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Baker v. The Boeing Company, Inc.

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

April 1, 2019

Robert Bradley Baker, Plaintiff,
The Boeing Company, Inc., Defendant.



         Plaintiff filed the instant employment action on September 18, 2018. (Dkt. No. 1.) Currently before the Court are Motions for Summary Judgment filed by both parties, limited to the issue of whether equitable tolling should apply to excuse the untimely filing of Plaintiff's complaint. (Dkt. Nos. 32; 33.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to the United States Magistrate Judge. For the reasons stated herein, the undersigned recommends that equitable relief be granted here; Plaintiff's Motion for Summary Judgment (Dkt. No. 33) be granted; and Defendant's Motion for Summary Judgment (Dkt. No. 32) be denied.


         Plaintiff was formerly employed by Defendant, the Boeing Company, Inc. (Dkt. Nos. 1; 14.) Plaintiff alleges that he worked “in various engineering-related jobs for Defendant until he developed a disability imbalance that precluded him from working in a non-office environment.” (Dkt. No. 14 at 1.) Plaintiff alleges that despite his requests for reassignment, he was never reassigned. (Id.) Defendant eventually terminated Plaintiff's employment. (Id.) Prior to filing suit in this Court, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Id. at 2.) The EEOC issued Plaintiff a “Right to Sue” letter on June 13, 2018, which Plaintiff received on June 16, 2018. (Id.) The letter stated that any lawsuit arising from Plaintiff's charge must be filed within 90 days of Plaintiff's receipt of the instant notice. (Id.) The 90-day period expired Friday, September 14, 2018. (Id.) Plaintiff filed his complaint, pro se, on Tuesday, September 18, 2019. (Dkt. No. 1.) On December 11, 2018, Plaintiff filed an Amended Complaint, through counsel. (Dkt. No. 14.)

         On February 26, 2019, Plaintiff moved for a hearing on the issue of the original complaint's untimely filing. (Dkt. No. 26.) Plaintiff asked that the Court decide the “preliminary issue” of whether equitable tolling applies to the filing of his complaint. (Id.) The Court denied Plaintiff's request for a hearing and instead bifurcated discovery to allow the parties two weeks to engage in discovery limited to the issue of equitable tolling. (Dkt. No. 27.) The Court directed the parties to file dispositive motions on this specific issue by March 21, 2019. (Id.) During the limited discovery period, Plaintiff gave deposition testimony on facts relevant to the issue of equitable tolling, and the parties obtained the audio recording of Plaintiff's phone call to the Charleston Federal Courthouse (the “Courthouse”) on September 7, 2019. Both parties filed dispositive motions on the issue on March 21, 2019. (Dkt. Nos. 32; 33.)

         Their motions establish the following facts, which are relevant to the timing of the filing of Plaintiff's complaint in this Court:

1. On Friday, September 7, 2018, Plaintiff called the Courthouse to find out whether he should file his complaint in state court or federal court, given the language in the EEOC's Right to Sue letter. In that call, a clerk advised Plaintiff to go to the Court website and review the section created for pro se litigants. The clerk told Plaintiff that she could not legally advise him on whether to file the complaint in state or federal court. Plaintiff asked if he could file the Complaint in person and was told he could and that there was a $400.00 filing fee. (Dkt. No. 32-3.)
2. On Wednesday, September 12, 2018, Plaintiff called the Courthouse and received the following message, “Please note the courthouse will be closed from Tuesday, September 11, 2018 until further notice. Please feel free to leave a voicemail and we will get back to you as soon as we can.”
Plaintiff left the following voicemail in response:
VOICEMAIL: “My name is Robert Baker. I have a claim to file. This is a Right To Sue. I had a 90 days from date of receipt. I had intended to bring that in this week, but since you are closed I cannot do that. I want to make sure that I am on record as having attempted to meet that, but the courthouse was closed. Please call me as soon as you can at [Baker's home number].” (Dkt. No. 14 at 3.)
According to Plaintiff, the Courthouse was closed from September 11-14, 2018, due to evacuations for Hurricane Florence. Plaintiff did not evacuate from Charleston during that time. (Dkt. No. 33 at 1.)
3. On Sunday, September 16, 2018, Plaintiff called the Court both at 4:13 a.m. and 5:08 p.m. to see if it would be open on Monday. Plaintiff avers that, “to [his] recollection, the clerk's message was unchanged-closed “until further notice.” (Dkt. No. 33-1 at 2.)
4. On Monday, September 17, 2018, Plaintiff called the Court at both 10:39 a.m. and 2:19 p.m. Plaintiff's first call went unanswered, but Plaintiff was told the Courthouse was open on the second call. In his affidavit, Plaintiff avers that when he learned the Courthouse was open that afternoon, “there was not sufficient time for me to conduct the final review of the complaint, my files, the enclosed bullet points, print and sign it, and get from my home in northern Mount Pleasant . . . [to] downtown, find parking and file the complaint. As described in my complaints, I have some difficulty with vertigo, and balance, which sometimes affects walking. Accordingly, I filed the complaint the next day.” (Dkt. No. 33-1 at 2.)
5. On Tuesday, September 18, 2018, Plaintiff filed his pro se complaint. Plaintiff avers that “[a]t the time of filing, the clerk did not request payment from me, but later they called me and requested that I come back to the Courthouse and ...

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