Opinion
Case No. 5:01-CV-57.
October 18, 2001
MEMORANDUM OPINION ON DEFENDANT'S MOTION FOR DISMISSAL
This case presents a claim of religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Defendant Michigan Rubber Products, Inc., has timely moved to dismiss plaintiff Catherine Warren's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Defendant contends first, that plaintiff failed to file suit within 90 days of receiving her right to sue notice from the Equal Employment Opportunity Commission ("EEOC"), a prerequisite to suit under Title VII; and second, that plaintiff's claim is barred under the doctrine of res judicata. Plaintiff has responded to defendant's motion for dismissal, asking the Court to invoke equitable tolling and requesting leave to conduct further discovery and to supplement her response.
I
When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The Court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if, on the face of the complaint, there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See Rauch v. Day Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). If, as here, "matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b); Salehpour v. University of Tennessee, 159 F.3d 199, 204 (6th Cir. 1998).
Under Rule 56, the Court must look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. Fed.R.Civ.P. 56(c). See generally, Barnhart v. Pickrel, Schaeffer Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). That is, the Court must determine "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Once the moving party identifies elements of a claim or defense which it believes are not supported by evidence, the nonmovant must present affirmative evidence tending to show a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248. Production of a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 252. The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.
The substantive law identifies which facts are "material." Facts are "material" only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Anderson, 477 U.S. at 248. A complete failure of proof concerning an essential element necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322-23.
II
It is undisputed that an employment discrimination suit brought under Title VII must be filed within 90 days of the plaintiff's receipt of a right to sue notice from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) ; Forest v. United States Postal Serv., 97 F.3d 137, 140-41 (6th Cir. 1996). Violation of the Title VII 90-day filing mandate does not erect a comprehensive jurisdictional impediment to a civil action, however. Rather, the 90-day mandate is in the nature of a limitations barrier which is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000). The federal courts sparingly bestow equitable tolling; it is available only in compelling cases that justify a departure from the established procedures. See Graham-Humphreys, 209 F.3d at 560. Absent compelling equitable considerations, a court should not extend limitations by even a single day. See id. at 560.
Typically, equitable tolling applies only when a failure to meet a legally mandated deadline arose from circumstances that were beyond the litigant's control. See id. at 561; Johnson v. United States Postal Serv., 64 F.3d 233, 238 (6th Cir. 1995) (failure to satisfy a deadline caused by garden variety neglect cannot be excused by equitable tolling). The propriety of equitable tolling must necessarily be determined on a case-by-case basis. The Sixth Circuit has identified five factors to consider: "(1) lack of notice of the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) the plaintiff's reasonableness in remaining ignorant of the particular legal requirement." Id. (quoting Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).
Here there appear to be no compelling equitable considerations to support a tolling of the limitation period. In fact, plaintiff has not even alleged the existence of circumstances that would lead the Court to such a finding. Defendant has demonstrated that the EEOC issued plaintiff's right to sue notice on November 7, 2000. The notice is addressed to plaintiff personally and was presumably received by her in mid-November 2000. The notice clearly states that any lawsuit for discrimination under Title VII " must be filed WITHIN 90 DAYS from your receipt of this Notice." It was not until May 16, 2001 that this action was filed, long after expiration of the 90-day period, in February 2001.
In response to defendant's motion, plaintiff has made no factual showing or even an argument that she did not actually receive the right to sue notice, or that she was somehow misled into believing that she had done all that was required of her, or that she attempted to file suit within the 90-day period but did so defectively. To the contrary, the record affirmatively demonstrates that plaintiff had notice of her rights and simply failed to exercise diligence in pursuing them.
It appears that on October 24, 2000, during the course of state court litigation on a similar religious discrimination claim against defendant under state law, plaintiff had, through counsel, sought defendant's stipulation to amend her state court complaint so as to add a Title VII claim. It thus appears that plaintiff had both actual and constructive notice of her right to proceed under Title VII even before the right to sue letter issued. Yet, though defendant's counsel agreed in writing the next day to stipulate to the proposed amendment, there is no evidence that plaintiff or her attorney pursued the matter further until this action was commenced in May 2001.
According to the letter, authored by plaintiff's former counsel David A. Kotwicki, a copy was also forwarded to plaintiff.
Plaintiff's only response is in the form of a request for more time to investigate the circumstances surrounding her former counsel's failure to act. Yet, though defendant raised the 90-day limitation issue over two months ago and though plaintiff would ostensibly have ready access to relevant information, she has not even filed an affidavit — her own or her former counsel's — addressing the notice and diligence issues. Nor has she even identified potential fruits of further investigation that might justify equitable tolling. Plaintiff's response is utterly inadequate.
In response to a properly supported motion for summary judgment, plaintiff cannot merely rest on her pleadings, but must come forward with affirmative evidence tending to show a material fact issue. Admittedly, defendant made its motion under Rule 12(b)(6), not Rule 56. Attached to the motion, however, are several exhibits, inviting the Court to look beyond the pleadings. Further, the assertion of the 90-day limitation defense certainly gave plaintiff notice that her claim was subject to dismissal unless she adduced facts in support of equitable tolling. Moreover, the facts relevant to equitable tolling are not dependent on formal discovery from defendant, but are or should be within plaintiff's control.
Under these circumstances, the Court's conversion of defendant's motion for dismissal to a motion for summary judgment cannot be said to subject plaintiff to unfair surprise, for she has had ample opportunity to respond with evidence. See Salehpour, 159 F.3d at 204. In lieu of such evidence, plaintiff merely makes nebulous assertions about possible fruits of future investigation. This is clearly insufficient to forestall summary judgment. Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 138 (6th Cir. 1993). Moreover, to the extent that plaintiff's request for more time hints at the possibility that she was the victim of attorney neglect or faulty advice of counsel, it is unavailing. Evidence to this effect would fail to create a genuine issue of material fact because it is insufficient to excuse noncompliance with the 90-day filing requirement. See Layton v. General Motors Corp., 172 F.3d 48 (Table), 1998 WL 939886 (6th Cir. (Ohio)) (garden variety claims of excusable neglect by attorneys are not sufficient to invoke equitable tolling); Woods v. Denver Dep't of Revenue, Treasury Div., 818 F. Supp. 316, 318 (D.Colo. 1993) (reliance on bad advice of counsel is not grounds to invoke equitable tolling); Fellows v. Earth Construction, Inc., 805 F. Supp. 223, 226 (D.Vt. 1992) (simple attorney neglect does not excuse lack of diligence).
Accordingly, the Court concludes that plaintiff has failed to come forward with any evidence to create a genuine issue of material fact in support of equitable tolling. Absent such evidence, which is essential to maintenance of plaintiff's claim, all other fact issues are rendered immaterial, as the 90-day limitation requirement operates to bar plaintiff's Title VII claim. It follows that defendant is entitled to judgment as a matter of law. A judgment order consistent with this opinion shall issue forthwith.
JUDGMENT ORDER
In accordance with the Court's memorandum opinion of even date,
IT IS HEREBY ORDERED that defendant's motion for dismissal under Fed.R.Civ.P. 12(b)(6), treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b) and 56, is GRANTED; and
IT IS FURTHER ORDERED that SUMMARY JUDGMENT is hereby AWARDED to defendant Michigan Rubber Products, Inc. on plaintiff's Title VII claim against it.