Severino-Todd v. Wal-Mart, Inc.
| Decision Date | 20 December 2011 |
| Docket Number | No. 5:11-CV-336-BR,5:11-CV-336-BR |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | DENISE L. SEVERINO-TODD, Plaintiff, v. WAL-MART, INC., Defendant |
This matter is before the court on the 11 August 2011 motion to dismiss filed by defendant Wal-Mart, Inc. ("Wal-Mart").1 The motion is now ripe for disposition.
Plaintiff Denise L. Severino-Todd ("plaintiff") worked at Wal-Mart Store # 4564 in Goldsboro, North Carolina from January 2008 until 4 September 2010. (Compl., DE # 4, at 4 ¶ 5.) Following her termination, plaintiff filed a charge of employment discrimination against Wal-Mart with the Equal Employment Opportunity Commission ("EEOC"). On 15 March 2011, the EEOC mailed plaintiff a right-to-sue letter, which stated that the EEOC was unable to conclude that the information obtained in the course of its investigation established a statutory violation. (Compl., DE # 4, at 6.) Plaintiff alleges that she received the right-to-sue letter on 22 March 2011. (Id. at 4 ¶ 11.)
On 22 June 2011, plaintiff commenced this action by filing a motion to proceed in forma pauperis, and she attached her complaint to the motion. (See DE # 1.) In her complaint,plaintiff alleges that Wal-Mart discriminated against her and terminated her based on her race and religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Compl., DE # 4, at 2-3 ¶¶ 3-6.)
On 11 August 2011, Wal-Mart filed a motion to dismiss plaintiff's complaint. (DE # 13.) Wal-Mart seeks the dismissal of the complaint in its entirety on the grounds that plaintiff's claims are time-barred, or, in the alternative, that plaintiff fails to state a claim upon which relief can be granted. On 6 September 2011, plaintiff filed a response to the motion to dismiss. (DE # 17.) Wal-Mart filed a reply on 22 September 2011 (DE # 18), and plaintiff filed a sur-reply on 12 October 2011. (DE # 19.)
Wal-Mart moves to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In order to survive a motion to dismiss, the complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a Rule 12(b)(6) motion does not traditionally resolve the applicability of defenses, Republican Party, 980 F.2d at 952, "'the defense that the plaintiff's claim is time-barred'" may be reached on a motion to dismiss "'[w]here facts sufficient to rule on an affirmative defense . . . are alleged in the complaint . . . .'" Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009) (quoting Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc)); see also Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005).
Wal-Mart first argues that plaintiff's Title VII claims should be dismissed because they are untimely. Title VII requires a complaint to be filed in federal court within 90 days of the receipt of an EEOC right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). In this case, the right-to-sue letter was mailed to plaintiff on 15 March 2011. (Compl., DE # 4, at 6.) Plaintiff claims that she did not receive the letter until 22 March 2011.2 (Id. at 4 ¶ 11.) As a result, plaintiff’s 90-day deadline for filing a complaint expired on Monday, 20 June 2011. However, plaintiff did not commence this action until Wednesday, 22 June 2011 when she filed her motion to proceed in forma pauperis. Thus, it is clear from the face of the complaint that plaintiff's action was untimely filed as a matter of law. See Goodman, 494 F.3d at 464.
Although plaintiff does not deny that she filed her action after the expiration of the statutory deadline, she seeks to avoid the consequences of her late filing by having this court apply the equitable remedy of tolling.3 The Fourth Circuit Court of Appeals has recognized that "principles of equitable tolling may, in the proper circumstances, apply to excuse a plaintiff's failure to comply with the strict requirements of a statute of limitations." Harris v. Hutchinson,209 F.3d 325, 328 (4th Cir. 2000). However, the United States Supreme Court has cautioned that "[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 particular litigants." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Thus, the equitable remedy of tolling is typically applied only "sparingly." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); see also Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (); Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (). In the Fourth Circuit, equitable tolling is applied in two distinct kinds of situations: (1) where the plaintiff was prevented from asserting his or her claims by some kind of wrongful conduct on the part of the defendant, and (2) where "extraordinary circumstances beyond plaintiff['s] control made it impossible to file the claims on time." Harris, 209 F.3d at 330.
Here, plaintiff does not contend that wrongful conduct by Wal-Mart prevented her from timely filing her lawsuit. Thus, she must satisfy the "extraordinary circumstances" test. This requires "(1) extraordinary circumstances, (2) beyond [the plaintiff's] control or external to his own conduct, (3) that prevented him from filing on time." Rouse, 339 F.3d at 246. The plaintiff bears the burden of establishing exceptional circumstances that warrant equitable tolling. See Harris, 209 F.3d at 330; Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000); Dahlman v. Am. Ass'n of Retired Persons, 791 F. Supp. 2d 68, 76 (D.D.C. 2011) (). Furthermore, the application of the equitable remedy of tolling is solely within the court's discretion. Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed. Appx. 314, 320 (4th Cir. 2011).
In arguing for the application of equitable tolling, plaintiff states in her response to the motion to dismiss that the attorney she originally retained for this case had a stroke and was unable to fulfill his duties as her attorney. (Pl.'s Resp. Mot. Dismiss, DE # 17, at 1.) She further states that "it was not found out until the last minute about the attorney's stroke and subsequent decline in health to the point they were no longer capable of doing their professional duties and a layman, picked up doing the job." (Id. at 2.) This is the only information that plaintiff provided in her response regarding the alleged extraordinary circumstances that prevented her from filing her lawsuit on time.
However, following the submission of Wal-Mart's reply brief on the motion to dismiss, plaintiff filed a second response to the motion to dismiss, which is a sur-reply.4 In the sur-reply, plaintiff provides a few more details regarding her grounds for equitable tolling. She states that she hired attorney Phillip Barton to represent her in October 2010. (Pl.'s Sur-reply, DE # 19, at 2.) Although she does not know when Mr. Barton suffered his stroke, she maintains that she received a phone call from him on the final day of the 90-day statutory limitations period, and (Id.) She maintains that Mr. Barton was not "of sound mind" and that "this was not something that anyone had seen as a slow decline in health that could be predicted." (Id.) She further asserts: "I was under the impression that the case was already filed in court and we were awaiting for response to the case filed when I was contacted by Mr. Barton to find out he had not filed the case at all." (Id.) Plaintiff also states that her "last contact with Mr. Barton had been a few weeks prior to the deadline for filing the case until the phone call on the final day." (Id.)
"Illness is rarely valid grounds for the application of equitable tolling." Yarborough v. Burger King Corp., 406 F. Supp. 2d 605, 608 (M.D.N.C. 2005); see also Modrowski v. Mote, 322 F.3d 965, 966, 968 (7th Cir. 2003) (); United States v. Taylor, 22 Fed. Appx. 226 (table), No. 01-7114, 2001 WL 1545911, at *1 (4th Cir. Dec. 5, 2001) (); Gruber v. Unum Life Ins. Co. of Am., 195 F. Supp. 2d 711, 716 (D. Md. 2002) (). "Permitting illnesses to trump statutory time limitations would set dangerous precedents and would likely disrupt the efficient administration of justice." Yarborough, 406 F. Supp. 2d at 608. Thus, in cases involving the illness of a party's attorney, courts have applied the doctrine of equitable tolling only in situations where the attorney has suffered a near-total disability or death. See Doherty v. Teamsters Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386, 1394 (3d Cir. 1994) (...
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