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Green v. Agru America Inc.

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

February 6, 2019

Michael Green, Plaintiff,
v.
Agru America Inc., Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge.

         This 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 disposition.[1]

         Discussion

         When 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.

         A 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].

         However, 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.[2] 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).

         Although 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).

         In 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.[3] 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.[4] 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.

         After 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”].

         Further, 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, [5] the 90 day period for filing a lawsuit on that charge also expired well before Plaintiff filed this case.

         As for 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.[6] 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).

         Finally, 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.

         To be 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 . . . ...


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