United States District Court, D. South Carolina, Charleston Division
Meridath E. Gaines, Plaintiff,
MKKM Inc. d/b/a MKKM LLC and Eagle's Landing Restaurants LLC, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
MARY GORDON BAKER, Magistrate Judge.
This matter is before the Court upon Defendants' Motion to Dismiss. (Dkt. No. 8.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff filed the instant action on November 30, 2014. (See Dkt. No. 1.) Plaintiff, a twenty-five year old African-American female, alleges that she was hired on February 17, 2011 "as a server/waitress" at Defendants' restaurant, the International House of Pancakes. (See Compl. ¶¶ 8-10, 14.) Plaintiff alleges that coworker Francisco Romero ("Romero") attacked Plaintiff on two occasions: once in March of 2011 and again on May 21, 2011. (See id. ¶¶ 16-22.) During both attacks, Plaintiff alleges, inter alia, that Romero forcibly kissed her, attempted to unzip his trousers, and ordered Plaintiff to perform a sex act on him. (See id. ¶¶ 16-22.) Plaintiff asserts that after the March 2011 attack, she "directly reported the incident to the shift supervisor, who told Plaintiff that the matter would be handled." (Id. ¶ 18.) Plaintiff further asserts that after the May 21, 2011 attack, she "went immediately to two of her store supervisors (-male and female-) and reported the attack; per the instructions of the female supervisor Plaintiff completed a written complaint and statement, and was informed that the matter would be handled." (Id. ¶ 23.) Plaintiff alleges she told the female supervisor "that she did not feel safe and she felt like quitting because of Romero and the work environment." (Id. ¶ 24.)
Plaintiff also alleges she filed a criminal complaint with the North Charleston Police Department on or about that same day. (Id.) Plaintiff further alleges as follows:
25. On May 22, 2011, [Plaintiff] returned to work, but was not approached or counseled by any supervisor or management officer; she did attempt to speak with the store manager (male) who held a telephone conversation while talking to her and concluding his (Ali) remarks by insisting that she provoked these attacks or somehow was at fault for causing Romero to sexually harass her.
26. During the conversation with Ali, [Plaintiff] requested a shift change and was denied the transfer but was rudely interrupted, told that the matter was handled before she could complete her description of the fear, discomfort, embarrassment and terror she was experiencing.
27. After pressing charges against Romero, [Plaintiff] was suspended from employment and after Romero was convicted [Plaintiff] was terminated; and at the time of her termination, Ali called her a "bitch."
(Id. ¶¶ 25-27.) Plaintiff lists the following causes of action in her Complaint: hostile work environment, sexual harassment, retaliation, and "sexual and gender discrimination." (See generally Compl.)
Relevant to the instant motion is Defendants' contention that Plaintiff "has not met the requirement of filing within ninety days of receipt of the Notice of Right to Sue Letter from the Equal Employment Commission (EEOC')." (Dkt. No. 8-1 at 1.)
Defendants contend the instant action is untimely, as Plaintiff alleges she received her Notice of Right to Sue Letter from the EEOC on August 29, 2014, and filed this action on November 30, 2014, "ninety-three days after receipt of the E.E.O.C.'s Notice of Right to Sue." (Dkt. No. 8-1 at 1; see also Compl. ¶ 3.) Defendants assert the instant action should be dismissed because "[f]iling suit within ninety-days of receipt of the EEOC's Notice of Right to Sue Letter is a jurisdictional prerequisite." (Dkt. No. 8-1 at 1.)
In her Response in Opposition, Plaintiff does not dispute that she received her Notice of Right to Sue Letter on August 29, 2014, and that she filed her Complaint on November 30, 2014. (Dkt. No. 12 at 1.) She asserts, however, that the instant action is timely:
According to the date of receipt [(of the Notice of Right to Sue Letter)], Plaintiff's Complaint would be timely filed on November 27, 2014. November 27, 2014 was Thanksgiving Day, a national federally recognized holiday. The South Carolina District Court was closed on the following Friday, November 28, 2014, leaving the next business day for the ...