Pennington v. Nash Community College

Filing 28

ORDER denying 11 Motion to Dismiss for Failure to State a Claim Partial. The clerk is DIRECTED to update defendant's name on the face of the docket as directed in footnote one in order. Signed by District Judge Louise Wood Flanagan on 11/26/2024. (Collins, S)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:24-CV-270-FL

THOMAS PENNINGTON,
Plaintiff,
v.
NASH COMMUNITY COLLEGE,1
Defendant.

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ORDER

This matter is before the court upon defendant’s partial motion to dismiss for failure to
state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (DE 11). The motion
has been briefed fully, and in this posture the issues raised are ripe for ruling. For the following
reasons, the motion is denied.
STATEMENT OF THE CASE
Plaintiff commenced this employment discrimination action May 14, 2024, relying on a
charge of discrimination filed with the Equal Opportunity and Employment Commission (the
“EEOC charge”) and its right to sue letter. His five claims arise under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and North Carolina common law. Plaintiff’s ADA claims

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Although the complaint names defendant as “Nash Community College,” defendant asserts in its answer and
memorandum in support of the instant motion that, pursuant to N.C. Gen. Stat. § 115D-14, the proper name under
which it must be sued is “The Trustees of Nash Community College,” (Ans. (DE 11) at 1 n.1; Mem. (DE 12) at 1 n.
1). Where plaintiff does not dispute this assertion, the clerk is DIRECTED to update the docket to reflect that
defendant’s name is “The Trustees of Nash Community College.”

include disability discrimination, failure to provide a reasonable accommodation, and retaliation.
Plaintiff seeks reimbursement, compensatory and punitive damages, and injunctive relief.
Defendant answered July 10, 2024, and filed the instant partial motion to dismiss the same
day, seeking dismissal of plaintiff’s third claim for relief, captioned “Violation of the ADA for
Retaliation.” After an extension of time, plaintiff responded, relying upon his EEOC charge, and
defendant replied. Discovery regarding plaintiff’s remaining claims is ongoing pursuant to the
court’s August 13, 2024, case management order.
STATEMENT OF FACTS
The facts alleged in the complaint are as follows. Plaintiff began working for defendant as
a part-time driving instructor for its Commercial Driver’s License (“CDL”) program in June 2022.
(EEOC Charge (DE 1-1) at 1).2 Plaintiff alleges he is disabled and disclosed his disability to
defendant upon hire “by informing them [he] needed to take two days off every six weeks.” Id.
Plaintiff has a condition known as Myasthenia Gravis, and this time off is necessary for plaintiff
to obtain an infusion. (Compl. ¶¶ 13-14).
In August 2022, plaintiff applied for two open positions with defendant: director and fulltime instructor. (Id. ¶¶ 17, 19). Plaintiff was not selected for either position and claims he was
qualified for both. (Id. ¶ 20). The positions allegedly were filled by non-disabled employees. (Id.
¶ 21).
In February 2023, plaintiff requested that he be allowed to train one student, rather than
two, at a time. (Id. ¶ 22). This “request for the accommodation came at the recommendation, and

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The court “may consider documents attached to the complaint . . . so long as they are integral to the complaint
and authentic.” Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007); see Fed.
R. Civ. P. 10(c). Under this standard, here the court considers the allegations in plaintiff’s EEOC charge attached to
the complaint. (See compl. ¶ 8). Page numbers in citations to documents and briefs in the record specify the page
number imposed by the court’s electronic filing system rather than the page number showing on the face of the
document, if any.

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with the support of, his medical provider.” (Id. ¶ 23). When defendant denied this request, plaintiff
complained of harassment and disability discrimination to Nash Community College Vice
President Wendy Marlowe (“Marlowe”) and Susan Barkalow (“Barkalow”) in human resources.
(Id. ¶¶ 26, 29, 30).
Plaintiff discussed his concerns and the status of his request for an accommodation in a
series of meetings with employees of defendant. (Id. ¶¶ 31-38). “Defendant did not schedule
[plaintiff] to work during the time his complaint and reasonable accommodation request were
reviewed, and he was not paid for his time off.” (Id. ¶ 35). During the last of these meetings, in
April 2023, defendant informed plaintiff of complaints against him made by students. (Id. ¶ 37).
Plaintiff disputed the validity of these complaints and “told [d]efendant that he would be reporting
[d]efendant’s disability and age discrimination to the [EEOC].” (Id. ¶¶ 37-38). “Thereafter
[d]efendant terminated [plaintiff’s] employment.” (Id. ¶ 39).
On June 8, 2023, plaintiff submitted his EEOC charge, claiming discrimination based on
age and disability. (DE 1-1 at 1). The EEOC issued to plaintiff a dismissal and notice of right to
sue February 16, 2024. (DE 1-2).
COURT’S DISCUSSION
A.

Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), “a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, the “court accepts all wellpled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

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consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further
factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
B.

Analysis
Defendant asserts that plaintiff’s retaliation claim is procedurally barred and therefore

subject to Rule 12(b)(6) dismissal because plaintiff failed to exhaust his administrative remedies
before instigating this suit. Specifically, defendant argues that plaintiff did not include his claim
of retaliation in his EEOC charge. The court first addresses the necessary elements of a claim of
retaliation under the ADA before discussing plaintiff’s exhaustion of administrative remedies.
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Elements of Retaliation

As an initial matter, to state a claim for retaliation, a plaintiff must allege either “direct
evidence of retaliatory animus,” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th
Cir. 2015), or that “1) he engaged in protected conduct; 2) he suffered an adverse action; and 3) a
causal link exists between the protected conduct and the adverse action.” Reynolds v. Am. Nat.
Red Cross, 701 F.3d 143, 154 (4th Cir. 2012).
“Protected activities . . . include both participation and opposition activities.” McIver v.
Bridgestone Americas, Inc., 42 F.4th 398, 411 (4th Cir. 2022). “[V]oicing one’s opinions in order
to bring attention to an employer’s discriminatory activities” is an example of a protected
opposition activity. Id.3 In the context of retaliation claims, an adverse action is an “employer
action[] that would have been materially adverse to a reasonable employee.” Burlington N. &

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Internal citations and quotation marks are omitted from citations unless otherwise specified.

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Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).4 That is to say, “the employer’s action[] must
be harmful to the point that [it] could well dissuade a reasonable worker from making or supporting
a charge of discrimination.” Id.
A plaintiff may “demonstrate that a protected activity caused an adverse action” inter alia
by establishing “that the adverse act bears sufficient temporal proximity to the protected activity.”
Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 123 (4th Cir. 2021); see, e.g., Foster v. Univ. of
Maryland-Eastern Shore, 787 F.3d 243, 253 (4th Cir. 2015) (determining that a one-month gap
between protected activity and termination “tend[ed] to show causation”); Pascual v. Lowe’s
Home Ctrs., Inc., 193 Fed. Appx. 229, 234 (4th Cir. 2006) (holding allegations of causation by
temporal proximity insufficient where “at least three to four months separated the termination of
[plaintiff’s] employment and the claimed protected activities”).
Here, plaintiff alleges that he “reported harassment and disability discrimination,” (Compl.
¶ 29), and “told Defendant that he would be reporting [d]efendant’s disability and age
discrimination to the [EEOC],” (Id. ¶ 38). Voicing his belief that disability discrimination
occurred and his intention to complain to the EEOC is a protected activity. See McIver, 42 F.4th
at 411. Allegedly “[t]hereafter, [d]efendant terminated [plaintiff’s] employment.” (Compl. ¶ 39).
Termination is an adverse action because it “could well dissuade a reasonable worker from making
or supporting a charge of discrimination.” Burlington N., 548 U.S. at 57.
Plaintiff has also alleged “sufficient temporal proximity” between his protected activity
and the adverse action. Roberts, 998 F.3d at 123. Construing all allegations in favor of the
plaintiff, it is reasonable to infer that plaintiff was terminated during the same April meeting in

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Burlington Northern dealt with Title VII, rather than ADA, retaliation claims. However, courts “treat the
Title VII context as being analogous to the ADA for this purpose.” Israelitt v. Enter. Servs. LLC., 78 F.4th 647, 655
n.8 (4th Cir. 2023).

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which he voiced his intention to file a claim with the EEOC. (See Compl. ¶¶ 37-39). This near
immediate time gap is less than the one-month gap that was sufficient to show causation in Foster,
787 F.3d at 253. Thus, because of the alleged timing of these events, plaintiff states facts
permitting an inference that a “causal relationship exist[s] between the protected activity and the
adverse employment” action. Id.
In sum, plaintiff has alleged that he engaged in protected activity, that he suffered an
adverse action, and that a causal link existed between the two, satisfying the requirements to state
a claim for retaliation. See Reynolds, 701 F.3d at 154. Defendant argues nonetheless that
plaintiff’s retaliation claim is foreclosed by his failure to exhaust administrative remedies. The
court addresses this argument below.
2.

Exhaustion of Administrative Remedies

An individual asserting a violation of the ADA “must exhaust his administrative remedies
by filing a charge with the EEOC before pursuing a suit in federal court.” Sydnor v. Fairfax Cnty.,
681 F.3d 591, 593 (4th Cir. 2012). This requirement “ensures that the employer is put on notice
of the alleged violations,” Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005), and provides the
employer with “a chance to address the alleged discrimination prior to litigation,” Sydnor, 681
F.3d at 59. Failure to exhaust administrative remedies is a procedural issue properly addressed
with a Rule 12(b)(6) motion to dismiss. See Fort Bend Cnty. v. Davis, 587 U.S. 541, 551 (2019)
(holding that the charge-filing requirement is procedural, rather than jurisdictional).
Although “[t]he EEOC charge defines the scope of the plaintiff’s right to institute a civil
suit,” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002), the “administrative charge
of discrimination does not strictly limit a . . . suit which may follow; rather, the scope of the civil
action is confined only by the scope of the administrative investigation that can reasonably be

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expected to follow the charge of discrimination,” Chisholm v. U.S. Postal Serv., 665 F.2d 482,
491 (4th Cir. 1981). Additionally, “[a]s the [United States] Supreme Court has made clear,
‘documents filed by an employee with the EEOC should be construed, to the extent consistent with
permissible rules of interpretation, to protect the employee’s rights and statutory remedies.’”
Sydnor, 681 F.3d at 594 (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)).
Here, plaintiff has exhausted his remedies with respect to his ADA retaliation claim.
Plaintiff’s EEOC charge states that after discussing his request for an accommodation, plaintiff
“told Wendy Marlow [sic] [he] was going to file a complaint with the EEOC as [he] felt there was
discrimination against [him] because of [his] age and disability.” (EEOC Charge at 2). The next
sentence states “[a]t that point [plaintiff] was taken off the list of available training instructors and
removed from the email contact list.” (Id.). Plaintiff then “assumed without official notification
that [he] was no longer employed” by defendant. (Id.).
Plaintiff’s allegations in his complaint tell the same story. Plaintiff “told [d]efendant that
he would be reporting [d]efendant’s disability and age discrimination to the [EEOC]. Thereafter,
[d]efendant terminated [plaintiff’s] employment.” (Compl. ¶¶ 38-39). The similarity of these
narratives indicate that defendant was on notice of plaintiff’s concern regarding the retaliatory
nature of his termination. See Sydnor, 681 F.3d at 595 (“When taken together, the similarities
between [the employee’s] administrative and judicial narratives make clear that the [employer]
was afforded ample notice of the allegations against it.”). “[T]he administrative investigation that
can reasonably be expected to follow the charge of discrimination” in this case, thus, would involve
examining the temporal proximity of these events and determining the rationale for plaintiff’s
termination. Chisholm, 665 F.2d at 491.

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Defendant argues that the EEOC charge is insufficient to support plaintiff’s retaliation
claim because it does not include the word “retaliation.” (Def.’s Mem. Supp. (DE 12) at 4-5).
However, where “the factual allegations in the administrative charge are reasonably related to the
factual allegations in the formal litigation, the connection between the charge and the claim is
sufficient,” regardless of the precise wording of each. Chacko v. Patuxent Inst., 429 F.3d 505, 509
(4th Cir. 2005). “[A] plaintiff fails to exhaust his administrative remedies where his administrative
charge[] reference[s] different time frames, actors, and discriminatory conduct than the central
factual allegations in his formal suit.” Sydnor, 681 F3d at 593. Although it does not include the
word “retaliation,” plaintiff’s EEOC charge references the same “time frames, actors, and
discriminatory conduct” as his complaint. Id.
Mindful of the directive that “the exhaustion requirement should not become a tripwire for
hapless plaintiffs,” id. at 594, the court declines to dismiss plaintiff’s retaliation claim based solely
on his failure to include the word “retaliation” in his EEOC charge. Thus, plaintiff exhausted his
administrative remedies and has stated a claim for retaliation.
CONCLUSION
Based on the foregoing, defendant’s partial motion to dismiss (DE 11) is DENIED. The
clerk is DIRECTED to update defendant’s name on the face of the docket as directed in footnote
one in order.
SO ORDERED, this the 26th day of November, 2024.

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LOUISE W. FLANAGAN
United States District Judge

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