Smith v. Delaware State Housing Authority et al

Filing 18

MEMORANDUM ORDER Denying MOTION to Dismiss Counts I and II of Complaint (D.I. 5 ). Signed by Judge Richard G. Andrews on 2/14/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DEBRA SMITH,
Plaintiff,
Civil Action No. 16-1051-RGA

v.
DELA WARE STATE HOUSING
AUTHORITY, and MICHAEL MILES,
Defendants.

MEMORANDUM ORDER
Defendants filed a motion to dismiss. (D.1. 5).
Plaintiff timely filed a charge of discrimination on June 8, 2016, and asked for a right to
sue letter, which was issued on August 18, 2016. Relying upon a federal regulation, Plaintiff
filed suit on November 22, 2016. The federal regulation states that the relevant agency can issue
a right to sue letter before 180 days elapses under certain circumstances, one of which is that the
agency asserts that it will not be able to process the complaint within 180 days. While there are
respectable arguments that the federal regulation is invalid, the only two courts of appeals to have
decided the issue have reached a contrary position. See Sims v. Trus Joist MacMillan, 22 F .3d
1059, 1062-63 (1 lth Cir. 1994); Brown v. Puget Sound Elec. Apprenticeship & Training Tr., 732
F.2d 726, 729 (9th Cir. 1984). 1 Thus, if I were to follow them, the motion to dismiss would be

1

Defendants cite Saylor v. State Dep 't of Health & Soc. Servs., 569 F.Supp. 2d 420, 423
(D.Del. 2008). That case, however, does not address the issue presented by the instant motion.

denied. 2
Even if the regulation were invalid, however, there would still be an issue about whether
the person who relies upon it should be thrown out of court, or, at least, made to wait for a while.
In Lemke v. Int'/ Total Servs., Inc., 56 F.Supp. 2d 472, 481-82 (D.N.J. 1999), aff'd without opin.,
225 F.3d 649 (3d Cir. 2000), the Court, at a later (summary judgment) stage of the case, held that
to rule against plaintiff "would not be equitable." Though that reasoning is somewhat less
applicable here, as this case is less advanced, it still has some force. 3
Thus, the motion to dismiss (D.I. 5) is DENIED.
IT IS SO ORDERED this

Jf_ day of February 2017.

2

The Third Circuit did not decide the issue in Mote/es v. University of Pa., 730 F.2d 913,
916-18 (3d Cir. 1984).
3

Plaintiff gratuitously accuses Defendants of bad faith. (DJ. 13 at 2). Plaintiff is
admonished not to make such accusations with no basis for doing so.