United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
Wainwright Davitt filed this action against Virginia
Polytechnic Institute and State University (“Virginia
Tech”), asserting claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), the Family and
Medical Leave Act (“FMLA”), and the
Rehabilitation Act. Virginia Tech has moved to dismiss the
Title VII claims for failure to exhaust administrative
remedies. For the following reasons, the motion will be
February 19, 2019, Davitt filed a charge of discrimination
with the Equal Employment Opportunity Commission
(“EEOC”). Davitt alleged, among other things,
that she was subjected to gender discrimination and
retaliation while working for Virginia Tech's College of
March 20, 2019, the EEOC sent Davitt a “Dismissal and
Notice of Rights, ” commonly known as a
“right-to-sue letter.” In the letter, the EEOC
issued the following “determination”:
“Based upon its investigation, the EEOC is unable to
conclude that the information obtained establishes violations
of the statutes.” Right-to-Sue Letter 1, Dkt. No. 13-2.
The EEOC further advised as follows:
This will be the only notice of dismissal and of your right
to sue that we will send you. You may file a lawsuit against
the respondent(s) under federal law based on this charge in
federal or state court. Your lawsuit must be filed
WITHIN 90 DAYS of your receipt of this
notice; or your right to sue based on this charge
will be lost.
Id. (emphasis in original). On June 17, 2019, Davitt
timely filed the instant action against Virginia Tech,
asserting claims under Title VII, the FMLA, and the
Rehabilitation Act .
Tech has moved to dismiss the Title VII claims under Federal
Rule of Civil Procedure 12(b)(6) for failure to exhaust
administrative remedies. The parties have waived oral
argument, and the motion is now ripe for decision.
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. To survive
dismissal, “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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When ruling
on a motion to dismiss, the court “may . . . consider
documents incorporated into the complaint by reference, as
well as those attached to the motion to dismiss, so long as
they are integral to the complaint and authentic.”
United States ex rel. Oberg v. Pa. Higher Educ.
Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014)
(internal quotation marks and citation omitted).
Tech argues that Davitt failed to properly exhaust her
administrative remedies prior to filing suit under Title VII.
More specifically, Virginia Tech contends that this court
must dismiss Davitt's Title VII claims because “the
EEOC only retained authority over [Davitt's] claims for
30 days and not 180 days as required by 42 U.S.C. §
2000e-5(f)(1).” Br. Supp. M. Dismiss 3, Dkt. No. 11.
For the following reasons, the court disagrees.
the court believes that Virginia Tech's argument is
unsupported by a plain reading of the cited statutory
provision. Section 2000e-5(f)(1) does not require the EEOC to
wait 180 days before dismissing a charge. Instead, the
statutory provision specifies the instances in which the EEOC
must issue a right-to-sue letter, one of which is if the
Commission dismisses a charge of discrimination:
If a charge filed with the Commission . . . is dismissed by
the Commission, or if within one
hundred and eighty days from the filing of such charge . . .,
the Commission has not filed a civil action . . . or the
Commission has not entered into a conciliation agreement to
which the person aggrieved is a party, the Commission . . .
shall so notify the person aggrieved and within ninety days
after the ...