CAMERON McGOWAN CURRIE, Senior District Judge.
Through this action, Plaintiff Kristy Michelle Wolff ("Plaintiff"), proceeding pro se, seeks recovery from her former employer, Bee Healthy Medical Weight Loss Clinic ("Bee Healthy"), and two former coworkers, Julie Butcher
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), DSC, this matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation. On August 15, 2018, the Magistrate Judge issued a Report recommending Defendants' motions to dismiss be granted as to Butcher and Mims, and denied without prejudice as to Bee Healthy.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report and Recommendation of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.") (citation omitted).
The Report recommends dismissing the Title VII and ADA claims against the individual Defendants, as neither statute authorizes a remedy against individuals. ECF No. 59 at 3-4. Further, Title VII does not impose individual liability on supervisory employees. Id. at 3.
Plaintiff objects to the dismissal of the individual Defendants, as she argues both Butcher and Mims were "agents acting in the capacity of an employer" and are therefore liable under Title VII and the ADA. ECF No. 63.
The court agrees with the Magistrate Judge neither Title VII nor the ADA permit recovery against individual defendants. Though Plaintiff alleges Butcher and Mims were supervisors, and therefore agents of Bee Healthy, the case law is clear the individual Defendants cannot be held liable under these causes of action. See Lissau v. Southern Food Svc., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (holding the plaintiff's supervisor, who plaintiff alleged was an "agent" of the employer, was not liable because an "analysis of Title VII's language and its remedial scheme leads us to join the other circuit courts and conclude that supervisors are not liable in their individual capacities for Title VII violations."); Baird ex rel. Baird v. Rose, 193 F.3d 462, 472 (4th Cir. 1999) ("Because Title VII does not authorize a remedy against individuals for violations of its provisions, and because Congress has made the remedies available in Title VII actions applicable to ADA actions, the ADA does not permit an action against individual defendants . . . for conduct protected by the ADA.").
Therefore, Plaintiff may not bring a Title VII or ADA claim against individual Defendants Butcher and Mims, and these claims against them are dismissed with prejudice. To the extent Plaintiff purports to allege state law claims against Butcher or Mims, the court agrees with the Magistrate Judge these are not adequately pled in the Complaint.
The Report recommends denying Defendants' motions to strike Plaintiffs' sur-replies related to the motions to dismiss, as Plaintiff is entitled to some leniency as a pro se party and the court prefers to decide issues on the merits. ECF No. 59 at 5. However, Plaintiff was advised she must include all arguments in one timely response in the future, or risk the court discounting any late arguments or allegations. Id. No party objects to this portion of the Report, and the court finds this conclusion appropriate and without clear error. Defendants' motions to strike (ECF Nos. 51, 56) are denied.
Defendants object to the Report, requesting the court rule on the argument in Bee Healthy and Butcher's motion to dismiss
The court agrees Plaintiff's charge of discrimination filed with the EEOC does not allege discrimination or retaliation based on any Title VII protected class. See ECF No. 1-2 at 3. While the checkbox for "other" is marked, along with "disability" and "retaliation," the narrative does not mention Title VII or allege discrimination other than based on disability. Id. It states:
Id. As there is no mention of discrimination or retaliation based on any Title VII protected class, Plaintiff is now unable to bring a Title VII claim. See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) ("The scope of the plaintiff's right to file a federal lawsuit is determined by the charge's contents."); Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) ("Our cases make clear that the factual allegations made in formal litigation must correspond to those set forth in the administrative charge."); Evans v. Tech. Applications & Servs. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) ("The allegations contained in the administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint. Only those discrimination claims stated in the original charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit."); Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 544 (7th Cir. 1988) ("[A]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge . . .").
For the reasons above, Plaintiff's Title VII claim is dismissed for lack of jurisdiction. Jones, 551 F.3d at 300.
After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and the parties' objections, the court agrees with the Report and therefore adopts and incorporates it in this Order, as supplemented above. Defendants' motions to dismiss (ECF Nos. 33, 39) are granted in part: Plaintiff's claims under Title VII and the ADA against the individual Defendants Butcher and Mims are dismissed with prejudice, and her Title VII claim is dismissed for lack of jurisdiction as to Defendant Bee Healthy. Defendant Bee Healthy's motion to dismiss is denied as to the ADA claim. Defendants' motions to strike (ECF Nos. 53, 56) are denied. This matter is re-referred to the Magistrate Judge for further pretrial proceedings.