Opinion
C. A. 9:23-cv-05045-RMG-MHC
03-05-2024
Jose A. Marquez, III, Plaintiff, v. Winn Management Group, LLC, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE.
Jose A. Marquez, III (“Plaintiff”), brings this employment discrimination action against Winn Management Group, LLC (“Defendant”). ECF No. 1.
Presently before the Court for disposition is Defendant's Motion to Dismiss the Complaint for failure to state a claim, which Defendant filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 11. Plaintiff filed a Response in Opposition to the Motion, ECF No. 13, and Defendant filed a Reply, ECF No. 16. The Motion is ripe for review.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2) (D.S.C). As Defendant's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned finds that the Motion to Dismiss should be denied.
THE ALLEGATIONS IN PLAINTIFF'S COMPLAINT
Accepting the truth of the allegations in Plaintiff's Amended Complaint and viewing all inferences in the light most favorable to Plaintiff, see E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011), the facts, for purposes of ruling on the Motion to Dismiss, are as follows.
On or about February 10, 2020, Plaintiff, a Hispanic/African American, began working for Defendant as a general maintenance tech. ECF No. 1 at ¶ 11.
Beginning in or about June 2021, Plaintiff noticed that Caucasian applicants with less education, training, and time on the job were approved for management positions while anyone of color was immediately denied. Plaintiff reported the matter several times, but nothing was done. Id. at ¶ 12.
On or about June 19, 2021, Plaintiff applied for an open position of Field Supervisor, as he was already completing the duties of the field supervisor without the title or pay. Id. at ¶ 13. Plaintiff was notified that Rebecca Young, a Caucasian employee who had substantially less education, experience, and time on the job than Plaintiff, got the promotion to field supervisor. Id. at ¶ 14. Young resigned her position days later. Plaintiff again inquired into the position but was again denied as Defendant rehired Young. Id. at ¶ 15.
Defendant tests its employees in certification tests or aptitude tests on a regular basis, in order to determine pay raises and promotions. Id. at ¶ 16. Defendant declined to offer or provide the certification tests or aptitude tests to Plaintiff, but Defendant regularly tested Plaintiff's Caucasian coworkers or simply provided pay raises or promotions to Caucasian workers without requiring tests. Id. at ¶ 17. Plaintiff was told he was not eligible for a pay raise without pursing the certification or aptitude tests even though they provided pay raises or promotions to Caucasian employees that did not take the tests or failed them. Id. at ¶ 18. When Plaintiff asked why he was overlooked, he was told that he was accused of being “aggressive” even though he had never been written up or received any other disciplinary actions. Id. at ¶ 19. Plaintiff was told that he could and would get tested for certifications, but he never did even though other Caucasian employees continued to be tested for certifications. Id. Plaintiff believes he was denied a promotion due to his race and that any stated reasons for promoting less-qualified Caucasian employees over Plaintiff are merely pretextual in nature. Id. at ¶ 20.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to evaluate the complaint in its entirety, accept the factual allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. Kolon Indus., Inc., 637 F.3d at 440, 448. Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks omitted).
DISCUSSION
Plaintiff asserts one cause of action in his Complaint: a claim for “Racial Discrimination/ Failure to Promote” in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). ECF No. 1. Defendant seeks dismissal of the Complaint, arguing that Plaintiff failed to exhaust his administrative remedies by failing to timely file a charge of discrimination within 300 days of the conduct he challenges. ECF No. 11.
Defendant also argues in its Motion that Plaintiff's claim is barred by the applicable statute of limitations because he failed “to timely initiate this action within 90 days of his acknowledged receipt of a Right to Sue Notice from the EEOC.” ECF No. 11 at 2. However, in its Reply, Defendant stated that it “is now abandoning that argument.” ECF No. 16 at 1. Accordingly, the undersigned does not consider that argument in the Report and Recommendation.
A. Exhaustion of Remedies Under Title VII
Title VII prohibits an “employer [from] discriminat[ing] 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).
Before filing suit under Title VII, a plaintiff must exhaust his administrative remedies by bringing a charge with the EEOC or, in a “deferral” jurisdiction such as South Carolina, with an appropriate state or local agency, within a specified time “after the alleged unlawful employment practice occurred.” 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); see Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999) (dismissing plaintiff's Title VII claim for failure to exhaust administrative remedies). Title VII establishes two possible limitation periods for filing a discrimination charge: “the basic limitations period is 180 days after the alleged unlawful employment practice but can be extended to 300 days in a deferral state if state law proscribes the alleged employment practice and the charge is first filed with a state deferral agency.” Gerald v. Olsten, No. 4:20-CV-2555-CMC-KDW, 2021 WL 1394669, at *2 (D.S.C. Feb. 9, 2021) (citation and internal quotation marks omitted), report and recommendation adopted, No. 4:20-CV-2555-CMC, 2021 WL 960509 (D.S.C. Mar. 15, 2021).
Courts have interpreted this exhaustion requirement to mean that each discrete incident of discriminatory treatment must be administratively exhausted. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.”); King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (stating that subsequent civil suit “may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge”) (internal quotation marks omitted); Bishop v. Behr Heat Transfer Sys., No. 2:11-CV-3535-SB-BHH, 2012 WL 1752701, at *4 (D.S.C. Feb. 16, 2012) (“A plaintiff's failure to file a charge within the applicable limitations period bars a later lawsuit in federal court.”), report and recommendation adopted, No. CIV.A. 2:11-3535-SB, 2012 WL 1752047 (D.S.C. May 16, 2012).
The Fourth Circuit has made it clear that only those discrimination claims stated in an administrative charge, those reasonably related to the original charge, and those developed by reasonable investigation of the original charge, may be maintained in a subsequent lawsuit. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). Courts have routinely enforced the exhaustion requirement on the rationale that “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge as surely as would a failure to file a timely EEOC charge.” O'Rourke v. Cont'l Cas. Co., 983 F.2d 94, 97 (7th Cir. 1993) (citation and internal quotation marks omitted).
B. The Parties' Arguments
In its Motion, Defendant argues that Plaintiff failed to exhaust his administrative remedies because he failed to file his Charge of Discrimination within 300 days of the alleged discriminatory conduct. ECF No. 11-1 at 5. Defendant argues that while Plaintiff did not specify in the Complaint when the alleged denial of a promotion occurred, his Charge of Discrimination identifies this date as July 31, 2021. Id. Defendant attaches to its Motion a Charge of Discrimination that was signed by Plaintiff and notarized on July 27, 2022, and that named “Winn Management Group, LLC” of Boston, Massachusetts, as the employer. Id.; ECF No. 11-3. According to Defendant, “Plaintiff is barred from proceeding on any claims under Title VII involving conduct that occurred more than 300 days prior to July 27, 2022-that is, before September 30, 2021.” ECF No. 11-1 at 8. Because the alleged denial of a promotion occurred on July 31, 2021, which is well before September 30, 2021, Defendant contends that Plaintiff's claim is untimely and should be dismissed. Id. at 8-9.
In his Response, Plaintiff argues that he timely filed his initial charge of discrimination on March 10, 2022, which was within 300 days of the alleged discriminatory conduct. ECF No. 13 at 4. In support of his argument, Plaintiff attaches a Charge of Discrimination that was signed by Plaintiff and notarized on March 8, 2022, and that named both “Winn Management Group LLC” of Beaufort, South Carolina, and “Winn Management Group, LLC” of Boston, Massachusetts, as the employer. ECF No. 13-1. Plaintiff also attaches a copy of an email chain between the EEOC and paralegals for Plaintiff's counsel. ECF No. 13-2. The first email in the chain was sent on March 10, 2022, from a paralegal to the EEOC and stated, “I have attached the charge forms for our client, Mr. Jose Marquez. The HR email address for Winn Management Group, LLC is [redacted]. Thank you.” Id. at 4. On July 19, 2022, a different paralegal followed up with the EEOC on that March 10, 2022 email and asked for a copy of the clocked copy of the charge of discrimination. Id. at 3. An employee from the EEOC responded on July 22, 2022, as follows: “This one should have been sent back to her asking her to separate the respondents. As the EEOC no longer accepts charges with multiple respondents listed. Please separate them and send it back to me[.] I will process these with the date originally received MARCH 10, 2022.” Id. at 1-2. On August 2, 2022, the paralegal sent an email with two separate charges. Id. at 1. Plaintiff also attaches two charges signed by Plaintiff and notarized on July 27, 2022: one naming “Winn Management Group LLC” of Beaufort, South Carolina, ECF No. 13-3, and one naming “Winn Management Group, LLC” of Boston, Massachusetts, ECF No. 13-4. The two July 2022 charges contain the same discrimination allegations as the March 2022 charge. Compare ECF No. 13-1 to ECF Nos. 11-3, 13-3, 13-4. Based on the foregoing, Plaintiff asserts that he provided the Charge of Discrimination to the EEOC in a timely manner. ECF No. 13 at 4.
In its Reply, Defendant argues that it is “plain from the face of the pleadings and materials incorporated therein by reference that Plaintiff did not timely file an administrative charge with the EEOC within three hundred days of the occurrence of any allegedly unlawful employment practice of which he complains.” ECF No. 16 at 1-2. According to Defendant, “Plaintiff provides no evidence that the court can consider on a motion to dismiss or that could alter the conclusion that his Complaint must be dismissed in its entirety, even if the Court could consider the materials.” ECF No. 16 at 2. Defendant contends that none of the exhibits produced by Plaintiff “substantiate in any way that the EEOC had received any charge or document before July 27, 2022,” but that even “if Plaintiff could prove what he claims about the EEOC's receipt and designation of the documents, this Court simply cannot consider these arguments on a motion to dismiss if they or the facts upon which they are based were not raised in the Complaint.” Id. at 4. According to Defendant, the Complaint contains:
(1) no allegation that concerns the circumstances surrounding Plaintiff's attempts to file the Charge; (2) no reference to any communications between Plaintiff, his attorneys or the EEOC; and (3) no information whatsoever that could possibly permit this Court to assess whether the Charge should be deemed to have been filed on a date other than July 27, 2022, when it has been marked as received by the EEOC.Id. at 5. Defendant argues that Plaintiff should not be permitted to amend the Complaint to add such allegations and that the Complaint should be dismissed with prejudice. Id. at 6-9.
C. Analysis
Upon review of the Complaint and the parties' arguments, the undersigned concludes that the Motion to Dismiss should be denied.
A court's evaluation of a motion to dismiss generally is limited to a review of the allegations in the complaint itself and any documents attached to or incorporated into the complaint. Goines v. Valley Community Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). “Considering extrinsic documents during the pleading stage improperly converts a motion to dismiss into a motion for summary judgment,” and this conversion “‘is not appropriate when the parties have not had an opportunity to conduct reasonable discovery.'” Defs. of Wildlife v. Boyles, 608 F.Supp.3d 336, 344 (D.S.C. 2022) (quoting Zak v. Chelsea Therapeutics Intern., Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015)); see Kolon Indus., Inc., 637 F.3d at 448; Fed.R.Civ.P. 12(b), 12(d), and 56. However, the Fourth Circuit has recognized an exception to this extrinsic document rule. Defs. of Wildlife, 608 F.Supp.3d at 344. Courts “may consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity.” Goines, 822 F.3d at 166.
“A document is integral to a complaint if the claims turn on or are otherwise based on statements contained in the document.” Defs. of Wildlife, 608 F.Supp.3d at 344 (citing Goines, 822 F.3d at 166). “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.” Id. (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). In deciding whether to treat a document as integral to a complaint, the court should consider whether the plaintiff disputes that the document proffered by the moving defendant is integral to the complaint. Id.; see Goines, 822 F.3d 159 at 166 (“[B]ecause [plaintiff] does not argue otherwise, we will assume without deciding that the [extrinsic document] was integral to the complaint.”).
The Complaint alleges that “[a]ll conditions precedent to jurisdiction under §706 of Title VII, 42 U.S.C. §2000e-5 have occurred or been complied with,” including that a “charge of employment discrimination on basis of racial discrimination was filed by the Plaintiff with the U.S. Equal Employment Opportunity Commission (‘EEOC').” ECF No. 1 at ¶¶ 2, 2a. Defendant points to this allegation to argue that the Charge of Discrimination is integral to and incorporated into the Complaint. ECF No. 16 at 2-3. However, there are at least two Charges of Discrimination against Defendant signed by Plaintiff, one dated March 2022 and one dated July 2022, and Plaintiff's Response to Defendant's Motion appears to dispute whether the Charge of Discrimination attached to Defendant's Motion was integral to the Complaint. See ECF No. 13.
The Fourth Circuit has explained that Title VII's charge-filing instruction is not jurisdictional, such that “a defendant must raise this issue as an affirmative defense.” Bush v. Frederick Cnty. Pub. Sch., No. 23-1127, 2024 WL 639255, at *2 (4th Cir. Feb. 15, 2024) (citing Fort Bend Cnty. v. Davis, 139 S.Ct. 1843, 1846 (2019)). Moreover, “a Rule 12(b)(6) motion to dismiss, which addresses the sufficiency of the complaint, generally does not enable the court to determine whether the exhaustion requirement has been satisfied or whether it has been waived or should be excused, because exhaustion is treated as an affirmative defense.” L.N.P. v. Kijakazi, 64 F.4th 577, 585-86 (4th Cir. 2023). When, however, “facts sufficient to rule on an affirmative defense [such as exhaustion] are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). “But this principle applies only in the relatively rare circumstances when all facts necessary to the affirmative defense clearly appear on the face of the complaint.” L.N.P., 64 F.4th at 586 (citation and internal quotation marks omitted). “And even to succeed in these rare circumstances, the defendant must show that the plaintiff's potential response to the affirmative defense was foreclosed by the allegations in the complaint.” Id. (citation and internal quotation marks omitted).
As Defendant highlights in its Reply, Plaintiff did not include in his Complaint details as to when he filed his EEOC charge, nor did he attach the charge to the Complaint. Rather, Plaintiff merely alleges that “[a]ll conditions precedent to jurisdiction under §706 of Title VII, 42 U.S.C. §2000e-5 have occurred or been complied with,” including that a “charge of employment discrimination on basis of racial discrimination was filed by the Plaintiff with the U.S. Equal Employment Opportunity Commission (“EEOC”).” ECF No. 1 at ¶¶ 2, 2a. It is not clear, based on these allegations, whether Plaintiff is referring to a charge of discrimination filed in March 2022 or July 2022 or some other time. Thus, Defendant has not shown that Plaintiff's “potential response to the affirmative defense was foreclosed by the allegations in the complaint.” L.N.P., 64 F.4th at 586 (emphasis added); see also Bush, 2024 WL 639255, at *2 (“Bush did not include details of when she filed her EEOC charge in her complaint, nor did she attach the charge to the complaint, so Defendant's attempt to raise it in a Rule 12(b)(6) motion would have been premature.”).
It certainly may be that, after discovery, Defendant will be able to show that Plaintiff's discrimination claim falls outside of the 300-day limitation period, such that the claim may ultimately be dismissed for failure to exhaust. However, because it is not clear which, if any, version of the Charge of Discrimination was integral to and incorporated into the Complaint, and because not “all facts necessary to the affirmative defense clearly appear on the face of the complaint,” L.N.P., 64 F.4th at 586, the undersigned finds that Defendant's exhaustion defense cannot be resolved at this time. See Torres v. Rector & Bd. of Visitors of Univ. of Virginia, C/A No. 3:21-CV-00001, 2022 WL 848063, at *2-3 (W.D. Va. Mar. 21, 2022) (collecting cases holding that a plaintiff is not required to “attach the EEOC charge or right to sue letter to the complaint, or to otherwise describe the contents of the charge” and noting where a plaintiff has plausibly alleged exhaustion, “[w]hether plaintiff did or did not exhaust her administrative remedies is an issue of fact that cannot be addressed when ruling on this Rule 12(b)(6) motion”); see also Moumouni v. Chester Cnty. Sch. Dist., No. CV 0:22-1697-MGL-SVH, 2022 WL 16823019, at *3 (D.S.C. Sept. 19, 2022) (“The reasonable inference from documentation submitted to the court by both parties is that Plaintiff filed charges regarding sex-based employment discrimination and retaliation with the EEOC-the same claims that are asserted in her operative complaint here, and received a [Right to Sue letter] prior to filing her complaint with this court. The court is unaware of a requirement to do more in this context to survive Defendant's motion to dismiss.”), report and recommendation adopted, No. CV 0:22-1697-MGL, 2022 WL 16797551 (D.S.C. Nov. 8, 2022). Accordingly, the undersigned recommends that Defendant's Motion to Dismiss be denied.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 11) be DENIED.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
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
Post Office Box 835
Charleston, South Carolina 29402
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).