Lymon v. Allen Cnty. Gov't
| Decision Date | 18 September 2018 |
| Docket Number | Cause No.: 1:18-CV-134 |
| Parties | TERRY LYMON, Plaintiff, v. ALLEN COUNTY GOVERNMENT, ALLEN COUNTY BOARD OF COMMISSIONERS, ALLEN COUNTY SUPERIOR COURT (Official and Administrative Capacities), ALLEN COUNTY CLERK OF COURTS, and ALLEN COUNTY SHERIFF, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court for ruling on a Motion to Dismiss filed by Defendant Allen Superior Court on June 25, 2018 (ECF 12). Plaintiff Terry Lymon filed a response in opposition to the motion on July 16, 2018 (ECF 16) and Allen Superior Court filed a reply on July 23 (ECF 24). Also pending is the Plaintiff's Motion to Remand Claims Against State Defendants to State Court (or Dismissal Without Prejudice) filed on July 16 (ECF 18). None of the Defendants filed responses to the motion to remand and the time for doing so has passed. Accordingly, both motions are ripe for resolution. For the reasons explained below, the Allen Superior Court's Motion to Dismiss is GRANTED with prejudice as to Lymon's claim under 42 U.S.C. § 1981 and without prejudice as to his claim under Title VII; and Lymon's Motion to Remand or Dismiss is DENIED AS MOOT. The Court's ruling today involves only Lymon's claim(s) against the Allen Superior Court. His claims against the remaining Defendants are unaffected and remain pending.
Terry Lymon filed this lawsuit on May 18, 2018. Complaint (ECF 1). All of the Defendants named in the Complaint are government entities or political subdivisions that Lymon alleges discriminated against him on the basis of his race (African-American) by refusing-multiple times, he claims-to hire him for positions he applied for and for which he insists he was qualified. Id., pp. 2-3. Lymon filed a charge of discrimination with the EEOC on December 7, 2016, and was issued a Notice of Right to Sue letter on February 13, 2018. Id., Exhs. A and B (ECF1-1, 1-2).1 He filed this suit pursuant to Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Id., p. 1. The Allen Superior Court argues in its motion that Lymon's Complaint fails to state any viable claim against it and should be dismissed in its entirety, pursuant to Fed.R.Civ.P. 12(b)(6), "because (1) [his] claim for race discrimination under Title VII is untimely, and (2) [42 U.S.C.] Section 1981 applies only to private actors," which the Allen Superior Court clearly is not. Memorandum in Support of Motion to Dismiss (ECF 13), p. 1.
A complaint must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "'A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.'" Savoy v. BMW of N. Am., LLC, 313 F.Supp.3d 907, 913 (N.D. Ill. 2018) (quoting Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015)). To survive such a motion, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Tobey v. Chibucos, 890 F.3d 634, 644-46 (7th Cir. 2018). In the present case, the Allen Superior Court correctly contends that Lymon's Complaint fails to state a viable claim against it as a matter of law, even when his allegations are taken as true, and therefore must be dismissed.
The Superior Court contends that Lymon's claims against it must be dismissed because his Complaint was untimely. The Superior Court's argument apparently is based on a misunderstanding of the law. Lymon's response doesn't clear up that misunderstanding, but his argument on this issue prevails anyway-at least for present purposes.
The Superior Court states that "Plaintiff's Complaint was filed 94 days after he received his Dismissal and Notice of Rights from the EEOC on February 13, 2018." Memorandum in Support, p. 1.2 The Defendant argues as follows:
Mr. Lymon received his [NORTS] from the EEOC on February 13, 2018. . . . Accordingly, he was required to bring suit within 90 days, on or before May 14, 2018. Mr. Lymon filed the Complaint on May 18, 2018, 94 days after receiving notice of his right to sue from the EEOC. . . . Because he did not file suit within 90 days of receiving the [NORTS] from the EEOC, his claim for race discrimination under Title VII must be dismissed.
Id., p. 3. The Superior Court is correct that a plaintiff must file suit within 90 days of his receipt of his notice of right to sue. 42 U.S.C. § 2000e-5(f)(1). But what the Superior Court's argument ignores is that while Lymon's NORTS letter was issued on February 13, 2018, the statute of limitations did not begin to run until Lymon or his counsel received that notice. As this Court and many others have explained, "[t]he date of receipt controls." Gillo v. Gary Cmty. Sch. Corp., 2016 WL 4592200, at *10 (N.D. Ind. Sept. 2, 2016). In Pritts v. Ball Metal Corp., this Court (Judge Sharp) denied summary judgment on defendant's affirmative defense because "the date on which [the Plaintiff] actually received the Notice of Right to Sue is a 'material fact,' and there is an obvious disagreement concerning this date[.]"). Judge Sharp explained as follows:
The Seventh Circuit has determined that actual receipt of the notice is required to start running the 90-day clock. Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823 (7th Cir. 2005) (citing Archie v. Chicago Truck Drivers, 585 F.2d 210, 216 (7th Cir. 1978)). The ninety-day filing deadline is a "'condition[ ] precedent,' similar to statutes of limitations . . . ." Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir. 1991). Thus, a defendant's argument that a discrimination claim is untimely because it was filed outside the 90-day statute of limitations is an affirmative defense. Del Korth v. Supervalu, Inc., 46 F.App'x 846 (7th Cir. 2002) (citing Fed.R.Civ.P. 8(c); Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir. 1993)). As such, the Defendant bears the burden of establishing that [the Plaintiff] failed to file his lawsuit before the ninety day deadline. See, Salas v. Wisconsin Department of Corrections, 493 F.3d 913, 922 (7th Cir. 2007) ().
Pritts v. Ball Metal Corp., 2009 WL 721550, at *2 (N.D. Ind. Mar. 18, 2009) (italics added). In the present case, the Superior Court presents no evidence indicating that Lymon received his NORTS on a specific date. It is undisputed that the notice was issued on February 13, 2018, but the Superior Court incorrectly argues that Lymon's Complaint had to be filed within 90 days of that date.
Lymon's response to this argument is as curious as the argument itself. Lymon never states, in his Complaint or his briefs, when he received his right to sue notice, but he implies it was four days after it was issued and therefore his Complaint was timely. Lymon states as follows:
As to the Title VII claim, Plaintiff maintains that he did not receive his Notice of Right to Sue within three (3) days after its issuance; therefore, Plaintiff maintains that he is timely as to his Title VII claim. For example, see attached Notice of Right to Sue in Jacqueline Wimbley v. Parkview Health; the NORTS was issued on July 12, 2018 but not received by Myers law firm until July 16, 2018, which is four (4) days. Lymon's lawsuit was filed within ninety-four (94) days of receipt of the NORTS.
Id., pp. 1-2. So rather than specifying when he or his attorney received the notice, Lymon offers only that it was not "within three days after its issuance." The attached exhibit Lymon refers to is a NORTS letter issued to an individual named Jacqueline Wimbley, dated July 12, 2018, which Lymon's counsel, who is also representing Wimbley according to the NORTS letter, says he did not receive until July 16, 2018. This exhibit presumably was included to demonstrate that a NORTS letter is sometimes not received for several days after it is issued.3 But that's a given. The point is that Lymon's NORTS letter was issued on February 13, 2018. Complaint, Exh. B (ECF 1-2). Assuming Lymon or his attorneys did not receive that letter until four days later (and the Superior Court presents no evidence otherwise), the 90-day period began to run on February 17, 2018, and Lymon's Complaint would be timely since 90 days from February 17 is May 18, 2018-the date the Complaint was filed. Since "the defendant bears the burden of establishing an affirmative defense, and with inconclusive evidence at best, the tie goes to the plaintiff[,]" the Superior Court's affirmative defense argument does not provide a basis for dismissal of Lymon's Complaint.4
Lymon's argument regarding his Section 1981 claim is even more baffling. Lymon concedes that Section 1983, not Section 1981, is the proper statutory vehicle to use to bring race discrimination claims against state actors, and says that his present claims "would survive under 42 U.S.C. § 1983," and that he "intends to file a First Amended Complaint to assert a claim under . . . § 1983[.]" Response in Opposition to ...
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