Davis v. Auburn Bank

• Decision Date: 30 March 2016
• Docket Number: Civil Action No.:3:15-cv-655-WKW-WC
• Parties: TIFFANY DAVIS, Plaintiff, v. AUBURN BANK, Defendant.
• Court: U.S. District Court — Middle District of Alabama

TIFFANY DAVIS, Plaintiff, v. AUBURN BANK, Defendant.

Civil Action No.:3:15-cv-655-WKW-WC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION

March 30, 2016

RECOMMENDATION OF THE MAGISTRATE JUDGE

This matter is before the court on Plaintiff's Complaint (Doc. 1), Defendant's "Motion to Dismiss"¹ (Doc. 5), and Plaintiff's Response to Defendant's Motion to Dismiss (Doc. 14). Plaintiff's complaint alleges that she was "discriminated against by certain acts" while she worked as a teller for Defendant. Compl. (Doc. 1) at 3. These acts include: termination while on the Family Medical Leave Act ("FMLA"), being constructively discharged due to a hostile work environment, and receiving abuse from other employees in the form of cursing, rude, and unwanted conversations. Id. at 3-4. In addition, Plaintiff alleges that she was treated differently than other Caucasian employees. Id. In support of her disparate treatment allegations, Plaintiff states that she was verbally reprimanded for talking about President Obama while her Caucasian co-workers were allowed to freely discuss politics. Id. at 3. She states that she was reprimanded for humming while her Caucasian co-workers were allowed to "shootrubber bands around, cut coupons out of books, playing [sic], reading books or sleeping." Id. Plaintiff asserts that she was required to submit doctor's excuses for work absences while her Caucasian co-workers were not. Id. She also states that she was "forced to a different location without any adjusted compensation while other Caucasian workers remained at her previous employment location." Id. Plaintiff purports to bring her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; 42 U.S.C. § 1981; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq,; and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.

Defendant argues that Plaintiff's Title VII and ADA claims should be dismissed as time-barred, and that the remainder of Plaintiff's claims should be dismissed for failure to meet the requirements of Rule 12(b)(6) of the Federal Rules of Civil Procedure. Def.'s Mot. (Doc. 5). In the alternative, Defendant requests that the court require Plaintiff to file a more definite statement of her claims. Id. at 13.

For the reasons that follow, the undersigned RECOMMENDS that Defendant's Motion to Dismiss (Doc. 5) be GRANTED, dismissing Plaintiff's claims in their entirety.

DISCUSSION

I. Plaintiff's Title VII and ADA claims are time-barred.

Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge of discrimination in February 2014, alleging that she was discriminated against based on race, disability, and retaliation. Pl.'s Ex. (Doc. 1-1) at 2. The EEOC issued to Plaintiff a "Dismissal and Notice of Rights" ("Dismissal") stating that the EEOC was closing its file on Plaintiff's charge. Id. at 1. Plaintiff attached that Dismissal to her complaint to thiscourt, along with the envelope purported to contain the Dismissal. Id. at 1, 4. Postmark on the envelope indicates that the Dismissal was mailed on June 2, 2015, and a handwritten note below the postmark indicates that Plaintiff opened the Dismissal on June 12, 2015.² Id. at 4. Based on these facts, Plaintiff asserts that her Title VII and ADA claims were brought "within the allowed time frame" for such violations. Compl. (Doc. 1) at 3. Defendant disagrees, arguing that Plaintiff's Title VII and ADA claims are time barred. Def.'s Mot. (Doc. 5) at 2-3.

To bring suit under Title VII or the ADA,³ a plaintiff must file a civil action within ninety days of the receipt of the EEOC's final decision on an appeal.⁴ 42 U.S.C. § 2000e-5(f)(1) (if a charge filed with the Commission . . . is dismissed by the Commission . . . , [the Commission] shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved . . . .); O'Donnell v. Punta Gorda HMA, LLC, No. 2:10-cv-785-FtM-29SPC, 2011 WL 3168144, at *2 (M.D. Fla. Jul. 27, 2011) ("Under the Americans with Disabilities Act [ ] and Title VII, a plaintiff must bring a suit within 90 days of receiving a right-to-sue letter from the EEOC . . . .").When the aggrieved party knows [the] EEOC has completed its efforts, the time for suit has come and the statute fixes its season as 90 days." Zambuto v. Am. Tel. & Tel. Co., 544 F.2d 1333, 1335 (5th Cir.1977).

Filing within the ninety-day period is a condition precedent subject to equitable tolling or waiver, rather than a jurisdictional bar. Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1525-26 (11th Cir. 1983). Once a defendant contests the timeliness of the filing of the complaint, the plaintiff bears the burden of establishing that she timely filed her complaint. Green v. Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002). Likewise, the plaintiff bears the burden of proving that equitable tolling is appropriate. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir. 1993). The Eleventh Circuit has recognized three distinct situations in which the limitation period may be equitably tolled: (1) during the pendency of an action against the same parties and involving the same cause of action in a state court which had jurisdiction over the subject matter of the suit but was the wrong forum under state law; (2) when the defendant concealed facts that support the plaintiff's cause of action, until such time as the plaintiff knew or should have known of these facts; and (3) when the EEOC misleads a complainant about the nature of her rights. Jones v. Wynne, 266 F. App'x 903, 906 (11th Cir. 2008) (citing Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302-03 (5th Cir. 1979)); see also Mesidor v. Waste Mgmt., Inc. of Florida, 606 Fed. App'x 934, 936 (11th Cir. 2015). Equitable tolling "is an extraordinary remedy which should be extended only sparingly." Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004).

Here, the EEOC gave Plaintiff notice that it had terminated its administrative process of Plaintiff's charge with its Dismissal. See (Doc. 1-1) at 1. That letter was purportedly mailed to Plaintiff on June 2, 2015, and was received by Plaintiff on June 12, 2015. Id. at. 1, 4. Thus, Plaintiff had ninety days from June 12, 2015, at most, to bring her Title VII and ADA claims to this court. Unfortunately for Plaintiff, Plaintiff filed her complaint on September 12, 2015, which was ninety-two days later. See (Doc. 1).

Because Defendant raised the timeliness of Plaintiff's appeal in its motion to dismiss, Plaintiff bears the burden of establishing that her complaint was timely. See Green, 281 F.3d at 1234. In this case, because Plaintiff's complaint was clearly filed outside of the ninety-day window, Plaintiff must show that equitable tolling is appropriate. See Ross, 980 F.2d at 661. In order to do so, Plaintiff must show extraordinary circumstances such as fraud, misinformation, or deliberate concealment. Mesidor, 606 Fed. App'x at 936 (11th Cir. 2015) (citing Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir. 2007).

Plaintiff presents several arguments for why tolling is appropriate. First, Plaintiff argues that tolling should apply because Plaintiff's counsel did not discover that the Middle District of Alabama "was not equipped for online filing for the initial complaint" until September 10, 2015, when Plaintiff's counsel attempted to file the complaint online. Pl.'s Resp. (Doc. 14) at 1-2. Plaintiff then asserts that Plaintiff's counsel "had conflicts the following day [September 11, 2015] that would not allow his arrival in Montgomery until after nightfall" and that Plaintiff's counsel "felt it an uncomfortable situation to be attempting to file anything during the non-daylight hours" since he was unfamiliar withthe area. Id. at 2. Thus, Plaintiff's counsel waited until September 12, 2015, "when the sun was still shining," to find the courthouse and file the complaint. Id.

Second, Plaintiff argues that tolling is appropriate because Plaintiff's counsel had an unexpectedly large caseload that "overwhelmed Plaintiff's attorney['s] schedule and caused delay on several responses. Ultimately the cases were adjusted to and now the legal work of Plaintiff's attorney can go forward with and [sic] additional encumbrance." Id. at 4.

Finally, Plaintiff states, as her third argument for tolling, that "there is some dispute of who actually opened the letter and when the Plaintiff actually received notice of the right to sue."⁵ Id. at 2.

None of these arguments fit within the Eleventh Circuit's excuses for equitable tolling. See Jones, 266 F. App'x at 906. Further, the principles of equitable tolling do not extend to what is essentially neglect on the part of Plaintiff's attorney in failing to file the complaint on time because of an overwhelmingly large caseload or because of his fear of Montgomery after dark. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("Mere attorney negligence does not justify equitable tolling."); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (holding that no basis existed for equitable tolling of 30-day period from bringing employment discrimination claim against the United States following a right-to-sue letter from the EEOC even though attorney was outof the country when the letter was received by his office and he did not return until some seventeen days later). While Plaintiff's third argument concerning notice of the Dismissal comes closest to a justifiable reason for tolling, courts have rejected similar arguments on multiple occasions, and the undersigned finds Plaintiff's argument unavailing. See Green, 281 F.3d at 1234 (determining that plaintiff failed to satisfy the burden of a timely filing when plaintiff did not know exact date that his right-to-sue letter was received at his home address and pla...