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Cornelius v. Simply Wireless

United States District Court, D. South Carolina, Columbia Division

August 1, 2018

Regina G. Cornelius, Plaintiff,
v.
Simply Wireless, doing business as SPRINT by Mobile Now, Defendant.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 seq.[1] 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).[2] Having reviewed the parties' submissions and the applicable law, the court finds that the defendant's motion to dismiss should be granted.

         BACKGROUND

         Cornelius, 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.)

         DISCUSSION

         A. Applicable Standards

         In its 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).

         To 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)).

         A 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 Cir. 2006)).

         Further, 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).

         B. Defendant's Motion to Dismiss

         1. Claims of Gender/Sex Discrimination

         The 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.

         Before 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. ...


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