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)

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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

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