Miller v. Downtown Bid Servs. Corp.

• Decision Date: 17 November 2017
• Docket Number: Civil Action No. 17–389 (RBW)
• Citation: 281 F.Supp.3d 15
• Parties: Rayonna MILLER, Plaintiff, v. DOWNTOWN BID SERVICES CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

281 F.Supp.3d 15

Rayonna MILLER, Plaintiff,

v.DOWNTOWN BID SERVICES CORPORATION,¹ Defendant.

Civil Action No. 17–389 (RBW)

United States District Court, District of Columbia.

Filed November 17, 2017

Rayonna Miller, Washington, DC, pro se.

Ebony Reid Douglas, Christopher E. Humber, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

The pro se plaintiff, Rayonna Miller, brings this civil action against the defendant, Downtown BID Services Corporation, alleging that the defendant retaliated against her for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–1 to – 17 (2012). See Complaint ("Compl."); Letter from Rayonna Miller to the Court (July 5, 2017).² Currently before the Court is the defendant's motion to dismiss the plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Defendant's Rule 12(b)(6) Motion to Dismiss Plaintiff's Complaint with Prejudice ("Def.'s Mot."). Upon careful consideration of the parties' submissions,³ the Court concludes that it must grant the defendant's motion and dismiss this case with prejudice.

I. BACKGROUND

The plaintiff, a former employee of the defendant, alleges that on September 13, 2016, her employment was "wrongfully terminated" in "retaliat[ion] [ ] for ... filing [a] complaint [with the EEOC] for sexual harassment." Compl. at 1.⁴ Following her termination, the plaintiff filed a complaint with the EEOC alleging a charge of employment discrimination on the basis of retaliation in violation of Title VII of the Civil Rights Act. See Def.'s Mem., Exhibit ("Ex.") A (EEOC Notice of Charge of Discrimination) at 1.⁵ On October 7, 2016, following an investigation into her complaint, the EEOC mailed to the plaintiff a "Dismissal and Notice of Rights," notifying her that it was "unable to conclude that the information obtained establishes violations of the statutes" and that she "may file a lawsuit against the [defendant] ... based on [her] charge in federal or state court ... WITHIN [NINETY] DAYS of [her] receipt of this notice ." Id., Ex. A (Dismissal and Notice of Rights ("Right-to-sue Notice")) at 2. On January 31, 2017, the plaintiff filed this civil action in the Superior Court of the District of Columbia (the "Superior Court"). See Compl. at 1. In her Complaint, the plaintiff acknowledged that she "received a letter for the right to sue from the EEOC [illegible] in October 2016," and although she was "not sure of the actual[ ] date" when she received the letter, she "believe[d] this month (January 2017) would be the end of [her] [ninety] days [to sue]." Id. The defendant removed the case to this Court on March 3, 2017. See Notice of Removal at 1.

II. STANDARD OF REVIEW

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Thus, to survive a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6), the 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). Although the Court "must treat the complaint's factual allegations as true [and] must grant [the] plaintiff the benefit of all reasonable inferences from the facts alleged," Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (first alteration in original) (citation omitted), legal allegations devoid of factual support are not entitled to this assumption, see, e.g., Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, a plaintiff must provide more than "a formulaic recitation of the elements of a cause of action." Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F.Supp.2d 22, 27 (D.D.C. 2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). "In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice." Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (citation omitted). And although filings by a pro se litigant "must be held to less stringent standards than [those] drafted by lawyers," Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009), this latitude "does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure," Moore v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993) (citation omitted).

III. ANALYSIS

The defendant moves to dismiss the Complaint with prejudice on the ground that the plaintiff's retaliation claim "is time-barred because she failed to file her Complaint within [ninety] days after receiving her [Right-to-sue Notice] from the EEOC." Def.'s Mem. at 3. Specifically, the defendant argues that "if [the plaintiff] received the [Right-to-sue Notice] within five days after it was mailed, the filing deadline was January 10, 2017, and her Complaint was exactly [twenty-one] days late." Id. at 5.⁶ The plaintiff responds that the Court should deny the defendant's motion in light of several circumstances, including that she was: (1) "under the impression that [she] had [ninety] business days instead of [ninety] calendar day[s] to file [her] claim"; (2) "unable to ... [retain] an attorney who would represent [her] in this matter"; and (3) experiencing various other circumstances that made her "[un]able to give 100 percent towards [this] court case," including that her termination had "caused a major setback" and "put her at a disadvantage" "physically[,] mentally[,] and emotionally"; she "was mentally frustrated and worried about how [she] was going to be able to obtain an income"; and she was hindered by a "time consuming" "travel commute," the need to "obtain childcare," and other issues. Pl.'s Resp. at 1.⁷

A Title VII claimant has ninety days from the receipt of an EEOC right-to-sue notice or a notice of final agency action to file a civil action. See 42 U.S.C. § 2000e–5(f)(1). "[C]ourts have strictly construed the [ninety]-day statute of limitations in Title VII cases, even where the plaintiff is proceeding pro se," Ruiz v. Vilsack, 763 F.Supp.2d 168, 173 (D.D.C. 2011), and the "[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for [the] particular litigant[ ]," Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam)). Thus, courts "will dismiss a suit for missing the deadline by even one day," Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C. 2006) (citing Smith v. Dalton, 971 F.Supp. 1, 2–3 (D.D.C. 1997) ). Here, because the plaintiff failed to plead the precise date on which she received the Right-to-sue Notice, see Compl. at 1 (only alleging that she received the notice in October 2016), the Court " ‘must fix a presumptive date of receipt for purposes of determining whether [the p]laintiff complied with the ninety day filing requirement,’ " Ruiz, 763 F.Supp.2d at 171 (quoting Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. 94, 97 (D.D.C. 1995) ). "Courts generally assume that the final EEOC decision was mailed on the same day that it was issued ..., and that the plaintiff received the decision either three or five days after it was mailed." Id. (citing, inter alia, Baldwin Cty., 466 U.S. at 148 n.1, 104 S.Ct. 1723 ); see also McGary v. Hessler–Radelet, 156 F.Supp.3d 28, 34 (D.D.C. 2016) (observing that "it is reasonable to presume that a recipient residing in the United States received [an EEOC] notice within three to five days of when it was sent"). Applying the most generous presumption, the Court will assume that the plaintiff received the Right-to-sue Notice on October 12, 2016, five days after it was issued. See Def.'s Mem., Ex. A (Dismissal and Notice of Rights) at 2. Consequently, the plaintiff was required to file this civil action no later than ninety days thereafter, by January 10, 2017. Because the plaintiff did not file her Complaint in the Superior Court until January 31, 2017, see Compl. at 1, she failed to comply with the statutory filing deadline.⁸

Although the ninety-day filing requirement is applied "strictly," Ruiz, 763 F.Supp.2d at 173, it "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). Courts apply equitable tolling "sparingly," however, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and "only in extraordinary and carefully circumscribed instances," Dyson v. District of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013) (quoting Smith–Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998) ). A plaintiff "is entitled to equitable tolling only if [s]he shows (1) that [s]he has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing." Dyson, 710 F.3d at 421 (alterations in original) (quoting Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) ). The plaintiff's burden is "weighty," id., and as the Supreme Court has made clear, is not satisfied by " ‘a garden variety claim of excusable...