Opinion
C. A. 1:22-361-SAL-SVH
07-05-2022
Donald R. Walker-Bey, Jr., Plaintiff, v. Cassie Gabrowski, BCC Machine Lead; Megan Poole, Human Resources; Krista Craig, Asset Leader B15-B16; Kimberly Clark Corporation; and Ted Busbee, Crew Leader, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Donald R. Walker-Bey, Jr. (“Plaintiff”), sues his employer and select employees, alleging that due to his race, color, religion, and national origin, he has been discriminated and retaliated against. More specifically, Plaintiff, proceeding pro se, asserts multiple causes of actions based on violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) against Kimberly Clark Corporation (“Defendant”), as well as certain of Defendant's employees.
Plaintiff, who originally filed this case as Donald R. Walker, has informed the court he has legally changed his name. [See ECF No. 11]. Accordingly, the court refers to Plaintiff using his legal name and directs the clerk of court to change the caption of this case.
This matter comes before the court on Defendant's motion to dismiss, brought in part pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 13]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 18]. The motion having been fully briefed [ECF Nos. 20, 25], it is ripe for disposition.
Although Plaintiff filed a response to Defendant's motion to dismiss, it fails to substantively address any of Defendant's arguments for dismissal. [See ECF No. 20].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion to dismiss.
I. Factual and Procedural Background
Plaintiff filed a complaint against Defendant and others in this court on February 7, 2022, and then filed an amended complaint on February 25, 2022. [ECF Nos. 1, 5]. Plaintiff filed multiple attachments with the amended complaint, including a copy of a letter he received from the Equal Employment Opportunity Commission (“EEOC”) dated November 19, 2021, and a copy of the EEOC's dismissal and notice of rights dated November 8, 2021. [ECF No. 5-1 at 1-2].
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
Defendant argues that the complaint fails as a matter of law because Plaintiff filed to timely file his claims against Defendant by not initiating his lawsuit within 90 days of receiving his right to sue notice from the EEOC. By statute, a civil action under Title VII must be filed within 90 days of the date of receipt by a claimant of a duly-issued notice of right to sue from the EEOC. 42 U.S.C. § 2000e-5(f)(1) (“within ninety days after the giving of such notice a civil action may be brought”).
Plaintiff has submitted the EEOC's dismissal of his inquiry and notice of rights, including the notice of his right to sue, dated November 8, 2021, that states that “[y]our lawsuit must be filed within 90 days of your receipt of this notice.” [ECF No. 5 at 2]. Plaintiff has also submitted a letter he received from the EEOC dated November 19, 2021, which states that on November 8, 2021:
EEOC sent you an email notification that EEOC had made a decision regarding the above-referenced charge and advised you to download a dopy of the decision document from the Portal. Our records indicate you have not downloaded the Notice from the Portal. For your convenience, a copy of the Notice is enclosed with this letter. Please note that if the Charging Party wants to pursue this matter further in court, Charging Party must file a lawsuit within 90 days of the date they receive the Notice.Id. at 1. Plaintiff filed his original complaint on February 7, 2022 [see ECF No. 1], 91 days after the notice of his right to sue was issued.
A plaintiff must file a complaint within ninety days “after the giving of [ ] notice” by the EEOC. 42 U.S.C. § 2000e-5(f)(1). Notice is accomplished when plaintiff receives the right to sue letter from the EEOC. 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 right to sue letter and, when that period is in dispute or unknown, delivery is presumed three days after mailing).
However, Dunbar concerned notice received via the mail. Regarding notice received electronically, courts in the circuit have held as follows:
With respect to emails, courts within the Fourth Circuit have found that delivery of a notice of right to sue via email also triggers the 90-day filing period. Stewart v. Johnson, 125 F.Supp.3d 554, 559-60 (M.D.N.C 2015); Ward v. Comm'r of Soc. Sec., No. WDQ-11-1004, 2012 WL 122412, at *2, 4 (D. Md. Jan. 12, 2012). This holds true even if the initial email is followed by a paper copy of the notice. Stewart, 125 F.Supp.3d. at 560 (stating that the fact that counsel received a subsequent copy through the mail did not change that the 90-day window started when plaintiff and his counsel were notified of the Final Agency Decision through email). Accepting Wolfe's statement that she did not see the August 6 email until after the letter arrived on August 17, the situation parallels that of Harlan in which the plaintiff's attorney received delivery of a fax, but did not see the fax until days later. See Harlan [v. Time Warner Cable, Inc., No. CV 07-1267, 2008 WL 11515580, at *1-2 (W.D. La. June 17, 2008)]. The fact that Wolfe neglected to read her emails does not change the fact that she received delivery of her notice of right to sue via email on August 6, 2020, and that this receipt triggered the beginning of the 90-day filing period. Wolfe's filing was thus untimely unless equitable tolling applies.Wolfe v. Wps Health Sols., Inc., C/A No. 4:20-175, 2021 WL 1992027, at *3 (E.D. Va. Apr. 7, 2021), report and recommendation adopted, C/A No. 4:20-175, 2021 WL 1991259 (E.D. Va. May 18, 2021).
The above case law is consistent with the Fourth Circuit's approach when a plaintiff received notice from the United States Postal service that a right to sue notice from the EEOC was available for collection. Watts-Means v. Prince George's Fam. Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993). In Watts-Means, the Fourth Circuit held the 90-day filing period begins when the plaintiff receives notice that the right to sue notice is available for collection, not when the plaintiff collects the right to sue notice. To hold otherwise would allow some plaintiffs “open-ended time extension, subject to manipulation at will.” See id. (citing Harvey v. City of New Bern Police Dept., 813 F.2d 652, 654 (4th Cir. 1993)).
The Fourth Circuit also has held that a filing one day outside the 90-day statute of limitations is time barred and may be grounds for dismissal, absent application of equitable tolling. Harvey, 813 F.2d at 653; Dixon v. Digital Equip. Corp., C/A No. 92-1483, 1992 WL 245867 (4th Cir. 1992)) (dismissing suit and rejecting equitable tolling where pro se plaintiff filed suit one day late).
Generally, to warrant equitable tolling of a statutory deadline, a plaintiff must show: “(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted); see also Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (indicating that equitable tolling has not been allowed “where the claimant failed to exercise due diligence” and it does not extend to “garden variety claim[s] of excusable neglect”). Equitable tolling is available only 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.” Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (citations omitted).
Here, because Plaintiff filed his complaint outside of the 90-day window, and because Plaintiff offers no argument that the period should be tolled for any equitable reason, the undersigned is constrained to recommend the district judge grant the motion to dismiss, dismissing Defendant with prejudice.
Based on the above recommendation, it is unnecessary to address Defendant's additional argument that Plaintiff's complaint is subject to dismissal for failure to effectuate proper service.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends granting Defendant's motion to dismiss, dismissing Defendant with prejudice. [ECF No. 13].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).