FOUST v. DUKE UNIVERSITY et al

Filing 29

MEMORANDUM OPINION AND ORDER signed by Chief/Senior District Judge CATHERINE C. EAGLES on 03/12/2025, that: 1. Duke University's motion to dismiss, Doc. 21 , is GRANTED as to all Title VII claims and as to any § 1981 claim for hostile work environment. Any Title VII claim for failure to rehire is dismissed without prejudice for failure to exhaust. The motion is otherwise DENIED, and the plaintiff's § 1981 discriminatory termination and retaliation claims may proceed. 2. Susan Gordon's motion to dismiss, Doc. 23 , is GRANTED as to any § 1981 claim for hostile work environment. The motion is otherwise DENIED, and the plaintiff's § 1981 discriminatory terminat ion and retaliation claims may proceed. 3. Defendants SHALL file answer no later than March 27, 2025. 4. No later than March 20, 2025, the plaintiff SHALL serve a preliminary Rule 26(a)(1) disclosure setting forth each of the "derogatory comment s about [his] race and color" he contends were made by defendant Gordon and the content of emails from defendant Gordon that the plaintiff found "racially offensive," and the plaintiff SHALL provide copies to defense counsel of any such emails in his possession or control. Additional Rule 26(a)(1) disclosures will be required when set in the Scheduling Order. 5. The matter is referred to the Magistrate Judge for an initial pretrial scheduling conference. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
FREDDIE FOUST,
Plaintiff,
v.
DUKE UNIVERSITY and SUSAN
GORDON,
Defendants.

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1:24-CV-242

MEMPORANDUM OPINION AND ORDER
Catherine C. Eagles, Chief Judge.
The plaintiff, Freddie Foust, has sued his former employer, Duke University,
asserting that his employment was terminated and that he was not rehired because of his
race and in retaliation for engaging in protected activity, all in violation of Title VII and
42 U.S.C. § 1981. He also brings a discriminatory termination and retaliatory
termination claim under § 1981 against his former supervisor, Susan Gordon. Because
Mr. Foust did not timely exhaust his administrative remedies, his Title VII claims will be
dismissed. Mr. Foust’s § 1981 claims will be dismissed to the extent he asserts a claim
for hostile work environment because the facts alleged are insufficient to state a claim.
His § 1981 claims for discriminatory termination and retaliation may otherwise proceed
against Duke and Ms. Gordon
I.

Title VII Claims Against Duke
Title VII requires employees to exhaust administrative remedies by presenting

claims to the EEOC before filing suit. See Balas v. Huntington Ingalls Indus., Inc., 711

F.3d 401, 406 (4th Cir. 2013) (citing 42 U.S.C. § 2000e-5(b)); accord Li v. Shepherd
Univ., 2022 WL 16919271, at *2 (4th Cir. 2022). The charge must be filed “within 180
days after the alleged unlawful practice occurred.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)); accord
McClelland v. Hous. Auth. of Wake, No. 22-CV-204, 2024 WL 4101476, at *13 (E.D.N.C.
July 19, 2024). It is undisputed that Mr. Foust did not file the EEOC charge within 180
days of his termination and the alleged discriminatory acts leading up to it. These claims
are therefore barred and will be dismissed.
Mr. Foust contends that the time did not begin to run until resolution of his internal
appeal, which he initiated with Duke after his termination. Doc. 25 at 6. But the fact that
an employment decision could be reversed through an internal appeal or grievance
process does not toll commencement of the limitations period. See Muir v. WinstonSalem State Univ., No. 11-CV-282, 2012 WL 683359, at *5 (M.D.N.C. Mar. 2, 2012)
(collecting cases); Mills v. City of Norfolk, No. 20-CV-521, 2020 WL 7630647, at *3
(E.D. Va. Dec. 22, 2020). Mr. Foust cites no authority to the contrary.
Mr. Foust mentions the continuing violation doctrine. Doc. 25 at 5. But that
doctrine does not apply here because “discrete discriminatory acts,” including
termination and refusal to hire, “are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp., 536 U.S. at
113–14.
Mr. Foust also contends that Duke should not be able to assert the 180-day filing
requirement as a defense because Duke engaged in a “bad faith attempt to utilize their
2

internal appeals process as a means to run employee’s statute of limitations to file their
charges of discrimination.” Doc. 25 at 6. But “the availability of an internal appeals
process at an employer does not constitute ‘wrongful conduct’ that induces an employee
to refrain from filing suit.” Muir, 2012 WL 683359, at *6. Moreover, Mr. Foust’s
conclusory assertions do not include factual allegations tending to indicate that Duke
engaged in wrongful conduct in the internal appeal process, nor does he allege facts
supporting equitable tolling.
Mr. Foust’s Title VII claims based on discrimination and retaliatory
discrimination, Counts One and Three, Doc. 18 at ¶¶ 40–50, 62–75, are time barred and
will be dismissed.
To the extent the complaint purports to assert a Title VII claim for retaliatory
failure to rehire, id. at ¶ 70, Mr. Foust has not exhausted his administrative remedies;
nothing about any such failure was included in his October 2023 EEOC charge. See Doc.
22-1. 1 Mr. Foust does not contest this or provide any argument to the contrary in his
briefing. See Doc. 25. That claim will be dismissed without prejudice. 2

1

While courts generally do not consider matters outside the pleadings when ruling on a
motion to dismiss, Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013), courts may
consider documents attached to the motion to dismiss without converting a motion to dismiss
into one for summary judgment if those documents are “integral to the complaint and authentic.”
Just Puppies, Inc. v. Brown, 123 F.4th 652, 660 (4th Cir. 2024) (cleaned up). Since Mr. Foust’s
EEOC charge is integral to the complaint, and there is no dispute as to its authenticity, the Court
can consider it.
2

Mr. Foust has since filed a separate lawsuit addressing his claims for retaliatory failure to
rehire. Foust v. Duke Univ., 24-CV-1100 (M.D.N.C.).
3

II.

Section 1981 Claims Against Duke and Ms. Gordon
To the extent Mr. Foust claims that the defendants discriminated against him by

creating a hostile work environment in violation of § 1981, that claim will be dismissed.
“A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment.”
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (cleaned up);
McIver v. Bridgestone Ams., Inc., 42 F.4th 398, 407 (4th Cir. 2022). Conclusory
allegations of receiving little training, being ignored, and getting written up for
performance issues, Doc. 18 at ¶¶ 27, 30, are insufficient to make such a claim plausible.
Mr. Foust does state § 1981 claims for discriminatory termination and retaliation
against Duke and Ms. Gordon. 3 He alleges that Ms. Gordon repeatedly made
“derogatory comments” about his race and color and sent him “racially offensive” emails.
Id. at ¶¶ 22–23. He further alleges that after he complained about the discrimination and
retaliation, id. at ¶¶ 28–30, he was terminated, id. at ¶ 32, and he was not rehired for
positions to which he applied. 4 Id. at ¶¶ 34, 84. It would have been better practice to be
at least a little more specific about the content of these comments and emails, but at this
3

The caption of the complaint lists Ms. Gordon as a defendant in both her individual and
official capacities, Doc. 18 at 1, but the “official capacity” inclusion seems to be an error.
“Official capacity” claims are typically made against those acting under color of state law, which
does not appear to be the case here, and the only claims asserted against Ms. Gordon list her as a
defendant in her individual capacity. Id. at 7, 10. The Court so construes the complaint and has
modified the caption accordingly.
4

As noted supra, Mr. Foust has since brought a separate lawsuit against Duke addressing his
claims for retaliatory failure to rehire. Foust v. Duke Univ., 24-CV-1100 (M.D.N.C.).
4

stage the Court views the allegations in the light most favorable to the plaintiff. 5 Via his
Rule 26(a) disclosures, Mr. Foust will have to provide such details to the defendants so
that they can appropriately defend the case, and the Court will require that to be done
sooner rather than later.
It is ORDERED that:
1. Duke University’s motion to dismiss, Doc. 21, is GRANTED as to all Title
VII claims and as to any § 1981 claim for hostile work environment. Any
Title VII claim for failure to rehire is dismissed without prejudice for
failure to exhaust. The motion is otherwise DENIED, and the plaintiff’s
§ 1981 discriminatory termination and retaliation claims may proceed.
2. Susan Gordon’s motion to dismiss, Doc. 23, is GRANTED as to any
§ 1981 claim for hostile work environment. The motion is otherwise
DENIED, and the plaintiff’s § 1981 discriminatory termination and
retaliation claims may proceed.
3. Defendants SHALL file answer no later than March 27, 2025.
4. No later than March 20, 2025, the plaintiff SHALL serve a preliminary
Rule 26(a)(1) disclosure setting forth each of the “derogatory comments
about [his] race and color” he contends were made by defendant Gordon

5

Mr. Foust contends that he is not required to plead specific facts, so long as he gives fair
notice of the grounds for his claim. Doc. 25 at 4. That is not so. For a claim to be plausible,
plaintiffs must allege at least a few specific facts; as the Supreme Court noted many years ago, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
5

and the content of emails from defendant Gordon that the plaintiff found
“racially offensive,” and the plaintiff SHALL provide copies to defense
counsel of any such emails in his possession or control. Additional Rule
26(a)(1) disclosures will be required when set in the Scheduling Order.
5. The matter is referred to the Magistrate Judge for an initial pretrial
scheduling conference.
This the 12th day of March, 2025.

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UNITED STATES DISTRICT JUDGE

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