# BROWN v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

> District Court, M.D. North Carolina · February 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10253669

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 11, 2021
- **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/10253669

## How later opinions describe it (automated extraction)

- explaining Title VII abrogates Eleventh Amendment immunity for suits against a state agency in its capacity as an employer
- declining to dismiss complaint that did not state a waiver of sovereign immunity because “plaintiff . . . explicitly cited the Lanham Act . . . which waives sovereign immunity”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253669. Public record. Not legal advice.