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Reese v. Bank

United States District Court, D. South Carolina, Columbia Division

November 21, 2017

Harry Eugene Reese, Sr., Plaintiff,
v.
Dr. Robert Bank; Mr. John Magill; Ms. Maria Marin; Ms. Denise Morgan; Ms. Vicki Brown; Ms. Eleanor Odom; South Carolina Department of Mental Health, Defendants.

          ORDER

          Joseph F. Anderson, Jr. United States District Judge.

         I. Introduction

         The pro se plaintiff, Harry Eugene Reese, Sr., (“Reese”), filed this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). He also asserts state law claims of defamation, civil conspiracy, and intentional infliction of emotion distress. The defendants include his former employer, the South Carolina Department of Mental Health (“DMH”), and individual employees thereof (collectively “Defendants”). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), the case was referred to the Magistrate Judge. Thereafter, Defendants filed a motion to dismiss the pro se complaint filed by Reese. (ECF No. 29).

         The Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”) and opines that Defendant's motion to dismiss should be granted in part and denied in part. (ECF No. 41).[2] The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation. Defendants filed objections to the Report on September 12, 2017, (ECF No. 44), and Reese has not filed any objections to the Report nor has replied to the objections by Defendants. Objections to the Report were due September 12, 2017 and a reply to Defendants objections were due September 26, 2017. Both deadlines have passed. Thus, this matter is ripe for review.

         The court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge's Report to which an objection is made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report of the Magistrate, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         II. Discussion

         Here, Defendants object to the Magistrate Judge's recommendation that Defendants' Motion to Dismiss be denied as to Reese's Title VII claim. (ECF No. 44 p. 2)[3]. Neither Reese nor Defendants objected to the Magistrate Judge's recommendation that Reese's claims for defamation, civil conspiracy, intentional infliction of emotional distress, violation of the Equal Pay Act, violation of the ADA, and all claims against the Individual Defendants should be dismissed. After a thorough review of those claims, this Court agrees with the Magistrate Judge and adopts the Magistrate's recommendation as to the above stated claims. Because there were no objections to those claims this Court is not required to give an explanation for adopting the Magistrate Judge's recommendation. See Camby, 718 F.2d. at 199.

         A. Title VII Claim

         Defendants specifically object to the Magistrate's finding that “because Reese appears to assert that he is entitled to equitable tolling based on apparent misinformation he received from the Clerk of Court's office, the court should not resolve the issue of timeliness on a motion to dismiss.” (ECF No. 41 p. 4). First, Defendants argue that Reese's Complaint does not state facts that support the application of equitable tolling. Second, Defendants argue that Reese's alleged reliance on an unidentified Clerk's Office employee is not an extraordinary circumstance and does not support a finding of equitable tolling.

         After a complainant files a charge with the Equal Employment Opportunity Commission (“EEOC”), Title VIII requires the EEOC to “notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent.” 42 U.S.C. § 2000e-5(f)(1). “The 90-day filing requirement is ‘not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statue of limitations, is subject to waiver, estoppel, and equitable tolling.'” Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 321 (4th Cir. 2011) (citing Laber v. Harvey, 438 F.2d 404, 429 n. 25 (4th Cir. 2006)). Here, Reese's Complaint alleges that he received the right-to-sue notice on July 26, 2016. (ECF No. 1 p. 12). Thus, the 90-day period ended on October 24, 2016. Reese filed his Complaint with this Court on October 26, 2016, two days after the 90-day period had ended.

         Defendants argue that Reese has not stated facts in his Complaint which would warrant equitable tolling. The Fourth Circuit has held:

[A] motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred. But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).”

Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). Here, the Magistrate Judge found that Reese asserted that he is entitled to equitable tolling based on apparent misinformation he received from the Clerk of Court's office. The Magistrate subsequently held that Reese's Complaint is insufficient on its face to resolve the Defendants affirmative defense that the plaintiff's claim should be time-barred. However, the Magistrate did not deny Defendants' claim of untimeliness with prejudice, just recommended denial as to this motion to dismiss. This Court agrees with the Magistrate's recommendation. The facts alleged in the complaint are not sufficient to rule on the timeliness defense.

         The Defendants also argue that reliance on the Clerk's Office employee does not warrant equitable tolling and therefore the claim is time-barred and should be dismissed. Defendants argue that the Magistrate's reliance on Parmaei v. Jackson, 378 F. App'x 331, 332 (4th Cir. 2010) for the proposition that a district court's clerk error may warrant equitable tolling is misplaced. Defendants argue the facts are distinguishable because in Parmaei the defendant “had made every effort to timely file his petition but was impeded by circumstances outside of his control” and here Reese did not. (ECF NO. 44 p. 7). However, it is not clear from Reese's complaint the extent to which Parmaei may or may not be distinguishable from this case. Timeliness is an affirmative defense under Fed.R.Civ.P. 8(c) and this Court cannot reach the merits of affirmative defense on a motion to dismiss where the complaint, on its face, is insufficient to resolve the ...


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