ALEXANDER et al v. GREENSBORO, CITY OF

Filing 39

MEMORANDUM OPINION AND ORDER that Defendant The City of Greensboro'smotion for judgment on the pleadings pursuant to Federal Rule ofCivil Procedure 12(c) (Doc. 29 ) is DENIED. Signed by JUDGE THOMAS D. SCHROEDER on 7/13/2011. (Lapira, Sharon)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LAWRENCE ALEXANDER JR., ELLIS
ALLEN, MITCHELL ALSTON, FRANCES R.
BANKS, AHMED BLAKE, MICHAEL O.
BRODIE, KEVIN E. CHANDLER,
CHARLES E. CHERRY, ERNEST
CUTHBERTSON, DARRIN DAVIS,
STEVEN A. EVANS, WILLIAM GRAVES,
MILFORD J. HARRIS II, JONATHAN
HEARD, ANTUAN HINSON, STEPHEN L.
HUNTER, BRIAN JAMES, DEMETRIUS
W. JOHNSON, JOHN O. LEGRANDE,
GEORGE M. LITTLE, DARRELL
MCDONALD, C.L. MELVIN, STACY A.
MORTON JR., WILLIE PARKER, LARRY
PATTERSON JR., WILLIAM A. PHIFER,
JOSEPH PRYOR, NORMAN RANKIN,
WAYNE REDFERN, ALEXANDER RICKETTS,
RONALD ROGERS, STEVEN SNIPES,
CALVIN STEVENS JR., ERIC
STEVENSON, JERMEIR JACKSON-STROUD,
JULIUS TUNSTALL, ALLEN WALLACE,
FRANK YOUNG and MICHAEL WAYLAND
WALL,
Plaintiffs,
v.
THE CITY OF GREENSBORO,
Defendant.

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1:09-CV-934

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before
pleadings

of

the

court

Defendant

is
The

the
City

motion
of

for

judgment

Greensboro

pursuant to Federal Rule of Civil Procedure 12(c).

(“the

on

the

City”)

(Doc. 29.)

Plaintiffs oppose this motion.

(Doc. 37.)

For the reasons set

forth below, the motion will be denied.
I.

BACKGROUND
Plaintiffs are all African-American/black police officers

employed by the City through the Greensboro Police Department
(“GPD”) when David Wray (“Wray”) was promoted to Chief of Police
and Gilmer Brady (“Brady”) to Deputy Chief.

Both Wray and Brady

are white.
Plaintiffs

commenced

this

action

on

December

7,

2009,

bringing claims against the City for discrimination on the basis
of race in violation of Title VII of the Civil Rights Act of
1964 (as amended), 42 U.S.C. § 2000e et seq. (“Title VII”),
based upon alleged discriminatory actions taken or directed by
Wray,

Brady,

and

other

nonblack

GPD

officers.1

(Doc.

Plaintiffs filed an Amended Complaint on March 15, 2010.
4.)

1.)

(Doc.

This court‟s January 4, 2011 Memorandum Opinion and Order

contains a detailed summary of the Amended Complaint‟s factual
allegations, which will not be repeated here.

See Alexander v.

City of Greensboro, No. 1:09-CV-934, 2011 WL 13857, at *1-*3
(M.D.N.C. Jan. 4, 2011).
1

In a companion action removed to this court on April 17, 2009,
Plaintiffs brought claims against the City, Wray, Brady, GPD Officer
Scott Sanders, and Greensboro City Council member Trudy Wade under 42
U.S.C. §§ 1981, 1983, and 1985(3), as well as North Carolina contract
and tort law. (Case No. 1:09-CV-293.) On January 5, 2011, the court
dismissed all claims against the City except Plaintiffs‟ breach-ofcontract claim. See Alexander v. City of Greensboro, 762 F. Supp. 2d
764, 825 (M.D.N.C. 2011).

2

The City moved to dismiss the Amended Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
7.)

(Doc.

The motion was granted in part and denied in part: all

Title VII claims by Plaintiffs Ahmed Blake, Larry Patterson Jr.,
Frank

Young,

Darryl

Stevenson,

and

Mitchell

Alston

were

dismissed, and all Title VII claims by the remaining thirty-five
Plaintiffs were dismissed except (1) each remaining Plaintiff‟s
hostile work environment claim, (2) Plaintiff Steven A. Evans‟
disparate treatment claim, and (3) Plaintiff Lawrence Alexander
Jr.‟s disparate treatment claim.

See Alexander, 2011 WL 13857,

at *23.
The

City

subsequently

filed

an

Answer

to

the

Amended

Complaint (Doc. 21) and now moves for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) (Doc. 29).
This motion has been fully briefed (Docs. 30, 37, 38) and is
ready for decision.
II.

ANALYSIS
A.

Standard for Rule 12(c) Motions

A motion for judgment on the pleadings pursuant to Federal
Rule

of

Civil

Procedure

12(c)

is

analyzed

under

the

same

standard as a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6).

See Burbach

Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06
(4th

Cir.

2002).

Thus,

the
3

court

assumes

the

factual

allegations in the Amended Complaint to be true and draws all
reasonable

factual

inferences

nonmoving parties.

in

Plaintiffs‟

favor

as

the

See id. at 406.

Unlike on a Rule 12(b)(6) motion, however, on a Rule 12(c)
motion the court may consider the Answer as well.

Rinaldi v.

CCX, Inc., No. 3:05-CV-108, 2008 WL 2622971, at *2 n.3 (W.D.N.C.
July 2, 2008).

The factual allegations of the Answer “are taken

as true only where and to the extent they have not been denied
or do not conflict with the complaint.”
F.R.D. 330, 331 (M.D.N.C. 1991).
motion

[the

defendant]

cannot

Jadoff v. Gleason, 140

“For the purposes of this

rely

on

allegations

of

fact

contained only in the answer, including affirmative defenses,
which contradict [the] complaint,” because “Plaintiffs were not
required to reply to [the] answer, and all allegations in the
answer are deemed denied.”
8(b)(6)

(“If

a

Id. at 332; see Fed. R. Civ. P.

responsive

pleading

is

not

required,

an

pleadings

is

allegation is considered denied or avoided.”).
“The

test

applicable

for

judgment

on

the

whether or not, when viewed in the light most favorable to the
party

against

whom

the

motion

is

made,

genuine

issues

of

material fact remain or whether the case can be decided as a
matter

of

law.”

Smith

v.

McDonald,

562

F.

Supp.

829,

842

(M.D.N.C. 1983), aff‟d, 737 F.2d 427 (4th Cir. 1984), aff‟d, 472
U.S. 479 (1985); accord Med-Trans Corp. v. Benton, 581 F. Supp.
4

2d

721,

728

(E.D.N.C.

2008);

Jadoff,

140

F.R.D.

at

331;

5C

Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1368, at 223 (3d ed. 2004); see id. § 1368, at 248
(“A motion for judgment on the pleadings under Rule 12(c) may be
granted

only

if

all

material

issues

can

be

resolved

on

the

pleadings by the district court . . . .”).
B.

Plaintiffs’ Rule 12(g)(2) Argument for Summary Denial

Plaintiffs

argue

preliminarily

that

the

City‟s

motion

should be summarily denied pursuant to Federal Rule of Civil
Procedure 12(g)(2), which provides:
Except as provided in Rule 12(h)(2) or (3), a party
that makes a motion under this rule must not make
another motion under this rule raising a defense or
objection that was available to the party but omitted
from its earlier motion.
Fed. R. Civ. P. 12(g)(2).

Plaintiffs argue that the City‟s Rule

12(c) motion falls squarely within this prohibition, because the
defenses

raised

available

when

in
the

the

Rule

12(c)

City

filed

its

motion
Rule

were

12(b)(6)

allegedly
motion

dismiss, but the City chose not to raise them at that time.

to
The

City responds that Rule 12(g)(2) does not apply to Rule 12(c)
motions and that the arguments in the pending motion were not
available to the City at the Rule 12(b)(6) stage.
As

the

City

points

out,

Rule

12(g)(2)

begins

with

phrase “[e]xcept as provided in Rule 12(h)(2) or (3).”
12(h)(2) provides in pertinent part:
5

the
Rule

Failure to state a claim upon which relief can be
granted . . . may be raised . . . by a motion under
Rule 12(c) . . . .
Fed.

R.

Civ.

P.

12(h)(2)(B).

Thus,

Rule

12(c)

motions

for

judgment on the pleadings based upon failure to state a claim
are explicitly exempted from the prohibition in Rule 12(g)(2).2
Cf. Tatum v. R.J. Reynolds Tobacco Co., No. 1:02-CV-373, 2007 WL
1612580, at *6 (M.D.N.C. May 31, 2007) (“Taken together, Rules
12(g) and 12(h)(2) prohibit Defendants from filing a successive
Rule 12(b)(6) motion unless it is included in their answer or in
a

Rule

12(c)

motion

after

pleadings

are

closed.”

(emphasis

added)).
The only case law cited by Plaintiffs in support of their
argument is inapplicable, because it involves successive motions
brought pursuant to Rule 12(b).
Specialty

Lines

Ins.

Co.,

No.

See Partington v. Am. Int‟l
1:03-CV-1084,

Doc.

15

at

1-2

(M.D.N.C. May 18, 2004); cf. Wright & Miller, supra, § 1384, at
479-80

(“[Rule

12(g)]

contemplates

the

presentation

of

an

omnibus pre-answer motion in which the defendant advances every
available Rule 12 defense and objection he may have that is
assertable by motion. . . . Any defense that is available at the
time of the original motion, but is not included, may not be the
basis of a second pre-answer motion.” (emphases added)).
2

To the extent the City‟s pending motion also raises a question of
subject matter jurisdiction (see infra note 5), it is exempted from
the Rule 12(g)(2) prohibition pursuant to Rule 12(h)(3).

6

Therefore, Rule 12(g)(2) does not bar the City‟s Rule 12(c)
motion, and it is unnecessary to determine whether the City‟s
present arguments were available at the Rule 12(b)(6) stage.
Consequently, the court will proceed to the merits of the City‟s
motion.

In so doing, however, the court will not reconsider

issues that it addressed fully at the Rule 12(b)(6) stage.
C.

The City’s Arguments for Dismissal

The City presents three arguments in support of its motion
for judgment on the pleadings: (1) Eleven Plaintiffs did not
satisfy the prerequisites for a Title VII suit, because they did
not file a proper Charge of discrimination (“Charge”) with the
Equal

Employment

Opportunity

Commission

(“EEOC”

or

“Commission”); (2) two of these Plaintiffs, even if they filed
proper

Charges,

limitations

filed

period;

them
and

outside
(3)

all

the

applicable

thirty-five

180-day
remaining

Plaintiffs‟ claims should be dismissed under the doctrine of
laches, because Plaintiffs were not diligent in pursuing their
claims and the City was prejudiced as a result.

Each argument

will be examined in turn.
1.

Whether the Eleven Plaintiffs Filed Charges of
Discrimination

The City argues that eleven Plaintiffs did not file Charges
of discrimination with the EEOC and thus failed to satisfy the

7

prerequisites for a Title VII action.3

These Plaintiffs respond

that the evidence presented by the City cannot be considered at
the

Rule

12(c)

Questionnaires

stage

and,

Plaintiffs

alternatively,

submitted

to

the

that

the

Intake

EEOC

constituted

sufficient Charges of discrimination.
The City‟s argument for judgment on the pleadings relies
upon over 4,000 pages of documents that it obtained from the
EEOC pursuant to Freedom of Information Act requests and that
the City attached to its Answer.
City

argues

files

for

EEOC

that

all

these

personal

documents

thirty-five

communications

that

information

(Doc. 21, Exs. A to II.)
constitute

Plaintiffs

are

(minus

deliberative

about

third

the

entire

certain

in

nature,

parties,

and

The
EEOC

internal
certain
certain

settlement-related information) (see, e.g., Doc. 21 ¶ 45; Doc.
21, Ex. A at 2-4; Doc. 21, Ex. C at 2-4; Doc. 21, Ex. L-1 at 25)

and

that

these

files

do

not

contain

any

discrimination for the eleven Plaintiffs at issue.
contrasts this with the presence of

“formal”

files of the remaining twenty-four Plaintiffs.

Charges

of

The City

Charges in

the

(Compare Doc.

21, Exs. A to K (containing no “formal” Charges), with Doc. 21,
Exs. L to II (containing “formal” Charges).)

As a consequence,

the City argues, the Title VII claims of the eleven Plaintiffs
3

The eleven Plaintiffs at issue are Ernest Cuthbertson, Steven A.
Evans, George M. Little, Darrell McDonald, C.L. Melvin, Willie Parker,
William A. Phifer, Joseph Pryor, Norman Rankin, Calvin Stevens Jr.,
and Michael Wayland Wall.

8

should

be

dismissed

for

failure

discrimination with the EEOC.
Grp.,

Ltd.,

551

F.3d

297,

to

file

Charges

of

See generally Jones v. Calvert
300

(4th

Cir.

2009)

(“Before

a

plaintiff may file suit under Title VII . . . he is required to
file a charge of discrimination with the EEOC.”).
It is doubtful whether, as a procedural matter, the court
may draw the inference the City urges.

True, a court deciding a

Rule 12(c) motion may consider documents attached to the Answer,
see, e.g., Bradley v. Ramsey, 329 F. Supp. 2d 617, 622 (W.D.N.C.
2004), so long as they are central to the plaintiff‟s claim and
of undisputed authenticity, see, e.g., Lefkoe v. Jos. A. Bank
Clothiers, No. 06-CV-1892, 2008 WL 7275126, at *3-*5 (D. Md. May
13, 2008) (citing Horsley v. Feldt, 304 F.3d 1125, 1134-35 (11th
Cir. 2002), for this holding).4
Here, however, the City‟s argument rests not upon the EEOC
documents attached to the City‟s Answer but upon what is missing
4

See also, e.g., Colonial Trading, LLC v. Basset Furniture Indus.,
Inc., No. 5:09-CV-43, 2010 WL 5071174, at *2 (W.D.N.C. Dec. 7, 2010)
(citing Horsley for this holding); Farmer v. Wilson Hous. Auth., 393
F. Supp. 2d 384, 386 (E.D.N.C. 2004) (same). See generally Philips v.
Pitt Cnty. Mem‟l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (holding
that on a Rule 12(b)(6) motion to dismiss, the court may consider
documents attached to the motion if they are “integral to the
complaint and authentic”); Horsley, 304 F.3d at 1134-35 (holding that
these same requirements “must apply for Rule 12(c) purposes to
documents attached to answers just as [they apply] for Rule 12(b)(6)
purposes to documents attached to motions to dismiss,” because
“[o]therwise, the conversion clause of [Federal Rule of Civil
Procedure 12(d)] would be too easily circumvented and disputed
documents attached to an answer would have to be taken as true at the
pleadings stage”); 5A Wright & Miller, supra, § 1327, at 439, 442
(“[L]engthy or numerous exhibits containing extraneous or evidentiary
material should not be attached to the pleadings.”).

9

from

them,

and

Plaintiffs

dispute

whether

these

attachments

“represent all of the information provided by these Plaintiffs
to the EEOC in support of their charges” (Doc. 37 at 5-6).
Thus, it is doubtful on this record whether the court may assume
the completeness of these 4,000 pages pursuant to a motion for
judgment

on

the

pleadings.

Cf.

Jadoff,

140

F.R.D.

at

332

(“[A]ll allegations in the answer are deemed denied [where no
reply was required].”); Smith, 562 F. Supp. at 842 (“The test
applicable for judgment on the pleadings is whether or not, when
viewed in the light most favorable to the [nonmoving party],
genuine issues of material fact remain or whether the case can
be decided as a matter of law.”).5
Even
submitted

assuming
by

the

the
City

court
and

may

draw

consider

the

all

inference

4,000

it

pages

urges,

the

eleven Plaintiffs contend that the City‟s motion should still be
denied,

because

Questionnaires
eleven

within

these

Plaintiffs

the

City‟s

Plaintiffs

contend

that

5

attachments

submitted
their

to

the

Intake

are
EEOC.

Intake
The

Questionnaires

To the extent the City implies that by failing to file Charges the
eleven Plaintiffs have failed to exhaust their administrative remedies
under Title VII, this may raise a question of subject matter
jurisdiction, see Jones, 551 F.3d at 300, which would permit the court
to consider all relevant evidence without converting the proceeding to
one for summary judgment, see Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). However, the City‟s briefs do not explicitly advance such
an argument.

10

constituted

sufficient

Charges

of

discrimination

and

thus

satisfied the prerequisites of Title VII.6
Title VII requires an employee alleging discrimination to
exhaust his administrative remedies prior to filing an action in
federal court.

See Jones, 551 F.3d at 300 (“[A] failure by the

plaintiff to exhaust administrative remedies concerning a Title
VII

claim

deprives

the

federal

jurisdiction over the claim.”).

courts

of

subject

matter

The first step is the filing of

a Charge of discrimination with the EEOC “by or on behalf of a
person

claiming

Commission.”

to

be

aggrieved,

42 U.S.C. § 2000e-5(b).

or

by

a

member

of

the

Upon receiving a Charge,

the EEOC must provide notice of the Charge to the employer,
investigate the validity of the claim, and, if the claim proves
valid, attempt to remedy the discrimination through “informal
methods of conference, conciliation, and persuasion.”

Id.

If

these efforts fail and the EEOC elects not to bring a lawsuit
against the employer, the employee receives notice of his right
to sue and has ninety days to file a Title VII action.

Id.

§ 2000e-5(f)(1).
Title VII requires only that EEOC Charges “be in writing
under oath or affirmation” and “contain such information and be
in such form as the Commission requires.”
6

Id. § 2000e-5(b).

Plaintiffs do not dispute the authenticity of these Intake
Questionnaires and concede that they may be considered at this
juncture, even if the City‟s remaining attachments may not. (See Doc.
37 at 5 & n.2.)

11

The

EEOC‟s

regulations

require

that

a

Charge

writing and signed and shall be verified.”

“shall

be

in

29 C.F.R. § 1601.9.

Moreover, a Charge should contain (1) the name, address, and
telephone number of the employee; (2) the name and address of
the employer; (3) a “clear and concise statement of the facts,
including

pertinent

dates,

constituting

the

alleged

[discrimination]”; and (4) the approximate number of employees
of

the

employer.7

Id.

§

1601.12(a)(1)-(4).

Despite

these

specific requirements, however, “a charge is sufficient when the
Commission receives from the person making the charge a written
statement sufficiently precise to identify the parties, and to
describe generally the action or practices complained of.”

Id.

§ 1601.12(b).
Here,

the

eleven

Plaintiffs

each

filed

an

Intake

Questionnaire with the EEOC between July 26, 2005, and May 5,
2006.8

(See Doc. 21, Ex. A at 14-23; Doc. 21, Ex. B at 15-23;

7

The Charge should also disclose whether proceedings have been
commenced before a state or local agency charged with the enforcement
of fair employment practice laws.
29 C.F.R. § 1601.12(a)(5).
This
requirement is only relevant in “deferral states,” however, and North
Carolina is a “deferral state” only in limited circumstances not
applicable here.
See Bratcher v. Pharm. Prod. Dev., Inc., 545 F.
Supp. 2d 533, 539-43 (E.D.N.C. 2008).
8

These Intake Questionnaires were filed noticeably earlier than the
Charges of the remaining twenty-four Plaintiffs, the earliest of which
were filed on May 10, 2006, and eighteen of which were not filed until
on or after July 25, 2006.
(See Doc. 21, Exs. L to II.)
In its
earlier Rule 12(b)(6) motion, the City challenged the timeliness of
these eighteen Charges, but the court denied this aspect of the motion
without prejudice because the facts necessary to the City‟s
limitations argument did not clearly appear on the face of the Amended

12

Doc. 21, Ex. C at 14-22; Doc. 21, Ex. D at 14-21; Doc. 21, Ex. E
at 15-23; Doc. 21, Ex. F at 14-22; Doc. 21, Ex. G at 15-23; Doc.
21, Ex. H at 14-22; Doc. 21, Ex. I at 18-27; Doc. 21, Ex. J at
14-23; Doc. 21, Ex. K at 7-15.)

Each Intake Questionnaire was

in writing and contained a signed declaration “under the penalty
of perjury that the information provided in this questionnaire
is true and correct.”

(See, e.g., Doc. 21, Ex. A at 23.)

Moreover, each Intake Questionnaire

contained

required by 29 C.F.R. § 1601.12(a)(1)-(4).9
Ex. E at 15-17.)

the information

(See, e.g., Doc. 21,

Therefore, the Intake Questionnaires satisfied

the explicit requirements for a Charge found in the applicable
statute and regulations.
It is also apparent
Intake

Questionnaires

as

that the

EEOC

Charges,

which

treated these eleven
is

permissible,

as

Plaintiffs note, under Federal Express Corp. v. Holowecki, 552
U.S.

389

(2008).10

The

EEOC

Complaint or the Charges themselves.
*8.

assigned

each

of

the

eleven

See Alexander, 2011 WL 13857, at

9

The Intake Questionnaire of Norman Rankin did not include the number
of employees of the GPD (see Doc. 21, Ex. I at 19), but this is not
essential according to 29 C.F.R. § 1601.12(b).
10

In Holowecki, the EEOC did not treat the relevant plaintiff‟s
Intake Questionnaire as a Charge, give the plaintiff an EEOC Charge
Number, provide the employer with notice of the Intake Questionnaire,
or engage in any informal conciliation efforts. See 552 U.S. at 400,
407; id. at 408 (Thomas, J., dissenting).
The plaintiff‟s later
“formal” Charge was untimely, but the Supreme Court held that her
Intake Questionnaire should be deemed her Charge for timeliness
purposes, adopting and applying the EEOC‟s proposed rule that to be
deemed a Charge, a filing “must be reasonably construed as a request

13

Plaintiffs an EEOC Charge Number and sent a “Notice of Charge of
Discrimination” to the City in connection with each Plaintiff,
stating that “a charge of employment discrimination has been
filed against your organization” and indicating that the Charge
alleged discrimination based on “Race.”11
Ex. A at 12; see also, e.g., id. at 5.)

(See, e.g., Doc. 21,
In each case, the EEOC

made a determination that the Plaintiff‟s claim was sufficiently
valid to merit conciliation efforts (see, e.g., id. at 7-8),
provided notice when conciliation efforts were deemed to have
failed (see, e.g.,

id.

at 6), and subsequently referred the

claim to the United States Department of Justice (see, e.g.,
id.).12

Plaintiffs allege that they all “received right-to-sue

for the agency to take remedial action to protect the employee‟s
rights or otherwise settle a dispute between the employer and the
employee.” Id. at 402 (majority opinion); see id. at 404, 406. The
Court expressed concern that requiring less of a Charge would force
local EEOC offices to treat almost any information received from an
employee as a Charge, triggering notice to the employer, conciliation
efforts, etc., and potentially impairing the EEOC‟s ability to provide
answers to mere informational requests and offer pre-Charge-filing
counseling. Id. at 400-01.
11

Substantial time elapsed between Plaintiffs‟ filing of the Intake
Questionnaires and the EEOC‟s notice to the City.
Ordinarily, the
EEOC is required to provide an employer with notice of a Charge within
ten days of the Charge‟s filing date. 42 U.S.C. § 2000e-5(b), (e)(1).
Delay by the EEOC in performing this statutory duty should not be held
against Plaintiffs in this situation, however.
See Edelman v.
Lynchburg Coll., 300 F.3d 400, 404 (4th Cir. 2002) (“Once a valid
charge has been filed, a simple failure by the EEOC to fulfill its
statutory duties regarding the charge does not preclude a plaintiff‟s
Title VII claim.”).
12

If the employer is a “government, governmental agency, or political
subdivision,” the EEOC must give the United States Attorney General

14

letters from the United States Department of Justice 90 days or
less before the institution of this lawsuit” (Doc. 4 ¶ 45), and
the City has not challenged this allegation as to the eleven
Plaintiffs.
Without

addressing

the

merits

of

whether

the

eleven

Plaintiffs‟ Intake Questionnaires can constitute Charges under
Holowecki, the City contends that Plaintiffs are prohibited from
making this argument

because

they neither

alleged

it

in the

Amended Complaint nor themselves produced evidence to support
it.

The City argues that permitting Plaintiffs to rely now upon

the

Intake

Questionnaires,

submitted

by

the

City,

would

constitute an impermissible amendment of the Amended Complaint.
Under the City‟s logic, each Plaintiff relying upon an Intake
Questionnaire

as

his

EEOC

Charge

was

required

to

explicitly

allege this fact in the Amended Complaint and is now barred from
proceeding,

even

though

Questionnaires

to

be

administrative

process

the

the

EEOC

Plaintiffs‟

was

fully

considered
Charges,

exhausted,

Questionnaires are before the court.

the

the
and

Intake

Title
the

VII

Intake

While it perhaps would

have been more accurate for the eleven Plaintiffs to allege from
the start that they relied upon Intake Questionnaires as their
Charges, the City points to no statute, regulation, or rule

the opportunity to elect whether to bring a lawsuit on behalf of the
aggrieved employee. 42 U.S.C. § 2000e-5(f)(1).

15

requiring that they do so under the circumstances in this case,
and the court declines to so hold.
Federal Rule of Civil Procedure 8(a)(2) requires only “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”
matter

is

Fed. R. Civ. P. 8(a)(2).

jurisdictional,

Plaintiffs‟

Amended

Even if this

Complaint

only

needed to contain “a short and plain statement of the grounds
for

the

“[W]here

court‟s

jurisdiction.”

„[n]either

alleges‟

that

the

the

Fed.

complaint

plaintiff

R.

nor

the

has

Civ.

P.

amended

„complied

8(a)(1).
complaint

with

[the]

prerequisites [of Title VII],‟ the plaintiff has not „properly
invoked the court‟s jurisdiction under Title VII.‟”

Davis v.

N.C. Dep‟t of Corr., 48 F.3d 134, 140 (4th Cir. 1995) (second
alteration in original) (quoting United Black Firefighters of
Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979)).

Here,

Plaintiffs

VII‟s

alleged

that

they

complied

with

Title

prerequisites by filing timely Charges with the EEOC, receiving
right-to-sue letters from the Department of Justice, and filing
their Title VII action within ninety days of those letters.
(See Doc. 4 ¶ 45.)

It is unclear that the precise form of the

Charges must also have been alleged, in light of the variety of
forms Charges may take.

See, e.g., Edelman v. Lynchburg Coll.,

300 F.3d 400, 404-05 (4th Cir. 2002) (holding that a letter sent
to the EEOC could constitute a valid Charge).
16

The City relies entirely upon two opinions: Vaughn v. WalMart, No. 4:10-CV-031, 2010 WL 4608403 (W.D. Va. Nov. 12, 2010);
and Rivera v. Prince William Cnty. Sch. Bd., No. 1:09-CV-341,
2009

WL

2232746

(E.D.

distinguishable,

Va.

however,

July

because

22,
in

2009).
each

Both

case

the

cases

are

plaintiff

attempted to rely upon his Intake Questionnaire (which the EEOC
had never viewed as a Charge) only after it became apparent that
his “formal” EEOC Charge was clearly untimely.
In Vaughn, the plaintiff attached to his amended complaint
a notice from the EEOC dismissing his Charge as untimely, thus
indicating that it was the relevant Charge in the case.

See

Amended Complaint, Ex. 1, Vaughn, 2010 WL 4608403 (No. 4:10-CV031).

He first mentioned his earlier Intake Questionnaire in a

one-page response brief to the defendant‟s motion to dismiss,
asserting

that

the

filing

date

should save his Title VII action.

of

the

Intake

Questionnaire

See Response to Motion at 1,

Vaughn, 2010 WL 4608403 (No. 4:10-CV-031).

He failed to provide

his Intake Questionnaire to the court, however, so there were no
facts

about

the

Intake

elsewhere in the record.

Questionnaire

in

the

pleadings

or

The defendant attempted to obtain a

copy of the Intake Questionnaire from the EEOC, but the agency
no longer had a copy.

Vaughn, 2010 WL 4608403, at *2.

Finally,

at a hearing, the plaintiff “[a]stonishingly . . . admitted . .
. that he retained a copy of his intake questionnaire and had it
17

the whole time.”

Id.

seeking

himself

to

avail

The court held that “[i]f a Plaintiff
of

Holowecki

does

not

produce

the

intake questionnaire he claims was a charge, he has failed to
carry his burden of showing timely filing.”

Id. at *4.

The

court then deferred to the EEOC‟s determination that the Intake
Questionnaire had not constituted a Charge.

Id.

Similarly, in Rivera the defendant moved to dismiss the
plaintiff‟s Title VII action because her “formal” EEOC Charge
was

untimely.

See

Defendant

Prince

William

County

School

Board‟s Memorandum in Support of Its Motion to Dismiss at 10-11,
Rivera,

2009

WL

2232746

(No.

1:09-CV-341).

The

plaintiff

mentioned her Intake Questionnaire for the first time in her
opposition brief,

although

the EEOC had not considered

it

a

Charge, and she argued that its filing date should save her
claims.

See Plaintiff‟s Opposition to Defendant Prince William

County School Board‟s Motion to Dismiss at 4-5, Rivera, 2009 WL
2232746 (No. 1:09-CV-341).

She did not provide a copy of the

Intake Questionnaire, however, and her complaint contained no
related

allegations,

so

“facts

regarding

the

Questionnaire [were] not before the Court.”
2232746, at *4.

filing

of

the

Rivera, 2009 WL

The court held that the plaintiff could not use

her opposition brief to “amend her Complaint.”

Id.

The present situation is very different from Vaughn and
Rivera.

Here, Plaintiffs alleged that they filed Charges of
18

discrimination with the EEOC and subsequently received right-tosue letters, thus alleging that the EEOC treated whatever they
filed as Charges.
Rivera,

however,

(See Doc. 4 ¶ 45.)
the

Intake

Unlike in Vaughn and

Questionnaires

of

the

eleven

Plaintiffs are before the court, which is considering them as
part of the pleadings at the City‟s request.

Plaintiffs merely

seek to argue that these same materials do not contradict their
allegation but rather confirm it.
seek

to

“amend”

their

Moreover, Plaintiffs do not

Amended

Complaint

to

shift

the

identification of their Charges from admitted untimely Charges
to

earlier

ones

Plaintiffs‟

never

present

recognized

argument

is

as

thus

such

by

wholly

the

EEOC.

consistent

with

their allegation.13
Observing that the applicable statute and regulations were
satisfied, that the EEOC determined the Intake Questionnaires to
be valid Charges, that this determination was not unreasonable
(and

indeed

not

contested

Questionnaires

served

notice

City

to

the

the

and

by

the

purpose

initiating

City),
of

that

Charges

the

the

by

required

Intake

triggering

conciliation

process, and that there is no apparent prejudice to the City,
the court finds that the eleven Plaintiffs at issue are deemed
to have filed Charges of discrimination as required by Title

13

Even if repleading had been required,
permitted it under these circumstances.

19

the

court

would

have

VII.14

Therefore,

the

City‟s

motion

for

judgment

on

the

pleadings based upon these Plaintiffs‟ alleged failure to file
EEOC Charges will be denied.
2.
The

Timeliness of EEOC Charges

City

argues

that

even

if

the

eleven

relevant

Plaintiffs‟ Intake Questionnaires constituted proper Charges of
discrimination,
(“Evans”)

two

of

these

and Willie Parker

Plaintiffs

(“Parker”)

—

—
did

Steven

A.

Evans

not file their

Charges in a timely fashion.
Title VII requires a plaintiff to file his threshold Charge
of discrimination with the EEOC within 180 days of the alleged
discriminatory

act.15

42

U.S.C.

§

2000e-5(e)(1);

EEOC

v.

14

This result is not inconsistent with the court‟s earlier Memorandum
Opinion and Order, in which the court declined to dismiss these
Plaintiffs‟ claims based upon the City‟s arguments about the
timeliness and scope of their Intake Questionnaires, noting that “the
City has submitted only their EEOC Intake Questionnaires, not their
EEOC charges.” Alexander, 2011 WL 13857, at *9; see id. at *10. The
timeliness and scope of the Intake Questionnaires were relevant only
if the Intake Questionnaires constituted Plaintiffs‟ Charges, but not
if they were merely one step toward the filing of later “formal”
Charges.
It was unclear which of these situations was present, the
Amended Complaint was open to both readings, and the parties‟ briefs
did not clarify the matter. See, e.g., id. at *9 (“The City has not
argued that the Intake Questionnaire constituted Parker‟s EEOC charge
. . . .”); id. at *10 (“The City does not argue that these Intake
Questionnaires constituted the charges of these . . . Plaintiffs.”).
Because all factual inferences had to be drawn in favor of Plaintiffs
at the motion-to-dismiss stage, the court refused to dismiss their
claims based upon documents whose relevance was in question. Now, of
course, the timeliness and scope of the Intake Questionnaires are open
to challenge by the City. See infra Part II.C.2.
15

The time period is 300 days in a “deferral state.” See 42 U.S.C.
§ 2000e-5(e)(1). North Carolina is a “deferral state,” however, only
in limited circumstances not applicable here.

20

Commercial Office Prods. Co., 486 U.S. 107, 110 (1988).

Failure

to timely file an EEOC Charge bars the plaintiff‟s claim in
federal court, McCullough v. Branch Banking & Trust Co., 35 F.3d
127, 131 (4th Cir. 1994), and courts have strictly enforced this
requirement, Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d
587, 597 (D. Md. 2000), aff‟d, 230 F.3d 1354 (4th Cir. 2000)
(per curiam) (unpublished table decision).

Even claims alleging

a continuous violation of Title VII must allege a discriminatory
act

committed

within

the

limitations

period,

Nat‟l

R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002), and
“discrete discriminatory acts are not actionable if time barred,
even

when

they

are

related

to

acts

alleged

in

timely

filed

charges,” id. at 113.
An untimely filed Charge is not a jurisdictional bar but
rather is “like a statute of limitations, . . . subject to
waiver, estoppel, and equitable tolling.”
Airlines, Inc., 455 U.S. 385, 393 (1982).

Zipes v. Trans World
The Fourth Circuit

has held in the Rule 12(b)(6) context that “a motion to dismiss
. . . which tests the sufficiency of the complaint, generally
cannot reach the merits of an affirmative defense, such as the
defense that the plaintiff‟s claim is time-barred,” unless “all
facts necessary to the affirmative defense „clearly appear[] on
the face of the complaint.‟”

Goodman v. Praxair, Inc., 494 F.3d

458, 464 (4th Cir. 2007) (en banc) (alteration in original)
21

(emphasis omitted) (quoting Richmond, Fredericksburg & Potomac
R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)).
the

identical

affirmative

standards

defense

employed,

through

“Due to

court

will

reach

an

motion

a

the

under

Rule

12(c)

in

similarly rare circumstances, with the caveat that the court may
look to the uncontested pleadings as a whole — and not simply
plaintiff‟s

complaint

—

in

determining

whether

necessary to deciding the issue clearly appear.”

all

facts

McQuade v.

Xerox Corp., No. 5:10-CV-149, 2011 WL 344091, at *3 (E.D.N.C.
Feb. 1, 2011); see Demetry v. Lasko Prods., Inc., 284 F. App‟x
14,

15-16

(applying
Simpson

(4th
the

v.

Cir.

Goodman

Air

2008)

(unpublished

standard

Liquide

Am.,

in

the

LP,

No.

per

Rule

curiam
12(c)

context);16

3:09-CV-172,

2171274, at *1-*2 (W.D.N.C. July 20, 2009) (same).

opinion)

2009

WL

As noted

earlier, the City “cannot rely on allegations of fact contained
only

in

contradict

the

answer,

[the]

including

complaint,”

affirmative

because

defenses,

“Plaintiffs

were

which
not

required to reply to [the] answer, and all allegations in the
answer are deemed denied.”

Jadoff, 140 F.R.D. at 332.

The City‟s arguments as to the timeliness of Evans‟ and
Parker‟s EEOC Charges will be considered in turn.

16

Unpublished decisions are not precedential but are cited for their
persuasive authority.

22

a.

Steven A. Evans

Evans filed his Intake Questionnaire, deemed a Charge by
the EEOC, on August 1, 2005.

(See Doc. 21, Ex. B at 23.)

He

principally alleged in it that after he was selected to go to
General Instructor School, certain GPD officers held a private
meeting and decided to remove him from the school for racially
(Id. at 16-18.)

discriminatory reasons.

The City points to an

affidavit by Chris Walker, former commanding officer in charge
of the Training Department of the GPD, that it submitted with
its earlier Rule 12(b)(6) motion.
affidavit,

Evans

attended

School in October 2004.

and

(Doc. 9.)
completed

(Id. at 1.)

According to the

General

Instructor

The City argues that

Evans‟ alleged removal from the school must have occurred prior
to October 2004 and thus at least ten months before he filed his
EEOC Charge, well outside the 180-day limitations period.
responds

that

the

court

cannot

rely

at

this

stage

Evans

upon

the

City‟s affidavit, which raises factual questions.
In

considering

this

motion

under

Rule

12(c),

the

court

looks to whether the facts supporting the City‟s limitations
defense clearly appear on the face of the pleadings.

The City‟s

affidavit is not part of the pleadings, and even if the passing
reference to the affidavit in the City‟s Answer (see Doc. 21
¶ 108)

were

construed

as

an

incorporation,

it

would

not

be

appropriate to consider the affidavit here, because it is not a
23

document central to Evans‟ claim.

See, e.g., Colonial Trading,

LLC v. Basset Furniture Indus., Inc., No. 5:09-CV-43, 2010 WL
5071174, at *2 (W.D.N.C. Dec. 7, 2010); Lefkoe, 2008 WL 7275126,
at *3-*5.

Moreover, “all allegations in the answer are deemed

denied,” because Plaintiffs were not required to reply to the
Answer.

Jadoff, 140 F.R.D. at 332.

Therefore, it is not clear

on the face of the pleadings that Evans‟ Charge was untimely,
and

the

City‟s

Rule

12(c)

motion

on

this

ground

cannot

be

granted.
Moreover, even if it could be determined at this stage that
Evans was last barred from General Instructor School prior to
October 2004, the court could not dismiss his Title VII action
because he has alleged other grounds for it that the City has
not

disputed

as

to

timeliness.

For

example,

the

Amended

Complaint alleges that although Evans was the only black GPD
officer certified as a marksmanship instructor, Wray appointed
white officers, not Evans, as instructors at local community
colleges

and/or

the

Greensboro

Police

Academy,

and

that

had

Evans obtained one of these appointments, he would have been
compensated for his instruction.

(Doc. 4 ¶ 108.)

It is not

clear on the face of the pleadings that these appointments were
made more than 180 days before Evans filed his EEOC Charge.17

17

Although not explicitly mentioned in Evans‟ Charge, this failureto-appoint
allegation
is
reasonably
related
to
the
Charge‟s

24

b.

Willie Parker

Parker filed his Intake Questionnaire, deemed a Charge by
the EEOC, on May 5, 2006.18

(See Doc. 21, Ex. F at 22.)

In it

he alleged that “for no apparent reason my picture was being
shown

to

citizens

(Id. at 15.)

activity.”
pictures

inquiring

of

Parker

and

about

my

involvement

in

illegal

For example, the GPD allegedly showed
a

drug

dealer

to

someone

and

whether Parker knew the drug dealer and hung out with him.
at 16.)
recent

asked
(Id.

On the line of the Intake Questionnaire marked “Most
date

of

alleged

harm

(that

you

believe

discrimination) to you,” Parker wrote “Summer/04.”

was

(Id. at 15.)

The City argues that Parker‟s Charge was untimely, because it
was filed almost two years after “Summer/04.”

Parker responds

that the scope of his Charge is broader than the specific dates
mentioned in it.
In the Amended Complaint, Plaintiffs allege that Wray and
Brady directed subordinate officers to gather pictures of black

allegations that “[the Training Staff] did not want me to teach” and
“[a]ccording to some staff in the Training Staff I was lazy & only
wanted to become an instructor was [sic] to get out of working.”
(Doc. 21, Ex. B at 17-18.)
See Jones, 551 F.3d at 300 (“[T]hose
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 Title VII lawsuit.” (quoting Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996))).
18

As noted above, this is earlier than the filing dates of any of the
Charges filed by the twenty-four Plaintiffs who filed “formal”
Charges. See supra note 8.

25

GPD officers, including Plaintiffs, for line-up books and other
visual aids that were sometimes collectively called the “Black
Book.”

(See Doc. 4 ¶¶ 48-50.)

These materials were allegedly

shown to the general public and criminal suspects in an effort
to implicate black GPD officers in wrongdoing.

(Id.)

Largely

on the basis of these allegations and the alleged pervasiveness
of rumors within the GPD about the “Black Book,” the court held
that Plaintiffs had plausibly stated hostile work environment
claims.

See Alexander, 2011 WL 13857, at *12-*14.

The court

also held that it was not clear on the face of the Amended
Complaint when this alleged discrimination ended, but that it
was plausible from the Amended Complaint‟s allegations that it
lasted until early 2006.

Parker argues that his

See id. at *8.

claim should not be dismissed because these allegations fall
within the scope of his Charge and the Charge is timely as to
them.
As applicable here, Title VII requires EEOC Charges to be
filed “within one hundred and eighty days after the alleged
unlawful
5(e)(1).

employment
The

practice

scope

of

a

occurred.”

Title

VII

42

action

U.S.C.
is

not

§ 2000estrictly

limited by the scope of the preceding administrative Charge of
discrimination but encompasses “the scope of the administrative
investigation

that

can

reasonably

charge of discrimination.”

be

expected

to

follow

the

Chisholm v. U.S. Postal Serv., 665
26

F.2d 482, 491 (4th Cir. 1981).

“[T]hose 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 Title VII lawsuit.”

Jones, 551 F.3d at 300 (quoting

Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th
Cir. 1996)).
Here,

the

subject

matter

of

Plaintiffs‟

hostile

work

environment claim clearly falls within the scope of Parker‟s
Charge.

Both

the

claim

and

the

Charge

are

based

upon

allegations that Parker‟s photograph was shown to criminals and
suspects in an attempt to implicate him in wrongdoing.

These

allegations are essentially the same and are thus “reasonably
related” to each other.
The question is whether and to what extent the Chisholm
principle applies to the determination of timeliness.19

Some

courts have held a plaintiff to the dates in his Charge where
discrete acts of discrimination were alleged.

See, e.g., Zubek

v. City of Chicago, No. 04 C 5399, 2006 WL 1843396, at *1, *4
(N.D. Ill. July 5, 2006) (holding that the plaintiff, despite
alleging in his complaint the discriminatory denial of twenty
separate job applications, could pursue his Title VII claim only
19

The City explicitly renounces any argument that Parker‟s answer of
“Summer/04” in his Charge placed his later-occurring allegations
outside the Charge‟s scope and thus deprived the court of jurisdiction
over them. (Doc. 38 at 8.)

27

as

to

those

denials

falling

within

the

dates

in

his

EEOC

Charge); cf. Fernando v. Rush-Presbyterian-St. Luke‟s Med. Ctr.,
882 F. Supp. 119, 122-23 (N.D. Ill. 1995) (denying motion to
dismiss

where

the

plaintiff‟s

allegations

of

racial

discrimination (racial slurs and the effective denial of the
opportunity to continue his medical residency) were reasonably
related to the EEOC Charge‟s allegation of disparate treatment,
but limiting the plaintiff‟s Title VII claim to the dates listed
in the Charge).
The issue is narrower here, because the court considers
this question only in the context of a hostile work environment
claim, which is fundamentally different from claims of discrete
discriminatory acts.20

That is, where a plaintiff‟s EEOC Charge

alleges a hostile work environment over a specified time period
— a period preceding the Charge filing date by over 180 days —
but

his

complaint

alleges

“reasonably

related”

hostile

work

environment incidents occurring thereafter, must the lawsuit be
dismissed on the ground that the Charge is untimely?

Parker

urges that the answer is “no,” although he cites no authority
and does not flesh out his argument.

The City argues that scope

and timeliness are very different issues and that the Charge‟s
20

On his Intake Questionnaire, Parker checked “yes” when asked
whether he believed he was subjected to conduct that was “so
intimidating, hostile, or offensive that it interfered with [his] job
performance” (Doc. 21, Ex. F at 20), supporting a hostile work
environment claim.

28

timeliness must be determined based upon the dates in the Charge
But the City, like Parker, cites no authority, even

alone.

though it bears the burden of persuasion.
The

court‟s

federal

court

hostile

work

provided

in

independent

opinion

holding

environment
the

EEOC

research
that

a

is

reveals

at

least

one

plaintiff‟s

Title

VII

limited

the

not

claim

Charge.

See

Edwards

v.

to

dates

Murphy-Brown,

L.L.C., 760 F. Supp. 2d 607, 625-26 (E.D. Va. 2011) (holding, in
the

hostile

work

environment

context,

that

discrimination

occurring before the dates alleged in the EEOC Charge was within
the scope of the Charge and could be alleged in the plaintiff‟s
complaint); cf. Alston v. Balt. Gas & Electric Co., No. 07-CV2237,

2008

WL

5428126,

at

*4

n.11

(D.

Md.

Dec.

31,

2008)

(rejecting the argument that plaintiff‟s discrimination claims
were limited by the earliest date stated in her EEOC Charge,
where the applicable limitations period extended even further
back).
The court is not persuaded that Parker‟s Title VII claim
must be considered untimely because of the dates he stated in
his Intake Questionnaire, which constituted his Charge.
are several reasons for this conclusion.

There

First, it appears that

Parker completed his Intake Questionnaire without the aid of
counsel.

Courts should be careful not to hold unrepresented lay

persons in this context to too strict a standard because they
29

frequently do not appreciate the legal implications of how they
articulate their grievances.

See, e.g., Holowecki, 552 U.S. at

406 (“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.”); cf. id. at 402-03 (“[Title VII] sets up a remedial
scheme in which laypersons, rather than lawyers, are expected to
initiate the process. . . .
individuals

who

have

no

The system must be accessible to

detailed

knowledge

of

the

relevant

statutory mechanisms and agency processes.” (citations omitted)
(internal quotation marks omitted)).
Second, Parker‟s EEOC file, which the City urges the court
to construe as part of the pleadings,

demonstrates that the

Commission during its investigation determined the dates of the
alleged hostile work environment to extend beyond those noted by
Parker (i.e., beyond “Summer/04”).

The EEOC‟s “Notice of Charge

of Discrimination” indicates that Parker alleged discrimination
lasting into 2006, within 180 days of his Charge.
Ex. F at 12.)
date

based upon

(See Doc. 21,

It is unclear whether the EEOC determined this
facts disclosed in an Intake Interview with

Parker (see id. at 14) or through some other method pursuant to
its investigation.

Ordinarily, the EEOC would have assisted

30

Parker in the drafting of a “formal” Charge after an Intake
Interview was performed.21

(See id.)

Third, the EEOC notified the City, through both the “Notice
of Charge of Discrimination” and the EEOC‟s subsequent request
for information from the City on “all sworn police officers for
the period of 1/1/04 thru 1/31/06” (id. at 5), that the relevant
period

extended

beyond

2004.22

The

EEOC

then

issued

a

determination that Parker‟s allegations had sufficient merit to
justify
“Black

conciliation
Book”

efforts,

allegations

Amended Complaint.

specifically

later

incorporated

pointing
into

to

the

Plaintiffs‟

(Id. at 7-8.)

Fourth, Parker alleges a hostile work environment claim,
which by its nature allows acts outside a limitations period to
be considered pursuant to a “continuing violation” theory.

See,

e.g., Morgan, 536 U.S. at 105 (“[C]onsideration of the entire
21

See generally Edelman v. Lynchburg Coll., 535 U.S. 106, 115 n.9
(2002) (“The general practice of EEOC staff members is to prepare a
formal charge of discrimination for the complainant to review and to
verify, once the allegations have been clarified.”).
22

Parker‟s situation is thus distinguishable from that in Tillbery v.
Kent Island Yacht Club, Inc., No. 09-CV-2956, 2010 WL 2292499 (D. Md.
June 4, 2010), in which the plaintiff‟s EEOC Charge, signed by the
plaintiff while she was represented by counsel, contained a mistaken
date, which had also been used in two earlier Intake Questionnaires.
See id. at *2, *5. Because of this mistaken date, the EEOC dismissed
the Charge as untimely and never conducted an investigation.
Id. at
*5-*6.
The court held that the plaintiff had not exhausted her
administrative remedies, because her EEOC submissions did not “alert[]
the agency to the possibility that the alleged harassment was ongoing
or occurred on a date other than [the mistaken one].” Id. at *6. As
a result, “the EEOC was not given the chance to investigate [the
plaintiff‟s]
allegations,
or
to
provide
[the
defendant]
with
sufficient notice of them.” Id. at *6 n.6.

31

scope of a hostile work environment claim, including behavior
alleged outside the statutory time period, is permissible for
the

purposes

of

assessing

liability,

so

long

as

an

act

contributing to that hostile environment takes place within the
statutory time period.”).
Complaint

plausibly

Here, the allegations in the Amended

provide

the

required

act

within

the

statutory time period.
In light of all these factors, the court cannot say it is
clear on the face of the pleadings that Parker‟s EEOC Charge was
untimely.

Therefore, the City‟s Rule 12(c) motion on timeliness

grounds will be denied without prejudice.
3.

Defense of Laches

The City‟s final argument is that all Plaintiffs were not
diligent in pursuing their hostile work environment claims.

The

City contends that it was prejudiced because it received notice
of Plaintiffs‟ claims only belatedly and thus was deprived of
the opportunity to remedy the alleged discrimination.

The City

argues that Plaintiffs‟ claims are barred by laches as a result.
Plaintiffs respond that this defense is inappropriate at the
Rule 12(c) stage because it involves a fact-bound inquiry.
“Employers

have

recourse

when

a

plaintiff

unreasonably

delays filing a charge.”

Morgan, 536 U.S. at 121.

remedy

defense

is

the

equitable

of

laches,

“which

One such
bars

a

plaintiff from maintaining a suit if he unreasonably delays in
32

filing a suit and as a result harms the defendant.”

Id.

This

defense “requires proof of (1) lack of diligence by the party
against whom the defense is asserted, and (2) prejudice to the
party asserting the defense.”

Id. at 121-22.

Such equitable

doctrines

to

VII‟s

“allow

[the

courts]

honor

Title

remedial

purpose without negating the particular purpose of the filing
requirement, to give prompt notice to the employer.”
(internal quotation marks omitted).

Id. at 121

Laches is an affirmative

defense, however, see White v. Daniel, 909 F.2d 99, 102 (4th
Cir. 1990), so it may only be reached at the Rule 12(c) stage if
the facts necessary to deciding the issue clearly appear on the
face of the pleadings, see McQuade, 2011 WL 344091, at *3.
The “City Legal Report” attached to the Amended Complaint
alleges that several black GPD officers met with the Interim
City

Manager

in

August

2005

discrimination within the GPD.

to

discuss

alleged

(Doc. 4, Ex. A at 2.)

racial
The City

Manager initiated an investigation that included interviews with
at least one dozen Plaintiffs.

(See id.)

The Amended Complaint

alleges, and the City‟s Answer admits, that the City hired Risk
Management Associates of Raleigh in November 2005 to conduct an
investigation of allegations of discrimination within the GPD.
(Doc. 4 ¶ 96; Doc. 21 ¶ 96.)

After this investigation, the City

accepted the resignations of Wray and Brady, according to the
Answer.

(See Doc. 21 ¶ 90.)

Thus, it is not clear from the
33

pleadings that the City lacked notice of Plaintiffs‟ allegations
until

May

2006

opportunity

to

or

later,

address

as

them

the

City

argues,

earlier.

Rather,

and
the

had

no

opposite

appears true.
To

the

extent

the

City

argues

it

was

unaware

of

each

Plaintiff’s specific allegations, this does not clearly appear
in the uncontested facts in the pleadings.
absent

additional

facts,

that

Plaintiffs

Nor is it clear,
did

not

diligently

pursue their claims, that any delay was unreasonable, or that
any delay so prejudiced the City as to require that the claims
be barred as a matter of equity.
The City relies heavily on Faragher v. City of Boca Raton,
524 U.S. 775 (1998), which held that an employer is vicariously
liable for a hostile work environment “created by a supervisor
with

immediate

employee.”
defense,

(or

successively

Id. at 807.
however,

higher)

authority

over

the

Faragher established an affirmative

where

the

employer

establishes

by

a

preponderance of the evidence that it “exercised reasonable care
to prevent and correct promptly” any harassment and the employee
“unreasonably

failed

to

take

advantage

of

any

preventive

or

corrective opportunities provided by the employer or to avoid
harm otherwise.”23

Id.

The City argues that Plaintiffs‟ alleged

23

Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999)
(Jones, J.) (nonprecedential opinion for lack of concurrences), also

34

delay deprived it of the opportunity to address the alleged
discrimination and thus perhaps jeopardized its ability to make
use of the Faragher affirmative defense.

It is not clear from

the pleadings, however, that the City has been deprived of a
potential

Faragher

omissions.24

defense

by

any

of

Plaintiffs‟

actions

or

Therefore, the City‟s motion for judgment on the

pleadings based on the affirmative defense of laches will be
denied

without

prejudice

to

the

City‟s

right

to

raise

the

defense later upon development of a factual record.
III. CONCLUSION
For the reasons set forth above, therefore,
IT

IS

ORDERED

that

Defendant

The

City

of

Greensboro‟s

motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) (Doc. 29) is DENIED.
/s/
Thomas D. Schroeder
United States District Judge
July 13, 2011

relied upon by the City, merely articulates
Faragher holding. See id. at 264-67.
24

a

variation

on

the

To the contrary, if the City‟s allegations are correct — namely,
that Plaintiffs unduly delayed in pursuing their rights, depriving the
City of notice of their alleged grievances, but that the City took
prompt corrective action once it learned of the allegations — the
City‟s potential Faragher defense may actually be enhanced.

35