# Fullard v. City of Raleigh

> District Court, E.D. North Carolina · January 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10253135

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** January 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:23-CV-49-D

CHANDRA FULLARD, )
Plaintiff,

v. ORDER
CITY OF RALEIGH,
Defendant.

On August 30, 2023, Chandra Fullard (“Fullard” or “plaintiff”) filed a complaint against the
City of Raleigh (“City of Raleigh” or “defendant”) alleging sex discrimination, sexual harassment,
and retaliation in violation of Title vi of the Civil Rights Act of 1964 (“Title VIP’), 42 U.S.C. §§
2000¢ et seq., [D.E. 1]. On October 30, 2023, the City of Raleigh moved to dismiss the complaint
for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted
[D.E. 9] and filed a memorandum in support [D.E. 10]. On November 2, 2023, Fullard amended her
complaint and alleges Title VI sexual harassment, sex discrimination, and retaliation claims. See
[D.E. 11] J] 42-68. Fullard seeks compensatory damages, attorneys’ fees, pre- and post-judgment
interest, costs, and any other appropriate relief. See id. at 10. On November 13, 2023, Fullard
responded in opposition to the motion to dismiss [D.E. 13]. On November 17, 2023, the City of
Raleigh moved to dismiss the amended complaint for lack of personal jurisdiction and for failure to
state a claim upon which relief can be granted [D.E. 14] and filed a memorandum in support [D.E.
15]. On November 30, 2023, Fullard responded in opposition [D.E. 16]. On December 13, 2023,
the City of Raleigh replied [D.E. 17]. As explained below, the court dismisses as moot the City of

Raleigh’s motion to dismiss the original complaint and grants the City of Raleigh’s motion to
dismiss the amended complaint for failure to state a claim upon which relief can be granted. Fullard
failed to timely file a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”); therefore, her Title VII claims are not actionable.
I.
On June 1, 2021, Fullard began working for the City of Raleigh as a Training and
Development Analyst. See Am. Compl. [D.E. 11] J] 9-10. Between August and October 2021,
Fullard alleges that her supervisor, Dominick Nutter (“Nutter”): (1) asked her to move her chair
closer to his desk in a closed-door meeting; (2) starred at her breasts, after asking her to move closer
to him, during a seven-minute training video; (3) touched her breasts when grabbing items from her;
(4) made inappropriate comments such as “You’re buttering the wrong bread, I’m the one you need
to talk to if you want to get what you need,” “I’ll give you everything you need,” and “I don’t want
you anymore, I want [a female family member of Fullard’s]”; (5S) demanded that she visit his office
for no reason; and (6) made sexual comments while licking his lips on a ten minute Microsoft Teams
call. Id. at J] 14-23. In October 2021, Fullard complained to Human Resources. See id. at □□
22-25. The City of Raleigh conducted an internal investigation. See id. at (25. On January 4,
2022, the investigation concluded and substantiated Fullard’s claims against Nutter. See id. at { 30.
The City informed Fullard she could either change supervisors and have minimal interaction with
Nutter or change positions. See id. at 731. Fullard wanted Nutter removed from his position and
to continue in her same position. See id. at Tf 31-32. Fullard refused to return to work. See id.
On February 1, 2022, the City of Raleigh terminated Fullard’s employment. See id. at □ 34.
The City of Raleigh and Fullard attempted to negotiate a settlement agreement until July 22, 2022,
but they failed to reach an agreement. See [D.E. 16] 3; [D.E. 17] 1. On September 27, 2022, Fullard

filed a charge of discrimination with the EEOC. See Am. Compl. 2. On June 4, 2023, the EEOC
issued Fullard right to sue notice. See id. at | 39. .
I.
A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S.
30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at
570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and
reasonable inferences “in the light most favorable to [the nonmoving party].” Massey v. Ojaniit, 759
F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708
F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155
(2015). A court need not accept as true a complaint’s legal conclusions, “unwarranted inferences,
unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal,
556 U.S. at 678-79. Rather, a plaintiff’ s factual allegations must “nudge[] [her] claims,” Twombly,
550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at
678-79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials
“attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus.., Inc.,
637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(0); Goines v. Valley Cmty. Servs. Bd., 822

. F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court
also may consider a document submitted by a moving party if it is “integral to the complaint and
3 .

there is no dispute about the document’s authenticity” without converting the motion into one for
summary judgment. Goines, 822 F.3d at 166. “[I]n the event of conflict between the bare
allegations of the complaint and any exhibit attached . . . , the exhibit prevails.” Id. (quotation
omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
Additionally, a court may take judicial notice of public records. See, e.g., Fed. R. Evid. 201; Tellabs,
Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem’] Hosp., 572
F.3d 176, 180 (4th Cir. 2009).

Before a person may file a claim in court under Title VII, the person must file a charge of
discrimination with the EEOC. See 42 U.S.C. § 2000e-5(f)(1). An EEOC charge suffices “only if
it is sufficiently precise to identify the parties, and to describe generally the action or practices
complained of.” Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (quotation omitted);
see Miles v. Dell, Inc., 429 F.3d 480, 491-92 (4th Cir. 2005). Moreover, the content of the EEOC
charge determines the scope of plaintiff's right to maintain a Title VII claim in court. See, ¢.g.,
Hentosh v. Old Dominion Univ., 767 F.3d 413, 416-17 (4th Cir. 2014), abrogated on other grounds
by Fort Bend Cnty. v. Davis, 139 S.Ct. 1843 (2019); Bryant v. Bell Atl. Md., Inc., 288 F.3d 124,
132-33 (4th Cir. 2002). “Only those discrimination claims stated in the initial charge, those
reasonably related to the original complaint, and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent Title VII lawsuit.” Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996); see Sydnor v. Fairfax Cnty., 681 F.3d

_ 591, 594 (4th Cir. 2012); Miles, 429 F.3d at 491-92; Bryant, 288 F.3d at 132-33. “Thus, a claim
in formal litigation will generally be barred 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.”

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

139 S. Ct. 1843; Bonds v. Leavitt, 629 F.3d 369, 379 (4th Cir. 2011). The same principle applies
with respect to a plaintiff who files an EEOC charge with respect to one adverse employment action
(such as a failure to rehire), but then seeks to expand the formal litigation claim to a separate adverse
employment action (such as an earlier eaminationy See Bonds, 629 F.3d at 379-80; Jones, 551 F.3d
at 300; Miles, 429 F.3d at 491-92; Chacko, 429 F.3d at 509; Bryant, 288 F.3d at 132-33; Evans, 80
F.3d at 963. The rationale behind these principles concerning the scope of an EEOC charge relates
to providing fair notice to an employer concerning a charge and to permitting the EEOC to
investigate and (if appropriate) resolve the dispute without a lawsuit. See, e.g., Chacko, 429 F.3d
at 508-09, 513; Miles, 429 F.3d at 491.
Under Title VII, Fullard had to file her EEOC charge within 180 days of the alleged adverse
employment action. See, e.g., 42 U.S.C. § 2000e-5(e)(1), (1); Davis, 139 S. Ct. at 1846; Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-15 (2002); E.E.O.C. v. Com. Off. Prods. Co.,
486 U.S. 107, 110 (1988); Williams v. Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004); Bryant,
288 F.3d at 132; Donald v. Novant Health, Inc., _—~*F. Supp. 3d —__, 2023 WL 5672832, at *3
(E.D.N.C. Sept. 1, 2023); Coleman v. Altec, Inc., No. 5:16-CV-954, 2018 WL 4289610, at *2
(E.D.N.C. Sept. 7, 2018) (unpublished); Young v. Onslow Water & Sewer Auth., No. 7:16-CV-259,
2018 WL 405975, at *4 (E.D.N.C. Jan. 12, 2018) (unpublished); Barcliff v. N.C. League of
Municipalities, No. 5:10-CV-244, 2011 WL 3290578, at *2 (E.D.N.C. Aug. 1, 2011) (unpublished);
Bratcher v. Pharm. Prod. Dev.., Inc., 545 F. Supp. 2d 533, 539 (E.D.N.C. 2008); McDougal-Wilson
v. Goodyear Tire & Rubber Co., 427 F. Supp. 2d 595, 606 n.3 (E.D.N.C. 2006). Ifa party fails to
timely file an EEOC charge, the party “lose[s] the ability to recover for” that claim because the claim
is not “actionable.” Morgan, 536 US. at 110, 113. Only adverse employment actions “that took
place within the timely filing period are actionable.” Id. at 114; see Ledbetter v. Goodyear Tire &
; .

Rubber Co., 550 U.S. 618, 623-24 (2007), superseded by statute on other grounds, Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5; Williams, 370 F.3d at 428; Evans, 80 F.3d at
963; Donald, 2023 WL 5672832, at *3; Coleman, 2018 WL 4289610, at *2; Young, 2018 WL
405975, at *4-5; Cooper v. Smithfield Packing Inc., No. 5:10-CV-479, 2011 WL 3207912, at *3
(E.D.N.C. July 27, 2011) (unpublished); Barcliff, 2011 WL 3290578, at *4; McDougal-Wilson, 427
F. Supp. 2d at 606 n.3.
On February 1,202, the City of Raleigh terminated Fullard’s employment. See Am. Compl.
434. Fullard alleges no discriminatory actions or adverse employment actions after this date. See
id. at {J 9-33, 3541 . Thus, on February 1, 2022, Fullard’s EEOC filing period began running. See,
e.g., Morgan, 536 U.S. at 109-14; Del. State Coll. v. Ricks, 449 U.S. 250, 257-58 (1980). Sunday,
July 31, 2022 was 180 days after the alleged “discrete retaliatory or discriminatory act.” Morgan,
536 U.S. at 110; see 42 U.S.C. § 2000e-5(e)(1). On Tuesday, September 27, 2022, Fullard filed her
EEOC charge. See Am. Compl. 92. Fullard’s EEOC charge was untimely. See, e.g., Morgan, 536
USS. at 110-14; Ricks, 449 U.S. at 257-58.

Fullard argues that the City of Raleigh did not object during the EEOC’s investigation or in
its motion to dismiss her original complaint that her EEOC charge was untimely. See [D.E. 16] 3.
Thus, according to Fullard, the City of Raleigh forfeited its argument that her EEOC charge was
untimely. See id. Fullard also argues that the EEOC issued her a right to sue notice on June 4, 2023;
therefore, the EEOC must have considered her EEOC charge to be timely. See id.
“Forfeiture is the failure to make the timely assertion of a right... ” Hamer v.
Neighborhood Hous. Servs., 583 U.S. 17, 20 n.1 (2017) (cleaned up). Once Fullard amended her
complaint “as a matter of course” under Federal Rule of Civil Procedure 15(a)(1), Fullard’s amended
complaint became the operative complaint in the case, and the City of Raleigh had to timely respond

to the amended complaint. See Fed. R. Civ. P. 15(a)(3). The City of Raleigh did so by moving to
dismiss the amended complaint and argued, inter alia, that Fullard failed to timely file her EEOC
charge. See [D.E. 14]; Fed. R. Civ. P 12(b)(6). The City of Raleigh’s failure to raise the
untimeliness of Fullard’s EEOC change concerning Fullard’s original complaint did not forfeit the
City of Raleigh’s ability to raise the argument concerning Fullard’s amended complaint. See, e.g.,
Wood v. Milyard, 566 U.S. 463, 470-71 (2012); Woodson v. Allstate Ins. Co., 855 F.3d 628, 635
(4th Cir. 2017). Likewise, the EEOC’s decision to issue a right to sue notice and failure to address
the timeliness of Fullard’s EEOC charge do not bind this court because Title VII claims are litigated
de novo in district court. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); Nealon v.
Stone, 958 F.2d 584, 588 (4th Cir. 1992); Rojea v. Cregger, No. 3:19-CV-619, 2021 WL 1899878,
at *4 (W.D.N.C. Feb. 24, 2021) (unpublished), report and recommendation adopted, No.
3:19-CV-619, 2021 WL 1233461 (W.D.N.C. Apr. 1, 2021) (unpublished), aff'd, 858 F. App’x 655
(4th Cir. 2021) (per curiam) (unpublished) (rejecting the argument that the receipt of a right to sue
notice overrides the 180-day deadline).
Finally, Fullard seeks equitable tolling. The 180-day time requirement for filing an EEOC
charge is subject to equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982). .
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements.” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 256 (2016) (quotation
omitted); see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling requires a litigant
to establish: “(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary
circumstance stood in [her] way and prevented timely filing.” Menominee Indian Tribe of Wis., 577
US. at 255 (quotation omitted). The “second prong of the equitable tolling test is met only where

the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.” Id.
at 257 (emphasis removed); see Credit Suisse Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227
(2012); Pace, 544 U.S. at 418; Jackson v. Kelly, 650 F.3d 477, 491-92 (4th Cir. 2011); Green'v.
Johnson, 515 F.3d 290, 304 (4th Cir. 2008). .
Courts have applied equitable tolling in “two generally distinct kinds of situations.” Harris
v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (quotation omitted). “In the first, the plaintiffs
were prevented from asserting their claims by some kind of wrongful conduct on the part of the
defendant. In the second, Sreeminee circumstances beyond plaintiffs’ control made it impossible
to file the claims on time.” Id. (quotation omitted). “But any invocation of equity to relieve the strict
application of a statute of limitations must be guarded and infrequent, lest circumstances of
individualized hardship supplant the rules of clearly drafted statutes.” Id.; see Irwin v. Dep’t of
Veterans Affs., 498 U.S. 89, 96 (1990). “To apply equity generously would loose the rule of law to
whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective
notions of fair accommodation.” Harris, 209 F.3d at 330. “[A]ny resort to equity must be reserved
for those rare instances where—due to circumstances external to the party’s own conduct—it would
be unconscionable to enforce the limitation period against the party and pres injustice would result.”
Id.; see Menominee Indian Tribe of Wis., 577 U.S. at 255—57; Pace, 544 U.S. at 418-19; Irwin, 498
U.S. at 96; Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151-52 (1984) (per curiam); -
Rouse v. Lee, 339 F.3d 238, 246-57 (4th Cir. 2003) (en banc); English v. Pabst Brewing Co., 828
F.2d 1047, 1049-51 (4th Cir. 1987); Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128-29 (4th
Cir. 1987); Harvey v. City of New Bern Police Dep’t, 813 F.2d 652, 654 (4th Cir. 1987); Price v.
Litton Bus. Sys., Inc., 694 F.2d 963, 965-66 (4th Cir. 1982); Lawson v. Burlington Indus., Inc., 683
F.2d 862, 864 (4th Cir. 1982).
.

“Equitable tolling is a narrow limitations exception ... .” Olson v. Mobil Oil Corp., 904
F.2d 198, 201 (4th Cir. 1990). “Courts cannot countenance ad hoc litigation for every missed
deadline. The repose that statutes of limitations provide will be lost if their applicability is ‘up for
grabs’ in every case.” Id. (quoting English, 828 F.2d at 1049). “At some point, the right to be free
of stale claims comes to prevail over the right to prosecute them.” Id. (cleaned up). “The limitations
period will not be tolled unless an employee’s failure to timely file results from either a deliberate
design by the employer or actions that the employer should unmistakably have understood would
cause the employee to delay filing his charge.” Id. (quotation omitted).
Fullard is not entitled to equitable tolling. Fullard alleges no wrongful conduct by the City
of Raleigh. Moreover, any ongoing settlement discussions with the City of Raleigh do not qualify
as an “extraordinary” circumstance “beyond plaintiff's control” that “made it impossible to file” an
EEOC charge within 180 days of any adverse employment action. Harris, 209 F.3d at 330; see
Menominee Indian Tribe of Wis., 577 U.S. at 255-57; Simmonds, 566 U.S. at 227; Pace, 544 U.S.
at 418; Irwin, 498 U.S. at 96; Olson, 904 F.2d at 201. Thus, equitable tolling does not apply.
Il.
In aut the court DISMISSES AS MOOT defendant’s motion to dismiss the original
complaint [D.E. 9] and GRANTS defendant’s motion to dismiss the amended complaint [D.E. 14].
The court DISMISSES WITH PREJUDICE plaintiff's amended complaint.
SO ORDERED. This 4A day of January, 2024.

ate C. DEVER III
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253135. Public record. Not legal advice.