Felicia Underdue v. Wells Fargo Bank, N.A.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cv-00183-RJC. Copies to all parties and the district court/agency. [999565748]. Mailed to: Felicia Underdue. [14-2253]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2253

FELICIA A. UNDERDUE,
Plaintiff - Appellant,
v.
WELLS FARGO BANK, N.A.; ILA N. PATEL; KENDRA BROWN; SUSAN
LYBRAND,
Defendants - Appellees.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:14-cv-00183-RJC)

Submitted:

March 30, 2015

Decided:

April 16, 2015

Before WILKINSON, NIEMEYER, and HARRIS, Circuit Judges.

Affirmed in part and affirmed as modified in part by unpublished
per curiam opinion.

Felicia A. Underdue, Appellant Pro Se.
Shalanna Lee Pirtle,
Keith Michael Weddington, PARKER, POE, ADAMS & BERNSTEIN, LLP,
Charlotte, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Felicia
dismissing

Ann

her

Underdue
complaint

appeals
against

the

district

court’s

order

her

former

employer,

Wells

Fargo Bank, N.A., and three of her supervisors. 1

“Because the

district court dismissed [Underdue’s] claims under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim, we
review legal issues de novo and treat the facts alleged in the
complaint as true.”

Nemphos v. Nestle Waters N. Am., Inc., 775

F.3d 616, 617 (4th Cir. 2015).
Initially, we conclude that the district court correctly
dismissed the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101-12213 (2012), claims against Underdue’s supervisors and
the North Carolina tort claims in their entirety.

Accordingly,

we affirm the portions of the district court’s order dismissing

1

Although Underdue indicates in her informal brief that she
is also seeking to appeal the district court’s order denying her
Federal Rule of Civil Procedure 59(e) motion, the informal brief
may not serve as a notice of appeal because it was not filed
within 30 days of the district court’s entry of the order
denying the motion.
See Fed. R. App. P. 4(a)(1)(A) (providing
30-day appeal period); Smith v. Barry, 502 U.S. 244, 248-49
(1992) (holding that appellate brief may serve as notice of
appeal provided it otherwise complies with rules governing
proper timing and substance).
Because Underdue did not file a
separate notice of appeal of the order denying her Rule 59(e)
motion, we lack jurisdiction to review that order. See Fed. R.
App. P. 4(a)(4)(B)(ii).

2

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those claims. 2

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Underdue v. Wells Fargo Bank, N.A., No. 3:14-cv-

00183-RJC (W.D.N.C. Aug. 13, 2014).
We conclude, however, that the district court’s assessment
of the merits of Underdue’s ADA claims against Wells Fargo was
premature.

Underdue’s complaint suffers from a more fundamental

defect than failure to state a claim: it fails to establish the
district court’s subject matter jurisdiction.

See Fed. R. Civ.

P. 12(b)(1); Piney Run Pres. Ass’n v. Cnty. Comm’rs, 523 F.3d
453, 459 (4th Cir. 2008) (holding that it is plaintiff’s burden
to establish court’s subject matter jurisdiction).

“[A] failure

by the plaintiff to exhaust administrative remedies concerning a
.

.

.

claim

deprives

the

federal

jurisdiction over the claim.”

courts

of

subject

matter

Jones v. Calvert Grp., Ltd., 551

F.3d 297, 300 (4th Cir. 2009).

Thus, the district court only

has jurisdiction over “those discrimination claims stated in the
charge [filed with the Equal Employment Opportunity Commission
(“EEOC”)], those reasonably related to the original [charge],
and those developed by reasonable investigation of the original
[charge].”

Id. (internal quotation marks omitted).

2

Underdue does not dispute on appeal the district court’s
dismissal of her claims under the North Carolina Equal
Employment Practices Act, N.C. Gen. Stat. § 143-422.2 (2014),
and has therefore forfeited appellate review of those claims.
See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177
(4th Cir. 2014) (“[O]ur review is limited to issues preserved in
[the informal] brief.”).

3

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Underdue did not provide any information as to the contents
of the complaints she filed with the EEOC, so that the district
court could assure that it had subject matter jurisdiction to
assess the merits of Underdue’s allegations. 3

Accordingly, we

affirm the dismissal of the ADA claims against Wells Fargo on
the alternative ground that Underdue failed to establish the
district court’s subject matter jurisdiction.

See Ellis v. La.-

Pac. Corp., 699 F.3d 778, 786 (4th Cir. 2012) (“This court is
entitled to affirm the [district] court's judgment on alternate
grounds,

if

(internal

quotation

modified
without

to

such

grounds

reflect

prejudice.

marks
that
See

are

apparent

omitted)).
the
S.

However,

dismissal
Walk

at

from

of

the

record.”

we

affirm

as

those

claims

is

Broadlands

Homeowner’s

Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th
Cir. 2013) (“A dismissal for . . . [a] defect in subject matter
jurisdiction[] must be one without prejudice, because a court

3

The district court construed Underdue’s ADA claims against
Wells Fargo too narrowly. The complaint did not raise a failure
to accommodate claim.
Rather, liberally construing the
complaint,
Underdue
alleged
that
the
supervisors:
(1) discriminated
against
her
when
they
discovered
her
disability by denying her training opportunities that could have
resulted in her promotion within the company; (2) created a
hostile work environment that forced disabled employees to
resign; and (3) retaliated against her for reporting issues to
members of upper management or Human Resources. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (instructing courts to construe
pro se documents liberally).

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that lacks jurisdiction has no power to adjudicate and dispose
of a claim on the merits.”).
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED IN PART AND
AFFIRMED AS MODIFIED IN PART

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