UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2253

FELICIA A. UNDERDUE,

Plaintiff - Appellant,

v.

WELLS FARGO BANK, N.A.; ILA N. PATEL; KENDRA BROWN; SUSAN 

LYBRAND,

Defendants - Appellees.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., District Judge. (3:14-cv-00183-RJC)

Submitted: March 30, 2015 Decided: April 16, 2015

Before WILKINSON, NIEMEYER, and HARRIS, Circuit Judges.

Affirmed in part and affirmed as modified in part by unpublished 

per curiam opinion.

Felicia A. Underdue, Appellant Pro Se. Shalanna Lee Pirtle, 

Keith Michael Weddington, PARKER, POE, ADAMS & BERNSTEIN, LLP, 

Charlotte, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Felicia Ann Underdue appeals the district court’s order 

dismissing her complaint against her former employer, Wells 

Fargo Bank, N.A., and three of her supervisors.1 “Because the 

district court dismissed [Underdue’s] claims under Federal Rule 

of Civil Procedure 12(b)(6) for failure to state a claim, we 

review legal issues de novo and treat the facts alleged in the 

complaint as true.” Nemphos v. Nestle Waters N. Am., Inc., 775 

F.3d 616, 617 (4th Cir. 2015). 

Initially, we conclude that the district court correctly 

dismissed the Americans with Disabilities Act (“ADA”), 42 U.S.C. 

§§ 12101-12213 (2012), claims against Underdue’s supervisors and 

the North Carolina tort claims in their entirety. Accordingly, 

we affirm the portions of the district court’s order dismissing 

 1 Although Underdue indicates in her informal brief that she 

is also seeking to appeal the district court’s order denying her 

Federal Rule of Civil Procedure 59(e) motion, the informal brief

may not serve as a notice of appeal because it was not filed 

within 30 days of the district court’s entry of the order 

denying the motion. See Fed. R. App. P. 4(a)(1)(A) (providing 

30-day appeal period); Smith v. Barry, 502 U.S. 244, 248-49 

(1992) (holding that appellate brief may serve as notice of 

appeal provided it otherwise complies with rules governing 

proper timing and substance). Because Underdue did not file a 

separate notice of appeal of the order denying her Rule 59(e) 

motion, we lack jurisdiction to review that order. See Fed. R. 

App. P. 4(a)(4)(B)(ii).
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those claims.2 Underdue v. Wells Fargo Bank, N.A., No. 3:14-cv00183-RJC (W.D.N.C. Aug. 13, 2014).

We conclude, however, that the district court’s assessment 

of the merits of Underdue’s ADA claims against Wells Fargo was 

premature. Underdue’s complaint suffers from a more fundamental 

defect than failure to state a claim: it fails to establish the 

district court’s subject matter jurisdiction. See Fed. R. Civ. 

P. 12(b)(1); Piney Run Pres. Ass’n v. Cnty. Comm’rs, 523 F.3d 

453, 459 (4th Cir. 2008) (holding that it is plaintiff’s burden 

to establish court’s subject matter jurisdiction). “[A] failure 

by the plaintiff to exhaust administrative remedies concerning a 

. . . claim deprives the federal courts of subject matter

jurisdiction over the claim.” Jones v. Calvert Grp., Ltd., 551 

F.3d 297, 300 (4th Cir. 2009). Thus, the district court only 

has jurisdiction over “those discrimination claims stated in the 

charge [filed with the Equal Employment Opportunity Commission 

(“EEOC”)], those reasonably related to the original [charge], 

and those developed by reasonable investigation of the original 

[charge].” Id. (internal quotation marks omitted).

 2 Underdue does not dispute on appeal the district court’s 

dismissal of her claims under the North Carolina Equal 

Employment Practices Act, N.C. Gen. Stat. § 143-422.2 (2014), 

and has therefore forfeited appellate review of those claims. 

See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 

(4th Cir. 2014) (“[O]ur review is limited to issues preserved in 

[the informal] brief.”).
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Underdue did not provide any information as to the contents 

of the complaints she filed with the EEOC, so that the district 

court could assure that it had subject matter jurisdiction to 

assess the merits of Underdue’s allegations.3 Accordingly, we 

affirm the dismissal of the ADA claims against Wells Fargo on 

the alternative ground that Underdue failed to establish the 

district court’s subject matter jurisdiction. See Ellis v. La.-

Pac. Corp., 699 F.3d 778, 786 (4th Cir. 2012) (“This court is 

entitled to affirm the [district] court's judgment on alternate 

grounds, if such grounds are apparent from the record.” 

(internal quotation marks omitted)). However, we affirm as 

modified to reflect that the dismissal of those claims is 

without prejudice. See S. Walk at Broadlands Homeowner’s 

Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th 

Cir. 2013) (“A dismissal for . . . [a] defect in subject matter 

jurisdiction[] must be one without prejudice, because a court 

 3 The district court construed Underdue’s ADA claims against 

Wells Fargo too narrowly. The complaint did not raise a failure 

to accommodate claim. Rather, liberally construing the 

complaint, Underdue alleged that the supervisors: 

(1) discriminated against her when they discovered her 

disability by denying her training opportunities that could have 

resulted in her promotion within the company; (2) created a 

hostile work environment that forced disabled employees to 

resign; and (3) retaliated against her for reporting issues to 

members of upper management or Human Resources. See Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (instructing courts to construe 

pro se documents liberally).
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that lacks jurisdiction has no power to adjudicate and dispose 

of a claim on the merits.”). 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED IN PART AND

AFFIRMED AS MODIFIED IN PART