Calhoun v. Hinds County Department of Human Services et al

Filing 12

(corrected) MEMORANDUM AND OPINION GRANTING 3 motion to dismiss filed by MDHS. (*corrects 11 : page 4, should have stated March 24, '2011', rather than '2012'. This document reflects corrected date) Signed by District Judge Tom S. Lee on 12/6/12 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MARSHA L. CALHOUN

PLAINTIFF

VS.

CIVIL ACTION NO. 3:12CV715TSL-MTP

HINDS COUNTY DEPARTMENT OF
HUMAN SERVICES AND MICHAEL
MILLER

DEFENDANTS

CORRECTED
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Mississippi Department of Human Services (MDHS), erroneously
designated “Hinds County Department of Human Services”, to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff Marsha L. Calhoun opposes the motion, and the court,
having considered the parties’ memoranda, concludes that the
motion should be granted.
Plaintiff filed suit against defendants on October 19, 2012,
contending that while she was employed by MDHS, she was subject to
sexual harassment, sex discrimination, a hostile work environment
and retaliation, all caused by her immediate supervisor, defendant
Michael Miller.

According to the complaint, within three months

of the commencement of her employment with MDHS in October 2009,
Miller began making unwelcome verbal and physical sexual advances
toward her.

Despite her reporting Miller’s offensive conduct to

Program Integrity, the harassment did not abate.

Further, in

retaliation for refusing his sexual advances, Miller denied

Calhoun a promotion and accused her of fraud, which ultimately
resulted in her termination on March 24, 2011.

On this factual

basis, the complaint purports to state claims against defendants
under both Title VII and 28 U.S.C. § 1983 and seeks compensatory
as well as punitive damages.
By its motion, MDHS urges that dismissal of the Title VII
claims is required inasmuch as Calhoun failed to file a timely
charge of discrimination with the EEOC.

See 42 U.S.C. § 2000e-

5(e)(1) (Title VII claimant must file charge of discrimination
within 180 days after “alleged unlawful employment practice
occurred” or that time frame serves as statute of limitations for
such claims).1

Specifically, MDHS points out that the Charge of

1

In its motion, MDHS made two additional, and plainly
meritorious arguments, which were unaddressed and apparently
conceded by plaintiff. First, it points out that as it is a state
agency, the Eleventh Amendment bars any putative claims under 42
U.S.C. § 1983 claims. See Edelman v. Jordan, 415 U.S. 651,
662–663, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974) (holding
that “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another State”); see also Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S. Ct. 684, 687, 121
L. Ed. 2d 605 (1993) (recognizing that Eleventh Amendment bar
extends to State and agencies acting under its control, “arms of
the state”); Carter v. Mississippi Dept. of Human Servs., Civil
Action No. 3:05-CV-190 HTW-JCS, at *2 (S.D. Miss. September 29,
2006) (finding that MDHS was a state agency entitled to Eleventh
Amendment immunity). Secondly, the State is not subject to
punitive damages under either Title VII or § 1983. See Oden v.
Oktibbeha County, Miss., 246 F.3d 458, 466 (5th Cir. 2001) (stating
that Title VII precludes award of punitive damages against
governmental entity); City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981) (concluding
that punitive damages are unavailable for § 1983 claims against
2

Discrimination which plaintiff has appended to the complaint was
not filed until July 19, 2012, more than 484 days after her March
2011 termination and thus, is untimely.
For her part, plaintiff maintains that she did file a timely
EEOC charge in October 2011; she contends that she later re-filed
the charge in July 2012 only because the EEOC failed to rule on
her original charge.

Alternatively, she contends that because she

has been diligent in pursuing her rights, exceptional
circumstances warrant equitable tolling of the administrative
limitations period for her claims.

See Granger v. Aaron’s Inc.,

636 F.3d 708, 711 (5th Cir. 2011) (stating “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 . . . equitable
tolling,” and concluding that equitable tolling may be available
where plaintiff has exercised due diligence in actively pursuing
judicial remedies, a relevant consideration of which is whether
plaintiff took steps which are recognized as important by statute
before the end of the limitations period) (internal citations
omitted).

Plaintiff offers the following in support of equitable

tolling:
She followed internal procedures regarding filing
complaints with Program Integrity, and then filed a

governmental entities).
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Charge with the EEOC within the 180 days allowed after she was
wrongfully terminated. After several months passed without
response from the EEOC, Calhoun followed up and was told that the
Charge would have to be re-filed. Calhoun immediately re-filed
the Charge and hired counsel. In light of these actions on the
part of Calhoun, obvious error or neglect on the part of the EEOC
in handling the Charge which was filed in October 2011, and the
lack of demonstrated prejudice to MDHS, this case presents
sufficient circumstances to support the application of equitable
tolling.
Accepting as true plaintiff’s allegation that she filed her
initial EEOC charge in October 2011, the charge was nonetheless
untimely.

As MDHS points out, it discharged plaintiff on March

24, 2011; 180 days from that date was September 20, 2011 and thus,
a charge filed in October 2011 would be untimely.

Further, the

court is not persuaded that the facts set out in the complaint
support a finding of equitable tolling.

Plaintiff’s equitable

tolling argument addresses only why the circumstances following
the filing of her alleged October 2011 charge support a finding by
the court on equitable grounds that her July 2012 charge is
timely; but she has offered no explanation as to why her alleged
October 2011 charge was not timely filed.

Contrary to plaintiff’s

assertion otherwise, there is no basis for a conclusion that she
took steps recognized as important by the statute within the
limitations period so as to warrant equitable tolling.
Accordingly, MDHS’s motion to dismiss will be granted.
Based on the foregoing, it is ordered that MDHS’s motion to
dismiss is granted.
SO ORDERED this 6th day of December, 2012.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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