Opinion
Civil No. 1:01 CV 1129
June 7, 2002
MEMORANDUM OPINION
On December 21, 2001, Plaintiff Terence C. Westry ("Plaintiff") filed this action against his employer, Defendant North Carolina A T State University ("Defendant"), alleging employment discrimination based on race, sex and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), and the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 et seq. ("NCEEPA").
This matter is before the court on a motion to dismiss by Defendant pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the court will grant Defendant's motion to dismiss in part and deny Defendant's motion to dismiss in part.
FACTS
Defendant hired Plaintiff, an African American male, as a Computer Laboratory Coordinator II in 1994. In January 1999, Defendant reclassified or upgraded Plaintiff's position to that of Computer Consultant I and increased his salary in July 1999.
Plaintiff avers that Defendant discriminated against him based on his race and sex. Specifically, Plaintiff asserts that between March 1999 and December 2000 Defendant hired three Caucasian males to the position of Computer Consultant I. Plaintiff avers that, although these applicants were less qualified, each applicant earned a higher salary than Plaintiff. Plaintiff further asserts that Defendant subsequently promoted two of these persons, and Plaintiff did not receive a promotion allegedly based on his race and sex. Plaintiff also avers that Defendant denied Plaintiff's "secondary employment request," which "violates North Carolina State Personnel Commission's Policy." (Compl. ¶ 13.)
On December 14, 2000, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") Plaintiff, however, did not file a claim with the North Carolina Office of Administrative Hearings ("OAH"), the state agency established to hear discrimination claims by state employees and certain local employees as defined by N.C. Gen. Stat. § 126-5. Plaintiff avers that Tracy Phillips, an employee of Defendant, informed him that he could either file a complaint with the OAH or file a charge with the EEOC. (Pl.'s Aff. ¶ 3.) Plaintiff also avers that he relied on Defendant's Unlawful Harassment Prevention Plan, which contains information consistent with Phillips' advice. (Pl.'s Aff. ¶ 4.) Plaintiff was not represented by an attorney at the initiation of the EEOC proceedings. During the EEOC proceedings, neither Defendant nor the EEOC informed Plaintiff that he had to commence his action through the OAR. Without ever referring the charge to the OAH, the EEOC issued Plaintiff a right-to-sue letter on or about September 28, 2001.
Plaintiff also asserts that Defendant violated Title VII by reclassifying his position on October 3, 2001, in retaliation for his filing a charge of discrimination with the EEOC. Plaintiff did not file a charge of discrimination with the EEOC concerning his retaliation allegation.
DISCUSSION
A court may dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a motion to dismiss, the court accepts as true all well-pleaded allegations and views the complaint in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). "`The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
Title VII creates a federal cause of action for employment discrimination. "Before a federal court may assume jurisdiction over a claim under Title VII, however, a claimant must exhaust [state and] administrative procedures enumerated in 42 U.S.C. §[§] 2000e-5 (b) [and 2000e-5(c)]." Davis v. North Carolina Dep't of Correction, 48 F.3d 134, 137 (4th Cir. 1995). Defendant alleges that Plaintiff failed to exhaust state and administrative remedies and therefore Plaintiff's Title VII claims should be dismissed.
When alleged discrimination occurs in a state that has enacted a law "prohibiting the unlawful employment practice alleged" and has "establish[ed] or authoriz[ed] a State or local authority to grant or seek relief from such practice," Title VII provides that: "no charge may be filed [with the EEOC] under subsection [(b) (see footnote 1 of 42 U.S.C. § 2000e-5)] of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." 42 U.S.C. § 2000e-5 (c). Thus, Title VII requires that "where state law protects persons against the kind of discrimination alleged, `complainants are required to resort' to `state and local remedies' before they may proceed to the EEOC, and then to federal court, on their claims of discrimination under federal law." Davis, 48 F.3d at 137 (quoting New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 62 (1980)).
North Carolina General Statute § 126-36 et seq. provides Plaintiff, a State of North Carolina employee, remedies for on-the-job discrimination. Section 126-36 allows a State employee who believes he is a victim of discrimination on the basis of age, sex, race, or national origin to pursue his case through the Office of Administrative Hearings ("OAH"). Under Section 126-37, the OAH is empowered to "reinstate any employee to the position from which the employee has been removed, to order . . . the promotion . . . or salary adjustment" of any State employee who was subject to unlawful discrimination.
It is undisputed that neither Plaintiff nor the EEOC filed a claim of discrimination with the OAH. However, "principles of equitable tolling may, in the proper circumstances, apply to excuse a plaintiff's failure to comply with the strict requirements of a statute of limitations." Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000) (citing C.M. English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987)). Two independent reasons support the tolling of the statute of limitations to file a charge of discrimination with the OAH.
In Zipes v. Trans World Airlines, Inc., the Supreme Court held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. 385, 393 (1982); see also Davis v. North Carolina Dept. of Correction, 48 F.3d 134, 140 (4th Cir. 1995).
First, when a charge is brought to the EEOC in a state where a deferral agency exists, the EEOC is required to defer all charges of discrimination filed with it to appropriate state or local agencies. 29 C.F.R. § 1601.13 (a)(4). Where the EEOC clearly violates its own regulations and the plaintiff is not at fault, the court may rely on its equity power to toll the state filing requirement. Cornett v. Avco Fin. Servs., One, Inc., 792 F.2d 447, 450 (4th Cir. 1986) (stating that a trial court has discretion to toll a state filing requirement due to agency fault); Citicorp Person-to-Person Fin. Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981) (stating that "[u]nder ordinary circumstances, a clear violation of [the state deferral regulation] by EEOC might warrant the finding of a tolling effect"). In the present case, Plaintiff was not represented by an attorney at the initiation of the EEOC proceedings, and Plaintiff was not responsible for the EEOC's failure to refer his complaint to the OAH.
Second, a court may toll the statute of limitations on the basis of equitable estoppel if "the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." C.M. English, 828 F.2d at 1049. In the present case, an employee of Defendant allegedly told Plaintiff that he could file a claim with the EEOC, which is also consistent with information provided in Defendant's Unlawful Harassment Prevention Plan.
Because the EEOC failed to refer Plaintiff's charge to the OAH in violation of its own regulations and Defendant's conduct unmistakably caused Plaintiff to file a claim directly with the EEOC and not the OAH, the court will toll the state filing requirement while holding the federal action in abeyance. The court will grant Plaintiff ten days to commence a proceeding with the OAH.
Defendant argues that because Plaintiff did not file a complaint with the OAH, the 180-day limitations period applies to Plaintiff's Title VII claims. Title VII requires a complainant to file a charge of discrimination with the EEOC:
within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge . . . except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency . . . such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law. . . .42 U.S.C. § 2000e-5 (e)(1) (emphasis added). Because neither Plaintiff nor the EEOC instituted proceedings with the OAH, the 180-day limitations period for filing discrimination claims with the EEOC applies to Plaintiff's Title VII claims. See, Meyer v. Bell Atl. Network Servs., Inc., 57 F. Supp.2d 303 (E.D. Va. 1999) (holding that where the plaintiff lived in a deferral state and neither the plaintiff nor the EEOC filed a complaint with the state agency, the 180-day limitations period for filing with the EEOC applied).
Defendant argues that Plaintiff's claims arising before the 180-day limitations period are time-barred, while Plaintiff contends that Defendant is continually violating his rights and the "discovery rule" is applicable. The parties rely on matters outside the pleadings, and therefore these arguments are not ripe for decision.
Defendant also contends that Plaintiff's retaliation claim, based on the reclassification of Plaintiff's position on October 3, 2001, is barred because Plaintiff failed to exhaust his administrative remedies. It is undisputed that Plaintiff neither filed a separate charge of discrimination with the EEOC concerning his retaliation claim nor alleged retaliation in his charge of discrimination filed with the EEOC. Where an employer allegedly retaliates against an employee during the pendency of a Title VII claim before the EEOC, the complainant need not file a separate charge of discrimination with the EEOC, but may raise the retaliation claim for the first time in federal court. Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992). On September 28, 2001, the EEOC dismissed Plaintiff's charge of discrimination, which did not include an allegation of retaliation, and issued Plaintiff a right-to-sue letter. Plaintiff alleges that Defendant reclassified his position on or about October 3, 2001, in retaliation for filing a charge of discrimination with the EEOC. Defendant's alleged retaliation did not arise during the pendency of Plaintiff's EEOC charge, and therefore the court will dismiss Plaintiff's retaliation claim without prejudice for failure to exhaust his administrative remedies.
Defendant also moved to dismiss counts two and three of Plaintiff's complaint, in which Plaintiff raised claims under Section 1981 and NCEEPA. Plaintiff does not contest this motion, and the court will dismiss counts two and three of Plaintiff's complaint with prejudice.
CONCLUSION
For the reasons set forth in this opinion, the court will grant Defendant's motion to dismiss in part and deny Defendant's motion to dismiss in part.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.