The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:21-CV-00148-RJC-DSC
ROSLYN PEREZ-WRIGHT, )
)
Plaintiff, )
)
v. )
)
LOUIS DEJOY, POSTMASTER )
GENERAL, )
)
Defendant. )
MEMORANDUM AND RECOMMENDATION AND ORDER
THIS MATTER is before the Court on the “Federal Defendant’s Motion to Dismiss
Amended Complaint …” (document #21) and the parties’ briefs and exhibits.
The Motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1) and is ripe for disposition.
Having fully considered the arguments, the record, and the applicable authority, the
undersigned respectfully recommends that Defendant’s Motion to Dismiss be granted as discussed
below.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is an action for gender discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et. seq. Accepting the factual allegations
of the Amended Complaint as true, Plaintiff was employed as a Rural Carrier at the Post Office in
Kannapolis, North Carolina. At times, Plaintiff was temporarily detailed to a higher level position
as a Supervisor, Customer Services at the Post Office. Cherald Birch-Davis, a female, was the
Postmaster there. Plaintiff alleges that Birch-Davis harassed her based upon her gender and then
retaliated against her for initiating EEO proceedings.
On July 23, 2019, Plaintiff commenced informal EEO counseling. In her first pre-
complaint, Plaintiff alleged that Birch-Davis engaged in “harassment – non-sexual” when she
falsified her time sheet, required her to run personal errands on the clock, forced her to disclose
what she discussed during her Employment Assistance Program visits, made her work off the
clock, and openly talked to other employees while making jokes about her mental health. In her
second pre-complaint on August 23, 2019, Plaintiff alleged that Birch-Davis retaliated against her
by threatening to call the police and the Office of the Inspector General when she went to the Post
Office to submit PS Forms 3971 – Request for or Notification of Absence.
On October 21, 2019, an EEO counselor notified Plaintiff by letter that she had concluded
processing her pre-complaints and there was no resolution. The letter stated that Plaintiff could
take no action in which case her “inquiry w[ould] expire,” or file a formal complaint.
On October 31, 2019, Plaintiff filed a formal complaint using PS Form 2565 - EEO
Complaint of Discrimination in the Postal Service. She alleged discrimination and harassment and
stated “8/23 -retaliation June thru today.”
By letter dated November 22, 2019, Defendant acknowledged receipt of Plaintiff’s formal
complaint of discrimination, provided her a copy of the PS Form 2570 – EEO Dispute Resolution
Specialist’s Inquiry Report, and notified her of its partial acceptance/partial dismissal of her
discrimination complaint. Defendant identified the issues it accepted for investigation and advised
Plaintiff that if she disagreed with the accepted issues, she must provide a written response within
seven days of receipt of the letter. Defendant further advised Plaintiff that she would be required
to identify specific dates of incidents for the first four accepted issues. Defendant also notified
Plaintiff that any alleged acts occurring more than forty-five calendar days prior to July 23, 2019,
would not be accepted as individual claims.
Defendant accepted six issues for investigation alleging discrimination based upon sex
(female) and retaliation (current EEO activity). Those included:
1. While Plaintiff served as an acting supervisor, the Postmaster required her to run
personal errands and get her meals.
2. On dates to be specified, Plaintiff was mandated to work past her shift.
3. On dates to be specified, Plaintiff was forced to tell the Postmaster what she discussed
during her EAP visits and the Postmaster made jokes about her mental health.
4. On dates to be specified, Plaintiff’s annual and sick leave was taken on her days off and
she was not paid for working on Saturdays.
5. On August 23, 2019, the Postmaster removed Plaintiff from the Post Office and told the
supervisor to call the police.
6. From August 23, 2019 and ongoing, Plaintiff was not assigned light duty work as
requested.
In the same letter, Defendant dismissed Plaintiff’s seventh issue, that her earlier workers
compensation claim was not approved. Defendant explained that the issue was dismissed as a
collateral attack on the Department of Labor – Office of Workers’ Compensation Program’s
proceedings. Plaintiff never filed a written response disagreeing with the accepted issues as stated
or Defendant’s reasons for dismissing the seventh issue.
EEO Investigator Fouad H. Nader conducted an investigation and filed a report which
Plaintiff received on February 24, 2020. The next day, Plaintiff requested a hearing before the
Equal Employment Opportunity Commission. On March 3, 2020, the EEOC issued notice of its
receipt of Plaintiff’s hearing request.
On April 10, 2020, Administrative Law Judge Meeka Clay conducted the initial
teleconference and subsequently issued an order setting deadlines. The close of discovery was
August 15, 2020.
On September 8, 2020, Defendant filed a dispositive Motion for Decision Without a
Hearing. Plaintiff did not initiate discovery nor file any response to Defendant’s Motion.
On January 22, 2021, Administrative Law Judge Shantel Walker issued a decision without
a hearing in Defendant’s favor. On February 9, 2021, Defendant issued a Notice of Final Action
adopting Judge Walker’s decision and advising Plaintiff of her appeal rights.
On April 7, 2021, Plaintiff filed this action. After Defendant filed its initial Motion to
Dismiss, she filed her Amended Complaint (document #17). Plaintiff complains of events
beginning in December 2017.
Defendant has moved to dismiss arguing that Plaintiff failed to exhaust administrative
remedies as to several claims and that her remaining allegations fail to state a claim upon which
relief can be granted. Defendant also moves to dismiss for insufficient service of process.1
II. DISCUSSION
A. Failure to Exhaust Administrative Remedies
Pursuant to Rule 12(b)(1), an action may be dismissed for lack of subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). The existence of subject matter jurisdiction is a threshold
issue the court must address before considering the merits of a case. Jones v. Am. Postal Workers
1Although Defendant received actual notice, Plaintiff failed to properly serve the Summons and Complaint. Because
there are other bases for dismissal, the Court declines to recommend dismissal for insufficient service. See Colon v.
Pencek, No. 3:07-CV-473-RJC, 2008 WL 4093694, at *3–4 (W.D.N.C. Aug. 28, 2008) (dismissing pro se
Complaint on other grounds).
Union, 192 F.3d 417, 422 (4th Cir. 1999). Plaintiff’s failure to exhaust administrative remedies
under federal anti-discrimination laws is properly the subject of a motion to dismiss under Rule
12(b)(1). See Satterwhite v. Wal-Mart Stores E., L.P., No. 5:11- CV-363-BO, 2012 WL 255347,
at *3 (E.D.N.C. Jan. 26, 2012); Brodrick v. Napolitano, No. 3:09-CV-450-FDW-DSC, 2010 WL
3397461, at *4 (W.D.N.C. Aug. 25, 2010). The plaintiff bears the burden of proving that subject
matter jurisdiction exists. Hawes v. United States, 409 F.3d 213, 216 (4th Cir. 2005). “When a
defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the district court is to
regard the pleadings as mere evidence on the issue and may consider evidence outside the
pleadings without converting the proceedings to one for summary judgment.” Evans v. B.F.
Perkins, Co., 166 F.3d 642, 647 (4th Cir.1999) (internal quotation marks omitted).
Title VII provides the exclusive remedy for federal employees claiming workplace
discrimination. Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976). Moreover “[w]hen the
same set of facts supports a Title VII claim and a non-Title VII claim against a federal employer,
Title VII preempts the non-Title VII claim.” Mathis v. Henderson, 243 F.3d 446, 451 (8th Cir.
2001) (citation omitted).
In order to sue an employer for sex discrimination and/or retaliation pursuant to Title VII,
the plaintiff must timely exhaust administrative remedies. Pugh v. McDonald, 266 F. Supp. 3d
864, 867 (M.D.N.C. 2017). Timely compliance is mandatory for federal employees. See, e.g.,
Brown, 425 U.S. at 832-33; 42 U.S.C.§ 2000e-16(c).
Moreover, “[i]n any subsequent lawsuit alleging unlawful employment practices under
Title VII, a federal court may only consider those allegations included in the EEOC charge.” Balas
v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) (citing Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 962–63 (4th Cir. 1996)). “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.” Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (quoting Evans, 80 F.3d at
963).
Applying these legal principles, Plaintiff’s claims that allege incidents occurring before
June 8, 2019 (forty-five days before she first sought EEO pre-complaint counseling) or after the
initial teleconference was conducted on April 10, 2020 are barred for failure to exhaust
administrative remedies. Accordingly, the undersigned respectfully recommends that any claims
or portions of claims arising before June 8, 2019 or after April 10, 2020 be dismissed for lack of
subject matter jurisdiction.
B. Failure to State A Claim Upon Which Relief Can Be Granted
In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked
by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility 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 Iqbal, the Supreme Court articulated a two-step process for determining whether a
complaint meets this plausibility standard. First, the court identifies allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy
“because of” its adverse effects on protected group was conclusory and not assumed to be true).
Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil Procedure]
mark [] a notable and generous departure from the hyper-technical, code-pleading regime of a prior
era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79.
Second, to the extent there are well-pleaded factual allegations, the court should assume
their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at
679. “Determining whether a complaint contains sufficient facts to state a plausible claim for relief
“will ... be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-
‘that the pleader is entitled to relief,’” and therefore should be dismissed. Id. (quoting Fed. R. Civ.
P. 8(a)(2)).
The sufficiency of the factual allegations aside, “Rule 12(b)(6) authorizes a court to dismiss
a claim on the basis of a dispositive issue of law.” Sons of Confederate Veterans v. City of
Lexington, 722 F.3d 224, 228 (4th Cir. 2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989)). Indeed, where “it is clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations, a claim must be dismissed.” Neitzke v. Williams, 490
U.S. at 328; see also Stratton v. Mecklenburg Cnty. Dept. of Soc. Servs., 521 Fed. Appx. 278, 293
(4th Cir. 2013)). The court must not “accept as true a legal conclusion couched as a factual
allegation.” Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).
What remains are the few factual allegations that Plaintiff stated in her administrative
complaint -identified by the parties as issues one through six - occurring between June 8, 2019 and
April 10, 2020. To establish a gender discrimination claim, a plaintiff “must show that (1) she is
a member of a protected class, (2) she suffered adverse employment action, (3) her performance
met her employer's legitimate expectations at the time of the adverse employment action, and (4)
the action occurred under circumstances permitting a reasonable inference of sex discrimination.”
Boney v. Trs. Of Cape Fear Cmty. Coll., 366 F.Supp.3d 756, 764 (E.D.N.C. Mar. 5, 2019).
Although the treatment Plaintiff complains of was objectionable, she has pled only general
conclusory allegations that Birch-Davis discriminated against her based upon her gender. She
offers only conclusory statements that Birch-Davis treated her differently than any unidentified
male comparators.
Likewise, Plaintiff’s retaliation claim fails. She has pled no specific facts to show
retaliation for her engaging in protected EEO activity. At most, she alleges that on one occasion
Birch-Davis threatened to call the police and have her removed from the Post Office. There is no
indication that the police were called, that she was removed, or that this incident otherwise
amounted to actionable retaliation. Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc)
(to state a retaliation claim, a plaintiff must show that: (1) she engaged in protected activity; (2)
she suffered an adverse employment action; and (3) a causal link between the protected activity
and the adverse action exists.) For those reasons, the undersigned respectfully recommends that
Plaintiff’s remaining claims be dismissed for failure to state a claim.
II. ORDER
IT IS HEREBY ORDERED that all further proceedings in this action, including all
discovery, are STAYED pending the District Judge’s ruling on this Memorandum and
Recommendation and Order.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that the
“Federal Defendant’s Motion to Dismiss Amended Complaint ...” (document #21) be
GRANTED.
V. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that pursuant to 28 U.S.C. §636(b)(1)(c), written objections
to the proposed findings of fact and conclusions of law and the recommendation contained in this
Memorandum must be filed within fourteen days after service of same. Failure to file objections
to this Memorandum with the District Court constitutes a waiver of the right to de novo review by
the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); Wells v.
Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4th
Cir. 1989). Moreover, failure to file timely objections will also preclude the parties from raising
such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416 F.3d at 316;
Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and Order
to the pro se Plaintiff, to defense counsel, and to the Honorable Robert J. Conrad, Jr.
SO ORDERED AND RECOMMENDED. | gioned: January 24, 2022