FLANAGAN v. SYNGENTA CROP PROTECTION, LLC et al

Filing 17

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/03/2017, that the Amendment Motion (Docket Entry 12 ) is GRANTED. The Clerk shall docket (i) pages four through eight of Docket Entry 12 as the Amended Complaint and (ii) Doc ket Entry 3 -1 as Exhibit 1 to the Amended Complaint. FURTHER ORDERED that the Dismissal Motion (Docket Entry 6 ) is GRANTED IN PART and DENIED IN PART as follows: (i) Plaintiff's Retaliation Claim is DISMISSED for lack of subject m atter jurisdiction; (ii) Plaintiff's Age Discrimination Claim is DISMISSED for failure to state a claim; and (iii) Plaintiff's Breach of Contract and Intentional Infliction of Emotional Distress claims are REMANDED to the Superior Court of North Carolina for Guilford County. A Judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion and Order. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KATHRYN FLANAGAN,
Plaintiff,
v.
SYNGENTA CROP PROTECTION, LLC
and SYNGENTA CORPORATION
Defendants.

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)
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)
)
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)

1:17cv202

MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Defendant’s Motion to
Dismiss” (Docket Entry 6) (the “Dismissal Motion”) and “Plaintiff’s
Motion to Amend her Complaint with Consent” (Docket Entry 12) (the
“Amendment Motion”).

For the reasons that follow, the Court will

grant the Amendment Motion and will grant in part and deny in part
the Dismissal Motion.1
BACKGROUND
Alleging violations of state and federal law, Kathryn M.
Flanagan (the “Plaintiff”) initiated this lawsuit against Syngenta
Crop Protection, LLC (“Syngenta Crop Protection”) and Syngenta
Corporation (collectively, the “Defendants”) in the Superior Court
of North Carolina for Guilford County.

(See Docket Entry 3 (the

1 Pursuant to the parties’ consent, United States District
Judge Catherine C. Eagles referred this matter to the undersigned
United States Magistrate Judge for all proceedings. (See Docket
Entries 15, 15-1.)

“Complaint”) at 1-4).2

Based on federal question jurisdiction

regarding “Counts ‘One’ and ‘Two’” and “supplemental jurisdiction
[regarding] Counts ‘Three,’ ‘Four’ and ‘Five’” (Docket Entry 1 at
2), Defendants removed the lawsuit to this Court (see id. at 1, 3).
Syngenta Crop Protection then moved to dismiss the Complaint
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure (the “Rules”).

(See Docket Entry 6.)3

2 Docket Entry page citations utilize the CM/ECF footer’s
pagination.
3 Syngenta Corporation neither joined the Dismissal Motion
nor filed a separate motion to dismiss. (See, e.g., Docket Entry
13 at 1 (“Defendant Sygenta [sic] Crop Protection, LLC
(‘Defendant’), by and through its undersigned counsel, hereby
submits the following Reply in Support of Defendant’s Motion to
Dismiss the Complaint filed against it by Plaintiff Kathryn
Flanagan (‘Plaintiff’).” (footnotes omitted)); see also Docket
Entries dated Mar. 9, 2017, to present.) Syngenta Crop Protection,
however, has asserted that, “[b]ecause Plaintiff’s [administrative]
charge failed to name Syngenta Corporation as a Respondent,
Syngenta Corporation should be dismissed from this lawsuit pursuant
to [Rule] 12(b)(1).” (Docket Entry 7 at 6.) Regardless of whether
Syngenta Crop Protection may raise an argument on behalf of
Syngenta Corporation, “[a] federal court has an independent
obligation to assess its subject[ ]matter jurisdiction . . . .”
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 480 (4th Cir. 2005). In this case, however, for reasons set
forth in Part II of the Discussion, the Court clearly lacks subject
matter jurisdiction (for a different reason) over one of
Plaintiff’s federal claims, Plaintiff’s other federal claim clearly
fails as a matter of law, and no reason exists for the Court to
retain jurisdiction over Plaintiff’s state-law claims. Moreover,
deciding whether
Syngenta
Corporation’s absence
from the
administrative charge defeats subject matter jurisdiction presents
some difficulty. See, e.g., Meadows v. Charles Cty. Sch. Bd. of
Educ., No. CV 16-2897, 2017 WL 2618272, at *6 (D. Md. June 16,
2017) (discussing the “substantial identity” exception to the
administrative exhaustion naming requirement, which necessitates
examination of, inter alia, the “similarity of interests between
named and unnamed parties” and whether the unnamed party suffered
2

After
(see

Docket

responding
Entry

11

in

opposition

(the

to

“Response”)),

the

Dismissal

Plaintiff

Motion

filed

her

Amendment Motion (Docket Entry 12), which Defendants did not oppose
(see Docket Entries dated May 19, 2017, to present).

Instead, in

its “Reply in Support of Defendant’s Motion to Dismiss” (Docket
Entry 13) (the “Reply”), Syngenta Crop Protection asked that the
“Court rule on the merits of [the Dismissal Motion]” as applied to

actual prejudice from its omission (internal quotation marks
omitted)); Pashby v. Letum Care, Inc., No. CIVA 05-1507, 2006 WL
2700697, at *4-5 (W.D. La. Sept. 15, 2006) (“An age discrimination
suit can be brought against a person not named in the notice of
intent if (1) there is substantial identity between the defendant
not named in the notice and the defendant who was so named, and
(2) the unnamed defendant had notice of the administrative
proceeding.” (collecting cases)); see also Keener v. Universal
Cos., Inc., 128 F. Supp. 3d 902, 915-17 (M.D.N.C. 2015) (concluding
that substantial identity exception applied to the defendants).
The record before the Court makes this determination particularly
difficult, as Syngenta Crop Protection pursues a dismissal argument
on behalf of Syngenta Corporation based solely on the fact that
they “are distinct legal entities” (Docket Entry 7 at 5), with
Syngenta Crop Protection qualifying as a wholly-owned subsidiary of
Syngenta Corporation (id. at 6 n.5), while Plaintiff (i) avers that
she “advised the [Equal Employment Opportunity Commission (the
‘EEOC’)] that [her] employer was both Syngenta Crop Protection,
Inc. and Syngenta Corporation” (Docket Entry 11 at 12) and
(ii)
implies
that
both
Defendants
participated
in
the
administrative process (see id. at 2-3). Accordingly, under these
unique circumstances, the Court will forego resolution of that
matter. Avoiding that subject matter jurisdiction question “is not
an impermissible exercise of ‘hypothetical jurisdiction’ prohibited
by Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89101 (1998). That case prohibits resolution of a case on the merits
based on the assumption that Article III jurisdiction exists. See
id. at 97 n.2.
But it permits resolution of merits questions
before resolution of statutory jurisdictional questions [such as
administrative exhaustion].” JDS Uniphase Corp. v. Jennings, 473
F. Supp. 2d 705, 711 n.5 (E.D. Va. 2007) (internal parallel
citations omitted); accord, e.g., Mozingo v. South Fin. Grp., Inc.,
520 F. Supp. 2d 733, 740 (D.S.C. 2007).
3

Plaintiff’s proposed Amended Complaint. (Id. at 1 n.2.) Plaintiff
filed no objection to that request.

(See Docket Entries dated May

30, 2017, to present.)
DISCUSSION
I. Amendment Motion
Through the Amendment Motion, Plaintiff seeks leave to “amend
Count 2 of her [C]omplaint.”

(Docket Entry 12 at 1.)

At this

stage of the proceedings, Plaintiff may amend her Complaint “only
with [Defendants’] written consent or the [C]ourt’s leave.”
R. Civ. P. 15(a)(2).

Fed.

Plaintiff states that Defendants consent to

the requested amendment.

(See Docket Entry 12 at 1.)

do not dispute this representation.

Defendants

(See Docket Entry 13 at 1 n.2,

6 n.5; see also Docket Entries dated May 19, 2017, to present
(containing no filing from Syngenta Corporation).)

Accordingly,

the Court will grant the Amendment Motion.
Plaintiff attached her proposed “[A]mended [C]omplaint which
contains only changes to Count 2 of her original [C]omplaint” to
the Amendment Motion.

(Docket Entry 12 at 1.)

More specifically,

Plaintiff submitted the “Amended Complaint” as pages four through
eight, and “Exhibit 1” as pages ten through twelve, of Docket Entry
12.

(See id. at 4-12 (all-cap font omitted).)

The copy of Exhibit

1 attached to the Amendment Motion omits one page of the exhibit.
(Compare id. at 10-12, with Docket Entry 3-1.)

Given Plaintiff’s

stated intention to change only Count Two (see Docket Entry 12 at

4

1), which lacks reference to Exhibit 1 (see id. at 4-6), the Court
will deem the Amended Complaint to contain (i) pages four through
eight of the Amendment Motion (id. at 4-8) and (ii) Exhibit 1 as
filed with the original Complaint (Docket Entry 3-1).
II. Dismissal Motion
A. Preliminary Considerations
Plaintiff moved to amend her Complaint while the Dismissal
Motion remained pending.

(See Docket Entries dated Mar. 15, 2017,

to May 19, 2017.) In its Reply, Syngenta Crop Protection addressed
the proposed Amended Complaint and requested that the Court rule on
the

Dismissal

Motion

“without

issuing

an

order

mooting

[the

Dismissal Motion, the Response, and the Reply] and requiring the
parties to re-file” (Docket Entry 13 at 1 n.2).

(See, e.g., id.

(asserting that the Amended Complaint “is substantively identical
to the instant Complaint, except that it adds a reference to the
Age Discrimination in Employment Act (the ‘ADEA’),” and that “the
only portion of Defendant’s pending [Dismissal Motion] that would
be mooted by Plaintiff’s proposed amendment is Part III.2 (Dkt. No.
7, at 9), which notes that Plaintiff improperly asserted an age
discrimination claim pursuant to Title VII [of the Civil Rights Act
of

1964

(‘Title

VII’)],

rather

than

the

ADEA”

(emphasis

in

original)).) Plaintiff neither disputes Syngenta Crop Protection’s
characterization of the Amended Complaint nor opposes its request

5

to apply the Dismissal Motion to the Amended Complaint.

(See

Docket Entries dated May 30, 2017, to present.)
“As a general rule, an amended pleading ordinarily supersedes
the original and renders it of no legal effect.”

Young v. City of

Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (internal quotation
marks omitted).

Thus, the filing of an amended complaint normally

moots a pending motion to dismiss.

See, e.g., Mooney v. Cato

Corp., No. 1:07cv76, 2007 WL 2406961, at *1 (W.D.N.C. Aug. 20,
2007).

Here, however, the Amended Complaint differs from the

original Complaint in only minor respects (compare Docket Entry 12
at

4-8,

with

Docket

Entry

3),

and

Syngenta

Crop

Protection

addressed the Amended Complaint in its Reply (see generally Docket
Entry 13).

Moreover, the majority of Syngenta Crop Protection’s

dismissal arguments apply equally to the Amended Complaint as to
the

Complaint.

(See,

e.g.,

id.

at

1

n.2.)

Under

the

circumstances, the Court will “consider the [Dismissal M]otion as
being addressed to the [A]mended [Complaint],” 6 Charles Alan
Wright, et al., Federal Practice and Procedure § 1476 (3d ed.
2017).

See Brumfield v. McCann, No. 2:12-cv-1481, 2013 WL 943807,

at *2-3 (S.D. W. Va. Mar. 11, 2013) (granting motion to amend
complaint, but concluding that court could still consider pending
dismissal motions, and collecting cases).
The Amended Complaint asserts five counts against Defendants.
(See Docket Entry 12 at 4-8.)

Specifically, Plaintiff asserts

6

claims for (i) “Age Discrimination/Retaliation,” in violation of
federal law (Count One) (the “Retaliation Claim”); (ii) “Age
Discrimination,” in violation of federal law (Count Two) (the “Age
Discrimination Claim”); (iii) “Breach of Contract” (Count Three);
and (iv) “Intentional Infliction of Emotional Distress” (Counts
Four and Five).

(Id. at 5-7 (all-cap font omitted).)

Syngenta

Crop Protection moves to dismiss Plaintiff’s Retaliation Claim for
failure to exhaust administrative remedies and further moves to
dismiss all counts for failure to state a claim upon which relief
can be granted.
each request.

(See Docket Entries 6, 7, 13.)

Plaintiff opposes

(See generally Docket Entry 11.)

B. Retaliation Claim
i. Jurisdictional Standards
Syngenta Crop Protection requests dismissal of Plaintiff’s
Retaliation Claim under Rule 12(b)(1).

(See Docket Entry 7 at 7.)

In her Amended Complaint (and Response), Plaintiff asserts that she
appropriately exhausted administrative remedies on this claim.
(See Docket Entry 12 at 7 (“Plaintiff has complied with all
necessary prerequisites and has received a ‘right to sue letter’
from the” Equal Employment Opportunity Commission (the “EEOC”).);
see also Docket Entry 11 at 4 (“Plaintiff has raised a valid claim
of retaliation both herein and before the EEOC.”).)

Conversely,

Syngenta Crop Protection contends that Plaintiff failed to exhaust
administrative remedies on her Retaliation Claim, depriving the

7

Court of subject matter jurisdiction over that claim.

(See Docket

Entry 7 at 7-9; Docket Entry 13 at 4-6.)
By asserting “that the jurisdictional allegations of the
[Amended C]omplaint [are] not true,” Syngenta Crop Protection
raises

a

factual

jurisdiction.

challenge

to

the

Court’s

subject

matter

Kerns v. United States, 585 F.3d 187, 192 (4th Cir.

2009) (internal quotation marks omitted; final set of brackets in
original); see also Fonjungo v. Rite Aid Corp., No. CV 16-760, 2017
WL 1546415, at *4 (D. Md. Apr. 28, 2017) (“[The defendant] brings
a factual challenge because it argues that [the plaintiff] failed
to exhaust the administrative remedies for his claim under Title
VII.”).

Where, as here, the factual challenge does not implicate

the merits of the case, the “[C]ourt is entitled to decide disputed
issues of fact with respect to subject matter jurisdiction.”
Kerns, 585 F.3d at 192-93; see also United States ex rel. Vuyyuru
v.

Jadhav,

555

F.3d

337,

348

(4th

Cir.

2009)

(“Unless

‘the

jurisdictional facts are intertwined with the facts central to the
merits of the dispute,’ the district court may . . . resolve the
jurisdictional facts in dispute by considering evidence outside the
pleadings,

such

as

affidavits.”

(internal

quotation

marks

omitted)).
In so doing, the Court “may regard the pleadings as mere
evidence on

the

issue

and

may

consider

evidence

outside

the

pleadings without converting the proceeding to one for summary

8

judgment.”

Velasco v. Government of Indonesia, 370 F.3d 392, 398

(4th Cir. 2004).
subject

matter

Plaintiff bears the burden of establishing

jurisdiction

for

her

Retaliation

Claim.

See

Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991) (“When a Rule 12(b)(1) motion
challenge

is raised

to

the

factual

basis

for

subject

matter

jurisdiction, the burden of proving subject matter jurisdiction is
on the plaintiff.”); see also Calloway v. Durham Cty. Pub. Sch. Bd.
of Educ., No. 1:15cv187, 2016 WL 634878, at *4 (M.D.N.C. Feb. 17,
2016)

(concluding

that

the

plaintiff

bore

the

burden

of

establishing administrative exhaustion in employment discrimination
case removed under federal question jurisdiction).4
“An employee seeking redress for discrimination cannot file
suit until she has exhausted the administrative process.” Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013).
To satisfy this requirement, a plaintiff must file a charge with

4 Because they removed this case to federal court, Defendants
bore an initial burden of establishing federal subject matter
jurisdiction. See Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d
Cir. 2006) (“It is well-settled that the party asserting federal
jurisdiction bears the burden of establishing jurisdiction.”); see
also McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S.
178, 189 (1936) (“The prerequisites to the exercise of jurisdiction
. . . . are conditions which must be met by the party who seeks the
exercise of jurisdiction in his favor.”). Defendants removed this
case based on federal question jurisdiction (see Docket Entry 1 at
2-3), and Plaintiff undisputedly raises claims under federal law
(see Docket Entry 12 at 5-6; see also Docket Entry 3 at 2-3). “As
a result, removal and this [C]ourt’s subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 are not in dispute.” Calloway, 2016
WL 634878, at *4.
9

the EEOC regarding the alleged discrimination.

See Evans v.

Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th
Cir. 1996) (discussing procedures under the ADEA and Title VII).
This “EEOC charge defines the scope of [the plaintiff’s] subsequent
right to institute a civil suit.

If a plaintiff’s claims in her

judicial complaint are reasonably related to her EEOC charge and
can

be

expected

investigation,

to

the

follow

from

plaintiff

subsequent civil suit.”

may

a

reasonable

advance

such

administrative
claims

in

her

Smith v. First Union Nat’l Bank, 202 F.3d

234, 247 (4th Cir. 2000) (citation omitted). Thus, “a [subsequent]
lawsuit may extend to any kind of discrimination like or related to
allegations

contained

in

the

charge

and

growing

out

of

such

allegations during the pendency of the case before the [EEOC].”
Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (internal
quotation

marks

omitted).

Nevertheless,

“a

claim

in

formal

litigation will generally be barred if the EEOC charge alleges
discrimination

on

one

basis,

such

as

race,

and

the

formal

litigation claim alleges discrimination on a separate basis, such
as sex.”

Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.

2009).
ii. Analysis
The

Amended

retaliation claim.

Complaint

appears

to

assert

an

age-related

For instance, the Amended Complaint states:

10

5. From approximately July 2015 through her termination,
Plaintiff was subjected to disparate and discriminatory
treatment by Defendants due to her age. . . .
6. After bringing complaint of this treatment to the
attention of Defendants, Defendants failed to fairly
treat [P]laintiff. Shortly after making said complaints,
Plaintiff was subjected to even further discriminatory
treatment and subjected to punitive and retaliatory
treatment.
. . . .
11. Due to Plaintiff’s complaint in regards to her
treatment and discrimination, Defendants retaliated
against Plaintiff by discharging her.
(Docket Entry 12 at 4-5.)

However, the Amended Complaint alleges

the Retaliation Claim pursuant to Title VII, rather than the ADEA.
(See id. at 5.) Given the foregoing allegations, though, the Court
construes Plaintiff’s Retaliation Claim as an age-based retaliation
claim under the ADEA.

See, e.g., Gray v. Walmart Stores, Inc., No.

7:10-cv-171, 2011 WL 1831780, at *3 (E.D.N.C. May 12, 2011) (“[The
p]laintiff also appears to assert an age discrimination claim
pursuant to Title VII.

However, the Fourth Circuit Court of

Appeals has held that the [ADEA] provides the exclusive judicial
remedy for claims of age discrimination.

Accordingly, the court

will consider [the] plaintiff’s age discrimination claim under the
ADEA.” (citations and internal quotation marks omitted)).5

5
The Court recognizes (i) that, unlike with her Age
Discrimination Claim, Plaintiff did not amend her Retaliation Claim
to include an ADEA reference (see Docket Entry 12 at 5-6), and
(ii) that Plaintiff’s affidavit asserts that she “advised [the
EEOC] that [she] was the victim of . . . sex discrimination”
(Docket Entry 11 at 12).
Plaintiff further asserts that she
11

Syngenta Crop Protection asserts that Plaintiff failed to
exhaust her Retaliation Claim because (i) she failed to “check the
box indicating ‘Retaliation’ on her charge” and (ii) her “charge
does not contain any allegations that Plaintiff complained about
such perceived age discrimination to [Syngenta Crop Protection] or
that [Syngenta Crop Protection] discharged her in retaliation for
such complaints.”

(Docket Entry 7 at 8.)

In response to these

contentions, Plaintiff submitted an affidavit stating that she
“advised [the EEOC] that [she] was the victim of retaliation as
well as age and sex discrimination.”

(Docket Entry 11 at 12; see

“specifically advised the EEOC that [her] termination was due to
discriminatory treatment due to [her] age and retaliation for
comments that [she] had made about improper conduct by a superior
and former manager of the I.P. department at Defendants’ location
in N.C.” (Id. at 11; see also id. at 4 (maintaining that Plaintiff
“engaged in a protected activity [by] discussing improper conduct
of a senior manager (diversion of company assets)” (internal
quotation marks omitted)).) The Court concludes, however, that any
retaliation claim based on either sex discrimination or reporting
another employee’s diversion of assets necessarily fails. To begin
with, reporting illicit use of funds does not, standing alone,
constitute protected activity under either Title VII or the ADEA.
See 42 U.S.C. § 2000e-2 (prohibiting discrimination based on “race,
color, religion, sex, or national origin”); 29 U.S.C. § 623(a)(1)
(prohibiting discrimination based on an “individual’s age”).
Moreover, referencing only age discrimination, Plaintiff’s EEOC
charge lacks any hint of sex discrimination (or diversion of
assets), let alone retaliation for reporting such conduct.
(See Docket Entry 6-1 at 2.) As such, Plaintiff failed to exhaust
any sex-based retaliation claim.
See, e.g., Sydnor v. Fairfax
Cty., Va., 681 F.3d 591, 593-94 (4th Cir. 2012) (explaining that
the Fourth Circuit has “not found exhaustion where a charge alleges
only racial discrimination but the complaint includes sex
discrimination or where a charge alleges only retaliation but the
complaint alleges racial discrimination as well” (citation
omitted)).
12

also

id.

at

11

(“I

specifically

advised

the

EEOC

that

my

termination was due to discriminatory treatment due to my age and
retaliation for comments that I had made about improper conduct by
a superior and former manager of the I.P. department at Defendants’
location in N.C.”).)

Notably, though, Plaintiff neither asserts

that she amended her EEOC charge to contain such information nor
disputes that Docket Entry 6-1 constitutes her operative EEOC
charge.

(See generally Docket Entry 11.)

Accordingly, the Court

evaluates whether Plaintiff exhausted her Retaliation Claim by
examining this EEOC charge.
As an initial matter, “[Plaintiff’s] failure to check a box on
the [EEOC] form is not dispositive.

Instead, [the Court] look[s]

at the charge as a whole, and the absence of a checked box is only
one factor in [its] analysis.”
233, 238-39 (4th Cir. 2016).

Mercer v. PHH Corp., 641 F. App’x

Here, Plaintiff’s EEOC charge checks

the “age” discrimination box, but does not select the “retaliation”
box or any other discriminatory category.
(all-cap font omitted).)

(Docket Entry 6-1 at 2

As to the “particulars” of the alleged

discrimination, it states:
I’d been employed by the Respondent since 2007; most
recently as an Administrative Assistant within the
Corporate Legal Department. In February 2015[,] however,
I was abruptly and involuntarily transferred from my
position to the aforementioned position by North American
Legal Department Manager/General Counsel, Steve Berreth.
I was fully trained and proficient in my original
position
and
my
performance
had
been
meeting
expectations.

13

In December 2015, I was discharged by Mr. Berreth
for not performing well in the position I was
involuntarily transferred to.
Although I’d not been
properly trained to perform or provided regular
assistance with the duties associated with that position,
I strove to succeed and performed as well as can be
expected given the circumstances. In the end, my efforts
and prior years of service were completely discounted.
I believe that I have been discriminated against due
to my age (68) in violation of The Age Discrimination
Employment Act of 1967, as amended.
(Id. (all-cap font omitted).)
This

description

lacks

any

indication

that

Plaintiff

experienced retaliation for reporting discriminatory (or otherwise
improper)

conduct.

Indeed,

it

does

not

even

indicate

that

Plaintiff reported any problematic conduct to Defendants, let alone
that Plaintiff complained of perceived age discrimination.

Given

this

“age”

description

and

its

identification

of

only

the

discrimination box, nothing in the EEOC charge suggests that an
ensuing “reasonable administrative investigation,” Smith, 202 F.3d
at 247, would involve the retaliation allegations Plaintiff now
presents.

Under the circumstances, Plaintiff failed to establish

that

administratively

she

necessitating

its

exhausted

dismissal.

See

the
Jones,

Retaliation
551

F.3d

Claim,
at

301

(concluding that the plaintiff exhausted only her retaliation claim
and ordering “dismiss[al of her unexhausted age, sex, and race
discrimination claims] for lack of subject matter jurisdiction”).

14

C. Age Discrimination Claim
i. Rule 12(b)(6) Standards
Contending that “Plaintiff has not stated a single claim upon
which relief can be granted,” Syngenta Crop Protection seeks
dismissal of Plaintiff’s Age Discrimination Claim pursuant to Rule
12(b)(6).

(Docket Entry 6 at 1.)

A Rule 12(b)(6) motion “tests

the sufficiency of a complaint,” but “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.”

Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992).

In reviewing a motion to dismiss, the Court

must “accept the facts alleged in the complaint as true and
construe them in the light most favorable to the plaintiff.”
Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 (4th Cir.
2010), aff’d sub nom., Coleman v. Court of Appeals of Md., 556 U.S.
30 (2012).

The Court must also “draw all reasonable inferences in

favor of the plaintiff.”

E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (internal quotation
marks omitted).
In ruling on a Rule 12(b)(6) motion, “a court evaluates the
complaint

in its

entirety, as

well

as

documents

attached

or

incorporated into the complaint.” Id. at 448. Generally, a “court
cannot go beyond these documents” without “convert[ing] the motion
into one for summary judgment,” an action from which courts should
refrain

“where

the

parties

have

15

not

had

an

opportunity

for

reasonable discovery.

Additionally, statements by counsel that

raise new facts constitute matters beyond the pleadings and cannot
be considered on a Rule 12(b)(6) motion.”

Id. at 448-49 (citation

omitted). Nevertheless, in reviewing 12(b)(6) motions, courts “may
properly

take

judicial

notice

of

matters

of

public

record.”

Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009).
To survive a Rule 12(b)(6) motion, a complaint must contain
sufficient factual allegations “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)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.
contain

detailed

factual

Id.

recitations,

A complaint need not

but

must

provide

the

defendant “fair notice of what the claim is and the grounds upon
which it rests.”

Twombly, 550 U.S. at 555 (internal quotation

marks and alteration omitted).

Thus, although a plaintiff must

allege sufficient facts “to state all the elements of her claim,”
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003), she need not plead facts constituting a McDonnell Douglas
prima facie case of discrimination to survive a motion to dismiss,
Swierkiewicz

v.

Sorema

N.

A.,

534

(analyzing Title VII and ADEA claims).

16

U.S.

506,

514-15

(2002)

ii. Analysis
The ADEA prohibits an employer from discharging “or otherwise
discriminat[ing] against any individual with respect to h[er]
compensation,

terms,

conditions,

or

because of such individual’s age.”

privileges

of

employment,

29 U.S.C. § 623(a)(1).

To

qualify for ADEA protections, an individual must be “at least 40
years of age.”

29 U.S.C. § 631(a).

Thus, to state an ADEA claim,

a plaintiff must allege facts showing that she qualifies as aged 40
or older and experienced employment discrimination because of her
age.

Although not required, see Swierkiewicz, 534 U.S. at 514-15,

a plaintiff can satisfy this standard by pleading facts showing
that
(1) she is a member of a protected class — that is, forty
years or older; (2) she suffered adverse employment
action; (3) she was performing her job duties at a level
that met her employer’s legitimate expectations at the
time of the adverse employment action; and (4) the
position remained open or she was replaced by a
substantially younger person,
Hartman v. University of Md. at Balt., 595 F. App’x 179, 181 (4th
Cir. 2014) (internal quotation marks omitted); see also Buchhagen
v.

ICF

Int’l,

Inc.,

545

F.

App’x

217,

220

(4th

Cir.

2013)

(concluding that a “complaint sufficiently allege[d] unlawful age
discrimination” where it “allege[d] that [the plaintiff] is a
member of a protected class (she was 67 when she was fired); that
she suffered an adverse employment action (termination); and that
she was replaced by a substantially younger employee” and also

17

contained

factual

“allegations

of

disparate

treatment

and

pretext”).
As relevant to the Age Discrimination Claim, the Amended
Complaint alleges:
4. Plaintiff was employed by Defendants for a period of
approximately eight (8) years as an administrative
assistant, an employee relations coordinator, and events
coordinator for the legal department and legal secretary
during said term of Plaintiff’s employment with
Defendants from approximately August, 2007 thru December,
2015.
5. From approximately July 2015 through her termination,
Plaintiff was subjected to disparate and discriminatory
treatment by Defendants due to her age.
She was
regularly
misled
about
her
position
and
job
responsibilities by Defendants.
Defendants routinely
changed Plaintiff’s job duties and on occasions failed to
train or support her for the different positions[.]
6. After bringing complaint of this treatment to the
attention of Defendants, Defendants failed to fairly
treat [P]laintiff. Shortly after making said complaints,
Plaintiff was subjected to even further discriminatory
treatment and subjected to punitive and retaliatory
treatment.
7. Plaintiff was moved to at least one other position
without training or support.
This was intentionally
undertaken to create a situation in which Plaintiff would
likely fail.
. . . .
10. Upon information and belief, Defendants was [sic]
aware and on notice that Plaintiff had complained of
misconduct by its [sic] employees who were discriminating
against her due to her age. Said conduct was reported to
management of Defendants but the discriminating treatment
of
Plaintiff
continued
Defendants,
[sic]
thus,
demonstrating that Defendants tolerated and encouraged
said offensive conduct by its [sic] employees.

18

11. Due to Plaintiff’s complaint in regards to her
treatment and discrimination, Defendants retaliated
against Plaintiff by discharging her.
. . . .
14. Plaintiff was terminated by Defendants as a results
[sic] of her age.
15. Plaintiff was terminated under a pattern and practice
of age discrimination adopted by Defendants.
(Docket Entry 12 at 4-5.)
These allegations fail to plead a viable ADEA claim.
fundamentally,

nothing

in

the

Amended

Plaintiff qualifies for ADEA protections:

Complaint

shows

Most
that

the Amended Complaint

neither specifies Plaintiff’s age nor details an employment history
of sufficient length to imply that Plaintiff qualifies as aged
forty or older.

In addition, the Amended Complaint contains only

conclusory allegations of age discrimination.

(See, e.g., id. at

5 (“Plaintiff was terminated by Defendants as a result[] of her
age.”).)

However, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not
suffice” under Rule 12(b)(6).

Iqbal, 556 U.S. at 678.

As pleaded

in the Amended Complaint, therefore, the Age Discrimination Claim
cannot withstand Rule 12(b)(6) dismissal.
Even

augmented

by

the

allegations

in

Plaintiff’s Age Discrimination Claim fails.6

the

EEOC

charge,

The EEOC charge

6
The Court may consider Plaintiff’s EEOC charge without
converting the Dismissal Motion into a motion for summary judgment.
19

supplies Plaintiff’s age (68) and alleges that she “was fully
trained

and

proficient

in

[her]

original

position

and

[her]

performance had been meeting expectations” prior to her transfer in
February 2015 to the position from which she “was discharged . . .
for not performing well” in December 2015.
2.)

(Docket Entry 6-1 at

It further alleges that Plaintiff had “not been properly

trained to perform or provided regular assistance with the duties
associated with that [new] position, [but] strove to succeed and
performed as well as can be expected given the circumstances.”
(Id.)

Thus, to the extent Plaintiff’s Age Discrimination Claim

encompasses her initial transfer and all subsequent conduct (but
see Docket Entry 12 at 4 (alleging that discrimination occurred
“[f]rom approximately July 2015 through her termination”)), the
EEOC charge supplies the first three elements of the McDonnell
Douglas prima facie ADEA case (i.e., qualifying age, adverse
employment action, and satisfactory performance). However, nothing
in the Amended Complaint or EEOC charge suggests that Plaintiff’s
“position remained open or she was replaced by a substantially
younger person,” Hartman, 595 F. App’x at 181 (internal quotation
marks omitted).

(See Docket Entries 6-1, 12.)7

See Johnson v. Lemonds, No. 1:15cv410, 2016 WL 447494, at *2 n.4
(M.D.N.C. Feb. 4, 2016).
7
Both the Response and Plaintiff’s supporting affidavit
assert that “a much younger female employee” replaced Plaintiff in
at least one position. (Docket Entry 11 at 1, 11.) The Court
20

Moreover, neither the Amended Complaint nor the EEOC charge
contains

factual

allegations

suggesting

that

Defendants

took

adverse employment action against Plaintiff because of her age.
See generally Buchhagen, 545 F. App’x at 220 (detailing allegations
of disparate treatment, including that supervisor (1) “mentored
younger employees and sent them to management training courses, but
declined to do so for [the plaintiff],” (2) “played favorites with
younger employees,” and (3) “move[d] responsibilities away from
[the plaintiff] to her younger (and less experienced) colleagues”
(internal quotation marks omitted; second set of brackets in
original)).

Under the circumstances, Plaintiff “has not nudged

[her] claim[] of invidious discrimination across the line from
conceivable to plausible.”

Iqbal, 556 U.S. at 680 (internal

quotation

The

marks

omitted).

Court

will

therefore

dismiss

Plaintiff’s Age Discrimination Claim.8
D. State-Law Claims
Plaintiff’s Breach of Contract and Intentional Infliction of
Emotional Distress claims arise under North Carolina law.
Docket Entry 12 at 6-7.)

(See

Syngenta Crop Protection asks the Court

cannot consider such statements in evaluating the sufficiency of
the Amended Complaint. See E.I. du Pont, 637 F.3d at 448-49.
8
Because Plaintiff amended her Age Discrimination Claim
while on notice of its defects (from the Dismissal Motion) without
addressing those defects in the Amended Complaint, the Court
declines to defer adjudication of this claim to allow Plaintiff
another opportunity to amend.
21

to exercise supplemental jurisdiction over these claims (see Docket
Entry 1 at 2-3) and adjudicate their merits (see Docket Entry 6 at
1-2).

More specifically, Syngenta Crop Protection asks the Court

to determine that Plaintiff’s claims fail to meet federal pleading
standards and “dismiss Plaintiff’s [Amended] Complaint in its
entirety with prejudice.”

(Id. at 2.)

The Court “enjoy[s] wide latitude in determining whether or
not to retain jurisdiction over state claims when all federal
claims have been extinguished.”

Shanaghan v. Cahill, 58 F.3d 106,

110 (4th Cir. 1995); see also 28 U.S.C. § 1367(c) (explaining that
a “court[] may decline to exercise supplemental jurisdiction over
a claim . . . [when it] has dismissed all claims over which it has
original jurisdiction”).

Relevant

considerations

in

deciding

whether to exercise supplemental jurisdiction include “convenience
and fairness to the parties, the existence of any underlying issues
of federal policy, comity, and considerations of judicial economy.”
Shanaghan, 58 F.3d at 110.

As a general rule, these factors

counsel in favor of declining jurisdiction “when the federal-law
claims have dropped out of the lawsuit in its early stages and only
state-law claims remain.”

Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 (1988); see also id. at 350 n.7 (“[I]n the usual case
in which all federal-law claims are eliminated before trial, the
balance of factors to be considered . . . — judicial economy,

22

convenience, fairness, and comity — will point toward declining to
exercise jurisdiction over the remaining state-law claims.”).
Under the circumstances of this case, the Court sees no reason
to depart from this general rule. See Waybright v. Frederick Cty.,
Md., 528 F.3d 199, 209 (4th Cir. 2008) (“With all its federal
questions gone, there may be the authority to keep [the case] in
federal court under 28 U.S.C. §§ 1367(a) and 1441(c) (2000), but
there is no good reason to do so.”).

Accordingly, the Court will

decline to exercise supplemental jurisdiction over Plaintiff’s
state-law claims, which it will remand to state court.

See id.

(affirming remand of state-law claims and observing that, after
dismissal of all federal claims, “the better path is to send [the
plaintiffs’] case back to state court”); see also Carnegie-Mellon,
484 U.S. at 353 (observing that “a remand may best promote the
values of economy, convenience, fairness, and comity” when a
federal court

determines that “the exercise of [supplemental]

jurisdiction over [the] case[] would be inappropriate”).
CONCLUSION
Defendants
Complaint,

consent

rendering

to

Plaintiff’s

amendment

proper.

request

to

However,

amend
the

her

Amended

Complaint does not state a plausible Age Discrimination Claim and
Plaintiff

failed

Retaliation Claim.

to

exhaust

administrative

remedies

on

her

Under these circumstances, the Court declines

23

to exercise supplemental jurisdiction over Plaintiff’s state-law
claims.
IT IS THEREFORE ORDERED that the Amendment Motion (Docket
Entry 12) is GRANTED.

The Clerk shall docket (i) pages four

through eight of Docket Entry 12 as the Amended Complaint and
(ii) Docket Entry 3-1 as Exhibit 1 to the Amended Complaint.
IT IS FURTHER ORDERED that the Dismissal Motion (Docket Entry
6)

is

GRANTED

IN

PART

DENIED

and

IN

PART

as

follows:

(i) Plaintiff’s Retaliation Claim is DISMISSED for lack of subject
matter jurisdiction; (ii) Plaintiff’s Age Discrimination Claim is
DISMISSED for failure to state a claim; and (iii) Plaintiff’s
Breach of Contract and Intentional Infliction of Emotional Distress
claims are REMANDED to the Superior Court of North Carolina for
Guilford County.
A

Judgment

dismissing

this

action

will

be

entered

contemporaneously with this Memorandum Opinion and Order.
This 3rd day of August, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

24