United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr. United States District Judge.
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).
Magistrate Judge assigned to this action 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.
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.
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).
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.
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.
Title VII Claim
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
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.
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.
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