Curry v. Bank of America, N.A.

Filing 50

ORDER: Defendant Bank of America's Dispositive Motion for Summary Judgment 42 is GRANTED. The Clerk is directed to enter judgment in favor of Bank of America. Thereafter, the Clerk is directed to terminate all deadlines and pending motions and close this case. Signed by Judge Virginia M. Hernandez Covington on 11/29/2012. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ZACHARY CURRY,
Plaintiff,
v.

Case No.:

8:11-cv-1904-T-33MAP

BANK OF AMERICA, N.A.,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Defendant Bank
of America’s Dispositive Motion for Summary Judgment (Doc. #
42), filed on September 17, 2012. Plaintiff Zachary Curry
filed a Response in Opposition to the Motion on October 10,
2012. (Doc. # 49).

As discussed below, the Court finds that

Curry’s Title VII and FCRA claims are time-barred. The Court
therefore grants Bank of America’s Motion.
I.

Background
Curry worked for Bank of America from February 2, 2009,

to June 3, 2009, as a temporary employee placed through Select
Staffing. (Doc. # 1 at ¶ 6; Doc. # 42 at 4, 11). Curry asserts
that

on

February

20,

2009,

he

began

working

under

the

supervision of Jonothan O’Connor and Robert Sasser, a couple
with whom he had been living. (Doc. # 1 at ¶ 7; Doc. # 42 at
4).

Bank

of

America

disputes

that

Sasser

was

Curry’s

supervisor, asserting that Curry reported to Nicole Moe; Curry

argues that Sasser had de facto authority based upon his close
friendship with Moe. (Doc. # 42 at 5; Doc. # 49 at 3).
O’Connor was an executive vice president. (Doc. # 49 at 3).
Curry alleges that O’Connor and Sasser directed “unwanted
and unprovoked sexual advances” toward Curry in a manner “so
provocative that Plaintiff does not wish to place them in a
public filing.” (Doc. # 1 at ¶ 8). In addition, “Curry
received provocative and scandalous e-mails, pictures, and
messages

via

‘Myspace’

which

continued

throughout

[his]

employment with [Bank of America].” (Id. at ¶ 9). Bank of
America contends that the conduct of which Curry complains was
not unwelcome and in some instances Curry initiated the
communications. (Doc. # 42 at 17).
Curry

asserts

that

he

reported

the

alleged

abusive

conduct to his supervisors and the Human Resources Department,
and requested to move to a different department. (Doc. # 1 at
¶

10.).

According

to

Bank

of

America,

however,

Curry

complained of harassment to Bank of America only after his
termination and never complained to Select Staffing. (Doc. #
42 at 12). Curry concedes that when requesting the transfer he
was “intimidated to disclose the extent of the harassment to
Moe as she was Sasser’s best friend and Sasser and O’Connor
were lovers.” (Doc. # 42 at 10; Doc. # 39 at 7).
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Curry was terminated two days after his transfer request.
(Doc. # 42 at 10). He contends that he would not have been
terminated “but for his reporting of the unwanted sexual
advances” and that his termination was effected with “malice
or with [] reckless indifference” to his civil rights. (Doc.
#

1

at

¶¶

14-15.).

Bank

of

America

argues

that

poor

performance and insubordination led to Curry’s termination,
and that Moe recommended terminating Curry’s work assignment
without discussing the matter with Sasser or O’Connor. (Doc.
# 42 at 11).
Curry filed an EEOC Charge of Discrimination on July 9,
2009, alleging sexual harassment. (Doc. # 43-31). He received
a right-to-sue letter from the EEOC on January 27, 2010 (Doc.
# 43-34), then timely filed a pro se complaint against Bank of
America and other defendants. Curry v. O’Conner, 8:10-cv-631SDM-AEP (M.D. Fla. March 10, 2010). That lawsuit was dismissed
without prejudice on July 22, 2010. (Doc. # 42 at 12). He then
filed a second EEOC charge alleging sexual harassment and
retaliation on September 3, 2010. (Doc. #43-32). On June 6,
2011, the EEOC sent a second right-to-sue letter that also
dismissed the charge as untimely because it was filed more
than a year after Curry’s termination. (Doc. # 43-33).

3

Curry filed his Verified Complaint on August 22, 2011.
(Doc. # 1).

In counts one and two, Curry alleges that Bank of

America engaged in employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, Title I of the
Civil Rights Act of 1991, and the Florida Civil Rights Act
(FCRA).

In count three, Curry seeks redress for intentional

infliction of emotional distress. Bank of America filed a
motion to dismiss (Doc. # 4) on September 14, 2011. The Court
dismissed count three but otherwise denied the motion without
prejudice

because

it

referenced

facts

and

legal

actions

outside the four corners of the Complaint. (Doc. # 19). Curry
did not elect to amend the Complaint to reassert count three.
II.

Legal Standard
Summary judgment is appropriate if the pleadings, the

discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). An issue is genuine if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Mize v. Jefferson City Bd. of Educ.,
93

F.3d

739,

742

(11th

Cir.

1996)

(citing

Hairston

v.

Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir. 1993)).
A fact is material if it may affect the outcome of the suit
4

under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997).
The Court must draw all inferences from the evidence in
the light most favorable to the non-movant and resolve all
reasonable doubts in that party’s favor. See Porter v. Ray,
461 F.3d 1315, 1320 (11th Cir. 2006). The moving party bears
the initial burden of showing the Court, by reference to
materials

on

file,

that

there

are

no

genuine

issues

of

material fact that should be decided at trial. See id. When a
moving party has discharged its burden, the non-moving party
must then go beyond the pleadings, and by its own affidavits,
or by depositions, answers to interrogatories and admissions
on file, designate specific facts showing there is a genuine
issue for trial. See id.
III. Analysis
Bank of America moves for summary judgment on the basis
that Curry failed to satisfy the procedural prerequisites for
his Title VII and FCRA claims. (Doc. # 42 at 12). Bank of
America argues that Curry’s second EEOC charge was untimely
and thus cannot support his claims. (Id.). Curry’s claims
cannot be brought based upon the first EEOC charge, however,
because they are time-barred and because they fall outside the
scope of the first charge. (Id. at 13, 15). Bank of America
5

further asserts that Curry’s sexual harassment and retaliation
claims fail on the merits. (Id. at 16).
“Before
district
complaint

instituting

court,

a

against

a

private
the

Title

VII

plaintiff

discriminating

action
must
party

in

file
and

federal
an

EEOC

receive

statutory notice from the EEOC of his or her right to sue the
respondent named in the charge.” Forehand v. Fla. State Hosp.
at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996). The
administrative charge must be filed within 300 days of the
alleged discrimination. 42 U.S.C. § 2000e-5(e)(1).
Similarly, a plaintiff must timely file a charge of
discrimination with the Florida Commission on Human Relations
prior to filing suit alleging violations of the FCRA. Gillis
v. Sports Authority, Inc., 123 F. Supp. 2d 611, 615 (S.D. Fla.
2000). Such a charge must be filed within 365 days of the
alleged violation. Fla. Stat. § 760.11(1). A charge filed with
the EEOC satisfies this requirement. Id.
After timely filing an EEOC charge, a plaintiff must file
a lawsuit under Title VII within 90 days of receiving the
EEOC’s right-to-sue letter. 42 U.S.C. § 200e-5(f)(1). The 90day deadline has been strictly enforced by the Eleventh
Circuit. See Law v. Hercules, Inc., 713 F.2d 691, 692 (11th
Cir. 1983) (barring claim filed on the 91st day).
6

A.

Curry’s Second EEOC Charge

As noted above, Curry was terminated on June 3, 2009, and
filed his second EEOC charge on September 3, 2010. Bank of
America argues that this charge was untimely because it was
filed more than a year after Curry’s termination. Therefore,
the present lawsuit cannot be based upon the second charge
even though the Complaint was timely filed within 90 days of
receipt of the second right-to-sue letter.
Curry attempts to salvage the second EEOC charge by
arguing that it is an amended charge relating back to the
first EEOC charge. EEOC regulations provide that a timely
filed charge “may be amended to cure technical defects or
omissions, including failure to verify the charge, or to
clarify and amplify allegations made therein.” 29 C.F.R. §
1601.12(b). Such amendments “will relate back to the date the
charge was first received.” Id. The Supreme Court has upheld
this

provision

as

applied

to

EEOC

charges

that

lacked

verification. Edelman v. Lynchburg Coll., 535 U.S. 106, 118
(2002). This is so because the charge and the verification
serve two different functions, and need not be completed at
the same time. Id. at 112-13; see also Wilson v. Sprint/United
Mgmt. Co., No. 6:10-cv-1663, 2011 WL 2670184, at *5 (M.D. Fla.
July 8, 2011) (explaining Edelman).
7

Curry’s amended charge was not filed to cure such a
technical deficiency, however, and he offers no support for
the

theory

that

the

limitations

period

can

be

extended

indefinitely by simply amending an earlier charge. The Court
finds that Curry’s second EEOC charge does not relate back to
the first and therefore was untimely.
Curry further argues that the second charge alleged “a
‘continuing action,’ meaning that the discrimination was still
ongoing.” (Doc. # 49 at 14). The “continuing violation” theory
allows a plaintiff “to avoid the harsh consequences of the
limitations period.” King v. Auto, Truck, Indus. Parts &
Supply Co., 21 F. Supp. 2d 1370, 1377 (N.D. Fla. 1998). In the
case of a continuing violation, all wrongful conduct that
occurred prior to the charge is actionable “so long as the
complaint is timely as to the last occurrence.” Id. (internal
quotations and citations omitted).
“In determining whether a defendant’s conduct constitutes
a continuing violation, the Eleventh Circuit distinguishes
between the ‘present consequence of a one-time violation,
which

does

not

extend

the

limitations

period,

and

the

continuation of the violation into the present, which does.’”
Id. (quoting Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792,
796 (11th Cir. 1992)). “[A] plaintiff may not circumvent the
8

limitations period merely by labeling an act a ‘continuing’
violation. Completed acts such as a termination . . . are not
acts of a ‘continuing’ nature. Rather, a plaintiff must
maintain that a pattern of discrimination or an employment
practice presently exists to perpetuate the alleged wrong.”
Jacobs v. Bd. of Regents, 473 F. Supp. 663, 669 (internal
quotations and citation omitted).
Here, the “last occurrence” was the discrete, completed
act of Curry’s termination, and the second charge was not
timely filed within 300 days of termination. “Once an employee
leaves the company, he must comply with the charge-filing
period, and the continuing violation doctrine will no longer
save a late claim.” Hipp v. Liberty Nat’l Life Ins. Co., 252
F.3d 1208, 1223 n.12 (11th Cir. 2001). “If former employees
were allowed to assert charges after [the deadline], the
purpose of the statute of limitations would be undermined.”
Id. (internal quotations and citations omitted). Thus, the
Court finds that the continuing violation theory does not save
Curry’s second EEOC charge.
B.

Relation Back to the First Lawsuit; Equitable
Tolling

Curry’s first EEOC charge was timely filed on July 9,
2009. However, Curry received a right-to-sue letter based upon

9

the first charge on April 27, 2010, and the instant lawsuit
was not filed until August 22, 2011–well beyond the 90-day
time limit. Bank of America thus contends that Curry cannot
base the present lawsuit on the first charge.
Curry argues that the instant suit relates back to the
allegations in the first lawsuit, presumably invoking Federal
Rule of Civil Procedure 15(c). (Doc. # 49 at 14). However,
“Rule 15(c) applies to amendments to pleadings within the same
action.” Cusworth v. Am. Airlines, Inc., No. 10-22150-CIV,
2011 WL 3269436, at *4 (S.D. Fla. July 29, 2011). “[I]t is
well established that a separately filed claim, as opposed to
an amendment or a supplementary pleading, does not relate back
to a previously filed claim.” Hunsinger v. Leehi Int’l., No.
08-14315, 2010 WL 2573948, at *3 (S.D. Fla. June 24, 2010).
The Court finds that the present complaint does not relate
back to the earlier lawsuit; thus, the first EEOC charge
cannot serve as the basis for the instant claims.
Curry asserts that because his first lawsuit was timely,
the limitations period should be equitably tolled. (Doc. # 49
at 15). He argues that equitable tolling should apply because
Bank of America has had notice of the claims against it in the
prior proceeding and would not be prejudiced. (Id. at 14-15).
He further contends that equitable tolling is particularly
10

applicable here because his prior lawsuit was filed pro se and
dismissed without prejudice. (Id. at 15).
The Eleventh Circuit, following Fifth Circuit precedent,
has held that the limitations period in Title VII cases may be
equitably tolled. Suarez v. Little Havana Activities, 721 F.2d
338, 340 (11th Cir. 1983). Nonetheless, “[e]quitable tolling
is an extraordinary remedy which should be extended only
sparingly.” Bost v. Fed. Express Corp., 372 F.3d 1233, 1242
(11th Cir. 2004) (internal quotation marks omitted).
In the Title VII context, equitable tolling has been
justified when delays by the EEOC or the U.S. Postal Service
have thwarted a plaintiff’s efforts to meet the procedural
requirements. See Suarez, 721 F.2d at 340. No such delays have
been alleged, nor does the Court find any basis for the
“extraordinary remedy” of equitable tolling. The fact that
Curry’s prior suit was dismissed without prejudice does not
change this reasoning. “It is well settled that the filing of
a complaint that is later dismissed without prejudice does not
automatically

toll

the

limitations

period

for

a

future

complaint.” Cusworth, 2011 WL 3269436, at *3 (citing Bost, 372
F.3d at 1232).
The Court is cognizant that Curry attempted to follow the
procedural guidelines without the benefit of counsel in the
11

prior suit. However, the Supreme Court has cautioned that
“[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 County Welcome Ctr. V. Brown, 466 U.S. 147, 152
(1984). “In the long run, experience teaches that strict
adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration
of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980). This Court is bound to follow that directive and
denies equitable tolling in this case.
IV.

Conclusion
The Court finds that Curry’s second EEOC charge was not

timely filed within the limitations periods prescribed by 42
U.S.C. § 2000e-5(e)(1) and Fla. Stat. § 760.11(1) and thus
cannot serve to satisfy the exhaustion of administrative
prerequisites to his Title VII and FCRA claims. The Court
further finds that Curry did not timely file the instant
lawsuit within 90 days of receiving his first right-to-sue
letter as required by 42 U.S.C. § 2000e-5(e)(1). The present
action does not relate back to Curry’s previous lawsuit and
equitable tolling does not apply. The Court need not address
Bank of America’s other arguments. Because Curry’s claims are
12

procedurally deficient, the Court grants summary judgment to
Bank of America.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant

Bank

of

America’s

Dispositive

Motion

for

Summary Judgment (Doc. # 42) is GRANTED. The Clerk is directed
to enter judgment in favor of Bank of America. Thereafter, the
Clerk is directed to terminate all deadlines and pending
motions and close this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this
29th day of November, 2012.

Copies: All Counsel of Record

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