Summers v. Walgreen Company

Filing 7

OPINION and ORDER Granting 4 MOTION to Dismiss and Brief in Support of Motion to Dismiss AND ( Amended Complaint due by 5/10/2016) - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHEN SUMMERS,
Plaintiff,
v.

Case No. 15-cv-12836
Honorable Laurie J. Michelson
Magistrate Judge Elizabeth A. Stafford

WALGREEN COMPANY and WALGREEN
PHARMACY SERVICES MIDWEST, LLC,
subsidiary of Walgreen Company,
Defendants.
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [4]
Plaintiff Stephen Summers, a former managerial employee with Defendant Walgreen
Company (“Walgreens”), alleges that he was terminated in violation of the federal Age
Discrimination in Employment Act (“ADEA”) and Michigan law. Defendants have filed a
motion to dismiss (or on the alternative, for summary judgment), arguing that Plaintiff’s ADEA
claim is untimely and that his other allegations fail to state a plausible claim for relief.
I. LEGAL STANDARD
When a defendant moves to dismiss pursuant to Rule 12(b)(6), the plausibility standard
articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), governs. Under that standard, a court first culls legal conclusions from the
complaint, leaving only factual allegations to be accepted as true. Iqbal, 556 U.S. at 679. The
inquiry then becomes whether the remaining assertions of fact “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Although
this plausibility threshold is more than a “sheer possibility that a defendant . . . acted
unlawfully,” it is not a “‘probability requirement.’” Id. (quoting Twombly, 550 U.S. at 556).

Whether a plaintiff has presented enough factual matter to “‘nudg[e]’” his claim “‘across the line
from conceivable to plausible’” is “a context-specific task” requiring this Court to “draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679, 683 (quoting Twombly, 550 U.S.
at 570).
Because the Court can address Defendants’ motion without resort to documents outside
of the Complaint and the exhibits to the Complaint, and no discovery has been conducted, the
Court will not address Defendants’ summary-judgment arguments.
II. ALLEGATIONS OF THE COMPLAINT
Summers was employed with Walgreens for twenty-five years. (Dkt. 1, Compl., at ¶ 2.)
He was responsible for “organizing and managing the start-up of new stores in the Michigan
area[.]” (Id.) He achieved “very favorable appraisal[s] of job performance by supervisors.” (Id. at
¶ 13.) He even was made the “‘chief trainer’ for others who held his position.” (Id. at ¶ 14.)
Nonetheless, he was “presented with the choice of being terminated or forced to accept a lesser
compensation.” (Id. at ¶ 3.) Ultimately, he was discharged on January 19, 2015. (Id. at ¶ 4.) He
asserts that Walgreens’ actions violated the Age Discrimination Act and “comparable Michigan
legislation.” (Id. at 6.)1 Summers filed a complaint with the EEOC, and received a right-to-sue
letter, which was mailed to him on May 8, 2015. (Compl. Ex. A.)
Summers filed suit in this Court on August 12, 2015. He asserts three claims: “Age
Discrimination Act Violations” (Count I); Wrongful Termination (Count II); and “Breach of
Contract for an Implied Term of Employment” (Count III). Defendants have filed a motion to
dismiss. (Dkt. 4). The motion is fully briefed. (Dkts. 5, 6.) After careful consideration of the

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Summers acknowledges that in his Complaint, his age “was not set forth, regrettably[.]”
(Resp. at 5.)
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briefs and thorough review of the pleadings, the Court finds that oral argument will not aid in
resolving the pending motion. See E.D. Mich. LR 7.1(f)(2).
III. ANALYSIS
A complainant who has filed an individual EEOC complaint pursuant to the ADEA may
file an action in the appropriate United States district court within 90 days of “receipt” of a rightto-sue letter. 42 U.S.C.A. § 2000e-16(c); 29 C.F.R. § 1614.407. “The Sixth Circuit has resolved
that notice is given, and hence the ninety-day limitations term begins running, on the fifth day
following the EEOC’s mailing of a [Right to Sue] notification to the claimant’s record residential
address, by virtue of a presumption of actual delivery and receipt within that five-day duration,
unless the plaintiff rebuts that presumption with proof that he or she did not receive notification
within that period.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 502,
557 (6th Cir. 2000) (citing cases); Fuller v. Michigan Dep’t of Transp., 580 F. App’x 416, 424
(6th Cir. 2014) (characterizing Graham-Humpherys’ holding as a “strict presumption”). Thus, a
plaintiff “presumptively receives” an RTS letter, and the statute of limitations begins to run, five
days after the EEOC mails the letter—unless the plaintiff can rebut the presumption. Rodney v.
LaHood, 359 F. App’x 634, 637 (6th Cir. 2010). “The federal courts have strictly enforced” the
ninety-day time limit. See Graham-Humphreys, 209 F.3d at 557 (6th Cir. 2000). “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. . . . ‘[i]n the long run,
experience teaches that strict adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration of the law.’” Baldwin Cty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (quoting Mohasco Corp. v. Silver, 447 U.S.
807, 826 (1980)).

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In this case, Summers attached his EEOC determination to his Complaint. (Dkt. 1 at
PageID 7.) It was mailed on May 8, 2015. (Id.) Under Sixth Circuit law, the 90-day statute of
limitations began to run on May 13, 2015. Graham-Humphreys, supra; King v. Henderson, 230
F.3d 1358 (6th Cir. 2000) (explaining that “‘notice’ occurs upon either actual or constructive
receipt by a discrimination claimant of an official advisory”). Summers says that he actually
received the letter on May 14, 2015, but mere denials of receipt are typically not enough to rebut
the Graham-Humphreys presumption of receipt. Cook v. Providence Hosp., 820 F.2d 176, 179
n.3 (6th Cir. 1987) (holding that the plaintiffs’ “denials [of receipt were] not sufficient to support
a reasonable conclusion that the letter was not received.”). Thus, Summers had to file his
Complaint by August 11, 2015 (90 days from May 13, 2015) in order for it to be timely.
Summers in fact filed his Complaint on August 12, 2015. (Compl.) That is one day late. See E.D.
Mich. LR App’x ECF Rule 6(a) (“A case is not considered filed until an initiating paper has been
uploaded and a judicial officer has been assigned to the case.”).
Summers’ counsel represents that “the actual filing of the Complaint was made the day
before, but did not appear in the Court records until the next day. The Clerk was contacted and a
deputy advised that he could see what happened and said the easiest way around the cyber
problem was to refile, which was done.” (Dkt. 5-1, Resp. at 5.) It thus appears that Summers
argues the late filing should be excused due to difficulties with electronic filing.
But Summers has not shown that his “cyber problem” was a “Technical Failure” within
the meaning of this District’s rules on electronic case filing:
a malfunction of Court-owned/leased equipment (e.g., hardware, software or
telecommunication facility) that occurs continuously or intermittently for more
than one hour after 12:00 noon (Eastern Time) that day, and which results in the
inability of a filing user to file papers electronically.

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E.D. Mich. LR App’x ECF Rule 1(l).2
And even if Summers had alleged that the “cyber problem” was a “Technical Failure,”
Summers has not alleged (let alone evidenced) that he followed the procedures for handling such
a failure:
[a] paper may be submitted to the Court as indicated below, provided that it is
accompanied by an affidavit of the filing user’s failed attempts to file
electronically at least two times after 12:00 noon, each attempt separated by at
least one hour. The following methods of filing are acceptable in the case of a
technical failure:
(1) Via e-mail sent that day with PDF attachment to the e-mail address for
technical failures ([e-mail]); or
(2) Via electronic filing the next business day that ECF is operational.
E.D. Mich. LR App’x ECF Rule 13(a).
Nor has Summers’ counsel indicated that the problem was due to a malfunction of his
own equipment. See E.D. Mich. LR App’x ECF Rule 13(b) (“A filing user who suffers prejudice
as a result of a malfunction of the filing user’s own equipment may seek appropriate relief from
the Court.”).
Thus, the Court is not convinced that it should consider the Complaint to have been filed
on August 11, 2015, rather than on August 12, 2015, which is the date reflected in the ECF
docket report.
Nor does equitable tolling apply. First, Summers has not asked for it. See Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that “filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable

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The Court inquired internally whether there was a malfunction, as defined in the rule,
on August 11, 2015. There was not.
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tolling.”). And, “Even where a plaintiff misses the filing deadline by only one day, [the Court]
will not excuse this failure if other circumstances do not justify equitable tolling.” McKibben v.
Hamilton Cty., 215 F.3d 1327 (6th Cir. 2000).The Sixth Circuit has applied five factors to
determine when to equitably toll a statute of limitations:
1) lack of notice of the filing requirement; 2) lack of constructive knowledge of
the filing requirement; 3) diligence in pursuing one’s rights; 4) absence of
prejudice to the defendant; and 5) the plaintiff’s reasonableness in remaining
ignorant of the particular legal requirement.
Graham-Humphreys, 209 F.3d at 561 (quoting Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th
Cir. 1998)). The EEOC letter makes clear that any lawsuit should be filed within 90 days.
Nonetheless, he did not file suit until August 12, 2015. There is no indication that this delay
“unavoidably arose from circumstances beyond that litigant’s control.” Graham-Humphreys, 209
F.3d at 561. It is unclear whether Summers’ delay caused prejudice to Defendants, but that factor
is generally only considered when there is a showing on one of the other factors. See Doan v.
NSK Corp., 266 F. Supp. 2d 629, 638 (E.D. Mich. 2003). For these reasons, the Court will not
apply equitable tolling.
Accordingly, Summers’ ADEA claim will be dismissed as untimely.
Summers’ other claims all fall under state law. However, whether the Court has diversity
jurisdiction over those claims is unclear. Under 28 U.S.C. § 1332(a), “there must be complete
diversity such that no plaintiff is a citizen of the same state as any defendant.” V & M Star, LP v.
Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2010); see also Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267 (1806). Because a corporation is considered a citizen of both its place of
incorporation and its principal place of business, see 28 U.S.C. § 1332(c)(1), a plaintiff
attempting to invoke diversity jurisdiction when suing a corporation must allege both the
corporation’s state of incorporation and its principal place of business. Vaughn v. Holiday Inn
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Cleveland Coliseum, 56 F. App’x 249, 250 (6th Cir. 2003) (citing Acwoo Int’l Steel Corp. v.
Toko Kaiun Kaish, Ltd., 840 F.2d 1284, 1290 (6th Cir. 1988)). Because “a limited liability
company has the citizenship of each of its members . . . the court needs to know the citizenship
of each member of the company.” Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005
(6th Cir. 2009). “And because a member of a limited liability company may itself have multiple
members—and thus may itself have multiple citizenships—the federal court needs to know the
citizenship of each ‘sub-member’ as well.” Id.
Here, Summers named both “Walgreen Company” and “Walgreen Pharmacy Services
Midwest, LLC” in his Complaint. Defendants’ motion makes it clear that those are two separate
entities. (Mot. at 1 n.1.) But Summers did not allege the citizenship of Walgreen Pharmacy
Services Midwest, LLC in his Complaint. Nor did he allege Walgreen Company’s state of
incorporation. Without this information, the Court cannot say whether it has diversity jurisdiction
over Summers’ state claims.
Thus, as of now, the only established basis for this Court’s jurisdiction over Summers’
state-law claims is supplemental jurisdiction based on Summers’ federal ADEA claim. But the
Court has decided that claim warrants dismissal. “[A] federal court that has dismissed a
plaintiff’s federal-law claims should not ordinarily reach the plaintiff’s state-law claims.” Moon
v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006).
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss (Dkt. 4) is GRANTED.
The Complaint is DISMISSED. However, the Court GRANTS Summers leave to file an
amended complaint that adequately addresses diversity jurisdiction as well as the pleading
deficiencies raised by Defendants in their motion to dismiss. Summers shall file any amended

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complaint by May 10, 2016. If Summers fails to do so, the Court will enter judgment in favor of
Defendants.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: April 26, 2016

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on April 26, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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