Cooper v. Mayor and Alderman of the City of Savannah

Filing 19

ORDER granting 5 Motion to Dismiss. As a result, Plaintiff's complaint is DISMISSED as untimely. The Clerk of Court is DIRECTED to close this case. Signed by Judge William T. Moore, Jr on 9/28/17. (jlm)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

TONIA COOPER,

Plaintiff,
CASE NO. CV416-329

V.

MAYOR AND ALDERMAN CITY OF

SAVANNAH,
Defendant.

ORDER

Before the Court is Defendant Mayor and Alderman City
of

Savannah's

following

Motion

reasons.

to

Dismiss.

Defendant's

(Doc.

motion

5.)

is

For

the

GRANTED

and

Plaintiff Tonia Cooper's complaint is DISMISSED. The Clerk
of Court is DIRECTED to close this case.
BACKGROUND

In this case. Plaintiff Tonia Cooper claims she faced
sexual harassment in her workplace and was later terminated

in retaliation for complaining about the harassment.^ In
October 2008, Plaintiff began working for Defendant as a

property maintenance inspector. (Doc. 1 SI 13.) In November
2013,

Plaintiff

began

enduring

almost

daily

unwanted

^ At this stage of the litigation, the Court must accept the
allegations in Plaintiff s complaint as true and draw all
reasonable

inferences

in

her

favor.

See

Chaparro

Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012).

v.

touching

and

SI 14.) This

sexual

language

from

harassment continued

her

supervisor.

(Id.

until September 2, 2015,

when Plaintiff complained both to the head of her division
and

to

Human

supervisor,

Resources.

however,

(Id.

SISI 17,

continued

to

18.)

make

Plaintiff's

inappropriate

comments until November 2015. (Id. 1 22.)

Plaintiff
criticizing

alleges

her

reporting

the

Plaintiff

was

that

work

Defendant^

performance

harassment.
instructed

(Id.

to

in

unfairly

retaliation

1 19.)

disregard

began

At

some

policy

for

point.

procedures.

(Id. SI 21.) On June 24, 2016, Plaintiff was discharged for
the procedure violation. (Id.)

According to the complaint. Plaintiff exhausted all of
her

State

and

Federal

administrative

procedures

prior

to

filing suit (id. f 5), received her right to sue letter
from the Equal Employment Opportunity Commission ("EEOC")
(id. 1 6), and filed her complaint within ninety days of

receiving that letter (id.). Plaintiff s characterization
of this sequence of events, however, is misleading to say
the

least.

facts

Moreover,

regarding

Plaintiff's

the

exhaustion

omission

of

of

her

significant

administrative

remedies with the EEOC is dangerously close to a fraud on

^ The Court assumes that Plaintiff is referring to an agent

of

Defendant.

However,

Plaintiff

fails

to

identify

the

individual making the alleged adverse employment decisions.

this

Court

designed

to

create

jurisdiction

where

quite

possibly none existed.
What

Plaintiff

fails

to

state

is

that

she

filed

two

charges of discrimination with the EEOC. The first charge^
was received by the EEOC on June 23, 2016 and alleged sex
discrimination from November 1, 2013 to September 2, 2015.
(Doc. 5, Ex. 1 at 1.) On June 15, 2016, the EEOC informed

Plaintiff that the first charge was untimely and provided
her with a Notice of Right to Sue. (Id. at 2.)
On

June 27, 2016, Plaintiff filed a second charge of

discrimination alleging that she was told to resign or be

discharged in retaliation for her filing the first charge
of discrimination. (Id., Ex. 2 at 1.) In the second charge.
Plaintiff

stated

that

the

discrimination

occurred

between

June 10 and June 27, 2016. (I^) On July 27, 2016, the EEOC
provided

Plaintiff with another

Notice of Right to Sue.

(Id. at 3.)

^ Plaintiff argues that the Court may not consider these
documents

without

converting

Defendant's

motion

into

a

request for summary judgment. (Doc. 8 at 2.) However, the
Court may consider an extrinsic document when ruling on a
motion to dismiss where the document is "(1) central to the

plaintiff's claim, and (2) its authenticity is not
challenged." SFM Holdings, Ltd. v. Banc of Am. Sec., LLC,
600 F.3d 1334, 1337 (11th Cir. 2010) (citing Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir.2005)). In this case, the
EEOC charges and Notices of Right to Sue are clearly
central

to

whether

Plaintiff

can

bring

her

claim.

In

addition. Plaintiff has not challenged the authenticity of
those documents.

On September 13, 2016, the EEOC rescinded the second
Notice of Right to Sue. (Id. at 5.) That second notice was
reissued

the

very

same

day.

(Id.

at

6.)

Other

than

the

date, the only difference between the two notices is the
name of and contact information for the EEOC investigator,

and Plaintiff s counsel being listed as receiving a carbon

copy of the September 13, 2016 reissued notice. (Id. at 56.) The EEOC never provided notice pursuant to 29 C.F.R.

§ 1601.21(b)'' that it was reconsidering its decision with
respect to the second charge. Neither document states any

reason

why

the

second

notice

was

rescinded

and

then

reissued.

Plaintiff attached to her complaint only a copy of the

reissued

second

Notice

of

Right

to

Sue.

Suspiciously,

Plaintiff did not include the copy of her second charge of

discrimination,

which

formed

the

basis

for

the

second

notice. The second charge only alleged retaliation, not any
sexual

harassment

or

discrimination.

Moreover,

Plaintiff

completely failed to mention that the September 13, 2016
notice had been reissued in response to the rescinded July

27, 2016 notice. While the Court stops short of ascribing
^

This

regulation

Commission

decides

provides
to

that

"[i]n

reconsider

a

cases

where

dismissal

or

the
a

determination finding reasonable cause to believe a charge
is true, a notice of intent to reconsider will promptly
issue."

to Plaintiff a nefarious motive for the omissions, it does

so only after

giving

Plaintiff the full benefit of every

doubt.

On December 7, 2016, Plaintiff filed her complaint in
this

Court.

Plaintiff filed

her

complaint

175

days

after

the EEGG issued the first Notice of Right to Sue, 133 days
after the EEGG issued the second Notice of Right to Sue,

and

85

days

after

the

EEGG

rescinded

and

reissued

the

second notice. In her complaint. Plaintiff alleges claims
for both sex discrimination and retaliation in violation of

Title

VII

§§ 2000e

of
to

the

Civil

2000e-I7

Rights
(Doc.

Act

1

of

1964,

11 23-26),

42

U.S.G.

intentional

infliction of emotional distress (id. SISI 27-28), attorney's

fees (id.
In

29-32), and punitive damages (id.
its

Motion

to

Dismiss,

Defendant

33-35).
argues

that

Plaintiff's Title VII claims are untimely because she filed

her complaint more than ninety days after

receiving the

Notices of Right to Sue. (Doc. 5, Attach. 1 at 3-7.) With
respect
emotional

to

the

claim

distress.

for

Defendant

intentional
contends

infliction
that

of

Plaintiff

failed to provide the proper ante litem notice required
under state law, and that Defendant has immunity from this

type of claim. (Id. at 8-9.) Finally, Defendant maintains

that

Title

VII

does

not

permit

the

recovery

of

punitive

damages against municipalities. (Id. at 10.)
In
for

her

response.

intentional

Plaintiff

infliction

concedes

of

that

emotional

her

claims

distress

and

punitive damages should be dismissed. (Doc. 8 at 3.) Also,

Plaintiff

argues

that

all

of

her

Title

VII

claims

are

timely because the EEOC reconsidered its earlier decision
with respect to the second charge and reissued the second
Notice of Right to Sue on September 13, 2015. (Id. at 2-3.)
Plaintiff

reasons

determining

the

that

the

timeliness

later

of

date

her

is

effective

complaint

because

for

the

decision to reissue the second Notice of Right to Sue was

based upon additional evidence Plaintiff submitted to the
EEOC. (Id^ at 3.)
ANALYSIS

I.

STANDARD OF REVIEW

Federal

Rule

of

Civil

Procedure

8(a)(2)

requires

a

complaint to contain "a short and plain statement of the
claim

showing

that

the

pleader

is

entitled

to

relief."

"[T]he pleading standard Rule 8 announces does not require
Metailed factual allegations,' but it demands more than an

unadorned,

the-defendant-unlawfully-harmed-me

accusation."

Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl.

Corp.

V.

Twombly,

550

U.S.

544,

555

(2007)). "A

pleading

that

offers

'labels

and

conclusions'

or

a

'formulaic recitation of the elements of a cause of action

will not do.' " Id.
"Nor

does

a

(quoting

complaint

assertion[s]'

devoid

Id.

Twombly,

(quoting

Twombly^

suffice

of

'further

550

U.S.

if

550 U.S.
it

tenders

factual

at

at 555).
'naked

enhancement.' "

557)

(alteration

in

original).
"To
contain

survive

a

sufficient

motion
factual

to

dismiss,

matter,

a

complaint

accepted

as

must

true,

to

'state a claim to relief that is plausible on its face.' "

Id. (quoting Twombly, 550 U.S. at 570). For a claim to have

facial
content

plausibility,
that

"allows

the

plaintiff

must

the

court

draw

to

plead
the

factual

reasonable

inference that the defendant is liable for the misconduct

alleged." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,
1261 (11th Cir. 2009) (quotations omitted) (quoting Iqbal,
556

U.S.

at

678).

Plausibility

does

not

require

probability, "but it asks for more than a sheer possibility
that a defendant has acted unlawfully." Iqbal, 556 U.S. at

678. "Where

a

complaint

pleads

facts

that

are

'merely

consistent with' a defendant's liability, it 'stops short

of

the

line

between

possibility

and

plausibility

of

entitlement to relief.' " Id. (quoting Twombly, 550 U.S. at

557). Additionally, a complaint is sufficient only if it

gives "fair

grounds
1268

notice

of

what

which

it

rests." Sinaltrainal,

upon

(quotations

omitted)

the

.

. .

(quoting

claim

Twombly,

is

and

the

578

F.3d

at

550

U.S.

at

dismiss,

it

555).

When

the

Court

considers

a

motion

to

accepts the well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d 1252 at 1260. However, this Court is
"not bound to accept as true a legal conclusion couched as

a factual allegation." Iqbal, 556 U.S. at 678. Moreover,
"unwarranted

deductions

of

fact

in

a

complaint

are

not

admitted as true for the purpose of testing the sufficiency

of [plaintiff's] allegations." Sinaltrainal, 578

F.3d at

1268 (citing Aldana v. Del Monte Fresh Produce, N.A., Inc.,

416 F.3d 1242, 1248 (11th Cir. 2005)). That is, "[t]he rule

^does not impose a probability requirement at the pleading

stage,' but instead simply calls for enough facts to raise
a

reasonable

expectation

evidence of the

that

discovery

will

necessary element." Watts v.

reveal

Fla. Int'l

Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 545).
II.

DEFENDANT'S MOTION TO DISMISS

A plaintiff has ninety days following receipt of a
Notice of Right to Sue to file a civil action against her

employer. Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336,

8

1340 (11th

Cir. 2017) (citing 42 U.S.C. § 2000e-5(f)(1)).

Once the notice has been issued, the EEOC does possess the

authority

to

reconsider

§ 1601.19(b).

its

However,

earlier

decision.

reconsideration

of

29

an

C.F.R.
earlier

decision requires the EEOC to provide notice of its intent
to

reconsider.

director

decides

determination,

a

promptly

issue

Stamper,

863

could

Id.

to

to

the

all
at

the

Commission

reconsider

notice

F.3d

restart

("If

of

intent

parties

1340

running

a

(noting
of

the

final

to

to

or

an

issuing

no

reconsider

the

cause

shall

charge.");

that "the
limitations

see

Commission
period

by

issuing a second notice of the right to sue only if the
Commission issued a

notice of intent to reconsider before

the expiration of the original limitations period"); Gilitz
V. Compagnie Nationale Air France, 129 F.3d 554, 557 (11th
Cir. 1997) (finding that exact same Notice of Right to Sue
with later date not reconsideration by EEOC where no notice
of intent to reconsider provided). The

ninety-day window

for filing civil claims only resets where the EEOC provided
notice

of

its

intent

to

reconsider

prior

to

issuing

a

second Notice of Right to Sue. See Stamper, 863 F.3d at
1340; Gilitz, 129 F.3d at 557.

In this case. Plaintiff contends that her complaint is

timely because she filed it less than ninety days from the

date the EEOC reissued the second Notice of Right to Sue.
(Doc.

8

at 2-3.) However, Plaintiff's argument completely

ignores both the applicable regulation and the law in the
Eleventh Circuit. This Court's reading of both Stamper and
Gilitz

Right

lead

to

to

Sue

the

conclusion

provide

will

that

new

a

a

reissued

ninety-day

Notice

window

of

for

filing suit only where it was reissued pursuant to the EEOC
providing

the

parties

reconsider

the

earlier

with

notice

decision.

of

its

intent

to

Plaintiff's complaint is

untimely in this case because the EEOC provided

no such

notice of its intent to reconsider.

Indeed, this case is strikingly similar to Gilitz. In

that case, the plaintiff argued that his civil complaint

was

timely

because

it

was

filed

within

ninety

days

of

receiving a reissued Notice of Right to Sue. Gilitz, 129
F.Sd

at 557.

The

EEOC

had

not issued

any

notice

of its

intent to reconsider, and the exact same Notice of Right to

Sue was simply reissued, verbatim, with a new date. Id. In

light

of

these

circumstances,

the

Eleventh

Circuit

concluded that there was no reconsideration by the EEOC and
the

reissued

notice

failed

to rest the

ninety-day window

for filing suit. Id.

In

this

case,

the

EEOC

never

provided

either

party

with notice of its intent to reconsider. Also, the reissued

10

second Notice of Right to Sue is an almost verbatim copy of

the original second notice. The only substantive change in
the reissued notice is that the date was changed from July

27,

2016

factual

to

September

similarity to

conclude

that

13,

2016.

Gilitz,

Plaintiff's

this

Based

on

Court is

complaint

is

this

case's

compelled

untimely.^

to

As

a

result. Defendant's Motion to Dismiss must be granted.
CONCLUSION

For
Dismiss

the
(Doc.

foregoing
5)

is

reasons.

GRANTED.

As

Defendant's
a

result.

Motion

to

Plaintiff's

complaint is DISMISSED as untimely. The Clerk of Court is
DIRECTED to close this case.

SO ORDERED this

of September 2017.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN

^

The

Court

has

not

specifically

DISTRICT OF GEORGIA

addressed

Plaintiff's

sexual
harassment
claim,
which
is
clearly
untimely.
Plaintiff's second charge of discrimination alleged only
retaliation, not actual harassment. (Doc. 5, Ex. 2 at 1.)

As the Court previously noted. Plaintiff's decision to only
submit the reissued second Notice of Right to Sue as
evidence that she exhausted her administrative remedies

dangerously skirts the line of attempting to defraud the
Court
in
an
attempt
to
have
this
Court
exercise
jurisdiction in a case where it has none. At the very
least, this conduct falls below this Court's expectations
of those practicing before it.

11