Phillips v. David Emanuel Academy, Inc.
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
DAVID EMANUEL ACADEMY,
Plaintiff Allison S. Phillips, through counsel, filed the
employment with Defendant David Emanuel Academy, Inc., as well
as retaliatory discharge, pursuant to Title VII of the Civil
spring of 2016,
Plaintiff filed two charges of
Opportunity Commission ("EEOC") : one for racial discrimination
based upon alleged disparate treatment in pay and one for
(SeeCompl., Ex. 2, Doc. 4.)
issued and mailed a Notice of Right to Sue letter on the first
charge on August 24, 2016.
(See Compl., Ex. 1, Doc. 4.)
EEOC issued and mailed a Notice of Right to Sue letter on the
second charge on August 25, 2016.
Plaintiff filed this suit on November 30, 2016.1
Plaintiff does not allege when she received the "Right to
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
12(b) (6), contending that Plaintiff failed to timely file this
case following the issuance of the Right to Sue letters.
A motion to dismiss does not test whether the plaintiff
will ultimately prevail on the merits of the case.
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,
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.
sufficiency of the
416 U.S. 232, 236 (1974).
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
See Hoffman-Puah v.
Ramsey, 312 F.3d 1222, 1225
(11th Cir. 2002) .
The court, however,
Ashcroft v. Iabal,
need not accept the
only its well-pled
A complaint also must "contain sufficient factual matter,
plausible on its face.'"
Id. at 678
(citing Bell Atl. Corp.
required to plead "factual content that allows the court to
draw the reasonable inference that the defendant is liable for
Pharm. , Inc.
basis of a dispositive issue of law, no construction of the
factual allegations of the complaint will support the cause of
Executive 100, Inc. v. Martin Cntv.; 922 F.2d 1536,
Through its motion to dismiss,
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
is a statutory
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,
2012 WL 12891433,
Defendant has shown that the Right to Sue letters
were mailed on August 24 and 25, 2016.
The ninety-day period
plaintiff is unknown, there is a presumption in the law that
the notice was received three days after its mailing.
(citing Fed. R. Civ. P.
F.3d 947, 953 n.9
6(e)); Kerr v. McDonald's Corp.,
(11th Cir. 2005); see also Phillips v. City
2016 WL 5429668,
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.
because these days of receipt are on Saturday and Sunday, the
date of receipt is deemed to be Monday, August 29, 2016.
Fed. R. Civ. P. 6(a) (1) (C) . Upon this evidence, Plaintiff was
required to file a complaint by November 28, 2016, ninety days
complaint arising out of the second EEOC charge by November
Accordingly, Defendant has carried its burden of establishing
Plaintiff attempts to rebut the three-day presumption of
receipt in two ways.
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
letters in the mail."
(PL's Resp. to Mot. to Dismiss, at 2,
representation that she correctly calendared the filing date,
statement from her client that she received the Right to Sue
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.
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
Charleston and Macon.
counsel then "affirms"
in brief that mail
deposited in Savannah routinely takes more than three days to
received the Right to Sue letters.
to Dismiss, at 2. )
(See PL's Resp.
This representation is speculative at best
and therefore insufficient to rebut the three-day presumption.
the three-day mail rule was created to take into
no evidence of record to rebut the
presumption that Plaintiff received the letters on August 29,
and therefore, the complaint had to have been filed by
complaint until November 30, 2016, it is untimely with respect
to both EEOC charges.
Cf. Norris v. Fla.
Dep't of Health &
a claim filed one day beyond
("Courts apply the ninety-day time limit strictly and
a suit for missing the deadline by even one
Plaintiff's complaint (doc. 8)
is hereby GRANTED.
is directed to CLOSE this case and ENTER JUDGMENT in favor of
ORDER ENTERED at Augusta, Georgia, this
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