Humphrey v. Morgan County Commission
MEMORANDUM OPINION AND ORDER that the defendant's Motion to Dismiss is DENIED and Defendant must file an answer to plaintiff's complaint within 14 days of the date of this order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/1/2013. (AHI)
2013 Apr-01 AM 10:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Civil Action No. CV-12-S-2968-NE
MEMORANDUM OPINION AND ORDER
Plaintiff, Martha Humphrey, asserts claims against her former employer, the
Morgan County Commission, for gender discrimination under Title VII of the Civil
Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq., and age
discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. § 621 et seq.1 The case currently is before the court on defendant’s motion
to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).2
Upon consideration of the motion and plaintiff’s response,3 the court concludes that
the motion is due to be denied.
See doc. no. 1 (Complaint).
Doc. no. 10.
Doc. no. 14.
Defendant first asserts that plaintiff’s complaint was untimely because it was
not filed within ninety (90) days of her receipt of a right to sue letter from the Equal
Employment Opportunity Commission (“EEOC”).
A plaintiff asserting a
discrimination claim under the ADEA must file suit “within 90 days after the date of
the receipt” of a notice from the EEOC of the dismissal or other termination of
administrative proceedings. 29 U.S.C. § 626(e). Similarly, a Title VII plaintiff must
file suit “within ninety days after the giving of . . . notice” that the plaintiff’s charge
of discrimination has been dismissed by the EEOC. 42 U.S.C. § 2000e-5(f)(1). See
also Santini v. Cleveland Clinic Florida, 232 F.3d 823, 825 (11th Cir. 2000) (citing
Zillyette v. Capital One Financial Corp., 179 F.3d 1337, 1339-41 (11th Cir. 1999))
(“Title VII and ADEA actions may not be brought more than 90 days after a
complainant has adequate notice that the EEOC has dismissed the Charge.”). The
plaintiff “has the initial burden of establishing that he filed his Complaint within
ninety days of his receipt of the EEOC’s right-to-sue letter.” Green v. Union Foundry
Co., 281 F.3d 1231, 1333-34 (11th Cir. 2002) (citing 42 U.S.C. § 2000e-5(f)(1);
Santini, 232 F.3d at 825). If the defendant disputes whether the plaintiff has satisfied
this burden, “the plaintiff has the burden of establishing that he met the ninety day
filing requirement.” Green, 281 F.3d at 1334 (citing Jackson v. Seaboard Coast Line
R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982)). As the cases cited above make clear,
the ninety-day filing period begins to run on the date the plaintiff receives the right
to sue letter, not the date on which the EEOC sends the letter.
In the present case, the EEOC sent plaintiff a Dismissal and Notice of Rights
letter (i.e., a “right to sue” letter) on May 25, 2012.4 Plaintiff did not file this lawsuit
until September 13, 2012, or 112 days after the right to sue letter was sent.5 Thus,
defendant has questioned whether plaintiff has complied with the ninety-day filing
requirement, and the burden shifts to plaintiff to establish that she did in fact meet
that requirement. She has done so by submitting both her own affidavit and the
affidavit of her former attorney, Gregg Smith. Plaintiff states in her affidavit that she
personally “never received a Right to Sue Letter or similar notification from the Equal
Employment Opportunity Commission, or anyone or anything associated with it.”6
Mr. Smith, who represented claimant during the relevant time period, states in his
affidavit that he did not receive a copy of the EEOC’s right to sue letter until June 30,
2012, despite the fact that the letter was dated May 25, 2012.7 These sworn
statements, which have not been controverted by defendant, establish that plaintiff did
not receive a copy of the right to sue letter until June 30, 2012, which is only seventy-
See doc. no. 10, at Exhibit 1.
Doc. no. 14, Exhibit 1 (Affidavit of Martha Humphrey), at 1.
Doc. no. 14, Exhibit 2 (Affidavit of Gregg Smith) ¶ 4.
six days before plaintiff’s complaint was filed on September 13, 2012. Accordingly,
plaintiff’s ADEA and Title VII claims will not be dismissed as untimely.
II. SERVICE OF PROCESS
Defendant also asserts that plaintiff’s complaint should be dismissed, pursuant
to Federal Rule of Civil Procedure 4(m), because plaintiff did not effect service of
process upon defendant within 120 days of filing her complaint.8 That argument is
without merit, because the court already has allowed plaintiff an extension of time
until April 19, 2013, to effect service,9 and plaintiff served defendant well within that
extended deadline.10 Accordingly, plaintiff’s complaint will not be dismissed for
failure to timely effect service of process.
III. CONCLUSION AND ORDER
In accordance with the foregoing, it is ORDERED that defendant’s motion to
dismiss is DENIED. Defendant must file an answer to plaintiff’s complaint within
Federal Rule of Civil Procedure 4(m) provides that,
[i]f a defendant is not served within 120 days after the complaint is filed, the
court — on motion or on its own after notice to the plaintiff — must dismiss the
action without prejudice against that defendant or order that service be made within
a specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
Doc. no. 6.
See doc. no. 9 (Return of Service, reflecting service by February 21, 2013, at the latest).
fourteen days of the date of this order, pursuant to Federal Rule of Civil Procedure
DONE this 1st day of April, 2013.
United States District Judge
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