Kevin F. McDonald United States Magistrate Judge

REPORT OF MAGISTRATE JUDGE

This matter is before the court on the motion to dismiss of defendant Michelin North America, Inc. (doc. 17). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

PROCEDURAL HISTORY

The plaintiff filed a pro se complaint on March 22, 2018, alleging she was discriminated and retaliated against based on her race, color, sex, age, and disability in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA") (docs. 1, 1-2). She named as defendants Michelin, her employer, and Beacon Health Options, Inc., which she identifies as a "service provider" (id.).

Defendant Michelin filed a motion to dismiss on May 8, 2018 (doc. 17). On May 9, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion dismiss and motion for summary judgment procedures and the possible consequences if she failed to respond adequately to defendant Michelin's motion (doc. 20). On June 1, 2018, counsel filed a notice of appearance on behalf of the plaintiff and a motion for extension of time to file a response to the motion to dismiss (docs. 22, 23). The motion for extension was granted through July 11, 2018 (doc. 25). The plaintiff filed a response in opposition to the motion to dismiss on July 10, 2018 (doc. 17). Defendant Michelin filed a reply on July 17, 2018 (doc. 29). Defendant Beacon has not appeared in this action.

FACTUAL ALLEGATIONS

The plaintiff previously worked for Michelin at its US2 facility in Sandy Springs, South Carolina (doc. 1-2 at 8). In her complaint, the plaintiff claims that male team members sexually harassed her and other female employees (id.). She further alleges that the alleged sexual harassment was reported to her supervisors and other individuals, but nothing was done and the harassment continued (id. at 5, 8). The plaintiff alleges she was subjected to a hostile work environment after she reported the sexual harassment (id. at 8-9). In January 2017, the plaintiff went out on medical leave, and she has not returned to work since then (id. at 7, 9; doc. 1-1 at 1). She alleges that another entity, defendant Beacon, deemed her unable to return to work (doc. 1-2 at 9-10).

On January 9, 2018, approximately one year after beginning her medical leave, the plaintiff filed a charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC") (doc. 1-1 at 1). In her EEOC charge, the plaintiff alleged that she had been out on medical leave since January 2017 due to complications from an unspecified medical condition, and Michelin denied her the opportunity to return to work (id.). She also alleged that she was rendered "disabled" by the Social Security Administration based on paperwork submitted by Michelin (id.). Based upon these facts, she alleged that Michelin discriminated against her because of her disability in violation of the ADA (id.). In her charge, the plaintiff checked only the box for discrimination based on disability (id.). She stated in the charge that July 24, 2017, was the earliest date the discrimination took place (id.). On January 9, 2018, the same day she filed her EEOC charge, the plaintiff requested and received a notice of right to sue (id. at 3). She then filed the instant lawsuit on March 22, 2018 (doc. 1).

APPLICABLE LAW AND ANALYSIS

Defendant Michelin argues in its motion that the complaint against it should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process (doc. 17-1 at 4-6). Subsequent to the filing of the motion to dismiss, the plaintiff cured the service issue by properly serving Michelin, and thus this issue is moot (doc. 27 at 1; doc. 29 at 1).

Michelin further argues in its motion that the plaintiff cannot assert a state law claim for intentional infliction of emotional distress because it is barred by the South Carolina Workers' Compensation Act (doc. 17-1 at 13-15). In her response, the plaintiff concedes that she cannot state such a claim (doc. 27 at 2).

Michelin's third and sole remaining argument is that the plaintiff's Title VII, ADEA, and ADA failure to accommodate and sexual harassment causes of action should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction (doc. 17-1 at 6-13). The undersigned agrees.

It is well-established that prior to bringing a lawsuit under Title VII, the ADEA, or the ADA, a plaintiff must file a charge of discrimination with the EEOC and receive a right to sue letter or other notice of termination of the administrative investigation. 42 U.S.C. § 2000e-5(e), (f) (Title VII); 42 U.S.C. § 12117(a) (ADA adopts procedures set forth in § 2000e-5(e)); 29 U.S.C. § 626(d)(1), (e) (ADEA). "[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim. The same is true of claims made under the ADEA." Jones v. Calvert Group, Ltd., 551 F.3d 297, 300-301 (4^th Cir. 2009) (citation omitted). Rule 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

The EEOC charge "defines the scope of the plaintiff's right to institute a civil suit." Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). As stated by the Fourth Circuit Court of Appeals: "In 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 (4^th Cir. 2013) (citation omitted). If the plaintiff's claims "'exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.'" Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (quoting Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir.1995)).

As set out above, the plaintiff's EEOC charge alleges only disability discrimination in violation of the ADA based on Michelin's alleged failure to return the plaintiff to work (doc. 1-1 at 1). In her response in opposition to the motion to dismiss, the plaintiff argues that the court should excuse her failure to exhaust based upon the fact that she had no attorney at the time she filed her charge and that she "does not believe she was given adequate advice at that time or that the EEOC Charge, which was drafted by an EEOC investigator, included all of her potential claims" (doc. 27 at 1-2). As argued by defendant Michelin, the plaintiff's contention that her pro se status excuses her failure to administratively exhaust her claims is foreclosed by the Fourth Circuit Court of Appeals' ruling in Balas, in which the plaintiff, who was proceeding pro se at the time she filed her EEOC charge, communicated with the EEOC regarding her potential claims by meeting with the EEOC, submitting an intake questionnaire to the EEOC, and sending additional letters to the EEOC. 711 F.3d at 405. The EEOC prepared a charge, which did not include all of the allegations and claims that the plaintiff communicated. Id. After receiving a notice of right to sue from the EEOC, the plaintiff in Balas filed a lawsuit in district court, which contained discrimination claims not included in her EEOC charge. Id. The district court dismissed the discrimination claims that were outside the scope of the EEOC charge. Id. On appeal, the plaintiff in Balas argued that "she should not be penalized for the EEOC's 'negligence'" and that the district court should have considered additional claims and allegations that were communicated to the EEOC, but not included in her charge. Id. at 407-08. The Fourth Circuit affirmed the district court's ruling, stating, "[W]e are not at liberty to read into administrative charges allegations they do not contain." Id. at 408. Rather, in determining which claims were properly exhausted before the EEOC, courts "may look only to the charge filed with that agency." Id.

The plaintiff also argues that she was terminated from employment 16 days after the EEOC charge was filed, and therefore she could not have included her termination from employment as a basis for her charge at the time it was filed (doc. 27 at 1-2). The plaintiff may be attempting to argue that the limited exception to the exhaustion requirement recognized by the Fourth Circuit Court in Nealon v. Stone applies to her claims. See 958 F.2d 584 (4th Cir.1992). In Nealon, the court held that a plaintiff asserting a Title VII claim of retaliation for filing a previous administrative charge is not required to separately exhaust administrative remedies with regard to that retaliation claim. Id. at 590. The rationale for the holding was the "'generally accepted principle that the scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.'" Id. (quoting Hill v. Western Electric Co., 672 F.2d 381, 390 n. 6 (4th Cir.)) (additional citations omitted). To the extent the plaintiff has alleged in her complaint that she was terminated from employment in retaliation for filing the EEOC charge in violation of the ADA's retaliation provision, she may have an argument that under Nealon she is not required to further administratively exhaust such claim. However, the argument does not extend to the claims in her complaint alleging sexual harassment and failure to accommodate in violation of the ADA and violations of Title VII and the ADEA, which were not raised in the EEOC charge.

The plaintiff further argues that she "is in the process of filing an amended or additional EEOC charge, to include additional allegations," and she asks the court to deny the motion to dismiss "while the administrative process continues" (doc. 27 at 2). As the Fourth Circuit has repeatedly explained, however, an employee seeking redress for discrimination cannot file suit until after she has exhausted the administrative process. Balas, 711 F.3d at 406 (citing 42 U.S.C. § 2000e-5(b)). Because this is an issue of subject matter jurisdiction, the court does not have the discretion to deny the motion to dismiss "while the administrative process continues," as the plaintiff requests. "[A]ll of the precedential authority in the Fourth Circuit makes clear that a plaintiff who files an ADA or Title VII claim in federal court without first exhausting administrative remedies fails to properly invoke the jurisdiction of the district court." Chase v. Greenville Tech. Coll., C.A. No. 6:12-3376-TMC-KFM, 2012 WL 6808967, at *4 (D.S.C. Dec. 13, 2012), R&R adopted by 2013 WL 85161 (D.S.C. Jan. 8, 2013). See also Jones, 551 F.3d at 300 ("[F]ailure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.").

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the undersigned recommends that the the defendants' motion to dismiss (doc. 17) be granted in part and that the plaintiff's claims alleging failure to accommodate and hostile work environment in violation of the ADA and all claims alleged under Title VII and the ADEA be dismissed without prejudice for lack of subject matter jurisdiction. Further, the parties agree to the dismissal of any state law claim for intentional infliction of emotional distress.

The Clerk of Court is directed to correct the caption to reflect Michelin North America, Inc. as the proper defendant, replacing named defendants Michelin North American, Inc-USA and Michelin North American, Inc-US2.

IT IS SO RECOMMENDED.

s/ Kevin F. McDonald

United States Magistrate Judge August 16, 2018
Greenville, South Carolina