Bland v. Fairfax Cnty., 1:10cv1030 (JCC/JFA).

• Decision Date: 29 June 2011
• Docket Number: No. 1:10cv1030 (JCC/JFA).,1:10cv1030 (JCC/JFA).
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mary Getts BLAND, Plaintiff, v. FAIRFAX COUNTY, VIRGINIA, Defendant.

799 F.Supp.2d 609

Mary Getts BLAND, Plaintiff,

v.FAIRFAX COUNTY, VIRGINIA, Defendant.

No. 1:10cv1030 (JCC/JFA).

United States District Court, E.D. Virginia,Alexandria Division.

June 29, 2011.

Ellen Kyriacou Renaud, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.

Ann Gouldin Killalea, Kimberly Pace Baucom, Office of the County Attorney, Fairfax, VA, for Defendant.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter is before the Court on Defendant Fairfax County, Virginia's (the “Defendant” or the “County”), mid-trial motion to dismiss Plaintiff's case as time barred (the “Motion”). For the following reasons, the Court will deny Defendant's Motion.

I. Background

A. Factual Background

This case arises out of alleged incidents of sexual harassment by a male firefighter in the Fairfax County Fire and Rescue Department against a female firefighter. Plaintiff Mary Getts Bland (“Plaintiff” or “Bland”) alleges that by allowing Lieutenant Timothy Young (“Young”) to harass her, the County violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to e17 (“Title VII”).

B. Procedural Background

Plaintiff filed suit against the County on September 15, 2010. [Dkt. 1.] Jury trial began on May 23, 2011. Defendant made its Motion orally on May 24, 2011, after the close of Plaintiff's case.¹ Defendant then filed a corresponding written motion. [Dkt. 70.] With leave of the Court, both Plaintiff, [Dkt. 72], and Defendant, [Dkt. 70], filed written briefs and, after oral argument on the Motion, supplemental briefing, [Dkts. 78, 80, 85].

Defendant's Motion is before the Court.

II. Standard of Review

In its motion under Federal Rule of Civil Procedure Rule 50(a) for judgment as a matter of law ², the County argued that Plaintiff's case should be dismissed as untimely as a matter of law because Plaintiff is precluded from using any alleged sexual harassment incidents that occurred more than 300 days before the filing of Plaintiff's charge to the Equal Employment Opportunity Commission (the “EEOC”) and the Virginia Council on Human Rights (the “EEOC charge”). The County argued that because filing of a timely EEOC charge is a jurisdictional prerequisite, the Court cannot hear Plaintiff's case.

As a general matter, a plaintiff's failure to exhaust his or her administrative remedies, such as filing a timely charge of employment discrimination with the EEOC, deprives a Court of subject matter jurisdiction to address his or her claim. See, e.g., Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir.2009) (“[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.”) As this Court recently stated in Edwards v. Murphy–Brown, L.L.C., 760 F.Supp.2d 607 (E.D.Va.2011), “ ‘[f]ailure to exhaust’ arguments in Title VII cases are to be distinguished from the situation where a specific charge of discrimination is filed with the EEOC, but it is allegedly untimely because the event occurred more than 300 days before the date the charge was filed.” Id. Significantly, “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 v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

Under Title VII, an employee must initially file a charge with the EEOC before bringing a civil suit in court. Edwards, 760 F.Supp.2d at 617–19. Typically, a charge must be “filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1). The 180 day period, however, is extended to 300 days “ ‘when state law proscribes the alleged employment practice and the charge has initially been filed with a state deferral agency.’ ” Id. (quoting Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir.1998)).

Because Virginia is a “deferral state.” Id. at 619 (citing Tinsley, 155 F.3d at 440), where, as here, an employee challenges an employment practice of in Virginia, he or she has 300 days from the last date of alleged discrimination to file a charge with the EEOC. Id. (citing Edelman v. Lynchburg Coll., 300 F.3d 400, 404 (4th Cir.2002)). If the 300–day “statutory time period elapses between the allegedly discriminatory incident ³ and the filing of the EEOC charge, the litigant is forever barred from Title VII relief.” Id. (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (“A claim is time barred if it is not filed within these time limits.”)).

III. Analysis

Plaintiff filed her EEOC charge on December 18, 2008. [ See Dkt. 59–1.] The County argues that Plaintiff has not alleged any events occurring after November 25, 2007, the date of the pike pole/fire hose incident (further described in this Court's May 3, 2011 Memorandum Opinion [Dkt. 34] ). Thus, according to the County, Plaintiff's was required to file her EEOC charge no later than September 20, 2008. (Supplemental Memorandum (“Supp.”) [Dkt. 78] at 2.) Because Plaintiff filed her charge in December 2008, her EEOC charge was untimely filed and the case must be dismissed.

A. Waiver

Regardless of when Plaintiff filed her EEOC charge and when the last alleged incident occurred, Defendant first raised this time-bar defense in its Federal Rule of Civil Procedure 50(a) motion at trial, after Plaintiff had presented her case to the jury. An affirmative defense raised at this late stage in a case raises the possibility that the County waived its time-bar defense. Defendant originally argued that, because the 300–day deadline is a jurisdictional bar, the time-bar defense cannot be waived. Defendant later walked-back this jurisdictional argument, but reiterated in Open Court that the requirement is “effectively jurisdictional.”

The Supreme Court addressed this premise directly in Zipes v. Trans World Airlines, Inc., holding that “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 limitation, is subject to waiver, estoppel, and equitable tolling.” 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (emphasis added). So not only is this time-bar issue not a jurisdictional one, it can be waived.

Federal Rule of Civil Procedure 8(c)(1) requires that, “[i]n responding to a pleading, a party must affirmatively state any ... affirmative defense,” including “statute of limitations.” (emphasis added). The Fourth Circuit has stated that “[i]t is well settled that the defense of limitations is waived unless asserted promptly by way of answer or motion.” Peterson v. Air Line Pilots Ass'n, Int'l, 759 F.2d 1161, 1164 (4th Cir.1985). Waiver is not automatic, but where there is “a showing of prejudice or unfair surprise,” a defense may be waived. Id.

That is precisely the situation here. Nowhere in this case's then–69 docket entries spanning eight months was a word spoken on this issue until after the Plaintiff presented her case to the jury and rested. Defendant failed to raise anything resembling this issue in its Answer. Defendant failed to raise it in its lengthy summary judgment motion or in its lengthy reply and supplemental briefs. Defendant failed to raise it in its three motions in limine, including its motion in limine raising the issue of failure of exhaustion of EEOC administrative remedies as bar to the admissibility of certain evidence. Indeed, Defendant even failed to raise the issue despite this Court recently dismissing a case involving the County and the same plaintiff's counsel for failure to exhaust administrative remedies. See Sydnor v. Fairfax Cnty., No. 1:10cv934, 2011 WL 1086388 (E.D.Va. Mar. 23, 2011).

Instead, Defendant first raised this issue at trial, after the conclusion of Plaintiff's case. If that is not unfair surprise, nothing is. Indeed, when the Court asked the County in Open Court after it raised this issue why it had not waived this defense, the County had no response.

Responding to the Court's waiver question in its supplemental reply memorandum, the County cites Peterson v. Air Line Pilots Association, International, 759 F.2d 1161, 1164 (4th Cir.1985), for the unremarkable proposition that “in cases where, from the very outset, no cloud obscured the right of the defendant to plead limitations, courts have permitted defendants to raise limitations even though not asserted as a defense in the original answer.” That statement is all well and good, but it does no work for the County, particularly since, as stated above, Peterson reiterates that “[i]t is well settled that the defense of limitations is waived unless asserted promptly by way of answer or motion,” and that waiver requires a “showing of prejudice or unfair surprise.” Id. As stated above, the County's Motion was not promptly raised by way of answer or motion, and if, in a heavily litigated case such as this one, waiting to raise a time-bar affirmative defense until after the conclusion of a plaintiff's case is not unfair surprise, then nothing is.

The County also cites to Pierce v. County of Oakland, 652 F.2d 671 (6th Cir.1981), for support. Setting aside that Pierce is not controlling in this Circuit, that case is inapposite. In Pierce, unlike here, “it was apparent from the face of the complaint that the three-year statute of limitations had run.” 652 F.2d at 671. Also, again unlike here, the defendants in Pierce “apparently mentioned at one [pre-trial] conference that they intended to raise a jurisdictional defense.” Id. More importantly, the Pierce defendants moved on the day of trial for dismissal based on statute of limitations, id., not, as here, after the plaintiff had put on her case to a jury. Had the County raised the limitations issue in one of...