# YANG v. LAI

> District Court, M.D. North Carolina · July 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10254099

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 5, 2022
- **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/10254099

## How later opinions describe it (automated extraction)

- holding that neither Title VII nor the ADA provides for actions against individual defendants for violation of its provisions
- finding naming requirement satisfied where charge listed University of Maryland and the complaint included specific university officials, such as the President, Chancellor, and Provost, in their official capacities
- finding where second factor weighed in favor of the unnamed defendants, the fourth factor also weighed in those defendants’ favor

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BING YANG, )
)
Plaintiff, )
)
v. ) 1:22CV5
)
SAMUEL LAI, WHITNEY WOLF, )
BARBARA BELL, and BECCI )
MENGHINI (UNC CHAPEL HILL), )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Bing Yang, proceeding pro se, filed suit against
Defendants Samuel Lai, Whitney Wolf, Barbara Bell, and Becci
Menghini, claiming violations of the Age Discrimination in
Employment Act of 1967 (“ADEA”). (See Compl. (Doc. 1).)
Defendants move to dismiss the complaint. (Doc. 10.) Plaintiff
has filed a motion to disqualify counsel, (Doc. 13), and
Defendants have filed a motion to strike Plaintiff’s sur-reply,
(Doc. 20). For the following reasons, this court will grant
Defendants’ motion to dismiss, (Doc. 10), deny Plaintiff’s
motion to disqualify counsel, (Doc. 13), and grant Defendants’
motion to strike, (Doc. 20).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On a motion to dismiss, a court must “accept as true all of
the factual allegations contained in the complaint.” Ray v.
Roane, 948 F.3d 222, 226 (4th Cir. 2020) (internal quotation
marks omitted) (quoting King v. Rubenstein, 825 F.3d 206, 212
(4th Cir. 2016)). The facts, taken in the light most favorable
to Plaintiff, are as follows.
Plaintiff was a Research Specialist at the University of

North Carolina at Chapel Hill’s Eshelman School of Pharmacy for
almost twenty-seven years. (Compl. (Doc. 1) at 4–6; Ex. 1,
Charge of Discrimination (“EEOC Charge”) (Doc. 10-1) at 1.)1,2
Plaintiff is fifty-eight years old. (Compl. (Doc. 1) at 5.)
Defendant Lai is Plaintiff’s supervisor. (See id. at 12.)
Plaintiff reported to Defendant Bell, but she did not supervise
Plaintiff. (See id. at 5–6.) Defendant Wolf is one of

1 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.

2 This court takes judicial notice of Plaintiff’s Equal
Employment Opportunity Commission (“EEOC”) Charge, (EEOC Charge,
(Doc. 10-1)), and right to sue letter, (Doc. 1-1)), as matters
of public record. See Philips v. Pitt Cnty. Mem’l Hosp., 572
F.3d 176, 180 (4th Cir. 2009); Robinson v. Bowser, No.
1:12CV301, 2013 WL 3791770, at *5 (M.D.N.C. July 19, 2013); see
also Alexander v. City of Greensboro, No. 1:09-CV-293, 2011 WL
3360644, at *6 n.8 (M.D.N.C. Aug. 3, 2011).
Plaintiff’s coworkers. (See id. at 10.) Defendant Menghini is
the Vice Chancellor for Human Resources and Equal Opportunity
and Compliance at the University of North Carolina-Chapel Hill.
(Id. at 7.)
Plaintiff alleges that beginning in April 2019, Defendants
discriminated and retaliated against Plaintiff because of his
age. (Id. at 4–5.) Defendants Bell and Wolf yelled, cursed, and
made belittling comments at Plaintiff. (Id. at 5, 9–10, 12–13.)
Younger students in the lab teased and taunted Plaintiff as

well. (Id. at 6.) Defendant Lai moved Plaintiff into an isolated
office away from other lab members and gave him the lowest score
possible on his annual performance reviews. (Id. at 7, 10.)
Defendants blocked Plaintiff’s access to forms integral to his
work. (Id. at 6.)
In addition to being discriminated against because of his
age, Plaintiff alleges he was retaliated against in the
following ways. First, Plaintiff alleges he was retaliated
against because he reported discrimination and harassment to his
human resources department many times. (Id. at 6–7, 9.) Second,
Plaintiff alleges that from August 2016 to February 2018,

Defendant Lai asked Plaintiff to perform laboratory work for
Defendant Lai’s private company. (Id. at 11.) Plaintiff
eventually refused to continue performing the work and filed a
report about it. (Id.) Plaintiff alleges he was retaliated
against for reporting about this work to his employer. (Id.)
Third, Plaintiff alleges he was retaliated against because
Defendant Lai made changes to Plaintiff’s job description and
certain job tasks were taken away. (Id. at 7.)
Plaintiff’s last day of employment was April 30, 2021. (Id.
at 8.) Plaintiff alleges he was forced to retire early. (Id. at
6.) Plaintiff was told there was a lack of funding for his
position, but a younger, more junior coworker with the same

title was able to keep her job. (Id.) Shortly after Plaintiff
left, Defendant Lai announced he was hiring three postdocs and
two new technicians. (Id.) Defendant Lai also had a Research
Specialist position posted until December 15, 2021. (Id. at 7.)
On June 16, 2021, Plaintiff filed charges with the EEOC.
(Id. at 4; see also EEOC Charge (Doc. 10-1).) The EEOC issued a
right to sue letter on October 29, 2021. (Compl. (Doc. 1) at 4;
Doc. 1-1.)
Additional facts will be discussed herein as necessary.
B. Procedural Background
On January 6, 2021, Plaintiff filed a Complaint, alleging

age discrimination and retaliation in violation of the ADEA.
(Compl. (Doc. 1).) Defendants moved to dismiss, (Doc. 10), and
filed a brief in support, (Br. in Supp. of Defs.’ Mot. to
Dismiss (“Defs.’ Br.”) (Doc. 11)). Plaintiff responded, (Pl.’s
Resp. to ‘Defs.’ Mot. to Dismiss & Br. in Supp. of Mot. to
Dismiss’ (“Pl.’s Resp.”) (Doc. 15)), and Defendants replied,
(Reply Br. in Supp. of Defs.’ Mot. to Dismiss (Doc. 16)).
Plaintiff responded to Defendants’ reply. (Pl.’s Resp. to
“Defs.’ Reply Br. in Supp. of their Mot. to Dismiss” (“Pl.’s
Sur-Reply”) (Doc. 18).)
Additionally, Plaintiff filed a motion to disqualify
counsel, (Pl.’s Mot. to Dismiss (“Pl.’s Mot.”) (Doc. 13)), to

which Defendants responded, (Defs.’ Resp. to Pl.’s Mot. to
Dismiss (“Defs.’ Resp.”) (Doc. 17)), and Plaintiff replied,
(Pl.’s Reply to Defs.’ Resp. to his Mot. to Dismiss & Br. in
Supp. of Mot. to Dismiss (“Pl.’s Reply”) (Doc. 19)).
Defendants moved to strike Plaintiff’s sur-reply,
(Doc. 20), and filed a brief in support, (Defs.’ Br. in Supp. of
their Mot. to Strike (Doc. 21)). Plaintiff responded. (Pl.’s
Resp. to “Defs.’ Mot. to Strike & Br. in Supp. of their Mot. to
Strike” (Doc. 23).)
II. PLAINTIFF’S MOTION TO DISQUALIFY OPPOSING COUNSEL
Plaintiff moves to disqualify the North Carolina Attorney

General from representing Defendants Lai, Wolf, and Bell. (Pl.’s
Mot. (Doc. 13) at 1.) Plaintiff argues North Carolina’s Defense
of State Employees Act, N.C. Gen. Stat. § 143-300.2 et seq.,
does not apply because Defendants Lai, Wolf, and Bell’s actions
were not within the scope and course of their employment. (See
id. at 1–3.) Plaintiff believes he is also entitled to
representation by the North Carolina Attorney General’s office.
(Id. at 2-3.)
Under North Carolina’s Defense of State Employees Act, an
employee can request representation “for the defense of any
civil or criminal action or proceeding brought against him in
his official or individual capacity, or both, on account of an

act done or omission made in the scope and course of his
employment as a State employee.” N.C. Gen. Stat. § 143-300.3. If
the act or omission was not within the scope and course of the
employee’s employment, then North Carolina must refuse to defend
the employee. Id. § 143-300.4(a)(1). North Carolina’s Attorney
General, or someone to whom the North Carolina Attorney General
delegates authority, determines whether the employee was acting
within the scope and course of his employment. Id. § 143-
300.4(b).
In this case, the North Carolina Attorney General has
elected to represent Defendants Lai, Wolf, Bell, and Menghini.

(See Doc. 8.) This court presumes that the North Carolina
Attorney General or his delegate has determined that Defendants
were acting within the scope and course of their employment
because if they were acting outside the scope and course of
their employment the North Carolina Attorney General cannot
defend them. See N.C. Gen. Stat. § 143-300.4(a)(1). To the
extent Plaintiff asks this court to usurp the North Carolina
Attorney General’s decision to represent Defendants in this
case, this court declines to do so. According to the plain
language of the Act, that determination lies solely with the
North Carolina Attorney General or his designee. See id. § 143-
300.4(b). This court therefore finds that Plaintiff’s motion to

disqualify counsel, (Doc. 13), should be denied.3
Additionally, to the extent Plaintiff argues he is entitled
to representation by the North Carolina Attorney General, the
plain language of the Act also compels this court to deny that
request. The Act provides representation to defend against a
civil or criminal charge, not representation to bring suit. See
N.C. Gen. Stat. § 143-300.3. This court therefore finds that

3 Plaintiff also appears to argue a conflict of interest
exists. (See Pl.’s Reply (Doc. 19) at 6.) To disqualify counsel
based on a conflict of interest, the moving party must show:
“(1) an attorney-client relationship existed with the alleged
former client; and (2) the former representation and the current
controversy must be substantially related.” Plant Genetic Sys.,
N.V. v. Ciba Seeds, 933 F. Supp. 514, 517 (M.D.N.C. 1996).
Plaintiff has not shown an attorney-client relationship
previously existed between himself and the North Carolina
Attorney General.
Plaintiff, as the individual bringing suit, is not entitled to
representation by the North Carolina Attorney General.
III. MOTION TO STRIKE
Defendants have moved to strike, (Doc. 20), Plaintiff’s
sur-reply, (Pl.’s Sur-reply (Doc. 18)). “Surreplies are
generally disfavored.” Olvera-Morales v. Int’l Labor Mgmt.
Corp., 246 F.R.D. 250, 254 (M.D.N.C. 2007). Rule 7.3 of the
Rules of Practice and Procedure of the United States District
Court for the Middle District of North Carolina provides for the

filing of a motion, a response to a motion, and a reply. See LR
7.3; DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.
2010). Generally, parties do not have the right to file a sur-
reply and may only do so “hen fairness dictates, such as when
new arguments are raised in the reply brief. See United States
v. Falice, No. 1:04CV878, 2006 WL 2488391, at *7 (M.D.N.C. Aug.
25, 2006) (denying leave to file a sur-reply when no new
arguments were raised in the reply). The proposed sur-reply does
not allege new arguments were raised by the reply, nor does it
change the analysis set forth herein. This court will therefore
strike Plaintiff’s sur-reply, (Pl.’s Sur-reply (Doc. 18)).
IV. DEFENDANTS’ MOTION TO DISMISS
A. Standards of Review
Defendants move to dismiss Plaintiff’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction on the grounds that Plaintiff cannot sue
Defendants in their individual capacities under the ADEA,
Plaintiff failed to exhaust his administrative remedies, and
Plaintiff’s claims are untimely. (See Defs.’ Br. (Doc. 11) at 4–
9.) Defendants also move to dismiss Plaintiff’s claims pursuant

to Rule 12(b)(6) for failure to state a claim. (See id. at 9–
13.)
Motions to dismiss for lack of subject matter jurisdiction
are governed by Federal Rule of Civil Procedure 12(b)(1). The
plaintiff bears the burden of proving that subject matter
jurisdiction properly exists in the federal court. See Evans v.
B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642,
647 (4th Cir. 1999). In a Rule 12(b)(1) motion, the court “may
consider evidence outside the pleadings” to help determine
whether it has jurisdiction over the case before it. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d

765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The
court should grant the Rule 12(b)(1) motion “only if the
material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.” Richmond, 945
F.2d at 768.
In Fort Bend County v. Davis, the Supreme Court held that
Title VII’s administrative exhaustion requirement is not a
jurisdictional issue. 139 S. Ct. 1843, 1850–52 (2019). Courts in
the Fourth Circuit have applied Davis to the ADEA, which has a
similar administrative exhaustion requirement. See, e.g., Guluma
v. DeJoy, Case No.: DLB-20-3588, 2022 WL 1642261, at *2 (D. Md.
Mar. 24, 2022) (treating a Rule 12(b)(1) motion to dismiss Title

VII and ADEA claims for failure to exhaust administrative
remedies as a Rule 12(b)(6) motion); see also Olivarria v.
Cooper, 776 F. App’x 128, 129 (4th Cir. 2019) (mem.) (remanding
because the district court found it lacked jurisdiction over an
unexhausted Title VII claim and suggesting the exhaustion
requirement is not jurisdictional). Accordingly, this court will
analyze Defendants’ argument regarding Plaintiffs’ failure to
exhaust under Rule 12(b)(6).
“To survive a [Rule 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged” and
demonstrates “more than a sheer possibility that a defendant has
acted unlawfully.” Id. When ruling on a motion to dismiss, this
court accepts the complaint’s factual allegations as true. Id.
Further, this court liberally construes “the complaint,
including all reasonable inferences therefrom . . . in the
plaintiff’s favor.” Est. of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004). This court does not, however, accept legal conclusions 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.
This court is required to liberally construe pro se
complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “[C]ourts are not
required,” however, “to conjure up questions never squarely
presented to them.” Deabreu v. Novastar Home Mortg., Inc., 536
F. App’x 373, 375 (4th Cir. 2013) (per curiam) (quoting Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). “The

‘special judicial solicitude’ with which a district court should
view such pro se complaints does not transform the court into an
advocate.” Weller v. Dep’t of Soc. Servs. for City of Balt., 901
F.2d 387, 391 (4th Cir. 1990).
B. Suit Against Defendants in their Individual Capacities
The ADEA “do[es] not provide for causes of action against
[D]efendants in their individual capacities.” Jones v.
Sternheimer, 387 F. App’x 366, 368 (4th Cir. 2010) (per curiam);
see also McNeal v. Montgomery Cnty., 307 F. App’x 766, 774 n.6
(4th Cir. 2009) (“[O]nly an employer, and not an individual
employee, may be held liable under the ADEA.”); Baird ex rel.

Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (holding that
neither Title VII nor the ADA provides for actions against
individual defendants for violation of its provisions); Birkbeck
v. Marvel Lighting Corp., 30 F.3d 508, 510–11 (4th Cir. 1994).
This court finds that, to the extent Plaintiff has sued
Defendants in their individual capacities, they are not proper
defendants in this case. See Birkbeck, 30 F.3d at 511.
C. Failure to Exhaust Administrative Remedies
Defendants argue Plaintiff has failed to exhaust his
administrative remedies with the EEOC because he has not filed
an EEOC charge naming Defendants as respondents. (Defs.’ Br.

(Doc. 11) at 6–7.)
Before a plaintiff may file suit under the ADEA, he is
required to file a charge of discrimination with the EEOC. See
29 U.S.C. § 626(d). Proper EEOC charges must meet several
requirements. The charge must be in writing and verified under
oath or affirmation under penalty of perjury. See Edelman v.
Lynchburg Coll., 535 U.S. 106, 112 (2002). A charge is
sufficient “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) (quoting 29 C.F.R. § 1601.12(b) (2004)).
Moreover, the scope of the plaintiff’s right to file a federal

lawsuit is determined by the charge’s contents. See Bryant v.
Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). And
“[o]nly 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). Likewise, individual defendants who were not named
as respondents in EEOC charges generally cannot be held liable
in federal court. See Causey v. Balog, 162 F.3d 795, 800 (4th
Cir. 1998) (“Under Title VII and the ADEA, a civil action may be

brought only ‘against the respondent named in the charge.’”
(quoting 42 U.S.C. § 2000e-5(f)(1))).
“The failure to name a party in an EEOC charge may
constitute a failure to exhaust administrative remedies . . . .”
EEOC v. 1618 Concepts, Inc., 432 F. Supp. 3d 595, 603 (M.D.N.C.
2020). “The purpose of the naming requirement is two-fold: (1)
to notify the charged party of an alleged violation, and (2) to
secure the charged party’s compliance with the law.” Id. (citing
Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457,
458-59 (4th Cir. 1988)). “If these two purposes are satisfied,
the naming requirement has also been satisfied.” Id. (citing

Causey, 162 F.3d at 800-01). Courts analyze whether plaintiffs
have satisfied the ADEA’s naming requirements “under the Rule
12(b)(6) standard.” Id.
Some courts in the Fourth Circuit have recognized a
“substantial identity” exception to the general rule that an
ADEA civil action may only be brought against the respondent
listed on the EEOC charge. See Alvarado, 848 F.2d at 461
(identifying seven district court decisions in the Fourth
Circuit applying the exception and finding that “where there is
substantial, if not complete identity of parties before the EEOC
and the court, it would require an unnecessarily technical and

restrictive reading of the statute to deny jurisdiction”
(cleaned up) (quoting EEOC v. Am. Nat’l Bank, 652 F.2d 1176,
1186 n.5 (4th Cir. 1981))); Shaughnessy v. Duke Univ., No. 1:18-
CV-461, 2018 WL 6047277, at *3 (M.D.N.C. Nov. 19, 2018); Keener
v. Universal Cos., 128 F. Supp. 3d 902, 915 (M.D.N.C. 2015).
Under the “substantial identity” test, “[i]f unnamed defendants
are substantially or ‘functionally’ identical to named
[respondents], then the plaintiff may sue all defendants in a
district court action, despite failing to name some of them in
the administrative action.” Mayes v. Moore, 419 F. Supp. 2d 775,
783 (M.D.N.C. 2006).
Under this exception, courts consider four factors:

1) whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at
the time of the filing of the EEOC complaint;
2) whether, under the circumstances, the interests of
a named [respondent] are so similar as the unnamed
party’s that for the purpose of obtaining voluntary
conciliation and compliance it would be unnecessary to
include the unnamed party in the EEOC proceedings;
3) whether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the
unnamed party; 4) whether the unnamed party has in
some way represented to the complainant that its
relationship with the complainant is to be through the
named [respondent].

Id. (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.
1977)). This court will consider each factor in turn.
Under the first factor, the allegations in Plaintiff’s
Complaint support a reasonable inference that Plaintiff could
have ascertained the names of the unnamed Defendants through
reasonable effort. Plaintiff’s Complaint is rife with
allegations of discrimination concerning all Defendants. (See
Compl. (Doc. 1.) Plaintiff has even apparently reported
Defendants’ behavior to human resources before. (See id. at 6,
9–11, 13.) The facts alleged support a reasonable inference that
Plaintiff could have ascertained the role of the unnamed
Defendants through reasonable effort at the time he filed his
EEOC charge, and this court finds that the first factor weighs
in favor of Defendants.
Under the second factor, Plaintiff has failed to plausibly
allege that the interests of University of North Carolina –

Chapel Hill, the named respondent in the EEOC charge, are so
similar to those of the unnamed Defendants that it would be
unnecessary to include the unnamed Defendants in the EEOC
proceedings. In Efird v. Riley, the court refused to dismiss
claims against a sheriff where only the sheriff’s department as
a whole had been named as respondent in the EEOC charge. 342 F.
Supp. 2d 413, 423 (M.D.N.C. 2004). The court reasoned that
because, by statute, the sheriff had the exclusive right to
hire, discharge, and supervise the employees in his office and
was the official party that could be held liable for employment
law violations committed by the sheriff’s department, the

sheriff himself had reason to know his conduct was at issue and
he could be held responsible in his official capacity. Id. at
420, 422. Moreover, the sheriff had participated in the EEOC
proceeding. Id. at 423; see also Alvarado, 848 F.2d at 460
(finding naming requirement satisfied where charge listed
college and complaint listed college’s board of trustees);
McAdoo v. Toll, 591 F. Supp. 1399, 1402, 1404 (D. Md. 1984)
(finding naming requirement satisfied where charge listed
University of Maryland and the complaint included specific
university officials, such as the President, Chancellor, and
Provost, in their official capacities).
However, in Davis v. BBR Management, LLC, the court

dismissed the individual defendants not named in the EEOC
charge. Civil Action No. DKC 10–0552, 2011 WL 337342, at *5 (D.
Md. Jan. 31, 2011). There, the plaintiff filed a charge of
discrimination identifying “Babcock & Brown Residential-Holly
Tree as the discriminating employer.” Id. at *1. The plaintiff
then brought suit in federal court against that entity and two
individuals. See id. The defendants moved to dismiss, “argu[ing]
that Plaintiff failed to exhaust her remedies with respect to
the claims against Defendants Wall and Craft because they were
not identified in the charge that was filed with the EEOC.” Id.
at *3. The plaintiff contended the claims against the unnamed

individuals “should not be dismissed even though they were not
named in the EEOC charge because their employer was named and
they were described in the facts portion of the charge.” Id. at
*4. The court disagreed with the plaintiff, and found that “the
individual defendants named in Plaintiff’s complaint had no
reason to know of the EEOC charge and were not in positions to
make them substitutable for or essentially identical to the
named respondent in the charge.” Id. at *5. Moreover, “[t]he
fact that their names were mentioned in the particulars section
of the charge is not adequate.” Id. Therefore, the court
dismissed the claims against the individual defendants. Id.;
accord Hampton v. Wal-Mart Stores E., L.P., Civil No. 1:09cv327,

2010 WL 99081, at *2 (W.D.N.C. Jan. 6, 2010) (recognizing that
courts have “consistently held” that if a defendant is not named
as a respondent in an EEOC charge, a plaintiff cannot state a
claim against that defendant in federal court).
Here, the relationship of unnamed Defendants to the named
respondent, University of North Carolina – Chapel Hill, “is not
so similar that the interests of the [named party] would render
the presence of [Defendants] unnecessary in the administrative
process.” Scurry v. Lutheran Homes of S.C., Inc., C/A No. 3:13–
2808–JFA–PJG, 2014 WL 4402797, at *4 (D.S.C. Sept. 3, 2014).
Here, Defendants are in the same position as the individual

defendants in Davis. There are no allegations that Defendants
“had . . . reason to know of the EEOC charge,” or “were . . . in
positions to make them substitutable for or essentially
identical” to University of North Carolina - Chapel Hill. Davis,
2011 WL 337342, at *5. Accordingly, this factor also weighs in
favor of Defendants. Because Defendants’ interests are not so
similar to University of North Carolina – Chapel Hill’s that
their presence was unnecessary, it follows that under the fourth
factor, the University did not represent the other Defendants’
interests. See Mayes, 419 F. Supp. 2d at 783 (finding where
second factor weighed in favor of the unnamed defendants, the
fourth factor also weighed in those defendants’ favor).

“The third factor considers actual prejudice to the unnamed
party” stemming from its absence during the EEOC proceedings.
1618 Concepts, 432 F. Supp. 3d at 605. Plaintiff’s Complaint
does not provide any information about the inquiry conducted
during those proceedings, aside from attaching the right to sue
notice to his Complaint. (See Doc. 1-1.) In that notice the EEOC
stated that the EEOC made “no determination about whether
further investigation would establish violations of the
statute.” (Id.) The EEOC thus did not explicitly find against
University of North Carolina – Chapel Hill as a result of its
investigation, so this court could reasonably infer that there

was not “actual prejudice” against the University or the unnamed
Defendants. See Bockman v. T&B Concepts of Carrboro, LLC,
1:19CV622, 2020 WL 5821169, at *9 (M.D.N.C. Sept. 30, 2020). But
other courts have held that when “the EEOC filings in the record
do not indicate that any party represented the interest of the
[unnamed defendants] during the administrative proceeding,” this
factor should weigh in favor of the unnamed defendants. See
Scurry, 2014 WL 4402797, at *4. Accordingly, this court finds
this third factor is neutral, and perhaps weighs slightly in
Plaintiff’s favor.
Examining all the relevant factors, this court finds that
the dual purposes of the naming requirement have not been

satisfied. See 1618 Concepts, 432 F. Supp. 3d at 603. Of the
four factors, courts have found that “the second and third speak
most directly to the dual purposes of the Title VII naming
requirement,” id. at 604, because “they are most reflective of
the two-fold purpose of the naming requirement, that is,
providing notice and an opportunity for voluntary conciliation.”
Keener, 128 F. Supp. 3d at 915–16 (cleaned up) (quoting
Alexander v. Diversified ACE Servs. II, AJV, No. 1:11CV725, 2014
WL 502496, at *9 (M.D.N.C. Feb. 7, 2014)). Because the facts
alleged fail to support a reasonable inference that Defendants
had notice of the charges against them, and that their interests

were fairly represented by the named party, this court will
dismiss Plaintiff’s ADEA claims against Defendants for failure
to exhaust the required administrative procedures. Accordingly,
all the claims against Defendants will be dismissed.
Because this court finds all the claims against Defendants
should be dismissed because Plaintiff failed to name them in his
EEOC charge, this court declines to consider at this juncture
whether Plaintiff’s claims are untimely or whether Plaintiff has
plausibly alleged ADEA discrimination and retaliation claims.
D. Opportunity to Amend Complaint
Whether to dismiss with prejudice under Rule 12(b)(6) lies

with the court’s discretion. Carter v. Norfolk Cmty. Hosp.
Ass’n, Inc., 761 F.2d 970, 974 (4th Cir. 1985). Dismissal with
prejudice is warranted where “amendment would be futile in light
of the fundamental deficiencies in plaintiffs’ theory of
liability.” Cozzarelli v. Inspire Pharms., Inc., 549 F.3d 618,
630 (4th Cir. 2008).
Amendment of Plaintiff’s Complaint to add the employer
named in his charge of discrimination, University of North
Carolina – Chapel Hill, would not necessarily be futile. And
considering Plaintiff’s pro se status, this court finds good
cause for allowing Plaintiff the opportunity to amend his

Complaint to add the proper defendant. This court declines to
consider the merits of Plaintiffs’ ADEA claims without a proper
defendant, and it may prove that Plaintiff has plausibly alleged
those claims to survive a motion to dismiss. This court will
stay the order dismissing this case as to the named Defendants
and allow Plaintiff twenty-one days to amend his Complaint in
light of the discussion in this memorandum opinion and order.
Accordingly, Plaintiff’s Complaint is dismissed without
prejudice. If Plaintiff elects not to file an amended complaint
in that timeframe, this court will dismiss the claims with
prejudice and order the case closed.
V. CONCLUSION

For the foregoing reasons, this court will deny Plaintiff’s
motion to disqualify, (Doc. 13), grant Defendants’ motion to
strike, (Doc. 20), and grant Defendants’ motion to dismiss,
(Doc. 10).
IT IS THEREFORE ORDERED that Plaintiff’s motion to
disqualify, (Doc. 13), is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion to strike,
(Doc. 20), is GRANTED and Plaintiff’s sur-reply, (Doc. 18), is
hereby STRUCK.
IT IS FURTHER ORDERED that Defendant’s motion to dismiss,
(Doc. 10), is GRANTED, and Plaintiff’s Complaint is dismissed
without prejudice. This order is STAYED for twenty-one days on

the condition set forth below.
IT IS FURTHER ORDERED that Plaintiff has twenty-one days in
which to file an amended complaint. If Plaintiff elects not to
file an amended complaint, this court will dismiss the claims
with prejudice and order the case closed.
This the 5th day of July, 2022.

—WUinm t. Bh, □
United States District Ju

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254099. Public record. Not legal advice.