Opinion
Civil Action No. CCB-07-1626.
September 30, 2008
MEMORANDUM
Now pending before the court are a motion to dismiss and a motion for summary judgment filed by the defendants Maryland Department of Health and Mental Hygiene, Mental Hygiene Administration, Eastern Shore Hospital Center, Maryland Sheltered Workshop ("MSW"), Mary Kay Noren, Douglas Turner, Alfonso Woolford, and John Marine against plaintiff Merle Warfle. Following Mr. Warfle's voluntary withdrawal of multiple claims, only the causes of action pertaining to Title II of the Americans with Disabilities Act ("Title II") and Title VII of the Civil Rights Act of 1964 ("Title VII") remain. The issues in this motion have been fully briefed and no hearing is necessary. For the reasons stated below, the defendants' motions, which will be construed as one for summary judgment, will be granted.
Mr. Warfle voluntarily withdrew Counts II, V, VI, VII, VIII, and IX, leaving only Counts I, III, and IV. Mr. Warfle additionally withdrew any claims against individuals named as defendants.
BACKGROUND
The factual underpinning of this case relates to alleged reprisals Mr. Warfle suffered as a result of his attempts to oppose sexual harassment and misconduct that occurred at MSW over an eight-month period until his termination on October 17, 2003. Mr. Warfle alleges that he was subject to retaliation in the form of harassment and intimidation for opposing misconduct that routinely targeted female workers at MSW. In addition, Mr. Warfle alleges that he suffered a hostile work environment.
On January 12, 2004, Mr. Warfle filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). In June of 2004, the EEOC found reasonable cause to believe Mr. Warfle had been retaliated against in violation of Title VII, but did not find Mr. Warfle had been discriminated against on the basis of disability or sex. (Compl. at Ex. B, EEOC Determination.) The matter was referred by the EEOC to the Department of Justice ("DOJ") for further investigation. The investigation lasted approximately two years, but was closed on September 25, 2006 with the Justice Department deciding to take no further action. (Def.'s Supp. Mem. at Ex. 4, Toomey Dec. at ¶ 4.) According to DOJ records, a Notice of Right to Sue ("NRTS") was sent by certified mail to Mr. Warfle's address of record on October 2, 2006. ( Id. at ¶ 6; Compl. at Ex. A, Charge of Discrimination.) Mr. Warfle no longer resided at that address, however, and so never received the NRTS. The NRTS was returned to the DOJ by the U.S. Postal Service on October 16, 2006. On January 18, 2007, Mr. Warfle contacted the DOJ to inquire as to whether a NRTS had been issued in his case. ( Id. at ¶ 7.) He also attempted to update his current address by providing the DOJ with his mother's address. Unfortunately, the address Mr. Warfle allegedly attempted to give over the telephone on "Old Sharptown Road" was understood by the recipient at the DOJ to be "Old Truck Town Road." Thus, when the DOJ again attempted to mail Mr. Warfle the NRTS on January 22, 2007, the certified letter was eventually returned to the DOJ. Finally, on March 7, 2007, a manager at Changing Directions, a supportive housing program where Mr. Warfle was currently a client, emailed the DOJ to inquire into the NRTS. On March 22, 2007, the NRTS was faxed to Changing Directions by the DOJ. On June 19, 2007, Mr. Warfle filed this lawsuit.
Mr. Warfle claims that he attempted to update his current mailing address at some point in October of 2006, but the DOJ has been unable to verify any such conversation or request.
Mr. Warfle does not appear to contest that he is often in and out of various housing and drug rehabilitation programs, and thus rarely has a stable or permanent place of residency.
ANALYSIS
Where matters outside the pleadings are considered by the court, a defendant's motion to dismiss will be treated as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b) (c). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment:
should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The Supreme Court has clarified this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
A. Title II Claim
Although Mr. Warfle voluntarily withdrew numerous claims that are time-barred by Maryland's three-year statute of limitations, he nevertheless continues to assert a claim under Title II of the ADA. The ADA, however, does not contain a specific limitations period, and therefore courts must apply the most relevant state statute of limitations. See McCullough v. Branch Banking Trust Co., 35 F.3d 127, 129 (4th Cir. 1994); Kohler v. Shenasky, 914 F. Supp. 1206, 1209 (D. Md. 1995). In Kohler, the court determined that a claim brought under Title II of the ADA is subject to Maryland's general three-year statute of limitations. 914 F. Supp. at 1211. Therefore, because Mr. Warfle filed this action more than three years after the last allegedly wrongful act, his Title II claim is barred by the statute of limitations.
B. Title VII Claim
Mr. Warfle asserts two claims under Title VII, including one for hostile work environment and one for retaliatory discharge. As a threshold matter, Title VII plaintiffs have ninety days to file their claims after they have received a NRTS. See Watts-Means v. Prince George's Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993). The Fourth Circuit has adopted a constructive, rather than actual, receipt standard in order to determine when the clock begins to run on a prospective plaintiff's ninety-day limitations period. This means that the clock begins to run when the NRTS is delivered to the prospective plaintiff's address of record, not when it is actually received by that plaintiff. Id. (citing Harvey v. City of New Bern Police Dept., 813 F.2d 652 (4th Cir. 1987), for the proposition that "delivery of a right-to-sue letter to a plaintiff's home triggers the [ninety-day] limitations period even if the plaintiff does not actually receive the letter"). In cases like this, where the date of delivery is disputed or unknown, courts in the Fourth Circuit apply the "mailbox rule" and presume that the NRTS was delivered three days after it was mailed. See, e.g., Panyanouvong v. Vienna Wolftrap Hotel, 525 F. Supp. 2d 793, 796-797 (E.D. Va. 2007); Beale v. Burlington Coat Factory, 36 F. Supp. 2d 702, 704 (E.D. Va. 1999).
The "mailbox rule," set forth in Rule 6(d) (formerly Rule 6(e)), reads: "When a party may or must act within a specified time after service and service is made . . ., 3 days are added after the period would otherwise expire under Rule 6(a)." Fed.R.Civ.P. 6(d).
To ensure that a NRTS is sent to the correct location, the law requires the prospective plaintiff to provide the EEOC with a current address and to inform it of any prolonged absences or changes of address. 29 C.F.R. § 1601.7(b); see Beale, 36 F. Supp. 2d at 704. The EEOC is entitled to rely on the address the plaintiff gives and to start the limitations period from the date of constructive receipt at that address. Id.; Griffin v. Prince William Hosp. Corp., 716 F. Supp. 919, 921 (E.D. Va. 1989). Accordingly, the prospective plaintiff is expected to exercise due diligence in keeping the EEOC apprised of his address in order to preserve his legal claims. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Panyanouvong, 525 F. Supp. 2d at 797-98.
Under certain circumstances, Title VII's ninety-day limitations period may be equitably tolled. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Watts-Means, 7 F.3d at 42. The Fourth Circuit has held equitable tolling to be available in "those rare instances where — due to circumstances external to the party's own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). To invoke equitable tolling, therefore, the plaintiff must be able to show "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
In this case, Mr. Warfle states that his failure to receive the original NRTS in a timely manner prevented him from filing his Title VII claims by January 2, 2007, ninety days after it was constructively received. Unfortunately, this failure to receive the original NRTS cannot be viewed as an "extraordinary circumstance" beyond Mr. Warfle's control justifying equitable tolling, since it was his responsibility to contact the EEOC with changes to his address (which the EEOC would then transmit to the DOJ). The charge of discrimination form that Mr. Warfle filed put him on notice of this responsibility. Mr. Warfle appears to admit that he was expecting the original NRTS as early as the fall of 2006 (Def.'s Supp. Mem. at Ex. 2, Warfle Dep. at 48-49), yet he has been unable to show that he communicated with either the EEOC or the DOJ about his changing whereabouts until his January 18, 2007 phone call. See Harper v. Burgess, 701 F.2d 29, 30 (4th Cir. 1983) (per curiam) (finding "no recognized equitable grounds to toll the running of the 90-day limitation [period]" where the plaintiff did not notify the EEOC of her change of address) (internal quotation omitted); Panyanouvong, 525 F. Supp. 2d at 799; Beale, 36 F. Supp. 2d at 704. Therefore, equitable tolling is not warranted for Mr. Warfle's Title VII claims.
Above the signature line on that form is the following sentence: "I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number. . . ." (Compl. at Ex. A, Charge of Discrimination.)
If this court were to take the more generous view that Mr. Warfle's limitations period did not begin until after the EEOC attempted to mail the NRTS to his updated address on January 22, 2007, Mr. Warfle's Title VII claims unfortunately would still be time-barred and not suitable for equitable tolling. Mr. Warfle asserts that this NRTS was never received because the DOJ misunderstood the address he provided, and thus mailed it to an incorrect location. While this assertion, if true, would present a circumstance beyond his control that prevented him from filing on time, it cannot be said to be so extraordinary as to make enforcement of the limitations period unconscionable, particularly given that the original NRTS had been sent several months earlier. Moreover, unlike with the original NRTS, which Mr. Warfle could at least argue he did not know when to expect, he knew that this NRTS was being mailed to him as of January 18, yet failed to take steps to learn why he had not received it until approximately March 7, 2007, forty-eight days later. This inaction is inconsistent with the degree of diligence courts expect as a precondition to equitably tolling the limitations period. See Irwin, 498 U.S. at 96; Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984); Hutchinson, 209 F.3d at 330. Therefore, even without considering the original NRTS, equitable tolling of the limitations period is unwarranted as to the second NRTS, making Mr. Warfle's Title VII claims untimely.
The Fourth Circuit has also stated that equitable tolling is permitted in situations where "plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant." Hutchinson, 209 F.3d at 330. While the DOJ may have incorrectly recorded the plaintiff's address during its January 18, 2007 phone call, there is no evidence that this mistake was an instance of wrongful conduct. However, this court leaves open the question of whether, in certain cases, a faulty recording of an address could be shown to be wrongful conduct.
CONCLUSION
For the foregoing reasons, the defendants' motions, which will be construed as one for summary judgment, will be granted. A separate Order follows.