Rogers v. Makof et al

Filing 36

ORDER granting 18 Motion to Dismiss. As set forth in greater detail in this ruling, Defendants' motion to dismiss is GRANTED without prejudice to Plaintiff's filing an amended complaint on or before June 12, 2014, stating facts and dates sufficient to show that his complaint is not time-barred. If no amended complaint is filed on or before June 12, 2014, the Clerk is directed to close this case. Also, the Clerk is directed to amend the docket report of this case to reflect the correct names of Defendants. Signed by Judge Jeffrey A. Meyer on 5/12/2014.(Norman, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WILLIAM ROGERS,
Plaintiff,
v.

No. 3:13-cv-00946 (JAM)

NAIF MAKOL, SKOOTERS
RESTAURANT II, INC.,
Defendants.

RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. # 18]
Plaintiff William Rogers, pro se, brings this action against defendants Skooter’s
Restaurant II, Inc., and its alleged owner, Naif Makol,1 for violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”). Defendants move to dismiss the case on the
ground that plaintiff’s claims are time-barred because of his failure to timely file a charge of
discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”). I agree
and therefore grant the motion to dismiss, subject to 30 days leave for plaintiff to file an
amended complaint.
Background
On July 3, 2013, plaintiff filed a complaint alleging that defendants violated Title VII and
the ADA by discriminating against him on the basis of his race, color, and disability. See Doc. #
1. The complaint alleges that on September 24, 2011, defendants failed to promote him and
terminated his employment. Id. at 2. The complaint further alleges that on some unspecified date

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Defendants state that the complaint has misspelled their names and that their correct legal names are Naif
Makol and Skooter’s Restaurant II, Inc.; the Clerk is directed to amend the docket report of this case to correct the

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defendants conducted a criminal background check without his authorization or consent. Id. at 3.
Plaintiff attached to his complaint a letter dated February 20, 2013, to the EEOC and to
the Connecticut Commission on Human Rights and Opportunities (“CHRO”). See id. at 7–8. The
letter claims in part that defendants discriminated against him “because of my race and learning
disability.” Id. at 7. It describes how he was demoted from serving as the restaurant’s assistant
manager to short order cook and subject to an unauthorized criminal background check, prior to
no longer working at the restaurant after a driving mishap prevented him from reporting to work
on September 23, 2011. On April 18, 2013, the EEOC issued a “Dismissal and Notice of Rights”
letter, informing plaintiff that his charge was not timely filed. See id. at 9.
Discussion
Defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss this action on the ground
that it is barred by the statute of limitations. The background rules for this Court’s consideration
of a Rule 12(b)(6) motion are well established. First, the Court must accept as true all factual
matters alleged in a complaint, although a complaint may not survive a Rule 12(b)(6) motion to
dismiss unless its factual recitations state at least a plausible claim for relief. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662, 678–680 (2009); Rinehart v. Akers, 722 F.3d 137, 144 (2d Cir. 2013).
Second, a pro se plaintiff’s complaint should be construed liberally and interpreted to raise the
strongest arguments that its wording suggests. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63 (2d
Cir. 2014); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013). Finally, the Court may consider
documents attached to a complaint in deciding a motion to dismiss. See, e.g., City of Pontiac
Policemen’s and Firemen’s Ret. Sys. v. UBS AG, __ F.3d __, No. 12-4355-CV, 2014 WL
1778041 at *2 (2d Cir. May 6, 2014); Kalyanaram v. Am. Ass’n of Univ. Professors at the New
York Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014).

names of defendants.

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A prerequisite to the filing of an action under Title VII or the ADA is the timely filing of
a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1) (Title VII time limit);
42 U.S.C. § 12117(a) (incorporating this Title VII provision into the ADA statutory scheme).
In a state [such as Connecticut] that has an entity [the CHRO] with the authority
to grant or seek relief with respect to the alleged unlawful practice, an employee
who initially files a grievance with that agency must file the charge with the
EEOC within 300 days of the employment practice; in all other States, the charge
must be filed within 180 days.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). These time limits, however,
are not jurisdictional and are subject in rare cases to equitable doctrines such as tolling or
estoppel. Id. at 113; see also Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80–
81 (2d Cir. 2003) (describing application of equitable tolling limits in Title VII and ADA
context).
Here, the complaint alleges that plaintiff was terminated from his employment on
September 24, 2011, far more than 300 days before February 20, 2013, when it appears that
plaintiff first filed his charge with the EEOC. Yet plaintiff claims in his attached letter to the
EEOC and in his memorandum opposing defendants’ motion to dismiss that, although he
stopped working for defendants beginning on September 24, 2011, he remained in a position of
“on call” status until July 30, 2012.2 If plaintiff remained “on call,” and his employment did not
legally terminate until July 2012, then his filing with the EEOC in February 2013 would not
appear to be time-barred.
Still, the face of plaintiff’s complaint alleges that he was terminated on September 24,
2011. Therefore, I will dismiss the complaint but without prejudice to plaintiff filing an amended
complaint within 30 days if plaintiff has a good faith factual basis to plead with specificity a date

2

Plaintiff also states that he filed an intake questionnaire with the EEOC on December 10, 2012, but this
action would not possibly make his action timely, as this date was more than 300 days later than September 24,

3

of termination that is not time-barred. See Nielsen, 746 F.3d at 62 (“‘A pro se complaint should
not be dismissed without the Court granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated.’”) (quoting Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).3
Defendants’ motion to dismiss is GRANTED without prejudice to plaintiff’s filing an
amended complaint on or before June 12, 2014, stating facts and dates sufficient to show that his
complaint is not time-barred. This 30-day time period will not be extended. If no amended
complaint is filed on or before June 12, 2014, the Clerk is directed to close this case.
It is so ordered.
Dated at Bridgeport this 12th day of May 2014.

/s/
Jeffrey Alker Meyer
United States District Judge

2011.
3

If defendants have evidence establishing that the date of plaintiff’s termination from employment was
September 24, 2011, then this evidence may properly be considered in connection with any motion under Fed. R.
Civ. P. 56 for summary judgment.

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