Bailey v. Ga. Dep't of Labor

• Decision Date: 24 April 2015
• Docket Number: CIVIL ACTION NO. 1:15-CV-0106-TWT-LTW
• Court: U.S. District Court — Northern District of Georgia
• Parties: APRIL BAILEY Plaintiff, v. GEORGIA DEPARTMENT OF LABOR, Defendant.

APRIL BAILEY Plaintiff, v. GEORGIA DEPARTMENT OF LABOR, Defendant.

CIVIL ACTION NO. 1:15-CV-0106-TWT-LTW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

April 24, 2015

MAGISTRATE JUDGE'S ORDER AND REPORT AND RECOMMENDATION

Plaintiff, acting pro se, seeks leave to file this civil action in forma pauperis, without prepayment of fees and costs or security therefor, pursuant to 28 U.S.C. § 1915(a)(1). (Docket Entry [1]). The affidavit of poverty indicates that Plaintiff is unable to pay the filing fee or incur the costs of these proceedings. Thus, the requirements of 28 U.S.C. § 1915(a)(1) have been satisfied, and Plaintiff's request to proceed in forma pauperis IS HEREBY GRANTED. Therefore, this action shall proceed as any other civil action, and Plaintiff shall be allowed to proceed without prepayment of a filing fee.

Because Plaintiff is proceeding without paying filing fees, however, the Court shall consider the frivolity of her Complaint pursuant to 25 U.S.C. § 1915(e)(2). Section 1915(e)(2) provides that a federal court is required to dismiss an in forma pauperis complaint at any time if the court determines that the allegation of poverty is untrue, or that the action (1) is frivolous or malicious, (2) fails to state a claim on which relief maybe granted, or (3) seeks monetary relief against a defendant who is immune from such relief. A complaint is required to contain "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and to state a claim to relief that is plausible, a plaintiff must plead factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless." Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993), cert. denied, 510 U.S. 893 (1993); accord, Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (stating that a claim is frivolous "where it lacks an arguable basis either in law or in fact").

In this case, Plaintiff asserts causes of action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, et seq., and 42 U.S.C. § 1981 ("Section 1981").¹ In her Complaint, Plaintiff, an African-American, asserts claims against Defendant based upon (1) alleged racial discrimination arising from (a) a racially hostile work environment resulting from a series of incidents occurring prior to December 2010 (Compl, ¶¶ 15-33); (b) the failure to promote her in October 2010, when a less qualified Caucasian applicant was promoted, and the failure to transfer her between August 2010and October 2010 (Compl., ¶¶ 34-39); (c) providing her inferior training and subjecting her to harsher discipline than similarly situated Caucasian co-workers between April and August 2010 (Compl., ¶¶ 40-49); and (d) terminating her on January 18, 2011, without affording her the same opportunities to address work issues that were afforded similarly situated Caucasian co-workers (Compl., ¶¶ 60-71); and (2) alleged retaliation for complaining about the instances described above (Compl., ¶¶ 50-59).²

Plaintiff's Title VII claims fail to state a claim for relief because she has made no allegations suggesting that she exhausted her administrative remedies with regard to any claim under that statute. Pursuant to Title VII, a plaintiff must exhaust her administrative remedies before filing a private civil action. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (internal citations omitted). These include certain statutory prerequisites such as timely filing an charge of discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC") "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir. 2001), reh'g denied, 273 F.3d 1117 (11th Cir. 2001). "[I]f a plaintiff fails to file an EEOC charge before the 180-day limitations period expires, the plaintiff's subsequent lawsuit is barred and must bedismissed for failure to exhaust administrative remedies." Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir. 2000) (holding that because the employee waited more than 180 days after the decision to transfer her, the employee's sex and race discrimination claims in connection with her transfer were untimely); Thomas v. Ala. Council on Human Relations, Inc., 248 F. Supp. 2d 1105, 1114-16 (M.D. Ala. 2003) (citing Brewer v. Ala., 111 F. Supp. 2d 1197, 1204 (M.D. Ala. 2000)). Here, Plaintiff failed to allege or suggest that she exhausted her administrative remedies with regard to her claims under Title VII.

Moreover, to the extent that Plaintiff seeks to rely upon the EEOC Charge and the Notice of Right-to-Sue letter filed in a prior lawsuit related to her employment with Defendant (see Bailey v. Ga. Dept. of Labor, 1:12-CV-2880-RLV, Docket Entry [5-1], pp. 7-8), Plaintiff's claims are still subject to dismissal.³ Title VII requires that a plaintiff file her complaint within 90 days of her receipt of a Notice of Right-to-Sue letter from the EEOC, and Plaintiff has failed to do so. 42 U.S.C. § 2000e-5(f)(1); see also Stallworth v. Wells Fargo Armored Servs. Corp., 936 F.2d 522, 524 (11th Cir. 1991). The Eleventh Circuit has explained that even if a prior lawsuit is initiated within Title VII's 90-day period and subsequently dismissed, the period is not preserved forsubsequent lawsuits. Miller v. Ga., 223 F. App'x 842, 845 (11th Cir. 2007); see also Weldon v. Elec. Data Sys. Corp., 138 F. App'x 136, 138 (11th Cir. 2005) ("dismissal of a complaint, without prejudice, does not allow a later complaint to be filed outside the statute of limitations") (citing Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004)). Plaintiff has set forth no circumstances justifying the extraordinary remedy of equitable tolling of the period. Id. Therefore, Plaintiff's claims would still be subject to dismissal because she failed to meet Title VII's timely filing requirements. Accordingly the Title VII claims asserted by Plaintiff should be DISMISSED.

With regard to Plaintiff's claims under Section 1981, some of Plaintiff's claims are barred by the applicable statute of limitations. Section 1981 does not contain an express statute of limitations. See 42 U.S.C. § 1981. Before 1990, federal courts applied the most analogous state statute of limitations. Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987) (partially superseded by enactment of 42 U.S.C. § 1658); see also Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1219 (11th Cir. 2001) (applying two-year statute of limitations to a Section 1981 claim). Under 28 U.S.C. § 1658, however, a four-year statute of limitations is provided for claims arising under an act of Congress enacted after December 1, 1990, which does not itself include a statute of limitations. 28 U.S.C. § 1658; see also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004). For causes of action existing before the 1990 enactment of Section 1658, the practice of borrowing the state statute of limitations still applies. See 28 U.S.C. § 1658; Jones, 541 U.S. at 371. Section 1981 was amended by the Civil RightsAct of 1991. If a plaintiff's claim against a defendant was made possible by the 1991 amendments, the cause of action is governed by Section 1658's four-year statute of limitations. Jones, 541 U.S. at 382, see also Edwards v. Nat'l Vision Inc., 568 F. App'x 854, 860 (11th Cir. 2014). If it was not, the cause of action is governed by a borrowed Georgia two-year statute of limitations. Bryant v. Jones, 696 F. Supp. 2d 1313, 1322-22 (N.D. Ga. 2010).

In this case, it cannot be concluded on the basis of the Complaint that Plaintiff's claims were available prior to the Civil Rights Act of 1991; therefore a four-year limitations applies for the purposes of the present analysis. Jones, 541 U.S. at 373 (hostile work environment, wrongful discharge, and refusal to transfer were not available under pre-1991 version of Section 1981); see also Nunez v. First Union Nat'l Bank of Fla., 996 F.2d 287, 289 (11th Cir. 1993) (denying summary judgment where dispute of material fact existed whether promotion claim was available prior to 1991 amendment).⁴

Plaintiff filed this action on January 13, 2015. (Docket Entry [1-1]). Plaintiff has alleged no extraordinary circumstances warranting tolling of the statute of limitations. See e.g., Howard v. Intown Suites Mgmt., Inc., No. 1:04-CV-759-TWT, 2006 WL 739168, at *2 (N.D. Ga. Mar. 17, 2006) (in Section 1981 and Title VII discriminationcases, holding that to allow tolling, "courts usually require some affirmative misconduct, such as deliberate concealment" ) (quoting Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005)). Therefore, unless the continuing violation doctrine applies, Plaintiff's claims prior to January 31, 2011, are time-barred by the four-year limitations period.

The continuing violation doctrine preserves otherwise time-barred acts that a Plaintiff was unaware of, if those time-barred acts have a substantial nexus to timely alleged acts such that, combined, they all "may be viewed as constituting a single violation, part of which falls within the limitations period." Roberts v. Gadsden Mem'l Hosp., 835 F.2d 793, 800-01 (11th Cir. 1988); Butler v. Matsushita Commc'n Indus. Corp., 203 F.R.D. 575, 583 (N.D. Ga. 2001) (citing Robinson v. Caulkins Indiantown Citrus Co., 701 F.Supp. 208 (S.D. Fla. 1988)). As the Bulter Court explained:

The continuing violation doctrine rests on the notion that "the statute of limitations

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