United States District Court, D. South Carolina, Columbia Division
Regina G. Cornelius, Plaintiff,
Simply Wireless, doing business as SPRINT by Mobile Now, Defendant.
REPORT AND RECOMMENDATION
J. GOSSEN UNITED STATES MAGISTRATE JUDGE.
Regina G. Cornelius, a self-represented litigant and former
employee of Defendant Simply Wireless, filed this employment
case now alleging gender/sex discrimination and retaliation
pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e, et
This matter is before the court pursuant to 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report
and Recommendation on Defendant Simply Wireless's renewed
motion to dismiss. (ECF No. 51.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Cornelius of the summary judgment and dismissal
procedures and the possible consequences if she failed to
respond adequately to the defendant's motion. (ECF No.
52.) Cornelius filed a response in opposition (ECF No. 60),
the defendant replied (ECF No. 65), and Cornelius filed a
sur-reply (ECF No. 68). Having reviewed the parties'
submissions and the applicable law, the court finds that the
defendant's motion to dismiss should be granted.
who is an African-American female, alleges in her Amended
Complaint that the defendant discriminated against her based
on her gender. She also mentions retaliation and harassment.
(See generally Am. Compl., ECF No. 43.) Attached to
Cornelius's initial Complaint are her Charge of
Discrimination filed with the Equal Employment Opportunity
Commission (“EEOC”) and South Carolina Human
Affairs Commission (“SHAC”) (ECF No. 1-1 at 6)
and her Notice of Right to Sue letter (ECF No. 1-1 at 1). In
her charge, Cornelius alleges discrimination based on race
and retaliation. (ECF No. 1-1 at 6.)
motion, the defendant seeks dismissal of Cornelius's
claims based on Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Dismissal under Federal Rule of Civil Procedure
12(b)(1) examines whether the complaint fails to state facts
upon which jurisdiction can be founded. It is the
plaintiff's burden to prove jurisdiction, and the court
is to “regard the pleadings' allegations as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for
summary judgment.” Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991).
resolve a jurisdictional challenge under Rule 12(b)(1), the
court may consider undisputed facts and any jurisdictional
facts that it determines. The court may dismiss a case for
lack of subject matter jurisdiction on any of the following
bases: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Johnson
v. United States, 534 F.3d 958, 962 (8th Cir. 2008)
(quoting Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981)).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) examines the legal sufficiency of the facts alleged
on the face of the plaintiff's complaint. Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To
survive a Rule 12(b)(6) motion, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “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 Twombly, 550 U.S. at 570). A
claim is facially plausible when the factual content allows
the court to reasonably infer that the defendant is liable
for the misconduct alleged. Id. When considering a
motion to dismiss, the court must accept as true all of the
factual allegations contained in the complaint. Erickson
v. Pardus, 551 U.S. 89, 94 (2007). The court “may
also consider documents attached to the complaint, see
Fed.R.Civ.P. 10(c), as well as those attached to the motion
to dismiss, so long as they are integral to the complaint and
authentic.” Philips v. Pitt Cty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing
Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th
while the federal court is charged with liberally construing
a complaint filed by a pro se litigant to allow the
development of a potentially meritorious case, see, e.g.,
Erickson v. Pardus, 551 U.S. 89 (2007), the
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege
facts which set forth a federal claim, nor can the court
assume the existence of a genuine issue of material fact
where none exists. Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
Defendant's Motion to Dismiss
Claims of Gender/Sex Discrimination
defendant argues that all claims raised by Cornelius based on
gender/sex are jurisdictionally barred because they have not
been administratively exhausted. The court agrees.
filing suit under Title VII, a plaintiff must exhaust her
administrative remedies by bringing a charge with the EEOC.
See 42 U.S.C. § 2000e-5(f)(1); see also Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009);
Smith v. First Union Nat'l Bank, 202 F.3d 234,
247 (4th Cir. 2000). Exhaustion of administrative remedies is
a statutory prerequisite to properly invoke the jurisdiction
of the federal court. See Jones, 551 F.3d at 300
(stating that “a failure by the plaintiff to exhaust
administrative remedies concerning a Title VII claim deprives
the federal courts of subject matter jurisdiction over the
claim”); Davis v. N.C. ...