Burns v. Zadach et al

Filing 10

ORDER dismissing as moot 6 Motion for Extension of Time; and adopting Report and Recommendations of the Magistrate Judge as the opinion of the Court re 7 Report and Recommendations.. Signed by Chief Judge William T. Moore on 1/20/2009. (mah)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION ELLISON ROBERT BURNS, SR.,

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Plaintiff, V. STEVEN ZADACH, President Georgia Stevedore Association, MAURY B. ROTHSCHILD, Esquire, Ellis, Painter, Ratterree and Adams, LLP Georgia Stevedore Association Attorneys and any and all other attorneys representation for Georgia Stevedore Association, SAVANNAH MARITIME ASSOCIATION, INC., any and all attorneys representation,
I.L.A. LOCAL 1414 SAVANNAH,

CASE NO. CV408-197

GA, WILLIE SEYMORE, President I.L.A. Local 1414, and BRUCE WILLIAMS, Vice Chairman of Board also all I.L.A. and any other I.L.A. attorneys representation, Defendants.

ORDER
Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 7), to which objections have been filed (Doc. 9). After careful consideration, the Court ADOPTS the

Magistrate Judge's Report and Recommendation and DISMISSES

Plaintiff's Complaint without prejudice. 1 The Clerk of Court is
DIRECTED to close this case.

Prior to bringing a claim of employment discrimination under Title VII, a plaintiff is required to exhaust available administrative remedies. See Wilkerson v. Grinnell Corp., 270 Generally, as an initial

F.3d 1314, 1317 (11th Cir. 2001) .

step, the aggrieved employee must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and receive a right-to-sue letter. See id., Alexander v. Fulton County, 207 F.3d 1303, 1332 (11th Cir. 2000); see also 42 U.S.C. § 2000e-5(e) (requiring that charge be filed within 180 days of the alleged unlawful employment practice) . The receipt of the right-to-sue letter is not a jurisdictional requirement, but rather a statutory prerequisite subject to equitable defenses. See Zipes v. Trans World Airlines, mc, 455 U.S. 385, 393 (1982) (holding that prerequisite of obtaining a right-tosue letter subject to waiver, estoppel, and equitable tolling), Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1569 (11th Cir. 1996) ("{R]eceipt of a rightto-sue letter is not a jurisdictional prerequisite to suit, but rather, is a statutory precondition which is subject to equitable

modification.") . However, the failure to file a claim with the

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Plaintiff's Motion for Extension of Time is DISMISSED AS MOOT. (Doc. 6.) 2

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EEOC may bar a plaintiff from bringing suit. See Baldwin Count Welcome Ctr. v. Brown, 466 U.S. 147, 152 n.6 (1984), Hines v. Widnall, 334 F.3d 1253, 1257 (11th Cir. 2003), Grier v. Sec'y of the Army, 799 F.2d 721, 724 (11th Cir. 1986) Reviewing Plaintiff's claim, the Court finds that Plaintiff has not received a right-to-sue letter from the EEOC. While the Court is aware that Plaintiff has filed his charge with the EEOC, that investigation is currently ongoing. The Court finds no reason to exercise its equitable powers to stay the case pending receipt of a right-to-sue letter by Plaintiff. Should

Plaintiff receive such a letter, he may refile his case at that time. Accordingly, Plaintiff's Complaint is DISMISSED without

prejudice. The Clerk of Court is DIRECTED to close this case. SO ORDERED this .2Oday of January, 2009.

WILLIAM T. MOORE, JR., HIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

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