United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
action was originally filed by the Plaintiff in the South
Carolina Court of Common Pleas, Georgetown County, and was
thereafter removed to this United States District Court by
the Defendant pursuant to 28 U.S.C. § 1441(a), asserting
federal question jurisdiction as Plaintiff asserts a claim
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. Defendant then filed a Rule 12 motion
to dismiss this case, asserting therein that Plaintiff failed
to comply with the filing limitations period set forth in
Title VII, thereby subjecting his case to dismissal.
Plaintiff filed a response in opposition to the
Defendant's motion on October 3, 2018, following which
the Defendant filed a reply memorandum on October 10, 2018.
Defendant's motion is now before the Court for
considering a Rule 12 motion to dismiss, the Court is
required to accept the allegations in the pleading as true,
and draw all reasonable factual inferences in favor of the
party opposing the motion. The motion can be granted only if
the party opposing the motion has failed to set forth
sufficient factual matters to state a plausible claim for
relief “on its face”. Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine
Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y.
2004)[“[O]n a motion to dismiss, the Court does not
weigh the strength of the evidence, and simply considers
whether the [claim] alleges sufficient facts which, if true,
would permit a reasonable fact finder to find [the party
seeking dismissal of the claim] liable.”]. Here,
Defendant argues that it is entitled to dismissal of this
case because Plaintiff failed to timely file his lawsuit
after receiving a “Right to Sue” letter from the
Equal Employment Opportunity Commission (EEOC), as required
by statute, and that Plaintiff has therefore failed to set
forth a plausible Title VII claim in the Complaint.
review of the allegations of Plaintiff's Complaint shows
that Plaintiff alleges that he was an employee of the
Defendant for fourteen (14) years (beginning on or about
April 20, 2003 and ending in August 2016). Complaint, ¶
¶ 5-6, 13. Plaintiff, an African American, alleges he
was employed as a lead laboratory technician and was paid
thirteen dollars per hour. However, Plaintiff alleges that
white employees in the same position earned higher pay, even
when they had less employment experience than the Plaintiff,
and that he was discriminated against on the basis of his
race with respect to both pay and promotions. Id.,
¶ ¶ 7-10, 14-22. Finally, Plaintiff alleges that he
filed a charge with the EEOC regarding his claim of unequal
pay on the basis of racial discrimination. Id.,
¶ 11. The Complaint does not contain any further
allegations concerning the satisfaction of any administrative
requirements for the filing of this lawsuit. Dickson v.
Microsoft Corp., 309 F.3d 193, 213 (4th Cir.
2002) [Plaintiff has burden of alleging facts sufficient to
state all the elements of a claim].
as attachments to its motion to dismiss and reply, the
Defendant has submitted copies of Plaintiff's
administrative charge of discrimination, which was filed with
the EEOC on September 8, 2015 (dated September 2, 2015)
asserting a claim for race discrimination and for unlawful
retaliation, along with the right to sue letter issued for
that charge on June 15, 2016. By statute, a civil action under
Title VII must be filed within ninety (90) days of the date
of receipt by a claimant of a duly issued notice of right to
sue from the EEOC; 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C.
§ 626(e); see also Coleman v. Talbot County
Detention Center, 242 Fed.Appx. 72, at ** 1 (4th Cir.
July 12, 2007); Aziz v. Orbital Scis. Corp., No.
98-1281, 1998 WL 736469, at *1 (4th Cir. October
19, 1998) [“Title VII . . . allow[s] an aggrieved party
ninety days after receipt of a right-to-sue letter from the
EEOC to file a civil action”]; and if not filed within
this time period, the lawsuit is generally deemed to be
untimely and the individual is barred from pursuing their
claim. See Baldwin County Welcome Ctr. v. Brown, 466
U.S. 147, 149-150 (1984), reh'g denied, 467 U.S. 1231
(1984); Harvey v. City of New Bern Police Dep't,
813 F.2d 652, 654 (4th Cir. 1987).
Plaintiff no where states or alleges in his Complaint when he
received this right to sue letter, the general rule in the
Fourth Circuit is that courts presume receipt of a Notice of
Right to Sue three (3) days after mailing, if the date of
receipt is unknown. See Dunbar v. Food Lion, 542
F.Supp.2d 448, 450-451 (D.S.C. 2008)(citations omitted);
Collins v. Concept Solutions, LLC, No. 10-1135, 2011
WL 1167199 (E.D.Va. Mar. 25, 2011); see also Ish v.
Arlington County, Virginia, No. 09-2433, 1990
WL 180127 (4th Cir. Nov. 21, 1990)[applying if date of
receipt is unknown or in dispute]; Baldwin County Welcome
Ctr. V. Brown, 466 U.S. 147, 148, n. 1
(1984)[applying 3-day rule to Title VII case where date of
receipt was not pled]; Johnson v. St. Barnabas
Nursing Home, 368 Fed.Appx. 246, 248 (2d Cir.
2010)[“Absent sufficient evidence to the contrary, it
is presumed that a Plaintiff received his or her Right to Sue
letter three days after its mailing.”]. Therefore, in
the absence of any allegations or evidence to the contrary,
Plaintiff is presumed as have received this right to sue
letter no later than June 18, 2016 (3 days after June 15,
2016). This action was not filed by the Plaintiff in the
South Carolina Court of Common Pleas until July 19, 2018,
well after the expiration of the 90-day deadline for filing.
See Exhibit (Court Docket No. 1-1, p. 2). Therefore, pursuant
to these exhibits (which are not disputed by the Plaintiff),
this action is subject to dismissal. See, e.g., Carter v.
Holder, No. 12-1142, 2013 WL 1499335, at * 1 (D.S.C.
Mar. 14, 2013) [“Critically, the Fourth Circuit
strictly adheres to the 90-day rule”], adopted by, 2013
WL 1499332 (D.S.C. Apr. 11, 2013).
opposition to the Defendant's motion, Plaintiff does not
dispute the time line set forth hereinabove. Rather,
Plaintiff states in his response in opposition (although
nowhere alleges in his Complaint) that he filed a second
charge with the EEOC on December 2, 2016, on which a Notice
of Right to Sue letter was issued on June 30, 2017, and
received by the Plaintiff on or about July 5,
2017. Plaintiff then goes on to argue that he
thereafter filed (on a “Charge of Discrimination”
form) a request for a reconsideration of the EEOC's
decision (dated July 10, 2017), a copy of which is also
attached to his response brief. Plaintiff avers in his response
that, as of the filing of his response brief, no written
response to this request has been received from the EEOC by
Plaintiff's counsel, and that Plaintiff is therefore
entitled to equitable tolling of the ninety day filing period
in this case.
careful review of these filings and the arguments of the
parties, the undersigned finds that Plaintiff's Complaint
as filed is subject to dismissal. First, Plaintiff has failed
to allege any where in his Complaint that he has met or
satisfied the administrative prerequisite for the filing of
this lawsuit. Dickson, 309 F.3d at 213 [Plaintiff has burden
of alleging facts sufficient to state all the elements of a
claim]. Although Plaintiff alleges he filed a charge of
discrimination with the EEOC, he does not set forth any
factual allegations to show that he received a Right to Sue
letter and then timely filed this lawsuit. Harper v.
United States, 423 F.Supp. 192, 196 (D.S.C.
1976)[“[W]here the claims in a complaint are
insufficiently supported by factual allegations, these claims
may be properly dismissed by summary dismissal”];
Frey v. City of Herculaneum, 44 F.3d at 671
[“Complaint must contain facts which state a claim as a
matter of law and must not be conclusory”].
and critically, Plaintiff specifically alleges an equal pay
claim in his Complaint. Complaint (First Cause of Action). In
his reply memorandum, Defendant correctly notes that
Plaintiff's first charge specifically alleged a Title VII
equal pay claim, while Plaintiff's second charge alleges
race and retaliation claims stemming from Plaintiff's
termination [and listing August 2016 as the only date the
discrimination took place]. See Reply, Exhibits A and B.
Therefore, Plaintiff's second charge does not encompass
the claim set forth in the Complaint. Cf. Chacko v.
Patuxent Institution, 429 F.3d 505, 509 (4th
Cir. 2005) [“Our cases make clear that the factual
allegations made in formal litigation must correspond to
those set forth in the administrative charge”].
Moreover, even if Plaintiff did address the claims asserted
in this lawsuit in his second administrative charge,
90 day period for filing a lawsuit on that charge also
expired well before Plaintiff filed this case.
Plaintiff's “reconsideration” document,
Defendant argues in its reply memorandum that it has never
seen or been notified by either the Plaintiff or the EEOC of
any such filing, that it never received a copy of any such
“reconsideration” filing from the EEOC, and that
the EEOC Online Charge Portal for Plaintiff's second
charge of discrimination is no longer even accessible because
(according to the EEOC website) “this charge has been
closed for more than one hundred days or it is
deleted”. In any event, Defendant argues that there is
no such thing as an “EEOC reconsideration”.
Rather, the purpose of a notice of right to sue is to inform
the charging party that the EEOC has ended its investigation
and that the charging party may move forward with a lawsuit
if they so desire. Therefore, Defendant argues that even if
Plaintiff did submit this document to the EEOC (for which
there is no evidence), it does not change the statutory
requirement that Plaintiff must have filed a lawsuit relating
to his charge within ninety days of his receipt of the right
to sue notice. Again, the undersigned agrees. Plaintiff
has provided no evidence that the form attached to his
response was ever even filed with the EEOC (nor are any such
allegations contained in Plaintiff's Complaint), but even
if it was, Plaintiff has not cited to any statutory or case
law holding that such a filing automatically tolled the
running of the 90 day filing period. Cf. Anderson v.
Greenville Health System, et al., No. 15-2556, 2015 WL
11109879, at * 3 (D.S.C. Aug. 12, 2015) [Noting that a filing
for reconsideration with the EEOC that is dismissed or
ignored does not toll the statute of limitations], Report and
Recommendation adopted by, 2015 WL 11089337 (D.S.C. Sept. 8,
2015), aff'd, 627 Fed.Appx. 188 (4th Cir.
2015). In any event, as previously noted, since the notary
date on this document is October 7, 2017, the ninety (90)
period for filing a lawsuit would have expired prior to
Plaintiff allegedly having been able to submit this
reconsideration request. Plaintiff has cited to no authority
to show, or even presented any argument, that he could
resurrect a time period that had expired prior to the
submission of this request to the EEOC. Cf. Stamper, 863 F.3d
at 1340-1341 [Finding that neither the EEOC nor the
Department of Justice had the authority to issue plaintiff a
new notice of right to sue in response to plaintiff's
request for reconsideration of EEOC's dismissal of charge
where issuance of a new notice of right to sue was limited by
regulation to cases where the EEOC issued a notice of intent
to reconsider before expiration of original limitations
period]; see also 29 C.F.R. § 1601.19(b).
Plaintiff asserts in his response memorandum that since
counsel has never received a response to his request for
reconsideration of the denial of his second administrative
charge, he is entitled to equitable tolling of the 90 day
filing requirement. This argument is also without merit.
First, Plaintiff nowhere alleges in his Complaint any facts
to state a “plausible” claim for equitable
tolling of his Title VII claim. Dickson, 309 F.3d at 213
[Plaintiff has burden of alleging facts sufficient to state
all the elements of a claim]; see also Harper, 423 F.Supp. at
196 [“[W]here the claims in a complaint are
insufficiently supported by factual allegations, these claims
may be properly dismissed by summary dismissal”].
Additionally, as noted by the Defendant, the claim set forth
in Plaintiff's second administrative charge is not the
claim alleged by the Plaintiff in this lawsuit.
Chacko, 429 F.3d 505, 509 (4th Cir. 2005)
[“Our cases make clear that the factual allegations
made in formal litigation must correspond to those set forth
in the administrative charge”]; see also Smith v.
First Union National Bank, 202 F.3d 234, 247 (4th Cir.
2000) [EEOC charge “defines the scope of [a
plaintiff's] subsequent right to institute a civil
suit”]. Finally, even assuming that Plaintiff did file
a request for reconsideration of the denial of his second
administrative charge with the EEOC, and that that second
charge encompasses the claims set forth in Plaintiff's
lawsuit, he is not entitled to equitable tolling.
entitled to equitable tolling, Plaintiff must show “1)
extraordinary circumstances, 2) beyond his control or
external to his own conduct, 3) that prevented him from
filing on time”. Rouse v. Lee,339 F.3d 238,
246 (4th Cir. 2003). Plaintiff has neither alleged
in his Complaint, nor shown in the arguments in his response
brief, that he meets any of these criteria. No.
“extraordinary” circumstances have been shown to
exist in the facts or allegations of Plaintiff's
Complaint or in this case. Further, there was nothing beyond
Plaintiff's control or external to his own conduct that
prevented him from filing this lawsuit on time - he just
failed to do so. Polsby v. Chase,970 F.2d 1360,
1363 (4th Cir. 1992) [“Procedural requirements...for
gaining access to the ...courts are not to be disregarded by
courts out of a vague sympathy for particular
litigants”], vacated on other grounds, 113 S.Ct. 1940
(1993). Plaintiff cannot simply file a request with the EEOC
asking for a reconsideration of the denial of a claim (even
assuming Plaintiff did so in this case), do nothing for a
year afterward to follow up or check on his reconsideration
request when the EEOC fails to rule on or even acknowledge
his request for reconsideration, and then argue that he is
justified in filing his lawsuit a year late because
“extraordinary circumstances . . . ...