United States District Court, N.D. Alabama, Northeastern Division
C. BURKE, U.S. DISTRICT JUDGE
se plaintiff, Shawn Errick Brown, alleges claims against
the Alabama Department of Transportation, his former
employer, for race and color discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. (“Title VII”). He
claims that defendant discriminatorily failed to hire and/or
promote him in August-December 1987, March and August 1989,
and February 2004. He retired from his position in August
2016 and filed charges of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on
February 3, 2016 and February 16, 2016. The EEOC issued a
Notice of Right to Sue on April 24, 2018, and plaintiff filed
his complaint in this court on June 1, 2018.
case currently is before the court on defendant's motion
to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). Judge L. Scott Coogler, to whom the case
was then assigned, entered an order on July 30, 2018,
requiring plaintiff to show cause within twenty-one days why
the motion should not be granted. Plaintiff failed to respond
to that order in a timely fashion or at all. Plaintiff did,
however, file a motion to appoint counsel on October 29,
2018; the motion to appoint counsel did not address Judge
Coogler's order to show cause.
deciding a motion to dismiss, the court must construe the
allegations of the complaint
in the light most favorable to [plaintiff], accepting all
well-pleaded facts that are alleged therein to be true.
See Bickley v. Caremark RX, Inc., 461 F.3d 1325,
1328 (11th Cir. 2006). “To survive . . . a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). The plausibility
standard “calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of the
defendant's liability. Twombly, 550 U.S. at 556,
127 S.Ct. at 1965.
Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265
(11th Cir. 2013).
asserts that plaintiff's claims should be dismissed
because plaintiff failed to timely exhaust his administrative
remedies, which is a statutory prerequisite to filing suit
under Title VII. H&R Block E. Enterprises, Inc. v.
Morris, 606 F.3d 1285, 1295 (11th Cir. 2010) (citing
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317
(11th Cir. 2001)) (“Before suing under Title VII, a
plaintiff must first exhaust her administrative
remedies.”). The first required administrative step is
to file an EEOC charge within 180 days of the last-occurring
discriminatory act. H&R Block E. Enterprises,
Inc., 606 F.3d at 1295. The last discriminatory act
alleged by plaintiff occurred in either August of 1989 or
February of 2004, depending on how his complaint is
construed. Either way, plaintiff's February 2016 EEOC
charges were filed years after the relevant 180-day
period expired, and plaintiff has offered no explanation for
the delay. Accordingly, plaintiff failed to timely
exhaust his administrative remedies before filing suit, and
his claims are due to be dismissed. Because it is clear that
plaintiff's claims are due to be dismissed, the Court
will also deny the motion to appoint counsel as moot. A
separate order will be entered.
 See doc. no. 1
 Doc. no. 10.
 Doc. no. 13.