Cobb v. The Select Group LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:20-CV-00675-M

MEGAN CHERISE COBB, )

Plaintiff,

V. ORDER

THE SELECT GROUP LLC,

Defendant.

This matter is before the court on Defendant’s “Partial Motion to Dismiss Plaintiff's

Complaint” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE 11]. Defendant

contends that Plaintiff failed to exhaust her second claim for retaliation with the Equal

Employment Opportunity Commission (“EEOC”). Plaintiff counters that her claim is both timely

and within the scope of her charge of discrimination and, thus, she has sufficiently exhausted the

required remedies. For the reasons that follow, Defendant’s motion is granted.

1. Background

A. Piaintiti’s Factual Aijegations

The following are relevant factual allegations (as opposed to statements of bare legal

conclusions, unwarranted deductions of fact, or unreasonable inferences) made by the Plaintiff in

the operative Complaint (DE 1), which the court must accept as true at this stage of the proceedings

pursuant to King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016).

At all relevant times, Plaintiff suffered from fibromyalgia, myalgia, spondylolisthesis, and

chronic pain. Defendant hired Plaintiff on May 29, 2012 as a Technical Recruiter. Flaintiff

worked continuously for Defendant until April 1, 2020. During this time, Defendant knew that

Plaintiff was “disabled” within the meaning of the Americans with Disabilities Act § 101(8), 42

U.S.C. § 12111(8) (“SADA”).

Throughout her employment with Defendant, Plaintiff exceeded expectations in her work

performance. In or about November 2018, Plaintiff requested permission to perform 100% of her

job responsibilities from home due to her disabilities, and Defendant granted the request. While

working from home, Plaintiff continued to exceed expectations and benchmarks set by Defendant.

In the third quarter of 2019, Plaintiff exceeded 150% of her benchmark goals and earned a

monetary performance bonus. At the conclusion of the third quarter, Plaintiff asked her direct

manager what she should do to receive a promotion. The manager responded that, in spite of

Plaintiff's disabilities and her strong work performance from home, Plaintiff would need to be

present in the office at least 20% of the time.

Plaintiff was present in the office 20% of the fourth quarter of 2019, but she was not

selected for a promotion. Defendant promoted three non-disabled individuals who were less

experienced and less qualified than Plaintiff and who had not performed as well as Plaintiff.

Plaintiff reported to Defendant her belief that Defendant took these actions because her disabilities

prevented her from being present in the office 100% of the time, even though her work

performance far exceeded expectations and requirements. Defendant terminated Plaintiffs

employment on April 1, 2020.

B. Procedural History

On or about April 10, 2020, Plaintiff filed a charge of discrimination against Defendant

with the EEOC, alleging violations of the ADA, as amended. See Charge of Discrimination, DE

1-1. The charge reflects Plaintiff's selection of “disability” and “retaliation” as bases for

discrimination and explains in the “Particulars” section the Plaintiff's claims. See id On

September 17, 2020, the EEOC issued to the Plaintiff a Notice of Right to Sue; Plaintiff received

the Notice on September 21, 2020 (see DE 1-2) and filed the operative Complaint on December

15, 2020.

II. Legal Standards

When considering a Rule 12(b)(6) motion to dismiss,' the court must accept as true all of

the well-pleaded factual allegations contained within the complaint and must draw all reasonable

inferences in the plaintiffs favor, Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017), but

any legal conclusions proffered by the plaintiff need not be accepted as true, Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.”). The Jgbal Court made clear

that “Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading

regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.” /d. at 678-79.

To survive a Rule 12(b)(6) motion, the plaintiff's well-pleaded factual allegations, accepted

as true, must “‘state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). Twombly’s plausibility standard requires that a plaintiffs well-pleaded

factual allegations “be enough to raise a right to relief above the speculative level,” i.e., allege

“enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal

‘Some courts have continued to address motions for failure to exhaust administrative remedies

with the EEOC under Fed. R. Civ. P. 12(b)(1). However, the Supreme Court in Fort Bend Cty.,

Texas v. Davis, 139 S. Ct. 1843, 1850, 204 L. Ed. 2d 116 (2019) held that “Title VII’s charge-

filing requirement is not of jurisdictional cast.” Therefore, analysis of an ADA failure to exhaust

is no longer proper under Rule 12(b)(1), and Defendant correctly brings its motion pursuant to

Fed. R. Civ. P. 12(b)(6) for failure to state a plausible claim for relief.

[conduct].” Jd. at 555-56. A speculative claim resting upon conclusory allegations without

sufficient factual enhancement cannot survive a Rule 12(b)(6) challenge. Jgbal, 556 U.S. at 678-

79 (“where the well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged--but it has not ‘show[n]’--‘that the pleader is entitled to

relief.’” (quoting Fed. R. Civ. P. 8(a)(2)); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)

(‘naked assertions’ of wrongdoing necessitate some ‘factual enhancement’ within the complaint

to cross ‘the line between possibility and plausibility of entitlement to relief.’” (quoting Twombly,

550 U.S. at 557)).

II. Analysis

The Fourth Circuit instructs that the “ADA incorporates Title VII’s enforcement

provisions, including the requirement that a plaintiff exhaust her administrative remedies by filing

an administrative charge of discrimination before pursuing a suit in federal court.” Ruffin v.

Lockheed Martin Corp., 659 F. App’x 744, 746 (4th Cir. 2016) (citing Sydnor v. Fairfax Cty., 681

F.3d 591, 593 (4th Cir. 2012)). “The allegations contained in an administrative charge generally

limit the scope of any subsequent judicial complaint.” Hentosh v. Old Dominion Univ., 767 F.3d

413, 416 (4th Cir. 2014) (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir.

1976) for the proposition that “a subsequent civil suit ‘may encompass only the “discrimination

stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that

charge”’”). If “the claims raised under [the ADA] exceed the scope of the EEOC charge and any

cherges that would naturally have arisen from an investigation thereof, they are procedurally

barred.” Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) (citations omitted).

District courts “are not at liberty to read into administrative charges allegations they do not

contain. Instead, persons alleging discrimination have a different form of recourse if they

determine that their initial charge does not read as they intended: they may . . . file an amended

charge with the EEOC.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir.

2013). An ADA claim is subject to dismissal “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.” Equal Emp. Opportunity Comm’n v. 1618 Concepts, Inc., 432 F. Supp. 3d 595, 601-02

(quoting Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009), abrogated on other

grounds by Fort Bend Cty., 139 S. Ct. 1843, 204 L. Ed. 2d 116); see also Chacko, 429 F.3d at 509

(same).

Here, Defendant contends that although Plaintiff selected “Retaliation” as a basis for

unlawful discrimination on her EEOC charge, she failed to include in the charge any facts

whatsoever describing or supporting an ADA retaliation claim. Plaintiff counters that her selection

of the “Retaliation” basis and the mention of her termination date in the “Date(s) Discrimination

Took Place” and “Particulars” sections are sufficient to exhaust remedies with the EEOC.

No party can plausibly argue that the charge? contains information in the Particulars section

describing Plaintiff's claim of retaliation. “To establish a prima facie retaliation claim under the

ADA, a plaintiff must prove (1) [s]he engaged in protected conduct, (2) [s]he suffered an adverse

action, and (3) a causal link exists between the protected conduct and the adverse action.”

Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012). Here, nothing in the charge

of discrimination reflects that Plaintiff engaged in protected conduct, or that she suffered an

adverse action—in this case, potentially, the denial of a promotion or Plaintiff's termination of

2 The court may consider the charge of discrimination without converting the motion to dismiss

into one for summary judgment. See Brown v. Inst. For Fam. Centered Servs., Inc., 394 F. Supp.

2d 724, 729 n.2 (M.D.N.C. 2005). “The EEOC charge is [attached to and] referenced in Plaintiff's

complaint and is central to Plaintiff's claim in that Plaintiff must rely on it to establish she has

exhausted her administrative remedies.” Jd.

employment—because of any protected conduct. See Charge, DE 1-1. The “Particulars” section

states in its entirety:

Inquiry Number 433-2020-61891

1 have a disability due to having fibromyalgia, myalgia, spondylolisthesis at the L5/S1 level, and chronic pain.

Prior to my termination on Apri] 1st, 2020, reasonable accommodations were made allowing me to work from

home 100% of the time beginning November 2018. Throughout my time at The Sclect Group | exceeded

expectations set from goals by my leadership cach quarter. | especially exceeded the expectations set during

my time as the Manager of Infrastructure Delivery in which the discrimination occurred. During my Q3 2019

Quarterly Business Review Mecting on October 15th, 2019, I asked my direct manager for guidance on what

action I needed to take so that J could receive a promotion. My manager stated that I needed to physically

come into the office 20% of every week, knowing that this would be more difficult for me because of my

disability, so that he could justify denying me a promotion. | interfaced with 14 offices across the US and

Canada so the vast majority of my work was completed by remotely connecting with my colleagues via phone

and web/email, also, I had already proven over the 12 months prior that | was able to successfully work from

home 100% of time, keep a minimum of a 40 hour work weck, and not only meet, but exceed every quarterly

goal sct by my leadership team.

At the conclusion of Q4 2019, I met the expectation of coming into the office 20% of the time, but was not

considered for promotion. Three non-disabled colleagues received promotions even though they were fess

qualified, less experienced, and had not performed as well as me during 2019.

The Select Group ultimately terminated my employment on Apri! 1, 2020 because of my disability.

Id. Nothing in the charge supports or relates to Plaintiffs allegations in the Complaint that she

reported to Defendant (1) her belief that she was not selected for a promotion because her

disabilities prevented her from being present at work 100% of the time (Compl. at { 27); or (2)

“her co-workers’ pervasive and severe harassment based upon Plaintiff's disability” (id. at □ 43).

Moreover, without describing any protected activity or causation, the charge contains insufficient

information from which a retaliation claim would naturally arise during an agency investigation.

Nevertheless, Plaintiff asserts that the court may find she has exhausted simply by checking

the “Retaliation” box and noting her termination date on the charge. She cites five cases in support

of her argument. First, in Agolli v. Office Depot, Inc., 548 F. App’x 871 (4th Cir. 2013)

(unpublished), the Fourth Circuit determined that the district court erred in dismissing, for failure

to exhaust, a pro se plaintiff's race discrimination and retaliation claims for the plaintiffs failure

to provide a “coherent” statement of facts in support of her charge. Jd. at 875-76. The court found

that, while the plaintiffs statement was a “grueling read,” it provided the defendant sufficient

notice of her theories of discrimination and retaliation. /d. In so finding, the court acknowledged

that

[uJnder the applicable regulations, Agolli’s EEOC charge merely “should” have

included “[a] clear and concise statement of the facts, including pertinent dates,

constituting the alleged unlawful employment practices.” See 29 C.F.R. §

1601.12(a)(3). The regulations specifically allow that “a charge is sufficient when

the [EEOC] receives from the person making the charge a written statement

sufficiently precise to identify the parties, and to describe generally the action or

practices complained of.” Id. § 1601.12(b).

Id. at 876 (emphasis added). In this case, since the Plaintiffs charge contains no facts related to a

retaliation claim, the court finds Agolli distinguishable and unpersuasive.

Next, Plaintiff cites Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.

1996), in which the Fourth Circuit affirmed the district court’s dismissal of the plaintiff's sexual

harassment and age discrimination claims for the plaintiff's failure to allege them in her charge of

discrimination. Plaintiff also cites Chacko v. Patuxent Inst., 429 F.3d 505, 511-12 (4th Cir. 2005),

in which the Fourth Circuit reversed a jury verdict in plaintiff's favor, finding the plaintiff failed

to exhaust administrative remedies for a co-worker harassment claim that was not alleged in the

EEOC charge. The court finds these cases actually contradict the Plaintiff's argument that she

need only mark the “Retaliation” box and note her termination date in the EEOC charge; the Fourth

Circuit determined in Chacko that “if the factual allegations in the administrative charge are

reasonably related to the factual allegations in the formal litigation, the connection between the

charge and the claim is sufficient” and cited other circuits for the propositions that “[t]he crucial

element of a charge of discrimination is the factual statement contained therein” and “the EEOC

charge and the complaint must, at minimum, describe the same conduct and implicate the same

individuals.” Jd. at 509-510 (citing Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636

(9th Cir. 2002) and Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001)).

Plaintiff also cites Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir.

2013), in which the Fourth Circuit held that courts may look only at the EEOC charge itself to

determine what claims a plaintiff properly alleged before the EEOC; the plaintiff's intake

questionnaire and subsequent letters to the EEOC should not be considered, particularly because

they were not shared with the employer. Jd. at 408. In coming to this conclusion, the court noted

that courts “are not at liberty to read into administrative charges allegations they do not contain.”

Id. Plaintiff's charge contains no allegations supporting a retaliation claim; thus, Balas does not

support Plaintiffs argument.

Finally, Plaintiff cites Keener v. Universal Companies, Inc., 128 F. Supp. 3d 902, 912

(M.D.N.C. 2015) arguing that the Keener court “summarily found that a plaintiff had exhausted

all of her administrative remedies in pursuing a Title VII claim” where the plaintiff “listed her

termination date . . . under the section entitled ‘Date(s) Discrimination Took Place’” and “‘in the

‘Particulars’ section of the EEOC Charge,” and “checked the boxes of discrimination based on

[sex] and retaliation.” Resp. at 4 (citing Keener, 128 F. Supp. 3d at 912) (emphasis added). But

Keener is materially distinguishable; the court affirmed the parties’ agreement that the plaintiff

had “exhausted a claim for discriminatory and retaliatory discharge” where the plaintiff not only

“checked the boxes of discrimination based on sex and retaliation” and noted her termination date

in the charge, but also “claim[{ed] that she was fired under the pretext of poor performance,

represent[ed] she was replaced by a male employee, and assert{ed] she was ‘discriminated against

because of [her] sex (F) and subjected to retaliation due to [her] protected activities’” in the charge.

Keener, 28 F. Supp. 3d at 912. In addition, the charge included the following statement : “During;

my employment, I was discriminated against due to my sex (female). I complained about the

discrimination but Respondent took no action.” Jd. at 913. Moreover, the court found the plaintiff

did not exhaust her harassment claim against a co-worker because she failed to identify him in her

EEOC charge. See id. The court finds that, like Plaintiff's other cited cases, Keener does not

support an argument that merely selecting the “retaliation” box and listing a termination date in an

EEOC charge is sufficient to exhaust administrative remedies for an ADA retaliation claim.

The Plaintiff does not dispute that she identified no party, specified no protected activity,

and recounted no factual circumstances supporting a claim for retaliation in her EEOC charge. See

Chacko, 429 F.3d at 508 (a charge is sufficient only “if it is ‘sufficiently precise to identify the

parties, and to describe generally the action or practices complained of.’”) (quoting 29 C.F.R. §

1601.12(b)). Accordingly, the court concludes the Plaintiff has failed to rebut the Defendant’s

contention that she failed to exhaust her administrative remedies for her second claim of retaliation

in violation of the ADA.

IV. Conclusion

In sum, by wholly failing to identify any actors or describe any facts supporting a retaliation

claim in her EEOC charge, Plaintiff did not exhaust her administrative remedies under the ADA.

Therefore, Defendants’ motion for partial dismissal of Plaintiff's Complaint is GRANTED.

Plaintiff's second claim for retaliation in violation of the ADA is dismissed; her claim for □

discrimination in violation of the ADA based on her disability(ies), as set forth in the first claim

for relief (see DE 1), will proceed in this case.

/

SO ORDERED this 22 _ day of June, 2021.

1 Ve E (Vipews DB.

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE