Angelina v. University of Mississippi Medical Center

Filing 17

ORDER granting 8 Motion to Dismiss for the reasons set out in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on January 30, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ADLA D.H. ANGELINA

PLAINTIFF

v.

CIVIL ACTION NO. 3:14cv789-DPJ-FKB

UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER

DEFENDANT

ORDER
This Title VII case is before the Court on Defendant University of Mississippi Medical
Center’s (“UMMC”) Motion to Dismiss [8]. Because Plaintiff failed to timely file a charge of
discrimination with the EEOC, Defendant’s motion is granted.
I.

Facts and Procedural History
Plaintiff Adla Angelina, a Brazilian-Palestinian female, signed a one-year employment

contract with UMMC on August 6, 2012. On March 20, 2013, Angelina’s supervisor notified
her that UMMC would not renew her contract after June 30, 2013, and immediately placed her
on paid administrative leave until that date. Believing that her religion and national origin
motivated the decision, Angelina filed a formal Charge of Discrimination with the EEOC,
asserting discrimination under Title VII. She filed this suit after receiving a standard right-to-sue
notice.
UMMC has now moved to dismiss [8], asserting that Angelina’s Charge of
Discrimination was untimely and that she therefore failed to exhaust administrative remedies.
Angelina filed a short Response [14] to which UMMC replied [16]. The Court has personal and
subject-matter jurisdiction and is prepared to rule.

II.

Standard
In considering a motion to dismiss under Rule 12(b)(6), the “court accepts ‘all

well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” Martin K.
Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)). To overcome a Rule 12(b)(6)
motion, Plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be enough to
raise a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. at 555 (citations and footnote omitted). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
Ordinarily, a court should limit its Rule 12(b)(6) review to the contents of the pleadings,
including “documents either attached to or incorporated in the complaint.” Wilson v. Birnberg,
667 F.3d 591, 600 (5th Cir. 2012) (internal quotation marks omitted). But the Court “may also
consider matters of which [it] may take judicial notice.” Lovelace v. Software Spectrum Inc., 78
F.3d 1015, 1017–18 (5th Cir. 1996). The EEOC documents [14-5] attached to Plaintiff’s
response are matters of public record, so the Court will take judicial notice of them when
considering UMMC’s motion.1 Prewitt v. Cont.’l Auto., 927 F. Supp. 2d 435, 447 (W.D. Tex.

1

The remaining documents Angelina submitted, including her own affidavit, are not
properly before the Court on a motion under Rule 12(b)(6). The Court declines to convert the
motion to one for summary judgment under Rule 12(d) and will consider only those items
appropriate at the Rule 12(b)(6) stage.
2

2013) (collecting cases).
Finally, in this case, UMMC asserts that dismissal is proper because Angelina’s claims
are time-barred. “A statute of limitations may support dismissal under Rule 12(b)(6) where it is
evident from the plaintiff’s pleadings that the action is barred and the pleadings fail to raise some
basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
III.

Analysis
To bring a Title VII claim, a plaintiff alleging discrimination in employment must file a

charge of discrimination with the EEOC “within one hundred and eighty days after the alleged
unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). “Generally, when an
employment discrimination charge is untimely filed with the EEOC . . . , a suit based upon the
untimely charge should be dismissed.” Kirkland v. Big Lots Store, Inc., 547 F. App’x 570, 573
(5th Cir. 2013) (per curiam).
In this case, the parties agree that the 180-day period began the day Angelina learned
UMMC had terminated her employment—March 20, 2013. See Hartz v. Adm’rs of the Tulane
Educ. Fund, 275 F. App’x 281, 287 (5th Cir. 2008) (per curiam) (“[T]he operative date from
which the limitations period begins to run is the date of notice of the adverse action, not the date
that the adverse action takes effect.”). So Angelina had 180 days from March 20, 2013—or until
September 16, 2013—to file a charge of discrimination with the EEOC.
In her Complaint, Angelina states that she “timely filed a Charge of Discrimination with
the EEOC, a true and correct copy of the EEOC charge is attached hereto as Exhibit ‘A.’”
Compl. [1] ¶ 5. But the charge attached to the Complaint is dated October 15, 2013—nearly one
month after the 180-day period expired. Therefore, the Complaint, as currently drafted, fails to
3

state a claim upon which relief may be granted.
This finding does not, however, end the inquiry, because a court granting dismissal under
Rule 12(b)(6) “should not do so without granting leave to amend, unless the defect is simply
incurable.” Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). Here, Angelina offers
two arguments for avoiding ultimate dismissal. First, she now claims that another “charge”
preceded her October 15, 2013 Charge of Discrimination. Second, she alternatively seeks
equitable tolling. Neither argument prevails.
A.

Charge of Discrimination

Angelina asserts that on the final day of the 180-day period, she sent a facsimile to the
EEOC that constitutes a timely charge. See Pl.’s Resp. [15] Ex. A. That correspondence
describes the alleged discrimination and provides other basic information the EEOC requires.
See generally 29 C.F.R. § 1601.12(a). The question is whether the correspondence meets the
statutory and regulatory requirements for making a “charge.”
The parties agree that Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), controls
this issue. There, the United States Supreme Court concluded that documents other than the
EEOC’s official Charge of Discrimination form could constitute a “charge” for purposes of
timely administrative exhaustion under the ADEA. But the Court also held that not all
communications with the EEOC will constitute a “charge.” In particular, it is not enough to
merely satisfy 29 C.F.R. § 1626.6. Id. at 401–02. That regulation—like its Title VII
counterparts—states that a “charge shall be in writing and name the prospective respondent and
shall generally allege the discriminatory act(s).” 29 C.F.R. § 1626.6; see also id. §§ 1601.9,
1601.12 (a)(3) (requiring same for Title VII). As the Holowecki Court explained:
4

In addition to the information required by the regulations, i.e., an allegation and
the name of the charged party, if a filing is to be deemed a charge it must be
reasonably construed as a request for the agency to take remedial action to protect
the employee’s rights or otherwise settle a dispute between the employer and the
employee.
Holowecki, 552 U.S. at 402 (emphasis added).
Courts applying this test must examine the filings “from the standpoint of an objective
observer to determine whether, by a reasonable construction of its terms, the filer requests the
agency to activate its machinery and remedial processes.” Id. And because the plaintiff in
Holowecki expressly requested agency action, the Court construed her submissions as a “charge,”
though she never filed a formal Charge of Discrimination. Id. at 405.2
Turning then to Angelina’s sixteen-page facsimile to the EEOC, she does provide basic
intake information and describes the facts “constituting the alleged unlawful employment
practices.” 29 C.F.R. § 1601.12(a)(3). But she provided nothing “[i]n addition to” this
information. Nowhere in her submission does Angelina request any action or otherwise “activate
[the EEOC’s] machinery and remedial processes.” Holowecki, 552 U.S. at 402. She likewise
failed to describe discrimination “so clear or pervasive that the agency could infer from the
allegations themselves that action is requested and required.” Id. at 405.
Though the Fifth Circuit has not examined similar facts under the Holowecki test, district
courts within the circuit have found that such correspondence fails to satisfy the charge

2

Holowecki notes that the request-for-action requirement is not clearly stated in the
regulations but is consistent with the EEOC’s construction of its regulations and with the fact
that charges do not automatically follow from the receipt of allegations. Id. at 405. To the extent
the standard remains oblique, the Holowecki Court observed that the EEOC could clarify the
requirement by “adopt[ing] a standard giving more guidance to filers, making it clear that the
request to act must be stated in quite explicit terms.” Id. at 403 (emphasis added).
5

requirements. See, e.g., Rich v. Sam’s Town Hotel & Gambling Hall, No. 2:12CV070-SA-SAA,
2013 WL 486285, at *1–2 (N.D. Miss. Feb. 7, 2013); Nadesan v. Tex. Oncology PA, No.
2:10-CV-239-J, 2011 WL 147570, at *3–5 (N.D. Tex. Jan. 18, 2011); Asongwe v. Wash. Mut.
Card Servs. & Subsidiaries, No. 3:09-CV-0668-G (BH) ECF, 2009 WL 2337558, at *3 (N.D.
Tex. July 29, 2009); Evenson v. Sprint/United Mgmt. Co., No. 3:08-CV-0759-D, 2008 WL
4107524, at *7 (N.D. Tex. Aug. 21, 2008). The Court agrees and concludes that Angelina failed
to timely exhaust her administrative remedies.
B.

Equitable Tolling

Angelina alternatively argues that the time for filing her charge should be equitably
tolled. The Fifth Circuit has “identified three potential bases for equitable tolling: (1) the
pendency of a suit between the same parties in the wrong forum; (2) the plaintiff’s lack of
awareness of the facts supporting [her] claim because of the defendant’s intentional concealment
of them; and (3) the EEOC’s misleading the plaintiff about [her] rights.” Manning v. Chevron
Chem. Co., 332 F.3d 874, 880 (5th Cir. 2003).
Angelina pursues the third basis for equitable tolling, insisting the delay is attributable to
the EEOC for two reasons. First, when the EEOC prepared the Charge of Discrimination form
that Angelina filed on October 15, 2013, it listed the latest date of discrimination as June 30,
2013, which would make her October 15, 2013 Charge of Discrimination timely. Second,
Angelina observes that the federal government was shut down between October 1, 2013 and
October 16, 2013.
Neither of these events equitably tolls her claim, because both occurred after the
expiration of the limitations period. Angelina waited until September 16, 2013, to fax her
6

information to the EEOC. This was the 180th day of the 180-day limitation period. So by the
time the “misleading” events occurred, her claim was already time barred. See Manning, 332
F.3d at 881 (holding that equitable tolling exists only when “incorrect information . . . leads the
individual to file an untimely charge” (emphasis deleted)). And in any event, the Complaint
itself fails to “raise some basis for tolling or the like.” Jones, 339 F.3d at 366. Angelina failed to
file a timely charge.
IV.

Conclusion
The Court has considered all arguments. Those not specifically addressed would not

have changed the outcome. For the foregoing reasons, Defendant University of Mississippi
Medical Center’s Motion to Dismiss [8] is granted, and Plaintiff’s claims are dismissed with
prejudice. A separate final judgment will be entered in accordance with Federal Rule of Civil
Procedure 58.
SO ORDERED AND ADJUDGED this the 30th day of January, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

7