Opinion
C. A. 3:22-1665-MGL-PJG
01-03-2023
Willie Edward Nichols, Plaintiff, v. Securitas Security System, Defendant.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Willie Edward Nichols, a self-represented litigant, filed this employment action raising claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq.; and the Equal Pay Act of 1963, 29 U.S.C. § 206(d), as well as various state law claims pursuant to the South Carolina Human Affairs Law, SC Code Ann. §§ 1-13-10, et seq. 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 partial motion to dismiss. (ECF No. 20.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Nichols of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendant's motion. (ECF No. 24.) Nichols filed a response in opposition to the motion (ECF No. 31), and the defendant replied (ECF No. 33). Having reviewed the record presented and the applicable law, the court finds the defendant's partial motion to dismiss should be granted and Nichols's claims pursuant to the ADA as well as his retaliation claims should be dismissed for failure to exhaust.
Although the defendant argues that Nichols's response was untimely filed, the docket shows that Nichols's response was filed prior to the deadline established by the court's Roseboro Order. (See ECF No. 24.)
Nichols also filed multiple sur-replies and supplements to his response. (ECF Nos. 40, 59, & 63.) The court observes that the Local Rules make no provision for sur-reply memoranda and Nichols did not seek leave of the court to file a sur-reply or additional briefing. Accordingly, these filings were not considered. However, consideration of these filings would not have changed the court's recommendation. In light of the court's recommendation, the defendant's motions to strike Nichols's filings are terminated as moot. (ECF Nos. 48, 60.)
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendant's motion. Nichols, a sixty-nine-year-old, disabled black man, brings this action claiming that his long-time employer discriminated against him, demoted him, and did not promote him in favor of younger, non-disabled, female employees, some of whom were white. Nichols also claims his disability has not been accommodated. (Compl., ECF No. 1 at 5-6.) Nichols attaches as exhibits to his Complaint a charge of discrimination filed with the South Carolina Human Affairs Commission (“SCHAC”) and the Equal Employment Opportunity Commission (“EEOC”), naming Securitas Security Services USA as the employer that discriminated against him. (ECF No. 1-1 at 65-66.) Notably, the boxes for race, sex, and age are marked with a typewritten “x.” Additionally, Nichols handwrote a slash mark in the boxes for retaliation and disability on both forms and wrote the word “add” below those boxes. (Id.) The defendant argues-and Nichols concedes-that the charges of discrimination forms filed as exhibits by Nichols were edited versions, and that the handwriting on the forms was added after the forms were filed with SCHAC and the EEOC because Nichols was attempting to amend his charge to add claims for retaliation and disability when he filed his federal lawsuit. Nichols's ADA and retaliation claims were thus never raised before SCHAC or the EEOC.
Although Nichols identifies the defendant in his Complaint as “Securitas Security System,” the defendant informs the court that its proper identification is “Securitas Security Services USA, Inc.” The Clerk of Court is directed to correct the caption accordingly.
DISCUSSION
A. Rule 12(b)(6) Standard
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 Cnty. 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)).
Further, 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).
B. The Defendant's Motion
The defendant argues that Nichols failed to timely exhaust his administrative remedies with regard to his ADA claims and his claims of retaliation.
Before filing suit under Title VII, the ADEA, or the ADA, a plaintiff must exhaust his administrative remedies by bringing a charge with the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843 (2019) (Title VII); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (Title VII); Brandford v. Shannon-Baum Signs, Inc., 519 Fed.Appx. 817, 819 (4th Cir. 2013) (ADEA); see also Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (ADA). In South Carolina, the charge must be filed within 300 days after an “alleged unlawful employment practice” occurred. 42 U.S.C. § 2000e-5(c), (e) (Title VII); 29 U.S.C. § 626(d)(1) (ADEA); 42 U.S.C. § 12117 (ADA). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge' ”) (quoting Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith, 202 F.3d at 247 (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”). Only those claims stated in the initial administrative charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred).
Moreover, “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.” Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002) (internal quotation marks and citations omitted). Therefore, a discrimination suit “is limited to discrimination charged in the report to the EEOC or to discrimination actually found by the EEOC upon investigation of the original charge.” Stehle v. Gen. Mills Rest., Inc., 875 F.Supp. 320, 323 (D.S.C. 1994) (Title VII). When a discrimination claim “exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof,” it is procedurally barred. Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995).
“At the same time, however, the exhaustion requirement should not become a tripwire for hapless plaintiffs. While it is important to stop clever parties from circumventing statutory commands, we may not erect insurmountable barriers to litigation out of overly technical concerns.” Sydnor, 681 F.3d at 594. The United States Court of Appeals for the Fourth Circuit has discussed the parameters for when different unlawful employment practices are considered “reasonably related” to those raised in an administrative charge. For example, “where both the administrative complaint and formal litigation concerned ‘discriminat[ion] in promotions' but involved different aspects of the ‘promotional system,' ” the charges are reasonably related and may be advanced in a subsequent civil suit. Id. (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). Similarly, courts have permitted a claim raised in litigation that was not specifically described in the administrative charge to go forward “where both the EEOC charge and the [federal] complaint included claims of retaliation by the same actor, but involved different retaliatory conduct.” Id. (citing Smith, 202 F.3d at 248). On the other hand, when the claim raised in the district court litigation involves a different form of unlawful employment practice than the one described in the administrative charge, courts have found the claim not to be administratively exhausted. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009) (finding that claims of age, sex, and race discrimination were not exhausted where a charge alleged only retaliation), abrogated on other grounds by Fort Bend Cnty., Tex., 139 S.Ct. 1843; Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33 (4th Cir. 2002) (finding that claims of sex and color discrimination were not exhausted where a charge alleged only race discrimination); Riley v. Tech. & Mgmt. Servs. Corp., Inc., 872 F.Supp. 1454, 1459-60 (D. Md. 1995) (finding that claims of sexual harassment and retaliation were not exhausted where a charge alleged only sex discrimination).
Here, Nichols checked the boxes for race, sex, and age on his EEOC and SCHAC charge of discrimination forms. (Def.'s Mot. Summ. J. Ex. A, ECF No. 23 at 5-6.) On the SCHAC form, Nichols claims that he was “paid a lower wage than [] younger and/or white coworkers” in similar jobs, and was denied promotions, salary increases, and better assignments and shifts than younger, and/or white employees. (Id. at 6.) Nichols specifically states that he has “been discriminated against because of my race (black), my sex (male), and my age.” (Id.) On both his SCHAC and EEOC forms, Nichols alleges employment discrimination under Title VII and the ADEA. (Id. at 5-6.) Neither of the forms mentions disability or the ADA or any form of retaliation. (Id.)
In his response in opposition to the defendant's motion, Nichols argues that he spoke with the SCHAC intake counselor at the time he filed his charge of discrimination and questioned why the disability box was not checked. (Pl.'s Resp. Opp'n, ECF No. 31 at 1.) Nichols was informed by the intake counselor that his disability claim was untimely, as more than 300 days had passed since the alleged incident occurred, but that he could amend his charge. (Id. at 1-2.) Nichols provides no argument or evidence that he attempted to formally amend his charge either through SCHAC or the EEOC, but instead provides edited versions of the charges with the claims he wishes to add, as discussed above. Nichols does not put forward any response to the defendant's arguments regarding the exhaustion of his claims for retaliation. Accordingly, Nichols appears to concede that his retaliation claims should be dismissed.
Nichols provides supplemental attachments to his Complaint showing that he filed new charges of discrimination with SCHAC and the EEOC in October 2022 against Teleperformance, a client of Securitas, raising discrimination claims pursuant to age, disability, and religion, as well as retaliation claims. (See ECF No. 65-1 at 8, 10.) However, these claims have not yet been investigated and resolved by the EEOC and are not part of Nichols's current lawsuit.
Nor does Nichols ever provide any specifics in the record regarding any purported claims of retaliation other than the handwritten notation on his edited SCHAC and EEOC forms.
Nichols's conversation with the intake counselor is insufficient to satisfy the exhaustion requirement, which is limited to the claims raised in the charge of discrimination. See Smith, 202 F.3d at 247. Moreover, because Nichols did not amend his charge, the defendant did not have proper notice of these claims. See, e.g., Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999) (providing that the plaintiff failed to exhaust her administrative remedies for a retaliation claim based on race where the plaintiff's only mention of such a claim before the EEOC was a letter sent by the plaintiff two months after she filed the charge of discrimination indicating she wanted to add a race discrimination claim). On this record, the court finds that Nichols's ADA and retaliation claims are not “reasonably related” to those raised in his filed administrative charge as they involve a different form of unlawful employment practice than the one described in the administrative charge. See Sydnor, 681 F.3d at 594; see, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d at 300-01; Bryant, 288 F.3d at 132-33. Accordingly, Nichols failed to exhaust his administrative remedies with regard to his ADA and retaliation claims.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendant's partial motion to dismiss be granted. (ECF No. 20.)
In light of the court's recommendation, Nichols's motion to not dismiss his claims is terminated as moot (ECF No 40)
The parties' attention is directed to the important notice on the next page.
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).