Gallo v. Dillard's Inc

Filing 14

ORDER DISMISSING CASE with prejudice and granting Dillard's motion to dismiss. The motion to appoint counsel is denied as moot. Signed by Judge D. P. Marshall Jr. on 10/11/11. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PLAINTIFF

DANIEL GALLO
I

v.

No.4:11-cv-640-DPM

DEFENDANT

DILLARD'S, INC.

ORDER

Gallo's Title VII complaint against Dillard's is dismissed as time barred.
Despite the clear warning in the EEOC's "Notice of Right to Sue" letter that
Gallo received on 14 May 2011, he did not file this lawsuit within the statutory
ninety-day period. 42 U.s.C. § 2000e-5(f)(1). Although this limitation period
may be tolled in"appropriate circumstances," Hill v. John Chezik Imports, 869
F.2d 1122, 1124 (8th Cir. 1989), none of the recognized circumstances that may
warrant tolling are present here. E.g., Hallgren v. United States Department of

Energy, 331 F.3d 588, 590 (8th Cir. 2003) (an ADEA case). As Gallo's response
to the motion to dismiss reveals, he knew about his ninety-day window and
no circumstances"out of his hands" caused him to miss that deadline. Ibid.

Dillard's nlotion to dismiss, Document No.9, is therefore granted; Gallo's
untimely complaint is dismissed with prejudice. The motion to appoint
counsel, Document No. 11, is denied as moot.
So Ordered.

D.P. Marshall Jr.

United States District Judge

11 October 2011

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