Strickland v. Immeil

Filing 26

ORDER that Defendant GE Capital Retail Bank's Motion to Dismiss 12 , which the Court converted to a motion for summary judgment 22 , is GRANTED. The Clerk shall enter judgment in favor of Defendant and terminate this action. Signed by Magistrate Judge Bridget S Bade on 5/1/2015. (ACL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Earl Strickland,
Plaintiff,

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ORDER

v.

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No. CV-14-02774-PHX-BSB

GE Capital Retail Bank,

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Defendant.

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In this employment action, Plaintiff Robert Earl Strickland alleges that Defendant

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GE Capital Bank (GECRB or Defendant)1 violated the Americans with Disabilities Act

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(ADA), 42 U.S.C. § 12101-12103. (Doc. 9.) Specifically, in the Amended Complaint,

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Plaintiff alleges that GECRB violated the ADA by issuing him a corrective action notice

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on December 23, 2013 based on his alleged disability, diabetes mellitus.2 (Doc. 9 at 4-6.)

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On March 4, 2015, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil

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Procedure 12(b)(6) arguing two reasons why the Court should dismiss the Amended

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Complaint. (Doc. 12.) First, Defendant argues that the Amended Complaint fails to state

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claim for which relief can be granted because Plaintiff released all claims he may have

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Defendant clarifies that it is correctly identified as Synchrony Bank, f/k/a GE
Capital Retail Bank. (Doc. 12 at 1.)
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On February 3, 2015, the Court dismissed Plaintiff’s claim based on
Defendant’s alleged failure to hire him for a particular position in 2012. (Doc. 10 at 5-6.)
Accordingly, the only remaining claim is Plaintiff’s claim that Defendant discriminated
against him in violation of the ADA by issuing a corrective action in December 2013.
(Id. at 5.)

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had against Defendant when he executed a release in exchange for a layoff benefit

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payment. (Id. at 1-2.) Second, Defendant argues that Plaintiff fails to state a claim

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because his ADA claim is time barred. (Id.) Specifically, Defendant argues the Court

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should dismiss Plaintiff’s ADA claim because Plaintiff did not file suit within ninety days

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of receiving his right-to-sue notice. (Id.)

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On March 19, 2015, Plaintiff filed a response in opposition to Defendant’s motion.

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(Doc. 18.) Plaintiff does not dispute that he signed a release. (Doc. 18 at 2.) Rather, he

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argues that he was forced to sign the release to receive lay off pay. (Id.) Second,

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Plaintiff argues that this action was timely filed because he did not receive the right-to-

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sue notice until September 30, 2014. (Id.) Defendant filed a reply in support of its

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motion to dismiss. (Doc. 21.) Plaintiff then filed a supplemental response to Defendants’

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motion.3 (Doc. 23.)

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After reviewing the parties’ filings, on April 17, 2015, the Court converted the

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motion to dismiss to a motion for summary judgment under Rule 56. (Doc. 22.) The

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Court gave the parties until April 24, 2015 to file supplemental materials relevant to the

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motion for summary judgment. (Id.) On April 23, 2015, Plaintiff filed a response to the

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Court’s order and asserted that he stated a claim for which relief can be granted and

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established that the Court has jurisdiction over his claims. (Doc. 24.) Defendant did not

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file any additional materials in response to the April 23, 2015 Order. As discussed

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below, the Court finds that this action is timely, but grants Defendant’s motion and

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dismisses this action with prejudice because Plaintiff released his claims.4

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I.

Summary Judgment Standard

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Plaintiff did not request permission to file a supplemental response. However,
Defendant did not object to that filing and the Court will consider it.
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The parties consented to magistrate judge jurisdiction pursuant to 28
U.S.C. § 636(c). (Docs. 7, 16, 17.)
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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and that the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the

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outcome of the suit will preclude the entry of summary judgment, and the disputed

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evidence must be “such that a reasonable jury could return a verdict for the nonmoving

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party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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II.

Background

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Defendant provides financing services; Plaintiff worked for Defendant as a

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collection representative. (Doc. 9 at 3; Doc. 12 at 2.) Plaintiff alleges that Defendant

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discriminated against him by issuing him a corrective action on December 23, 2013 based

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on his disability. (Doc. 9 at 4-6.) He asserts that because of the corrective action he

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could not apply for another position with Defendant after a layoff was announced a week

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later and, therefore, he was forced into unemployment. (Id. at 4.)

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On December 31, 2013, Defendant notified Plaintiff that the collection department

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was being relocated and that his job was being eliminated. (Doc. 9 at 4; Doc. 12 at 3,

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Exs. 1, 2.) On January 15, 2014, Defendant offered Plaintiff a “Layoff Benefit” and

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presented him with a release. (Doc. 12, Ex. 2.) On March 12, 2014, Plaintiff executed

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the release. (Id.) In exchange for executing the release, Plaintiff received the “Layoff

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Benefit,” or a severance payment, of approximately six weeks’ pay. (Doc. 12, Ex. 1, 2.)

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Plaintiff also received subsidized insurance benefits for a total of six months. (Id.)

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Plaintiff’s signed release includes an agreement to “waive and release all waivable claims

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of any kind (whether known or unknown, to the fullest extent permitted by

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law) . . . which arise from or relate to [his] employment and/or the termination of [his]

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employment with the Company.”5 (Doc. 12, Ex. 2.) Plaintiff also agreed that the claims

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he was releasing include “any and all claims of discrimination . . . on the basis

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of . . . disability.” Id.

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The Notice of Layoff includes this same language. (Doc. 12, Ex. 1.)
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According to his Amended Complaint, on September 11, 2014, Plaintiff filed a

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charge of discrimination with the Equal Employment Opportunity Commission (EEOC)

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alleging disability discrimination. (Doc. 9 at 2.) In the Amended Complaint, Plaintiff

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alleges that the EEOC dismissed his charge and that he received his ninety-day right-to-

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sue notice on September 24, 2014. (Id. at 3.) However, in his response and supplemental

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response, Plaintiff alleges that he received the right-to-sue notice on September 30, 2014.

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(Docs. 18 at 2; Doc. 23 at 1.)

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III.

Timeliness of Plaintiff’s ADA Claim

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Defendant argues that the Court should dismiss this action because Plaintiff’s

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ADA claim is time-barred. (Doc. 12 at 5.) Plaintiff argues that this action was timely

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filed because he received his right-to-sue notice on September 30, 2014. (Docs. 18, 23.)

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The federal limitations period for bringing an ADA claim is ninety days from the

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receipt of a right-to-sue notice from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (Title VII

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limitations period is ninety days); 29 U.S.C. § 626(e) (ADEA limitations period is ninety

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days); 42 U.S.C. § 12217(a) (ADA limitations period is borrowed from Title VII actions,

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which is ninety days). If a litigant does not file suit within ninety days, the claim is time-

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barred.

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(recognizing that the ninety-day period is a statute of limitations); Scholar v. Pacific Bell,

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963 F.2d 264, 267 (9th Cir. 1992) (holding that the requirement of filing a civil action

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within ninety days from the date the EEOC dismisses a claim constitutes a statute of

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limitations); Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990)

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(citing 42 U.S.C. § 2000e-5(f)(1)). This limitations period is enforced strictly against pro

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se and represented litigants. Payan v. Aramark Mgmt. Servs. Ltd. P’Ship., 495 F.3d

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1119, 1127 (9th Cir. 2007); see also Baldwin Cnty. Welcome Cntr. v. Brown, 466 U.S.

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147, 150 (1984) (dismissing a pro se Title VII complaint filed outside of limitations

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period). Because the statute of limitations is an affirmative defense, Defendant bears the

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burden of proving that Plaintiff filed his ADA claim beyond the limitations period. See

See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997)

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Tovar v. U.S.P.S., 3 F.3d 1271, 1284 (9th Cir. 1993) (“In every civil case, the defendant

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bears the burden of proof as to each element of an affirmative defense.”).

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In the Amended Complaint, Plaintiff states that he received the right-to-sue notice

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on September 24, 2014. (Doc. 9 at 3.) Defendant argues that the cause of action is

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untimely because it was filed on December 29, 2014, more than ninety days after Plaintiff

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received the notice of right to sue. (Doc. 12 at 5-6.) In response to Defendant’s motion,

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Plaintiff argues that he received the right-to-sue notice on September 30, 2014, which

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would make his lawsuit timely filed on the last day of the limitations period. (Doc. 18 at

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2; Doc. 23 at 1.) Plaintiff attaches the right-to-sue notice to his response. (Doc. 18-1 at

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2-3.) The notice indicates that it was mailed on September 24, 2014. (Id.) Defendant

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argues that Plaintiff’s cause of action is untimely because Plaintiff is presumed to have

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received the right-to-sue notice within three days of mailing, or on September 27, 2014.

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(Doc. 21 at 3 (citing Payan, 495 F.3d at 1125).)

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In the Ninth Circuit, when a claimant does not dispute receipt of a right-to-sue

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notice from the EEOC, the notice is presumed to have arrived three days after it was

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mailed. See Payan, 495 F.3d at 1125-26. However, the three-day presumption can be

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rebutted with “evidence suggesting that the receipt was delayed beyond the presumed

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period.” Id at 1126. However, “general claims that mail is sometimes delayed” and

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unsupported conjecture does are not sufficient to rebut the presumption. Id. at 1126; see

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also Gonzales v. Harrah’s Operating Co., Inc., 2013 WL 6284172, at *5 (D. Nev. Dec. 4,

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2013) (general allegations about weather and mail delivery during winter months was

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insufficient to rebut the three-day presumption). Rather, to rebut that presumption, a

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plaintiff must establish that he “did not receive the EEOC’s right-to-sue letter in the

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ordinary course.” Payan, 495 F.3d at 1126. In Payan, the court found that the plaintiff

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did not rebut the three-day receipt presumption because she merely claimed that mail was

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sometimes delayed. Id. at 1127. There, the court held that the plaintiff’s claim was

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barred by the ninety-day limitations period because she filed her lawsuit three days late.

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Id.

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In his response and supplemental response, Plaintiff asserts that the delivery of the

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right-to-sue notice was delayed because he moved to a new apartment complex in July or

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August 2014 and the post office had trouble rerouting mail to that apartment complex.

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(Doc. 18 at 2; Doc. 23 at 1.) Plaintiff explains he was one of the first tenants to move

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into the new apartment complex and that the complex mailing address was not

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recognized by the post office for at least four months.6 (Doc. 23 at 1.) He states that the

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City of Chandler made a mistake regarding the zip code that was to be assigned to the

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complex. (Id.) To support that assertion, Plaintiff submitted an October 2014 email

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exchange between Laura Habetler, the community manager at Avilla Rental Homes at

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901 S. Alma School Road in Chandler, Arizona, and Ernest Brunetto with Meb

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management services. (Doc. 23 at 4.) The email exchange states that “due to a special

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adjustment on route C011, the entire zip code has been locked. This will prevent us from

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inputting the individual apartment addresses at 901 S. Alma School [and] 900 S. Alma

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School.” (Id.) A November 7, 2014 e-mail states that Brunetto added the units at 901

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Alma School Road to the database and that “[t]hey will be in [the] carriers’ delivery

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starting Monday.” (Doc. 23 at 5.) Plaintiff argues that, considering the problems with

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the zip code at his new apartment complex, the presumption that he received the right-to-

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sue notice within three days of mailing date should not apply. (Doc. 23 at 1.)

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Unlike Payan, Plaintiff’s description of the mail problems at his new apartment

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complex is not a “general claim[] that mail is sometimes delayed.” See Payan, 495 F.3d

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at 1126. Rather, it is based on specific mail-delivery issues related to the zip code for his

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new apartment complex. Thus, the Court finds that Plaintiff has presented “evidence

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suggesting that the receipt was delayed beyond the presumed period,” and finds this

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action timely filed. Accordingly, the Court rejects Defendant’s argument that this action

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should be dismissed as untimely.

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The docket reflects that Plaintiff’s mailing address is 901 S. Alma School Road,
Unit 13, Chandler, Arizona 85224.
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IV.

Plaintiff Released his ADA Claim

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To support its motion for summary judgment, Defendant also asserts that

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Plaintiff’s ADA claim fails because he waived and released his right to bring all

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employment claims, including an ADA claim. (Doc. 12 at 4.) Plaintiff does not dispute

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that he signed a release or that the release waived his right to bring his ADA claim.

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(Doc. 18 at 2, Doc. 23, Doc. 24.) Rather, he argues that he was forced to sign the release.

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(Doc. 18 at 2.) He also argues that the release should not apply because his suit is based

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on disability discrimination, not poor performance or “breaking contracts.” (Id.) As

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discussed below, the Court finds that the release applied to Plaintiff’s ADA claims, there

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is no genuine issue regarding whether Plaintiff was forced to sign the release, and

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Plaintiff executed the release, which released Plaintiff’s ADA claim asserted in this

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action.

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A.

The Release

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The legal authority Defendant cites supports the conclusion that Plaintiff’s release

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waived his ADA claim. “[T]here is a compelling public interest and policy in upholding

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and enforcing settlement agreements voluntarily entered into.” Bianchi v. Perry, 140

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F.3d 1294, 1297 (9th Cir. 1998) (quoting Bank of Am. Nat’l Trust & Sav. Ass’n v. United

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States, 23 F.3d 380, 383 (Fed. Cir. 1994)). Consistent with that policy, courts within the

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Ninth Circuit enforce agreements that waive and release ADA claims. See Pardi v.

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Kaiser Found. Hosps., 389 F.3d 840 (9th Cir. 2004) (holding that the settlement

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agreement executed by the plaintiff waived his ADA claim); Sowell v. Freescale

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Semiconductor, Inc., 2008 WL 2941269, at *6-7 (D. Ariz. Jul. 25, 2008) (holding that the

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plaintiff’s ADA and Title VII claims were barred by a release signed as part of a

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severance package, and recognizing that public policy favors voluntary settlement of

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employment discrimination claims brought under federal statutes).

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In Pardi, the Ninth Circuit enforced a settlement agreement between an employer

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and a former employee. Pardi, 389 F.3d at 848. Pursuant to the settlement agreement,

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the former employee released all claims for actions that occurred during his employment.

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Id. Specifically, the former employee released “all claims arising from [his] employment

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with [employer] prior to the date of his execution of the Settlement Agreement, including

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but not limited to, individual claims under federal, state, or local laws prohibiting

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employment discrimination and any claim for attorneys’ fees.” Id. at 846. The Ninth

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Circuit rejected the former employee’s claim that the settlement agreement was invalid,

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and affirmed the district court’s dismissal of claims, including the former employee’s

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ADA claim, which arose before the settlement agreement was executed. Id. at 848.

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Similar to the plaintiff in Pardi, Plaintiff signed a release that waived any and all

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claims that arose from or were related to his employment or the termination of his

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employment with GECRB. (Doc. 12, Ex. 2) The release in this case is more specific

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than the one in Pardi because it states that the release included any and all “claims of

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discrimination . . . on the basis of . . . disability.” (Id at 1.) Thus, the Court rejects

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Plaintiff’s assertion that the release does not apply to his claim of disability

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discrimination. See Dominguez v. BCW, Inc., 99 F. Supp. 2d 1155, 1161 (D. Ariz. 2000)

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(holding that the plaintiff could not assert that her release was uninformed if the claim

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was specifically listed as a released claim).

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Defendant also advised Plaintiff that he should consult with an attorney before

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signing the release, that he had forty-five days to decide whether to sign the release, and

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that he could revoke the release within seven days after signing it. (Doc. 12, Ex. 2 at 2.)

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Plaintiff does not dispute that he signed the release and did not revoke it. In exchange for

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the release, Plaintiff received, among other benefits, a severance payment and subsidized

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insurance benefits.

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effectively released his ADA claim, the Court considers whether Plaintiff was forced to

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sign the release.

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B.

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In his response, Plaintiff argues that he was forced to sign the release to receive

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lay off pay. (Doc. 18 at 2.) Defendant agrees that Plaintiff was required to sign the

(Doc. 12, Ex. 2 at 1; Ex. 1.)

To determine whether Plaintiff

Plaintiff was not Forced to Sign the Release

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release to receive lay off pay. (Doc. 21 at 2.) However, they argue that Plaintiff was not

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forced to sign the release. (Id.)

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The record reflects that on January 15, 2014, Plaintiff was notified that his

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employment would end in sixty calendar days. (Doc. 12, Ex. 1.) At the same time,

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Defendant gave Plaintiff a copy of the release, and informed him that he would be

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required to sign and return it to receive a severance payment. (Doc. 12, Ex. 2.) Plaintiff

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was given forty-five days to consider whether to sign the release. (Doc. 12, Ex. 2 at 2-3.)

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Plaintiff waited fifty-six days before he signed the release on March 12, 2014. (See

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Doc. 12, Ex. 2 at 3.) The release is just over two pages long. (Doc. 12, Ex. 2.) The first

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page of the release describes in plain language the claims it released.

(Id. at 1.)

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Defendant advised Plaintiff to consult with an attorney before signing the release. (Id. at

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2.) Additionally, Plaintiff was permitted to revoke his acceptance of the release within

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seven days of signing it. (Id.) Plaintiff does not allege that he attempted to revoke his

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release.

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After review of the record, the Court finds that Plaintiff has not offered evidence

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sufficient to create a genuine issue of fact regarding his claim that he was forced or

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coerced to sign the release under duress or out of fear of not receiving layoff pay or being

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forced into retirement. (Doc. 18 at 2.); see Stroman v. W. Coast Grocery Co., 884 F.2d

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458, 463 (9th Cir. 1989) (upholding a former employee’s release of all claims and finding

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that there was no evidence whatsoever that the plaintiff was coerced into signing the

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agreement, noting that the plaintiff waited “several days” to sign the agreement and

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finding no evidence that the plaintiff was discouraged or prevented from seeking legal

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advice before signing the release). Because Plaintiff released his ADA claim, Defendant

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is entitled to judgment as a matter of law.

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V.

Conclusion

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Because there is no genuine dispute that Plaintiff released all claims against

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Defendant that arose during his employment, including any claims for disability

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discrimination under the ADA, Defendant is entitled to judgment as a matter of law and

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the Court enters summary judgment in Defendant’s favor.

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Accordingly,

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IT IS ORDERED that Defendant GE Capital Retail Bank’s Motion to Dismiss

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(Doc. 12), which the Court converted to a motion for summary judgment (Doc. 22), is

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GRANTED.

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terminate this action.

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The Clerk of Court shall enter judgment in favor of Defendant and

Dated this 1st day of May, 2015.

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