United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
matter is before the court on the defendant's Partial
Motion to Dismiss and the Amendment to Partial Motion to
Dismiss. (Docs. 8, 37). Enterprise Holdings, LLC
(“Enterprise” or “Defendant”) filed
the amendment to the motion on November 27, 2018 seeking the
court's dismissal of Constance McLemore's
(“Plaintiff” or “McLemore”) claim
under the American with Disabilities Act (“ADA”).
Enterprise argues that the plaintiff's claim under the
ADA is due to be dismissed as untimely. The plaintiff
responded to the motion on January 14, 2019. (Doc. 48). The
parties have consented to the dispositive jurisdiction of the
Magistrate Judge in accordance with § 636(c).
motion to dismiss, the court must accept as true all of the
facts alleged in the complaint. Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868
(2009). Federal Rule of Civil Procedure 8(a) requires only a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Liberal notice
pleading standards embodied in Rule 8(a) “do not
require that a plaintiff specifically plead every element of
a cause of action, ” Roe v. Aware Woman Ctr. For
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set
out in precise detail the specific facts upon which he bases
his claim. The complaint must only “contain either
direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable
legal theory.” Id. (quoting In re Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A
Sept. 8, 1981)).
Supreme Court clarified the threshold for a sufficient
pleading in Bell Atlantic Corp. v. Twombly. 550 U.S.
544, 570, 127 S.Ct. 1955, 1965 (2007) (rejecting the standard
from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957), that any “conceivable” set of
facts supporting relief is sufficient to withstand a motion
to dismiss). To show that “the pleader is entitled to
relief, ” under Rule 8(a)(2), the complaint must allege
facts that “plausibly” demonstrate a viable cause
of action. The threshold of plausibility is met when the
plaintiff “pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009). To withstand scrutiny under Rule 12(b)(6) a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face, ” and that will
thus “nudge [his] claims across the line from
conceivable to plausible.” Twombly, 550 U.S.
at 570. This requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555. The Eleventh Circuit Court of Appeals has
explained that the principles set forth in Twombly
and Iqbal require the complaint to set forth
sufficient facts that “raise a right to relief above
the speculative level.” Speaker v. U.S. Dep't
of Health and Human Servs. Centers for Disease Control and
Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010).
the existence of an affirmative defense will not support a
motion to dismiss.' Quiller v. Barclays Am./Credit,
Inc., 727 F.2d 1067, 1069 (11th Cir. 1984) aff'd and
reinstated on reh'g, 764 F.2d 1400 (11th Cir. 1985)
(en banc). In some cases, however, ‘[a]
complaint may be dismissed if an affirmative defense ...
appears on the face of the complaint.' Bingham v.
Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).”
Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1225
(11th Cir. 2016). Whether a plaintiff has filed a timely
complaint following an EEOC investigation is an affirmative
defense the defendant must plead and prove. The plaintiff is
not required to affirmatively plead the timeliness of her
complaint. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir.2004); Abraham v. Greater
Birmingham Humane Soc'y, Inc., No.
2:11-CV-04358-SLB, 2014 WL 1043230, at *1 (N.D. Ala. Mar. 17,
2014). Although the timely filing of a charge of
discrimination with the Equal Employment Opportunity
Commissions is not a jurisdictional requirement, see
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393,
102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), it is statutory
procedural precondition to suit the court may require the
plaintiff to demonstrate.
the court may consider and decide factual questions related
to non-exhaustion of administrative remedies if “(1)
the factual disputes do not decide the merits of the claims
and (2) the parties have had sufficient opportunity to
develop the record.” Tillery v. U.S. Dep't of
Homeland Sec., 402 Fed.Appx. 421, 423 (11th Cir. 2010).
“Because exhaustion of administrative remedies is a
matter in abatement and not generally an adjudication on the
merits, an exhaustion defense… is not ordinarily the
proper subject for a summary judgment; instead, it
‘should be raised in a motion to dismiss, or be treated
as such if raised in a motion for summary
judgment.'” Bryant v. Rich 530 F.3d 1368,
1374 (11th Cir. 2008) (quoting Ritza v. Int'l
Longshoremen's & Warehousemen's Union, 837
F.2d 365, 368-69 (9th Cir.1988)). For that reason, the court
may require the plaintiff to produce evidence of her filings
with the EEOC.
filed her complaint alleging violations of the Family Medical
Leave Act and the Americans with Disabilities Act in
connection with her employment and termination from
Enterprise on April 6, 2018. (Doc. 1). In a Proposed Amended
Complaint attached to a motion for leave to amend, Plaintiff
also refers to a claim of race discrimination; however, her
original complaint clearly does not allege race
discrimination. Despite being ordered to properly file an
amended complaint, the plaintiff failed to do
(Doc. 32, 34). On May 14, 2018, defendant filed a partial
motion to dismiss on the grounds that plaintiff failed to
exhausted her administrative remedies. (Doc. 8). After
numerous orders to show cause, plaintiff filed both her EEOC
charge and her right-to-sue letter demonstrating that she had
exhausted her administrative remedies. (Doc. 14, 24).
Defendant then filed an Amendment to Partial Motion to
Dismiss, alleging that, notwithstanding that the plaintiff
filed a charge with the EEOC, the plaintiff's ADA claim
still was due to be dismissed because she failed to file her
lawsuit within ninety days of receiving her right to sue
letter. According to the documentation provided by the
plaintiff, she filed her EEOC charge on April 18, 2016.
Plaintiff's right-to-sue letter was dated and apparently
mailed on August 24, 2017. Plaintiff also filed with the
court a note from the EEOC that states, “Copy of Right
to Sue Notice is enclosed 12/06/2017.” From this, it
appears that plaintiff may have requested an
additional copy of the right-to-sue letter that was
mailed to her on or about December 6, 2017. The complaint
commencing this action was filed April 6, 2018.
ADA, 42 U.S.C. 12101, et seq, has adopted the same
enforcement mechanisms as Title VII. Miller v.
Georgia, 223 Fed.Appx. 842, 844 (11th Cir. 2007). Under
Title VII, a plaintiff is given ninety days to file her
complaint after she receives a right-to-sue letter
from the EEOC. Id. (citing 42 U.S.C. §
2000e-5(f)(1)). Additionally the right to sue letter that
plaintiff received stated in bolded and capitalized font that
any “lawsuit must be filed WITHIN 90
DAYS of your receipt of this notice.”
(Doc. 14, p. 3) (emphasis in original).
conjunction with her right-to-sue letter, the court can find
two potentially relevant dates. The first date is August 24,
2017, the “date mailed” on the actual
right-to-sue letter. The second date is December 6, 2017, the
date on the letter from the EEOC stating “Copy of Right
to Sue Notice is enclosed.” The plaintiff has not
stated the date she received the right-to-sue letter, so it
is presumed that she received the letter within three days of
mailing. Kerr v. McDonald's Corp., 427 F.3d 947,
953 n.9 (11th Cir. 2005). Construing the facts in favor of
the plaintiff and assuming that the letter was prepared for
mailing on the later date, December 6, 2017, and mailed on or
before December 8, 2017, the letter would have been received on
or about December 11, 2017. From that date until April 6,
2018, when plaintiff filed her complaint, 118 days elapsed.
Therefore, plaintiff failed to timely file her complaint
after receiving her right-to-sue letter, even assuming the
facts most favorable to the plaintiff.
the ninety-day statutory period under the ADA is not
jurisdictional and is subject to equitable tolling, the
plaintiff has neither presented evidence that “(1)
[she] has been pursuing [her] rights diligently and (2) some
extraordinary circumstance stood in [her] way and prevented
[her] from timely filing” nor argued that she was
entitled to equitable tolling. See Winsor v. Home Depot
U.S.A., Inc., 742 Fed.Appx. 335, 338 (11th Cir. 2018).
It seems unlikely that she can make the requisite showing,
given that the “mailing date” of the right-to-sue
letter was August 24, 2017, and that she then sought an
additional copy of the right-to-sue letter in December 2017.
Both dates are more than ninety days prior to the filing of