United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
ROBERT S. BALLOU, Magistrate Judge.
Plaintiff, Charles Glen Shomo, Jr., filed this employment discrimination action pro se against Defendants Apple, Inc. ("Apple") and Joe Flores, contending that Apple did not hire him because he is a white male. Shomo named Defendant Joe Flores in his lawsuit as the Apple employee who interviewed him for the position over Skype and thus made his hiring decision because of race. See generally Dkt. No. 1. Defendants filed a motion to dismiss the complaint, which has been referred to me for report and recommendation under 28 U.S.C. § 636(b)(1)(B). I have carefully considered the pleadings filed, the legal memoranda submitted and the applicable law and RECOMMEND that the court GRANT Defendants' motion and DISMISS the complaint in its entirety.
In May 2013, Shomo applied for an At-Home Advisor position in Apple's customer service division. Shomo, who is white, did not provide his race on the job application, and passed an initial telephone screening interview, Dkt. No. 1 at 3, and then participated in an audio/video interview with Flores over Skype. Shomo contends that the interview, which was scheduled to last twenty minutes, ended after only nine minutes when Flores saw him on Skype and learned that he was white.
Apple did not hire Shomo for the position and, in response to Shomo's EEOC charge of discrimination, explained that Shomo lacked customer service skills and did not demonstrate the ability to empathize with customers. Shomo further contends that Flores stated that Shomo came across as "cold" during the interview. Dkt. No. 1 at 3. Not surprisingly, Shomo disagrees with the perceptions of how he performed in his interview, and claims that he was "fantastic" and that he demonstrated his "amazing ability [to] work with people in a similar field." Dkt. No. 1-1 at 1. Shomo's self-assessment of the interview was that he "spoke with high positive emotion during the interview... and demonstrated [his] outstanding ability to empathize with customers." Dkt. No. 1-1 at 1, Dkt. No. 15 at 3, ¶ 9. Shomo alleges in a conclusory fashion that he was qualified for the job and that Apple removed Flores as a Recruiter and returned him to an At-Home Team Manager position after Shomo filed his EEOC discrimination claim, a reassignment which Shomo appears to claim was likely a disciplinary action. Dkt. No. 1-1 at 1.
Shomo provided a sworn affidavit in his response to the motion to dismiss, which the court is required to "liberally construe" from a pro se party. See Erickson v. Pardus, 551 U.S. 89, 93 (2007). It is therefore appropriate for the court to consider both the complaint and the factual allegations in Shomo's response to the motion to dismiss in determining whether his claims can survive dismissal. See Christmas v. The Arc of the Piedmont, Inc., No. 3:12cv00008, 2012 WL 2905584, at *2 (W.D. Va. July 16, 2012) (considering complaint and response to motion to dismiss in pro se case when ruling on Rule 12(b)(6) motion); Davis v. Bacigalupi, 711 F.Supp.2d 609, 615 (E.D. Va. 2010) (same); but see Bauknight v. Pope, No. 1:11cv1176, 2012 WL 681632, at *1 n.3 (E.D. Va. Feb. 27, 2012) (declining to consider new facts and nearly ninety pages of background material filed by pro se plaintiff in opposition to motion to dismiss).
Shomo contends in his verified response that he was qualified for the position and points to his past work history as "an independent customer service sales agent for a wireless company and education as a Valedictorian in a Master of Science program." Dkt. No. 15 at ¶ 4. Shomo further claims to have continued his "professional connection" and "professional relationship" with Flores through LinkedIn, which Shomo asserts "demonstrates that [Shomo] was qualified for the position in the eyes of Mr. Flores." Id. at ¶¶ 5, 7, 9, 11-12. Finally, Shomo contends that he sent an email to Flores thanking him for the opportunity to work for Apple, which Shomo suggests "is a good indication of a good interview." Id. at ¶ 10.
A. Sex Discrimination Claim
Apple first argues that this court does not have jurisdiction over Shomo's claim of sex discrimination because he did not allege sex as a basis of discrimination in his EEOC charge. A Title VII plaintiff is required to exhaust his administrative remedies by filing a timely charge of discrimination with the EEOC before bringing suit in federal court. See 42 U.S.C. § 2000e-5(f)(1); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (a failure to exhaust "deprives the federal courts of subject matter jurisdiction over the claim"). The exhaustion requirement serves the dual "purposes of notice and conciliation." Chako v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005). Exhaustion "gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory actions" and also "initiates agency-monitored settlement, the primary way that claims of discrimination are resolved." Id.
In determining whether claims have been properly exhausted, the court looks to the contents of the EEOC charge. Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002) (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000)) ("The EEOC charge defines the scope of the plaintiff's right to institute a civil suit."). Specifically, "the scope of the civil action is confined... by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Id . (quoting Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)).
Shomo's EEOC charge is attached as an exhibit to defendant's motion to dismiss, see Dkt. No. 13-2, and may be considered by the court when ruling on a motion to dismiss. The charge alleges only a failure to hire claim based on race. The charge does not indicate any claim based on sex, and nothing in the charge would have led the EEOC to investigate a sex discrimination claim by Shomo. Accordingly, Shomo failed to properly exhaust his administrative remedies as to any sex discrimination claim and this court does not have jurisdiction over any such claim. See Jones, 551 F.3d at 300 ("a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex"). I therefore recommend granting the motion to dismiss any claim of discrimination based on sex.
B. Motion to Dismiss Joe Flores as a Defendant
Defendants' seek dismissal of Joe Flores on the grounds that individual supervisors cannot be held liable under Title VII. It is well established that individual employees are not "employers" for purposes of Title VII and are not subject to individual liability for claims of discrimination. Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (cited in Jones v. Sternheimer, 387 F.Appx. 366, 368 (4th Cir. 2010) (unpublished)); Lissau v. S. Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998). ...