OBriant v. Nestle Dryers Ice Cream et al

Filing 3

MEMORANDUM. Signed by Judge Ellen L. Hollander on 4/17/2018. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PHILIP O’BRIANT,

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Plaintiff

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v

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NESTLE DRYERS ICE CREAM,
KELLI QUINN, Supervisor,
CAITLIN BERMAN, HR Generalist,
LANIK McINTYRE, Human Resources
Manager,
BILL WOODS, Plant Manager,

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Civil Action No. ELH-18-1048

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Defendants
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MEMORANDUM
On April 11, 2018, Philip O’Briant, the self-represented plaintiff, filed suit against his
former employer. In his Complaint, captioned as a claim for damages based on employment
discrimination, O’Briant asserts wrongful discharge on May 23, 2014, based on racial
discrimination. ECF No. 1. He provides a Notice of Right to Sue letter, dated June 26, 2015,
advising him that he had 90 days to file a lawsuit against his employer in state or federal court.
Id. at 7.
Under 28 U.S.C. § 1915(e)(2)(B)(ii) a case shall be dismissed “at any time if the court
determines that . . . the action . . . fails to state a claim on which relief may be granted.” Federal
Rule of Civil Procedure 8(a) sets forth a liberal pleading standard, which requires only a “ ‘short
and plain statement of the claim showing the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what ... the claim is and the grounds upon which it rests.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
The court is mindful that the pleadings of self-represented litigants are accorded liberal

construction. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). Moreover, courts are
charged with liberally construing a complaint filed by a pro se litigant to allow for the
development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). But,
liberal construction does not mean a court can ignore a clear failure to allege facts that set forth a
cognizable claim. See Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990).
Even under the liberal standard of review for pro se pleadings, the Complaint cannot
procced, because it is clearly time-barred. See Clarke v. DynCorp Int'l LLC, 962 F. Supp. 2d
781, 787 (D. Md. 2013) (concluding that plaintiff who “failed to file a civil suit during the 90–
day period indicated in the right-to-sue letter issued in response to his … charge of
discrimination” could not thereafter “make claims based on the allegations in that charge” (citing
42 U.S.C. § 2000e– 5(f)(1)); Ford v. Master Sec. Co., LLC, No. PWG-15-2220, 2016 WL
1752897, at *3 (D. Md. May 3, 2016). Once the charge is filed with the EEOC and the employee
receives a right-to-sue letter regarding either a Title VII claim or an age discrimination claim, the
employee has ninety days to bring his or her civil action against the employer. 42 U.S.C. §
2000e–5(f)(1); 26 U.S.C. § 626(e); see also Angles v. Dollar Tree Stores, Inc., 494 F. App'x 326,
328 (4th Cir. 2012).
This time limit is not jurisdictional, however. The Fourth Circuit has repeatedly applied
an equitable tolling analysis to the ninety-day filing requirement set out in 42 U.S.C. § 2000e–
5(f)(1). See Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, 1999 WL 556446, at *3 (4th Cir.
July 30, 1999) (“[W]e have engaged in a ‘case-by-case examination to determine if an equitable
tolling of the filing period is appropriate.’” (quoting Harvey v. City of New Bern Police Dep't,
813 F.2d 652, 654 (4th Cir.1987))); Dale v. Md. Dep't of Transp., ELH–13–191, 2015 WL
221628, at *12 (D. Md. Jan. 15, 2015). In calculating the date on which the period begins to run,

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the Fourth Circuit has rejected a mechanical approach or a strict “actual receipt” rule, and instead
has focused on the facts of each case to determine when receipt occurred. See Strothers v. City
of Laurel, Md., 118 F. Supp. 3d 852, 860–61 (D. Md. 2015).
The facts are not favorable to O’Briant, who has filed several employment discrimination
actions in this Court in the recent past. In O’Briant v. Atlas Container Corp., JFM-16-2616 (D.
Md.), his amended complaint was dismissed, without prejudice, to give him time to complete
administrative proceedings before the EEOC or the Maryland Human Relations Commission.
Id., ECF 4, Order of September 7, 2016. This led to O’Briant v. Rhodes, et al., JFM-17-1050 (D.
Md.), in which O’Briant sued EEOC employees based on dissatisfaction with the outcome of
EEOC proceedings against Atlas. The case was dismissed for lack of jurisdiction on April 24,
2017. Id., ECF 3. The federal filing deadline for EEOC actions in federal court was referenced
in the Order. Id., ECF 3 at 3. A third action, O’Briant v. Rhodes, Civil Action No. RDB-18-855
(D. Md.), also against EEOC employees, was likewise dismissed on March 30, 2018. The
dismissal in that case also referenced the 90-day deadline for filing a federal complaint following
an unsuccessful EEOC determination. Id., ECF 3, n. 1.
O’Briant provides no explanation as to why he ignored the 90-day deadline for seeking
federal review of his employment discrimination claim. Although equitable tolling may be
considered in certain circumstances, the Court concludes that O’Briant, who filed employment
discrimination cases in the past, was on notice of the filing deadline, and the deadline here
expired more than two and a half years ago.
Therefore, plaintiff’s suit is subject to dismissal. An Order follows.
Date: April 17, 2018

/s/
Ellen L. Hollander
United States District Judge

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