United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
Pursuant
to 28 U.S.C. § 636(b)(1) this case was referred to the
undersigned United States Magistrate Judge for consideration
and disposition (Doc. 6, filed November 14, 2018). For good
cause, it is the Recommendation of the Magistrate Judge that
this case be dismissed prior to service of process pursuant
to 28 U.S.C. § 1915(e)(2)(B).[1]
I.
INTRODUCTION
Plaintiff
Mattie Grant (“Grant” or “Plaintiff”)
initiated this employment discrimination action on November
6, 2018. In her Complaint (Doc. 1, filed November 6, 2018),
Grant seeks relief for actions that occurred with a potential
employer, Alabama Department of Transportation
(“ALDOT” or “Defendant”), in
Montgomery, Alabama. Doc. 1 at 2. Grant avers that, between
1982 and 1986, she applied for multiple clerical positions
with ALDOT, and despite being qualified to hold said
positions, she was denied employment due to her race and
gender as a black female. Doc. 1 at 1-2. Grant seeks $20, 000
per year in back pay spanning from 1982 through 1986.
II.
DISCUSSION
Plaintiff
filed an Equal Employment Opportunity Commission
(“EEOC”) charge of discrimination on July 7,
2016, alleging that she was discriminated against based on
race.[2]Doc. 1-1 at 7. The EEOC issued Plaintiff a
“Dismissal and Notice of Rights” stating that the
EEOC was closing its file on Plaintiff's charge because
her “charge was not timely filed with EEOC; in other
words, you waited too long after the date(s) of the alleged
discrimination to file your charge.” Doc. 1-1 at 5.
Grant
also attached a Notice of Decertification of Class Action
and Need to Take Action to Preserve Claims
(“Notice”) sent in reference to Reynolds v.
Alabama Dept. of Transportation, et al.,
2:85-cv-00665-MHT-WC. Doc. 1-1 at 1. The Notice stated, that
as of March 19, 2015, this Court decertified the class action
as to the “Hiring Class” that was filed against
ALDOT in 1985. Id. “Plaintiffs filed the
Reynolds lawsuit on May 21, 1985, on-behalf of themselves and
other similarly situated African-Americans, claiming that
Defendants had committed acts of race discrimination in
employment since May 21, 1979, in violation of the Fourteenth
Amendment to the U.S. Constitution, 42 U.S.C. § 2000e
through 2000e-17 (commonly known as Title VII of the Civil
Rights Act) and 42 U.S.C. §§ 1981, 1983.”
Doc. 1-1 at 2. Grant filed her claim as a member of the
Hiring Class. Hiring Class members were notified that,
following the decertification of the class, if they wished to
file a lawsuit, they had 180 days to file a charge with the
EEOC. The class members were specifically warned that, if
they failed to file an EEOC charge within the 180 days of
receiving the Notice, they would be barred from filing their
Title VII claim(s). Doc. 1-1 at 3. The Notice also noted that
the applicable statutes of limitations were suspended during
the pendency of the class certification; however, following
the decertification, it began to run again as of March 19,
2015. Id.
To
bring suit under Title VII, a plaintiff must file a civil
action within ninety days of the receipt of the
EEOC's Dismissal and Notice of Rights.[3] 42 U.S.C. §
2000e-5(f)(1) (if a charge filed with the Commission [. . .]
is dismissed by the Commission [. . .], [the Commission]
shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought
against the respondent named in the charge (A) by the person
claiming to be aggrieved [. . .].); O'Donnell v.
Punta Gorda HMA, LLC, No. 2:10-cv-785-FtM-29SPC, 2011 WL
3168144, at *2 (M.D. Fla. Jul. 27, 2011) (“Under [ ]
Title VII, a plaintiff must bring a suit within 90 days of
receiving a right-to-sue letter from the EEOC [. .
.].”). When the aggrieved party knows [the] EEOC has
completed its efforts, the time for suit has come and the
statute fixes its season as 90 days.” Zambuto v.
Am. Tel. & Tel. Co., 544 F.2d 1333, 1335 (5th
Cir.1977).
Filing
within the ninety-day period is a condition precedent subject
to equitable tolling or waiver, rather than a jurisdictional
bar. Fouche v. Jekyll Island-State Park Auth., 713
F.2d 1518, 1525-26 (11th Cir. 1983). The Eleventh Circuit has
recognized three distinct situations in which the limitation
period may be equitably tolled: (1) during the pendency of an
action against the same parties and involving the same cause
of action in a state court which had jurisdiction over the
subject matter of the suit but was the wrong forum under
state law; (2) when the defendant concealed facts that
support the plaintiff's cause of action, until such time
as the plaintiff knew or should have known of these facts;
and (3) when the EEOC misleads a complainant about the nature
of her rights. Jones v. Wynne, 266 Fed.Appx. 903,
906 (11th Cir. 2008) (citing Chappell v. Emco Mach. Works
Co., 601 F.2d 1295, 1302-03 (5th Cir. 1979)); see
also Mesidor v. Waste Mgmt., Inc. of Florida, 606 Fed.
App'x 934, 936 (11th Cir. 2015). Equitable tolling
“is an extraordinary remedy which should be extended
only sparingly.” Bost v. Fed. Express Corp.,
372 F.3d 1233, 1242 (11th Cir. 2004).
Here,
Grant received notice regarding decertification of the class
action effective March 19, 2015. Doc. 1-1 at 1-3. The notice
clearly and unambiguously set forth the effects of the
decertification and the requirements to file a EEOC charge
within 180 days of the notice. Id. Grant failed to
file her EEOC charge until July 7, 2016. Doc. 1-1 at 7. As a
result, the EEOC closed the file due to it being untimely
filed. Doc. 1-1 at 5. The EEOC mailed the Dismissal and
Notice of Rights on July 19, 2017. Doc. 1-1 at 5. The
Dismissal and Notice of Rights clearly and unambiguously
stated that Grant's “lawsuit must be filed
WITHIN 90 DAYS of your receipt of this notice; or
your right to sue based on this charge will be lost.”
Id. (emphasis in original). Grant filed the instant
Complaint on November 6, 2018; approximately a year and four
months (487 days) after the Dismissal and Notice of Rights
was mailed. Plaintiff has failed to allege the EEOC misled
her as to the nature of her rights, and the Court does not
find any basis for such an allegation based on the clear and
unambiguous language provided in the Dismissal and Notice of
Rights.
Next,
the Court is tasked with determining when Plaintiff had
notice of her rights. The Eleventh Circuit has held that
“statutory notification is complete only upon actual
receipt of the right to sue letter.” Kerr v.
McDonald's Corp., 427 F.3d 947, 952 (11th Cir. 2005)
(quoting Franks v. Bowman Transp. Co., 495 F.2d 398,
404 (5th Cir. 1974), rev'd on other grounds, 424
U.S. 747 (1976)). However, the Circuit has “imposed
upon complainants some ‘minimum responsibility [. . .]
for an orderly and expeditious resolution' of their
claims, and we have expressed concern over enabling
complainants to enjoy a ‘manipulable open-ended time
extension which could render the statutory minimum
meaningless.'” Id. (quoting Zillyette
v. Capital One Fin. Corp., 179 F.3d 1337, 1340 (11th
Cir. 1999) (citation omitted)). “[T]he 90-day
limitations period is to be analyzed on a case-by-case basis
to fashion a fair and reasonable rule for the circumstances
of each case, one that would require plaintiffs to assume
some minimum responsibility [. . .] without conditioning a
claimant's right to sue [. . .] on fortuitous
circumstances or events beyond [her] control.”
Id. (citing Zillyette, 179 F.3d at 1340
(citation omitted)).
Here,
Plaintiff claims that she “does not recall ever
receiving” the Dismissal and Notice of Rights letter
issued by the EEOC. Doc. 1 at 3. Notwithstanding the fact
that Plaintiff obviously received the letter, since it is
attached to her Complaint, the Plaintiff is essentially
asserting that she is unsure of the date of receipt of the
Dismissal and Notice of Rights letter. However, lack of
knowledge of the exact date of receipt is not a justifiable
reason for tolling in this Circuit, and courts have rejected
similar arguments on multiple occasions. See Green v.
Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002)
(determining that plaintiff failed to satisfy the burden of a
timely filing when plaintiff did not know exact date that his
right-to-sue letter was received at his home address and
plaintiff filed his complaint on the ninety-seventh day);
Martinez v. United States Sugar Corp., 880 F.Supp.
773, 777 (M.D. Fla. 1995), aff'd 77 F.3d 497
(11th Cir. 1996) (determining that plaintiff failed to
satisfy the burden of a timely filing when plaintiff could
not remember the date on which he received the right-to-sue
letter and plaintiff filed his complaint on the ninety-fifth
day); Bell v. Eagle Motor Lines, 693 F.2d 1086, 1087
(11th Cir. 1982) (finding ninety-day period for filing suit
began to run when plaintiff's wife received the letter at
their shared place of residence).
Further,
when the date of receipt of the Dismissal and Notice of
Rights is in dispute, “this court has applied a
presumption of three days for receipt by mail, akin to the
time period established in Fed.R.Civ.P. 6(e).”
Kerr, 427 F.3d at 953 n.9 (citing
Zillyette, 179 F.3d at 1342). Thus, even if the
undersigned were to accept Plaintiff's excuse concerning
notice, the three-day presumption of receipt would apply,
setting the presumption of receipt on July 22, 2017.
Plaintiff had until October 20, 2017, to file her Title VII
action in this Court. Instead, Plaintiff did not file her
Complaint in this Court until November 6, 2018, over a year
(382 days) past the 90-day limitation period.
Because
Plaintiff filed her Title VII claim out of time without
excuse, dismissal of Plaintiff's ...