Phillips v. David Emanuel Academy, Inc.

Filing 16

ORDER granting re 8 Motion to Dismiss. The Clerk is directed to CLOSE this case and ENTER JUDGMENT in favor of Defendant. Signed by Chief Judge J. Randal Hall on 10/31/17. (loh)

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

ALLISON S.

PHILLIPS,

Plaintiff,
*

v.

DAVID EMANUEL ACADEMY,

INC.,

CV

616-162

*
*

Defendant.

ORDER

Plaintiff Allison S. Phillips, through counsel, filed the
captioned

case

alleging

racial

discrimination

in

her

employment with Defendant David Emanuel Academy, Inc., as well

as retaliatory discharge, pursuant to Title VII of the Civil
Rights

Act

before

the

reasons

of

1964,

Court

set

is

forth

42

U.S.C.

Defendant's

below,

§ 2000e
motion

Defendant's

et
to

seq.

Presently

dismiss.

motion

to

For

dismiss

the

is

GRANTED.

I.

In the

BACKGROUND

spring of 2016,

discrimination

with

the

Plaintiff filed two charges of

United

States

Equal

Employment

Opportunity Commission ("EEOC") : one for racial discrimination
based upon alleged disparate treatment in pay and one for

retaliatory discharge.

(SeeCompl., Ex. 2, Doc. 4.)

The EEOC

issued and mailed a Notice of Right to Sue letter on the first
charge on August 24, 2016.

(See Compl., Ex. 1, Doc. 4.)

The

EEOC issued and mailed a Notice of Right to Sue letter on the
second charge on August 25, 2016.

(Id. )

Plaintiff filed this suit on November 30, 2016.1

1.)

(Doc.

Plaintiff does not allege when she received the "Right to

Sue" letters.

Rather,

Paragraph 44 of the complaint states:

"The EEOC issued [Plaintiff] two separate right to sue letters

in late August 2016 and she is filing this Complaint within 90
days of her receipt of said letters."

(Id. , SI 44.)

On April 4, 2017, Defendant filed a motion to dismiss the
complaint

pursuant

to

Federal

Rule

of

Civil

Procedure

12(b) (6), contending that Plaintiff failed to timely file this
case following the issuance of the Right to Sue letters.

II.

LEGAL

STANDARD

A motion to dismiss does not test whether the plaintiff

will ultimately prevail on the merits of the case.

Rather, it

1 There appears to be some confusion about the date of
filing because while the Court's docket reflects the "Date
Filed" as November 30, 2016, the text of the docket entry for

the complaint states that it was "Entered" on December 1,
2016.
The Court finds that for purposes of this motion, the

complaint was filed on November 30, 2016. The "entry date"
probably reflects the fact that the case file was not opened
until the next day, December 1, 2016. As it turns out, the
filing date discrepancy is of no importance.

tests

the

Rhodes,

legal

sufficiency of the

416 U.S. 232, 236 (1974).

complaint.

Scheur v.

Therefore, the court must

accept as true all facts alleged in the complaint and construe

all reasonable inferences in the light most favorable to the
plaintiff.

See Hoffman-Puah v.

Ramsey, 312 F.3d 1222, 1225

(11th Cir. 2002) .

The court, however,

complaint's

conclusions

facts.

legal

Ashcroft v. Iabal,

need not accept the

as true,

556 U.S.

662,

only its well-pled
677-79

(2009).

A complaint also must "contain sufficient factual matter,
accepted

as

true,

*to

state

plausible on its face.'"
v.

Twomblv,

550

U.S.

a

claim

Id. at 678

544,

570

to

relief

that

is

(citing Bell Atl. Corp.

(2007)).

The

plaintiff

is

required to plead "factual content that allows the court to
draw the reasonable inference that the defendant is liable for

the

misconduct

probability
beyond
Twombly,
Broudo,

.

.
550

544

alleged."

requirement
.

mere

U.S.
U.S.

Id.

at

the

possibility

at
336,

556-57
347

Although

pleading
.

(citing

(2005)).

.

.

there

stage,
must

be

is

no

"something
alleged."

Durma

Pharm. , Inc.

When,

however,

v.

on the

basis of a dispositive issue of law, no construction of the

factual allegations of the complaint will support the cause of
action,

dismissal

of

the

complaint

is

appropriate.

Executive 100, Inc. v. Martin Cntv.; 922 F.2d 1536,
Cir.

1991).

See

1539 (11th

III.

LEGAL ANALYSIS

Through its motion to dismiss,

Defendant

asserts

that

Plaintiff's claims should be dismissed because the complaint
was untimely filed.

A plaintiff must bring her Title VII

claim within ninety (90) days after receipt of the Right to
Sue letter related to the claim.

Compliance with the
precondition

limitations.

to

42 U.S.C.

ninety-day requirement

suit

that

functions

as

§ 2000e-16(c).

is a statutory
a

statute

of

See Armstrong v. Martin Marietta Corp., 138 F.3d

1374 (11th Cir. 1998); Patel v. Ga. Dep't of Behavorial Health
& Developmental Disabilities,

Ga. May 25,

Here,

2012 WL 12891433,

at

*3

(N.D.

2012).

Defendant has shown that the Right to Sue letters

were mailed on August 24 and 25, 2016.

The ninety-day period

for

day

filing

received

by

suit

began

Plaintiff.

to

run

When

on

the

the

date

the

of

letters

receipt

were

by

a

plaintiff is unknown, there is a presumption in the law that
the notice was received three days after its mailing.
County Welcome

Ctr.

v.

(citing Fed. R. Civ. P.

F.3d 947, 953 n.9
of Atlanta,

Brown,

466 U.S.

147,

148

n.l

Baldwin
(1984)

6(e)); Kerr v. McDonald's Corp.,

427

(11th Cir. 2005); see also Phillips v. City

2016 WL 5429668,

at *8

(N.D. Ga.

July 29, 2016).

Thus, in this case, it is presumed that Plaintiff received the

August 24th Right to Sue letter on August 27, 2016, and the

August 25th Right to Sue letter on August 28, 2016.

However,

because these days of receipt are on Saturday and Sunday, the
date of receipt is deemed to be Monday, August 29, 2016.

See

Fed. R. Civ. P. 6(a) (1) (C) . Upon this evidence, Plaintiff was

required to file a complaint by November 28, 2016, ninety days
after August

29,

2016.

Plaintiff was

required to

file

a

complaint arising out of the second EEOC charge by November
28,

2016,

however,

ninety
did

not

days

after

file

this

August
case

29,

until

2016.2

November

Plaintiff,
30,

2016.

Accordingly, Defendant has carried its burden of establishing
a

statute

of

limitations defense.

Plaintiff attempts to rebut the three-day presumption of
receipt in two ways.
brief,

First, Plaintiff's counsel represents in

and not by way of affidavit,

that she calendared the

filing date for November 30, 2016, when Plaintiff came to her
office

"the

same

day

letters in the mail."
Doc.

11.)

Even

if

that

she

received

the

Right

to

Sue

(PL's Resp. to Mot. to Dismiss, at 2,
the

Court

credits

counsel's

unattested

representation that she correctly calendared the filing date,
the

accuracy

of

that

date

is

dependent

upon

a

hearsay

statement from her client that she received the Right to Sue

2

The ninetieth day after August 29,

2016 falls on a

Sunday, November 27, 2016. Thus, the deadline for filing this
complaint is actually November 28, 2016. See Fed. R. Civ. P.
6(a)(1)(C).

letters

on

office.

the

very

day

that

she

visited

her

attorney's

The lack of admissible evidence on this point is

insufficient to rebut the presumption that Plaintiff received
the Right to Sue letters three days after mailing.
Second, Plaintiff's counsel attaches an announcement from

the United States Postal Service in 2012 that it was moving

its

Savannah

mail

processing

Charleston and Macon.
2.)

Plaintiff's

operations

(PL's Resp.

to

to Mot.

counsel then "affirms"

Jacksonville,

to Dismiss,

Ex.

in brief that mail

deposited in Savannah routinely takes more than three days to
reach

Statesboro,

presumably

where

received the Right to Sue letters.
to Dismiss, at 2. )

Plaintiff

would

(See PL's Resp.

have

to Mot.

This representation is speculative at best

and therefore insufficient to rebut the three-day presumption.

Moreover,
account

the three-day mail rule was created to take into

the

varying

United States

In short,

Postal

there

routes

and

delivery

schedules

of

the

Service.

is

no evidence of record to rebut the

presumption that Plaintiff received the letters on August 29,
2016,

and therefore, the complaint had to have been filed by

November

28,

2016.

Because

Plaintiff

did

not

file

her

complaint until November 30, 2016, it is untimely with respect
to both EEOC charges.
Rehabilitative

Servs. ,

Cf. Norris v. Fla.
730

F.2d

682

Dep't of Health &
(11th

Cir.

1984)

(dismissing
period);

2006)

a claim filed one day beyond

Wilev v.

Johnson,

436 F.

Supp.

the

ninety-day

2d 91,

96

(D.D.C.

("Courts apply the ninety-day time limit strictly and

will dismiss

a suit for missing the deadline by even one

day.").

IV.

Upon

the

foregoing,

CONCLUSION

Defendant's

Plaintiff's complaint (doc. 8)

motion

to

is hereby GRANTED.

dismiss

The Clerk

is directed to CLOSE this case and ENTER JUDGMENT in favor of
Defendant.

ORDER ENTERED at Augusta, Georgia, this
October,

^s/^

day of

2017.

]EF JUDGE

TATES

SOUTHERN

DISTRICT

DISTRICT

COURT

OF GEORGIA