# Stevens v. Elior North America

> District Court, W.D. North Carolina · April 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10259668

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** April 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:22-cv-00576-FDW-DSC

TUWANNA S. STEVENS, )
)
PLAINTIFF, )
)
VS. ) ORDER
)
ELIOR INC., )
)
DEFENDANT. )
)

THIS MATTER is before the Court on Defendant Elior Inc.’s (“Defendant”) Motion to
Dismiss, (Doc. No. 9), filed on January 9, 2023. Tuwanna Stevens (“Plaintiff”) responded on
January 27, 2023, (Doc. No. 13), to which Defendant replied on February 3, 2023, (Doc. No. 16).
As such, Defendant’s Motions is fully briefed and ripe for review. For the reasons set forth herein,
Defendant’s Motion is GRANTED and Plaintiff’s Complaint (Doc. No. 1), is DISMISSED WITH
PREJUDICE.
I. BACKGROUND
Plaintiff initiated this lawsuit with the filing of a complaint (Doc. No. 1) against Defendant
on October 21, 2022. According to the allegations in the complaint, Plaintiff is a former employee
of Defendant and alleges she was subjected to a hostile work environment due to her religious
status as a Jehovah’s Witness. (Doc. No. 1). The complaint alleges that after disclosure of her
faith, Plaintiff was subjected to hostile and aggressive behavior by her coworkers, manager, and
supervisory staff. Plaintiff alleges a physical altercation occurred between her and another
coworker and contends coworkers would relocate her work tools while she was on breaks.
Additionally, Plaintiff asserts that on or around December 2021, Plaintiff’s manager began playing
Christian music and sermons daily on one of the manager’s devices. Plaintiff claims it was loud
enough for the entire cafeteria to hear. Due to her faith, Plaintiff asked her manager to stop playing
Christian music and sermons out loud as they were against her religion and made her
uncomfortable. Plaintiff asserts that her manager refused and began playing the music and
sermons louder as a direct attack on her faith. Plaintiff alleges that after this conversation, her

manager started treating Plaintiff in an aggressive and hostile manner. Plaintiff asserts she was
being treated differently than her coworkers who did not identify as Jehovah’s Witnesses.
On or about May 4, 2022, Plaintiff filed a charge of discrimination and harassment with
the Equal Employment Opportunity Commission (“EEOC”). In Plaintiff’s charge, she only
disclosed the situation involving the manager repeatedly playing Christian music and sermons, and
the general statement that Plaintiff was being treated in an aggressive and hostile manner. (Doc.
No. 11-1, Exhibit A). On July 22, 2022, the EEOC issued Plaintiff a Dismissal and “Right-to-
Sue” letter, notifying her of her statutory right to file suit based on her EEOC charge under federal
law within ninety (90) days of receipt of the right to sue letter. (Doc. No. 11-2, Exhibit B). Plaintiff

subsequently filed this action, and Defendant has moved to dismiss the complaint.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for
failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule
12(b)(6) tests the “sufficiency of the complaint” but “does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership,
213 F.3d 175, 180 (4th Cir. 2000). Thus, the Rule 12(b)(6) inquiry is limited to determining if the
allegations constitute “a short and plain statement of the claim showing the pleader is entitled to
relief” pursuant to Federal Rule of Civil Procedure 8(a)(2). A complaint attacked by a Rule
12(b)(6) motion to dismiss will survive only 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, 129 S. Ct. 1937, 173 L. Ed. 2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007)).

For the purposes of a Rule 12(b)(6) analysis, “[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.” Iqbal, 556 U.S. at 678. The Court must draw all
reasonable factual inferences in favor of the plaintiff. Priority Auto Grp., Inc. v. Ford Motor Co.,
757 F.3d 137, 139 (4th Cir. 2014). Courts will ignore all “legal conclusions” alleged in the
complaint and assume all factual allegations are true. Iqbal, 556 U.S. at 678–79. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 678.
III. ANALYSIS

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Prior to bringing a claim pursuant under Title
VII, an individual must first exhaust their administrative remedies. This includes filing a claim
with the EEOC, “within one hundred and eighty days after the alleged unlawful employment action
occurred.” 42 U.S.C. § 2000e-5(e)(1). If a charge is dismissed by the EEOC, the EEOC will issue
notice to the individual of their right to sue in federal court. 42 U.S.C. § 2000e-5(f)(1). After
receipt of the notice, the individual must file suit within 90 days. 42 U.S.C. § 2000e-5(f)(1).
The Supreme Court has “held that Title VII’s charge-filing requirement is not
jurisdictional, but rather a claims-processing rule.” EEOC v. 1618 Concepts, Inc., 432 F. Supp.
3d 595, 601 (M.D.N.C. 2020) (citing Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1850–51, 204 L.
Ed. 2d 116 (2019)). Thus, motions to dismiss for failure to exhaust administrative remedies are
analyzed under Rule 12(b)(6) rather than 12(b)(1). 1618 Concepts, Inc., 432 F. Supp. at 601.

Here, Plaintiff concedes she has not exhausted all administrative remedies as required
under 42 U.S.C. § 2000e-5(f)(1). In Plaintiff’s response to the instant motion, she states
“[d]efendant’s counsel correctly identifies that Plaintiff has not exhausted all administrative
remedies.” (Doc. No. 13-1, p. 3).1
Because Plaintiff concedes that she failed to exhaust all administrative remedies prior to
filing this claim, Plaintiff’s claim must be dismissed. See, e.g., Krings v. AVL Techs., 2021 WL
1235129, at *3–4 (W.D.N.C. Feb. 10, 2021) (dismissing plaintiff’s claims where plaintiff filed suit
before administrative remedies were exhausted); Mayfield v. United Grocery Outlet, 2022 WL
2102018, at *4 (W.D.N.C. May 6, 2022). Although unclear whether Plaintiff concedes that she

failed to exhaust administrative remedies due to untimeliness in filing claim or due to failure to
include conduct relevant in complaint within original EEOC filing, the Court construes this
concession as fatal to the Plaintiff’s position.
Under 42 U.S.C. § 2000e-5(f)(1), Plaintiffs must bring suit in federal court within ninety
(90) days of receipt of notice of the EEOC’s right to sue letter. This Circuit has refused to apply
an “actual receipt” standard in Title VII actions and has consistently held that the ninety-day
limitations period begins to run on the “date of receipt, actual or constructive, of the EEOC’s right-

1 The Court notes Defendant correctly identifies that Plaintiff’s response, (Doc. No. 13-1), was not signed by at least
one attorney of record in the attorney’s name as required under Federal Rule 11(a). Although the Court takes note of
this omission, it will not strike Plaintiff’s response. Holley Coal Co. v. Globe Indem. Co., 186 F.2d 291, 295 (4th Cir.
1950) (“[s]triking the pleading is within the sound discretion of the court.”)
to-sue letter.” Watts-Means v. Prince George’s Family Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993);
Barnwell v. Foot Locker, 2018 WL 2422316, *2 (E.D.N.C. May 29, 2018); see Cenezy v. Koniag
Tuknik Government Services, 2022 WL 3974141, at *2 (E.D.N.C. Aug. 31, 2022) (held that when
plaintiff received right to sue letter via email, their limitations was triggered even though he did
not open it until days later). In this case, Plaintiff’s response states “[p]laintiff received her right

to sue on July 8, 2022, when it was uploaded to the EEOC portal.” (Doc. No. 13-1, p. 3). Since
Plaintiff concedes she received her right to sue from the EEOC on July 8, 2022, the statutory
limitations period was triggered on that date. Defendant correctly points out that the EEOC’s right
to sue letter, (Doc. No. 11-2, Exhibit B), shows that it was issued on “July 14, 2022.” (Doc. No.
11-2, Exhibit B). Even if this later date were used, Plaintiff will still have missed the ninety-day
period to file suit as she did not file until October 21, 2022. In order to have abided by the statutory
limitation, Plaintiff needed to file suit by October 12, 2022. The uncontested record, including
Plaintiff’s concession, indicates Plaintiff’s complaint was filed outside of the ninety-day
limitations period provided by 42 U.S.C. § 2000e-5(f)(1) and should be dismissed.

Furthermore, Plaintiff has failed to exhaust administrative remedies prior to filing suit. In
order to bring suit under Title VII, plaintiffs must exhaust administrative remedies by filing an
appropriate charge with the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The “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 bring suit on a claim under
Title VII if the “charge[] reference[s] different time frames, actors, and discriminatory conduct
than the central factual allegations in h[er] formal suit.” Id. At 506. 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.” Stevens v. Cabarrus County Board
of Education, 514 F. Supp. 3d 797, 813 (M.D.N.C. Jan. 22, 2021). Here, Plaintiff’s EEOC charge
alleges harassment solely regarding the manager’s playing of Christian music and sermons during
work. (Doc. No. 11-1, Exhibit A). The administrative charge does not contain, mention or
reference the physical altercation with a coworker, instances of mocking or isolation by coworkers,
nor the relocation of work tools that Plaintiff included in her formal complaint. Plaintiff’s

complaint includes different actors and conduct that she did not allege in her original EEOC
charge, which is the basis for bringing this suit. Due to this significant gap between the EEOC
charge and complaint, Plaintiff has failed to exhaust all administrative remedies prior to bringing
suit, as she concedes.
Plaintiff contends that to avoid penalty for failure to exhaust administrative remedies, this
Court should “remand” to the EEOC. (Doc. No. 13-1, p. 4). This Court does not have the authority
to “remand” this charge to the EEOC as Plaintiff was to exhaust all administrative remedies prior
to bringing suit. See Underdue v. Wells Fargo Bank, N.A., 2016 WL 3452492, at *2 (W.D.N.C.
June 20, 2016) (noting the “ADA, Title VII, and the ADEA share enforcement procedures,

including the requirement that a plaintiff must first exhaust administrative remedies before filing
a federal lawsuit.”). Once the EEOC dismisses a charge and issues a right to sue letter, it ceases
to investigate and “terminate[s] further proceeding of the charge.” 29 C.F.R. § 1601.28(a)(3).
Accordingly, this Court does not have the ability to “remand” to the EEOC and must dismiss
Plaintiff’s complaint due to her concession for failing to exhaust administrative remedies prior to
filing suit.
Courts often dismiss without prejudice claims that have not been administratively
exhausted. See Krings, 2021 WL 1235129, at *4 (recommending dismissal of plaintiff’s claims
pursuant to Title VII, the ADA, and the ADEA without prejudice for failure to exhaust
administrative remedies). However, courts may dismiss claims that failed to exhaust
administrative remedies with prejudice if dismissal without prejudice would be futile. See
Mayfield, 2022 WL 2102018, at *4. Here, dismissal without prejudice would be futile because
Plaintiff's original filing was untimely, and she is unable to amend her EEOC charge to correspond
with her complaint as required for Title VII suits. Accordingly, Plaintiff's claim pursuant to Title
VII is dismissed with prejudice. To the extent any claims Plaintiff seeks to bring in this action
were not included in the EEOC charge, such dismissal is without prejudice and without leave to
amend, as amendment would be futile since they were not included in the EEOC charge.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss per Rule 12(b)(6),
(Doc. No. 9), is GRANTED, and Plaintiff's Complaint, (Doc. No. 1), is DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.

Signed: April 24, 2023

Frank D. Whitney
United States District Judge * ey

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10259668. Public record. Not legal advice.