Felicia Underdue v. Wells Fargo Bank, N.A.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2253

FELICIA A. UNDERDUE,

Plaintiff - Appellant,

v.

WELLS FARGO BANK, N.A.; ILA N. PATEL; KENDRA BROWN; SUSAN

LYBRAND,

Defendants - Appellees.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad,

Jr., District Judge. (3:14-cv-00183-RJC)

Submitted: March 30, 2015 Decided: April 16, 2015

Before WILKINSON, NIEMEYER, and HARRIS, Circuit Judges.

Affirmed in part and affirmed as modified in part by unpublished

per curiam opinion.

Felicia A. Underdue, Appellant Pro Se. Shalanna Lee Pirtle,

Keith Michael Weddington, PARKER, POE, ADAMS & BERNSTEIN, LLP,

Charlotte, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Felicia Ann Underdue appeals the district court’s order

dismissing her complaint against her former employer, Wells

Fargo Bank, N.A., and three of her supervisors. 1 “Because the

district court dismissed [Underdue’s] claims under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim, we

review legal issues de novo and treat the facts alleged in the

complaint as true.” Nemphos v. Nestle Waters N. Am., Inc., 775

F.3d 616, 617 (4th Cir. 2015).

Initially, we conclude that the district court correctly

dismissed the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12101-12213 (2012), claims against Underdue’s supervisors and

the North Carolina tort claims in their entirety. Accordingly,

we affirm the portions of the district court’s order dismissing

1

Although Underdue indicates in her informal brief that she

is also seeking to appeal the district court’s order denying her

Federal Rule of Civil Procedure 59(e) motion, the informal brief

may not serve as a notice of appeal because it was not filed

within 30 days of the district court’s entry of the order

denying the motion. See Fed. R. App. P. 4(a)(1)(A) (providing

30-day appeal period); Smith v. Barry, 502 U.S. 244, 248-49

(1992) (holding that appellate brief may serve as notice of

appeal provided it otherwise complies with rules governing

proper timing and substance). Because Underdue did not file a

separate notice of appeal of the order denying her Rule 59(e)

motion, we lack jurisdiction to review that order. See Fed. R.

App. P. 4(a)(4)(B)(ii).

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those claims. 2 Underdue v. Wells Fargo Bank, N.A., No. 3:14-cv-

00183-RJC (W.D.N.C. Aug. 13, 2014).

We conclude, however, that the district court’s assessment

of the merits of Underdue’s ADA claims against Wells Fargo was

premature. Underdue’s complaint suffers from a more fundamental

defect than failure to state a claim: it fails to establish the

district court’s subject matter jurisdiction. See Fed. R. Civ.

P. 12(b)(1); Piney Run Pres. Ass’n v. Cnty. Comm’rs, 523 F.3d

453, 459 (4th Cir. 2008) (holding that it is plaintiff’s burden

to establish court’s subject matter jurisdiction). “[A] failure

by the plaintiff to exhaust administrative remedies concerning a

. . . claim deprives the federal courts of subject matter

jurisdiction over the claim.” Jones v. Calvert Grp., Ltd., 551

F.3d 297, 300 (4th Cir. 2009). Thus, the district court only

has jurisdiction over “those discrimination claims stated in the

charge [filed with the Equal Employment Opportunity Commission

(“EEOC”)], those reasonably related to the original [charge],

and those developed by reasonable investigation of the original

[charge].” Id. (internal quotation marks omitted).

2

Underdue does not dispute on appeal the district court’s

dismissal of her claims under the North Carolina Equal

Employment Practices Act, N.C. Gen. Stat. § 143-422.2 (2014),

and has therefore forfeited appellate review of those claims.

See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177

(4th Cir. 2014) (“[O]ur review is limited to issues preserved in

[the informal] brief.”).

3

Underdue did not provide any information as to the contents

of the complaints she filed with the EEOC, so that the district

court could assure that it had subject matter jurisdiction to

assess the merits of Underdue’s allegations. 3 Accordingly, we

affirm the dismissal of the ADA claims against Wells Fargo on

the alternative ground that Underdue failed to establish the

district court’s subject matter jurisdiction. See Ellis v. La.-

Pac. Corp., 699 F.3d 778, 786 (4th Cir. 2012) (“This court is

entitled to affirm the [district] court's judgment on alternate

grounds, if such grounds are apparent from the record.”

(internal quotation marks omitted)). However, we affirm as

modified to reflect that the dismissal of those claims is

without prejudice. See S. Walk at Broadlands Homeowner’s

Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th

Cir. 2013) (“A dismissal for . . . [a] defect in subject matter

jurisdiction[] must be one without prejudice, because a court

3

The district court construed Underdue’s ADA claims against

Wells Fargo too narrowly. The complaint did not raise a failure

to accommodate claim. Rather, liberally construing the

complaint, Underdue alleged that the supervisors:

(1) discriminated against her when they discovered her

disability by denying her training opportunities that could have

resulted in her promotion within the company; (2) created a

hostile work environment that forced disabled employees to

resign; and (3) retaliated against her for reporting issues to

members of upper management or Human Resources. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (instructing courts to construe

pro se documents liberally).

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that lacks jurisdiction has no power to adjudicate and dispose

of a claim on the merits.”).

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED IN PART AND

AFFIRMED AS MODIFIED IN PART

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