SULLIVAN v. THE UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN D. SULLIVAN, )

)

Plaintiff, )

)

v. ) 1:22CV847

)

THE UNIVERSITY OF NORTH )

CAROLINA HEALTH CARE SYSTEM, )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiff John Sullivan brings this action against Defendant The University of North

Carolina Health Care System (“Defendant” or “UNC Health”), alleging age discrimination in

violation of the Age Discrimination in Employment Act (“ADEA”)1, 29 USC §§ 623 et seq.

(See generally ECF No. 1.) Before the Court are Defendant’s Partial Motion to Dismiss made

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (ECF No. 5), and

Defendant’s Motion to Strike, or Alternatively, Exclude Affidavit and Exhibits, (ECF No. 12).

Also before the Court is Plaintiff’s Motion to Amend the Complaint. (ECF No. 16.) For the

reasons that follow, the Court will grant Defendant’s Partial Motion to Dismiss, deny in part

1 Plaintiff initially identifies in the introduction to the Complaint Section 216(b) of the Fair Labor

Standards Act (“FLSA”) as a statutory provision under which the action arises; however, the body of

the Complaint does not set forth any claims under the FLSA. (See ECF No. 1 ¶ 1.)

and grant in part Defendant’s Motion to Strike or Exclude the Affidavit and Exhibits, and

deny Plaintiff’s Motion to Amend the Complaint.

I. BACKGROUND

According to Plaintiff’s Complaint, Plaintiff began his employment with Defendant in

January 2017 as System Director of Strategic Sourcing and Contracting, making him a member

of Defendant’s supply chain management team. (ECF No. 1 ¶¶ 8, 10.) In January 2019, a

reorganization of the leadership of Defendant’s supply chain department was proposed, and

such reorganization included a restructuring of the positions that comprised the department.

(Id. ¶ 11.) Plaintiff applied for one of the new leadership positions that would be included in

Defendant’s reorganized team; however, another candidate was selected for the position. (Id.

¶ 12.) At the time this occurred, Plaintiff was 58 years old, and the candidate selected was 37-

years-old. (Id.)

The Complaint alleges further that, effective June 30, 2019, Plaintiff was demoted from

his director position and reassigned to another position. (Id. ¶ 13.) When Plaintiff asked for

an explanation of why this position change had occurred, he was told it was done to reorganize

the “top[-]heavy management structure” of the department. (Id. ¶ 23.) Plaintiff applied for a

System Director of Strategic Sourcing position in the fall of 2019; however, the job posting

for this position was withdrawn in March 2020. (Id. ¶ 14.) In December 2020, an opening for

the director position that Plaintiff originally held was posted, and Plaintiff again applied for

that position. (Id. ¶ 25.) Plaintiff was not selected, (id.), and the selection of the candidate that

was chosen to assume that position was announced in April 2021, (id. ¶ 26). At the time of

this selection, Plaintiff was 60 years old, and the candidate selected was 44-years-old. (Id. ¶

27.)

Plaintiff filed a formal charge with the Equal Employment Opportunity Commission

(“EEOC”) on June 11, 2021, alleging that Defendant violated the ADEA, (ECF Nos. 1 ¶ 6;

5-1), and, following the filing of the charge, initiated this action, (ECF No. 1 ¶ 6). Plaintiff, in

his Complaint, advances two claims of age discrimination under the ADEA, denominated as

“COUNT ONE (Demotion)” and “COUNT TWO (Denial of Promotion).” (ECF No. 1 at

11–12.) Based on these claims, Plaintiff seeks injunctive relief, back pay, front pay, damages,

and attorney’s fees. (Id. at 14.)

On December 16, 2022, Defendant moved to dismiss only Count One of Plaintiff’s

Complaint (hereinafter “demotion claim”) pursuant to Rule 12(b)(6). (ECF No. 5.) Plaintiff

filed his Response to Defendant’s Partial Motion to Dismiss on January 13, 2023, and later

filed a Motion to Amend the Complaint on February 17, 2023. (ECF Nos. 11; 16.) While

Plaintiff’s proposed Amended Complaint asserts the same claims and pursues the same

damages as his original Complaint, it also seeks to add additional factual allegations. (See ECF

16-1.)

The Court will first consider Defendant’s Motion to Strike or Exclude, as it will impact

what documents the Court will consider in evaluating Defendant’s Motion to Dismiss. The

Court will then consider Defendant’s Partial Motion to Dismiss followed by Plaintiff’s Motion

to Amend the Complaint.

II. DEFENDANT’S MOTION TO STRIKE, OR ALTERNATIVELY,

EXCLUDE AFFIDAVIT AND EXHIBITS

Both parties are requesting that the Court consider documents outside of the

Complaint when evaluating Defendant’s Partial Motion to Dismiss. Defendant attached to its

motion a copy of Plaintiff’s formal charge of discrimination filed with the EEOC requesting

that the charge be considered in resolving its motion. (See generally ECF No. 5-1; 5 at 2; 6 at

4–5.) Plaintiff has attached an affidavit and exhibits to its Response, (ECF No. 11-1), and

likewise requests that this Court consider the attached affidavit and exhibits in addressing

Defendant’s motion. (ECF No. 11 at 7–8.) Defendant has filed this instant motion to strike

or exclude the documents that Plaintiff has attached to his Response. (ECF No. 12.)

When considering a motion to dismiss, “a [district] court evaluates the complaint in its

entirety, as well as documents attached [to] or incorporated into the complaint.” E.I. du Pont

de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Generally, on a Rule

12(b)(6) motion to dismiss, a court cannot consider documents beyond the complaint without

converting the motion into a motion for summary judgment. See Occupy Columbia v. Haley, 738

F.3d 107, 116 (4th Cir. 2013). The court can, however, properly consider documents attached

to or referenced in the complaint, as well as those attached to the motion to dismiss, so long

as those documents are “integral to and explicitly relied on in the complaint and . . . the

plaintiff[ ] do[es] not challenge its authenticity.” Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,

367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir.

1999)).

Here, with respect to Defendant’s request, Plaintiff does not contest the authenticity

of the formal EEOC charge submitted by Defendant and, further, Plaintiff concedes that the

charge is integral to his Complaint. (ECF No. 11 at 7.) Because neither party has objected to

the charge or disputed its authenticity, the Court will consider the formal EEOC charge in

evaluating Defendant’s Motion to Dismiss.

On the other hand, Plaintiff’s affidavit and twelve exhibits referenced in his Response

and attached thereto, with certain exceptions as discussed below, have been expressly

contested by Defendant in its Motion to Strike or Exclude. (ECF No. 12 at 1.) Defendant

argues that, while the Court may consider the EEOC charge without converting the Rule

12(b)(6) motion to one for summary judgment, the same is not true for Plaintiff’s affidavit and

nine of the twelve attached exhibits. 2 (ECF No. 13 at 2–4.) Defendant asserts that the

remaining nine contested documents proffered by Plaintiff do not fall within any of the limited

exceptions under which the Court may consider documents outside of the Complaint. (Id. at

2–3.)

While Plaintiff does not expressly address Defendant’s argument, Plaintiff argues that

the affidavit and exhibits should be considered by the Court because they would provide the

proper context surrounding how the EEOC charge came to be filed. (ECF No. 15 at 3.)

Plaintiff contends that giving the proper context surrounding the charge would aid Plaintiff’s

2 Defendant concedes that three of the twelve exhibits that Plaintiff attached to its Response are

exceptions to, and not considered as a part of, Defendant’s request to have the affidavit and exhibits

stricken or excluded from the record, (see ECF No. 13 at 3 n.1): the organizational chart, (ECF No.

11-1 at 53), the voluntary reassignment agreement, (ECF No. 11-1 at 41), and the April 1, 2021, memo,

(ECF No. 11-1 at 51–52). These three documents were attached to and referenced in the original

Complaint. (See ECF Nos. 1-5; 1-3; 1-6; see ECF No. 1 ¶¶ 13, 26.) Defendant acknowledges that these

three exhibits were attached to the Complaint and asserts that “the Court may still consider these

materials . . . without converting the Rule 12(b)(6) motion to a motion for summary judgment.” (ECF

No. 13 at 3 n.1.) Because neither party has objected to these exhibits or disputed the fact that they

were attached to the Complaint, the Court will consider the three exhibits in evaluating Defendant’s

motion.

argument that the charge should be considered to cover all actions taken by Defendant related

to Plaintiff’s employment beginning in June 2019 and continuing through the date of the filing

of the charge. (Id.) With the exception of only one out of the nine exhibits that Defendant

contests, the Court agrees with Defendant’s argument concerning the affidavit and remaining

eight contested exhibits.

The one exception is a document that details the proposed organizational changes to

Defendant’s supply chain department’s leadership, (see ECF No. 11-1 at 37–39), which was

attached to, and specifically referenced in, Plaintiff’s Complaint, (see ECF No. 1-2; 1 ¶ 11).

The Court finds this document can be considered by the Court without converting

Defendant’s motion to one for summary judgment for the same reasons that Defendant

conceded the Court’s consideration of the three other exhibits. See supra note 2. The Court

will therefore deny Defendant’s Motion to Strike or Exclude as to that particular document

and will consider that document in evaluating Defendant’s Motion to Dismiss. However, the

affidavit and remaining eight contested exhibits that Defendant requests be stricken or

excluded require further analysis.

With respect to two of the remaining contested exhibits, the Court finds that, while the

Complaint does include quotes from the exhibits, (compare ECF No. 1 ¶ 8, with ECF No. 11-1

at 10; compare ECF No. 1 ¶ 9, with ECF No. 11-1 at 14, 23, 31), mere inclusion in a complaint

of quotes from a document is not enough for that document to be considered integral to that

complaint, see Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citing Sira v.

Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“Limited quotation from or reference to documents

that may constitute relevant evidence in a case is not enough to incorporate those documents,

wholesale, into the complaint.”)) (concluding that a document attached by the defendants to

their motion to dismiss was “arguably . . . not integral to the complaint and therefore should

not have been considered by the district court” because the plaintiff’s “claims [did] not turn

on, nor [were] they otherwise based on, statements contained in the” document, even though

“the complaint included a few quotes from and references to” that document). Neither

Plaintiff’s demotion claim nor Plaintiff’s denial of promotion claim turn on the included

quotes from the two referenced contested exhibits. Accordingly, the Court declines to

consider these exhibits in evaluating Defendant’s Motion to Dismiss.

Moreover, aside from the contested exhibits discussed above, Plaintiff never explicitly

references the affidavit or any of the remaining contested documents anywhere in the

Complaint. Nor were these documents attached to the Complaint. There is no basis in law

for this Court to conclude that these documents are integral to the Complaint, nor is the Court

persuaded by Plaintiff’s argument that these documents should be considered to provide

context. For these reasons, the Court will grant Defendant’s Motion to Strike or Exclude only

as to Plaintiff’s affidavit and the eight remaining contested exhibits and will exclude these

documents from its consideration in evaluating Defendant’s Motion to Dismiss.

Accordingly, Defendant’s Motion to Strike or Exclude is granted in part and denied in

part. The motion is granted as to the affidavit and the eight remaining contested exhibits

outlined above and denied as to the one contested exhibit that this Court found was attached

to the Complaint and therefore would be considered in evaluating Defendant’s Motion to

Dismiss.

The Court will next examine whether Plaintiff’s demotion claim should be dismissed

pursuant to Defendant’s Motion to Dismiss.

III. DEFENDANT’S PARTIAL MOTION TO DISMISS

A. Standard of Review

A motion made under Rule 12(b)(6) challenges the legal sufficiency of the facts in the

complaint, specifically whether the complaint satisfies the pleading standard under Rule

8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a “short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). “[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 when the complaint

alleges sufficient facts to allow “the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir.

2015) (quoting Iqbal, 556 U.S. at 678). The court “view[s] the complaint in a light most

favorable to the plaintiff.” Mylan Lab’ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

B. Parties’ Arguments

In its Motion to Dismiss, Defendant argues that the Court should dismiss only

Plaintiff’s demotion claim on the basis that Plaintiff has failed to exhaust his administrative

remedies with respect to that claim. (ECF No. 6 at 1, 4–6.) Specifically, Defendant argues

that Plaintiff’s demotion claim exceeds the scope of the formal charge of discrimination filed

with the EEOC because Plaintiff failed to assert that claim in the charge. (Id. at 1, 5.) Further,

Defendant contends that, even if the Court were to find that Plaintiff has asserted a demotion

claim in the charge, the Court should still dismiss the claim as untimely because the demotion

occurred more than 180 days before the EEOC charge was filed. (Id. at 1.)

Plaintiff does not appear to directly address whether or not the demotion claim was

included within the scope of the EEOC charge. (See generally ECF No. 11.) Rather, Plaintiff

only addresses the timeliness of the charge. (See generally id.) Plaintiff argues that the 180-day

requirement is satisfied because Defendant’s demotion of Plaintiff was not a discrete act that

was actionable on its own. (Id. at 12–13.) Instead, Plaintiff asserts, the demotion was part of

a series of repeated acts committed by Defendant over time that had a cumulative effect and,

when assessed independently of one another, were not actionable. (See id. at 12–13, 20.)

Plaintiff also contends that it was unreasonable to expect Plaintiff to file a charge for any of

those repeated acts before their respective 180-day filing deadlines passed, as most of the acts

did not sufficiently affect the conditions of Plaintiff’s employment, and Plaintiff could not

have reasonably foreseen the impact felt from the only act that did affect his employment

conditions, a reduction in his salary that took place in December 2019. (Id. at 10–13.) In

addition, Plaintiff argues that the 180-day time period is a statute of limitations subject to

waiver, estoppel, and equitable tolling, which Plaintiff claims is applicable here. (Id. at 15.)

C. Discussion

“It is well settled that before filing suit under Title VII or the ADEA, a plaintiff must

exhaust [his] administrative remedies by bringing a charge with the EEOC.” Walton v. Harker,

33 F.4th 165, 172 (4th Cir. 2022) (citing 42 U.S.C. § 2000e-5(b), (f); 29 U.S.C. § 633a(d)). The

charge must be filed within 180 days after the alleged unlawful practice occurs. 29 U.S.C. §

626(d)(1)(A). “A plaintiff’s EEOC charge defines the scope of [his] subsequent right to

institute a civil suit.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000). “The

allegations contained in the administrative charge of discrimination generally limit the scope

of any subsequent judicial complaint.” Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th

Cir. 2014); Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132–33 (4th Cir. 2002) (holding that the

scope of the plaintiff’s right to file a federal lawsuit is determined by the charge’s contents).

“[F]actual allegations made in formal litigation must correspond to those set forth in the

administrative charge.” Chacko v. Patuxent Inst., 429 F.3d 505, 509, 511 (4th Cir. 2005) (holding

that the plaintiff had failed to exhaust his administrative remedies where his EEOC charge

alleged three specific instances of harassment by a supervisor and his federal complaint alleged

long-term harassment by colleagues). “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 [or ADEA]

lawsuit.” Stewart v. Iancu, 912 F.3d 693, 705 (4th Cir. 2019) (quoting Chacko, 429 F.3d at 506)

(internal quotation marks omitted).

1. Plaintiff’s Demotion Claim Exceeds the Scope of the EEOC Charge

In this case, an examination of the EEOC charge leads this Court to conclude, as

argued by Defendant, that the demotion claim outlined in Plaintiff’s Complaint exceeds the

scope of the formal charge of discrimination filed with the EEOC. There is no reference to

Plaintiff’s alleged demotion in his EEOC charge at all. (See generally ECF No. 5-1.) The EEOC

charge is very succinct and straightforward. It alleges one discrete act of discrimination: the

denial of Plaintiff’s promotion that took place on April 1, 2021, after Plaintiff applied for the

promotion in December 2020. (See id. at 2.) Thus, the language of the charge does not support

Plaintiff’s argument that his demotion was not a discrete act but rather was part of a series of

Defendant’s repeated acts that had a cumulative effect and, when evaluated independently of

one another, were not actionable.

Nor does the law support this argument asserted by Plaintiff. First, the Supreme Court

has held that the discriminatory denial of an employee’s promotion and the discriminatory

demotion of an employee are both considered to be discrete discriminatory acts. See Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (describing “[d]iscrete acts such as

termination, failure to promote, denial of transfer, or refusal to hire” as “easy to identify”);

Chacko, 429 F.3d at 511 n.2 (labelling a failure to promote and a retaliatory demotion as

“discrete acts of discrimination” alleged by a plaintiff in its administrative charges and

distinguishing those allegations from allegations of a hostile work environment); Green v.

Brennan, 578 U.S. 547, 568 (2016) (Alito, J., concurring) (referring to termination, failure to

hire, and demotion as examples of “discrete act[s] of discrimination”).

Moreover, Plaintiff solely alleged the denial of promotion in the charge and now

attempts to allege the demotion as part of a pattern of Defendant’s repeated conduct that

culminated in the denial of promotion. (ECF Nos. 5-1; 11 at 12–13, 20). The allegation of

the denial of promotion alone in the charge is not enough to cover the broader pattern of

unlawful acts that Plaintiff now alleges Defendant committed. The Fourth Circuit has held

that “the allegation of a discrete act or acts in an administrative charge is insufficient when the

plaintiff subsequently alleges a broader pattern of misconduct.” Chacko, 429 F.3d at 509 (citing

Dennis v. Cty. of Fairfax, 55 F.3d 151, 153, 156–57 (4th Cir. 1995)).

Finally, as to scope, the alleged demotion complained of took place two years earlier

than the filing of the charge. (Compare ECF No. 5-1, with ECF No. 1 ¶ 13, and ECF No. 16-1

¶ 14.) It is unlikely that a reasonable investigation of the facts of the denial of promotion claim

would have revealed information regarding the demotion that had occurred approximately

two years prior to the filing of the charge. It is also not likely that Defendant would have been

afforded notice of alleged discrimination related to the demotion and an opportunity to

address that alleged discrimination when the charge was filed.

For each of these reasons, the Court concludes that the demotion claim exceeds the

scope of the EEOC charge.

2. Plaintiff’s Demotion Claim Is Time Barred

Because Plaintiff’s alleged demotion is a discrete act, it has its own 180-day time

requirement for filing a charge alleging that act, even if the demotion would be viewed as

reasonably related to the denial of promotion that was alleged explicitly in the charge. See

Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (citing Morgan, 536 U.S. at 113)

(“[A]n employee must file a charge of discrimination within the appropriate limitations period

as to each discrete act of discrimination that occurred.”); see also Morgan, 536 U.S. at 113

(“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related

to acts alleged in timely filed charges.”). Thus, Plaintiff’s argument here that the charge covers

the June 2019 demotion because the demotion was a part “of one continuing unlawful

employment practice,” (ECF No. 11 at 20), is foreclosed.

Consequently, the Court concludes that, even if it had found that Plaintiff stated a

demotion claim in the charge, Plaintiff’s demotion claim would still be dismissed as it is time

barred.

3. Equitable Tolling or Equitable Estoppel is Not Applicable3

“Equitable tolling applies where the defendant has wrongfully deceived or misled the

plaintiff in order to conceal the existence of a cause of action.” English v. Pabst Brewing Co., 828

F.2d 1047, 1049 (4th Cir. 1987) (citing Lawson v. Burlington Indus., 683 F.2d 862, 864 (4th Cir.

1982); Cerbone v. Int’l Ladies’ Garment Workers’ Union, 768 F.2d 45, 48 (2d Cir. 1985)). In order

to invoke equitable tolling, “the plaintiff must . . . show that the defendant attempted to

mislead him, and that the plaintiff reasonably relied on the misrepresentation by neglecting to

file a timely charge.” English, 828 F.2d at 1049. Equitable tolling could also apply when “an

employer violates the [ADEA] posting requirement,” id., which requires an employer to post

a notice “to be prepared or approved by the [EEOC] setting forth information as the

Commission deems appropriate to effectuate the purposes of [the ADEA],” English, 828 F.2d

at 1049 (second alteration in original) (quoting 29 U.S.C. § 627). Fundamentally, “equitable

tolling rests upon the proposition that the defendant’s actions require relieving the plaintiff

from the burden of a statutory limitations period.” English, 828 F.2d at 1051.

“Equitable estoppel applies where, despite the plaintiff’s knowledge of the facts, the

defendant engages in intentional misconduct to cause the plaintiff to miss the filing deadline.”

Id. at 1049 (citing Felty v. Graves-Humphreys, 818 F.2d 1126 (4th Cir. 1987); Price v. Litton Bus.

3 To avoid redundancy, the Court will consider both the original Complaint and the proposed

Amended Complaint with respect to certain contentions made by Plaintiff related to the equitable

tolling or estoppel argument.

Sys., 694 F.2d 963, 965 (4th Cir. 1982)). “The statute of limitations will not be tolled on the

basis of equitable estoppel unless the employee’s failure to file in [a] timely fashion is the

consequence either of a deliberate design by the employer or of actions that the employer

should unmistakably have understood would cause the employee to delay filing his charge.”

Price, 694 F.2d at 965. When applying equitable doctrines such as tolling or estoppel to the

time period for filing a charge, such doctrines “are to be applied sparingly.” Morgan, 536 U.S.

at 113 (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam)).

Plaintiff asserts that the 180-day time period should be equitably tolled or Defendant

should be estopped from asserting the statute of limitations because the job posting for the

System Director of Strategic Sourcing position for which Plaintiff applied was withdrawn;

there was a delay in the reposting of the System Director of Strategic Sourcing and Contracting

position that Plaintiff originally held; and Plaintiff made complaints about age discrimination

directly to Defendant in August 2020. (ECF No. 11 at 15–20.) Here, Plaintiff does not allege

in either his original Complaint or his proposed Amended Complaint that Defendant failed to

post the required ADEA notice. Plaintiff does not allege in either version of the Complaint

why the job posting for the System Director of Strategic Sourcing position for which Plaintiff

applied was “withdrawn,” (ECF No. 1 ¶ 14), or “cancelled or terminated,” (ECF No. 16-1 ¶

23), nor is the reason for the amount of time it took Defendant to repost the System Director

of Strategic Sourcing and Contracting position that Plaintiff originally held alleged. Neither

the original Complaint nor the proposed Amended Complaint alleges that Defendant

committed these two acts to mislead Plaintiff and keep a potential demotion claim hidden.

Similarly, neither version of the Complaint includes facts that support that Defendant

intentionally or deliberately withdrew a job posting or delayed reposting a position to cause

Plaintiff to miss the filing deadline for the purported demotion claim.

Nor does the Court find persuasive Plaintiff’s argument that his complaints about age

discrimination to Defendant in August 2020 satisfy the equitable tolling or estoppel

requirements. The fact that Plaintiff notified Defendant of his concerns in August 2020 does

nothing to demonstrate deception or intentional misconduct on the part of Defendant for the

purpose of causing Plaintiff to fail to file a timely charge. Further, this alleged notice given by

Plaintiff to Defendant is no substitute for Plaintiff filing a charge and fulfilling his

responsibility to exhaust his administrative remedies. See Chacko, 429 F.2d at 510 (“Congress

intended the exhaustion requirement to serve the primary purposes of [both] notice and

conciliation.”). As a result, Plaintiff’s notice to Defendant in no way provides a basis for the

application of equitable tolling or estoppel, or for consideration of the demotion claim as

timely.

Based on this information, the Court concludes that, with respect to the original

Complaint, Plaintiff has not demonstrated a basis for the application of equitable tolling or

estoppel. However, because Plaintiff, through his Motion to Amend the Complaint, has

introduced additional factual detail in his proposed Amended Complaint that is not present in

the original Complaint, the Court will further examine the issue of equitable tolling or estoppel

with respect to the proposed Amended Complaint alone under its discussion of the Motion

to Amend the Complaint.

IV. PLAINTIFF’S MOTION TO AMEND THE COMPLAINT

A party may amend a pleading by obtaining consent of the opposing party or leave of

the court pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. Fed. R. Civ. P.

15(a)(2). The grant or denial of a motion to amend a Complaint, or other pleading, is in the

discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962); Drager v. PLIVA

USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014). While the court has discretion to grant or deny

leave to amend a pleading, “[t]he court should freely give leave when justice so requires.” Fed.

R. Civ. P. 15(a)(2). The Supreme Court has made clear that the Federal Rule of Civil Procedure

declaring that leave to amend shall be freely given when justice so requires is a “mandate . . .

to be heeded.” Foman, 371 U.S. at 182. “[L]eave to amend a pleading should be denied only

when the amendment would be prejudicial to the opposing party, there has been bad faith on

the part of the moving party, or the amendment would be futile.” Edwards v. City of Goldsboro,

178 F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th

Cir. 1986)); accord Drager, 741 F.3d at 474. “A motion to amend is futile ‘if the proposed claim

would not survive a motion to dismiss.’” Pugh v. McDonald, 266 F. Supp. 3d 864, 866

(M.D.N.C. 2017) (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)).

In support of his Motion to Amend the Complaint, Plaintiff argues that he seeks to

clarify his Complaint to support his argument that his EEOC charge was timely, that

Defendant was on notice of Plaintiff’s allegations beginning in June 2019, and that Defendant

should be “estopped from asserting timeliness” as a reason for dismissal of Plaintiff’s claims.

(ECF No. 16 ¶ 4.) In response, Defendant argues that Plaintiff’s Motion to Amend the

Complaint should be denied because the amendment would be futile, as the amendment does

not allege new facts that would enable Plaintiff to defeat the argument raised in Defendant’s

Motion to Dismiss—that Plaintiff failed to exhaust his administrative remedies for the

demotion claim. (ECF No. 18 at 5.) Further, Defendant asserts that Plaintiff’s proposed

amendment does not establish that his EEOC charge was timely as to the demotion claim,

and that Plaintiff’s argument that Defendant was on notice of his demotion allegations does

not allow Plaintiff to circumvent the requirement that a plaintiff exhaust his administrative

remedies. (Id. at 2–3.) Defendant also argues that the amendment that Plaintiff proposes does

not allege the circumstances that warrant equitable tolling or estoppel. (Id. at 3.)

Plaintiff’s request to amend his Complaint must be denied as futile as his demotion

claim in his proposed Amended Complaint fails for the same reason as his demotion claim in

his original Complaint. (Compare ECF No. 1 ¶¶ 8–32, with ECF No. 16-1 ¶¶ 8–49.) Plaintiff’s

proposed Amended Complaint does not cure the fact that the demotion is a discrete act that

has its own time requirement for filing a charge alleging that act, and the demotion claim is

not within the scope of the formal EEOC charge that has already been filed. This was

discussed in further detail in the preceding section of this Order.

The Court will now address the equitable tolling or estoppel argument as it pertains to

the additional factual detail exclusively presented in Plaintiff’s proposed Amended Complaint.

Though Plaintiff provides further factual detail regarding the demotion in his proposed

Amended Complaint, such additional facts still do not support any application of equitable

tolling or equitable estoppel to the time requirement that was related to Plaintiff’s demotion

claim.

In the proposed Amended Complaint, Plaintiff alleges the following additional details:

(a) in early 2019, the then-Vice President of Supply Chain told Plaintiff that he “should apply

for the Strategic Sourcing role” and that he could “see [Plaintiff] being successful in that

position,” (ECF No. 16-1 ¶ 12); (b) during the June 2019 meeting in which Plaintiff was

demoted, Plaintiff was told “that he could apply for a position which replaced” the System

Director of Strategic Sourcing and Contracting position he held prior to the demotion and

was “encouraged to apply for the position,” (id. ¶ 16); (c) an interim was appointed to a

Manager of Contracting position in August 2020, (id. ¶ 25); and (d) Plaintiff was told that

“employees with strong employment performance [were] often re-appointed to their position”

and that several employees that went through a similar experience in another department

“were in fact re-appointed,” (id. ¶ 16). The proposed Amended Complaint does not allege

that Defendant appointed an interim Manager of Contracting with the intent of misleading

Plaintiff and concealing a possible demotion claim. Further, while Defendant clearly expressed

to Plaintiff that he would be a good candidate for the position, encouraged him to apply for

it, and informed Plaintiff that other employees were commonly reappointed, the proposed

Amended Complaint does not allege that Defendant made any representation that Plaintiff

would be selected for that position. Moreover, the proposed Amended Complaint does not

include facts that support that Defendant committed the actions outlined above with the intent

of preventing Plaintiff from filing a timely charge alleging discriminatory demotion, or that

Defendant should have known that its actions would have caused Plaintiff to delay filing such

a charge.

Even after considering, as requested by Plaintiff, all of these acts committed by

individuals who are employed by Defendant—the acts involving the job postings, the acts

related to Plaintiff’s articulation of his concerns in the August 2020 phone conversation, the

positive and encouraging statements that were made to Plaintiff, and the description of prior

occurrences of reappointment to positions—equitable doctrines would not apply here. There

has been no showing in the proposed Amended Complaint that any of the individuals under

the employ of Defendant concealed anything or intentionally engaged in misconduct to cause

Plaintiff to miss the filing deadline for the demotion claim, or that those individuals should

have understood that these actions would have caused such an outcome. As a result, the time

requirement for filing a charge alleging the demotion was discriminatory would not be subject

to equitably tolling or estoppel under the additional facts alleged in the Amended Complaint.

Equitable doctrines such as the ones proffered by Plaintiff are applied infrequently, and this

Court does not perceive the facts of this situation, as they are alleged in either version of the

Complaint, to be one of those rare instances supporting the application of these extraordinary

remedies.

Since Plaintiff did not file a charge alleging the demotion was discriminatory within 180

days of that alleged act, and since the time requirement would not be subject to equitable

tolling or estoppel, Plaintiff failed to meet the time requirement and would still have failed to

exhaust his administrative remedies, independent of this Court’s conclusion that the demotion

claim exceeds the scope of the originally filed charge. Plaintiff’s proposed Amended

Complaint does nothing to change this outcome. Accordingly, the Court denies Plaintiff’s

Motion to Amend the Complaint and grants Defendant’s Partial Motion to Dismiss Plaintiff’s

demotion claim asserted under the ADEA.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Defendant’s Motion to Strike, or

Alternatively, Exclude Affidavit and Exhibits, (ECF No. 12), is DENIED IN PART and

GRANTED IN PART. Specifically, Defendant’s Motion to Strike or Exclude the contested

exhibit that details the proposed organizational changes to Defendant’s supply chain

department’s leadership, (ECF No. 11-1 at 37–39), will be DENIED, and Defendant’s

Motion to Strike or Exclude the affidavit and the eight remaining contested exhibits, (ECF

No. 11-1 at 1–36, 40, 42–50), will be GRANTED.

IT IS FURTHER ORDERED that Defendant’s Partial Motion to Dismiss, (ECF

No. 5), is GRANTED, and Plaintiff’s demotion claim is hereby DISMISSED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend the Complaint,

(ECF No. 16), is DENIED.

This, the 8th day of September 2023.

/s/ Loretta C. Biggs

United States District Judge