                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-1762


FELICIA A. UNDERDUE,

                     Plaintiff - Appellant,

              v.

WELLS FARGO BANK, N.A.,

                     Defendant – Appellee,

              and

ILA N. PATEL; KENDRA BROWN; SUSAN LYBRAND,

                     Defendants.



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: February 17, 2017                                     Decided: April 11, 2017


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Affirmed in part and affirmed as modified in part by unpublished per curiam opinion.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 Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Felicia Ann Underdue appeals the district court’s order dismissing her second

amended complaint against her former employer, Wells Fargo Bank, N.A. We have

reviewed the record and initially conclude that the district court properly dismissed

Underdue’s claim for intentional infliction of emotional distress. Accordingly, we affirm

the portion of the district court’s order dismissing this claim. Underdue v. Wells Fargo

Bank, N.A., No. 3:14-cv-00183-RJC (W.D.N.C. June 20, 2016).

       Next, the district court dismissed Underdue’s claim under the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., for lack of subject matter

jurisdiction. We agree that Underdue failed to exhaust her administrative remedies and

affirm as modified to clarify that the dismissal of Underdue’s ADEA claim is without

prejudice.

       The district court also dismissed Underdue’s claims under Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., for lack of subject matter

jurisdiction. Although we agree that Underdue did not timely file the Equal Employment

Opportunity Commission (“EEOC”) charge that formed the basis of the complaint, the

timeliness of an EEOC charge is not a jurisdictional matter. See Hentosh v. Old Dominion

Univ., 767 F.3d 413, 417 (4th Cir. 2014) (“The failure to timely file an EEOC charge . . .

does not deprive the district court of subject matter jurisdiction.”). Accordingly, we affirm

as modified to reflect that Underdue’s Title VII and ADA claims are dismissed for failure

to state a claim for relief. See Ellis v. La.-Pac. Corp., 699 F.3d 778, 786 (4th Cir. 2012)

                                             3
(“This court is entitled to affirm the court's judgment on alternate grounds, if such grounds

are apparent from the record.”) (internal quotation marks omitted).

       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




                                             4
