Langston v. MPS Group et al

Filing 20

OPINION AND ORDER GRANTING 10 MOTION to Dismiss for Failure to State a Claim and for Insufficient Service of Process by Defendant Caravan Facilities Management; GRANTING 14 MOTION to Dismiss for Failure to State a Claim by Defendant MPS Group. Pl aintiff Jeffrey T Langston's Complaint is DISMISSED WITH PREJUDICE. This ruling does not foreclose the Plaintiff from seeking remedy for a potential defamation claim in state court should he wish to do so. Signed by Chief Judge Theresa L Springmann on 9/22/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JEFFREY T. LANGSTON, SR.,
Plaintiff,
v.
MPS GROUP, CARAVAN FACILITIES
MANAGEMENT, and UNION LOCAL
2209,
Defendants.

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CAUSE NO.: 1:17-CV-279-TLS

OPINION AND ORDER
Jeffrey T. Langston, Sr., a pro se litigant, filed a Complaint [ECF No. 1] against
Defendants MPS Group (MPS), Caravan Facilities Management (Caravan), and Union Local
2209 (Union Local) on July 7, 2017, alleging unlawful discrimination under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–34, as well as “other” complaints
of workplace favoritism, harassment, and otherwise being singled out unfairly at work. The
Plaintiff alleges that he received a Notice of Right to Sue from the EEOC on April 6, 2017, but
does not attach a copy of that letter to his Complaint.
On August 24, 2017, Defendant Caravan Facilities Management filed a Motion to
Dismiss [ECF No. 10] for failure to state a claim under Fed. R. Civ. P. 12(b)(6), insufficient
service of process under Fed. R. Civ. P. 12(b)(5), and failure to timely file a complaint within
ninety days of receiving a Notice of Right to Sue from the EEOC. On September 1, 2017,
Defendant MPS filed a Motion to Dismiss [ECF No. 14], concurring in Defendant Caravan’s
arguments in Caravan’s Motion to Dismiss. Defendant Union Local’s time to answer the
Complaint was extended until October 30, 2017 [ECF No. 17].

On September 11, 2017, the Plaintiff filed a Response [ECF No. 16] to Defendants MPS
and Caravan’s Motions to Dismiss. In response to the Defendants’ argument regarding the
timeliness of his Complaint following receipt of the EEOC’s Notice of Right to Sue, the Plaintiff
admitted that he did not file his Complaint until ninety-three days after receiving the Notice, but
argued that his Complaint was timely filed because there were three federal holidays in the
interim (Good Friday, Memorial Day, and July Fourth) that “should not be held against [him].”
(Pl. Resp. Br. 1–2.)
Defendant Caravan filed a Reply [ECF No. 19] to the Plaintiff’s Response on September
18, 2017. Defendant MPS did not file a Reply within the proscribed time limits. Although
Defendant Union Local has not filed an answer, such an exercise is moot because the Court finds
that the Plaintiff’s suit is time-barred.

ANALYSIS
Under 42 U.S.C. § 2000(e)-5(f), a plaintiff who brings an employment discrimination
claim under Title VII of the ADEA must file his claim in a district court within ninety days of his
receipt of a right-to-sue notice from the EEOC. See Jones v. Madison Serv. Corp., 744 F.2d
1309, 1310 (7th Cir. 1984). “Compliance with the 90-day limit is not a jurisdictional
prerequisite, but it is a ‘condition precedent’ to relief.” Scott v. Coca Cola Enter., Inc., No 2:05CV-41, 2005 WL 1661808, at *4 (N.D. Ind. July 15, 2005) (citing Perkins v. Silverstein, 939
F.2d 463, 470 (7th Cir. 1991)). Thus, courts apply this rule strictly, dismissing cases even if the
complaint is filed a single day late. See Faris v. Ind. Univ.-Purdue Univ. at Indianapolis, 1999
WL 349195, at *3 (7th Cir. May 27, 1999) (filed one day late); Childrey v. United Ins. Co. of
Am., 1994 WL 709332, at *1 (7th Cir. Dec. 15, 1994) (filed one day late); Anooya v. Hilton

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Hotels Corp., 733 F.2d 48, 49 (7th Cir. 1984) (filed one day late); Jones, 744 F.2d at 1310 (filed
two days late); Moses v. U.S. Steel Corp., 946 F. Supp. 2d 834, 842 (N.D. Ind. 2013) (filed one
day late); Wells-Darden v. Brady’s This Is It, Inc., 2010 WL 987208, at *2 (N.D. Ind. Mar. 12,
2010) (filed one day late); Hines v. Serv. Corp. Int’l, 2008 WL 2692033, at *2 (N.D. Ill. July 1,
2008) (filed three days late); Minor v. Lakeview Hospital, 421 F. Supp. 485, 486 (E.D. Wis.
1976) (filed one day late).
However, the time period in which a Plaintiff may file suit in federal court may be
equitably tolled under certain, limited circumstances. Such tolling is limited to “situations in
which the claimant has made a good faith error (e.g. brought suit in the wrong court) or has been
prevented in some extraordinary way from filing his complaint on time.” Jones, 744 F.2d at
1314. Here, the Plaintiff argues that he believed that federal holidays counted towards the ninety
day period and that such an error should not be held against him. However, the Federal Rules of
Civil Procedure make clear that a party must “count every day, including intermediate Saturdays,
Sundays, and legal holidays.” Fed. R. Civ. P. 6(a)(1); see also Grzanecki v. Bravo Cucina
Italiana, 408 F. App’x 993, 996 (7th Cir. 2011). “[C]onfusion regarding whether holidays were
included in the ninety day period afforded does not qualify as a good faith error tantamount to
filing . . . suit in the wrong court.” Hines v. Serv. Corp. Int’l, No. 08 C 856, 2008 WL 2692033,
at *2 (N.D. Ill. July 1, 2008).
That the Plaintiff is proceeding pro se does not excuse his misunderstanding. See Schmidt
v. Wis. Civ. Of Vocational Rehab., 502 F. App’x 612, 614 (7th Cir. 2013) (“[M]istakes of law
(even by plaintiffs proceeding pro se) generally do not excuse compliance with deadlines or
warrant tolling a statute of limitations.”). See also, e.g., Webster v. St. Vincent Hosp., No 1:08CV-27, 2008 WL 1808693, at *1 (S.D. Ind. Apr. 21, 2008) (“Even though [the plaintiff] is

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proceeding pro se, her asserted lack of knowledge of the 90-day deadline does not excuse the
fact that the lawsuit was not timely filed.”); Brown v. Ill. Dept. of Public Aid, 318 F. Supp. 2d
696, 699 (N.D. Ill. 2004) (“Despite [the plaintiff’s] pro se status, the time limit is not flexible and
the delay is fatal to his claim.”); Clark v. Residents’ Journal, No. 02 C 7933, 2003 WL
21518553, at *3 (N.D. Ill. July 2, 2003) (no good faith error when pro se plaintiff believed only
business days counted towards ninety-day period); Flaherty v. Ill. Dep’t of Corrs., No. 94 C
1065, 1995 WL 290398, at *2 (N.D. Ill. May 10, 1995) (no tolling where pro se plaintiff
believed that federal holidays did not count towards the ninety-day period). Cf. Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 850–51 (7th Cir. 2001) (“While [the plaintiff’s] failure to
understand the implications of the right-to-sue notice elicits sympathy, procedural requirements
established by Congress for gaining access to the federal courts are not to be disregarded by
courts out of a vague sympathy for particular litigants.”) (quoting Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984)).
Although “dismissing an action as untimely at the pleading stage is unusual, we have
held that a district court may so proceed under Rule 12(b)(6) if the plaintiff pleads herself out of
court by making allegations that conclusively establish the action’s untimeliness.” Grzanecki,
408 F. App’x at 996 (affirming dismissal). See also Portillo v. Zebra Tech. Corp., 154 F. App’x
505, 507 (7th Cir. 2005) (affirming dismissal); Knight v. Cty. Of Milwaukee, No. 98-2510, 1998
WL 846857, at *2 (7th Cir. Nov. 25, 1998) (affirming dismissal); Mullins v. Arcelormittal Ind.
Harbor LLC, No. 2:11-CV-256, 2012 WL 405674, at *2 (N.D. Ind. Feb. 7, 2012) (granting
motion to dismiss). Not only is it clear on the face of the Plaintiff’s Complaint that he did not file
within the ninety-day period, but the Plaintiff also explicitly admits as much in his Response to
the Defendants’ Motions to Dismiss; he instead chooses to argue that the ninety-day period

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should be tolled because he believed that federal holidays did not count. As noted above, a
mistake regarding whether federal holidays count is not the kind of mistake that gives rise to
equitable tolling. Thus, the Plaintiff, by his own pleadings, has conclusively established that his
action is untimely, and his action must therefore be dismissed.
The Court notes that, in his Complaint, the Plaintiff references an instance of alleged
“defamation.” (Compl. 15, ECF No. 1.) However, the Plaintiff cites to no case law or statute in
in connection with this reference. Given that the Plaintiff has filed this case as an employment
discrimination case and that, overwhelmingly, the allegations in his Complaint serve to
demonstrate harassment and favoritism, the Court construes this allegation as evidence in
support of his harassment claims. The Court does not construe this allegation as stating a statelaw claim in tort for defamation. The Plaintiff offers no allegations that support any other
construction. Because the Court does not construe this allegation as a claim under state law, the
Court need not consider whether the Court has jurisdiction to hear the claim or whether the claim
can survive a 12(b)(6) motion to dismiss.
For the reasons stated above, the Court: GRANTS the Defendants’ Motions to Dismiss
[ECF Nos. 10, 14] and DISMISSES the Complaint [ECF No.1] WITH PREJUDICE. Because
the Court finds that the Plaintiff’s action is time-barred, the Court need not consider the
remainder of the parties’ arguments. This ruling does not foreclose the Plaintiff from seeking
remedy for a potential defamation claim in state court should he wish to do so.
SO ORDERED on September 22, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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