Brinkman v. Nasseff Mech. Contractors Inc., Civ. No. 16-3499 (RHK/HB).

• Decision Date: 02 May 2017
• Docket Number: Civ. No. 16-3499 (RHK/HB).
• Citation: 251 F.Supp.3d 1266
• Parties: Kimberly BRINKMAN, Plaintiff, v. NASSEFF MECHANICAL CONTRACTORS INC., et al., Defendants.
• Court: U.S. District Court — District of Minnesota

251 F.Supp.3d 1266

Kimberly BRINKMAN, Plaintiff,

v.NASSEFF MECHANICAL CONTRACTORS INC., et al., Defendants.

Civ. No. 16-3499 (RHK/HB).

United States District Court, D. Minnesota.

Signed May 2, 2017

Lisa C. Stratton, Jill R. Gaulding, Christy L. Hall, Gender Justice, St. Paul, Minnesota, Jean M. Boler, Schaefer Halleen, LLC, Minneapolis, Minnesota, for Plaintiff.

Britton D. Weimer, Weimer & Weeding PLLC, Bloomington, Minnesota, for Defendant Nasseff Mechanical Contractors Inc.

Brendan D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota, for Defendant Local Union # 417.

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, United States District Judge

INTRODUCTION

Plaintiff Kimberly Brinkman has worked as a sprinkler fitter in the construction industry for nearly twenty years. In this action, she alleges that her union, Defendant Local Union # 417 (the "Union"), and a construction company for which she performed union work, Defendant Nasseff Mechanical Contractors Inc. ("Nasseff"),¹ discriminated against her on account of her gender and retaliated against her when she complained, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. , and the Minnesota Human Rights Act ("MHRA), Minn. Stat. § 363A.01 et seq. Presently before the Court are Defendants' Motions to Dismiss. For the reasons that follow, the Motions will be granted in part, the Title VII claims dismissed with prejudice, and the MHRA claims dismissed without prejudice.

BACKGROUND

The facts relevant to deciding the instant Motions are as follows. Brinkman has been a member of the Union since 1999 or 2000. (Am. Compl. ¶ 33.) Pursuant to a collective-bargaining agreement, the Union supplies labor to more than twenty fire-protection companies in the metropolitan Minneapolis area for commercial sprinkler work. (Id.¶ 23.) Brinkman is one of only two female "journeyman" members of the Union. (Id.¶ 22.)

According to the Amended Complaint, Brinkman began experiencing harassment by male coworkers from nearly the beginning of her work in the sprinkler-fitting industry. (Id.¶ 34.) She alleges that she has suffered various forms of discriminatory conduct, including not being permitted to work on jobs from start to finish, experiencing significant periods during which she was offered no assignments, and other mistreatment she attributes to her gender. (See generally id.¶¶ 32–61.) With respect to Nasseff, she alleges that she was initially passed over for work on a Nasseff project in 2013, but after raising the issue, the company agreed to hire her. Yet, she alleges the company did not support her like her male co-workers and, eventually, laid her off while hiring male replacements. (See id.¶¶ 62–84.) Brinkman sought to challenge the layoff through the Union, but it allegedly refused to bring a grievance on her behalf. (Id.¶¶ 85–88.)

On January 1, 2014, Brinkman filed two charges of discrimination with the Minnesota Department of Human Rights ("DHR") against Nasseff and the Union, respectively. (Id.¶¶ 12–13.) The charges were cross-filed with the Equal Employment Opportunity Commission ("EEOC"). (Id.¶ 14.) In September 2014, the DHR notified Brinkman that her charges were being referred to the EEOC for further processing. Then, on July 18, 2016, Brinkman received right-to-sue letters from the EEOC with respect to the charges. (Id.¶¶ 15–16.) Consistent with Title VII, see 42 U.S.C. § 2000e–5(f)(1), the letters made clear that any lawsuit based on the allegations in the charges had to be filed within 90 days of receipt. (See Third Cummins Aff. Ex. 1.)²

Ninety days from July 18, 2016, was Sunday, October 16, 2016. On that day, one of Brinkman's attorneys, Lisa Stratton, Esq., attempted to commence this action by filing the Complaint and related documents via the Court's Electronic Case Filing (ECF) system. (Second Stratton Decl. ¶ 12.) At the time, the Court had recently transitioned from paper filing to electronic filing for commencing new cases; Stratton, who had not been actively litigating cases for several years and had not previously commenced an action through ECF, attempted to familiarize herself with the Court's new procedures, which are available on the Court's website. (Id.¶¶ 10–11.)³ According to Stratton, it appeared that she had done everything correctly, and she emailed Brinkman and her co-counsel, Christy Hall, Esq., later that evening to advise that she had filed the Complaint. (Id.¶¶ 12, 15.) Yet, Stratton did not receive an NEF indicating that the Complaint had been filed, nor did Hall, whose ECF account Stratton had used because of concern that her own account would not work properly. (Id.¶¶ 12, 14, 17.)

On Monday October 17, Stratton contacted Hall and asked her to verify that the Complaint had been properly filed and the action started. (Id.¶ 16.) Hall checked the "new cases" list on the Court's website but did not see Brinkman's action. (Hall Decl. ¶ 10.) Because there were many cases on the list, Hall believed the Clerk's office simply "hadn't gotten to docketing [the] complaint yet." (Id. ) But when Hall did not see the case on the list by early afternoon, she called the Clerk's office and spoke to an unknown male employee. (Id.¶¶ 12–13.) Though she cannot recall verbatim what was said, the "gist of the conversation" was that Hall asked whether "everything had been correctly filed," and the employee responded that it had been and that the Clerk's office had received the Complaint, but it still needed to be docketed. (Id.¶¶ 13–14.) Based on this conversation, Hall perceived no reason for concern and concluded "the reason we hadn't seen anything via ECF or on the New Cases Report was that the [C]lerk's office still needed to docket it." (Id.¶ 15.)

By Wednesday October 19, neither Stratton nor Hall had received an NEF indicating the Complaint had been filed. They exchanged emails about the "puzzling" delay but did not attempt to contact the Clerk's office. (Id.¶ 18; Second Stratton Decl. ¶¶ 20–21.) But with still no NEF received by Friday October 21, Stratton called the Court's ECF help desk and was advised that although a case had been "opened" on Sunday October 16, the Complaint had not been electronically uploaded and filed at that time, and the information previously provided by the male employee had been incorrect. (Second Stratton Decl. ¶ 22.) After discussing the matter, Stratton and Hall then decided to immediately re-file the Complaint. (Id.¶¶ 22–23.) Accordingly, the docket in this matter reflects that the Complaint was not filed until Friday, October 21, 2016.

The Union and Nasseff responded to the Complaint by moving to dismiss. Brinkman then amended her Complaint,⁴ and Defendants have moved once again to dismiss, arguing inter alia that her Title VII claims are untimely because she filed this action more than 90 days after receiving the EEOC's right-to-sue letters. The Motions have been fully briefed and are ripe for disposition.

STANDARD OF DECISION

The procedural posture of this case requires a brief digression regarding the appropriate standard of review. As noted above, Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing (among other things) that Brinkman's Title VII claims—the only claims addressed herein—are untimely based on the statute's 90–day limitations period. Yet, the statute of limitations "rarely provides a basis for Rule 12(b)(6) dismissal," Haile v. HMS Host, Civ. No. 14-379, 2014 WL 2480191, at *1 n.3 (D. Minn. June 3, 2014) (Kyle, J.), because it is an affirmative defense that the defendant must plead and prove, see Fed. R. Civ. P. 8(c)(1) ; Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008). Accordingly, an action may be dismissed based on a statute of limitations only if "the complaint itself establishes the defense." Jessie, 516 F.3d at 713 n.2.⁵

As discussed in more detail below, this is one such "rare" case. It is beyond dispute here that the deadline for Brinkman to file her Complaint expired on October 17, 2016, but her Complaint was not filed until four days later. Accordingly, the Complaint itself establishes that Brinkman was untimely, at least with respect to the Title VII claims.

Nevertheless, Brinkman attempts to invoke the doctrine of equitable tolling to save these claims, submitting Declarations from her attorneys setting forth their efforts to commence this action through ECF. These Declarations are beyond the pleadings and ordinarily would not be considered by the Court on a motion to dismiss. But because they have been submitted by Brinkman, and because equitable tolling provides the only basis for saving her Title VII claims, the Court will consider them. Doing so, however, means converting Defendants' Motions into motions for summary judgment. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."); Stahl v. U.S. Dep't of Agric., 327 F.3d 697, 701 (8th Cir. 2003) (district court has "complete discretion to determine whether or not to accept any material beyond the pleadings").⁶

Summary judgment is proper if, drawing all reasonable inferences in favor of Brinkman, there is no genuine issue as to any material fact and Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). Defendants bear the burden of showing the material facts are undisputed. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc ); Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to Brinkman. Beard v. Banks, 548 U.S. 521, 529–30, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) ; Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir. 2009)....