The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT Pending before the Court is a MOTION TO DISMISS UNDER RULE 12(b)(6) filed by Defendants Pressley Ridge, Pressley Ridge Foundation, and B.Scott Finnell (Doc. No. 3), with brief in support (Doc. No 4), PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS (Doc. No. 8), and Defendants' reply brief (Doc. No. 13). Defendants move to dismiss the complaint based upon that which they contend is Plaintiff's failure to exhaust the requisite administrative remedies under Title VII. See generally, Doc. Nos. 3 and 4. Defendants further move to dismiss with prejudice various state law claims for respective failures to state a claim for which relief can be granted, or, in the alternative, for the Court to decline to exercise supplemental jurisdiction over the state law claims should the federal claims be dismissed. Id. Plaintiff opposes the motion to dismiss. Doc. No. 8. The issues has been fully briefed and the motion is ripe for disposition. For the reasons that follow, the motion will be granted to the extent that the federal claims over which the Court has original jurisdiction will be dismissed, and the Court will decline to exercise supplemental jurisdiction over the others.
Plaintiff initiated this action with the filing of her complaint on July 22, 2010 in which she alleged thirteen counts under both federal and state law, all of which relate to sexual harassment and retaliation. See Doc. No. 1. Jurisdiction of this Court is premised upon the first three counts, federal claims brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq. Id. The following facts are from Plaintiff's complaint.
In 2008, Plaintiff began working in the Human Resources Department of Pressley Ridge.
Id. at ¶ 8. On December 24, 2008, Plaintiff alleges that she was required to participate in a "relaxation session" as part of the Pressley Ridge Wellness Program then being developed by Defendant Finnell, the Chief Executive Officer of Pressley Ridge. Id. at ¶ 9. Plaintiff avers that the relaxation session was actually hypnosis, and that similar sessions continued thereafter on frequent occasions for approximately a year, each time behind closed doors and on a couch in Defendant Finnell's office. Id. at ¶ 10. According to Plaintiff, she was repeatedly sexually harassed and molested by Defendant Finnell during these sessions after being placed under hypnosis. Id. at ¶¶ 10 and 11. Beginning in December 2009, Plaintiff began recalling what occurred during these relaxation sessions. At some point thereafter, Plaintiff expressed her concerns to Defendant Finnell in an electronic mail message, and also began discussing what occurred with other employees. Id. at ¶ 14. These developments resulted in "a material deterioration in the conditions" of Plaintiff's employment that included a request that she resign on February 22, 2010 (which she declined to do). Id. at ¶¶ 15 - 16. In April, 2010, Plaintiff brought these circumstances to the attention of the Pressley Ridge Board of Directors and requested redress, to no avail. Id. at ¶ 17.
On June 2, 2010, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC" or "Commission"). Id. at ¶ 18. On June 4, 2010, Plaintiff's employment with Defendant Pressley Ridge was terminated. Id. at ¶ 19. On June 8, 2010, at Plaintiff's request, the EEOC issued a "right-to-sue" letter which authorized her to initiate legal action in federal court. Doc. No. 1 at Exhibit A.
The 1972 amendments to Title VII established "an integrated, multistep enforcement procedure" prescribing the powers and duties of the EEOC once a discrimination charge has been filed. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (discussing the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103, 104-07 (codified as the enforcement provisions of Title VII at 42 U.S.C. § 2000e-5)). The enforcement procedure begins when a charge is filed with the EEOC alleging that an employer has engaged in an unlawful employment practice. A charge must be filed within 180 days after the occurrence of the allegedly unlawful practice, and the EEOC is directed to serve notice of the charge on the employer within 10 days of filing. 42 U.S.C. § 2000e-5(e). The EEOC is then required to investigate the charge and determine whether there is reasonable cause to believe that which is alleged is true. This determination is to be made "as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge." Id. at § 2000e-5(b). If the EEOC finds that there is reasonable cause it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. When "the Commission (is) unable to secure . . . a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge." Id. at § 2000e-5(f)(1).
If a charge is dismissed by the EEOC, or if after 180 days from the filing of the charge, the EEOC has neither filed a civil action or entered into a conciliation agreement and upon the request of the complainant, the EEOC "shall so notify the person aggrieved and within ninety days after giving such notice a civil action may be brought against the respondent..." Id. In 1977, the EEOC promulgated a regulation that purported to authorize the Commissioner to issue an early right-to-sue notice. In particular, 29 C.F.R. § 1601.28(a)(2) provides that the EEOC may, upon a complainant's request, authorize a private suit: at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided that [an appropriate Commission official] has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.
Id. As previously stated, Plaintiff filed her EEOC complaint on June 2, 2010. On June 8, 2010, pursuant to 29 C.F.R. § 1601.28(a)(2), and only six days after the filing of the EEOC complaint, an early right-to-sue notice was issued at her request.
The Court notes that this 180 day waiting period is not jurisdictional. As the Supreme Court said in Zipes v. Trans World Airlines, Inc,, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The Court wrote:
The provision granting district courts jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f), does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC. It contains no reference to the timely-filing requirement. The provision specifying the time for filing charges with the EEOC appears in an entirely separate provision and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.
Id. at 393-94, 102 S.Ct. 1127.
As both parties briefed, courts are divided as to whether, under 29 C.F.R. § 1601.28(a)(2), the EEOC's early issuance of a right-to-sue letter presents an impediment to proceeding with a Title VII claim in federal court. The Eleventh and Ninth Circuits in Sims v. MacMillan, 22 F.3d 1059 (11th Cir.1994) and Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251 (9th Cir.1980) held that when the EEOC issues a right-to-sue letter at a claimant's request and prior to the expiration of 180 days from the filing of the complaint with the Commission, the premature issuance by the EEOC does not preclude the complainant from filing suit in the appropriate federal court. Other district courts have joined the Eleventh and Ninth Circuits, including one decision from this district. See Palumbo v. Lufthansa German Airlines, 98 CV 5005, 1999 WL 540446 (S.D.N.Y. July 26, 1999); Rosario v. Copacabana Night Club, Inc., 97 CV 2052, 1998 WL 273110 (S.D.N.Y. May 28, 1998); Figueira v. Black Entertainment Television, 944 F.Supp. 299 (S.D.N.Y.1996); Parker v. Noble Roman's, Inc., IP-96-65-C-D/F, 1996 WL 453572 (S.D.Ind. June 26, 1996); Martinez v. Labelmaster, 96 C 4189, 1996 WL 580893 (N.D.Ill. Oct.4, 1996); Defranks v. Court of Common Pleas, 95-327, 1995 WL ...