Opinion
C. A. 4:21-cv-1879-SAL-KDW
05-19-2022
Yan Lyansky, Plaintiff, v. Coastal Carolina University, and Dr. Michael H. Roberts, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
This employment-related matter is before the court for issuance of a Report and Recommendation (“Report”) pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff began litigation by filing a Complaint on June 21, 2021. ECF No. 1. Because Plaintiff is proceeding without representation the undersigned reviewed Plaintiff's initial pleading and determined additional information was required to bring his case into proper form. The court authorized service of the Complaint. ECF No. 13. Defendants challenged service, and the court granted Plaintiff additional time to effect service of his pleading. ECF No. 27. Subsequently, Defendants acknowledged service but made a Motion for a More Definite Statement. ECF No. 34. Plaintiff conceded a more definite statement was appropriate. ECF No. 35. The court then granted the Motion for a More Definite Statement and instructed Plaintiff to file an Amended Complaint. ECF No. 38. On February 4, 2022, Plaintiff filed his Amended Complaint, in which he includes various federal- and state-law-based causes of action arising out of his prior employment as an educator employed by Defendant Coastal Carolina University (“CCU”). Am. Compl., ECF No. 41. In response, Defendants filed an Answer and a Motion for Partial Dismissal Pursuant to Rule 12(b)(6). ECF No. 44. In the Motion for Partial Dismissal, Defendants seek dismissal of Plaintiff's claims brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”), alleging Plaintiff has failed to exhaust administrative remedies as to those claims. ECF No. 44. Plaintiff opposes the Motion. ECF No. 48. Having considered the parties' filings and applicable law, the undersigned recommends Defendants' Motion for Partial Dismissal, ECF No. 44, be granted.
I. Legal standard
Defendants' challenges concerning failure to administratively exhaust administrative remedies are considered pursuant to Rule 12(b)(6). See Fort Bend Cnty., Texas v. Davis, 139 S.Ct. 1843, 1850- 51 (2019) (holding “Title Vil's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”); Lee v. Esper, No. CV 3:18-3606-TLW-KFM, 2019 WL 7403969, at *2 (D.S.C. Aug. 13, 2019) (noting challenge to administrative-exhaustion requirements appropriately considered under Rule 12(b)(6)), report and recommendation adopted, No. 318CV03606TLWKFM, 2020 WL 32526 (D.S.C. Jan. 2, 2020).
When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The court need not accept legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or “legal conclusions drawn from the facts.” Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009) (internal quotation omitted). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); Bowie v. Univ. of Md. Med. Sys., No. CIV.A. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's ADA claim as time-barred and considering the Equal Employment Opportunity Commission (“EEOC”) Charge and Right to Sue Letter as being “integral” to the decision).
II. Plaintiff's Amended Complaint
In considering Defendants' Motion, the court need not delve into the substance of Plaintiff's employment-based claims at this juncture. Rather, the court is considering Defendants' legal challenge to Plaintiff's exhaustion of administrative remedies as to claims brought pursuant to Title VII and the ADA. In considering this challenge, the court focuses on what type of causes of action the Amended Complaint contains and the exhaustion information made available by Plaintiff and Defendants.
A. Causes of action
Plaintiff's 56-page Amended Complaint includes 255 numbered paragraphs, 12 numbered paragraphs as a “Prayer for Relief,” and attaches 64 pages of exhibits in support of the Amended Complaint. Am. Compl., ECF Nos. 41, 41-1. The first page of his Amended Complaint indicates it includes claims for violation of the following federal statutory schemes:
1. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e;
2. Title II of the Americans with Disabilities Act [of] 1990, 42 U.S.C. § 12101;
3. Title VI of the Civil Rights Act of 1964;
4. § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 790.Am. Compl. 1; see also id. ¶ 1 (listing the same statutes). Plaintiff begins his pleading by alleging that Defendants, as his “former employer, unlawfully discriminated against Plaintiff on the basis of his physical disability and retaliated against him. The Plaintiff was subjected to egregious and unlawful employment practices.” Am. Compl. ¶ 2. Plaintiff is a mathematics professor “of 30 years standing” who joined CCU upon receiving an “Offer Letter” on June 11, 2019 and an amended offer letter on August 16, 2019. Id. ¶ 8. Plaintiff received a “Letter of Termination of Employment” on December 17, 2019. Id. ¶ 9. Plaintiff alleges CCU was an “employer” within the meaning of Title VII of the Civil Rights Act of 1964 (“Title VII”) and a “Federally Funded Institution as per Title IV of the Civil Rights Act of 1964.” Id. ¶¶ 11, 12. Plaintiff submits the court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343, and supplemental jurisdiction over the state-law-based claims. Am. Compl. ¶¶ 14-16. Plaintiff asserts venue is proper because CCU is federally funded “as per Title IV” and maintains facilities and business operations in the District and most events took place within the District. Am. Compl. ¶ 17 (citing 28 U.S.C. § 1391(b) (regarding federal venue generally) and 42 U.S.C. § 2000e-5(f)(3) (regarding venue of actions related to EEOC).
Plaintiff's Amended Complaint sets out his “Factual Allegations,” in which he indicates how he came to be employed by CCU and includes information as to what he terms his wrongful termination of employment. Am. Compl. ¶¶ 20-52. The Amended Complaint's “Claims for Relief” section begins with a paragraph listing the following statutes:
53. Disability-Based Discrimination in Violation of Title VII of the Civil Rights Act, as amended, 42 U.S.CC. § 2000e-2(a), Title IV - Education Amendments of 1972, Title II of the Americans with Disabilities Act 1990, Section 504 of the Rehabilitation Act of 1973.Am. Compl. ¶ 53 (listing statutes but including no additional text). The Amended Complaint then includes a subheading, “Declaratory Relief Allegations,” and avers the following:
54. A present and actual controversy exists between Plaintiff and Defendants concerning their rights and respective duties. Plaintiff contends that Defendants violated his rights under Title IX - Education Amendments of 1972, Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 and supporting legislation. Plaintiff is informed and believes and thereon alleges that the Defendant denies these allegations. Declaratory relief is therefore necessary and[] appropriate.Am. Compl. ¶ 54. Plaintiff continues by setting out the following claims, each of which he identifies in bold type with a description of the basis of that “Claim For Relief”:
a) FIRST CLAIM FOR RELIEF, [Disability Discrimination in Violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 12101], ECF No. 41 at 11 (followed by ¶¶ 5667, in which Plaintiff claims he has a disability as defined by the ADA, that he was discriminated against, and subject to an adverse employment action);
b) SECOND CLAIM FOR RELIEF, [Hostile Work Environment and Harassment Based on Disability in Violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 12101], ECF No. 41 at 14 (followed by ¶¶ 68-84, in which he alleges he was subject to harassment and that Defendants created a hostile work environment for Plaintiff because of his disability);
c) THIRD CLAIM FOR RELIEF, [Disability Discrimination (Disparate Treatment) in Violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a)], ECF No. 41 at 17 (followed by ¶¶ 85-95, in which he sets out allegations of discrimination based on disability);
d) FOURTH CLAIM FOR RELIEF, [Unlawful Dismissal in Violation of Title VII of the Civil Rights Act of 1964.], ECF No. 41 at 19-20 (followed by ¶¶ 96-117, in which Plaintiff alleges he was terminated because of his disability);
e) FIFTH CLAIM FOR RELIEF, [Reasonable Accommodation in Violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(k)], ECF No. 41 at 25 (followed
by ¶¶ 118-142, in which Plaintiff alleges he was disabled and his employer did not accommodate his disability);
f) SIXTH CLAIM FOR RELIEF, [Retaliation and Denial of Academic Freedom in Violation of Title VII of the Civil Rights Act of 1964], ECF No. 41 at 32 (followed by ¶¶ 143-61, in which Plaintiff complains his rights of academic freedom were violated and that Defendants “used Plaintiff's health information to dismiss him from his duties,” id. ¶ 158);
g) SEVENTH CLAIM FOR RELIEF, [Fraudulent Misrepresentation, Economic Duress and Unjust Enrichment], ECF No. 41 at 36-37 (followed by ¶¶ 162-185);
h) EIGHTH CLAIM FOR RELIEF, [Employment under Contract, At-will Employment, Breach of Contract, Legitimate Expectation, and Wrongful Dismissal.], ECF No. 41 at 40 (followed by ¶¶ 186-223); (this “Claim for Relief” also includes a claim of “Wrongful Termination in violation of Section 504 of The Rehabilitation Act of 1973, 29 U.S.C. §§ 790, ECF No. 41 at 44).
i) NINTH CLAIM FOR RELIEF, [Libel-Defamation of Character, Negligence, Pain and Suffering.], ECF No. 41 at 46 (followed by ¶¶ 224-239);
j) ELEVENTH CLAIM FOR RELIEF, [Intentional Infliction of Emotional Distress], ECF No. 41 at 49 (followed by ¶¶ 240-246);
k) ELEVENTH CLAIM FOR RELIEF, [Breach of Privacy], ECF No. 41 at 50 (followed by ¶¶ 247-252).
Plaintiff then includes three paragraphs of “Injunctive Relief Allegations” indicating there is no available “plain adequate, or complete remedy at law.” Am. Compl. ¶¶ 253-255. He closes his Amended Complaint with “Prayer for Relief,” listing 12 requests for damages. ECF No. 41 at 51-52.
B. Exhibits
For the sake of completeness, the court notes the Amended Complaint includes the following exhibits, not all of which are relevant to the current Motion to Dismiss:
1. Exhibit 1: December 17, 2019 Letter from CCU, signed by Defendant Roberts as Dean of Gupta College of Science) terminating Plaintiff. ECF No. 41-1 at 1-2.
2. Exhibit 2: June 11, 2019 Letter from CCU, signed by Defendant Roberts as Dean of College of Science, outlining conditions of offer of employment. Id. at 3-4; August 16, 2019 Letter from CCU, signed by Daniel Ennis, PhD, Interim Provost, appointing Plaintiff as Visiting Assistant Professor of Mathematics. Id. at 5-6.
3. Exhibit 3: Undated “Cover Letter” and resume from Plaintiff to “Search Committee” expressing interest in an open math position. Id. at 7-15.
4. Exhibit 4: April 9, 2020 Letter from Department of Education (“DOE”)'s Office of Civil Rights (“OCR”) advising Plaintiff OCR Complaint No. 11-20-2103 is being dismissed. Id. at 16-19; September 3, 2020 Letter from DOE OCR denying appeal of dismissal of OCR Complaint No. 11-20-2103. Id. at 20.
5. Exhibit 5: Printouts of various student comments regarding Plaintiff from Fall Semester 2019. Id. at 21-27.
6. Exhibit 6: December 23 and 27, 2019 email chain from Plaintiff to Provost Ennis and Defendant Roberts and Thomas Hoffman concerning issues with his termination. Id. at 28-34.
7. Exhibit 7: Highlighted copy of “Title IX Statement” (origin unknown) and various excerpts, concerning “Faculty Responsibilities and Rights,” “Appointments, Promotion, and Tenure,” and “Benefits and Privileges” from unidentified source. Id. at 35-43.
8. Exhibit 8: CCU Policy, “Title IX Statement of Non-Discrimination.” Id. at 44-47.
9. Exhibit 9: CCU Policy, “Equal Employment Opportunity Policy.” Id. at 48-54.
10. Exhibit 10: CCU Policy, “Informal ADA Grievance Procedure.” Id. at 55-60.
11. Exhibit 11: CCU “University Discrimination and Equal Employment Opportunity Policy Statement.” Id. at 61-63.
C. Allegations regarding exhaustion of administrative remedies
Plaintiff submits he has exhausted administrative remedies, citing to two letters from the DOE's OCR: a March 13, 2020 “charge of discrimination” filed with OCR, and a September 3, 2020 Notice of Right to Sue provided by OCR as to OCR Complaint No. 11-20-2103. Am. Compl. ¶ 18 (indicating the “OCR Complaint No. 11-20-2103” is attached as Exhibit 1). However, “Exhibit 1” attached to the Amended Complaint is a copy of a December 17, 2019 letter from Defendant terminating Plaintiff. ECF No. 41-1 at 2. The record does include a copy of a March 13, 2020 “Charge.” Potentially relevant to Plaintiff's argument that he has exhausted administrative remedies, the exhibits to the Amended Complaint include an April 9, 2020 Dismissal Letter from OCR advising Plaintiff that it had reviewed his complaint received on January 28, 2020, and determined his claims were “too speculative and conclusory for OCR to infer that discrimination on the basis of disability may have occurred or may be occurring.” OCR Complaint Dismissal Letter, ECF No. 41-1 at 17-19. Also attached to the Amended Complaint is a September 3, 2020 Letter from OCR denying Plaintiff's appeal to OCR that it reconsider the dismissal of his Complaint. That Letter indicates that Plaintiff has “now exhausted all avenues of review within the U.S. Department of Education.” Sept. 3, 2020 OCR Letter, ECF No. 41-1 at 20. The September 3, 2020 letter ends by stating, “You may have the right to file a private suit in federal court whether or not OCR finds a violation.” Id.
III. Analysis
A. The parties' positions
In their short Motion to Dismiss, Defendants seek dismissal of Plaintiff's “Title VII and Americans with Disabilities Act Causes of Action,” arguing Plaintiff has not “met the exhaustion of the remedies requirements to bring a Title VII or ADA claim.” Def. Mem. 2-3. Based on the labels Plaintiff has assigned his various causes of action, Defendants seek dismissal as to Plaintiff's First, Second, Third, Fourth, Fifth, and Sixth Claims for relief. Id. at 1-2. Defendants acknowledge that Plaintiff sought to exhaust remedies by submitting a complaint to the DOE's OCR. Id. at 2. However, Defendants submit that the OCR Complaint was insufficient because “as a pre-requisite to filing suit” under the “statutes he relies on,” he “must exhaust his administrative remedies with the EEOC or its state equivalent, the SCHAC.” Id. Defendants note that OCR did not notify either Defendant that Plaintiff had submitted a Complaint to OCR. Id. Without providing detailed legal analysis, Defendants contend that “[e]ven if the Defendants had participated in the OCR's review of the Complaint, the Plaintiff still would not have met the exhaustion of remedies requirements to bring a Title VII or ADA claim.” Id. at 2.
In opposing the Motion to Dismiss, Plaintiff submits that his “charges of discrimination” filed with the DOE's OCR “on or around January 28th, 2020” and the Notice of Right to Sue dated September 3, 2020 provide the necessary administrative exhaustion. Pl. Mem. 2, ECF No. 48. Plaintiff points to language in the letter from the OCR in which it indicated it had jurisdiction over CCU pursuant to Section 504 [of the Rehabilitation Act] and Title II [of the ADA]. Pl. Mem. 3 (quoting Apr. 9, 2020 OCR Dismissal Letter). Plaintiff submits this “clearly shows that the OCR had jurisdiction and the Plaintiff has exhausted administrative remedy.” Id. Plaintiff then seems to acknowledge that he must exhaust administrative remedies with the EEOC or a “state equivalent” and submits (without support) that “OCR is state equivalent” to the EEOC. Id. Further, Plaintiff cites Fort Bend County for the proposition that failure to exhaust Title VII remedies does not deprive the court of jurisdiction. Id. (citing Ft. Bend Cnty. v. Davis, 139 S.Ct. at 1846)). Finally, Plaintiff cites cases for the proposition that Title II of the ADA and Section 504 [of the Rehabilitation Act] do not require administrative exhaustion. Pl. Mem. 3.
B. Discussion
As an initial matter, the court notes that Defendants' Motion is limited to seeking dismissal as to Plaintiff's Title VII and ADA claims. Accordingly, to the extent the Amended Complaint is construed to include any other claims, those claims are not the subject of this Report and Recommendation.
1. Title VII claims: Plaintiff has not satisfied Title VII's exhaustion requirements. In any event, Plaintiff has not pleaded any viable Title VII claims.
Defendants are correct that employees raising claims pursuant to Title VII are required to exhaust remedies by submitting an administrative claim-typically known as a “charge” to either the EEOC or the state-equivalent agency, which in South Carolina is the South Carolina Human Affairs Commission (“SCHAC”). See 42 U.S.C. § 2000e-5(e)(1), (f)(1). The purpose of this exhaustion requirement is to put employers on notice to potential misconduct and afford them the opportunity to remedy it with the complaining employee more quickly and efficiently than litigation allows. Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005).
Unquestionably, Plaintiff did not file a charge with the EEOC or SCHAC. Further, Plaintiff's unsubstantiated argument notwithstanding, the DOE's OCR is not a “state equivalent agency” for purposes of Title VII exhaustion requirements. See Rivers v. Sci. Applications Int'l Corp., No. 2:18-CV-1126-BHH, 2021 WL 822540, at *3 (D.S.C. Mar. 4, 2021) (noting SCHAC is the state equivalent agency to the EEOC for purposes of Title VII claims). Further, although Plaintiff is correct that the Court's Fort Bend County opinion does explain that failure to exhaust does not deprive the court of jurisdiction, that does not excuse Plaintiff from undertaking any required exhaustion steps. As explained in Fort Bend County, Title-VII's-charge-filing requirements are still mandatory. Ft. Bend Cnty., 139 S.Ct. at 1851 (noting that “Title VII's charge-filing requirement is a processing rule, albeit a mandatory one[.]”) Plaintiff's failure to comply with Title VII's requirements of filing charges with the EEOC or an equivalent state agency (here, SCHAC) requires dismissal of any Title VII causes of action purported to have been brought by Plaintiff.
Even more basic in this case, though, is that Plaintiff's Amended Complaint does not include any claims that might be cognizable under Title VII. Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII does not, however, apply to claims of discrimination, retaliation, or harassment based on disability. Plaintiff's alleged disability, and treatment based on disability, though, are the cornerstone of all of Plaintiff's federally based causes of action. Because Plaintiff has not alleged employment-based discrimination, retaliation, or harassment based on any trait or class protected by Title VII, dismissal of any claims brought pursuant to Title VII is appropriate.
In recommending dismissal of any Title VII claims purportedly alleged by Plaintiff, however, the undersigned is not automatically recommending a wholesale grant of Defendants' request to dismiss Plaintiff's First, Second, Third, Fourth, Fifth, and Sixth Claims for Relief merely because they all begin by citing “Title VII.” Rather, the court must look beyond the general headings of the pro se Plaintiff's Amended Complaint in considering what causes of action he seeks to bring. See generally, Hairston v. DVA, Reg'l VA Off. Martinsburg, 841 Fed.Appx. 565, 568-69 (4th Cir. 2021) (finding district court erred in treating pro se plaintiff's complaint as one arising under Title VII-and dismissing for failure to comply with Title VII's exhaustion requirements-based on pro se pleading's inclusion of a reference to “Title VII Discrimination”; finding to do so elevated “form over substance” and courts are to “look beyond the labels” provided by pro se litigants).
Here, although Plaintiff prefaced his First through Sixth Claims as having been brought pursuant to “Title VII,” review of the remainder of the title and the substance of the pleadings themselves manifest intent to bring claims pursuant to the ADA. In addition to focusing on disability throughout the pleading, several of Plaintiff's Claims are labeled as having been brought under Title VII but then cite to statutory sections associated with the ADA. See First Claim for Relief, Second Claim for Relief (citing 42 U.S.C. §§ 12101). As Defendants also seek dismissal of Plaintiff's ADAbased claims, further analysis is appropriate.
2. ADA claims are also subject to dismissal
The court now considers Defendants' argument that Plaintiff's ADA-based claims are subject to dismissal because he did not exhaust with the EEOC or SCHAC. The ADA is divided into several sections called “titles.” Each section forbids a type of discrimination. Title I prohibits employment discrimination; Title II prohibits discrimination in providing public services; and Title III prohibits discrimination in providing public accommodations. Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 421-22 (4th Cir. 2015). Here, Plaintiff's Amended Complaint refers to his ADA claims as having been brought under “Title II.” See, e.g., Am. Compl. ¶ 1 (indicating he seeks “relief from employment discrimination in violation of Titles VI and VII of the Civil Rights Act of 1964, Section of 504 of the Rehabilitation Act of 1973” and “Title II of the Americans with Disabilities Act of 1990 (prohibits disability discrimination by public entities, including public school districts, public colleges and universities, public vocational schools, and public libraries, whether or not they receive federal financial assistance).”).
Despite the label Plaintiff offers of bringing his claims of disability discrimination, retaliation, harassment, and failure to accommodate under Title II of the ADA, his claims all revolve around his employment with and termination by CCU. Cf. Hairston, 841 Fed.Appx. at 568-69 (indicating court is to look to substance, not label, of pro se litigant's pleadings). Accordingly, Fourth Circuit law is clear that no Title II ADA claim will lie for such claims. See Reyazuddin, 789 F.3d at 421 (in considering the issue for the first time, the Fourth Circuit joined several other circuits in holding that “Title II unambiguously does not provide a vehicle for public employment discrimination claims.”). To the extent Plaintiff purports to bring Title II ADA claims based on his employment by CCU, such claims are subject to dismissal.
Because Title I of the ADA relates to employment-based claims, the court also considers whether such claims could be viable. However, to the extent Plaintiff's ADA claims are considered to have been brought pursuant to Title I, such claims require exhaustion by filing with the EEOC. Because the ADA incorporated the procedural requirements of Title VII, “[b]efore a plaintiff has standing to file suit . . . he must exhaust his administrative remedies by filing a charge with the EEOC.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002); see 42 U.S.C. § 12117(a). As noted above, Plaintiff has not satisfied Title VII's exhaustion requirements, and his filing with the DOE's OCR will not suffice for purposes of Title VII or Title I of the ADA. Plaintiff s ADA claims are subject to dismissal.
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendants' Motion for Partial Dismissal, ECF No. 44, be granted to the extent it seeks dismissal of any claims Plaintiff purports to bring pursuant to Title VII or Titles I or II of the ADA. In considering this Motion, the court has not reviewed any other claims raised by Plaintiff. Such claims, of course, may be the subject of a dispositive motion brought after discovery has been completed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”