Opinion
5:20-CV-00486-BO
04-12-2021
Sonya Lynn Ndiaye, Plaintiff, v. Lloyd Austin, Secretary, Department of Defense, et al., [1] Defendants.
ORDER & MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge.
Plaintiff Sonya Ndiaye alleges violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. D.E. 1. Ndiaye asks the court to allow her to proceed without paying filing fees and other costs associated with a civil action, otherwise known as proceeding in forma pauperis (IFP). Id.
Ndiaye's lack of income entitles her to IFP status. But after reviewing the complaint the undersigned concludes that the court should dismiss it. Ndiaye did not file this action within the 90-day period after she received her right to sue letter, so her claims are time barred.
Several factual allegations come from Ndiaye's attachments to her complaint, including her EEOC filings and documents. D.E. 1. She also references exhibits from the EEOC's investigation throughout these listed allegations and in her filed supplementation. Id., D.E. 5.
Ndiaye claims her former employer, the Defense Commissary Agency at Fort Bragg, North Carolina violated her rights under Title VII and the ADA. She says her employer subjected her to unequal terms and conditions of her employment, sexual harassment, and verbal intimidation from discrimination based on disability, race, and sex. And she asserts that the Agency failed to accommodate her disability, retaliated against her, and failed to rehire her after transferring her location.
Ndiaye brought proceedings to challenge her treatment, but, on June 16, 2020, the EEOC concluded that she had not been discriminated against. D.E. 1-5 at 3-4. The EEOC also notified her of her right to file a civil action within a United State District Court within 90 calendar days from the date she received the EEOC decision. Id. at 3. Ndiaye filed her complaint with this court 91 days later on September 15, 2020. D.E. 1. The court also ordered Ndiaye to file a supplement to her complaint, which she did. D.E. 4, D.E. 5.
II. Analysis
There are two aspects of Ndiaye's case before the court. First, Ndiaye asks to proceed IFP. The court will grant this request because she lacks the necessary funds to pay the costs associated with litigation. Second, the court must conduct the screening required by 28 U.S.C. § 1915. After conducting the screening, the undersigned recommends dismissing the complaint because it is time barred.
A. Application to Proceed in District Court without Prepaying Fees or Costs
Ndiaye asks the court to allow her to proceed with her action without paying the required filing fee and other costs associated with litigation (colloquially known as proceeding in forma pauperis or IFP). The court may grant her request if she submits an affidavit describing her assets and the court finds that she cannot pay the filing fee. 28 U.S.C. § 1915 (2018). In assessing a request to proceed IFP, the court should consider whether the plaintiff can pay the costs associated with litigation “and still be able to provide h[er]self and h[er] dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted).
The court has reviewed Ndiaye's application and her monthly income does not greatly exceed her monthly expenditures. So the court finds that she lacks the resources to pay the costs associated with this litigation. The court thus grants Ndiaye's motion (D.E. 1) and allows her to proceed IFP.
B. Screening under 28 U.S.C. § 1915/1915A
Along with determining whether Ndiaye is entitled to IFP status, the court must also analyze the viability of the claims in the complaint. 28 U.S.C. § 1915(e) (2018). The court reviews a complaint to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).
A complaint fails to state a claim upon which relief may be granted if it does not “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 (2009). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, while a court must accept all the factual allegations in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id.
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or just a formulaic recitation of the elements of a claim. Id. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly suggest[s] an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown' - ‘that the pleader is entitled to relief'” Id. If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
Ndiaye's status as a pro se party relaxes, but does not eliminate, the requirement that a complaint contain facially plausible claims. Although a court must liberally construe a pro se plaintiff's allegations, it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011); see Giarratano v. Johnson, 521 F.3d 298, 304, n.5 (4th Cir. 2008).
C. Ndiaye's Title VII and ADA Claims are Time-Barred
Ndiaye's right to sue letter from the EEOC notified her that she had “the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you received this decision.” D.E. 1-5 at 3 (emphasis original). This deadline applies to both her Title VII and ADA claims. 42 U.S.C. §§ 2000e-16(c) & 2000e-5(e)(1).
The complaint states that Ndiaye received her Notice of Right to sue letter on June 16, 2020. Compl. at 5, D.E. 1-2. As a result, she needed to file her complaint with this court no later than September 14, 2020. See Nguyen v. Inova Alexandria Hosp., 187 F.3d 630 (4th Cir. 1999) (“[I]f the actual date of receipt is confirmed by evidence, that date governs.”)
But she did not meet the deadline. Although Ndiaye mailed her complaint on September 14, 2020, it did not arrive until the next day. D.E. 1-11. Thus, Ndiaye's complaint, filed 91 days after she received her right to sue letter, is untimely and her claims are barred by the statute of limitations. See Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654, 43 (4th Cir. 1987) (affirming district court's dismissal of a Title VII employment claim filed 91 days after the plaintiff received a right to sue letter).
Even though she only missed the deadline by a day, the court cannot lift the bar imposed by the statute of limitations. Hammonds v. Bo's Food Stores, No. 7:13-CV-66-FL, 2014 WL 3738607, at *2 (E.D. N.C. May 21, 2014) (“[T]he fact that plaintiff missed the filing deadline by a relatively short period of time does not justify equitable relief.”), adopted by, No. 7:13-CV-66-FL, 2014 WL 3738610 (E.D. N.C. July 29, 2014), aff'd sub nom. Hammonds v. Bo's Food Store, 588 Fed.Appx. 279 (4th Cir. 2014). And there are no other “extraordinary circumstances beyond the plaintiffs' control” that would allow the court to consider her filing timely. Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 321 (4th Cir. 2011) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).
Nor does the fact that she placed her complaint in the mail on the deadline help her case. While incarcerated pro se parties benefit from the “mailbox rule” which considers their submissions filed when mailed, “the unincarcerated litigant who decides to rely on the vagaries of the mail must suffer the consequences” if a deadline passes while their papers are in transit. Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996).
So the district court should dismiss Ndiaye's complaint.
III. Conclusion
The motion for leave to proceed in forma pauperis (D.E. 1) is granted. But the district court should dismiss the complaint for the reasons stated above.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.