Yarborough v. Burger King Corp., No. CIV 1:04CV00888.

• Decision Date: 22 December 2005
• Docket Number: No. CIV 1:04CV00888.
• Citation: 406 F.Supp.2d 605
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Alicia M. YARBOROUGH; Alicia M. Marsh; and Ashley C. Yarborough, Plaintiffs, v. BURGER KING CORPORATION; Sandhills Foods Corporation<SMALL><SUP>1</SUP></SMALL> d/b/a Burger King of Siler City, NC; Rick Quinn, individually and in his capacity as President of Sandhills Foods, Inc.; Michael Howard, individually and in his capacity as Manager, Burger King, Siler City, NC; and Michael Sanders, in his capacity as District Manager of Burger King, Defendants.

406 F.Supp.2d 605

Alicia M. YARBOROUGH; Alicia M. Marsh; and Ashley C. Yarborough, Plaintiffs, v. BURGER KING CORPORATION; Sandhills Foods Corporation¹ d/b/a Burger King of Siler City, NC; Rick Quinn, individually and in his capacity as President of Sandhills Foods, Inc.; Michael Howard, individually and in his capacity as Manager, Burger King, Siler City, NC; and Michael Sanders, in his capacity as District Manager of Burger King, Defendants.

No. CIV 1:04CV00888.

United States District Court, M.D. North Carolina.

December 22, 2005.

James L. Griffin, Chapel Hill, NC, for Plaintiffs.

Jennifer N. Fountain, Isaacson Isaacson & Sheridan, LLP, Amiel J. Rossabi, Forman Rossabi Black, P.A., Greensboro, NC, for Defendants.

MEMORANDUM OPINION

BULLOCK, District Judge.

FACTS

Plaintiffs Alicia M. Yarborough, Alicia M. Marsh and Ashley C. Yarborough ("Plaintiffs") are African-Americans who were employed in 2003 at the Burger King restaurant in Siler City, North Carolina. Plaintiffs filed an EEOC complaint against Defendant Sandhills Foods, Inc., alleging discrimination in violation of Title VII of the Civil Rights Act.² The EEOC mailed Plaintiffs and their counsel a Dismissal and Notice of Rights letter on June 25, 2004, stating, "You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; or your right to sue based on this charge will be lost." (Compl.Ex. A.) There is no evidence in the record to establish when Plaintiffs or their lawyer received the notice. However, Plaintiffs admit "the 90-Day period of time for Plaintiffs filing a complaint expired on September 27, 2004." (Mot. for Ext. of Time ¶ 3.) Defendants do not dispute Plaintiffs' calculation of the deadline.

On September 29, 2004, Plaintiffs filed their complaint in this court alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), the "Equal Pay Act of 1964," and state law. On the same date, Plaintiffs filed a Motion for Extension of Time to File Complaint. That motion stated, "Plaintiffs' Attorney, James L. Griffin has been and still is, severely ill with Chronic Obstructive Pulmonary Disease (COPD) from approximately September 12, 2004." (Mot. for Ext. Time ¶ 4.) Plaintiffs further explained that Mr. Griffin "was recently admitted to the hospital for intensive treatment in Chapel Hill, NC since Wednesday, September 22, 2004," and was discharged "on the afternoon of September 27, 2004." (Mot. for Ext. Time ¶¶ 5-6.) Finally, it states Mr. Griffin's illness has "caused him to be unable to continue his normal work and duties as Attorney of Record for this case" and "Plaintiffs are filing their complaint as if it were a pro se filing at this time." (Mot. for Ext. Time ¶¶ 9-10.) Nevertheless, Mr. Griffin signed the late pleadings as Plaintiffs' attorney of record.

On April 27, 2005, Defendants³ filed a motion to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Defendants argue that because the complaint was not filed within ninety (90) days of Plaintiffs' receipt of the EEOC notice as required by 42 U.S.C. § 2000e-5(f)(1), this court lacks subject matter jurisdiction over the Title VII claims and the complaint fails to state a claim upon which relief can be granted. They further argue that Plaintiffs have not stated a claim under the Equal Pay Act. Defendants urge this court to dismiss the federal claims pursuant to Rule 12 and the pendent state claims pursuant to 28 U.S.C. § 1367(c)(3).

On May 20, 2005, Plaintiffs filed a response to Defendants' motion to dismiss, which offered further explanation of Mr. Griffin's illness.⁴ Plaintiffs admitted that Mr. Griffin "had been experiencing several chest/lung/breathing problems over the summer of 2004 with increasing frequency" and that, in the weeks preceding Mr. Griffin's hospitalization, "he had cut back his work schedule considerably." (Pls.' Resp. to Mot. to Dismiss, p. 2.)⁵ On the same day, Plaintiffs filed a Motion for Leave to Amend the Amended Complaint,⁶ seeking to dismiss Burger King Corporation, "clarify the relief sought and against whom relief is sought," and "add an[] additional count against Defendant Michael Howard." (Resp. to Def. Howard's Mot. in Opp'n to Pls.' Mot. to Amend Compl., pp. 2-3.)

This matter is now before the court on Plaintiffs' Motion for Extension of Time to File Complaint, Defendants' Motion to Dismiss, Defendant Howard's Motion to Dismiss, and Plaintiffs' Motion for Leave to Amend the Amended Complaint. For the following reasons, the court will deny Plaintiffs' Motion for Extension of Time and grant Defendants' Motions to Dismiss. Plaintiffs' Motion for Leave to Amend the Amended Complaint will be rendered moot.

DISCUSSION

I. Title VII Claims Dismissed

Plaintiffs admit they filed their action late. They seek to avoid the consequences of that lapse by having this court apply the equitable remedy of tolling. It is the court's duty to strictly uphold the time limitations set forth by Congress and to apply equitable tolling only "sparingly." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). "Procedural 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, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).

In the Fourth Circuit, equitable tolling is applied in two distinct kinds of situations: (1) where plaintiffs were prevented from asserting their claims by some wrongful conduct by the defendant, and (2) where "extraordinary circumstances beyond the plaintiffs' control made it impossible to file the claims on time." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000). Plaintiffs here attempt to fit their case into the second situation. However, the difficulties presented by Mr. Griffin's illness did not make it "impossible" for Plaintiffs to file on time and equitable tolling is not appropriate.

Plaintiffs' admission that Mr. Griffin's illness was worsening throughout the summer of 2004 shows that he and the Plaintiffs were on notice that his health was not good. Plaintiffs procrastinated in filing suit, despite Mr. Griffin's worsening illness, and simply ran out of time. Counsel's failure to initiate suit timely or find substitute counsel for Plaintiffs cannot be overlooked. Similarly, Plaintiffs cannot escape the consequences of their decision to continue to rely on Mr. Griffin to represent them.

Illness is rarely valid grounds for the application of equitable tolling. Wells v. Christian Hosp., 110 Fed.Appx. 738, 739, 2004 WL 2291382 (8th Cir.2004) (neither plaintiff's illness nor his lack of counsel justifies equitable tolling of limitations period in ADA suit); Modrowski v. Mote, 322 F.3d 965, 966, 968 (7th Cir.2003) (affirming district court's rejection of tolling argument where counsel claimed "a series of physical and mental ailments prevented him" from filing on time); United States v. Taylor, 22 Fed.Appx. 226, 227, 2001 WL 1545911 (4th Cir.2001) (untimely and conclusory allegations of illness are insufficient to equitably toll the statute of limitations) (citing Harris); Kramar v. Aramark Corr. Servs. Inc, 242 F.3d 366, 2000 WL 1843219, at *1 (2d Cir.2000) (no equitable tolling where plaintiff's poor health made timely filing difficult, but did not prevent it); Gruber v. Unum Life Ins. Co. of Am., 195 F.Supp.2d 711, 716 (D.Md. 2002) (attorney illness and hospitalization no excuse for late filing). Permitting illnesses to trump statutory time limitations would set dangerous precedents and would likely disrupt the efficient administration of justice.

Moreover, Plaintiffs themselves had the EEOC notice, which clearly set forth the ninety-day deadline. "The ninety day notice period itself is clear evidence that Congress intended to require claimants to act expeditiously, without unnecessary delay." Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987). Plaintiffs could and should have been diligent in their efforts to ensure their complaint was filed on time. Baldwin County, 466 U.S. at 151, 104 S.Ct. 1723 ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence."); Chao v. Virginia Dep't of Transp., 291 F.3d 276, 283 (4th Cir.2002) ("Equitable tolling is not appropriate ... `where the claimant failed to exercise due diligence in preserving his legal rights.'") (citingIrwin, 498 U.S. at 96, 111 S.Ct. 453); Cantrell v. Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1180 (6th Cir.1995).

There is no doubt that Mr. Griffin's hospitalization made it more difficult for Plaintiffs to file on time, but not "impossible." There is no evidence that any of the three Plaintiffs were ill or otherwise incapacitated. They were not required to rely on Mr. Griffin to represent them. But having so chosen, they are bound by his actions and "equity will not disadvantage one party, who is entitled to rely on the mandated appeals procedures, in order to mitigate the negligence of the other party's freely-chosen attorney." Gayle v. United Parcel Serv., Inc., 401 F.3d 222, 227 (4th Cir.2005) ("Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent ....") (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)); Modrowski, 322 F.3d at 968 ("attorney misconduct, whether labeled negligent, grossly negligent, or willful, is attributable to the client").

There is no evidence in the record to show...