Chrisp v. Univ. of N.C.

MALIA SOMONA CHRISP, Plaintiff, v. THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendant.

1:20CV724

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

January 14, 2021

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This case, before the court for the second time, arises out of the allegedly unlawful treatment of pro se Plaintiff Malia Somona Chrisp by her former employer, the University of North Carolina at Chapel Hill ("UNC"). Before the court is UNC's motion to dismiss. (Doc. 9.) For the reasons set forth below, the motion will be granted and the complaint dismissed.

I. BACKGROUND

The allegations in the complaint, taken in the light most favorable to Chrisp as the non-moving party, show the following:¹

Chrisp is a resident of Alamance County, North Carolina, and was employed by UNC as an accounting technician from September 2012 until some point in 2018. (Doc. 1 ¶¶ 2, 15; Doc. 12 at 14.) Chrisp describes herself as "a black female approximately 51-52 years of age" during the relevant time. (Doc. 1 ¶ 15.) In April 2016, she asked her manager about a new job opening posted in the office. (Doc. 1-1 at 1.) Her manager, Jean Estrada, told her she did not qualify for the position even though in the past the manager had sent her other job postings for positions in other UNC departments and encouraged her to apply for them while noting her qualifications for such. (Id.; Doc. 1 ¶ 18.)

In November 2016, UNC ultimately hired an approximately 25-year-old white female for the open position.² (Id. ¶¶ 19-20.) According to Chrisp, the new employee was less experienced and less qualified than her. (Id. ¶ 20.) Chrisp does not allege that she applied for the position. (See Doc. 1-4 at 1.) She alsoalleges generally that UNC did not allow her to attend certain training sessions or "similar opportunities" that would allow her to advance her career. (Doc. 1 ¶ 20.)

On February 13, 2017, Chrisp filed a charge with the EEOC alleging race and age discrimination, specifically listing the April 2016 job posting as the basis for her claims. (Doc. 1-1.) On July 13, 2017, she filed a second EEOC charge alleging retaliation. (Doc. 1-2.) Specifically, she claims her supervisor assigned her work that was not her responsibility, "nit-pick[ed] [her] work," and required her to assemble work binders by herself. (Id. at 1.) On July 31, 2017, the EEOC notified Chrisp that it was closing its file on the February 2017 charge because it was unable to conclude any violation occurred. (Doc. 1-1 at 2.) The dismissal letter included a right-to-sue notification which instructed Chrisp as follows: "In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within 90 days of the date you receive this Notice." (Id. at 3 (emphasis in original).) On May 15, 2018, the EEOC responded to Chrisp's July 2017 charge, stating that it was closing its file on the charge because it adopted the findings of the "state or local fair employment practices agency that investigated this charge," and included the same right-to-sue notification. (Doc. 1-3.)

On June 22, 2018, Chrisp filed her first lawsuit in thiscourt. (See Doc. 2, Case No. 1:18CV542.) She subsequently amended her complaint four times between November 2018 and August 2019. (Docs. 5; 6; 9; 15, Case No. 1:18CV542.) For the original complaint and the first three amended complaints, Chrisp proceeded pro se, but she had the assistance of counsel for the fourth amended complaint. (Doc. 15, Case No. 1:18CV542.) On July 10, 2020, this court granted UNC's motion to dismiss that lawsuit for failure of proper service, and the complaint was dismissed without prejudice. Chrisp v. Univ. of N. Carolina-Chapel Hill, 471 F. Supp. 3d 713 (M.D.N.C. 2020).

On August 10, 2020, Chrisp filed the present, second action in this court. (Doc. 1.) The complaint is identical in all material aspects to the fourth amended complaint from the prior action. Chrisp alleges race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (first and second claims for relief), age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621 et seq. (third claim for relief), and a violation of the North Carolina Equal Employment Practices Act ("EEPA"), N.C. Gen. Stat. § 143-422.1 et seq. (fourth (improperly denominated another "third") claim for relief). On September 22, UNC moved to dismiss the complaint.(Doc. 9.) Chrisp was sent a Roseboro³ letter notifying her of her right to respond. (Doc. 11.) She responded (Doc. 12), and UNC filed a reply (Doc. 13). The matter is fully briefed and ready for decision.

II. ANALYSIS

A. Federal Claims

UNC moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. 9.) As the 90-day filing requirement under 42 U.S.C. § 2000e "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," UNC's motion to dismiss these claims is properly considered under Rule 12(b)(6). Zipes v. TWA, 455 U.S. 385, 393 (1982); see also United States v. Kivanc, 714 F.3d 782, 789 (4th Cir. 2013) ("The statute of limitations is an affirmative defense that may be raised in a Rule 12(b)(6) motion to dismiss for failure to state a claim."); Shepard v. Lowe's Food Stores, Inc., No. 1:08-CV-679, 2009 WL 4738203, at *2 (M.D.N.C. Dec. 7, 2009) (treating defendant's Rule 12(b)(1) motion to dismiss for failure to file suit within 90 days of receiving a right-to-sue letter as a Rule 12(b)(6) motion).

A motion to dismiss under Rule 12(b)(6) is meant to "test[]the sufficiency of a complaint" and not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To survive such a motion, "a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all reasonable inferences must be drawn in the non-moving party's favor, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Rule 12(b)(6) protects against meritless litigation by requiring sufficient factual allegations to raise a right to relief above the speculative level so as to nudge the claims across the line from conceivable to plausible." Sauers v. Winston-Salem/Forsyth Cty. Bd. of Educ., 179 F. Supp. 3d 544, 550 (M.D.N.C. 2016) (alterations and quotations omitted).

Chrisp brings her case pro se. As such, she is entitled to a liberal construction of her complaint. See Erickson, 551 U.S. at 94. But this "generosity is not fantasy." Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998). The court is not permitted "to become an advocate for a pro se litigant or to rewrite his complaint," Williams v. Guilford Tech. Cmty. Coll. Bd.of Trustees, 117 F. Supp. 3d 708, 716 (M.D.N.C. 2015), nor should it "conjure up questions never squarely presented," Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

With these standards in mind, the court turns to the present motion. Chrisp's first three claims for relief allege race and age discrimination and retaliation in violation of Title VII and the ADEA. (Doc. 1 ¶¶ 22-39.) UNC moves to dismiss, arguing that these claims are time-barred. (Doc. 10 at 5-8.)

Both Title VII and the ADEA contain statutory schemes for the enforcement of the rights protected by each statute. As relevant here, each statute provides that, if the EEOC dismisses a charge that has been filed, it is to notify the person who filed the charge that she can bring suit within 90 days of receiving notice of the EEOC's dismissal. See 42 U.S.C. § 2000e-5(f)(1) (right to sue under Title VII); 29 U.S.C. § 626(e) (same for the ADEA).

Here, Chrisp has brought two separate actions alleging the same claims based on the same underlying events. Her first action, brought on June 22, 2018, was ultimately dismissed without prejudice because she failed to properly serve UNC. See Chrisp, 471 F. Supp. 3d at 717. While the court did not rule on timeliness, it appears that the first action was timely insofar as it was filed within the 90-day window from when Chrisp received the EEOC'ssecond right-to-sue letter on May 15, 2018.⁴ UNC argues that the present lawsuit, however, is untimely because it was filed on August 10, 2020, more than two years after the EEOC's second right-to-sue letter and well outside the 90-day window. (Doc. 10 at 5-8.) As such, UNC argues, Chrisp's claims under Title VII and the ADEA are time-barred and should be dismissed. (Id. at 8.)

Other circuits that have considered the issue hold that "[i]n instances where a complaint is timely filed and later dismissed, the timely filing of the complaint does not 'toll' or suspend the 90-day limitations period." O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (citation omitted) (court dismissed second complaint with same Title VII and ADEA claims as timely-filed prior action that was previously dismissed without prejudice because the latter was filed outside the 90-day window); see also Simons v. Sw. Petro-Chem, 28 F.3d 1029, 1030 (10th Cir. 1994); Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993).

No party has identified a Fourth Circuit published decision addressing the issue, and the court is not aware of one. However, multiple unpublished opinions adhere to this "general rule that a Title VII complaint that has been filed but then dismissed without...