Duffy v. Delaware State University
Filing
15
MEMORANDUM OPINION regarding Motion to Dismiss (D.I. 9 ). Signed by Judge Richard G. Andrews on 12/21/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MAHALA DUFFY,
Plaintiff,
v.
Civil Action No. 16-711-RGA
DELAWARE STATE UNIVERSITY,
Defendant.
Mahala Duffy, Dover, Delaware; Pro Se Plaintiff.
Jennifer C. Bebko Jauffret, Esquire, and Lori Ann Brewington, Esquire, Richards,
Layton & Finger, PA, Wilmington, Delaware, Counsel for Defendant.
MEMORANDUM OPINION
d-l ,
2017
December
Wilmington, Delaware
Plaintiff Mahala Duffy, who proceeds pro se and has been granted leave to
proceed in forma pauperis, filed this action alleging employment discrimination pursuant
to 42 U.S.C. §§ 2000e, et seq. Before the Court is Defendant's motion to dismiss. (D.I.
9). Briefing on the matter is complete.
BACKGROUND
Plaintiff was employed by Defendant until her employment was terminated on
September 28, 2015. (D.I. 2 at p.2). Plaintiff alleges discrimination occurred during her
employment with Defendant by reason of sex and religion and that there was a hostile
work environment and the termination of her employment. (Id. at 2-3).
On July 30, 2015, Plaintiff filed a charge of discrimination with the Delaware
Department of Labor which was simultaneously dual-filed with the Equal Employment
Opportunity Commission. 1 (Id.). The EEOC mailed the notice of suit rights to Plaintiff
on May 9, 2016. (Id. at p.4). The Complaint states that Plaintiff received a notice of
right to sue letter on May 11, 2015. 2 (Id. at p.2). In Plaintiff's opposition to the motion to
dismiss, she states that she received the notice of suit rights on May 12, 2016, via U.S.
mail. (D.I. 11 at 2). Plaintiff's Complaint was signed on August 8, 2016, the envelope it
1
Plaintiff did not provide the Court with a copy of the charge of discrimination even
though the employment discrimination complaint form asks that it be attached to the
complaint. (D.I. 1 at 3).
2
Presumably, the date is May 11, 2016, since Plaintiff did not submit her charge of
discrimination until July 30, 2015, thus making it impossible for Plaintiff to have received
the notice of right to sue before she filed a charge of discrimination.
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was mailed in is postmarked August 10, 2016, and the complaint was received and filed
by the Clerk of Court on August 12, 2016. On September 13, 2016, the Court issued a
service order after screening the Complaint. (D.I. 5).
Defendant moves for dismissal (D.I. 9) pursuant to Fed. R. Civ. P. 12(b)(5) and
(6) on the grounds that: (1) Plaintiff failed to file this action within ninety days of receipt
of the EEOC's notice of suit rights as required by 42 U.S.C. § 2000e-5(f)(1 ); (2)
equitable tolling is not applicable under the circumstances of this case; and (3) the
Complaint and summons were not served on Defendant within ninety days as required
by Fed. R. Civ. P 4(m). (See D.I. 10).
STANDARDS OF LAW
In reviewing a motion filed under Fed. R. Civ. P. 12(b)(6), the court must accept
all factual allegations in a complaint as true and take them in the light most favorable to
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Because Plaintiff proceeds
prose, her pleading is liberally construed and her complaint, "however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson, 551 U.S. at 94. A court may consider the pleadings, public record,
orders, exhibits attached to the complaint, and documents incorporated into the
complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). A Rule 12(b )(6) motion maybe granted only if, accepting the well-pleaded
allegations in the complaint as true and viewing them in the light most favorable to the
complainant, a court concludes that those allegations "could not raise a claim of
entitlement to relief." Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
2
"Though 'detailed factual allegations' are not required, a complaint must do more
than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action.'" Davis v. Abington Mem'I Hosp., 765 F.3d 236, 241 (3d Cir. 2014)
(quoting Twombly, 550 U.S. at 555). I am "not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec.
Litig., 311F.3d198, 216 (3d Cir. 2002). A complaint may not be dismissed, however,
"for imperfect statement of the legal theory supporting the claim asserted." Johnson v.
City of Shelby, 135 S. Ct. 346, 346 (2014).
A complainant must plead facts sufficient to show that a claim has "substantive
plausibility." Id. at 34 7. That plausibility must be found on the face of the complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to draw the reasonable
inference that the [accused] is liable for the misconduct alleged.'' Id. Deciding whether
a claim is plausible will be a "context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'' Id. at 679.
DISCUSSION
Defendant moves for dismissal and contends that more than ninety days passed
from Plaintiff's receipt of the right to sue letter and the filing of the Complaint and,
therefore, she is time-barred from raising her Title VI I claims. Defendant further argues
that Plaintiff's claims are not saved by equitable tolling. Plaintiff responds that the
Complaint was timely filed, relying upon the August 10, 2016 postmark of the mailing
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and the three-day rule set forth in former Fed. R. Civ. P. 6(e) (now Rule 6(d)) 3 . I will
refer to Rule 6(d) and not Rule 6(e) since Rule 6(d) was in effect at the time Plaintiff
commenced this action.
The administrative prerequisites to a discrimination suit, as provided in 42 U.S.C.
§ 2000e-5, require a plaintiff to first lodge a complaint with either the EEOC or the
equivalent state agency responsible for investigating claims of employment
discrimination, which, in Delaware, is the Delaware Department of Labor. See 42
U.S.C. § 2000e-5(e). If the EEOC or equivalent state agency determines not to pursue
a plaintiff's claims and issues a right-to-sue letter, only then may a plaintiff file suit in
court. See 42 U.S.C. § 2000e-5(f)(1 ). Title VII provides that a complainant has ninety
days from the receipt of an EEOC right to sue letter to file an action in court. 4 See 42
U.S.C. § 2000e-5(f)(1); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d
Cir. 1999).
The EEOC issued and mailed its notice of suit rights on May 9, 2016, and it was
received by Plaintiff on either May 11, 2016 (the presumed date in the complaint which
was signed under penalty of perjury as true and correct) or May 12, 2016 (the date
Plaintiff relies upon in her opposition to the motion to dismiss). Giving Plaintiff the
3
In 2007, the language of Rule 6 was amended. Rule 6(e) was eliminated and its
language is now found in Rule 6(d). Rule 6(d) provides as follows: "When a party may
or must act within a specified time after being served and service is made under Rule
5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days
are added after the period would otherwise expire under Rule 6(a)."
4
The notice of suit rights advises the recipient, "Your lawsuit must be filed WITHIN 90
DAYS of your receipt of this notice; or your right to sue based on this charge will be
lost." (D.I. 2 at p.4) (emphasis in original).
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benefit of the doubt, and using the May 12, 2016 date, Plaintiff had until Wednesday,
August 10, 2016 to file her complaint. The instant Complaint was not filed until August
12, 2016, two days past the ninety day limit.
Plaintiff argues, however, that the complaint is timely filed because she sent it by
certified mail on August 10, 2016, which is within the ninety day time frame as
determined by the EEOC letter. She notes that the filing was received by the Court on
August 12, 2016 and the Clerk's Office filed it accordingly. Plaintiff then relies upon
Rule 6(d) to argue that she had three additional days after the ninety day period would
otherwise expire. In Plaintiff's view, the complaint was filed within the ninety day time
frame.
Plaintiff's position is unavailing for two reasons. First, she may not rely upon the
August 10, 2016 postmark as proof that the complaint was timely filed because this is
not a prisoner case. Therefore, the exceptions to timing requirements as set forth in the
"prison mailbox rule" are inapplicable. See Kareem v. F.D.l.C., 482 F. App'x 594, 595
(D.C. Cir. 2012) (citing McNeil v. United States, 508 U.S. 106, 113 (1993) and Houston
v. Lack, 487 U.S. 266 (1988)). See also Fed. R. Civ. P. 3 (a civil action is commenced
by filing a complaint with the Court); Fed. R. Civ. P. 5(d)(2) (a paper is filed by
"delivering it" to the Clerk).
Second, Rule 6(d), which provides for additional time after service by mail, does
not apply to extend ninety day period following receipt of notice of suit rights letter from
EEOC within which employee was required to file employment discrimination action.
I
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See Mosel v. Hills Dep't Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986). As the Third
Circuit has stated,
This rule is plainly inapposite to the present case. It applies only where a
time period is measured from the date of service by mail, and allows a
party so served additional time to respond, in order to account for the time
required for delivery of the mail. The Title VII provision, in contrast,
requires that a complaint be filed within ninety days after the plaintiff
actually receives notice of the EEOC's decision. An additional period to
compensate for mailing time is irrelevant and inappropriate.
Id.
Nor is Plaintiff's untimely filing saved by equitable tolling. Plaintiff states that she
"did at all times reasonably and diligently pursue her claims, in direct contrast to [what]
the defendantO alleges." (D.I. 11 at p.2). In Title VII cases, equitable tolling has been
found appropriate when: (1) a claimant received inadequate notice of her right to file
suit; (2) where a motion for appointment of counsel is pending; (3) where the court has
misled the plaintiff into believing that she had done everything required of her; (4) when
plaintiff "in some extraordinary way" was prevented from asserting her rights; or (5)
when the plaintiff timely asserted her rights in the wrong forum. See Seitzinger, 165
F.3d at 240; see also Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000). Although
the doctrine of equitable tolling allows a court to stop the limitations period from running
after a claim has accrued, both the Supreme Court and the United States Court of
Appeals for the Third Circuit have recognized that the doctrine should be applied "only
sparingly." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990); see also
Podobnik v. United States Postal Serv., 409 F.3d 584, 591 (3d Cir. 2005). Plaintiff has
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the burden to prove that the equitable tolling doctrine applies. Podobnik, 409 F .3d at
591.
Plaintiff contends that, at all times, she reasonably and diligently pursued her
claims. However, the record belies that statement. Plaintiff received the notice of suit
rights on May 12, 2016, yet she took no action until August 10, 2016, when she mailed
her complaint for filing. Nothing in the record indicates that Plaintiff was misled, was
prevented from asserting her rights, or that she asserted her claim in an incorrect forum.
Nor does the record demonstrate that Plaintiff received inadequate notice of her right to
file suit or that there was a pending motion for appointment of counsel.
The court is mindful of Plaintiff's pro se status. Equitable tolling is more
appropriate when the litigant is inexperienced and proceeding pro se. See Kocian Getty
Refining & Marketing Co., 707 F.2d 748, 755 (3d Cir. 1983). "Although ... conformity
with procedural rules should be viewed liberally when a litigant is acting pro se, the rules
are not suspended simply because the litigant is unrepresented by counsel. The pro se
complainant must exercise reasonableness and good faith in prosecution of his claims."
Carter v. Three Unknown Police Officers, 112 F.R.D. 48, 52 (D. Del. 1986); see also
McNeil, 508 U.S. at 113 ("We have never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel.").
Here, the record does not support a finding of equitable tolling. Indeed, the
record shows that Plaintiff, and Plaintiff alone, failed to take the appropriate steps to
commence this case in within the required time-frame. Plaintiff simply did not timely file
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her Title VII claims. That failure is not excused by equitable tolling. Therefore, the
Court will grant Defendant's motion to dismiss.
CONCLUSION
Based upon the above discussion, the Court will grant Defendant's motion to
dismiss. 5 (D.I. 9).
An appropriate order will be entered
5
The Court will not address the other ground for dismissal pursuant to Fed. R. Civ. P.
12(b)(5) as dismissal is appropriate for Plaintiff's failure to commence this action within
the required ninety day period.
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