Bittle v. Twiddy & Company of Duck, Inc.
ORDER granting 12 Partial Motion to Dismiss. Signed by US District Judge Terrence W. Boyle on 6/20/2017. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CYNTHIA L. BITTLE,
TWIDDY & COMPANY OF DUCK, INC., )
This cause comes before the Court on defendant's partial motion to dismiss pursuant to
Rules 12(b)(l) and (6) of the Federal Rules of Civil Procedure. Plaintiff has failed to respond to
the motion within the time allowed. For the following reasons, defendant's motion is granted.
Plaintiff was hired by defendant in October 2011 as a reservationist by defendant, a
company specializing in vacation rentals and property management on the Outer Banks ofNqrth
Carolina. Plaintiff was promoted to the position of Assistance Maintenance Manager in
February 2014. Plaintiff alleges that she made internal complaints by email to her supervisors
about the conduct of another manager, Chuck Lewis, and a supervisor, Otto Torres. Plaintiff
further alleges that female employees over the age of forty, including herself, were either not
promoted or were terminated for nonperformance-related reasons and replaced by younger
males. Finally, plaintiffs complaint alleges violations of the Family Medical Leave Act
(FMLA) after plaintiff suffered a heart attack in June 2015.
Plaintiffs amended complaint alleges claims for retaliation, sex discrimination, and age
discrimination based on plaintiffs termination from defendant's employment, defendant's failure
to promote plaintiff, and an alleged pattern or practice of discrimination by defendant under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Plaintiff also alleges a common
law claim of wrongful discharge under the North Carolina Equal Employment Practices Act
(NCEEPA), N.C. Gen. Stat. §§ 143-422.1 et seq., and a claim for violation of the FMLA. 29
U.S.C. § 2601(b)(2), et seq.
Defendant has moved to dismiss plaintiffs claims for age discrimination, failure to
promote, and pattern and practice of discrimination pursuant to Fed. R. Civ. P. 12(b)(l) for
failure to exhaust administrative remedies. Defendant has also moved to dismiss plaintiffs
claim of retaliation under Title VII of the Civil Rights Act of 1964 for failure to allege that
plaintiff engaged in a protected activity. Finally, defendant has moved to dismiss plaintiffs
North Carolina Equal Employment Practices Act claim as having been filed outside the statute of
The Court notes at the outset that plaintiff, who is represented by counsel, has failed to
respond to the motion to dismiss. "Rule 41(b) of the Federal Rules of Civil Procedure provides a
district court with the authority to dismiss an action [or claim] if the plaintiff fails to respond to a
motion to dismiss. It is recognized, however, that courts should not apply such an unforgiving
and relentless sanction simply because a motion to dismiss goes unopposed." Mitchell v. First
Cent. Bank, Inc., No. 2:08CV6, 2008 WL 4145517, at *2 (N.D.W. Va. Sept. 8, 2008) (internal
and other citations omitted). The Court will accordingly consider whether plaintiffs claims
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Rule 12(b)(l) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged, the
plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F Perkins Co.,
166 F.3d 642, 647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district
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).
Failure to Exhaust
Defendant argues that this Court lacks subject matter jurisdiction to consider plaintiffs
age discrimination, failure to promote, and pattern or practice of discrimination claims. The
ADEA and Title VII each require that an aggrieved employee must file a charge of
discrimination with the Equal Employment Opportunity Commission (EEOC), generally within
180 days after the alleged unlawful employment practice occurred. 29 U.S.C. § 626(d); 42
U.S.C. § 2000e-5(e)(l). A plaintiff may proceed to file an employment discrimination action in
the federal courts only after a charge has been filed with the EEOC. See, e.g., 42 U.S.C. §
2000e-5(f)(l). "Only those discrimination claims stated in the initial 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. Application & Svc.
Co., 80 F.3d 954, 963 (4th Cir. 1996). Failure to exhaust administrative remedies by filing an
EEOC charge serves to deprive the federal courts of subject matter jurisdiction over such claims.
Jones v. Calvert Group, Ltd, 551F.3d297, 300 (2009).
In her administrative charge filed with the EEOC, plaintiff indicated that she was
discriminated against based on retaliation and sex. [DE 12-1].1 When describing the particulars
of her complaint plaintiff stated that she believed she was subjected to a hostile work
environment because of her sex and that she was terminated in retaliation for opposing and
reporting discriminatory actions of male employees. Id The specific incidents to which plaintiff
refers are April 1, 2015, when she was verbally assaulted by Chuck Lewis, a male manager, and
August 12, 2015, the date plaintiff was terminated after she had complained to the owner of the
company about Otto Torres on August 8 and 10, 2015.
Plaintiff's EEOC charge does not contain any reference to her age nor is an age-related
claim reasonably related to the particulars of the charged discrimination. Plaintiffs ADEA claim
is therefore beyond the scope of her EEOC charge and the Court is without jurisdiction to
consider it. Nor is there mention in plaintiff's EEOC charge of or any reasonable relation to a
claim for failure to promote. Plaintiff did not claim that she sought any promotion or that she
was not promoted. The Court lacks jurisdiction over this claim as well. Finally, the EEOC
charge fails to make any mention of or reference to a pattern or practice of discrimination on
behalf of defendant. The Court is thus without subject matter jurisdiction to consider a pattern or
practice claim and it is appropriately dismissed.
The Court may consider plaintiff's EEOC charge attached to defendant's motion to dismiss
without converting the motion to one for summary judgment. See Fed. R. Civ. P. IO(c); Am.
Chiropractic Assoc. v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).
Failure to State a Claim
Defendant next argues that plaintiff has failed to state a claim upon which relief can be
granted for retaliation. Specifically, defendant contends that plaintiff has failed to allege that she
engaged in a protected activity. To establish a prima facie case of retaliation under Title VII, "a
plaintiff must prove three elements: (1) that she engaged in a protected activity; (2) that her
employer took an adverse employment action against her; and (3) that there was a causal link
between the two events." Balas v. Huntington Ingalls Indus., 711 F.3d 401, 410 (4th Cir. 2013)
(internal quotation marks omitted). 42 U.S.C. § 2000e-3(a) provides that "making charges,
testifying, assisting, or participating in enforcement proceedings" concerning allegedly
discriminatory practices are considered protected activities The Fourth Circuit has further held
that "an employee's complaint constitutes protected activity when the employer understood, or
should have understood, that the plaintiff was opposing discriminatory conduct." Burgess v.
Bowen, 466 Fed. App'x 272, 282 (4th Cir. 2012) (citing Richardson v. Richland Cnty. School
Dist. No. 1, 52 Fed. App'x. 615, 617 (4th Cir.2002)). Thus, while internal complaints may form
the basis of a Title VII retaliation claim, the employer must have been made aware that the
complaints were based on prohibited discrimination. Richardson, 52 Fed. App'x at 617 *2; see
also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 272 (4th Cir. 2015) (en bane).
Plaintiffs allegations concerning her internal complaints are comprised of emails
regarding the conduct of Lewis and Torres which she describes as harassing. Plaintiff describes
reporting threatening actions by Lewis and Torres, but she does not allege that any of Lewis' or
Torres' behaviors were based on prohibited discrimination. In other words, plaintiff alleges that
Lewis and Torres treated her inappropriately, but she has not alleged that they did so because, for
example, she is a woman. Plaintiff has failed to state a claim for retaliation under Title VII.
Statute of limitations
Finally, defendant argues that plaintiff has failed to state a claim for wrongful termination
in violation of North Carolina public policy as found in the North Carolina Equal Employment
Practices Act. The statute of limitations for a claim under this statute is one-year; plaintiff
alleges that her employment was terminated on August 12, 2015, and the instant action was
commenced on November 15, 2016, more than one year following plaintiff's termination. See
N.C. Gen. Stat. § 143-422.2; N.C. Gen. Stat. 1-54(12). Plaintiff has failed to state a public
policy claim and this claim is properly dismissed.
For the foregoing reasons, defendant's unopposed partial motion to dismiss [DE 12] is
SO ORDERED, this
dJ2. day of June, 2017.
TERRENCE W. BOYLE
UNITED STATES DISTRirnuDGE
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