Opinion
Case No. 02-2050-JAR
December 19, 2002.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Next Day Motor Freight, Inc. filed a Motion for Summary Judgment (Doc.11) on the basis that Plaintiff Johnny E. Jones's Title VII claim is barred because he failed to file the claim within 90 days of receiving a Notice of Right to Sue letter from the EEOC; and on the basis that Plaintiff's § 1983 claim fails to show that Defendant was at any time acting under the color of law. Because the Court finds that Jones did not file this action within 90 days after receiving the Notice of Right to Sue letter, and there is no basis to equitably toll the 90-day limitations period, the Court grants Defendant's motion for summary judgment on the Title VII claim. Further, because there is no claim or showing that Defendant acted under color of law, the Court grants Defendant's motion for summary judgment on the § 1983 claim, for failure to state a claim.
UNCONTROVERTED FACTS
In the Pretrial Order, the parties stipulated to these salient facts. On May 8, 2001, Plaintiff filed an application for employment as a truck driver with the defendant, Next Day Motor Freight, Inc. Defendant's policies and procedures require that no applicant will be hired until the following steps are completed: (1) the applicant fills out an American Trucking Association application; (2) the applicant participates in a verbal interview; (3) Defendant checks the applicant's motor vehicle license record; (4) the applicant has successfully completed a physical exam, and has successfully passed a drug screening test and examination and driving test, all required by the U.S. Department of Transportation. Other than completing an application and participating in a verbal interview, Plaintiff and Defendant did not complete the other required steps.
On October 3, 2001, Plaintiff filed a charge of discrimination with the EEOC. On October 19, 2001, Plaintiff received a right-to-sue letter from the EEOC, which gave him notice that he had 90 days within which to file a lawsuit. On October 27, 2001, Plaintiff wrote a letter to the EEOC's district director, requesting that the EEOC interview Ed Miller, the employee of Defendant who had allegedly hired Plaintiff. On or about November 5, 2001, the EEOC district director sent a letter to Plaintiff declining his request to interview Ed Miller and advising Plaintiff that if he wished to file a lawsuit in federal court, he could do so within 90 days of Plaintiff's receipt of the October 19, 2001 right-to-sue letter.
Plaintiff filed this action on February 5, 2002, which was 109 days after receiving the October 19, 2001 right-to-sue letter, but within 90 days of Plaintiff's receipt of the November 5, 2001 letter. Plaintiff brings this suit under Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1983, claiming Defendant's failure to employ him was based on race discrimination.
DISCUSSION
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." In determining whether any genuine issues of material fact exist, the Court must construe the record liberally in favor of the party opposing the summary judgment. If an inference can be deduced from the facts that would allow the nonmovant to prevail, summary judgment is inappropriate.
Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993).
Anderson, 477 U.S. at 248.
Id. at 248.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991).
Applied Genetics Intern., Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex, 477 U.S. at 324).
McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988) (citation omitted).
United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) (citation omitted).
Failure to Timely File Title VII Claim
A plaintiff must exhaust his or her administrative remedies before filing a Title VII case. This is accomplished by timely filing a charge of discrimination with the EEOC. Because Kansas is a deferral state, the person must file his or her claim with the EEOC within 300 days of the alleged unlawful act. Plaintiff timely filed a charge with the EEOC. However, Title VII further requires that the plaintiff file a lawsuit within 90 days after receiving a right-to-sue-notice issued by the EEOC. This 90-day filing requirement is a condition precedent, rather than a jurisdictional prerequisite to suit. It operates as a statute of limitations. Plaintiff filed this lawsuit 109 days after receiving the October 19, 2001 right-to-sue notice from the EEOC.
Jones v. Denver Post Corp., 203 F.3d 748, 755 (10th Cir. 2000) (citation omitted).
42 U.S.C. § 2000e-5(e); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir. 1999).
42 U.S.C. § 20003-5(f)(1).
Jarrett v. US Sprint Communications Co., 22 F.3d 256, 259-260 (10th Cir. 1994).
Id.
Plaintiff argues that the statute of limitations should be tolled because he asked the EEOC to reconsider its decision and to interview one of Defendant's employees. But, this would not justify a tolling of the 90 day limitations period, because the 90 days begins to run when the plaintiff is notified of the final adverse employment action, even if there is a process for reconsideration. Generally, courts have allowed relief in the form of equitable tolling of the limitations period only when there were intervening circumstances beyond the control of the plaintiff. In Irwin v. Department of Veterans Affairs, the Supreme Court held that "garden variety" neglect by the plaintiff does not support equitable tolling. Rather, equitable tolling has been recognized where the EEOC gave an inadequate notice and the defendant's conduct lulled the plaintiff into inaction. Nothing in the record indicates that Defendant lulled Plaintiff into inaction, or that someone in a position of authority informed Plaintiff that the EEOC decision was not yet final. And, Plaintiff's pro se status does not excuse him from complying with the 90-day limitations period.
Delaware State College v. Ricks, 449 U.S. 250, 257-258 (1980).
498 U.S. 89, 96 (1990).
Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)[per curiam][citations omitted].
Id.
Moreover, nothing in the record suggests that Plaintiff received inadequate notice. The October 19, 2001 right-to-sue letter notified him that if he wanted to file a lawsuit, he must file it within 90 days of receiving that letter. In responding to Plaintiff's request that the EEOC interview Defendant's employee, the EEOC again gave Plaintiff notice that if he wanted to file a lawsuit, he must do so within 90 days of receiving the October 19 letter. Nothing in the EEOC right-to-sue letter indicated that Plaintiff had additional time to file the lawsuit merely because he asked the EEOC to interview someone. In fact, the Plaintiff received two notices from the EEOC, both consistently telling him his 90 day period commenced when he received the October 19 letter. In his deposition, Plaintiff acknowledged that he had ninety days from October 19 to file suit.
Failure to State a Claim under 42 U.S.C. § 1983
This action against a private entity for employment discrimination is not actionable under 42 U.S.C. § 1983, which provides that any person who "under color of . . . [law] . . . subjects, or causes to be subjected, . . . any [person] . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." To state a claim for relief in a section 1983 action, a plaintiff must establish that he was (1) deprived of a right secured by the Constitution or laws of the United States; and (2) that the alleged deprivation was committed under color of state law. Section 1983 creates no substantive civil rights, but provides a means to protect the civil rights of persons wronged by the misuse of governmental power. Plaintiff does not allege misuse of governmental power, nor does the record show that Defendant was acting under color of state law in failing to hire Plaintiff. Defendant is not a governmental entity. Nor is there any showing that this private entity defendant's conduct allegedly causing the deprivation of a federal right was fairly attributable to the State. Thus, there is no showing that this private entity acted under color of state law.
See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Keeling v. Schaefer, 181 F. Supp.2d 1206,1216 (D.Kan. 2001)[citing Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995)].
See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000).
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice.
SO ORDERED.