, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Theodoran Waters (“Plaintiff”) filed the instant employment action on June 30, 2022, under Title VII of the Civil Rights Act of 1964. Currently before the Court is Defendant The Boeing Company's (“Defendant” or “Boeing”) Motion to Dismiss, asserting that Plaintiff failed to exhaust the administrative process by filing a Charge of Discrimination against Boeing. (Dkt. No. 16.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to the United States Magistrate Judge. For the reasons stated herein, the undersigned recommends that Defendant's Motion to Dismiss be denied.
BACKGROUND
Plaintiff asserts that he has been discriminated against based on his race, as an African American. (Dkt. No. 1.) The Complaint alleges Plaintiff was employed as an OSS Material Handler at Boeing's North Charleston location during the events at issue. (Id. at 2.) The Complaint alleges Defendant Univar Solutions USA Inc. (“Univar”) “employed the Plaintiff by providing pay, benefits, leave supervision, Human Resources support, and by having the ability to terminate the Plaintiff.” (Id. at 1.) The Complaint alleges Boeing “also employed the Plaintiff as a ‘joint employer' by providing direct supervision of the Plaintiff, training on how to perform his job functions, providing all tools and machinery necessary to perform his job functions, and by having the ability to effectuate the termination of the Plaintiff.” (Id. at 1-2.) According to the Complaint, beginning in or around March of 2021, “Plaintiff was subjected to harassment and racial discrimination.” (Id. at 2.) Plaintiff was called derogatory names and was not allowed to regularly switch his schedule, unlike Caucasian employees. (Id.) The Complaint alleges that after Plaintiff reported the racial discrimination, “Defendants began treating the Plaintiff unfairly by issuing baseless write-ups.” (Id.) Plaintiff was terminated on or about August 20, 2021 for “missing too many days.” (Id.) The Complaint alleges the reasons given for Plaintiff's termination were pretextual in nature. (Id.) The Complaint alleges claims under Title VII for disparate treatment, hostile work environment, and retaliation.
Plaintiff filed this action on June 30, 2022. On August 18, 2022, Boeing filed a Motion to Dismiss, asserting that Plaintiff failed to exhaust the administrative process by filing a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) against Boeing. (Dkt. No. 16.) In support, Boeing has attached Plaintiff's EEOC charge to the Motion.0F(Dkt. No. 16-2.) Plaintiff filed a response in opposition on September 1, 2022 (Dkt. No. 18), to which Boeing responded on September 7, 2022 (Dkt. No. 19). The Motion to Dismiss is ripe for review.
The Court may take judicial notice of the EEOC charge and its content. See Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (noting court may take notice of matters of public record and those attached to complaint and Rule 12 motions, so long as authentic and integral to the complaint).
STANDARD OF LAW
Boeing seeks dismissal of this action under Rule 12(b)(1) based on Plaintiff's alleged failure to exhaust administrative remedies. However, challenges concerning failure to administratively exhaust remedies before the EEOC more properly are considered pursuant to Rule 12(b)(6). See Fort Bend Cnty., Tx. v. Davis, 139 S.Ct. 1843, 1850-51 (2019) (holding “Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts”); Olivarria v. Cooper, 776 Fed.Appx. 128, 129 (4th Cir. 2019) (mem.) (remanding because the district court found it lacked jurisdiction over an unexhausted Title VII claim and suggesting the exhaustion requirement is not jurisdictional); Lee v. Esper, No. 3:18-cv-3606-TLW-KFM, 2019 WL 7403969, at *2 (D.S.C. Aug. 13, 2019) (noting challenge to administrative-exhaustion requirements appropriately considered under Rule 12(b)(6)), adopted by, 2020 WL 32526 (D.S.C. Jan. 2, 2020).1F
Prior to the Court's 2019 decision in Fort Bend County certain failure-to-exhaust challenges were considered to be jurisdictional and thus examined under Rule 12(b)(1).
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)); see also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); Bowie v. Univ. of Md. Med. Sys., No. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's ADA claim as time-barred and considering the EEOC Charge and Right to Sue Letter as being “integral” to the decision).
DISCUSSION
Boeing argues that Title VII precludes Plaintiff from stating a claim against Boeing because Boeing was not named as a respondent in an EEOC charge. (Dkt. No. 16.) The record shows that Plaintiff filed an EEOC charge on October 19, 2021, naming Univar as the sole respondent. (Dkt. No. 16-2 at 3.) The charge alleges that Plaintiff “began working for Univar Solutions in 2017” and that Plaintiff was “subjected to harassment and racial discrimination beginning around 3/2021 -4/2021.” In support of these claims, the charge alleges, inter alia, that Plaintiff “had a Boeing vehicle assigned to me for some time, then I had to give it to a Caucasian Boeing employee. The Caucasian man then asked, ‘is this your shit?' and I reported the comments and racial discrimination to my supervisor, but nothing was done.” (Id.) The charge alleges Plaintiff was “written up for ‘false reporting' for instances regarding the Boeing vehicle and days missed from earlier in the year.” (Id.) On March 31, 2022, Plaintiff filed an amended EEOC charge. The amended EEOC still names Univar as the sole respondent, but changes Univar's address to the North Charleston location of Boeing. (Id. at 4.)
“Before a federal court may assume jurisdiction over a claim under Title VII,” a plaintiff must exhaust the EEOC administrative process. Davis v. N.C. Dep't of Corr., 48 F.3d 134, 13637 (4th Cir. 1995). The administrative process begins when a plaintiff brings a charge with the EEOC. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). Under Title VII, a civil action may be brought only “against the respondent named in the charge.” 42 U.S.C. § 2000e-5(f)(1). “The purposes of this requirement include putting the charged party on notice of the complaint and allowing the EEOC to attempt reconciliation.” Causey v. Balog, 162 F.3d 795, 800 (4th Cir. 1998) (citing Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988)). “Construed strictly, however, this requirement could present a virtually insurmountable barrier for Title VII claimants, many of whom file administrative charges without the assistance of counsel.”2F Tietgen v. Brown's Westminster Motors, Inc., 921 F.Supp. 1495, 1498 (E.D. Va. 1996). Thus, “[a] plaintiff's failure to name a defendant in an EEOC charge does not bar a subsequent suit if ‘the purposes of the naming requirement were substantially met,' i.e. if (1) all defendants received fair notice, and (2) the EEOC was able to attempt conciliation with the responsible parties.” Davis v. BBR Mgmt., LLC, No. DKC 10-0552, 2011 WL 337342, at *5 (D. Md. Jan. 31, 2011) (quoting Vanguard Justice Soc. Inc. v. Hughes, 471 F.Supp. 670, 687 (D. Md. 1979)).
Here, the undersigned recognizes that Plaintiff was represented by counsel during the EEOC administrative process.
Here, Plaintiff asserts that although he did not name Boeing in his EEOC charge, dismissal is not appropriate because Boeing falls under one of the exceptions to the naming requirement. (Dkt. No. 18.) Specifically, Plaintiff argues that Boeing is substantially identical to Univar.3F (Id. at 5.) Several district courts in the Fourth Circuit have applied the “identity of interest” or “substantial identity” test to determine whether a defendant had notice of the EEOC charges and participated in the conciliation process. See, e.g., Mayes v. Moore, 419 F.Supp.2d 775, 782-83 (M.D. N.C. 2006); Jamieson v. Valle Bank, No. 7:05-cv-00165, 2005 WL 2233545 (W.D. Va. Sept. 13, 2005); Tietgen, 921 F.Supp. at 1498-99; see also Alvarado, 848 F.2d at 461 (explaining that the “Fourth Circuit has not had occasion to decide whether to adopt the substantial identity exception” but noting the Court in EEOC v. Am. Nat'l Bank, 652 F.2d 1176, 1186 n.5 (4th Cir.1981), quoted such language “with approval . . . in dictum”). In applying the substantial identity test, courts consider four factors:
Plaintiff also asserts that Boeing is an indispensable party and Univar acted as Boeing's agent, but he provides no substantive arguments for these exceptions.
(1) Whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;
(2) Whether, under the circumstances, the interest of the named party are so similar to the unnamed party's that for the purposes of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;
(3) Whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and
(4) Whether the unnamed party had in some way represented to the complainant that its relationship with the complainant is to be through the named party.Vanguard, 471 F.Supp. at 688; see also Robinson v. S.C. Dep't of Corr., No. 5:10-2593-HMH-KDW, 2012 WL 581042, at *3 (D.S.C. Mar. 13, 2012); Grant v. I.N.I. Corp., No. 4:11-cv-RBH-TER, 2012 WL 486881, t *3 (D.S.C. Jan. 26, 2012).
Plaintiff appears to concede that he could have ascertained the identity of Boeing before filing his charge, and he does not expressly argue that Boeing represented that its relationship with Plaintiff was to be through Univar. Also, while Plaintiff asserts “he believed the two companies to be ‘interrelated operations,'” he offers little compelling argument on this issue. (Dkt. No. 18 at 6.) Instead, Plaintiff focuses on the alleged lack of prejudice to Boeing based on its omission as a respondent on the EEOC charge. More specifically, Plaintiff argues that because the amended EEOC charge listed Univar's address as Boeing's North Charleston location and mentioned Boeing in factual allegations of the charge, and because Plaintiff complained to Boeing Human Resources about the discrimination and harassment “that occurred on . . . Boeing's job site,” Boeing was put on notice to respond to the allegations in the EEOC charge. (Id. at 4-7.) Plaintiff asserts that discovery is needed “to investigate the level of communication between the Defendants after the charge was filed” and it would therefore be premature to dismiss Boeing at this early stage in the proceedings. (Id. at 5.)
Notably, “the Fourth Circuit has long held the tendency toward leniency is particularly strong in cases where the defendant has either received actual notice of the pendency of the action, or is unable to demonstrate any prejudice from a delay in service.” Crespo v. Mortg. Elec. Registration Sys., Inc., No. 116-cv-00043-MOC-DLH, 2017 WL 1190381, at *4 (W.D. N.C. Mar. 29, 2017). Viewing the facts and inferences in the light most favorable to Plaintiff, the undersigned finds it would be premature to dismiss Boeing at this early stage in the litigation without first allowing the parties an opportunity to engage in discovery so that the Court may assess whether Boeing received fair notice of the complaint and had an opportunity at conciliation. See, e.g., Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (“[W]hen such a dismissal involves a civil rights complaint, we must be especially solicitous of the wrongs alleged and must not dismiss the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.”) (internal citations omitted); cf. Lindblad v. J&I Servs., Inc., No. 4:18-CV-1336-RBH-TER, 2019 WL 653968, at *9 (D.S.C. Jan. 30, 2019) (dismissing defendant based on its omission as respondent on EEOC charge because, inter alia, “Plaintiffs have failed to mention, much less address,” the substantial identity factors), adopted sub nom. Lindblad v. J&L Servs., Inc., 2019 WL 652248 (D.S.C. Feb. 15, 2019); Polite v. Spherion Staffing, LLC, No. 2:14-cv-4756 DCN JDA, 2015 WL 1549050, at *3 (D.S.C. Apr. 7, 2015) (dismissing defendant based on its omission as respondent on EEOC charge because, inter alia, “Plaintiff has provided no evidence that [defendant] would not be prejudiced]”).
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that Boeing's Motion to Dismiss (Dkt. No. 16) be DENIED.
AND IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).