Opinion
4:22-CV-65-M
05-10-2023
CRYSTAL PERRY, Plaintiff, v. US DEPARTMENT OF VETERANS AFFAIRS and DENIS R. MCDONOUGH, Secretary, Defendants.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion to dismiss of Denis R. McDonough, Secretary of the U.S. Department of Veterans Affairs (the “Secretary” and the “VA”), pursuant to Fed.R.Civ.P. 12(b)(6). [DE-11]. Plaintiff, Crystal Perry, did not respond to the motion and the time to do so has expired. The motion is referred to the undersigned for a memorandum and recommendation to the district court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1)a., E.D. N.C. For the reasons that follow, it is recommended that the motion be allowed and the case be dismissed.
I. Background
Plaintiff formerly worked as an Advanced Medical Support Assistant at the VA's Medical Center in Durham, North Carolina. [DE-1-1] at 1. Prior to working at the VA, Perry had twenty years of service with the United States Postal Service. [DE-1] at 7. After Perry separated from her employment with the VA, she sought reemployment by applying for an Advanced Medical Support Assistant position but was not hired. [DE-1 -1 ] at 2. Perry filed a complaint with the Equal Employment Opportunity Office (“EEO”) and appealed the EEO's dismissal of her claims to the Equal Employment Opportunity Commission (“EEOC”). Id. at 1-5. The EEOC issued a partially favorable decision but affirmed dismissal of the majority of her claims, id., and denied reconsideration of its decision on March 14, 2022, [DE-1-2].
On June 22, 2022, Perry, proceeding pro se, filed a complaint alleging employment discrimination against the Secretary and the VA under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (the “ADEA”), the Americans with Disabilities Act of 1990 (the “ADA”), and Lilly Ledbetter Fair Pay Act of 2009 (the “Ledbetter Act”), as well as violation of her right to amend her EEOC complaint under 29 U.S.C. § 1614.106. [DE-1], Perry used a form complaint and indicated the discriminatory conduct included failure to hire, failure to promote, retaliation, and failure to observe agency policy on harassment and reemployment, all on the basis of her age. Id. at 4. Perry indicated she received a Notice of Right to Sue letter from the EEOC on March 19, 2022, and also included a separate Statement of Claims and Complaint, the EEOC's initial decision, and the EEOC's final decision. Id.; [DE-1-1, -1-2], The Secretary filed a motion to dismiss, [DE-11], and the court issued a Rule 12 letter to Perry, notifying her of the obligation to respond to the motion within twenty-one days and the risk that her case may be dismissed should she fail to respond, [DE-13]. Perry did not respond to the motion to dismiss.
II. Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs allegations must “nudge[ ] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility,” Iqbal, 556 U.S. at 678-79.
Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits, and the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. Discussion
The Secretary contends that Perry's claims must be dismissed for two reasons: first, because she did not timely exhaust her administrative remedies or timely file her lawsuit in federal court; and second, because she failed to state a facially plausible claim. Def.'s Mem. [DE-12] at 4-10. The undersigned finds, as explained below, that Perry did not file her complaint in this court within the ninety-day mandatory filing period and there are no grounds for equitable tolling. Accordingly, because her case must be dismissed as untimely filed, the court need not consider the alternative grounds for dismissal of Perry's claims as failing to state a plausible claim.
The proper defendant when claims are asserted under Title VII, the ADEA, and the ADA is the Secretary of the agency. See Quashie v. Dep't of Veterans Affs. Durham VA Hosp. Ctr., No. 5:20-CV-423-FL, 2021 WL 2272486, at *3 (E.D. N.C. June 3, 2021) (“[T]he Secretary of Veterans Affairs is .. . the proper defendant for plaintiffs Title VII claim.”); Okebata v. Dep't of Def, No. 3:22CV50 (DJN), 2022 WL 3754201, at *3 (E.D. Va. July 29, 2022) (“[t]he only proper defendant to a federal-sector employment discrimination action under Title VII, the Rehabilitation Act, or the ADEA is the head of the department, agency, or unit.”) (quoting Kim v. Potter, 2010 WL 2253656, at *3 (D. Md. June 2, 2020)). Accordingly, if any of Perry's claims survive, the VA should be dismissed as a defendant.
As an initial matter, although Perry asserts claims under Title VII, the ADEA, the ADA, and the Ledbetter Act, her only potentially cognizable claim is under the ADEA because the only discriminatory basis asserted for her claims is her age. As the Fourth Circuit has explained,
Title VII does not prohibit retaliation for complaining about age discrimination. Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin - not age - and prohibits retaliation against anyone who opposes those practices or makes a charge of discrimination in violation of Title VIL See 42 U.S.C. §§ 2000e-2, 2000e-3. Discrimination based on age, and retaliation for objecting to such discrimination, are governed instead by the ADEA. See 29 U.S.C. § 623. And as the district court explained, those two separate statutes and anti-retaliation provisions “do not cross-pollinate.” Faulconer, 2018 WL 2187447, at *1; see Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (“Title VII and ADEA claims arise from completely distinct statutory schemes.”). As a result, it is well-established that a Title VII retaliation claim may not be “based on an employer's adverse response to [ ] ADEA-protected conduct.” Faulconer, 2018 WL 2187447, at *3 (citing cases); see, e.g, Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999); Bornholdt v. Brady, 869 F.2d 57, 62 (2d Cir. 1989).Faulconer v. Centra Health, Inc., 808 Fed.Appx. 148, 153 (4th Cir. 2020); see also Roper v. Perdue Farms, No. CV419-230, 2022 WL 1215652, at *2 (S.D. Ga. Apr. 25, 2022) (“The ADA prohibits discrimination by employers ‘on the basis of disability,' 42 U.S.C. § 12112(a), while the ADEA prohibits an employer from taking adverse action against an employee ‘because of such individual's age,' 29 U.S.C. § 623(a).”). Accordingly, Title VII and the ADA do not apply to Perry's age discrimination claims, and considered below is whether Perry timely exhausted her administrative remedies and timely filed her complaint in this court with respect to her ADEA claims.
The undersigned notes that the Ledbetter Act does not create a substantive cause of action but rather 29 U.S.C. § 626(d)(3) of the ADEA, related to the timing of when an “unlawful practice occurs” with respect to discriminatory compensation, was created as part of the Ledbetter Act. See Kennedy v. McDonald, No. CV 3.15-1844-MBS-K.DW, 2016 WL 11545907, at *12 n.12 (D.S.C. Dec. 28, 2016), report and recommendation adopted in part, No. CV 3:15-1844-MBS-KDW, 2017 WL 1162978 (D.S.C. Mar. 29, 2017). Accordingly, the Ledbetter Act provides no relief to Perry where it is dependent upon her untimely ADEA claim.
A claim for age discrimination may be brought by (1) first pursuing administrative remedies and then, if dissatisfied with the administrative result, filing a civil action in federal court, or (2) forgoing the administrative process and filing a civil action in federal court at the outset. Song v. Becerra, No. 20-1554, 2021 WL 3732961, at *2 (4th Cir. Aug. 24, 2021) (citing Stevens V. Dep't of Treasury, 500 U.S. 1, 5-6 (1991)), cert, denied, 212 L.Ed.2d 236, 142 S.Ct. 1231 (2022). Where a complainant chooses the first path, she “must ‘initiate contact' with an EEO counselor ‘within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.'” Id. (quoting 29 C.F.R. § 1614.105(a)(1) (2021)). A civil action must be filed within ninety days of receiving a right-to-sue letter from the EEOC. See Quinn v. Copart of Conn., Inc., 791 Fed.Appx. 393, 395 (4th Cir. 2019) (citing 29 U.S.C. § 626(e) (providing 90-day period for filing ADEA claims)).
Perry pursued her administrative remedies prior to filing a civil action in this court. See EEOC Decision [DE-1 -1 ] (recounting the administrative complaint process through which Perry's claims proceeded). The EEOC issued a Decision on Request for Reconsideration on March 14, 2022. [DE-1-2], The decision stated that it was final, there was no further right of administrative appeal, and Perry had a right to file a civil action in an appropriate federal district court within ninety days from the date she received the decision. Id. at 2-3. Perry's complaint states that she received the decision on March 19, 2022. Compl. [DE-1] at 5. Perry filed her complaint on June 22, 2022, ninety-five days after she received notice of her right to sue.
In Fort Bend County v. Davis, the Supreme Court held that while Title VII's administrative exhaustion requirement is not a jurisdictional issue and thus may be waived, it is mandatory and can serve as grounds for dismissal when timely raised by a defendant. 139 S.Ct. 1843, 1850-52 (2019). Courts in the Fourth Circuit have applied Davis to the ADEA. See Yang v. Lai, No. 1:22-CV-5, 2022 WL 2440834, at *3 (M.D. N.C. July 5, 2022) (collecting cases). Because Perry did not file a civil action within ninety days from the date she received notice of her right to sue, her claims are time-barred. See Brown v. Sears Holding Mgmt. Corp., No. 4:14-CV-33-D, 2015 WL 8207454, at *2 (E.D. N.C. Dec. 7, 2015) (dismissing as time-barred ADEA claim filed more than ninety days after receipt of right-to-sue notice); Bannister v. Wal-Mart Stores E., L.P., 843 F.Supp.2d 610, 617 (E.D. N.C. 2012) (same). Perry did not respond in opposition to the Secretary's motion to dismiss her claims as time-barred, and the court finds nothing in the record that would merit equitable tolling. See Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987) (finding no facts to support equitable tolling where the plaintiff knew of the right-to-sue letter within six days of its arrival, he had eighty-four days to file his complaint, and he made no showing that there was insufficient time to act). Accordingly, it is recommended that this case be dismissed as untimely filed.
IV. Conclusion
For the reasons stated above, it is recommended that the motion to dismiss be allowed and the case be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Wednesday, May 24, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).