Racy v. Department of Agriculture

Filing 30

OPINION AND ORDER granting the USDA's 23 motion to dismiss, or in the alternative motion for summary judgment. This action is dismissed with prejudice. Signed by Judge J. Leon Holmes on 6/21/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PHYLLIS D. RACY

PLAINTIFF

v.

No. 5:15cv00292-JLH

UNITED STATES DEPARTMENT
OF AGRICULTURE

DEFENDANT

OPINION AND ORDER
Phyllis D. Racy brings this action pro se pursuant to Title VII of the Civil Rights Act of 1964
against the United States Department of Agriculture alleging that she was discriminated against on
the basis of race when she was denied employment as a Program Technician, first in November 2012
and again in December 2012. The Court has jurisdiction over the matter under 42 U.S.C. § 2000e-5.
The USDA has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or
in the alternative a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Document #23. Because the USDA presented matters outside the pleadings, the Court treated the
motion as a motion for summary judgment and gave Racy the opportunity to respond with evidence.
Document #28. Racy filed a response, but submitted no evidence. Document #29. For the
following reasons, the USDA’s motion for summary judgment is granted.
A court should enter summary judgment if the evidence, viewed in the light most favorable
to the nonmoving party, demonstrates that there is no genuine dispute as to any material fact and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute

of material fact exists only if the evidence is sufficient to allow a jury to return a verdict for the
nonmoving party. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.
Racy filed charges with the Equal Employment Opportunity Commission (“EEOC”) on
March 11, 2013. Document #18. An administrative judge issued an order dismissing the charges
on May 28, 2015. Id. The EEOC then issued its final decision fully implementing the administrative
judge’s order on June 9, 2015. Document #18; Document #24-1; Document #24-2. The USDA
submitted to the Court a certified mail receipt demonstrating that Racy received the final decision
on June 13, 2015. Document #24-2. The EEOC informed Racy that if she chose to file a civil action
in federal district court, she had to do so within ninety calendar days of the date she received the final
action by the EEOC. Id. at 3; 29 C.F.R. § 1614.407. The last day for her to file a civil action in
federal court was September 11, 2015. But Racy did not commence this civil action until
September 15, 2015, ninety-four calendar days from the date she received the final action by the
EEOC. Document #2. Therefore, the undisputed facts show that Racy’s action is untimely. See
Hallgren v. United States Dep’t of Energy, 331 F.3d 588, 590 (8th Cir. 2003).
Though the time limit for filing a civil action is subject to equitable tolling, “[e]quitable
tolling is appropriate only when the circumstances that cause a plaintiff to miss a filing deadline are
out of [her] hands.” Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir. 1990). Racy has not
argued, nor has she provided the Court with any evidence, that circumstances beyond her control
caused her to miss the deadline. See Document #29.1 Lack of legal knowledge or legal resources
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Instead of responding to the USDA’s arguments or providing evidence pertinent to the
motion for summary judgment, Racy has repeatedly requested that the Court appoint counsel.
Document #18; Document #27; Document #29. “[T]here is no automatic right to the appointment
of counsel in a Title VII case.” Slaughter v. City of Maplewood, 731 F.2d 587, 590 (8th Cir. 1984).
While 42 U.S.C. § 2000e-5(f)(1) provides that the Court may appoint counsel, nothing in the record
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does not warrant equitable tolling. See Shoemate v. Norris, 390 F.3d 595, 597 (8th Cir. 2004).
Nothing in the record indicates that Racy did not control the timing of the civil action filed in this
Court. It is unfortunate that she only missed the deadline by four days, but “[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 Cnty. Welcome Ctr.
v. Brown, 466 U.S. 147, 152, 104 S. Ct. 1723, 1726, 80 L. Ed. 2d 196 (1984) (per curiam).
CONCLUSION
For the foregoing reasons, the USDA’s motion to dismiss, or in the alternative motion for
summary judgment, Document #23, is GRANTED. This action is dismissed with prejudice.
IT IS SO ORDERED this 21st day of June, 2016.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

demonstrates that Racy lacks the final resources to secure counsel, that she has tried to secure
counsel but failed, or that her discrimination claim has merit. Id.
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