Opinion
C/A No. 4:20-cv-2556-CMC-KDW
02-09-2021
Helen Gerald, Plaintiff, v. Mann & Hummel, formerly known as Wix Filtration Corp., Defendant.
REPORT AND RECOMMENDATION
This employment-related matter is before the court for issuance of a Report and Recommendation ("Report") pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff began litigation by filing a Complaint on July 8, 2020. ECF No. 1. Because Plaintiff is proceeding without representation the undersigned reviewed Plaintiff's initial pleading and determined additional information was required to bring her case into proper form. Plaintiff complied with two proper form orders, ECF Nos. 11, 18, and the court authorized service of the "Proper Form Complaint," ECF No. 1-2 (referred to herein as the "Complaint"), ECF No. 24. Plaintiff's Complaint includes claims for sexual harassment, retaliation, and age discrimination in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act ("ADEA"). Defendant Mann & Hummel, formerly known as Wix Filtration Corp., ("Mann & Hummel" or "Defendant") was served and filed a Motion to Dismiss, ECF No. 29, which is now before the court. Defendant argues Plaintiff's claims should be dismissed for failure to exhaust administrative remedies and for failure to timely file her case in this court. Plaintiff opposes the Motion. ECF No. 34. Having considered the parties' filings and applicable law, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 29, be granted and this matter be dismissed. I. Legal standard
Also on July 8, 2020, Plaintiff filed a similar Complaint against Olsten. See Gerald v. Olsten, 4:20-2555-CMC-KDW. A similar pending Rule 12(b)(6) motion will be addressed by a Report filed in that matter.
Defendant's challenges concerning failure to administratively exhaust remedies before the Equal Employment Opportunity Commission ("EEOC") and timely filing of this litigation are considered pursuant to Rule 12(b)(6). See Fort Bend Cnty., Texas v. Davis, 139 S. Ct. 1843, 1850-51 (2019) (holding "Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."); Lee v. Esper, No. CV 3:18-3606-TLW-KFM, 2019 WL 7403969, at *2 (D.S.C. Aug. 13, 2019) (noting challenge to administrative-exhaustion requirements appropriately considered under Rule 12(b)(6)), report and recommendation adopted, No. 318CV03606TLWKFM, 2020 WL 32526 (D.S.C. Jan. 2, 2020).
When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When ruling on a motion to dismiss, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The court need not accept legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or "legal conclusions drawn from the facts." Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009) (internal quotation omitted). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
"In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F. Supp. 2d 612, 622 (D.S.C. 2011) ("In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also 'consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'") (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); Bowie v. Univ. of Md. Med. Sys., No. CIV.A. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's ADA claim as time-barred and considering the EEOC Charge and Right to Sue Letter as being "integral" to the decision). II. Analysis
Both Title VII and the ADEA include administrative-exhaustion regulations that include time-requirements for submitting charges and for filing suit subsequent to the administrative process. At the court's request, Plaintiff provided a copy of the Charge filed with the EEOC and the South Carolina Human Affairs Commission ("SCHAC"). ECF No. 21 at 2 (Charge as to Mann & Hummel (Wix), filed on EEOC Form 5 and signed by Plaintiff on December 1, 2019). She also provided a copy of the EEOC "Dismissal and Notice of Rights," which is referred to herein as a Right to Sue ("RTS") Letter, mailed by EEOC on February 11, 2020. ECF No. 21 at 1 (RTS Letter concerning Mann & Hummel (Wix), EEOC Charge No. 436-2019-00220). In her Complaint Plaintiff indicates she received the RTS Letter on February 16, 2020. Compl. 6.
Defendant also argues Plaintiff did not exhaust claims of age-related discrimination. Def. Mem. 5 (noting the EEOC Charge did not include allegations of age-related discrimination, meaning Plaintiff failed to administratively exhaust the ADEA claim she vaguely references in her Complaint). Plaintiff does not respond to that argument. The court need not consider this argument based on the recommendation herein. In the event the court were to consider Defendant's argument, the undersigned agrees with Defendant. Plaintiff's Charge complains of Title VII violations based on sex and retaliation. It does not reference age in any manner. ECF No. 21 at 2. Plaintiff's failure to include any reference to age-based discrimination in her EEOC Charge precludes her pursuing an ADEA-based claim herein. The EEOC charge limits the scope of subsequent formal litigation to the charges themselves and any charges that would naturally arise from an investigation thereof. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005).
Defendant alleges Plaintiff's Charge was not timely filed with the EEOC and her Complaint was not timely filed with this court. ECF No. 29. Plaintiff asserts she timely submitted her claim to the EEOC, providing various documents in support of that claim. ECF Nos. 34 and attachments thereto. Plaintiff also urges the court to accept her Charge and her Complaint as having been timely filed, generally referencing the early-2020 pandemic-related shutdown of some non-essential businesses and a December 22, 2018-January 25, 2019 shutdown of the federal government. ECF No. 34-4.
A. Administrative remedies and timeliness requirements
Before filing suit under Title VII or the ADEA, a plaintiff must exhaust his administrative remedies by bringing a charge with the EEOC or, in a "deferral" jurisdiction with an appropriate state or local agency, within a specified time "after the alleged unlawful employment practice occurred." 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); see Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C. § 2000e-5(f)(1)). Title VII establishes "two possible limitation periods for filing a discrimination charge with the EEOC." Jones, 551 F.3d at 300 (explaining that the basic limitations period is 180 days after the alleged unlawful employment practice but can be extended to 300 days in a "deferral state" if state law proscribes the alleged employment practice and the charge is first filed with a state deferral agency); see id.; see also Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir. 1998).
The exhaustion procedures for the ADEA essentially parallels those described in Title VII. See, e.g., 29 U.S.C. § 626(d)(1).
A deferral jurisdiction is a state that has a law prohibiting employment discrimination on the same bases covered by the federal statutes and authorizing a state or local agency to grant or seek relief from such discrimination. See 42 U.S.C. § 2000e-5(c), (d). SHAC is South Carolina's reciprocal agency. The EEOC and SHAC have entered into a worksharing agreement regarding the processing of charges and the assertion of jurisdiction over charges of discrimination. See 42 U.S.C. § 2000e-8 (authorizing such agreements). This District has traditionally assumed, without requiring proof, the existence of such a workshare agreement between South Carolina and the EEOC. See Brown v. Berkeley Cnty. Sch. Dist., 339 F. Supp. 2d 715, 721 n.3 (D.S.C. 2004) (assuming existence of workshare agreement between the EEOC and SHAC such that filing a claim with SHAC is sufficient for a filing with the EEOC); see also Talent v. Comm'r of Pub. Works, No. 2:12-CV-0622 DCN, 2014 WL 971747, at *3 (D.S.C. Mar. 11, 2014) (noting that a workshare agreement between the EEOC and South Carolina traditionally has been assumed by courts in this district, making the 300-day deadline applicable "by virtue of any EEOC filing."). Here, Defendant bases its argument on a 180-day charge-filing period. Def. Mem. 4. In her response Plaintiff addresses the 300-day period. Pl. Mem. 2. Neither party provides any analysis regarding which time period applies. As noted above, this court applies the 300-day time period to charges filed in South Carolina. In any event, based on the within analysis, the analysis remains the same whether considering a 180-day or a 300-day limitations period.
When a charge is filed with the EEOC in a deferral jurisdiction such as South Carolina, the EEOC must refer the charge to the deferral agency and typically must afford that agency "a reasonable time, but not less than sixty days" to act under the state law to "remedy the practice alleged." 42 U.S.C. § 2000e-5(d). After expiration of the deferral period, the EEOC must notify the employer against which the charge has been alleged, and the EEOC is to investigate the charge to determine whether reasonable cause exists to believe unlawful discrimination has taken place. 42 U.S.C. § 2000e-5(b). If the EEOC finds such reasonable cause, it is to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. If conciliation is not successful, however, the EEOC may initiate litigation. 42 U.S.C. § 2000e-5(f)(1). Conversely, if the EEOC does not find reasonable cause exists, it must dismiss the charge. 42 U.S.C. § 2000e-5(b).
In the event the EEOC dismisses a charge of discrimination or if it has neither filed suit against the employer nor achieved a conciliation agreement within 180 days after either (1) the charge is filed, or (2) the 60-day reference period in a deferral jurisdiction expires, whichever is later, the EEOC must give notice to the complainant of the complainant's right to file suit. See 42 U.S.C. § 2000e-5(f)(1). This notice to the complainant is commonly referred to as a "right to sue letter (RTS Letter)." See generally EEOC v. Propak Logistics, Inc., 746 F.3d 145, 148 (4th Cir. 2014) (noting EEOC's "issuance of a 'right to sue' letter allows an individual to initiate a private Title VII lawsuit in federal court.") (citing Davis v. N.C. Dept. of Corr., 48 F.3d 134, 138 (4th Cir. 1995)). A complainant has 90 days "after the giving of such notice" to file suit in federal or state court. 42 U.S.C. § 2000e-5(f)(1).
A Title VII suit must be filed within 90 days of receiving the RTS Letter. See 42 U.S.C. § 2000e-5(f)(1). "Title VII's timely filing requirements are not jurisdictional." Davis v. N.C. Dep't of Corr., 48 F.3d 134, 140 (4th Cir. 1995) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Rather, they are requirements "that, like a statute of limitations, [are] subject to waiver, estoppel, and equitable tolling." Chacko v. Patuxent Inst., 429 F.3d at 513 n.5 (quoting Zipes, 455 U.S. at 393); see Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987) (finding court may make a "thorough examination of the facts to determine if reasonable grounds exist for an equitable tolling of the filing period").
B. Timeline
In considering Defendant's arguments concerning the filing of Plaintiff's EEOC Charge and federal court Complaint, the following dates and information are helpful:
• April 24, 2018
? "Latest date discrimination" against Plaintiff took place, according to her EEOC Charge. ECF No. 21 at 2 (indicating discrimination took place from March 1, 2018 to April 24, 2018).
• August 13, 2018
? Date of receipt for $25.00 "consultation fee" paid by Plaintiff to Attorney Pheobe A. Clark. ECF No. 34-1 at 2.
• October 5, 2018
? Date of letter from Clark to Plaintiff advising that Clark would not be able to assist her in the employment matter, enclosing "complaint form" for Plaintiff to complete, sign, and submit to the EEOC. ECF No. 34-1 at 3. Plaintiff indicates the enclosure was an EEOC Intake Questionnaire. Pl. Mem. 2.
• October 10, 2018
? Date Plaintiff signed EEOC Intake Questionnaire. ECF No. 34-1 at 8.
• October 22, 2018
? 180th non-holiday weekday after April 24, 2018. Last day for Plaintiff to timely file a charge with the EEOC based on Defendant's argument that Plaintiff had 180 days to file her Charge (as one would in a non-deferral state).
• October 23, 2018
? Date of United States Postal Service ("USPS") receipt indicating something was mailed to Greenville, S.C. ECF No. 34-1 at 4. Plaintiff states this is the date she mailed the Intake Questionnaire to the EEOC, arguing this is proof that she was "well in timely with her three-hundred days statu[t]e". Pl. Mem. 2.
• February 19, 2019
? 300th non-holiday weekday after April 24, 2018 [300th weekday after April 24, 2018 was February 18, 2019, which was a federal holiday]. Last day for Plaintiff to timely file a charge with the EEOC or state referral agency.
• March 1, 2019
? Date of email from EEOC Investigator Terrence J. O'Brien to Plaintiff, attaching draft Charges of Discrimination for Plaintiff to review, sign, date, and return by fax, email, or mail. ECF No. 34-6 at 1. (concerning EEOC Charge numbers 436-2018-00220 (apparent clerical error in number for Mann & Hummel Charge, EEOC Charge 436-2019-00220) and 236-2019-00619 (Olsten Charge)).
¦ The referenced attached, unsigned charge forms are not included in the record, nor does Plaintiff make any reference to this email communication in her briefs in either of the related cases.
• December 1, 2019
? Date Plaintiff signed the EEOC Charge in Mann & Hummell (Wix) matter (Charge 436-2019-00220). ECF No. 21 at 2; 34-2 at 3.
• December 3, 2019
? Date Plaintiff indicates she faxed the signed Charge in Mann & Hummell (Wix) matter to EEOC. Pl. Mem. 2, ECF No. 34-2 at 4.
• February 11, 2020
? Date EEOC mailed RTS letter as to Mann & Hummell (Wix) Charge to Plaintiff. ECF No. 34-3.
• February 16, 2020
? Date Plaintiff indicates she received the RTS Letter. Compl. 6.
• March 16, 2020
? Date of District of South Carolina's Standing Order, In re: Court Operations in Response to COVID-19, 3:20-mc-105 (Mar. 16, 2020). This Order extended by "21 days from the current deadline set," all deadlines in civil cases, whether set by the Rules of Civil Procedure or Local Rules. The Order "does not toll any applicable statutes of limitation." Id. at 1.
• May 18, 2020
? 90th weekday after Plaintiff's presumed receipt of RTS Letter. Last date for timely filing Complaint in this court.
• July 8, 2020
? Date Plaintiff filed Complaint in this court. ECF No. 1.
C. Timeliness of Plaintiff's EEOC Charge
Plaintiff does not dispute that she was required to submit a Charge to the EEOC within 300 days (no later than February 19, 2019). Rather, she argues that her faxing her completed Intake Questionnaire in October 2018 was sufficient to satisfy this 300-day requirement. Pl. Mem. 2. Plaintiff claims, "EEOC did not contact me about the plaintiff charge of the discrimination until one year after [] the plaintiff['s] complaint." Id. at 3. Plaintiff submits the EEOC took 16 months to "make a decision" on her claim and notes her former employer will be closing its plant. Plaintiff submits that she "filed the complaint in [a] timely manner which fell in situations that [were] totally out of the plaintiff's hand, therefore, the plaintiff['s] case should not be dismissed." Id. Plaintiff submits she had made complaints to Defendant, and Defendant should not be "relieved from this case [] because the complaint wasn't handled fairly." Id.
Proceeding pro se, Plaintiff makes no legal argument to support her claim that the Intake Questionnaire suffices as a Charge for purposes of the 300-day filing requirement. Defendant did not file a reply. The court notes that, under very limited circumstances completed Intake Questionnaires that contain sufficient information may be considered as fulfilling the charge-filing requirement. The court notes that EEOC regulations permit later-filed Charges to "relate back" to earlier, timely filed submissions (such as Intake Questionnaires) under certain circumstances, particularly requiring that the prior submission include "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). See Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008) (discussing limited instances in which an EEOC intake questionnaire can constitute a charge).
Here, though, the Questionnaire provided by Plaintiff is lacking in fundamental information regarding a basic description of the complained-of acts, reasons for the acts, information about similarly situated employees, or other information sought in the Questionnaire. Id.; see Questionnaire, ECF No. 34-1 at 5-8 (never identifying Mann & Hummell/Wix at all; indicating "Olsten Staffing" was "Employment Agency," but providing no address or other contact information; checking a box for "sex" as the basis for the claimed discrimination but including no other information regarding the particulars of the claimed discrimination).
The undersigned recommends that the District Court find that the Questionnaire Plaintiff submitted in October 2018 could not suffice as a "Charge." EEOC regulations do permit later-filed Charges to "relate back" to earlier, timely filed submissions (such as Intake Questionnaires) under certain circumstances. Those regulations particularly require that the prior submission include "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). Here, however, the timely submitted Questionnaire does not come close to sufficiently identifying the parties or practices at issue. The Questionnaire should not be construed as a Charge; the December 1, 2019 Charge directed to Mann & Hummel/Wix is untimely.
The USPS receipt Plaintiff provided does not establish she actually mailed the Questionnaire to the EEOC. However, giving the pro se Plaintiff every benefit of the doubt for purposes of this analysis, the undersigned accepts that Plaintiff mailed the Questionnaire when she said she did.
The court notes, though, that the "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes, 455 U.S. at 393. A court may excuse an untimely filing if it finds "(1) extraordinary circumstances, (2) beyond [Plaintiff's] control or external to [her] own conduct, (3) that prevented [her] from filing on time." See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (rehearing en banc). Construing Plaintiff's arguments liberally, Plaintiff may be arguing she is entitled to equitable tolling based on the EEOC's alleged "16 month" delay in considering her submission. Although Plaintiff does not explain her argument in any detail, she attaches a Wikipedia article noting the United States federal government was "shutdown" from December 22, 2018 through January 25, 2019." ECF No. 34-4 at 2. Plaintiff apparently suggests that shutdown caused the EEOC's delay in preparing her Charge. Such an argument, however, is undercut by a document provided by Plaintiff. Plaintiff provided an email she received from the EEOC investigator on March 1, 2019 in which the EEOC investigator indicated he was providing Charges for Plaintiff to sign. ECF No. 34-6. It was over nine months later, though, that Plaintiff signed her Charge and faxed it to the EEOC. The December 2018/January 2019 shutdown had ended by March 1, 2019. Plaintiff has proffered no reason for this inordinate delay.
While March 1, 2019 itself was beyond the 300-day window, the court's consideration of the EEOC's alleged "delay" in processing Plaintiff's Charge conceivably could have been different if Plaintiff had promptly signed and submitted her charges upon receiving them in March 2019.
Plaintiff did not file a Charge, or any document that could be construed as such, within 300 days of April 24, 2018, nor is the delayed December 2019 submission of her Charge to the EEOC excusable by any equitable doctrine. Accordingly, it is recommended that Plaintiff's Complaint against Mann & Hummell/Wix be dismissed for failure to exhaust administrative remedies. For the sake of completeness, the court also considers Defendant's argument that Plaintiff's Complaint was not timely filed.
D. Timeliness of Complaint
To have been timely brought, Plaintiff was to have filed her Complaint within 90 days "after the giving of [] notice" by the EEOC that it was dismissing her administrative claim. 42 U.S.C. § 2000e-5(f)(1). Such notice is accomplished by the issuance of a RTS letter, and the 90 days typically runs from the claimant's receipt of the RTS letter. See generally Dunbar v. Food Lion, 542 F. Supp. 2d 448, 450-51 (D.S.C. 2008) (noting 90-day period begins running with receipt of the notice/RTS letter and, when that period is in dispute or unknown, delivery is presumed three days after mailing).
Defendant argues Plaintiff's Complaint was not timely filed. Plaintiff indicates she received the EEOC's RTS Letter as to her claim against Mann & Hummell/Wix on February 16, 2020. Compl. 6. Plaintiff did not file her Complaint until July 8, 2020—some 143 days after February 16, 2020. Accordingly, Defendant argues that Plaintiff's Complaint should be dismissed as untimely.
Plaintiff does not directly respond to Defendant's argument regarding the timeliness of her Complaint. Construing her response liberally, Plaintiff's general reference to the pandemic that "came through the nation and shutdown all types of business[es] and government [and] that killed hundred[s of] thousand[s] of Americans[,]" Pl. Mem. 2, may be intended to excuse her delayed filing of her Complaint. The court also acknowledges that Plaintiff attached a portion of an article from "The State" newspaper noting that South Carolina's governor closed "nonessential businesses" as of April 1, 2020. ECF No. 34-4 at 3.
Plaintiff's generalized argument based on the pandemic is unavailing. The court's Standing Order issued March 16, 2020 extended certain deadlines by 21 days; however, the court made it clear that the Standing Order did not toll any applicable statutes of limitations. Additionally, the court's Standing Order No. 3:20-mc-00122, issued March 31, 2020, set out detailed instructions to pro se filers such as Plaintiff. That Order allowed filings at "drop boxes" and by email. In re: District Clerk's Office Operations in Response to COVID-19, No. 3:20-mc-00122 (Mar. 31, 2020). When Plaintiff did file her Complaint she utilized the drop-box system. Plaintiff has provided no evidence or argument unique to her own situation. She has not established that the 90-day statute of limitations should be equitably tolled for her.
In any event, Plaintiff did not file her Complaint within 21 days of the date by which it was due.
As the Fourth Circuit has noted, equitable tolling of a limitations period may be permitted, but only in limited circumstances. Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (describing the circumstances in which equitable tolling may apply as "quite narrow"). "[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Id. In order to invoke equitable tolling, a plaintiff must demonstrate both that extraordinary circumstances prevented her from timely bringing suit and that she was diligent in attempting to timely bring suit. United States v. Kwai Fun Wong, 575 U.S. 402, 408 (2015) (quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)). As such, equitable tolling is not appropriate where the claimant "failed to exercise due diligence in preserving his legal rights." Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 96 (1990).
Certainly, the court is aware the COVID-19 pandemic has impacted all of society. That, however, is insufficient to toll a statutory limitations period. Plaintiff has not set out any facts explaining how the COVID-19 pandemic kept her from filing her Complaint in this court until July 8, 2020. She received the RTS letter in mid-February 2020. While the filing procedures of this court were altered in mid-March 2020, litigants were always permitted to submit filings. Plaintiff is not entitled to equitable tolling. See Willard v. Indus. Air. Inc., No. 1:20-CV-00823, 2021 WL 309116, at *4-5 (M.D.N.C. Jan. 29, 2021) (collecting cases that "considered the issue [and] have not found that the COVID-19 pandemic justifies equitable tolling absent a corresponding showing that the pandemic prevented the plaintiff from timely filing suit."). The undersigned recommends dismissal of her Complaint on this ground, as well. III. Conclusion and recommendation
As noted in Willard,
Other courts that have considered the issue have not found that the COVID-19 pandemic justifies equitable tolling absent a corresponding showing that the pandemic prevented the plaintiff from timely filing suit. See, e.g., Stanley v. Saul, No. 20-CV-00499-SRB, 2020 WL 6140552, at *4 (W.D. Mo. Oct. 19, 2020) ("Plaintiff . . . does not specifically explain how COVID-19 shutdowns or related issues prevented her from [filing]."); Bailey v. Metro One Loss Prevention Servs. Grp., Inc., No. 3:20-CV-01513-X, 2021 WL 24543, at *2 (N.D. Tex. Jan. 4, 2021) (concluding plaintiff corporation did not act diligently where, despite New York's COVID-19 restrictions, plaintiff did not arrange to have at least one employee receive the company's mail in the event of a pending lawsuit); Sargent v. S. Cal. Edison 401(k) Sav. Plan, No. 20-CV-1296-MMA (RBB), 2020 WL 6060411, at *5-6 (S.D. Cal. Oct. 14, 2020) (finding plaintiff was not prevented from timely filing her action where, despite California's COVID-19 restrictions, the courthouse remained open for business and plaintiff could have represented herself pro se if she had difficulty obtaining counsel); McGraw v. Nutter, No. CV DKC 20-0265, 2020 WL 7425308, at *4 (D. Md. Dec. 18, 2020) (allowing equitable tolling where court received Title VII complaint one day after the expiration of the limitations period due to COVID-related postal delays).
For the reasons set forth above, it is recommended that Defendant's Motion to Dismiss, ECF No. 29, be granted and Plaintiff's Complaint be dismissed.
IT IS SO RECOMMENDED. February 9, 2021
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Willard, 2021 WL 309116, at *4.