Kokinda v. Chipotle Mexican Grill, Inc. et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
JASON STEVEN KOKINDA,
Plaintiff,
vs. 	Civil Action No. 1:25-CV-73
(JUDGE KLEEH)
CHIPOTLE MEXICAN GRILL, et al.,
Defendants.
REPORT AND RECOMMENDATION, RECOMMENDING THAT DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS [ECF NO. 39] BE GRANTED
AND PLAINTIFF’S MOTION TO OBTAIN RECORDS [ECF NO. 55] BE DENIED
This matter is before the undersigned United States Magistrate Judge pursuant to a Referral
Order [ECF No. 4], entered by the Hon. Thomas S. Kleeh, Chief United States District Judge, on
August 1, 2025. By the Referral Order, Judge Kleeh directed that the undersigned enter orders or
reports and recommendations, as appropriate, and dispense with other matters which may arise
herein.
This matter pertains pro se Plaintiff’s employment at a fast food restaurant and grievances
he had with co-workers. It appears that he would bring a Title VII employment discrimination
claim under federal law, and may also attempt to bring state law claims for defamation and “false
light.” To the extent these are the causes of action Plaintiff intends to pursue, Defendants argue
that the Title VII claim and the state law claims are time-barred. Defendants also argue that
Plaintiff failed to plead essential elements of the state law claims, and that in any case, the state
law claims fail because they pertain to privileged communications.
Pending before the Court are Defendants’ motion [ECF No. 39] for judgment on the
pleadings and memorandum in support [ECF No. 39-1], thereof, filed on October 14, 2025. On
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 1 of 21 PageID #:
<pageID>

2
October 15, 2025, the Court entered a Roseboro Notice [ECF No. 41] regarding Defendants’
motion, which Plaintiff received [ECF No. 44] on October 20, 2025. The Court also is in receipt
of Plaintiff’s response [ECF No. 46], filed on November 4, 2025; Defendant’s reply [ECF No. 47]
filed on November 11, 2025; Plaintiff’s surresponse [ECF No. 50], filed on November 20, 2025;
Defendants’ notice [ECF No. 51] of supplemental information in support of the motion for
judgment on the pleadings, filed on November 24, 2025; and Plaintiff’s response [ECF No. 53] to
Defendant’s notice of supplemental information, filed on December 2, 2025.
Also pending before the Court is Plaintiff’s motion [ECF No. 55] for authorization to obtain
records, filed on December 3, 2025. There is no response to this motion.
Having reviewed the motion for judgment on the pleadings and memorandum in support
and briefing in response/reply summarized above, and having conducted a thorough examination
of the record and the pertinent legal authority, the undersigned respectfully RECOMMENDS that
Defendants’ motion for judgment on the pleadings [ECF No. 39] be GRANTED and that pro se
Plaintiff’s Amended Complaint [ECF No. 20] be DISMISSED with prejudice as more fully set
forth below. Relatedly, the undersigned also RECOMMENDS that Plaintiff’s motion [ECF No.
55] for authorization to obtain records be DENIED.
I. PLAINTIFF’S FACTUAL ALLEGATIONS AND CONSTRUAL OF CLAIMS
On July 31, 2025, pro se Plaintiff filed the Complaint [ECF No. 1] and paid the required
filing fee. On September 5, 2025, Plaintiff filed an Amended Complaint. [ECF No. 20]. In the
Amended Complaint, Plaintiff’s factual allegations are not cogently pled. However, in deference
to Plaintiff’s pro se status, as best as the undersigned can discern, the salient allegations are as
follows.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 2 of 21 PageID #:
<pageID>

3
Plaintiff states that on or about December 22, 2023, he was hired to work as a cashier at a
Chipotle Mexican Grill in White Hall, West Virginia (located in the Northern District of West
Virginia). [ECF No. 20, at 3]. He names as Defendants two “Chipotle” entities: Chipotle Mexican
Grill, Inc. and Chipotle Services, LLC (collectively “Chipotle”). Plaintiff also names Armando
Gutierrez (“Gutierrez”) as a Defendant, alleging that Guiterrez was the Chipotle manager who
hired him. And he names two assistant managers at Chipotle as Defendants: Trey Sells and Connor
Smith.
Plaintiff alleges that his work performance was exemplary, and that he took on duties
beyond those of a cashier, including cleaning and stocking, assisting in food preparation, and
enhancing restaurant operations and customers’ experiences. [Id., at 4-5]. He alleges that,
nonetheless, Chipotle terminated his employment on March 11, 2024. [Id., at 13]. Throughout the
Amended 	Complaint, 	Plaintiff 	intimates 	that 	Chipotle 	management 	concocted 	misleading
narratives about him having inappropriate contact with female coworkers and making coworkers
uncomfortable. Plaintiff sporadically makes mention of bumping into female coworkers while
working in close quarters, which Chipotle management perceived to be inappropriate contact,
about which they confronted Plaintiff. However, Plaintiff alleges it was Chipotle management who
acted inappropriately and made workers uncomfortable. [Id., at 13]. Plaintiff states that he drew
attention to management’s conduct, resulting in his termination. [Id.] Plaintiff alleges that Chipotle
maintains “an unconstitutional affirmative action policy” by which it welcomes “a large volume
of homosexual and transgender employees” resulting in “a form of reverse discrimination” against
heterosexual males such as himself. [Id., at 15].
Plaintiff intimates that, because of his termination from Chipotle, he was unable to maintain
employment as required per the terms of supervision in a criminal matter to which he was subject.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 3 of 21 PageID #:
<pageID>

4
[Id., at 18]. He alleges this was a “calculated” effort to return him to incarceration. [Id.] He alleges
that he was returned to incarceration for a term of four and one-half months for failure to comply
with the terms of supervision. [Id.] In addition, Plaintiff alleges he suffered emotional trauma, pain
and suffering, lost wages, and interference with his ability to prosecute other litigation. [Id.]
Further, Plaintiff alleges that the allegations about his workplace conduct “as someone who is
sexually harassing or assaulting women at work” resulted in defamation of his character and his
portrayal in a false light. [Id., at 19].
In the Amended Complaint, Plaintiff does not elucidate specific causes of action and
theories of relief. He does, however, cite to Title VII of the Civil Rights Act of 1964 and invokes
the Court’s federal question jurisdiction. [Id., at 2]. He also explains a process whereby filed a
charge of discrimination with the federal Equal Employment Opportunity Commission (“EEOC”).
His Exhibit A, Exhibit B, and Exhibit C attached to the Amended Complaint all pertain to this
EEOC process. Thus, the undersigned construes the Amended Complaint as containing a Title VII
employment discrimination claim.
In the briefest of fashions, as summarized above, Plaintiff also complains that he was
defamed and portrayed in a false light concerning his conduct toward female co-workers. [Id., at
19]. Thus, to the extent which Plaintiff may attempt to lodge state law claims for defamation and
false light, Defendants address them and the undersigned construes the Amended Complaint as
containing such claims.
On the same day that the parties filed their Report of Rule 26(f) planning meeting,
Defendants also filed their motion for judgment on the pleadings. The next day, October 15, 2025,
the undersigned entered an Order [ECF No. 42] suspending initial discovery and scheduling,
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 4 of 21 PageID #:
<pageID>

5
pending disposition of Defendants’ motion. Thus, the procedural posture of the matter is such that
a motion for judgment on the pleadings is timely.
II. LEGAL ISSUES AND ANALYSIS
The first issue is whether Plaintiff timely brought a Title VII employment discrimination
claim in this Court – particularly, whether he timely acted after the issuance of a Notice of Right
to Sue (“NRTS”) by the EEOC.
The second issue is whether Plaintiff’s state law claims for defamation and false light are
time-barred. The third issue is whether Plaintiff has failed to plead essential elements of the state
law claims, including whether qualified privilege applies, such that they fail.
A. General Legal Standards
Because Plaintiff is proceeding pro se, the Court must liberally construe the pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.
1978). A pro se complaint is subject to dismissal, however, if the Court cannot reasonably read
the pleadings to state a valid claim on which a plaintiff could prevail. Barnett v. Hargett, 174 F.3d
1128, 1133 (10th Cir. 1999). A court may not construct pro se plaintiffs’ legal arguments for them,
nor should it “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).
Under the relevant rule, for judgment on the pleadings “After the pleadings are closed--but
early enough not to delay trial--a party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c). “A motion for judgment on the pleadings is properly granted if it appears certain that the
plaintiff cannot prove any set of facts in support of [its] claim entitling [it] to relief.” Pulte Home
Corp. v. Montgomery Cnty., Maryland, 909 F.3d 685, 691 (4th Cir. 2018)(citation and quotations
omitted). The Fourth Circuit has further instructed:
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 5 of 21 PageID #:
<pageID>

6
The standard of review for Rule 12(c) motions is the same as that under Rule
12(b)(6) . . . Therefore, a motion for judgment on the pleadings should only be
granted if, after accepting all well-pleaded allegations in the plaintiff's complaint
as true and drawing all reasonable factual inferences from those facts in the
plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in
support of his claim entitling him to relief. A Rule 12(c) motion tests only the
sufficiency of the complaint and does not resolve the merits of the plaintiff's claims
or any disputes of fact.
Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014)(citations and quotations omitted).
See also Conner v. Cleveland Cnty., N. Carolina, 22 F.4th 412, 416 (4th Cir. 2022).
Under the Rule 12(b)(6) standard, to survive a motion to dismiss, the rules which govern
civil actions require that Plaintiff set forth a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Moreover, a complaint must set forth a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under seminal civil procedure
caselaw, a cause of action must be supported by “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reliance on
Twombly, the Supreme Court has emphasized that “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The “sheer possibility that a defendant has acted unlawfully” is insufficient. Id.
Facial plausibility is established when a plaintiff “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. However,
a plaintiff must provide detail that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Twombly, 550 U.S., at 570; Iqbal, 556 U.S., at, 678.
Nonetheless, even though Rule 8 does not require great particularity, claims must be pled with
sufficient detail such that a defendant has fair notice of the basis of a plaintiff’s claim. Twombly,
550 U.S., at 555. More specifically:
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 6 of 21 PageID #:
<pageID>

7
It is established that a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face. We have recognized that
facial plausibility is established once . . . the complaint’s factual allegations produce
an inference . . . strong enough to nudge the plaintiff’s claims across the line from
conceivable to plausible. In assessing the sufficiency of a complaint, we assume as
true all its well-pleaded facts and draw all reasonable inferences in favor of the
plaintiff. Thus, to satisfy the plausibility standard, a plaintiff is not required to plead
factual allegations in great detail, but the allegations must contain sufficient factual
heft to allow a court, drawing on judicial experience and common sense, to infer
more than the mere possibility of that which is alleged.
Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal citations and
quotations omitted). As a corollary, of course, legal claims asserted must have a basis in both fact
and law.
Under Rule 12(b)(6), “When rendering its decision, [a] [c]ourt should consider only the
allegations contained in the complaint, the exhibits to the complaint, matters of public record, and
other similar materials that are subject to judicial notice.” Conklin v. Jefferson Cty. Bd. of Educ.,
205 F. Supp. 3d 797, 803 (N.D.W. Va. 2016) (citing Anheuser–Busch, Inc. v. Schmoke, 63 F.3d
1305, 1312 (4th Cir.1995)). Finally, “[a] district court's dismissal under Rule 12(b)(6) is, of course,
with prejudice unless it specifically orders dismissal without prejudice. That determination is
within the district court's discretion.” Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th
Cir. 1985); see also Cameron v. MTD Prod., Inc., No. CIV.A.5:03 CV 75, 2004 WL 3256003, at
*3 (N.D.W. Va. Jan. 7, 2004), aff'd, 90 F. App'x 53 (4th Cir. 2004).
B. Title VII Claim
The procedural background of the Title VII claim is somewhat circuitous. Plaintiff claims
that the EEOC was tardy in providing the NRTS. As such, he argues equitable tolling should apply
to render his Complaint timely filed.
As a general matter, as to equitable tolling of a statute of limitations, the Fourth Circuit has
instructed:
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 7 of 21 PageID #:
<pageID>

8
[A]ny invocation of equity to relieve the strict application of a statute of limitations
must be guarded and infrequent, lest circumstances of individualized hardship
supplant the rules of clearly drafted statutes. To apply equity generously would
loose the rule of law to whims about the adequacy of excuses, divergent responses
to claims of hardship, and subjective notions of fair accommodation. We believe,
therefore, that any resort to equity must be reserved for those rare instances
where—due to circumstances external to the party's own conduct—it would be
unconscionable to enforce the limitation period against the party and gross injustice
would result.
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)(quoting Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir.2000)). Moreover, “[p]rinciples of equitable tolling do not extend to garden variety claims
of excusable neglect.” Id. (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)).
For context, Title VII prohibits certain employers from discriminating on the basis of “race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. As noted above, Plaintiff seems to
base his Title VII claim on alleged discrimination against him as a heterosexual male. There is a
vast body of interpretive caselaw under Title VII concerning who can bring what sorts of claims,
what employers are subject to its requirements, what kind of relief a claimant may seek, and the
like. Regardless, for purposes of this matter, Title VII requires a claimant, at first, to file a charge
with the EEOC, to initiate an investigation by that body. 42 U.S.C. § 2000e-5. If the EEOC does
not pursue its own action in response to a claimant’s charge, then the EEOC is to provide a NRTS.
42 U.S.C. § 2000e-5(f)(1). A claimant then may pursue their own civil action in court, but
importantly, a claimant must bring such an action within 90 days of the EEOC giving the NRTS.
Id.
Under operative caselaw, there is very little relief from that 90-day deadline. Specifically,
in the context of a NRTS from the EEOC, the Fourth Circuit has rejected the “actual receipt rule”
to determine when the 90-day clock begins to run. Harvey v. City of New Bern Police Dep't, 813
F.2d 652, 654 (4th Cir. 1987). In other words, the 90-day clock does not necessarily begin to run
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 8 of 21 PageID #:
<pageID>

9
upon a claimant’s actual receipt of the NRTS. To base the 90-day clock on actual receipt, the
Harvey court noted, would permit claimants “to have an open-ended time extension, subject to
manipulation at will.” Id. In rejecting the “actual receipt” rule, and examining the 90-day
requirement, the Fourth Circuit found “clear evidence that Congress intended to require claimants
to act expeditiously, without unnecessary delay.” Id. And for instances where application of a
“constructive receipt” rule would be not serve the “requirements of justice,” the Harvey court
counseled that “district courts should conduct a thorough examination of the facts to determine if
reasonable grounds exist for an equitable tolling of the filing period.” Id. Having conducted such
a thorough examination, the undersigned concludes that equitable tolling should not apply here.
In Harvey, the claimant’s spouse, not the claimant himself, took delivery of a hardcopy of
the NRTS. The Harvey claimant himself obtained the NRTS six days after delivery to his spouse,
and filed a lawsuit 91 days after delivery of the NRTS to his spouse. The Harvey court found that
the lawsuit was not timely filed and that the deadline to file should not be equitably tolled, insofar
as the claimant knew of the NRTS within six days of it arriving, thus leaving him 84 days to bring
his lawsuit. In a similar case, the Fourth Circuit found that the deadline to file a lawsuit began to
run when a claimant received notice from the postal service to pick up a certified letter (which was
the NRTS), not when she actually retrieved the letter from the postal service, five days later. Watts-
Means v. Prince George's Fam. Crisis Ctr., 7 F.3d 40, 41-42 (4th Cir. 1993). The Watt-Means
claimant, who suspected that the notice pertained to her EEOC matter, filed suit within 90 days of
retrieving the NRTS, not within 90 days of delivery. The Watts-Means court pointed out that
allowing the 90-day clock to start upon retrieval of the NRTS could encourage the same
“manipulation of the limitations period that concerned the Court in Harvey.” Id., at 42.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 9 of 21 PageID #:
<pageID>

10
It appears that, more recently, EEOC utilizes an online portal to transmit NRTSs, whereby
the agency uploads documents to the portal. Then, regarding an uploaded document, the system
generates an email to participants in that matter. Such digital transmissions are permitted. 29
C.F.R. § 1601.3(b). In the instant case, Plaintiff does not seem to complain about the utilization of
that portal, but rather complains about alleged problems with it. Specifically, Plaintiff claims that
he received actual notice of the NRTS on August 20, 2025. [ECF No. 20, at 3 n.1; ECF No. 20-3,
at 8]. He claims that he received notice by email of the NRTS on May 22, 2025. [ECF No. 20, at
3; ECF No. 20-3, at 4]. Thus, Plaintiff’s argument goes, by filing the Complaint herein on July 31,
2025, he filed the lawsuit within 90 days of the May 22 email and even before receiving actual
notice on August 20.
However, this is not the end of the analysis. There is no question that the EEOC issued
Plaintiff’s NRTS on April 7, 2025. [ECF No. 20-3, at 8; ECF No. 35-1, at 2]. Moreover, Plaintiff
states that he received an email on April 7, 2025. [ECF No. 46, at 9]. He states that the email did
not specifically mention a NRTS, but did direct him to download a document of some sort. Id.
Plaintiff states that he was unable to download any document, but Defendants represent that
Chipotle was able to access and download the NRTS [ECF No. 39-1, at 9], which cuts against
Plaintiff’s assertion that he was unable to access and download the material when prompted by the
April 7 email to do so.
Additionally, Defendants provided the above-noted supplemental filing [ECF No. 51] in
support of their motion for judgment on the pleadings. This filing contains information which
Defendants state they obtained from the EEOC by filing a Freedom of Information Act request for
information concerning Plaintiff’s charge. These materials appear to include a log of activity
concerning the charge, including communications sent from the EEOC to participants in the matter
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 10 of 21 PageID
#: <pageID>

11
as well as activity by participants accessing materials in the EEOC portal. In particular, the
materials include a chart containing three columns: (1) one with the date and time of the entry
reflecting the activity in the matter; (2) one memorializing the “event” with a description of the
activity undertaken; and (3) one with “name,” apparently reflecting the name of the party who
performed the activity which generated the “event” in the second column.
Defendants focus on one entry in the chart on April 7, 2025 reflecting that someone
accessed and downloaded the NRTS. Defendants argue that this person was Plaintiff. Plaintiff
argues that Chipotle was the party who accessed because the chart indicates access by “respondent”
and Chipotle would be designated as such with the EEOC. From the undersigned’s review of the
chart, and without further explanation of codes or nomenclature used in the EEOC’s system, the
identity of any party who accessed the NRTS on April 7 is not clear. However, what is apparent,
from another entry on the chart, on April 15, 2025, is that the EEOC emailed Plaintiff a reminder
that the NRTS was available to download. Therefore, even if the April 7 email (which Plaintiff
admits he received) was unclear to him about the NRTS, the April 15 email reminding him about
the NRTS eliminates any doubt. At bottom, whether the operative date for the start of the 90-day
clock was April 7 or April 15, Plaintiff was untimely in filing his Complaint herein on July 31,
beyond the 90-day window. That Plaintiff was only weeks late in doing so is of no consequence.
The Harvey line of cases shows that, absent extraordinary circumstances, missing the deadline by
any amount of time is enough to make the claim time-barred.
But setting aside the April 7 and April 15 notifications, the record plainly shows that on
May 22, 2025, EEOC staff straightforwardly told Plaintiff that the charge was closed and that he
should download the NRTS. [ECF No. 20-3, at 4]. Yes, from a review of the record, it appears that
Plaintiff did nothing in response to that May 22 communication until August 13, 2025, when he
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 11 of 21 PageID
#: <pageID>

12
inquired about it by email with EEOC. [ECF No. 20-3, at 6]. Moreover, apparently without the
NRTS actually in hand, Plaintiff filed the Complaint herein on July 31. The May 22 date is
important not for establishing the date on which Plaintiff’s 90-day clock started. Rather, it is
informative to show that, between May 22 and August 13, the record demonstrates nothing which
Plaintiff did further to try to obtain the NRTS. As a result of the August 13 communication, he
was provided the NRTS by email on August 20. [ECF No. 20-3, at 8]. Thus, Plaintiff knew how
to elevate the issue with the agency, and when he did, he obtained the NRTS within seven days.
The problem is that he sat on his rights as of May 22 (and arguably even earlier, in April), and did
not revisit the issue with the agency for nearly three months. This is just the sort of approach that
that the Harvey line of cases dissuades, and undercuts Plaintiff’s argument for equitable tolling.
To underscore Plaintiff’s dilatory approach to EEOC proceedings and processes in this
matter, Defendants highlight that the EEOC closed the charge because Plaintiff failed to sign the
charge in the first place to initiate it. [ECF No. 51-1, at 5]. Indeed, materials which Plaintiff
provided show that EEOC staff told Plaintiff to sign the charge by April 1, 2025 or “it would be
closed for failure to respond.” [ECF No. 20-3, at 2]. It seems that Plaintiff never signed the charge.
Plaintiff relies on the case of Garcia-Gesualdo v. Honeywell Aerospace of Puerto Rico,
Inc., 135 F.4th 10 (1st Cir. 2025). In that case, the court found that equitable tolling of the statute
of limitations should apply. The claimant there received an email from EEOC on March 29, 2022
(100 days before she brought her lawsuit) and again on April 6, 2022 (92 days before she brought
her lawsuit). However, as Defendants point out, in Garcia-Gesualdo, the claimant’s attorney
communicated with the EEOC investigator the next day, raising an alarm about the inability to
access the agency’s decision via the online portal. EEOC’s tech support staff affirmatively
acknowledged a technical issue of that nature after an update of the agency’s database. The
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 12 of 21 PageID
#: <pageID>

13
claimant’s attorney continued to have trouble accessing the system and obtained a message from
the agency four days later, on April 11, with a PDF file of the NRTS.
By contrast, in the instant matter, Plaintiff has provided nothing to demonstrate that EEOC
acknowledged a problem with the portal. What is more, unlike Plaintiff, the Garcia-Gesualdo
claimant immediately contacted two EEOC staffers, documented how they encountered the system
error, obtained agency confirmation of the problem, and ultimately obtained the NRTS as
expeditiously as they could. And to be certain, in any event, Garcia-Gesualdo is not binding
precedent on this Court.
As an aside, Plaintiff makes passing references a complaint or charge he pursued against
“Tim Horton’s,” presumably the restaurant chain. He seems to suggest that he simultaneously
pursued an EEOC charge against Tim Horton’s and Chipotle, and that doing so, it contributed to
the “glitch” he alleges occurred on the EEOC portal in the instant case. However, other than
Plaintiff’s conjecture, there is nothing before the Court about how such simultaneous pursuit of
charges contributed to difficulty in accessing documents in the EEOC portal for the instant case.
Without more, this does not elevate the issue under relevant caselaw for application of the equitable
tolling of the statute of limitations.
To summarize, then, with respect to the Title VII claim, the undersigned FINDS that
Plaintiff filed his Complaint untimely and that equitable tolling of the deadline should not apply,
thus warranting judgment on the pleadings in Defendants’ favor under Rule 12(c).
C. Plaintiff’s Motion to Obtain Records [ECF No. 55]
Relative to the Title VII claim, Plaintiff has filed the above-noted motion [ECF No. 55]1 to
obtain certain records of digital downloads of certain files. By this motion, it appears that Plaintiff,
1 By this motion, Plaintiff decries the opposing parties’ “malicious filings,” “perjured affidavits,” and
litigation tactics which are “needlessly burdening the court.” [ECF No. 55, at 1]. To be clear, the
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 13 of 21 PageID
#: <pageID>

14
as part of the conditions of his federal supervised release, has his computer activity is monitored.
Plaintiff wishes to obtain records of his computer use to demonstrate his access (or absence
thereof) 	to support his contention that he did not receive a NRTS on April 7, 2025. Plaintiff
represents in the motion that his Probation Officer requires him to obtain authorization to access
such records from the judge who sentenced him (who is not the undersigned Magistrate Judge).
Thus, the undersigned addresses this motion in the context of this Report and Recommendation to
the presiding District Judge, rather than through an affirmative Order dispensing with the motion.
As set forth in the analysis immediately above, Plaintiff’s activity (and inaction) regarding
the Title VII claim is thoroughly set forth. The presence of absence of a document downloaded to
Plaintiff’s electronic device is not dispositive under the operable caselaw and analysis set forth
above. Accordingly, the undersigned FINDS that the relief sought in Plaintiff’s motion is
unnecessary and would serve to delay disposition of this matter needlessly.
C. Defamation and False Light Claims
As summarized above, it is not entirely clear from the Amended Complaint that Plaintiff
intends to bring claims for defamation and false light. He does not explicitly set forth such causes
of action. The Amended Complaint is short on explanation of what statements Plaintiff found to
be actionable, when they were made, who made them, who received them, or how he was harmed
by them. However, to the extent Plaintiff seeks to bring such claims, the undersigned addresses
the necessary issues in turn.
1. Statutes of Limitations
To recap, Plaintiff alleges that his employment with Chipotle was terminated on March 11,
2024. [ECF No. 20, at 13]. He makes no factual allegations whatsoever about anything actionable
undersigned perceives nothing whatsoever from Defendants which could be characterized this way.
Plaintiff’s “scorched earth” approach in this regard is unhelpful and Plaintiff is cautioned against it.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 14 of 21 PageID
#: <pageID>

15
after that date. Thus, the last possible date on which anything actionable could have occurred was
March 11, 2024. Moreover, Plaintiff does not allege that he became aware of anything actionable
after March 11, 2024.
As Defendants correctly point out, defamation claims in West Virginia are subject to a one-
year statute of limitations. W. Va. Code § 55-2-12(c); see also Herbert J. Thomas Mem'l Hosp.
Ass'n v. Nutter, 238 W. Va. 375, 390-391, 795 S.E.2d 530, 545-546 (2016). And in West Virginia,
defamation causes of action begin to accrue “when the fact of the defamation becomes known, or
reasonably should have become known, to the plaintiff.” Padon v. Sears, Roebuck & Co., 186 W.
Va. 102, 105, 411 S.E.2d 245, 248 (1991). In the instant case, the statute of limitations began to
run no later than March 11, 2024. Plaintiff filed the Complaint herein on July 31, 2025, well after
the one-year period had run. Thus, the undersigned FINDS that any defamation claim is time-
barred and Defendants are entitled to judgment on the pleadings on this issue, under Rule 12(c).
As for the “false light” claim, and in view of Plaintiff’s pro se status, the undersigned
construes such claim as one for invasion of privacy, insofar as “false light” is an element of an
invasion of privacy claim. Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 711, 320 S.E.2d
70, 82 (1983). As Defendants point out, such a claim also is subject to a one-year statute of
limitations in West Virginia. Slack v. Kanawha Cnty. Hous. & Redevelopment Auth., 188 W. Va.
144, 148, 423 S.E.2d 547, 551 (1992). Again, Plaintiff filed the Complaint on July 31, 2025, more
than one year after March 11, 2024. Thus, the undersigned FINDS that the false light claim is
time-barred, and Defendants are entitled to judgment on the pleadings, under Rule 12(c).
2. Attempt to Construe Defamation/False Light Claims as Personal Injury Matters
Only once he filed a response to Defendants’ motion for judgment on the pleadings did
Plaintiff attempt to argue much substance related to the defamation and false light claims. In the
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 15 of 21 PageID
#: <pageID>

16
response, Plaintiff makes a strained argument about how such claims are subject to a two-year
statute of limitations for a personal injury claim. [ECF No. 46, at 13]. The basis for arguing that
he suffered personal injury is not clear, but it appears to be tied to Plaintiff’s perception that there
was a conspiracy to terminate his employment and adversely affect his eligibility to reside at a
halfway house instead of prison.
To be sure, under West Virginia law, a personal injury claim is subject to a two-year statute
of limitations. W. Va. Code § 55-2-12(b). But Plaintiff’s attempt here to shoehorn a personal injury
claim onto the defamation and false light claims is a nonstarter. There is nothing in the law to
support the argument that, by suffering alleged personal injury, the one-year statutes of limitations
for defamation and false light are enlarged to two years. The law is clear that reputational torts
such a defamation and false light are subject to a one-year statute of limitations.
Moreover, the Amended Complaint is entirely devoid of anything regarding personal
injury, physical injury, or bodily injury. Thus, even if the law operated as Plaintiff wished, to
enlarge the statute of limitations, he has pled nothing to support it. The only thing which Plaintiff
seems to offer in this regard is in his response [ECF No. 46] to the motion for judgment on the
pleadings. In that response, he makes an unclear argument about a conspiracy to terminate his
employment and affect his residency in a halfway house. To put forward allegations in a filing
other than a complaint is insufficient to salvage a defective claim. But even under the liberal pro
se pleading standard, if the Court were to allow statements included in the response to supplement
the Amended Complaint, this does nothing to salvage the claims. Plaintiff still fails to establish
personal injury.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 16 of 21 PageID
#: <pageID>

17
Thus, the undersigned FINDS that Plaintiff fails to construe any defamation and false light
claims as personal injury matters which are subject to anything other than the one-year statute of
limitations.
3. Substance of Defamation Claim
Under seminal West Virginia caselaw, “the essential elements for a successful defamation
action by a private individual are (1) defamatory statements; (2) a nonprivileged communication
to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the
publisher; and (6) resulting injury.” Crump, 173 W. Va., at 706, 320 S.E.2d, at 77.
As already noted, the factual allegations which support a defamation claim are poorly pled.
Plaintiff alleges a co-worker, identified only as Jessica, spread “ugly rumors” and that another co-
worker, identified only as “D’Andre,” “spread[ ] malicious rumors.” [ECF No. 20, at 8, 13]. He
does not offer any detail about what those rumors were or how the acts of these co-workers give
rise 	to 	liability 	by 	the 	named 	Defendants. 	He 	does 	nothing 	to 	explain 	whether 	these
communications were transmitted outside of the workplace. Nor does he explain how they were
transmitted to anyone other than someone with a legitimate need to know the information. Plaintiff
also alleges “defamation of character” in the “Damages” portion of the Amended Complaint [ECF
No. 20, at 19] but does not say who made what statements, let alone specify to whom they were
said.
As Defendants correctly point out, the defamation claim fails on multiple fronts. First, to
the extent the statements are discernible, they appear to be either workplace gossip or
communications about workplace staffing and personnel. Without more, Plaintiff has not shown
them to be nonprivileged, thus failing one of the prongs under Crump. Statements about workplace
fitness, workplace performance, and the like are privileged. Kerr v. Marshall Univ. Bd. of
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 17 of 21 PageID
#: <pageID>

18
Governors, 824 F.3d 62, 75 (4th Cir. 2016). Under Kerr, communications within an employment
setting and relating to internal operations are protected by the qualified privilege doctrine. Plaintiff
has not pled facts about statements being made outside of the sphere of the workplace and its
operations. What Plaintiff does say, however, is that the workplace chatter about which he
complains related to female co-workers feeling uncomfortable around him and complaining about
inappropriate 	touch, 	sounding 	in 	sexual 	harassment. 	[ECF 	No. 	20, 	at 	10]. 	Thus, 	such
communications would give rise to a duty by management to investigate the issue. This puts the
communications squarely within those contemplated by Kerr as nonprivileged. This is not to say
that defamation can never arise from statements made about, or solely within, the workplace. But
in this matter, without more, the poorly-pled claim cannot overcome the requirement that the
statements were nonprivileged.
In addition, Plaintiff has made no allegation about publication of a statement which is
provably false, further failing the Crump test. His allegations are sparse and conclusory, with no
explanation whatsoever about how the statements of which he complains are false. In fact, in
reviewing the Amended Complaint, it is entirely unclear what the contents of these alleged
statements were. There is no demonstration whatsoever of falsity under Crump.
Accordingly, the undersigned FINDS that any claim of defamation fails, such that
Defendants are entitled to judgment on the pleadings under Rule 12(c).
4. Substance of False Light Claim
The Crump court also set forth the elements for invasion of privacy/false light: “An
‘invasion of privacy’ includes (1) an unreasonable intrusion upon the seclusion of another; (2) an
appropriation of another's name or likeness; (3) unreasonable publicity given to another's private
life; and (4) publicity that unreasonably places another in a false light before the public.” Syl. Pt.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 18 of 21 PageID
#: <pageID>

19
8, Crump, 173 W. Va., at 703, 320 S.E.2d, at 74. As Defendants rightly point out, under Crump,
to maintain such a cause of action, a showing of “widespread publicity” is key. Id., 173 W.Va., at
716, 320 S.E. 2d, at 87-88.
Again, Plaintiff’s factual allegations in this regard are conclusory and thin. But to the extent
he articulates them, his allegations go only so far as to highlight workplace gossip and, apparently,
an elevation of co-workers’ concerns to management. There is no allegation at all about
“widespread publicity.” Plaintiff alleges nothing, for example, about how these nebulous
workplace statements became known more widely in the public sphere or otherwise were broadcast
to those outside of the realm of a fast food workplace. As with defamation, this is not to say that
there never could be such a cause of action arising from that workplace environment. It is only to
conclude that Plaintiff has fallen far short of pleading it here.
Defendants also argue Plaintiff has not pled that any Defendant acted with knowledge that
statements they made were false, or acted with reckless disregard for the truth. In support of this
argument, Defendants cite to the unpublished opinion of Giles v. Kanawha Cnty. Bd. of Educ.,
No. 17-0139, 2018 WL 300605 (W. Va. Jan. 5, 2018). It is not clear that this authority reflects that
alleging the mental state of a defendant is required for a false light claim. However, to the extent
that it is, Defendants are correct that Plaintiff has done nothing to show that they made false
statements or conducted themselves recklessly. The Amended Complaint contains nothing in this
regard. Rather, Plaintiff’s own allegations are that female employees complained about him,
sounding in sexual harassment, and that management responded. Plaintiff may object to his
conduct being so flagged, but that hardly gives rise to any allegation about false statements or
reckless disregard for the truth. Thus, to the extent Giles stands for the proposition that a claimant
must make such showing to state a valid claim for false light, Defendants’ argument prevails.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 19 of 21 PageID
#: <pageID>

20
Finally, much as with a defamation claim, the qualified privilege defense applies to a false
light claim, as Defendants persuasively argue. See generally Dzinglski v. Weirton Steel Corp., 191
W. Va. 278, 286, 445 S.E.2d 219, 227 (1994), holding modified on other grounds by Tudor v.
Charleston Area Med. Ctr., Inc., 203 W. Va. 111, 506 S.E.2d 554 (1997). Internal workplace
conversations and statements, and management responding to concerns and investigating such
matters, fall within the qualified privilege ambit. Here, the communications about which Plaintiff
complains are fairly categorized as such. Again, this is not to say that workplace communications
can never overcome this privilege. But it is to say that, given Plaintiff’s sparing and conclusory
allegations, the internal communications about which he complains do not give rise to a viable
false light claim.
Accordingly, the undersigned FINDS that the Amended Complaint fails to state a claim
for false light, such that Defendants are entitled to judgment on the pleadings under Rule 12(c).
III. RECOMMENDATION AND CONCLUSION
Accordingly, for the reasons herein stated, the undersigned RECOMMENDS that
Defendants’ motion for judgment on the pleadings [ECF No. 39] be GRANTED and that
Plaintiff’s Amended Complaint [ECF No. 20] be DISMISSED WITH PREJUDICE in its
entirety. The undersigned also RECOMMENDS that Plaintiff’s motion to obtain records [ECF
No. 55] be DENIED.
Any party may within fourteen (14) days of the date of service of this Report and
Recommendation file with the Clerk of the Court specific written objections identifying the
portions of the Report and Recommendation to which objection is made, and the basis for
such objection. A copy of such objections should also be submitted to the presiding United States
District Judge.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 20 of 21 PageID
#: <pageID>

21
Failure to timely file objections to the Report and Recommendation set forth above
will result in waiver of the right to appeal from a judgment of this Court based upon such
Report and Recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir.
1985); Thomas v. Arn, 474 U.S. 140 (1985).
The 	Clerk 	of 	the 	Court 	is 	DIRECTED 	to 	provide 	a 	copy 	of 	this 	Report 	and
Recommendation to all parties who appear pro se and all counsel of record, as applicable, as
provided in the Administrative Procedures for Electronic Case Filing in the United States District
Court for the Northern District of West Virginia.
Respectfully submitted February 2, 2026.
Case 1:25-cv-00073-TSK-MJA Document 56 Filed 02/02/26 Page 21 of 21 PageID
#: <pageID>