# Bir v. McKesson Corporation

> District Court, E.D. North Carolina · September 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10252885

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** September 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10252885

## How later opinions describe it (automated extraction)

- holding that, although “retaliation discrimination claim is similar to [] race discrimination claim in their animus, the fact that [plaintiff] listed [one] on the EEOC charge would not lead the EEOC to cyeniiieste [the other]”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No: 5:22-CV-00412-M

MARY KATHERINE BIR,
Plaintiff,
v. ORDER
MCKESSON CORPORATION and
MCKESSON MEDICAL-SURGICAL,
INCORPORATED,
Defendants.

This matter comes before the court on Defendants’ Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, and Motion to Strike pursuant to Rule 12(f) of
the Federal Rules of Civil Procedure [DE 16 (respectively, the “Motion to Dismiss” and the
“Motion to Strike”)]. For the reasons that follow, the Motion to Dismiss is granted and the Motion
to Strike is denied.
I. Background
A. Plaintiff's Statement of Facts
The following are relevant factual allegations (as opposed to statements of bare legal
conclusions, unwarranted deductions of fact, or unreasonable inferences) made by Plaintiff in the
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).
Plaintiff is a former employee of Defendant McKesson Medical-Surgical. DE 1 at 7.
Relevant here, Plaintiff began working remotely at the outset of the COVID-19 pandemic. /d. at

8. Approximately 18 months later (when Plaintiff still worked remotely), Defendants instituted a
COVID-19 vaccination policy for U.S.-based employees, although employees could “request
medical or religious accommodations from the mandate.” /d. at 9-10.
Plaintiff thereafter requested a religious exemption from the vaccination policy. /d. at 10.
A representative of Defendants interviewed Plaintiff regarding her exemption request. /d. at 11.
Ultimately, Defendants denied Plaintiff's request on the grounds that it would create an undue
hardship for Defendants. /d. at 12. Defendants placed Plaintiff on unpaid leave, and informed her
that, unless she could demonstrate proof of vaccination within six weeks, she would be terminated.
Id. at 13.
Plaintiff did not provide proof of vaccination. Jd. So, Defendants terminated her on
December 31, 2021. Jd. Approximately five weeks later, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”). DE 18-1 at 2.
B. Procedural History
Plaintiff initiated this action on October 9, 2022, by filing the Complaint, alleging religious
discrimination (due to Defendants’ failure to provide reasonable accommodations to its COVID-
19 vaccination policy), religious discrimination (due to Defendants’ disparate treatment of
similarly situated employees), and retaliation, all in violation of Title VII of the Civil Rights Act
of 1964, as amended. See DE 1 at 23-33. In response, Defendants filed the Motion to Dismiss
seeking dismissal of Plaintiff's retaliation claim under Rule 12(b)(6). DE 16 at 1. That filing also
includes the Motion to Strike. See id.
In support of the Motion to Dismiss, Defendants contend that “Plaintiff failed to exhaust
her administrative remedies with respect to her Title VII retaliation claim.” /d. at 1-2. In support
of the Motion to Strike, Defendants raise several arguments, including that certain of the

“documents and materials [referenced in the Complaint] contain immaterial, impertinent, and
scandalous matter, which have no bearing upon the subject matter of the litigation, do not pertain,
and are not necessary, to the legal issues in this case, and are prejudicial to Defendants.” Jd. at 2.
Plaintiff responds to the Motion to Dismiss by arguing that she administratively exhausted her
retaliation claim, because it “is reasonably related to her underlying EEOC Charge of
Discrimination.” DE 21 at 6 (internal quotation marks omitted). As for the Motion to Strike,
Plaintiff responds that “the challenged portions are highly relevant to Plaintiffs religious
discrimination claims and were necessary to establish and support [certain of] Plaintiffs
assertions.” Id.
Defendants reply that Plaintiff failed to respond to certain of their arguments and failed to
meaningfully rebut other arguments. See generally DE 25. The court is now fully apprised.
Il. Legal Standards
A complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.’ Fed. R. Civ. P. 8(a)(2). This Rule does not require “detailed factual
allegations,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), but the allegations must cross the
threshold “between possibility and plausibility of entitlement to relief,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007) (internal brackets and quotation marks omitted), Put another way,
although the /gbal Court made clear that “Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, [the Rule] does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Jgbal, 556 U.S. at 678-79.
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 pleading and must draw all reasonable
inferences in the plaintiff's favor. Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017). In

that regard, “[a] motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N. Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.
1992). Also, at the motion to dismiss stage, the court may consider the complaint, as well as any
materials “integral to and explicitly relied on in the complaint.” Copeland v. Bieber, 789 F.3d 484,
490 (4th Cir. 2015). If the court’s review goes beyond those materials, “the motion must be treated
as one for summary judgment.” Fed. R. Civ. P. 12(d).
III. Analysis
For the reasons that follow, the court finds that Plaintiffs retaliation claim is not reasonably
related to her EEOC charge of discrimination. The court further finds that Defendants have not
met their burden to support striking content from the Complaint.
A. Motion to Dismiss
Defendants move to dismiss Count III of the Complaint on the grounds that Plaintiff failed
to include allegations of retaliation in her administrative charge to the EEOC. Plaintiff responds
that the allegations in the administrative charge reasonably relate to her retaliation claim,
warranting denial of the Motion to Dismiss. The court agrees with Defendants.
“The EEOC charge defines the scope of the plaintiff's right to institute a civil suit.” Bryant
v. Bell Atl. Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002). “[A] plaintiff fails to exhaust []
adnninistrative remedies where . . . [the] administrative charges reference different . . .
discriminatory conduct than the central factual allegations in [the] formal suit.” Chacko v.
Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005). For example, a charge that describes retaliation
does not license a subsequent claim for direct discrimination. See Jones v. Calvert Grp., Ltd., 551
F.3d 297, 301 (4th Cir. 2009), abrogated on other grounds by Fort Bend Cnty., Texas v. Davis, 139

S. Ct. 1843 (2019); see also Steward v. Gwaltney of Smithfield, Ltd., 954 F. Supp. 1118, 1122-23
(E.D. Va. 1996) (holding that, although “retaliation discrimination claim is similar to [] race
discrimination claim in their animus, the fact that [plaintiff] listed [one] on the EEOC charge would
not lead the EEOC to cyeniiieste [the other]”), aff'd, 103 F.3d 120 (4th Cir. 1996). Even so, “the
exhaustion requirement should not become a tripwire for hapless plaintiffs.” Sydnor v. Fairfax
Cnty, Va., 681 F.3d 591, 594 (4th Cir. 2012). As a consequence, courts may deem -claims
administratively exhausted so long as they “are reasonably related to [the] EEOC charge and can
be expected to follow from a reasonable administrative investigation.” Smith v. First Union Nat.
Bank, 202 F.3d 234, 247 (4th Cir. 2000).
A plaintiff pursuing a claim for Title VII retaliation must allege engagement in a protected
activity, adverse employment action, and a causal connection between the two. See Parker v.
Ciena Corp. , 787 F. App’x 817, 820 (4th Cir. 2019). A causal connection means that the employer
took an adverse employment action “because the plaintiff engaged in a protected activity.”
Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (emphasis in original). At
the motion to dismiss stage, a plaintiff does not need to plead specific facts demonstrating a prima
facie case. McCleary-Evans v. Maryland Dept of Transp., State Highway Admin., 780 F.3d 582,
584 (4th Cir. 2015). Accordingly, courts properly review claims for Title VII retaliation at this
stage under Rule 8’s standards, see Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002), which
still require more than “naked assertion[s devoid of] further factual enhancement,” Twombly, 550
USS. at 557.
Here, the Complaint contends that Defendants retaliated against Plaintiff for requesting a
religious exemption from Defendants’ COVID-19 vaccination policy by placing her on unpaid

leave. See DE 1 at 31-32.! This retaliation claim is not reasonably related to Plaintiff's EEOC
charge, which states (in full) that:
McKesson Corporation denied my Religious Accommodation/Exemption request. They do
not offer testing, masking, or take into account antibodies. Although I have been doing my
job successfully since COVID 19 shutdown, they say I will cause them undue hardship.
am on unpaid leave of absence until Dec. 31, 2021 and if not vaccinated by then, I will
be terminated for not getting vaccine. There were other employees in my exact same
situation who at the end of 2021, were offered their positions back and were back paid in
the beginning of 2022 for time lost. I have worked out of my home during my tenure with
the company. To the best of my knowledge no other employee in NC was allowed to return
to work who was [sic] not received the vaccine. My job required me to travel, but I had
never been required to perform that task. Others in the job were required to do limited
travel and I have not traveled in the position prior to COVID. I feel that I have been
discriminated against due to my ‘sincerely held’ religion of Christian does not allow me to
take the vaccine. I believe that I have been discriminated against in violation of Title VII
of the Civil Rights Act of 1964, as amended.
DE 18-1 at 2 (emphasis added).” Fairly read, Plaintiff's EEOC charge describes alleged religious
discrimination by Defendants’ refusal to provide reasonable accommodations (“[t]hey do not offer
testing, masking, or take into account antibodies”), as well as alleged disparate treatment from
other employees (“other employees in my exact same situation . . . were offered their positions
back and were back paid in the beginning of 2022 for time lost”). See id.
Although the EEOC charge repeatedly references religious discrimination, “[t]he plain
language of the EEOC charge does not explicitly describe or allege retaliation.” Johnson y.

' Although not entirely clear, the Complaint arguably seeks to describe other forms of “retaliation,” including that,
after Plaintiff requested an exemption, Defendants subjected Plaintiff “to its sham process, using a third party to seek
information from [her],” DE 1 at 32, and that Defendants “pressured [Plaintiff] to capitulate and get the COVID-19
vaccine,” id. But these allegations are noticeably absent from Plaintiff's EEOC charge, see Chacko, 429 F.3d at 506,
and neither rises to the level of an adverse employment action, which is generally one that a reasonable employee
would consider “materially adverse,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (emphasis
added); see also Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (interpreting Burlington for proposition
“that only significant harms would be actionable”). As a result, the Court will proceed in evaluating Plaintiff's
retaliation claim based on the allegation that Defendants retaliated against Plaintiff for seeking an exemption by
placing her on unpaid leave. See DE 1 at 32 (alleging that Defendant “imposed the period of unpaid leave with thie
intent to punish those who sought religious accommodation”); see also DE 21 at 16 (describing adverse employment
actions as “coercive threats” and imposition of “unpaid leave’).
2 The parties agree that the court may consider this document for purposes of the Motion to Dismiss, because it is
“integral to and explicitly relied on in the complaint.” Copeland, 789 F.3d at 490.

Portfolio Recovery Assocs., LLC, 682 F. Supp. 2d 560, 571 (E.D. Va. 2009). To the contrary, the
EEOC charge indicates that Plaintiff was placed on unpaid leave not because she submitted a
request for exemption from Defendants’ vaccination policy, but rather because she had not
complied with said policy. See DE 18-1 at 2 (describing period of unpaid leave as predicated on
fact that Plaintiff was “not vaccinated”). The charge thus disclaims any causal connection between
Plaintiff's exemption request (protected activity) and her placement on unpaid leave (adverse
employment action). See Parker, 787 F. App’x at 820; Holland, 487 F.3d at 218. The Complaint’s
bare assertion to the contrary, absent any “further factual enhancement,” does not suffice. See
Twombly, 550 U.S. at 557.
This conclusion finds further support in Defendants’ letter to Plaintiff denying her
exemption request (which Plaintiff attached to her Complaint and the court may consider, see
Copeland, 789 F.3d at 490), noting that her “request “has been denied” and that “[p]Jursuant to
[Defendants’] COVID-19 Protocol . . . [Plaintiff] must provide proof of full vaccination.
Otherwise, [she] will be . . . placed on an unpaid leave of absence.” DE 1-2 at 2 (emphasis added).
Taken together, Plaintiff's EEOC charge of discrimination and Defendants’ letter discredit the
notion that unpaid leave served as a sanction for requesting an accommodation, rather than as a
consequence of noncompliance with the policy for which Plaintiff sought an accommodation and
was denied. Accordingly, Plaintiff’s formal claim in this suit that Defendant retaliated against her
for seeking an exemption by placing her on unpaid leave contradicts the factual contentions in the
EEOC charge, and is therefore not “reasonably related to [the] charge and c[ould not] be expected
to follow from a reasonable administrative investigation.” Smith, 202 F.3d at 247. As a result, the
Court will grant the Motion to Dismiss due to Plaintiff’s failure to exhaust administrative remedies
for her Title VII retaliation claim.

B. Motion to Strike
Defendants also move to strike various passages in the Complaint, as well as materials
referenced in and attached to the Complaint. See DE 17 at 8-18. “The court may strike from a
pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Striking material from pleadings represents a drastic remedy, which causes courts to view “Rule
12(f) motions .. . with disfavor.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th
Cir. 2001). Put another way, “the standard by which courts judge Rule 12(f) motions imposes a
sizable burden on the movant.” Clark v, Milam, 152 F.R.D. 66, 70 (S.D.W. Va. 1993). In light of
that standard and burden, courts “view the [portion of the] pleading under attack in a light most
favorable to the pleader,” M.T. ex rel. Hayes v. Medley, No. 14-CV-0424, 2014 WL 1404527, at *1
(D. Md. Apr. 9, 2014), and generally deny motions to strike absent some showing “of significant
prejudice to one or more of the parties to the action,” Bailey v. Fairfax Cnty., Virginia, No. 1:10-
CV-1031, 2010 WL 5300874, at *4 (E.D. Va. Dec. 21, 2010); accord Staley v. McDonough, No.
1:22-CV-317, 2023 WL 5021196, at *5 (M.D.N.C. Aug. 7, 2023) (“District courts do not grant
Rule 12(f) motions unless the moving party shows prejudice”); Godfredson v. JBC Legal Grp.,
P.C., 387 F. Supp. 2d 543, 548 (E.D.N.C. 2005) (same).
With those principles in mind, the court finds Defendants have not advanced any argument
in support of striking materials from the Complaint that meets their burden. First, Defendants
contend that the court should strike a declaration attached as an exhibit, as well as two paragraphs
from the Complaint that reference the declaration, because those materials discuss COVID-19
vaccination policy accommodations at a different company and, therefore, are immaterial to this
dispute. DE 17 at 9-11. But immateriality within the context of Rule 12(f) motions to strike
requires a showing that the content “clearly can have no possible bearing on the subject matter of

the litigation.” Swift Beef Co. v. Alex Lee, Inc., No. 5:17-CV-176, 2018 WL 792070, at *1
(W.D.N.C. Feb. 8, 2018). The subject matter of this litigation is a COVID-19 vaccination policy,
and reasonable accommodations to the same. Defendants have not shown that discussion of
accommodations at another company fall so far beyond the bounds of relevance as to constitute
immaterial content. See Alston v. Town of Brookline, Massachusetts, 321 F.R.D. 41, 44 (D. Mass.
2017) (reminding that decision not to strike certain allegations does not mean that court
“endorse[s] any particular allegations as appropriate for in-depth discovery” or that “certain
allegations [would be] admissible at trial’).
Second, Defendants move to strike various online news sources hyperlinked throughout
the Complaint, on the grounds that those sources are not “written instruments that may be
incorporated within the pleadings under Rule 10(c) of the Federal Rules of Civil Procedure.” DE
17 at 11. But Defendants only conclusorily contend that the linked sources in the Complaint are
not written instruments; the case they cite as support addresses a photograph. See E.E.O.C. v. Bo-
Cherry, Inc., No. 3:13-CV-00210, 2013 WL 2317724, at *3 (W.D.N.C. May 28, 2013). Moreover,
even if the linked sources are not written instruments, Rule 10(c) provides no independent
authority for the court to strike them, and Defendants have not developed an argument that the
materials are “redundant, immaterial, impertinent, or scandalous.” Fed. R. Civ. P. 12(f).
Further, Defendants misapprehend the command of Rule 10(c), which permits
incorporation of written instruments into pleadings, but does not necessarily circumscribe the types
of materials a party may attach to a pleading. See E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011) (holding more broadly that court may consider “documents
attached or incorporated into the complaint” at motion to dismiss stage) (emphasis added);
Megaro v. McCollum, 66 F.4th 151, 157 (4th Cir. 2023) (stating same principle); Copeland, 789

F.3d at 490 (on appeal of dismissal, listening to four songs at issue in copyright infringement suit
“because all were integral to and explicitly relied on in the complaint”) (internal quotation marks
omitted). In any event, and whatever its reach, Rule 10(c) is not implicated where, as here, the
court does not need to consider the materials for purposes of the Motion to Dismiss. See Occupy
Columbia v. Haley, 738 F.3d 107, 116-17 (4th Cir. 2013) (explaining that, at motion to dismiss
stage, court may only consider complaint, written instruments attached to complaint, and authentic
materials integral to complaint, and declining to decide whether affidavit constitutes written
instrument because “the district court refused to consider [it]”).> In sum, Rule 10(c) does not
support striking content from the Complaint.
Defendants also assert that the Court should strike the same linked news sources from the
Complaint because the information therein is not subject to judicial notice. DE 17 at 13. But
Plaintiff has not requested that the court take judicial notice of the contents of those materials, and
(to reiterate) the court need not consider the materials for purposes of Defendants’ Motion to
Dismiss, which principally requires consideration of the EEOC charge. Again, without endorsing
any of the disputed contentions and sources, the “court does not find it appropriate while the case
is at the pleading stage to engage in a line-by-line evaluation of the relevance [and/or soundness]
of certain allegations.” Alston, 321 F.R.D. at 44; see also Barden v. Murphy-Brown, LLC, No.
7:20-CV-85, 2021 WL 965915, at *8 (E.D.N.C. Mar. 15, 2021) (denying motion to strike and
explaining that court’s task with such motion “is not [to] consider[] whether any [] evidence which
might be offered in support [of] the[] allegations would be admissible later in th[e] case”).
Defendants next move to strike the same materials on the grounds that “they are...
scandalous and inflammatory.” DE 17 at 16. In that regard, the Motion to Strike concedes that

3 Because the court does not need to examine or rely on the materials at this stage, declining to strike them from the
Complaint would not result in any prejudice to Defendants.
10

the “Complaint may not be shown to a jury, [but maintains that, because] the pleading remains a
matter of public record[, it] is prejudicial to Defendants because it includes allegations □□□
Defendants knowingly violated the law.” Jd. But the very nature of a complaint is to set forth
allegations that some party violated the law. Even if the court struck references to the news sources
from the Complaint, allegations that Defendants violated the law would remain. See generally DE
1. Accordingly, Defendants have failed to show any “significant prejudice” that would result in
the absence of granting the motion to strike, see Bailey, 2010 WL 5300874, at *4, and “[dlistrict
courts do not grant Rule 12(f) motions unless the moving party shows prejudice,” Staley, 2023 WL
5021196, at *5.
Lastly, Defendants move to strike certain allegations that they term “legal arguments.” DE
17 at 17-18. This argument lacks merit for several reasons, including that (1) it is conclusory, (2)
Defendants have not attempted to argue that these allegations are “redundant, immaterial,
impertinent, or scandalous,” Fed. R. Civ. P. 12(f); see also Glasser v. Govt of Virgin Islands, 853
F. Supp. 852, 854 (D.V.I. 1994) (contention that certain allegations were legal conclusions did not
warrant striking them under Rule 12(f)), and (3) the court does not have to evaluate the disputed
allegations for purposes of the Motion to Dismiss. Taken together, and considering the drastic
remedy Defendants seek (as well as their sizable burden), the court declines to grant the Motion to
Strike on this basis. See Carlo Bianchi & Co v. City of New York, 20 F.R.D. 165, 166 (S.D.N.Y.
1957) (denying motion to strike and concluding that, although “[t]he complaint is a long one and,
in parts, inclined to a narrative recital of the events,” such that “[t]he artful pleader might regard it
as prolix and tautological . . ., the defendant has certainly been given notice of [the] claims,” and
further that “[p]re-trial discovery procedures are available to defendant and it should have no
difficulty in clarifying and defining the issues and in preparing adequately for trial”).

11

IV. Conclusion
The Motion to Dismiss [DE 16] is GRANTED, in that Plaintiffs retaliation claim (Count
III) will be dismissed for failure to exhaust administrative remedies. Further, the Motion to Strike
[DE 16] is DENIED.

SO ORDERED this _|3 day of September, 2023.
Oi M yous
RICHARD E. MYERS II
CHIEF UNITED STATES DISTRICT JUDGE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10252885. Public record. Not legal advice.