USCA4 Appeal: 20-1967 Doc: 11 Filed: 11/14/2022 Pg: 1 of 8

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1967

MENGYANG LI,

Plaintiff - Appellant,

v.

SHEPHERD UNIVERSITY,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:19-cv-00216-GMG-RWT)

Submitted: August 18, 2022 Decided: November 14, 2022

Before KING and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Mengyang Li, Appellant Pro Se. Tracey Brown Eberling, STEPTOE & JOHNSON PLLC, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 20-1967 Doc: 11 Filed: 11/14/2022 Pg: 2 of 8

PER CURIAM:

Mengyang Li filed a civil action against his employer, Shepherd University

(“Shepherd”) alleging claims for perjury and violations of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and the Age

Discrimination in Employment Act,

(ADEA). The district court

granted Shepherd’s motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) and

(6). On appeal, Li challenges the district court’s conclusions that his ADEA claims were

barred by sovereign immunity and that his Title VII claims were subject to dismissal for

failure to exhaust administrative remedies. 1 We affirm in part, vacate in part, and remand

for further proceedings.

We review de novo a district court’s dismissal for lack of subject matter jurisdiction.

Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of Balt.,

(4th Cir. 2017). Dismissal is appropriate under Rule 12(b)(1) “if the material jurisdictional

facts are not in dispute and the moving party is entitled to prevail as a matter of law.”

(internal quotation marks omitted). In evaluating the existence of subject matter

jurisdiction, the district court must “regard the pleadings as mere evidence on the issue,

and may consider evidence outside the pleadings without converting the proceedings to

one for summary judgment.” Episcopal Church in S.C. v. Church Ins. Co. of Vt.,

, 155 n.6 (4th Cir. 2021) (internal quotation marks omitted).

1 Although Li addresses the district court’s ruling on his perjury claims in his reply brief, that issue is not properly before us. See Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017) (deeming issues raised for first time in reply waived).

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We also review de novo the district court’s ruling on a motion to dismiss for failure

to state a claim, “viewing the facts in the light most favorable to the plaintiff.” Sheppard

v. Visitors of Va. State Univ.,

(4th Cir. 2021). To survive a Rule 12(b)(6)

motion, the plaintiff must allege “sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal

quotation marks omitted). In making this determination, we may “consider documents that

are explicitly incorporated into the complaint by reference” or “attached to the complaint

as exhibits,” as well as “document[s] submitted by the movant” that are “integral to the

complaint” and of undisputed authenticity. Goines v. Valley Cmty. Servs. Bd.,

(4th Cir. 2016). We also “may properly take judicial notice of matters of public

record.” Philips v. Pitt Cnty. Mem’l Hosp.,

(4th Cir. 2009).

With respect to Li’s age discrimination claims, we have reviewed the record and

find no reversible error in the district court’s conclusion that Eleventh Amendment

immunity barred relief under the ADEA. See Kimel v. Fla. Bd. of Regents,

(2000) (holding that Congress has not abrogated Eleventh Amendment immunity for

ADEA claims); Lee-Thomas v. Prince George’s Cnty. Pub. Schs.,

(4th

Cir. 2012) (describing exceptions to Eleventh Amendment immunity). Additionally,

insofar as Li challenges the district court’s refusal to recognize age discrimination claims

under the Fourteenth Amendment and the West Virginia Constitution, we conclude that the

district court committed no reversible error in declining to consider those claims. See ACA

Fin. Guar. Corp. v. City of Buena Vista, Va.,

(4th Cir. 2019) (“[A]

district court does not abuse its discretion by declining to grant a request to amend when it

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is not properly made as a motion.”); Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp.,

(4th Cir. 2019) (observing that “[c]ourts may deny leave to amend a

pleading if the amendment would have been futile” because proposed amendment “would

not survive a motion to dismiss”); S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.

OpenBand at Broadlands, LLC,

(4th Cir. 2013) (stating “well-

established” rule “that parties cannot amend their complaints through briefing”); see also

Zombro v. Balt. City Police Dep’t,

(4th Cir. 1989) (holding that

ADEA provides exclusive judicial remedy for age discrimination in employment).

Turning to Li’s Title VII claims, 2 we are unpersuaded by Li’s arguments that, as a

matter of state law, he fully exhausted his administrative remedies with respect to

proceedings he initiated before the West Virginia Public Employees Grievance Board

(PEGB). See Li v. Shepherd Univ. President’s Office, No. 20-0393,

, at

*4 (W. Va. June 23, 2021), cert. denied,

(2022); Subramani v. W. Va. Univ.

Bd. of Governors, No. 14-0924,

, at *5 (W. Va. Nov. 20, 2015).

However, construing Li’s complaint liberally, see Erickson v. Pardus,

(2007) (per curiam), Li also argues that he was not required to exhaust the state-law PEGB

2 Although the district court dismissed the Title VII claims for lack of jurisdiction, Title VII’s exhaustion requirement is a nonjurisdictional claim-processing rule. See Fort Bend Cnty, Tex. v. Davis,

, 1850-51 (2019); Walton v. Harker,

(4th Cir. 2022). Nevertheless, we address the propriety of dismissal pursuant to Rule 12(b)(6). See Hawes v. Network Sols., Inc.,

, 383 (4th Cir. 2003); see also Goines,

(discussing materials appropriately considered); Philips,

(same).

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procedures as a prerequisite to filing employment discrimination claims under Title VII in

federal court. We agree.

“Prior to pursuing a Title VII claim in federal court, a plaintiff must exhaust her

administrative remedies by filing a charge of discrimination with the [Equal Employment

Opportunity Commission (EEOC)].” Hentosh v. Old Dominion Univ.,

(4th Cir. 2014); see 42 U.S.C. § 2000e-5(b), (e)(1), (f)(1). Where the plaintiff challenges

an employment practice occurring in a state that has both a “law prohibiting the unlawful

employment practice alleged,” 42 U.S.C. § 2000e-5(c), and “a fair employment agency of

its own empowered ‘to grant or seek relief,’ Title VII instructs the complainant to file her

charge first with the state or local agency,” Fort Bend Cnty, Tex. v. Davis,

(2019) (quoting 42 U.S.C. § 2000e-5(c)). If the state has a work sharing agreement

with the EEOC, the plaintiff typically “need not file separately with federal and state

agencies,” but instead “may file her charge with one agency, [which] will then relay the

charge to the other.” Id.; see

(2022); Davis v. N.C. Dep’t of Corr.,

, 137 (4th Cir. 1995).

Upon receipt of the charge, the EEOC conducts an investigation and, if it declines

to bring a civil action against the employer, dismisses the charge and notifies the

complainant of her right to sue. Davis,

. “Whether or not the EEOC

acts on the charge, a complainant is entitled to a ‘right-to-sue’ notice 180 days after the

charge is filed.”

; see 42 U.S.C. § 2000e-5(f)(1);

(2022).

“And within 90 days following such notice, the complainant may commence a civil action

against the allegedly offending employer.” Davis,

; see 42 U.S.C.

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§ 2000e-5(f)(1). The receipt of, or at least entitlement to, the statutory right-to-sue letter

is a prerequisite to suit in federal court. See Davis, 48 F.3d at 140.

West Virginia has sought to provide relief for employment discrimination based on

characteristics such as race and national origin by enacting the West Virginia Human

Rights Act, see

to 5-11-20 (“WVHRA”), which is enforced

through the West Virginia Human Rights Commission (“HRC”), see

-

8(c), (d). The HRC is a designated fair employment agency operating under a work sharing

agreement with the EEOC. See

(a) (2022); Petrelle v. Weirton Steel

Corp.,

(4th Cir. 1991). In contrast, the PEGB is not identified as a

designated fair employment agency. See

(a). Nor is the PEGB

authorized to determine liability under the WVHRA, although it may remedy

discrimination that also would violate the WVHRA. Weimer v. Sanders,

(W. Va. 2013); Vest v. Bd. of Educ. of Cnty. of Nicholas,

(W. Va.

1995).

The “procedures employed by the [PEGB] are not substantially similar to those

employed by either a court of law or the [HRC],” lacking such meaningful protections for

claimants as an independent investigation, attorney representation, and discovery. Weimer,

. As a result, a claimant is not required to exhaust remedies under the

PEGB to pursue claims for violations of the WVHRA, even where the PEGB and WVHRA

claims arise out of the same facts or circumstances.

.

As Li asserts, the timeline of his protracted PEGB proceedings conflicted materially

with the statutory time limitations applicable to his Title VII claims. See 42 U.S.C.

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§ 2000e-5(e)(1), (f)(1). And, applying Weimer and Vest to the analogous Title VII context,

the PEGB is not a state authority capable of affording substantial relief to an aggrieved

employee for violations of Title VII, as would require exhaustion under 42 U.S.C. § 2000e-

5(c). See Davis,

; see also Knotts v. Grafton City Hosp.,

(W. Va. 2016) (acknowledging overlap between Title VII and WVHRA). Thus, we

conclude that federal law did not require Li to comply with the PEGB procedures as a

prerequisite to suit under Title VII.

We are unpersuaded by Shepherd’s apparent assertion that the West Virginia

legislature established an independent state-law exhaustion requirement for West

Virginia’s public employees under the PEGB procedures as a precondition to filing federal

employment discrimination claims in federal court. As Li observes, he satisfied Title VII’s

exhaustion requirement of filing a charge with the EEOC and obtaining a right-to-sue letter

before filing suit. See Davis, 48 F.3d at 137. And, Shepherd has not argued that Li was

required to comply with any other state administrative remedies prior to filing suit under

Title VII. We therefore conclude that the district court erred in dismissing Li’s Title VII

claims for failure to exhaust administrative remedies.

Accordingly, we vacate the district court’s dismissal of Li’s Title VII claims, affirm

the district court’s order in all remaining respects, and remand for further proceedings in

accordance with this opinion. We deny Li’s requests to reassign the action to a different

district judge, see United States v. McCall,

(4th Cir. 2019), and to strike

Shepherd’s response brief. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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