United States District Court, M.D. Alabama, Northern Division
ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
Plaintiff Sharon Harris, proceeding pro se, sues her former employer, the State of Alabama Department of Finance. She alleges that the defendant subjected her to a hostile work environment because of her race, in violation of Title VII of the Civil Rights Act of 1964. (Doc. # 1). By order entered on February 27, 2015, the District Judge referred this case to the undersigned for action or recommendation on all pretrial matters. (Doc. # 6). Plaintiff moves for leave to proceed in forma pauperis in this action (Doc. # 2). Upon consideration of the motion, it is
ORDERED that the motion is GRANTED.
However, upon review of the complaint, the court concludes that dismissal of plaintiff's claim pursuant to 28 U.S.C. § 1915(e)(2)(B) is appropriate. Thus, it is further
ORDERED that the Clerk is DIRECTED to serve the summons, complaint, and a copy of this recommendation on the defendant, but that the defendant's obligation to file a responsive pleading is STAYED pending further order of the court directing such service.
"It is settled law that in order to obtain judicial consideration of [a Title VII claim], a plaintiff must first file an administrative charge with the EEOC within 180 days after the alleged unlawful employment practice occurred." Pijnenburg v. West Georgia Health System, Inc. , 255 F.3d 1304, 1305 (11th Cir. 2001)(citing 42 U.S.C. § 2000e-5(e)(1)); see also Ledbetter v. Goodyear Tire and Rubber Co., Inc. , 421 F.3d 1169 (11th Cir. 2005)("For claims arising in so-called non-deferral' states, such as Alabama, to be timely, the applicable charge must have been filed within 180 days after the alleged unlawful employment practice occurred.'")(citation omitted), affirmed, 550 U.S. 618 (2007), abrogated on other grounds by legislative action, Pub. L. No. 111-2 (Jan. 29, 2009)). Plaintiff's Title VII claim is due to be dismissed because it appears from the face of her complaint, including attachments, that plaintiff's EEOC charge of discrimination was untimely.
Plaintiff alleges that the discrimination at issue took place between February 19, 2013, and August 1, 2013 (Doc. # 1-1, p. 1), and that she resigned from her job on August 1, 2013 (id., p. 2; see also Doc. # 1, ¶ 5 (indicating "August 1, 2013" for dates of employment). Plaintiff filed a charge of discrimination with the EEOC on February 10, 2014, more than 180 days after she resigned from her job. (Doc. # 1, ¶ 11 ("I filed charges with the Equal Employment Opportunity Commission regarding defendant[s] alleged discriminatory conduct on or about Feb. 10, 2014."); Doc. # 1-1, pp. 2-3 (charge date-stamped received by the EEOC on "FEB 10, 2014"). Thus, it appears from the face of the complaint and its attachments that plaintiff filed her EEOC charge more than 180 days after the last day on which defendant could have subjected her to a hostile work environment.
No Basis for Equitable Tolling
The 180-day period for filing an EEOC charge is subject to equitable tolling. Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982); Chappell v. Emco Machine Works Co. , 601 F.2d 1295 (5th Cir. 1979). Plaintiff bears the burden of establishing that equitable tolling is appropriate. Ross v. Buckeye Cellulose Corp. , 980 F.2d 648 (11th Cir. 1993). "The Supreme Court has made clear that tolling is an extraordinary remedy which should be extended only sparingly." Justice v. U.S. , 6 F.3d 1474, 1479 (11th Cir. 1993)(citing Irwin v. Veterans Administration , 498 U.S. 89, 96 (1993)).
Statutes of limitations embody the recognition that the defendant's interest in promptly facing the plaintiff's claims along with the court's interest in hearing only claims that a plaintiff has diligently pursued can trump the plaintiff's right to assert even the most meritorious of claims.
The interests of justice, however, can weigh in favor of allowing a plaintiff to assert untimely claims if circumstances beyond the plaintiff's control prevented timely filing. The doctrine of equitable tolling allows a court to toll the statute of limitations until such time that the court determines would have been fair for the statute of limitations to begin running of the plaintiff's claims.... Equitable tolling is appropriate when a [party] untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.
Arce v. Garcia , 434 F.3d 1254, 1261 (11th Cir. 2006)(citations and internal quotation marks omitted; emphasis in original). Equitable tolling may also operate to suspend the running of the limitations period after it has begun. See Goldsmith v. City of Atmore , 996 F.2d 1155 (11th Cir. 1993)(90-day limitations period of Title VII equitably tolled by plaintiff's filing of defective pleading in district court within the limitations period, coupled with district court's order directing plaintiff to file a formal complaint, setting a deadline four days after expiration of the limitations period). The Eleventh Circuit has "rejected the contention that pro se status, ignorance of the judicial process or slow administrative proceedings warrant equitable tolling." Hunt v. Georgia Dept. of Community Affairs, 490 F.Appx. 196, 198 (11th Cir. 2012). "[A] generally diligent plaintiff who files late because of his own negligence typically may not invoke equity to avoid the statute of limitations. Principles of equitable tolling... do not extend to what is at best a garden variety claim of excusable neglect.'" Justice , 6 F.3d at 1479-80 (quoting Irwin , 498 U.S. at 96)).
Plaintiff alleges that, on May 11, 2013, she and other employees wrote a letter to Elizabeth Allen complaining about race discrimination; they complained of disparate work rules for black employees and abusive treatment by their white supervisor. (Doc. # 1-1). Plaintiff states that, although they "followed the chain of command with [their] complaints of racial discrimination, "nothing was done to resolve the issue." (Doc. # 1-1, p. 2). The averments in plaintiff's EEOC charge affirmatively demonstrate the lack of any basis for finding that the 180-day filing period did not begin to run on August 1, 2013, the date on which plaintiff tendered her resignation, and the date plaintiff specifies as the latest date on which the alleged discrimination took place. (Doc. # 1-1, pp. 2-3). Additionally, plaintiff's allegations ...