Gardner v. State of Michigan et al

Filing 27

ORDER Adopting Report and Recommendation 25 17 denying defts' Motion to Dismiss. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MALINDA GARDNER,
Case No. 14-14134
Plaintiff,
Honorable Nancy G. Edmunds
v.
STATE OF MICHIGAN, ET AL.,
Defendants.
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OPINION AND ORDER ACCEPTING THE MAGISTRATE JUDGE’S JULY 15, 2015
REPORT AND RECOMMENDATION [25]
This pro se employment discrimination matter comes before the Court on Defendants'
objections to the Magistrate Judge's July 15, 2015 Report and Recommendation [25].
Being fully advised in the premises and having reviewed the record and the pleadings,
including Defendants' objections, the Court hereby ACCEPTS AND ADOPTS the
Magistrate Judge's Report and Recommendation. It is further ordered that Defendants'
motion to dismiss [17] is DENIED.
Defendants maintain that the Magistrate Judge's recommendation to deny their motion
to dismiss is legally infirm for two reasons: First, they argue that, because Plaintiff failed to
file her complaint within ninety-days of receiving a final agency decision and right-to-sue
letter from the EEOC, she is jurisdictionally barred from pursuing her claims under Title VII.
In the alternative, Defendants contend that Plaintiff has failed to establish that she is
entitled to equitable tolling, thus requiring a dismissal on the merits. The Court considers
each of Defendants' arguments in turn.

As a preliminary matter, there is seemingly no dispute that Plaintiff failed to file her
complaint within the ninety-day limitations period set forth under 29 C.F.R. § 1614.407. See
Stone v. Sec'y of Dep't of Homeland Sec., No. 12-15031, 2013 WL 3270954, at *2 (E.D.
Mich. June 27, 2013) ( "[t]o invoke one's rights under Title VII, 42 U.S.C. § 2000–e2et seq.,
. . . a plaintiff must file a civil complaint within ninety days of receiving a final agency
decision . . . ." ). Defendants' first argument asserts that this failure prevents the Court from
exercising jurisdiction over Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(1). This
argument has been expressly considered--and rejected--by the Sixth Circuit in Truitt v.
Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998). In Truitt, the court held that "the
ninety-day time limitation in Title VII cases is not jurisdictional; therefore, equitable tolling
is available." Id; see also Stone, 2013 WL 3270954, at *2 ("[a]lthough the procedural
guidelines for filing a discrimination suit are strict, failing to comply with the ninety-day time
period for filing a complaint does not strip the court of jurisdiction to hear the claim.").
Indeed, under Defendants' reasoning, the Court would never be permitted to entertain an
argument concerning the applicability of equitable tolling in the context of a Title VII
complaint. The absurdity of this proposition is especially apparent where, as here, Plaintiff
sets forth specific allegations suggesting that the EEOC, despite her urging, failed to
properly update her address of record. As such, the Court finds that the "ninety-day filing
requirement of 42 U.S.C. § 2000e–5(f)(1) is not a jurisdictional requirement but, instead,
is a timing requirement similar to a statute of limitations, subject to waiver, estoppel and
equitable tolling." Id at 646-47.

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Nor is the Court persuaded by Defendants' alterative argument; namely, that Plaintiff
has failed "to establish that she is entitled to any kind of equitable tolling." (Def.'s Obj. 5).
First and foremost, Defendants' motion was filed under Fed. R. Civ. P. 12(b)(1), which is
limited to challenges to the Court's subject-mater jurisdiction. Moreover, even if the Court
was inclined to consider Defendants' argument under Rule 12(b)(6), Plaintiff has sufficiently
alleged--albeit not yet substantiated--a right to equitable tolling. Indeed, according to
Plaintiff, the "EEOC was notified in writing [that she moved], yet continued to send
documents to the wrong address. Case manager Johnnie King acknowledged mistake re
address, offered numerous reasons." (Plf.'s Resp. 2). While Defendants correctly point out
that Plaintiff bears the burden of proving that she is entitled to equitable tolling, one of the
many factors the Court must consider is the moving party's diligence in pursuing their
rights. Truitt, 148 F.3d at 648. At this juncture, there is simply not enough evidence before
the Court to determine whether the limitations period should be tolled. As such, the Court
must, and does, DENY Defendants' objection in this regard.
For the reasons thus stated, the Court DENIES Defendants' objections and ADOPTS
the Magistrate Judge's Report and Recommendation.

SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 21, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record
on August 21, 2015, by electronic and/or ordinary mail.
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s/Carol J. Bethel
Case Manager

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