BRAZIL v. KEMRON ENVIRONMENTAL CO

Filing 9

ORDER denying 8 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE CLAY D. LAND on 3/22/2018 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ASHLEY BRAZIL,

*

Plaintiff,

*

vs.

*

KEMRON ENVIRONMENTAL SERVICES,
INC.,

*

CASE NO. 4:17-CV-188 (CDL)

*
Defendant.
*
O R D E R
Plaintiff

Ashley

Brazil,

proceeding

pro

se,

brings

this

action against Kemron Environmental Services, Inc. (“Kemron”)
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq.1

Brazil alleges that she was sexually

harassed, was subject to a hostile work environment, and was
forced to share portable toilets with male workers while working
at Kemron.

Compl. 4, ECF No. 1.

Kemron has moved to dismiss

the action with prejudice arguing that Brazil did not file the
action
letter

in

a

timely

from

(“EEOC”).

As

the

manner
Equal

required

by

after

receiving

Employment
Title

VII,

charge of discrimination with the EEOC.

her

right

Opportunity
Brazil

sue

Commission

timely

Compl. 6.

to

filed

a

The EEOC

dismissed Brazil’s charge and mailed her a right to sue letter
1

Kemron is misidentified in the complaint as Kemron Environmental
Company.
See Def.’s Mot. to Dismiss 1, n.1, ECF No. 8; Compl. 1-2,
ECF No. 1.

1

on June 14, 2017.

Compl. Ex. 1, Dismissal and Notice of Rights

(June 14, 2017), ECF No. 1-1 [hereinafter “Dismissal”].

The

right to sue letter advised Brazil that if she wished to pursue
the matter further, she must file her lawsuit within 90 days of
her receipt of the letter.
5(f)(1).

Dismissal 1-2; 42 U.S.C. § 2000e-

Brazil filed this action on September 14, 2017, 92

days after the EEOC mailed the right to sue letter.
1

(indicating

a

file

stamp

date

of

See Compl.

September

14,

2017).

Brazil’s complaint indicates that she received the right to sue
letter on June 14, 2017.

Compl. 6.

But the letter, which

Brazil attached to her Complaint, indicates that it was mailed
by the EEOC on June 14, 2017.

Thus, Plaintiff’s Complaint is

inconsistent as to when she actually received the EEOC right to
sue

letter.

Liberally

construing

the

pleadings

in

Brazil’s

favor, as the Court is required to do for a pro se party, the
Court

cannot

say

that

Brazil

indisputably

right to sue letter on June 14.
because

the

letter

was

mailed

received

the

EEOC

Instead, it is likely that
on

June

14,

Brazil

actually

received it several days later, in which case her claims would
be timely.

While discovery may reveal otherwise,

the Court

cannot find at this stage that Brazil’s claims are untimely as a
matter of law.

Therefore, Kemron’s motion to dismiss on this

ground is denied.

2

Kemron

also

moved

to

dismiss

the

complaint

based

on

Brazil’s failure to serve Kemron within 90 days as required by
Federal Rule of Civil Procedure 4(m).

The Court entered an

order granting Brazil permission to proceed in forma pauperis
and

directing

the

United

States

Marshal

Order, ECF No. 4; Fed. R. Civ. P. 4(c)(3).

to

effect

service.

The clerk issued a

form directing the Marshal to mail process to Kemron.

See USM

285 Process Recipt & Return (Sept. 19, 2017), ECF No. 5.

The

Marshal mailed process and a waiver of service to Kemron on
October 12, 2017.

See USM 285 Process Receipt and Return (Oct.

12, 2017), ECF No. 6.

Kemron apparently did not respond, so the

clerk issued a form directing the Marshal to personally serve
Kemron.

See USM 285 Process Receipt & Return (Jan. 3, 2018),

ECF No. 7.

Brazil has fulfilled all her obligations regarding

service, and the Court is currently waiting on the Marshal to
either return the USM 285 form executed or to personally serve
Kemron.

Therefore, Kemron’s motion to dismiss on this ground is

also denied.2

2

Kemron is clearly aware of this lawsuit. Further, not only is Kemron
aware of the suit generally, but Kemron seems to also be aware of
Brazil’s specific allegations, since Kemron referenced Brazil’s
complaint in its motion to dismiss and argued that her claims should
be dismissed on specific statutory grounds. Therefore, Kemron is not
prejudiced by any delay in service by the Marshal, particularly given
that it could have avoided any such delay by simply acknowledging
service.

3

IT IS SO ORDERED, this 22nd day of March, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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