Baker v. The Boeing Company, Inc.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge.

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 35) recommending that Plaintiffs motion for summary judgment (Dkt. No. 33) be granted and Defendant's motion for summary judgment (Dkt. No. 32) be denied. For the reasons set forth below, the Court adopts the R & R as the Order of the Court, grants Plaintiffs motion for summary judgment and denies Defendant's motion for summary judgment.

         I. Background

         Plaintiff, a former employee of the Boeing Company, Inc. ("Boeing"), brings this employment discrimination action under the Americans with Disabilities Act and alleges that Boeing unlawfully terminated his employment after he developed a disability that precluded him from working in a non-office environment. (Dkt. No. 14 at 1.) On June 13, 2018, the Equal Employment Opportunity Commission issued Plaintiff a "Right to Sue" letter notifying Plaintiff that any lawsuit arising from the charge must be filed within ninety days of Plaintiff s receipt of the letter-Friday, September 14, 2018. Plaintiff filed his pro se original complaint on September 18, 2019. The sole issue on the parties' cross motions for summary judgment is whether equitable tolling should apply to excuse the untimely filing of Plaintiffs original complaint.^[1] The Court outlines the facts relevant to that issue:

         On September 7, 2018, Plaintiff telephoned the clerk's office at the U.S. District Court in Charleston to inquire as to whether he should file his complaint in federal or state court. Plaintiff was advised to review the Court's website for pro se litigants and was advised that he could file the complaint in federal court in person for a $400 filing fee. (Dkt. No. 32-2.) On September 12, 2018, Plaintiff again telephoned the Charleston district courthouse, but received a pre-recorded message advising that the courthouse was closed from September 11, 2018 until further notice. Plaintiff left a voicemail stating:

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 [home telephone number].

(Dkt. No. 14 at 3.) On September 16, 2018, Plaintiff twice telephoned the Charleston district courthouse, at 4:13 A.M. and 5:08 P.M., but again received the pre-recorded message each time. On September 17, 2018, Plaintiff twice telephoned the Charleston district courthouse; his 10:39 A.M. call went unanswered and his 2:19 P.M. call was answered, during which he was advised that the courthouse was open. Plaintiff contends that he did not file his complaint in person after this 2:19 P.M. conversation because 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 form 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.) On September 18, 2019, Plaintiff filed his original complaint pro se in person at the Charleston district courthouse. (Id., Dkt. No. 1.) Plaintiff thereafter filed an amended complaint through counsel on December 11, 2018. (Dkt. No. 14.)

         II. Legal Standard

         A. Review of the R & R

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight, and the responsibility to make a final determination remains with the Court. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where there are specific objections to the R & R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. In the absence of objections, the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note; see also Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection ... we do not believe that it requires any explanation.").

         B. Motion for Summary Judgment

         Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Therefore, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996).

         The party seeking summary judgment has the initial burden of demonstrating to the Court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp, Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

         III. ...