Opinion
C. A. 3:22-2195-MGL-PJG
02-14-2023
Mary E. Anderson, Plaintiff, v. First Citizens Bank, Defendant.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
Mary E. Anderson, a self-represented plaintiff, filed this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; against her employer, First Citizens Bank. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion to dismiss. (ECF No. 21.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Anderson of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to the defendant's motion. (ECF No. 23.) Anderson filed a response in opposition (ECF No. 32), and the defendant replied (ECF No. 33). Having reviewed the parties' submissions and the applicable law, the court finds that Anderson's Complaint is subject to dismissal as pled.
The defendant states that it is more correctly identified as First-Citizens Bank & Trust Company. (Def.'s Mot. Dismiss at n.1, ECF No. 21 at 1.)
DISCUSSION
The defendant's motion is based in part on its position that Anderson has failed to state a claim upon which relief can be granted because she has not alleged facts stating a plausible claim. The court agrees.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “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 Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
At the pleading stage, a plaintiff is generally not required to allege facts which, taken as true, would establish aprima facie case. See McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (holding that a plaintiff is not required to “plead facts establishing a prima facie case of discrimination to survive a motion to dismiss”); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). However, as indicated above, a plaintiff must include factual averments that raise her claims above the speculative level, see Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), and nudge her claim “across the line from conceivable to plausible.” Iqbal, 556 U.S. at 683 (quoting Twombly, 550 U.S. at 570). Thus, to survive a motion to dismiss, a plaintiff's factual averments must fall on the spectrum somewhere above purely speculative and conjectural conclusions but below strict assertions of prima facie elements. In determining whether a plaintiff's allegations are sufficient to state a plausible claim for relief, courts must use their common sense and judicial experience. See Iqbal, 556 U.S. at 679.
Finally, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Here, the defendant correctly asserts that Anderson's Complaint, even liberally construed, fails to state a claim for which relief can be granted. As discussed above, to state a plausible claim, Anderson must allege facts that, accepted as true, suggest that the defendant intentionally discriminated against her because of her religion. Nothing in the Complaint indicates that. Rather, the Complaint and its attachments show only that the defendant conducted a health care audit of dependents (ECF No. 1-1 at 8), required its employees to submit supporting documentation showing their covered dependents were eligible for coverage in connection with that audit, and terminated Anderson's spousal benefits when she failed to do so. Nothing suggests that any employee of a different religion was treated more favorably or otherwise indicates that her spouse's insurance was cancelled because of intentional discrimination based on Anderson's Islamic faith. Unless Anderson can cure these defects, the Complaint should be dismissed.
The defendant also contends that Anderson's administrative charge and federal Complaint are untimely, and that the Complaint fails to affirmatively show that Anderson exhausted her administrative remedies. However, on the current record, the defendant has failed to demonstrate that it is entitled to a judgment as a matter of law on any of these grounds, and the motion should not be granted on these bases. For example, the limitation period for claims made pursuant to Title VII is 180 days from the alleged unlawful employment practice, but this period is “extended to 300 days when state law proscribes the alleged employment practice and the charge has initially been filed with a state deferral agency.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007); see also 42 U.S.C. § 2000e-5(e)(1). Moreover, plaintiffs have ninety days to file their complaint after the EEOC has given them notice by the right to sue letter. 42 U.S.C. § 2000e-5(f)(1). This circuit has held that delivery of a right-to-sue letter to a plaintiff's home triggers the limitations period even if the plaintiff does not actually receive the letter, Harvey v. City of New Bern Police Dep't, 813 F.2d 652 (4th Cir. 1987), and “[w]hen the actual date of plaintiff's receipt of notice is unknown or in dispute, the court presumes receipt three days after mailing. Dunbar v. Food Lion, 542 F.Supp.2d 448, 450-51 (D.S.C. 2008). Additionally, exhaustion is not jurisdictional, Fort Bend Cnty., Texas v. Davis, 139 S.Ct. 1843, 1850-51 (2019), and “[b]ecause the charge-filing requirement is an affirmative defense (as opposed to a jurisdictional issue), Plaintiff is not required to allege facts sufficient to establish that [she] satisfied this requirement.” Spearman v. City of Annapolis, No. CV JKB-21-1779, 2022 WL 316641, at *5 (D. Md. Feb. 1, 2022).
ORDER AND RECOMMENDATION
It is therefore
ORDERED that Anderson is granted 21 days to file a proposed amended complaint that cures the deficiencies identified herein. If she fails to do so, it is
RECOMMENDED that the Complaint be dismissed.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).