BROWN v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TAMMY BROWN, )

)

Plaintiff, )

)

v. ) 1:20-CV-0086

)

UNIVERSITY OF NORTH CAROLINA )

HEALTH CARE SYSTEM, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

In this employment discrimination case, Defendant University

of North Carolina Health Care System (“UNC Health”) moves to

dismiss Plaintiff Tammy Brown’s amended complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6).

(Doc. 11.) Brown has responded in opposition. (Doc. 16.) For

the reasons set forth below, the motion will be granted and the

amended complaint will be dismissed.

I. BACKGROUND

The facts alleged in the current complaint, taken in the light

most favorable to Brown, show the following:

Brown — a black woman — has been employed by UNC Health since

January 2008. (Doc. 9 ¶ 6.) Her current position is Patients

Account Manager for the Financial Counseling Team. (Id. ¶ 7.)

Throughout her employment with UNC Health, Brown has consistently

exceeded performance expectations and has regularly accepted

responsibilities additional to those of her primary role,

generally without commensurate compensation. (Id. ¶¶ 8, 15–16.)

Brown alleges that, since 2014, UNC Health has subjected her to

multiple forms of discriminatory conduct. (See id. ¶¶ 9–64.)

In September 2014, Brown learned that her salary was

significantly lower than that of others in her same job class.

(Id. ¶¶ 9-10.) At the time, Brown was the only black female in

that class. (Id. ¶ 11.) Ten months later, after her supervisors

advocated on her behalf, Brown received a pay increase to remedy

the deficiency, but the increase was retroactive only to January

2015, unlike Caucasian co-workers in the same job class who

received their increases in 2013. (Id. ¶¶ 12–13.)

Between 2016 and 2018, Brown applied for, but did not receive,

multiple promotions. In March 2016, she applied for the positions

of Executive Director, Patient Access and Executive Director, Pre-

Services. (Id. ¶¶ 21–25.) While she was interviewed for both

jobs, she did not receive either, and the Executive Director,

Patient Access position was ultimately given to a less-qualified

white applicant. (Id. ¶¶ 22–27, 36.) Then, in September 2016,

she applied for the position of Director, Patient Access-Revenue

Cycle Management. (Id. ¶ 32.) She did not receive an interview

for that position, and her application disappeared from the online

application portal. (Id. ¶ 33.) In March 2017, Brown again

applied for the Executive Director, Patient Access position, but

was never interviewed. (Id. ¶ 36.) And in April 2018, she applied

for the job of Director, Patient Access Medicaid but, again, was

not interviewed. (Id. ¶¶ 44–45.)

Between 2017 and 2018, Brown was promised multiple promotions

which never came to fruition. First, in January 2017, Vice

President MaryAnn Minsley told Brown that she would be promoted to

Director of Financial Counseling. (Id. ¶ 34.) Before the

promotion was finalized, however, Brown’s team transitioned to a

new reporting structure.1 (See id. ¶ 35.) Then, in June 2017,

Vice President Steven Rinaldi told Brown that she would be promoted

to a Director position by the end of the summer. (Id. ¶ 37.)

However, Brown heard nothing and by October Rinaldi failed to

respond to emails about it. (Id. ¶ 38.) In March 2018, Brown’s

Executive Director, Danielle Reese, who is black, informed her

that she wanted her to serve as the Interim Director for Medicaid

and Financial Assistance. (Id. ¶ 40.) Within a few days, though,

Reese rescinded the opportunity because it was “too political.”

(Id. ¶ 42.) Later, Reese offered Brown a promotion to Director of

Financial Counseling, and in August 2018 Reese provided her with

the expected salary for the position. (Id. ¶¶ 46–48.) Brown

indicated, based on the salaries of other UNC Health Director-

level positions, that she believed the salary was too low. (Id.

1 There is no allegation that the position was filled at the time.

¶ 49.) She ultimately did not receive the position and later

learned that she was considered to have rejected the offer. (See

Doc. 16-3 at 4.)

On September 12, 2018, Reese hired her personal friend,

Yolanda Banks, who is black, as a Manager for Financial Counseling.

(Id. ¶¶ 50, 53, 55.) Brown filed a formal internal complaint

regarding the hiring decision, claiming that Banks, who was

significantly less experienced than Brown, received the position

due to her friendship with Reese. (Id. ¶¶ 53–58.) When Reese

learned of the formal complaint, she began treating Brown

differently. (Id. ¶ 59.) Reese “became very short” with Brown,

cut off daily communications with her, regularly changed locations

for meetings with her at the last minute, and listed other UNC

Health Directors with less experience than her as initial points

of contact in her absence. (Id. ¶¶ 60–62.) Brown understood Reese

to be retaliating against her for having filed her internal

complaint. (Id. ¶ 59.)

In March 2019, Brown submitted an initial inquiry form to the

Equal Employment Opportunity Commission (“EEOC”). (Doc. 16-2.)

Based on her submission, the EEOC drafted a charge of

discrimination. (Doc. 16-1; Doc. 16 at 11.) The charge alleged

that on November 30, 2018, Brown applied for the position of

Director for Financial Counseling and on February 19, 2019, she

learned that a less-qualified white applicant, Jennifer Headen,

was selected. (Doc. 16-1.) On April 26, 2019, Brown digitally

signed the charge, and on August 15, 2019, the EEOC issued her a

Right to Sue letter which advised her of her right to bring suit

on her claim within 90 days. (Id.; Doc. 9 ¶ 66.)

On November 12, 2019, Brown filed an application and order

extending the time to file a complaint in North Carolina Superior

Court in Orange County, North Carolina, and on December 3, 2019,

filed suit in that court. (Doc. 1-1; Doc. 3.) UNC Health timely

removed the action to this court (Doc. 1), and Brown filed an

amended complaint (Doc. 9). Brown brings two claims against UNC

Health for violations of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e (2020) (“Title VII”): she claims, first, that

UNC Health subjected her to discrimination on the basis of her

race; and second, that it retaliated against her for engaging in

protected activities.2 (Id. ¶¶ 67–79.) UNC Health now moves to

dismiss both claims. (Doc. 11.) The motion is fully briefed and

ready for decision. (See Docs. 12, 16, 18.)

II. ANALYSIS

A. Eleventh Amendment Immunity

UNC Health first seeks dismissal of Brown’s claims on the

basis of Eleventh Amendment immunity pursuant to Federal Rules of

2 Although Brown’s amended complaint does not indicate whether her

retaliation claim arises under Title VII or state law, her opposition

to the present motion clarifies that her retaliation claim is brought

only under Title VII. (Doc. 16 at 16.)

Civil Procedure 12(b)(1) and (b)(2). (Doc. 12 at 30—32.)

“The Fourth Circuit has not conclusively established whether

a dismissal based on Eleventh Amendment immunity is a dismissal

for lack of subject matter jurisdiction under Rule 12(b)(1) or for

failure to state a claim under Rule 12(b)(6).” Mary’s House, Inc.

v. North Carolina, 976 F. Supp. 2d 691, 696–97 (M.D.N.C. 2013)

(citing Andrews v. Daw, 201 F.3d 521, 524-25 n.2 (4th Cir. 2000)).

This court, like others in the Fourth Circuit, has considered

Eleventh Amendment immunity under Rule 12(b)(1) and will do so

here. See Blackburn v. Trs. of Guilford Tech. Cmty. Coll., 822 F.

Supp. 2d 539, 542 n.2 (M.D.N.C. 2011) (collecting cases); McCants

v. Nat’l Collegiate Athletic Ass’n, 251 F. Supp. 3d 952, 954-55

(M.D.N.C. 2017) (same).

A motion to dismiss pursuant to Rule 12(b)(1) for lack of

subject matter jurisdiction raises the question of “whether [the

plaintiff] has a right to be in the district court at all and

whether the court has the power to hear and dispose of [the]

claim.” McCants, 251 F. Supp. 3d at 955 (alterations in original)

(quoting Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d

448, 452 (4th Cir. 2012)). While a plaintiff bears the burden of

proving the court’s subject matter jurisdiction, a defendant who

raises the defense of Eleventh Amendment immunity bears the burden

of demonstrating that it is entitled to that immunity. Hutto v.

S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014).

The Eleventh Amendment provides that “[t]he Judicial power of

the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United

States by Citizens of another State.” U.S. Const. amend. XI. This

prohibits a private citizen from suing a state in federal court

for money damages. Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 100 (1984); Ballenger v. Owens, 352 F.3d 842, 844 (4th

Cir. 2003). This prohibition extends to suits against any state

agency that is considered an arm of the state. See Blackburn, 822

F. Supp. 2d at 542–43 (citing Regents of Univ. of Cal. v. Doe, 519

U.S. 425, 429-30 (1997)). State-funded colleges and universities

structured to have close ties to the state are considered “arms of

the State” for Eleventh Amendment purposes. Id. (citations and

alterations omitted); see also Diede v. UNC Healthcare, No. 5:16-

CV-00788-BR, 2018 WL 549430, at *3 (E.D.N.C. Jan. 24, 2018)

(extending immunity granted to public universities to UNC Health).

However, there are exceptions. For example, Congress may abrogate

a state’s Eleventh Amendment immunity through the enactment of

legislation pursuant to Section 5 of the Fourteenth Amendment, as

it did in enacting Title VII. See Fitzpatrick v. Bitzer, 427 U.S.

445 (1976); see also Savage v. Maryland, 896 F.3d 260, 275 (4th

Cir. 2018) (explaining Title VII abrogates Eleventh Amendment

immunity for suits against a state agency in its capacity as an

employer).

Although UNC Health acknowledges that Congress has abrogated

Eleventh Amendment immunity in relation to Title VII claims, it

contends that Brown is required to affirmatively plead that

sovereign immunity has been abrogated in order for the court to

exercise jurisdiction.3 (Doc. 12 at 31-32.) This argument is not

supported by the Federal Rules of Civil Procedure. Rule 8(a)(1)

requires a complaint to contain “a short and plain statement of

the grounds for the court's jurisdiction . . . .” Fed. R. Civ. P.

8(a)(1). Rule 8(e) counsels that “[p]leadings must be construed

so as to do justice.” Fed. R. Civ. P. 8(e). Under these rules,

Brown is not obligated to explicitly state that Title VII abrogates

Eleventh Amendment immunity for this court to exercise

jurisdiction.4 See Pinkley, Inc. v. City of Frederick, MD, 191

F.3d 394, 399 (4th Cir. 1999) (“[A] federal court may find that it

has jurisdiction if the facts supporting jurisdiction have been

clearly pleaded.”).

In her amended complaint, Brown states that jurisdiction is

3 Brown has failed to respond to this argument, yet the Fourth Circuit

requires substantive review of even unopposed motions to dismiss. See

Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3 (4th Cir.

2014) (“Even though [the plaintiffs] did not challenge the motions to

dismiss, we note that the district court nevertheless has an obligation

to review the motions to ensure that dismissal is proper.”).

4 UNC Health, relying on North Carolina law, argues that Brown is required

to “allege and prove” a waiver of sovereign immunity. (See Doc. 12 at

30 (citing Efird v. Riley, 342 F. Supp. 2d 413, 425 (M.D.N.C. 2004)

(addressing waiver of sovereign immunity in the context of state law

tort claims)).) As Brown’s claims are based on federal law, state law

is inapposite here.

appropriate pursuant to 28 U.S.C. § 1331. (Doc. 9 ¶ 3.) She

further identifies and cites to Title VII as the statute upon which

her claims are based. (See id. at 1.) These indications are

sufficient to establish this court’s subject matter jurisdiction

over her claims. As Brown’s claims are based in Title VII and UNC

Health acknowledges that it is not entitled to Eleventh Amendment

immunity for those claims (Doc. 12 at 32), the court declines to

dismiss them on UNC Health’s technical argument regarding the form

of her pleadings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)

(“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era.”); see also

Trusted Integration, Inc. v. United States, 679 F. Supp. 2d 70,

78–79 (D.D.C. 2010) (declining to dismiss complaint that did not

state a waiver of sovereign immunity because “plaintiff . . .

explicitly cited the Lanham Act . . . which waives sovereign

immunity”). Because Brown bases her claims on Title VII, UNC

Health is not entitled to sovereign immunity and the court may

exercise subject matter jurisdiction over these claims.

B. Failure to State a Claim

1. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) provides that 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). Under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Iqbal, 556

U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is plausible “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. In

considering a Rule 12(b)(6) motion, a court “must accept as true

all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all

reasonable inferences must be drawn in the plaintiff’s favor.

Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “Rule

12(b)(6) protects against meritless litigation by requiring

sufficient factual allegation ‘to raise a right to relief above

the speculative level’ so as to ‘nudge[] the[] claims across the

line from conceivable to plausible.’” Sauers v. Winston-

Salem/Forsyth Cnty. Bd. Of Educ., 179 F. Supp. 3d. 544, 550

(M.D.N.C. 2016) (alteration in original) (quoting Twombly, 550

U.S. at 555). Although an employment discrimination plaintiff

need not plead a prima facie case of discrimination to survive a

motion to dismiss, McCleary–Evans v. Md. Dep't of Transp., State

Highway Admin., 780 F.3d 582, 584 (4th Cir. 2015) (citing

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002)), “the

complaint must ‘state[] a plausible claim for relief’ that

permit[s] the court to infer more than the mere possibility of

misconduct based upon ‘its judicial experience and common sense.’”

Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010)

(alterations in original) (quoting Iqbal, 556 U.S. at 679). Thus,

mere legal conclusions are not accepted as true, and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

In reviewing a Rule 12(b)(6) motion, the court may “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

Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

2. Violations of Title VII

Brown brings two claims under Title VII: (1) discrimination

based on race, in the form of both disparate treatment and a

racially hostile work environment, and (2) retaliation based on

participation in a protected activity. (Doc. 9 ¶¶ 68–79.) UNC

Health contends that both claims should be dismissed because (1)

Brown’s claims are time-barred, (2) Brown has failed to exhaust

her causes of action as required by Title VII, and (3) Brown has

failed to state a claim for relief. (Doc. 12 at 15, 20–21, 24,

27–28.) Each argument is addressed in turn.

a. Timeliness of claims

UNC Health first argues that a significant portion of Brown’s

allegations are time-barred. (See Doc. 12 at 20–21.) Brown

contends that the allegations are not time-barred because, she

argues, the continuing violation doctrine applies to extend the

limitations period. (Doc. 16 at 13–14.) UNC Health responds that

the continuing violation doctrine is inapplicable here. (Doc. 18

at 13–15.)

To maintain an action under Title VII, a plaintiff must file

an administrative charge with the EEOC within 180 days of the

alleged misconduct, or the claims are time-barred. 42 U.S.C.

§ 2000e-5(e)(1); see Williams v. Giant Food Inc., 370 F.3d 423,

428 (4th Cir. 2004). “[D]iscrete discriminatory acts are not

actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Nat'l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002). However, under the continuing

violation doctrine, a court may consider “incidents that occurred

outside the time bar when those incidents are part of a single,

ongoing pattern of discrimination.” Holland v. Wash. Homes, Inc.,

487 F.3d 208, 219 (4th Cir. 2007). The doctrine is based on the

idea that some discriminatory employment practices — namely

hostile environment claims — are “composed of a series of separate

acts that collectively constitute one unlawful employment

practice.” Morgan, 536 U.S. at 116–17 (internal quotation marks

omitted). While the Supreme Court has refrained from ruling on

whether the continuing violation doctrine applies in pattern or

practice cases, id. at 115 n.9, many courts have held that the

doctrine does not apply to “discrete acts of discrimination merely

because the plaintiff asserts that such discrete acts occurred as

part of a policy of discrimination,” Williams, 370 F.3d at 429.

The Fourth Circuit has held that discriminatory failure to promote

claims, even if “part of a broader pattern or practice of

discrimination, . . . remain discrete acts of discrimination.”

Id. Similarly, discriminatory pay claims have been found to be

discrete acts, even when made pursuant to a broader policy of

discrimination. See id. (discussing Bazemore v. Friday, 478 U.S.

385 (1986) and stating that “each discriminatory salary payment

was a discrete discriminatory act”); see also Brinkley–Obu v.

Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994) (“[T]he

issuance of each diminished paycheck constitutes a discriminatory

act.”).

Here, because Brown filed her charge with the EEOC on April

26, 2019, the alleged misconduct must either have occurred on or

after October 28, 2018, or be considered part of a continuing

violation, to be timely.5 (See Doc. 16-1.) However, the majority

5 Although not argued by either party, the Supreme Court has recognized

that preliminary documents filed with the EEOC may, in certain

circumstances, be considered a charge for the purposes of the 180-day

filing period. See Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008).

As Brown filed an initial inquiry with the EEOC on March 31, 2019 (see

Doc. 9 ¶ 64; Doc. 16-2), if this were considered a charge under the

standards articulated in Holowecki, conduct alleged as occurring on or

after October 2, 2018, could be considered timely. However, because the

issue is not addressed by either party and it is not outcome-

determinative, the court does not consider it here.

of the conduct alleged fits neither requirement and is therefore

time-barred.

First, the amended complaint alleges discriminatory conduct

that occurred primarily before October 28, 2018. Brown alleges

facts regarding a disparate pay claim in 2014 which was remedied

in 2015, multiple failure to promote claims from 2016 to August

2018, and a claim of unfair hiring practices stemming from the

September 12, 2018 hiring of Banks.6 None of these acts occurred

after October 28, 2018, and therefore were untimely when Brown

filed her EEOC charge on April 26, 2019.

Second, none of her time-barred allegations falls within the

continuing violation doctrine. Brown’s discriminatory pay claim,

failure to promote claims, and single instance of unfair hiring

practices each constitute a discrete employment action, despite

Brown’s characterization of the acts as part of a broader pattern

of discrimination. As such, the continuing violation doctrine is

6 Brown alleges that her internal complaint regarding the hiring of Banks

forms, in part, the basis for her retaliation claim. (See Doc. 9 ¶ 75.)

However, she does not allege, nor could she, that this incident is the

basis of her discrimination claim. Like Brown, Banks is black and there

are no facts indicating that the decision to hire Banks was related to

race. (Id. ¶ 50.) Rather, Brown contends that the hiring of Banks was

unfair because Banks received the position due to her friendship with

Reese. (Id. ¶¶ 53–57.) While the unfair hiring decision itself is a

discrete employment action that occurred more than 180 days before the

charge (or even Brown’s initial inquiry with the EEOC), the retaliation

that Brown experienced in the wake that decision plausibly extended into

the period after that. As such, the retaliation claim brought on that

basis may be considered timely and is considered as such, infra.

inapplicable. Brown’s allegations regarding conduct occurring

before October 28, 2018, are time-barred.

Because Brown’s disparate treatment and hostile work

environment claims are all based on conduct occurring before

October 28, 2018, that is time-barred, the court does not consider

the merits of these claims.7 This leaves only Brown’s retaliation

claim for further consideration.8

b. Exhaustion of Title VII retaliation claims

In relation to Brown’s remaining timely claim of retaliation,

UNC Health argues that dismissal should be granted because Brown

failed to exhaust her claim through the filing of an appropriate

administrative charge with the EEOC. (Doc. 12 at 27.) In

response, Brown argues that her claims are exhausted because she

filed an administrative charge with the EEOC and the retaliation

7 Even if timely, however, these claims would be dismissed based on lack

of exhaustion. In Title VII suits, “factual allegations made in formal

litigation must correspond to those set forth in the administrative

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

As discussed infra, Brown’s EEOC charge details a discrete failure to

promote claim from February 2019. None of the allegations in Brown’s

amended complaint that underlie her disparate treatment and racially

hostile work environment claims appears in her EEOC charge, nor is any

reasonably related to that charge. As such, these claims would be

considered unexhausted and subject to dismissal on that basis as well.

8 Although Brown’s EEOC charge details a discriminatory failure to

promote claim that occurred in February 2019, Brown has not re-alleged

that incident as a basis for the present suit. Without bringing a claim

based on that conduct, the court cannot consider the merits of a possible

discrimination claim arising from that conduct. However, as Brown

indicates that she was subjected to retaliation based upon the filing

of the charge, the court considers the charge in relation to her

retaliation claim, infra.

alleged in the amended complaint naturally arises from the

allegations made in the EEOC charge. (Doc. 16 at 11–12.) She

further argues that the claims not explicitly mentioned in her

EEOC charge may be considered exhausted because she mentioned the

claims in her initial inquiry with the EEOC. (Id. at 11.)

i. Allegations arising from the charge

To bring suit under Title VII, a claimant must first exhaust

her administrative remedies by filing an appropriate charge with

the EEOC. See Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d 147,

148 (4th Cir. 1999). “The allegations contained in the

administrative charge . . . generally operate to limit the scope

of any subsequent judicial complaint,” Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 962–63 (4th Cir. 1996), in

that “factual allegations made in formal litigation must

correspond to those set forth in the administrative charge,” Chacko

v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). A plaintiff

cannot raise claims under Title VII that “exceed the scope of the

EEOC charge and any charges that would naturally have arisen from

an investigation thereof.” Dennis v. Cnty. of Fairfax, 55 F.3d

151, 156 (4th Cir. 1995); see also Evans, 80 F.3d at 963 (“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.”).

Although courts construe administrative charges liberally,

“[i]f the factual foundation in the administrative charge is too

vague to support a claim that is later presented in subsequent

litigation, that claim will [] be procedurally barred.” Chacko,

429 F.3d at 509 (citing Taylor v. Va. Union Univ., 193 F.3d 219,

239 (4th Cir. 1999) (en banc)). A charge must be “sufficiently

precise to identify the parties, and to describe generally the

action or practices complained of.” Keener v. Universal Cos., 128

F. Supp. 3d 902, 912 (M.D.N.C. 2015) (quoting Chacko, 429 F.3d at

508). Further, a plaintiff cannot bring suit on a claim under

Title VII where the “charge[] reference[s] different time frames,

actors, and discriminatory conduct than the central factual

allegations in h[er] formal suit,” id. (alterations in original)

(quoting Chacko, 429 F.3d at 506), or the charge “alleges one type

of discrimination — such as discriminatory failure to promote —

and the claim encompasses another type — such as discrimination in

pay and benefits,” Chacko, 429 F.3d at 509. Similarly, an

administrative charge that alleges a discrete discriminatory act

is considered insufficient to support suit where the plaintiff

subsequently alleges a broader pattern of misconduct. Id. (citing

Dennis, 55 F.3d at 153, 156-57).

Typically, a claim for retaliation that is based upon the

filing of an EEOC charge is not subject to the same exhaustion

requirements as other Title VII claims. See Crosten v. Kamauf,

932 F. Supp. 676, 683 (D. Md. 1996); Johnson v. Portfolio Recovery

Assocs., LLC, 682 F. Supp. 2d 560, 573 (E.D. Va. 2009); Chapman v.

Duke Energy Carolinas, LLC, No. CIV. 309CV37RJCDCK, 2010 WL 411141,

at *5 (W.D.N.C. Jan. 28, 2010). A plaintiff may generally raise

a retaliation claim based on the filing of a timely EEOC charge

for the first time in federal court, as long as the claim both is

“related to” and “gr[ew] out” of the EEOC charge. Brown v. Runyon,

139 F.3d 888 (4th Cir. 1998) (citing Nealon v. Stone, 958 F.2d 584

(4th Cir. 1992)); see also Jones v. Calvert Grp., Ltd., 551 F.3d

297, 302 (4th Cir. 2009). However, “[i]f either predicate . . .

is lacking, the rule cannot operate to overcome a plaintiff’s

failure to have exhausted administrative remedies.” Runyon, 139

F.3d at *3. As such, where alleged retaliation could have been

raised in an initial EEOC charge because the retaliation occurred

prior to the filing of the charge, the claim will be held to the

exhaustion requirements applicable to other Title VII claims.

Crosten, 932 F. Supp. at 683; Smith v. Potter, No. 1:09CV587, 2010

WL 5288183, at *10 (M.D.N.C. Dec. 17, 2010).

Here, Brown’s EEOC charge states:

I have been employed by [UNC Health] since 2008, my

current job title is Patient Accounts Manager.

On or about Nov 30 2018 I applied for and received an

interview for Health System Director for Financial

Counseling. I was informed on or about February 19 2019

that a lesser qualified white female Jennifer Headen had

been hired in the position.

I believe I have been discriminated against due to my

race back [sic] and that UNC discriminates against race

black as a class in hiring senior level managers in

violation of Title VII . . . .

(Doc. 16-1.) On the charge form, Brown checked the box indicating

discrimination based on race, but she did not check the box

connoting retaliation. (Id.)

Based on the facts alleged in the charge, while the charge

supports a discrete discriminatory failure to promote claim, there

is no indication that Brown intended to allege retaliation in that

charge. Further, the facts alleged within the charge are not

reasonably related to those brought in her current retaliation

claim because the charge details different time frames, actors,

and conduct. Therefore, Brown’s retaliation claim was not

exhausted by the filing of this charge. However, lack of

exhaustion does not bar the court’s consideration of a retaliation

claim where the alleged retaliation was based on the filing of the

EEOC charge. And here, Brown seems to allege that the retaliation

she experienced was — at least in part — based on the filing of

her EEOC charge. (See Doc. 9 ¶ 75 (“[Brown] engaged in legally

protected activity by filing a formal complaint/grievance about

the circumstances surround[ing] her denial of promotion . . . .”).

As such, to the extent Brown alleges retaliation based on her

filing of the EEOC charge, her claim is not barred due to lack of

exhaustion.

Brown also claims that she experienced retaliation, in part,

due to the internal complaint she filed regarding the hiring of

Banks. (Id. (“[Brown] engaged in legally protected activity by

filing a formal complaint/grievance about the circumstances

surround[ing] . . . the promotion of lesser qualified Banks.”);

see also id. ¶ 59 (“Reese, upon learning of [Brown]’s filing a

formal complaint about Banks . . . commenced a retaliation campaign

against [Brown].”) To the extent that her retaliation claim is

based on that activity, the claim is not exhausted. According to

the amended complaint, Brown filed the formal complaint regarding

the promotion of Banks in September 2018 and began experiencing

retaliatory conduct shortly thereafter. (Id. ¶¶ 58–62.) As this

retaliatory conduct preceded the filing of her EEOC charge, it

neither is related to nor grew out of the EEOC charge. Therefore,

this claim should have been brought in her EEOC charge and is

barred due to lack of exhaustion.

ii. Initial inquiry

To the extent her retaliation claim is not exhausted by the

EEOC charge, Brown argues that the claim should be considered

exhausted based on the initial inquiry that she filed with the

EEOC. (Doc. 16 at 10-11.) UNC Health responds that Brown’s

ability to seek relief under Title VII is limited to the

information included in her EEOC charge. (Doc. 18 at 8.)

“[C]ourts do not look to allegations included in intake

questionnaires to determine the scope of the charges filed before

the EEOC.” Brown v. Target, Inc., No. CIV.A. ELH-14-00950, 2015

WL 2452617, at *6 (D. Md. May 20, 2015) (citing Green v. JP Morgan

Chase Bank Nat. Ass’n, 501 F. App’x 727, 731-32 (10th Cir. 2012)

and Ahuja v. Detica Inc., 873 F. Supp. 2d 221, 227-31 (D.D.C.

2012));9 Rios v. City of Raleigh, No. 5:19-CV-00532-M, 2020 WL

5603923, at *6–7 (E.D.N.C. Sept. 18, 2020) (collecting cases).

Rather, as the Fourth Circuit has explained, “[i]n any . . .

lawsuit alleging unlawful employment practices,” courts “may only

consider those allegations included in the EEOC charge” itself.

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

Cir. 2013). As “one of the purposes of requiring a party to file

charges with the EEOC is to put the charged party on notice of the

claims raised against it,” initial inquiries submitted to the EEOC

“cannot be read as part of [a plaintiff's] formal discrimination

charge without contravening the purposes of Title VII.” Id. at

408; see also Pruitt v. Peninsula Reg'l Med. Ctr., GLR–14–00344,

2014 WL 2916863, at *6–7 (D. Md. June 25, 2014) (dismissing claims

included in an intake questionnaire but not included in the EEOC

9 Although the court in Target discussed the impact of EEOC intake

questionnaires on the scope of exhaustion, later courts have applied the

same standards in the context of EEOC initial inquiry forms, a newer

administrative process. See, e.g., Muldrow v. S.C. Dep't of Corr., No.

CV 2:19-3498-DCN-KDW, 2020 WL 4588893, at *6 (D.S.C. Apr. 7,

2020), report and recommendation adopted, No. 219CV03498DCNKDW, 2020 WL

2569849 (D.S.C. May 21, 2020); Martinez v. Prairie Fire Dev. Grp., LLC,

No. 19-CV-2143-JWL, 2019 WL 3412264, at *5 (D. Kan. July 29, 2019).

charge for failure to administratively exhaust); Gully v. District

of Columbia, 474 F. Supp. 3d 154, 165–66 (D.D.C. 2020) (concluding

plaintiff did not exhaust certain claims because “[h]e filed no

administrative charge; he filed an inquiry”).

Brown asks the court to consider the allegations within her

initial inquiry form to expand the scope of claims considered

exhausted by her EEOC charge. Under the Fourth Circuit’s holding

in Balas, however, the court considers only those allegations

brought within the charge itself. Here, although the initial

inquiry included details regarding the hiring of Banks, the charge

itself did not. (See Docs. 16-1, 16-2.) Brown argues that she is

“burdened with . . . a legal dilemma not of her making” as the

EEOC determined what claims to set out in the charge and, in that

process, did not include information she set out in the EEOC’s

initial inquiry form where she listed the reason for the complaint

as “Race, Color, Retaliation.” (Doc. 16 at 10; Doc. 16-2 at 1.)

While one can appreciate that the EEOC composed the charge on

behalf of Brown and that the charge was based upon her initial

inquiry, Brown was not required to sign a charge that did not

fairly represent her claims. As the court’s review is limited to

claims properly brought within the EEOC charge, the court will not

consider the claims alleged in the initial inquiry to expand the

scope of the charge. Brown’s retaliation claim stemming from her

internal complaint regarding the hiring of Banks therefore remains

unexhausted.10

c. Sufficiency of retaliation claim

UNC Health argues that even if Brown’s retaliation claim were

properly before the court, it would nevertheless fail to

sufficiently state a claim under Title VII. (Doc. 12 at 28.)

Brown has not responded to this argument.11 As the court has found

that Brown may pursue her retaliation claim in this case arising

from the filing of her EEOC charge, the court next considers

whether she has successfully stated a claim on that basis.

Title VII makes it an “unlawful employment practice for an

employer to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment practice

by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

10 Even if the court were to consider that claim exhausted, however, the

claim would still not survive dismissal. The alleged retaliation would

not be actionable under Title VII because Brown’s internal complaint

regarding the promotion of Banks would not qualify as protected activity

under Title VII. Title VII prohibits retaliation against employees who

oppose unlawful employment practices as defined under the act. See 42

U.S.C. § 2000e-3. By virtue of her internal complaint, Brown indicated

that she opposed the hiring of Banks because she received the position

due to her personal friendship with Reese. However, nepotism is not an

unlawful employment practice under Title VII, and therefore action

opposing it is not protected by Title VII. See Jackson-Brown v. Tech.

& Project Eng'g Servs., LLC, No. 1:14-CV-01297-GBL, 2014 WL 7272887, at

*5 (E.D. Va. Dec. 17, 2014) (citing Ayers v. AT&T Co., 826 F. Supp. 443,

445 (S.D. Fla. 1993)).

11 As discussed in note 3, supra, although Brown has failed to respond

to this argument, substantive review is required to determine whether

dismissal on these grounds is appropriate. See Stevenson, 743 F.3d at

416 n.3.

proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–

3(a). Generally speaking, to state a claim for retaliation under

Title VII, a plaintiff must show (1) she engaged in protected

activity,12 (2) the employer took an adverse action against her,

and (3) a causal connection existed between the protected activity

and the adverse action. Carter v. Ball, 33 F.3d 450, 460 (4th

Cir. 1994); Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365

(4th Cir. 1985); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d

253, 258 (4th Cir. 1998); Causey v. Balog, 162 F.3d 795, 803 (4th

Cir. 1998). In the context of retaliation, “adverse action”

encompasses actions “that a reasonable employee would have found

. . . materially adverse, which . . . means it well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (internal quotation marks omitted). Whether

an action is materially adverse is context-specific. Id. at 69.

An employer's action that “may make little difference to many

workers, but may matter enormously” to a particular plaintiff, may

constitute a materially adverse action. Id. However, trivial

harms, petty slights, or minor annoyances do not suffice. Id. at

69; see also Laird v. Fairfax Cnty., Va., 978 F.3d 887, 893 (4th

12 Title VII protects opposition directed not only toward unlawful

employment practices, but also those practices that a plaintiff

reasonably believes to be unlawful. DeMasters v. Carilion Clinic, 796

F.3d 409, 417 (4th Cir. 2015).

Cir. 2020) (“[T]he harm must be a significant detriment, not

relatively insubstantial or trivial.” (emphasis in original)

(internal quotation marks omitted)).

Brown has successfully alleged the first element of a

retaliation claim — participation in a protected activity — in

that she filed a charge of discrimination with the EEOC. Jefferies

v. UNC Reg'l Physicians Pediatrics, 392 F. Supp. 3d 620, 629

(M.D.N.C. 2019). However, it is less clear that she has pleaded

the second required element, an adverse action. Brown alleges

that Reese “became short” with her, cut off daily communications

with her, changed the location of meetings, and listed other

employees as initial points of contact instead of her. (Doc. 9

¶¶ 60–62.) As these actions do not appear to reflect a significant

detriment, it is doubtful that they constitute “materially

adverse” actions to support a retaliation claim. Regardless, the

court need not decide the issue because Brown’s claim fails on the

third required element, causation.

To allege causation in the context of a retaliation claim,

Brown must show (1) that the protected activity preceded the

materially adverse action and (2) that the employer knew the

employee engaged in a protected activity. Jefferies, 392 F. Supp.

3d at 629; see Causey, 162 F.3d at 803-04 (stating that

“[k]nowledge of a charge is essential to a retaliation claim”); see

also Dowe v. Total Action Against Poverty in Roanoke Valley, 145

F.3d 653, 657 (4th Cir. 1998). Here, each of the adverse actions

alleged by Brown occurred prior to the filing of her EEOC charge,

and Brown has alleged no additional adverse action that occurred

after she filed her EEOC charge. Indeed, the current complaint

largely suggests that the actions were taken in retaliation for

Brown complaining about the hiring of Banks, not the filing of the

EEOC charge.13 (See, e.g., Doc. 9 ¶¶ 59–66.) As Brown has not

identified any adverse action to which she was subjected after she

filed her EEOC charge, she has not plausibly alleged that she was

retaliated against because of that charge. Therefore, Brown has

failed to state a claim for retaliation, and the claim will be

dismissed.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that UNC Health’s motion to dismiss

(Doc. 11) is GRANTED and the amended complaint is DISMISSED WITH

PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

February 11, 2021

13 And as discussed in note 10, supra, Brown’s complaint regarding the

hiring of Banks does not constitute a protected activity because she was

not opposing an unlawful employment practice, but rather nepotism, which

is not covered by Title VII.