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Ensley v. Goodwill Industries of Lower Sc

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

September 17, 2018

Wayne Ensley, Plaintiff,
v.
Goodwill Industries of Lower SC, Defendant.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. McDONALD UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the defendant's motion to dismiss (doc. 18). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

         I. PROCEDURAL HISTORY

         The plaintiff, who is proceeding pro se, filed a complaint on November 16, 2017, alleging claims against his former employer for discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”), violation of the Fair Labor Standards Act (“FLSA”), and a state law claim for breach of contract (doc. 1 at 4, 8-9). In an attachment to his complaint, the plaintiff also alleges “reverse discrimination and special treatment to a disabled[d] employee, ” which is presumably brought pursuant to the Americans with Disabilities Act (“ADA”) (doc. 1-1 at 10). The plaintiff filed as an attachment to his complaint a charge of discrimination he filed with the South Carolina Human Affairs Commission (“SCHAC”) against the defendant on May 22, 2017 (doc. 1-1 at 1). The charge alleged discrimination based on age and retaliation between September 30, 2016, and March 23, 2017 (id.). The plaintiff alleged in the charge that he was suspended by the defendant on September 30, 2016, when he questioned why a younger co-worker was allowed to watch television and text instead of working (id.). He further alleged that he was discharged from employment on March 23, 2017, and was told he did not fulfill his contract (id.). He stated, “ I . . . believe that I have been discriminated against because of my age (57) and in retaliation for my opposition to employment practices declared unlawful by S.C. Human Affairs Law . . . and [the ADEA]” (id.).

         The defendant filed a motion to dismiss on April 5, 2018 (doc. 18). On April 6, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 19). The plaintiff filed a response in opposition to the motion to dismiss on June12, 2018 (doc. 28), and the defendant filed a reply on June 19, 2018 (doc. 29).

         On August 27, 2018, the undersigned issued an order finding that this court lacks subject matter jurisdiction over the plaintiff's allegations of gender and disability discrimination brought under Title VII and the ADA because the plaintiff failed to exhaust his administrative remedies as to these claims (doc. 30 at 2-4). Because the plaintiff cannot cure the defects in these claims by amending his complaint, the undersigned declined to give the plaintiff leave to amend the claims and informed the plaintiff that a recommendation would be made that the district court grant the defendant's motion and dismiss the plaintiff's Title VII and ADA claims for lack of subject matter jurisdiction (id. at 4).

         As to the plaintiff's remaining claims for age discrimination and retaliation under the ADEA, violation of the FLSA, breach of contract, and defamation, the undersigned found that the plaintiff's allegations failed to state a claim upon which relief can be granted, and thus the defendant's motion to dismiss pursuant to Rule 12(b)(6) should be granted (id. at 5-12). However, because amendment of the complaint could potentially cure the deficiencies identified in each of the claims, the undersigned gave the plaintiff an opportunity to cure the defects by filing an amended complaint by September 10, 2018 (id. at 12-13). The plaintiff was specifically warned (id. at 13) that if he failed to file an amended complaint or failed to cure the identified deficiencies in his claims, the undersigned would recommend to the district court that the defendant's motion to dismiss be granted and that the complaint be dismissed with prejudice and without leave for further amendment. The plaintiff failed to timely file an amended complaint. Accordingly, for the reasons set forth below, the undersigned recommends that the defendant's motion to dismiss (doc. 18) be granted.

         II. APPLICABLE LAW AND ANALYSIS

         A. Subject Matter Jurisdiction - Gender and Disability Discrimination Claims

         The defendant argues that the plaintiff's allegations of gender discrimination and “reverse” disability discrimination are barred because the plaintiff did not raise any such allegations in his administrative charge filed with the SCHAC. The undersigned agrees.

         In the complaint, the plaintiff marked Title VII and the ADEA as the basis for jurisdiction of this court (doc. 1 at 8). Within his complaint, he alleges “ster[e]otyping gender discrimination” (id. at 10). Also, in an attachment to his complaint, the plaintiff alleges “reverse discrimination and special treatment to a disable[d] employee” (doc. 1-1 at 10). To the extent the plaintiff has attempted to bring causes of action under Title VII or the Americans with Disabilities Act (“ADA”), the court lacks subject matter jurisdiction to consider the claims because the plaintiff failed to exhaust his administrative remedies.

         It is well-established that prior to bringing a lawsuit under Title VII, the ADEA, or the ADA, a plaintiff must file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or the SCHAC and receive a right to sue letter or other notice of termination of the administrative investigation. 42 U.S.C. § 2000e-5(e), (f) (Title VII); 42 U.S.C. § 12117(a) (ADA adopts procedures set forth in § 2000e-5(e)); 29 U.S.C. § 626(d)(1), (e) (ADEA). “[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. The same is true of claims made under the ADEA.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300-301 (4th Cir. 2009) (citation omitted). Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1).

         The EEOC charge “defines the scope of the plaintiff's right to institute a civil suit.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). As stated by the Fourth Circuit Court of Appeals: “In any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only consider those allegations included in the [administrative] charge.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) (citation omitted). If the plaintiff's claims “‘exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.'” Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (quoting Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir.1995)).

         In his administrative charge, the plaintiff marked the boxes indicating that he was alleging discrimination based upon retaliation and age (doc. 1-1 at 1). He stated, “I . . . believe that I have been discriminated against because of my age (57) and in retaliation for my opposition to employment practices declared unlawful by S.C. Human Affairs Law . . . and [the ADEA]” (id.). When the claim raised in the district court litigation involves a different form of alleged unlawful employment practices than the one described in the administrative charge, courts have found the claim not to be administratively exhausted. See, e.g., Bryant, 288 F.3d at 132-33 (finding that claims of sex and color discrimination were not exhausted where a charge alleged only racial discrimination). Because the plaintiff did not allege gender or disability discrimination in his charge, the court does not have subject matter jurisdiction over those claims. Jones, 551 F.3d 297, 300-301.

         To the extent the plaintiff may argue that his pro se status excuses his failure to administratively exhaust these claims, such argument is foreclosed by the Fourth Circuit Court of Appeals' ruling in Balas, in which the plaintiff, who was proceeding pro se at the time she filed her EEOC charge, communicated with the EEOC regarding her potential claims by meeting with the EEOC, submitting an intake questionnaire to the EEOC, and sending additional letters to the EEOC. 711 F.3d at 405. The EEOC prepared a charge, which did not include all of the allegations and claims that the plaintiff communicated. Id. After receiving a notice of right to sue from the EEOC, the plaintiff in Balas filed a lawsuit in district court, which contained discrimination claims not included in her EEOC charge. Id. The district court dismissed the discrimination claims that were outside the scope of the EEOC charge. Id. On appeal, the plaintiff in Balas argued that “she should not be penalized for the EEOC's ‘negligence'” and that the district court should have considered additional claims and allegations that were communicated to the EEOC, but not included in her charge. Id. at 407-08. The Fourth Circuit affirmed the district court's ruling, stating, “[W]e are not at liberty to read into administrative charges allegations they do not contain.” Id. at 408. Rather, in determining which claims were properly exhausted before the EEOC, courts “may look only to the charge filed with that agency.” Id.

         The plaintiff cannot cure the defects in his claims brought under Title VII and the ADA by amending his complaint as he has failed to exhaust his administrative remedies as to those claims. See generally Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993). Accordingly, the undersigned recommends that the district court dismiss the plaintiff's Title VII and ADA claims for lack of subject matter jurisdiction.

         B. Failure to State a Claim - All Other Claims

         1. Rule ...


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