Opinion
C/A No. 3:17-3392-CMC-PJG
08-01-2018
Regina G. Cornelius, Plaintiff, v. Simply Wireless, doing business as SPRINT by Mobile Now, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Regina G. Cornelius, a self-represented litigant and former employee of Defendant Simply Wireless, filed this employment case now alleging gender/sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. 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 Defendant Simply Wireless's renewed motion to dismiss. (ECF No. 51.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Cornelius of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to the defendant's motion. (ECF No. 52.) Cornelius filed a response in opposition (ECF No. 60), the defendant replied (ECF No. 65), and Cornelius filed a sur-reply (ECF No. 68). Having reviewed the parties' submissions and the applicable law, the court finds that the defendant's motion to dismiss should be granted.
Cornelius's initial Complaint raised claims of race discrimination and retaliation pursuant to Title VII. (See ECF No. 1; see also ECF No. 14 at 1.) The defendant moved to dismiss the Complaint for failure to state a claim. (ECF No. 19.) In response to the defendant's motion, Cornelius appeared to attempt to raise additional factual assertions supporting her claims; therefore, the court granted Cornelius time to file an Amended Complaint to address the deficiencies identified by the defendant. The defendant's motion was dismissed from the docket without prejudice to refile if Cornelius's Amended Complaint did not cure the deficiencies. (ECF No. 37.) Thereafter, Cornelius filed an Amended Complaint raising claims of gender discrimination and retaliation pursuant to Title VII. (ECF Nos. 44 & 46.)
The Local Civil Rules make no provision for sur-replies. However, consideration of Cornelius's sur-reply would not change the court's recommendation on the defendant's motion.
BACKGROUND
Cornelius, who is an African-American female, alleges in her Amended Complaint that the defendant discriminated against her based on her gender. She also mentions retaliation and harassment. (See generally Am. Compl., ECF No. 43.) Attached to Cornelius's initial Complaint are her Charge of Discrimination filed with the Equal Employment Opportunity Commission ("EEOC") and South Carolina Human Affairs Commission ("SHAC") (ECF No. 1-1 at 6) and her Notice of Right to Sue letter (ECF No. 1-1 at 1). In her charge, Cornelius alleges discrimination based on race and retaliation. (ECF No. 1-1 at 6.)
DISCUSSION
A. Applicable Standards
In its motion, the defendant seeks dismissal of Cornelius's claims based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court 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.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
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 plaintiff's 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 Cty. 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 v. Pardus, 551 U.S. 89 (2007), 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. Defendant's Motion to Dismiss
1. Claims of Gender/Sex Discrimination
The defendant argues that all claims raised by Cornelius based on gender/sex are jurisdictionally barred because they have not been administratively exhausted. The court agrees.
Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC. See 42 U.S.C. § 2000e-5(f)(l); see also Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). Exhaustion of administrative remedies is a statutory prerequisite to properly invoke the jurisdiction of the federal court. See Jones, 551 F.3d at 300 (stating that "a failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim"); Davis v. N.C. Dep't of Corr., 48 F.3d 134, 140 (4th Cir. 1995) (stating that "that receipt of, or at least entitlement to, a right-to-sue letter is a jurisdictional prerequisite").
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 Employment 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. Cty. 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 v. Fairfax Cty., Va., 681 F.3d 591, 594 (4th Cir. 2012). 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, 551 F.3d at 300-01 (finding that claims of age, sex, and race discrimination were not exhausted where a charge alleged only retaliation); 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 racial 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 gender discrimination).
Review of Cornelius's EEOC Charge reveals that she failed to check the box for sex, and did not include any allegations with regard to sex or gender in the narrative section of her EEOC charge of discrimination form. (See EEOC Charge, ECF No. 1-1 at 6.) Cornelius filed a response to the defendant's motion, but did not appear to address any argument raised by the defendant with regard to this claim. (ECF No. 60.) Rather, Cornelius appears to argue that the defendant is "utilizing dishonest tactics of trickery to mock this Court" and that the defendant "continue[s] to submit scurrilous Motions and blatant bogus attempts to discredit the Plaintiff's (Cornelius) allegations by suggesting erroneous measures (she) has used in completing pertinent documents with accuracy, while completely ignoring the serious issues which have transpired." (Id. at 2.) Accordingly, the court finds that Cornelius's claim of gender/sex discrimination is barred and the defendant's motion to dismiss should be granted as to that claim. See Bryant, 288 F.3d at 132-33 (finding that claims of sex and color discrimination were not exhausted where a charge alleged only racial discrimination); Evans, 80 F.3d at 963 (dismissing age discrimination claim as outside the scope of plaintiff's administrative charge where original charge alleged only sex discrimination); see also Jones, 551 F.3d at 300-01 (finding that a plaintiff had failed to exhaust her claims for age, sex, and race discrimination where she had not checked those boxes on her EEOC charge).
To the extent that Cornelius's response may be construed as mentioning that she was discriminated on the basis of her race, although her initial Complaint was construed as raising such a claim, Cornelius's Amended Complaint raises only claims of gender discrimination and retaliation. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.") (internal quotation marks omitted); 6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 (3d ed. 2018).
2. Retaliation Claim
The defendant argues, and the court agrees, that Cornelius has failed to plead a plausible claim under Title VII for retaliation. Although a plaintiff need not plead a prima facie case to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), a claim under Title VII is subject to dismissal if it does not meet the pleading standard under Twombly and Iqbal. See Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017); McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 584-85 (4th Cir. 2015); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).
Title VII makes it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3(a). Claims of retaliation may be analyzed under the McDonnell Douglas burden-shifting framework. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000). The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Further, "Title VII retaliation claims must be proved according to traditional principles of but-for causation," which "requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
In this case, Cornelius fails to allege any facts tending to show that she engaged in protected activity prior to any alleged adverse action. "Protected activity" under the statute falls into one of two categories: opposition or participation. Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271 (2009); Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003) (stating that to establish that a plaintiff engaged in protected opposition activity, she must show that she opposed an unlawful employment practice which she reasonably believed had occurred or was occurring). To constitute protected activity, a plaintiff must have conveyed to the employer a reasonable belief that the actions complained of violated federal law. Jordan v. Alt. Res. Corp., 458 F.3d 332, 340-41 (4th Cir. 2006) (stating that "an employee seeking protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress") (citing Equal Emp't Comm'n v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)). Moreover, to prove a causal connection, a plaintiff asserting a retaliation claim must be able to show that his employer took the adverse action "because the plaintiff engaged in a protected activity." Holland, 487 F.3d at 218 (emphasis in original) (quoting Dowe v. Total Action Against Poverty in Roanoake Valley, 145 F.3d 653, 657 (4th Cir. 1998)). Thus, to plausibly allege a retaliation claim, a plaintiff must assert facts showing that the employer was aware of the protected activity. See Shield v. Fed. Express Corp., 120 F. App'x 956, 962 (4th Cir. 2005) (citing Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004)).
The defendant also argues that Cornelius has failed to sufficiently plead an adverse action. However, because the court finds that Cornelius has failed to allege that she engaged in a protected activity prior to any adverse action, the court need not reach this issue.
Here, Cornelius alleges that she made numerous complaints within the company concerning unfair treatment. However, not one of the alleged numerous complaints mentioned in the Amended Complaint suggests that she was being treated unfavorably on the basis of her race, sex, or other protected characteristic under Title VII. Thus, none of Cornelius's complaints prior to any alleged adverse action plausibly suggest that she conveyed to the defendant any reasonable belief that the actions complained of violated federal law. See Jordan, 458 F.3d at 340-41. Moreover, the court has carefully considered Cornelius's response in opposition to the motion to dismiss. Although Cornelius reiterates in her response that she complained repeatedly about her treatment and attaches voluminous email correspondence with various supervisors, she has failed to identify any facts suggesting these complaints informed the defendant that her treatment was based on a protected characteristic. Accordingly, the court finds that Cornelius is unable to further amend her Amended Complaint to cure this defect, and therefore, this claim should be dismissed with prejudice.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendant's motion to dismiss be granted and that Cornelius's claims be dismissed with prejudice, as the deficiencies cannot be cured. (ECF No. 51.) In light of this recommendation, the court further recommends that Cornelius's motion for summary judgment (ECF No. 44) be denied and that the remaining motions be terminated as moot (ECF Nos. 61, 62, 69, & 75).
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE August 1, 2018
Columbia, South Carolina
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).