Whitley v. DVA Healthcare Renal Inc. et al

Filing 24

ORDER granting 11 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim and denying as moot 21 Motion to allow audio evidence. Signed by District Judge Terrence W. Boyle on 3/26/2024. Copy sent via US Mail to Yvette M. Whitley at 4524 Colscott Place, Garner, NC 27529. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:23-CV-00084-BO

YVETTE M. WHITLEY

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Plaintiff,
V.

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DY A HEALTHCARE RENAL INC.; and
ADELE M. CURTIS,

Defendants.

ORDER

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This is an employment discrimination and retaliation case. Before the Court is defendants
OVA Renal Healthcare Inc. and Adele M . Curti s' s motion to dismiss . [DE 11]. Also before the
Court is plaintiff's motion to allow audio evidence in support of her claims. [DE 21]. For the
following reasons, defendants ' motion is granted, plaintiff's complaint is dismissed in its entirety,
and plaintiff's motion to allow audio evidence is denied as moot.
I.
BACKGROUND
The Court derives the following statement of facts from plaintiff Yvette M . Whitley' s
complaint and the EEOC record it incorporates. 1 Whitley started working for DY A in 2017. On
23 January 2021 , Whitley filed an EEOC charge (" -00823 charge") claiming discrimination based

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When evaluating a motion to dismiss, a court considers the pleading any materials attached or incorporated
by reference. See E. I. du Pont de Nemours & Co. v. Ko/on Indus., 673 F.3d 435 , 448 (4th Cir. 2011 ). Courts
may consider an "attachment to a complaint or the motion to dismiss if integral to the complaint and
authentic." Leichling v. Honeywell Int'!, Inc., 842 F.3d 848, 851 (4th Cir. 2018). In Title VII cases, the
EEOC charge and notice of right to sue are integral because they are fundamental to threshold issues of
timelines and administrative exhaustion. Derrick v. Brightkey, Inc., No. JKB-21-0995, 2021 U.S. Dist.
LEXIS 137956, at *10- 11 (D. Md. Jul. 22, 2021) (unpublished).

on race and retaliation. That charge is not before the Court, but it serves as the premise for
Whitley ' s retaliation claims that are.
After filing the -00823 charge on 23 January 2021 , Whitley claims she was treated
differently than coworkers who had not filed an EEOC charge: Whitley believes that DV A
management and nurses told new hires not to interact with her; that her work was overly
scrutinized; and that management "focused" on her. According to Whitley, her supervisor, Adele
Curtis, targeted her over a six-month period. Curtis would take Whitley from her duties to
" interrogate, harass, chastise, and defame" her. [DE 1-1]. Worse, Curtis would follow her in the
clinic, even to the ladies ' room and outside after work hours. Whitley claims that she was
repeatedly humiliated in front of coworkers, patients, and other supervisors. Behind closed doors,
she was called racially inappropriate names.
On 28 June 2021 , DY A e-mailed Whitley a severance package. The next day, Whitley went
to work for her scheduled shift, where she was told that she was " being discharged for making a
chemical incorrectly." Whitley, however, " believe[s] this is pretext for illegal retaliation." [DE 121]. On 25 October 2021, Whitley filed an EEOC charge ("-02186 charge") alleging the same. On
20 September 2022, the EEOC determined that it would not investigate the -02186 charge; that
day it issued a notice of right to sue letter. [DE 1-1]. In her complaint, Whitley represents that she
received this letter on 30 September 2022.
On 18 January 2023 , Whitley filed an action in Wake County Di strict Court. [DE 1-1].
Whitley alleges defendants violated Title Vll of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e2000e-17, when DY A wrongfully terminated her employment in retaliation for her earlier charge,
harassed her, and defamed her. Whitley claims her discharge was not only retaliation for filing an
EEOC charge but also discrimination because of her race. [DE 1-1 at 2 -3]. On 17 February 2023 ,

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defendant removed the action to this Court. [DE I]. Soon after, defendants moved to dismiss
Whitley' s com pl aint, arguing, among other things, that Wh itley fai led to timely file her claims in
federal court. [DE 11]. That motion has been fully briefed and is ripe for decision.
II.
DISCUSSION
Because Whitley is proceeding pro se, the Court construes her filings liberall y and holds
them to a less stringent standard than it wou ld forma l pleadings drafted by lawyers. See, e.g. ,

Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2 197, 167 L.Ed.2d 1081 (2007). Still, a pro plaintiff
must satisfy the obligation to state a plausible claim under the pleading standards. And it is not the
Court' s role to construct legal arguments for the plaintiff. Small v. Endicott, 998 F .2d 411, 41718 (7th Cir. 1993)
A Ru le 12(b)(6) motion to dismiss foc uses on the pleading requirements under the Federal
Rules . "Rule 8(a)(2) requires on ly a short and plain statement of the claim showing the pleader is
entitled to re lief, in order to give the defendant fa ir notice of what the claim is and the grounds
upon which it rests." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 , 127 S.Ct. 1955 , 167 L.Ed .2d
929 (2007) (cleaned up) (i nternal quotation marks and citations omitted). The complaint must
show an entitlement to relief through more than labels, conclusions, and formu laic recitations of
the elements of a cause of action . See, e.g. , Barrett v. Pae Gov 't Servs. , Inc., 975 F.3d 416, 434
(4th Cir. 2020). The " [f]actual allegations must be enough to raise a right to relief about the
specu lative level. " Twombly, 550 U.S. at 555, 127 S.Ct. 1955. That is, " [the] complaint must
contain sufficient factual matter, accepted as true, to ' state a claim to re li ef that is plausible on its
face .' "A shcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting

Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

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Because a Rule 12(6 )(6) motion tests only the suffic iency of the complaint; " it does not ...
' resolve contest surrounding the facts , the merits of a clai m, or the app licability of defenses. '"

King v. Rubenstein, 825 F.3d 206, 2 14 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178
F.3d 23 1, 243 (4th Cir. 1999)). "So the district court must accept as true all well-pleaded
allegations and draw all reasonab le factual inferences in plaintiffs favor. " Mays v. Sprinkle, 992
F.3d 295,299 (4th Cir. 202 1).
Defendants argue, among other things, that Whitley's claims are barred by Title VII ' s
statute of limitations. Title VII mandates that an aggrieved employee file the ir civil action within
90 days of rece iving their right-to-sue letter from the EEOC . 42 U.S.C. § 2000e-5(f)(l); see also

Kramer v. Bd. of Educ. of Bait. Cnty., 788 F.Supp.2d 421 , 424 (D. Md. 20 11) ("It is well settled
that a person allegi ng claim s under Title VII must file a lawsuit within 90 days of receipt of the
notice of right to sue.").
"This ninety-day time period has been stri ctly construed and, absent waiver, estoppel, or
equitab le toll ing, a lawsuit filed in excess of the ninety-day period wi ll be dismissed. " Moyer v.

Shirley Contr. Co., LLC, No . l :2 l-cv-00046, 2021 U.S. Dist. LEXIS 156388, at * 8-9 (E.D. Va.
Aug. 18, 202 1) (unpublished) (citing Lewis v. Norfolk S. Corp. , 27 1 F.S upp.2d 808, 811 (E.D. Va.
2003). This Court and others in the Fourth Circuit enforce this rule assid uously. See, e.g. , Weaver

v. Walgreen Co., No . 5:23-CV-00063 , 2023 U.S. Dist. LEXIS 110777, at *3-4 (E.D.N.C . Jun. 26,
2023) (unpublished); Stevens v. Elior Inc. , No . 3:22-cv-00576, 2023 U.S. Dist. LEXIS 70522 , at
*6-7 (W.D .N.C. Apr. 24, 2023) (unpubli shed) (dismissing action filed outside window); Plummer

v. MGM Nat '/ Harbor, LLC, No. DKC 23-592, 2024 U.S. Dist. LEXIS 46825 , at *6-9 (D . Md .
Mar. 18, 2024) (unpubli shed) (same).

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The EEOC issued Whitley's notice to sue on 20 September 2023 . In her complaint, Whitley
represents that she received that notice on 30 September 2023. Whitley filed her Title VII
retaliation claims in Wake County on 18 January 2023, 110 days after Whitley received the notice
and 120 days after the EEOC issued the notice. Standing alone these dates show that her claims
are time barred. In response, Whitley argues only that she "did not see the e-mail until over a
month after it had been sent due to never receiving notice by mail nor did [she] receive a call from
the person/persons working on my case." [DE 20 at 4).
That Whitley claims to have not opened the EEOC's e-mai l until long after it was issued
is of no moment. The Fourth Circuit has long held that delivery of a right-to-sue letter triggers the
limitations period even if the plaintiff doesn ' t actually receive the notice at that date. See Watts-

Means v. Prince George 's Fam. Crisis Ctr., 7.3d 40, 42 (4th Cir. 1993); Harvey v. New Bern Police
Dep 't, 813 F .2d 652, 654 (4th Cir. 1987). E-mai Is are not excepted , see Stewart v. Johnson , 125
F.Supp.3d 554, 559-61 (M.D.N.C.2015), nor is fai ling to read those e-mai ls an excuse, see Wolfe

v. WPS Health Sols. , Inc. , No. 4:20-CV-175 , 2021 U.S. Dist. LEXIS 95670, at *6--9 (E.D . Va.
Apr. 7, 2021) (unpub lished). Furthermore, even where the date of actual notice of the right to sue
is disputed or unknown, courts in this Circuit apply the three-day mailbox rule and presume notice
three days after mailing. See Wright v. Hertford Cnty. Ed. of Educ., No. 2:23-CV-30, 2024 U.S.
Dist. LEXIS 39111 , at *6 n. l (E.D.N .C. Jan. 8, 2024) (unpublished) (commenting that "courts still
apply the three-day mailbox to the 90 day EEOC filing period" despite a change in that Rule);

Moyer, 2021 U.S. Dist. LEXIS 156388 at *9-10; Plummer, 2024 U.S. Dist. LEXIS 46825 , at *8.
But recourse to the mailbox rule isn ' t necessary . Again, Whitley admits that she received
the right-to-sue letter on 30 September 2023 , placing her so lidl y outside§ 2000e-5(f)(l)'s 90 day
window. Accordingly, the Court grants defendants ' motion to dismiss.

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III.
CONCLUSION
For all these reasons, defendants ' motion to dismiss [DE 11] is GRANTED . Plaintiffs
complaint is DISMISSED in its entirety as untimely. Plaintiffs motion to allow aud io evidence
[DE 21 ] is DENIED as moot. The Clerk is DIRECTED to close this case.

SO ORDERED, this tJ-6day of March 2024.

TZ:~d¢
UNITED STATES DISTRICT JUDGE

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