Nkengfack v. American Ass'n of Retired Persons

• Decision Date: 14 October 2011
• Docket Number: Civil Action No. 11–00530 (BAH).
• Citation: 818 F.Supp.2d 178,113 Fair Empl.Prac.Cas. (BNA) 995
• Parties: Gabriel NKENGFACK, Plaintiff, v. AMERICAN ASSOCIATION OF RETIRED PERSONS, Defendant.
• Court: U.S. District Court — District of Columbia

113 Fair Empl.Prac.Cas. (BNA) 995

818 F.Supp.2d 178

Gabriel NKENGFACK, Plaintiff,

v.AMERICAN ASSOCIATION OF RETIRED PERSONS, Defendant.

Civil Action No. 11–00530 (BAH).

United States District Court, District of Columbia.

Oct. 14, 2011.

Gabriel Nkengfack, Gwynn Oak, MD, pro se.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Plaintiff Gabriel Nkengfack, who is proceeding pro se, is a Cameroonian immigrant currently employed by the defendant, the American Association of Retired Persons (“AARP”). Compl. at 1. The plaintiff alleges that the AARP has violated Title VII of the Civil Rights Act of 1964 because it twice passed him over for promotion due to his national origin, foreign accent, and in retaliation for a complaint he filed with the Equal Employment Opportunity Commission (“EEOC”). Id. He contends that he was qualified for the promotions and that, in one instance, the AARP instead promoted a coworker whom he had trained. Id. at 1–2. In support of these allegations, the plaintiff submitted an exhibit containing, among other things, positive employee reviews. See Pl.'s Ex. C. He also claims that the AARP retaliated against him through negative employee performance evaluations and by physical harassment when he was forced to vacate his office to accommodate new employees. Compl. at 2.

The defendant has moved to dismiss this action on the grounds that the plaintiff did not file his complaint within the 90–day time limit required for Title VII lawsuits. As explained below, the Court finds that the plaintiff's 90–day time limit was tolled due to the plaintiff's filing of an application to proceed in forma pauperis in this action. After accounting for this tolling, including sufficient time for the plaintiff to receive notice of the Court's decision on the plaintiff's application, the Court finds that the plaintiff's Complaint was timely. Accordingly, the motion to dismiss is denied.

I. BACKGROUND

Prior to filing this lawsuit, the plaintiff first filed a complaint with the EEOC. After denying relief on his complaint, the EEOC mailed the plaintiff a right-to-sue letter on November 30, 2010. Pl.'s Ex. F at 1. Title VII provides that an individual has 90 days to file a complaint with the appropriate federal district court after receipt of an EEOC right-to-sue letter. 42 U.S.C. § 2000e–5(f)(1). On February 24, 2011, the plaintiff filed an Application to Proceed Without Prepayment of Fees in this Court in connection with his discrimination complaint against the AARP. Pl.'s Opp'n to Def.'s Mot. to Dismiss at 3. The Court denied the application on March 1, 2011. Id. at 4. The plaintiff asserts that he did not receive notice of this decision until March 11, 2011. Pl.'s Supplemental Opp'n to Def.'s Mot. to Dismiss at 2.

On March 14, 2011, the plaintiff filed the instant Complaint along with the required filing fees. Compl.

The plaintiff's Complaint seeks a retroactive promotion and back pay of $105,000 under Title VII. Compl. at 1. On April 6, 2011, the defendant filed a Motion to Dismiss or, in the alternative, for Summary Judgment on the grounds that the plaintiff failed to file his claim within the 90–day time limit required by Title VII. Def.'s Mem. in Supp. of Mot. to Dismiss. The defendant's motion is presently before the Court.

II. STANDARD OF REVIEW AND STATUTORY FRAMEWORK1. Motion to Dismiss Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Fed.R.Civ.P. 12(b)(6). Although detailed factual allegations are not required, the Complaint must set forth “more than an unadorned, the defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), and may not merely state “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Instead, the complaint must plead facts that are more than “merely consistent with” a defendant's liability; “the plaintiff [must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (internal quotation marks omitted) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

2. Title VII Time Limits

To bring a civil action under Title VII, the plaintiff must file the complaint within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed. 42 U.S.C. § 2000e–5(f)(1); see also Amiri v. Stoladi Prop. Grp., 407 F.Supp.2d 119, 123 (D.D.C.2005); Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. 94, 97 (D.D.C.1995) (noting that “[t]his statute of limitations provision requires that, in order to maintain a civil suit under Title VII, a party must file a complaint within ninety days after receiving a right-to-sue letter from the EEOC.”) (citing 42 U.S.C. § 2000e–5(f)(1)). A court may dismiss a suit for missing the deadline by one day. See Woodruff v. Peters, 482 F.3d 521, 525 (D.C.Cir.2007) (citing Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C.2006)).

This 90–day, non-jurisdictional time limit functions like a statute of limitations and is subject to waiver, estoppel and equitable tolling. See Wiley, 436 F.Supp.2d at 96 (citing Mondy v. Sec. of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)); Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) (“[F]unctioning like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver.”); see also Ruiz v. Vilsack, 763 F.Supp.2d 168, 171 (D.D.C.2011) (citing Smith–Haynie v. District of Columbia, 155 F.3d 575, 577–80 (D.C.Cir.1998)). Moreover, the fact that a plaintiff is a pro se litigant does not exempt him from the 90–day statute of limitations. Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. at 97. “No matter how slight the tardiness, a court is not at liberty to disregard the 90–day deadline out of a vague sympathy for any particular plaintiff.” Turner v. Afro–American Newspaper Co., 572 F.Supp.2d 71, 73 (D.D.C.2008) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)).

III. DISCUSSION

The defendant claims that the plaintiff's Complaint was untimely because, by the defendant's calculations, the plaintiff waited more than 90 days to initiate suit after receiving his right-to-sue notice from the EEOC. The plaintiff argues that his suit is timely because he attempted to initiate this case by filing an application to proceed in forma pauperis (“IFP”), with his complaint as an attachment, within the allotted 90–day time period. ¹ Shortly after receiving notice of the Court's denial of his IFP application, he then filed his Complaint, along with the filing fee. Since both parties agree that the 90–day time limit is tolled during the pendency of an IFP application, the dispute in this case ultimately centers on whether such tolling ends immediately after the Court's ruling on the IFP application or whether tolling continues for a reasonable period thereafter to account for the plaintiff's receipt of notice of the ruling. As explained below, the Court finds that a reasonable notice period is appropriate here and that the plaintiff's Complaint is therefore timely.

A. The 90–Day Statutory Time Period Began Five Days After The EEOC Mailed the Right–to–Sue Letter.

The first step in analyzing the timeliness of the Complaint is identifying the exact date on which the plaintiff's 90–day time period for filing suit began to run. As noted above, the 90–day period is triggered upon the plaintiff's “receipt of notice” of the EEOC's decision. See McAlister v. Potter, 733 F.Supp.2d 134, 143 (D.D.C.2010). Here, it is undisputed that the EEOC mailed the right-to-sue letter to the plaintiff on November 30, 2010, and the plaintiff has not otherwise pled the date on which he received the letter. See Compl. “Where a plaintiff fails to plead the date that he received the right-to-sue letter, the court ‘must fix a presumptive date of receipt for purposes of determining whether Plaintiff complied with the ninety day filing requirement.’ ” Ruiz, 763 F.Supp.2d at 171 (quoting Anderson, 886 F.Supp. at 97). Courts routinely apply a three-to-five-day presumptive notice period following the mailing of the right-to-sue letter. See, e.g., Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (finding that “presumed date of receipt” is three days after issuance of right-to-sue letter under prior Fed.R.Civ.P. 6(e)); Smith–Haynie, 155 F.3d at 578 n. 3 (applying Baldwin's three-day rule); Anderson, 886 F.Supp. at 97 (finding that courts are divided whether the rule should be three or five days of presumptive notice); Washington v. White, 231 F.Supp.2d 71, 75 (D.D.C.2002) (applying the five-day presumption where the certificate of mailing stated that the EEOC “will presume that [its] decision was received within five (5) calendar days after it was mailed”).

In Ruiz v. Vilsack, a court in this district applied the longer five-day presumption because the certificate of mailing accompanying the right-to-sue letter specified a five-day period. 763 F.Supp.2d at 171 (citing Washington, 231 F.Supp.2d at 75). In this case, the EEOC right-to-sue letter was mailed on November 30, 2010. Pl.'s Ex. F at 1. The record here does not appear to contain any certificate of mailing or other documents indicating a particular presumptive notice period. Even so, in light of the five-day notice periods applied in Ruiz and Washington, and considering the plaintiff's pro se status, the Court finds it reasonable to apply the five-day presumption here.

Thus, the plaintiff will be deemed to have received the EEOC's...