Opinion
CIVIL NO. 1:01CV1129
September 9, 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, gender, 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, North Carolina General Statute § 143-422.1 et seq. ("NCEEPA"). On March 1, 2002, Defendant moved to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
On June 10, 2002, this court granted Defendant's motion to dismiss in part and denied Defendant's motion to dismiss in part. The court dismissed Plaintiff's Title VII retaliation claim, Plaintiff's NCEEPA claim, and Plaintiff's Section 1981 claim. On the other hand, the court denied Defendant's motion to dismiss with respect to Plaintiff's race and gender discrimination claims under Title VII. Because the Equal Employment Opportunity Commission ("EEOC") failed to refer Plaintiff's charge to the North Carolina Office of Administrative Hearings ("OAH") in violation of its own regulations and Defendant's conduct unmistakably caused Plaintiff to file a claim directly with the EEOC, the court tolled the state filing requirement while holding the federal action in abeyance. The court granted Plaintiff ten (10) days to commence a proceeding with the OAH. On June 18, 2002, Plaintiff filed a charge of discrimination with the OAH.
This matter is before the court on Defendant's motion to reconsider the court's June 10, 2002, order or, in the alternative, a motion to grant permission for an interlocutory appeal and stay pursuant to 28 U.S.C. § 1292(b). For the following reasons, the court will deny Defendant's motion to reconsider or, in the alternative, permission for an interlocutory appeal.
Defendant requests that the court reconsider its June 10, 2002, order on two grounds. First, Defendant contends that Title VII's tolling principles are inapplicable to the state's jurisdictional requirements for filing a claim under Chapter 126 of the North Carolina General Statutes. Defendant further contends that this court's imposition of a tolling requirement is inconsistent with principles of sovereign immunity. Second, under Davis v. North Carolina Dep't of Corrections, 48 F.3d 134 (4th Cir. 1995), Defendant argues that this court lacked jurisdiction to toll the state filing requirement. Despite Defendant's arguments otherwise, the court will deny Defendant's motion.
It is undisputed that North Carolina is a deferral state. Therefore, because North Carolina law prohibits discrimination based on race and gender under North Carolina General Statute § 126-16 and an appropriate state agency, OAH, exists, Title VII provides that "no charge may be filed [with the EEOC] . . . 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. § 2000e5-c. Thus, Title VII requires exhaustion of state and federal administrative remedies before a plaintiff can seek judicial relief.
The EEOC may enter into worksharing agreements with state agencies, such as OAH. See 42 U.S.C. § 2000e-4(g)(1) (The EEOC "shall have power to cooperate with and, with their consent, utilize . . . State . . . agencies.") and 2000e-8(b) (The EEOC "may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Commission shall . . . relieve any person or class of persons in such State or locality from requirements imposed under this section.";). The EEOC has entered into such an agreement with the OAR, the North Carolina deferral agency.
The worksharing agreement provides a streamlined process for filing claims of discrimination with either the EEOC or the OAH. North Carolina General Statute § 7A-759 states that:
As provided in the contract between the Office of Administrative Hearings and the Equal Employment Commission, a deferred charge for purposes of 42 U.S.C. § 2000e-5(c) or (d) is a charge that is filed by a State or local government employee covered under Chapter 126 of the General Statutes and alleges an unlawful employment practice prohibited under that Chapter or any other State law. A deferred charge may be filed with either agency. The date a deferred charge is filed with either agency is considered to be a commencement of proceedings under State law for purposes of 42 U.S.C. § 2000e-5(c) or (d)
N.C. Gen. Stat. § 7A-759 (b1).
In the present case, on December 14, 2000, Plaintiff filed his charge of discrimination with the EEOC, but neither the EEOC nor Plaintiff filed a claim with the OAR at this time. Although the EEOC failed to refer the charge to the OAR as required by 29 C.F.R. § 1601.13(a)(4), the action was still "commenced" under state law when Plaintiff filed with the EEOC. See N.C. Gen. Stat. § 7A-759 ("The date a deferred charge is filed with either [the EEOC or the OAH] is considered to be a commencement of proceedings under State law for purposes of 42 U.S.C. § 2000e-5(c) or (d)."); see also Puryear v. County of Roanoke, 214 F.3d 514, 520 n. 6 (4th Cir. 2000) (stating that the worksharing agreement between the EEOC and the Virginia deferral agency ("VCHR") "provides that the EEOC's receipt of charges on behalf of the VCHR automatically initiates the proceedings of both the EEOC and the VCHR for the purposes of Section 706(c) and (e)(1) of Title VII"). In fact, the EEOC charge of discrimination form signed by Plaintiff clearly states, "I want this charge filed with both the EEOC and the State or local Agency, if any."
In Puryear v. County of Roanoke, 214 F.3d 514 (4th Cir. 2000), the Fourth Circuit distinguished Davis v. North Carolina Dep't of Corrections, 48 F.3d 134 (4th Cir. 1995), which requires a plaintiff in a deferral state to invoke state law remedies before the state deferral agency in order to commence proceedings under state law. In Puryear, the plaintiff alleged violations of Title VII and the Age Discrimination in Employment Act in her EEOC charge, but raised no state law claims.Puryear, 214 F.3d at 516. Unlike Davis, however, neither the plaintiff nor the Virginia deferral agency "disavowed state law claims." Id. at 519. In the present case, Plaintiff alleged only Title VII violations in his EEOC charge, but never disavowed state law claims. Therefore, Plaintiff's action was commenced under state law when Plaintiff filed with the EEOC.
Plaintiff's claims are "deferred charges" as defined by North Carolina General Statute § 7A-759. A "deferred charge" is defined as a charge that is filed by a State or local government employee covered under Chapter 126 of the General Statutes and alleges an unlawful employment practice prohibited under that Chapter or any other State law." N.C. Gen. Stat. § 7A-759(b1). First, Plaintiff is employed by North Carolina A T State University and is therefore a state employee as defined by North Carolina General Statute § 126-5. Second, Plaintiff alleged claims under Title VII, Section 1981, and North Carolina General Statute § 143-422.1 et seq. Chapter 126 of the North Carolina General Statutes prohibits the unlawful employment practices of retaliation and race and gender discrimination alleged by Plaintiff. Therefore, Plaintiff alleged "deferred charges" as defined by North Carolina General Statute § 7A-759, and Plaintiff's action was commenced under state law when Plaintiff filed with the EEOC.
Because Plaintiff's action was commenced under state law when Plaintiff filed with the EEOC, Plaintiff did not need to file a discrimination claim with the OAR and no tolling was necessary. However, in directing Plaintiff to do so, the court has allowed the State to receive formal notice of the charge and an opportunity to act upon it. Regardless, sixty (60) days have elapsed since Plaintiff filed a charge of discrimination with the OAH, and Plaintiff may proceed with his Title VII claim filed in this court.
CONCLUSION
For the reasons set forth in this opinion, the court will deny Defendant's motion to reconsider or, in the alternative, permission for an interlocutory appeal.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.
ORDER
For the reasons set forth in the memorandum opinion filed contemporaneously herewith,
IT IS ORDERED that Defendant's motion to reconsider or, in the alternative, permission for an interlocutory appeal [Doc. #11] is DENIED.