United States District Court, W.D. Virginia, Roanoke Division
SHIRLEY M. WALKER, Plaintiff,
PHEASANT RIDGE SENIOR LIVING and ANN DUNBAR, Defendants.
Glen E. Conrad Senior United States District Judge
pro se employment discrimination action is presently before
the court on the defendants' motion to dismiss. For the
reasons set forth below, the court will grant the
plaintiff, Shirley M. Walker, is an African-American woman
over the age of 50. She was previously employed at Pheasant
Ridge Senior Living ("Pheasant Ridge"), where Ann
Dunbar currently serves as the executive director. Walker
alleges that she was constructively discharged in December of
2016. In February of 2017, Walker learned that a younger
Caucasian employee had been selected for a position for which
she had previously applied.
10, 2018, Walker filed the instant action in the Circuit
Court for the City of Roanoke, asserting claims of
discrimination on the bases of race, color, and age, in
violation of Title VII of the Civil Rights Act of 1964
("Title VII") and the Age Discrimination in
Employment Act of 1967 ("ADEA"). Walker named
Pheasant Ridge and Dunbar as defendants.
complaint includes several attachments, including the charge
of discrimination that she filed with the Equal Employment
Opportunity Commission ("EEOC") and the Virginia
Division of Human Rights on January 29, 2018. Walker also
submitted a copy of the "Dismissal and Notice of
Rights" letter (right-to-sue letter) that she received
from the EEOC, which informed her that the charge of
discrimination had not been timely filed. The letter
indicates that it was mailed on February 5, 2018.
defendants removed the case to this court on June 8, 2018.
Upon removal, the defendants moved to dismiss Walker's
claims pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. The defendants' motion has been fully
briefed and is ripe for review.
12(b)(6) permits a party to move for dismissal for failure to
state a claim upon which can be granted. Fed.R.Civ.P.
12(b)(6). To survive dismissal for failure to state a claim,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim for relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). When deciding a
motion to dismiss under this rule, the court must accept as
true all well-pleaded allegations and draw all reasonable
factual inferences in the plaintiffs favor. Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007). In considering a Rule
12(b)(6) motion, the court may "consider exhibits
attached to the complaint." Cooksey v. Futrell,
721 F.3d 226, 234 (4th Cir. 2013) (citation and internal
quotation marks omitted).
defendants have moved to dismiss Walker's claims of
discrimination under Title VII and the ADEA on three grounds.
First, the defendants argue that Walker failed to timely file
a charge of discrimination with the EEOC. Second, the
defendants contend that Walker failed to file the instant
action within 90 days of receiving the right-to-sue letter
from the EEOC. Third, the defendants argue that Dunbar is not
a proper defendant to an action under Title VII or the ADEA.
For the following reasons, the court concludes that all three
arguments have merit.
Failure to File a Timely Charge of
a plaintiff may file suit under Title VII or the ADEA, [she]
is required to file a charge of discrimination with the
EEOC." Jones v. Calvert Grp.. Ltd.. 551 F.3d
297, 300 (4th Cir. 2009) (citing 42 U.S.C. §
2000e-5(f)(1) (Title VII) and 29 U.S.C. § 626(d)
(ADEA)). In a "deferral state" like Virginia, the
charge must be filed within 300 days of the last
discriminatory act alleged. Edelman v. Lynchburg
College. 300 F.3d 400, 404 (4th Cir. 2002). This
limitation period applies to claims under Title VII and the
ADEA. Jones. 551 F.3d at 300. Failure to timely file
a charge of discrimination precludes relief under both
statutes. See Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109 (2002) ("A claim is time
barred if it is not filed within these limits.");
Evans v. Techs. Applications & Serv. Co.. 80
F.3d 954, 962 (4th Cir. 1996) ("Charges filed outside
that time frame are barred .. ..").
case, the plaintiff alleges that she was constructively
discharged in December of 2016, and that she learned in
February of 2017 that a younger, less qualified individual of
a different race had received a promotion for which she had
applied. Because both events occurred more than 300 days
before Walker filed her ...