Andrews v. 1788 Chicken, LLC et al

Filing 27

ORDER denying, without prejudice, 8 Motion for Judgment on the Pleadings. Plaintiff has two (2) weeks as of the date of this order to file with the court an amended complaint (see order for details). Thereafter, Defendant will have two (2) weeks to file its responsive pleading or motion. Signed by District Judge Henry T. Wingate on 9/25/2024 (RWS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DEBRA ELIZABETH ANDREWS

PLAINTIFF

vs.

CIVIL ACTION No.: 3:22-CV-00276-HTW-LGI

1788 CHICKEN, LLC D/B/A ZAXBY’S
AND JOHN DOES 1-10

DEFENDANTS

ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE
PLEADINGS WITHOUT PREJUDICE AND GRANTING PLAINTIFF LEAVE TO
FILE AN AMENDED COMPLAINT
BEFORE THIS COURT is [Docket No. 8], a motion by Defendant 1788 Chicken, LLC
d/b/a Zaxby’s (“Defendant” or “Zaxby’s”) for judgment on the pleadings under Rule 12(c) of the
Federal Rules of Civil Procedure, 1 filed on September 15, 2022, [Docket No. 8], supported by
Defendant’s memorandum of points and law, [Docket No. 9]. Plaintiff, argues Defendant, failed
to sign and file a “charge of discrimination” with the Equal Employment Opportunity Commission
(“EEOC”) until after the expiration of the statutory deadline, thus failing administratively to
exhaust her claim. Id. Defendant argues that Plaintiff therefore failed to state a claim on which
relief can be granted, warranting dismissal under Rule 12(b)(6) 2. Id.
Plaintiff Debra Elizabeth Andrews (“Plaintiff”) filed an opposition on September 20, 2022,
[Docket No. 12], supported by Plaintiff’s memorandum of points and law [Docket No. 13]. In it,
Plaintiff argues her suit should not be dismissed for two reasons: (1) Plaintiff alleges the EEOC
was at fault for the tardy signing of a formalized charge of discrimination, and “Plaintiff should
1

“After the pleadings are closed—but early enough not to delay trial—a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c).

2

“[A] party may assert the following defenses by motion: … failure to state a claim upon which
relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).
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not be punished,” [Docket No. 13] at 3; and (2) Plaintiff alleges that she did file a charge with the
EEOC by way of filling out an online intake questionnaire within days of Defendant’s alleged
discriminatory acts. Id.
Defendant filed a reply brief on September 27, 2022. [Docket No. 14]. Plaintiff filed an
unauthorized sur-reply on October 4, 2022, [Docket No. 16], which this Court struck on
Defendant’s uncontested motion in this Court’s order of August 22, 2023, [Docket Nos. 17, 18,
23]. Magistrate Judge LaKeysha Greer Isaac subsequently stayed the case on November 16, 2022,
on Defendant’s unopposed motion. [Docket Nos. 19, 20, 21].
I.

BACKGROUND

A. Plaintiff’s Complaint
On May 25, 2024, Plaintiff filed suit against her former employer, Defendant, for sex
discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964 (“Title
VII”). [Docket No. 1].
Plaintiff alleges as follows: Plaintiff began working for Defendant as a cashier in June
2021. Id. at ¶6. Between July 6 and July 13, 2021, Plaintiff’s District Manager, Corey Porter
“continuously and consistently made improper and lewd sexual comments and remarks to Plaintiff,
and otherwise created a hostile working environment for Plaintiff because of Plaintiff’s gender”
against Plaintiff’s wishes. Id. at ¶¶7, 8. Specifically, on July 6, while the two were alone, preparing
to open the store, Porter “asked Plaintiff if she needed a hug, and she replied that she did not like
to be touched.” Id. On a subsequent day, “Plaintiff was alone washing dishes and Mr. Porter
walked up behind her and hit her back.” Id.
On July 13, 2021, Porter “grab[bed] Plaintiff’s phone from her back pant’s [sic] pocket
several times and he stated that he was looking for her pictures,” told “Plaintiff that he wanted to
see her tattoos because he was thinking of getting his wife a tattoo on her buttock,” and again “hit
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Plaintiff hard in the back.” Id. Allegedly, Plaintiff’s General Manager witnessed these incidents
and “told [Porter] that if Plaintiff did not come in the next day, he was not to say anything about
it.” Id. “Plaintiff informed the General Manager that if she resigned from her job, it would be
because of Mr. Porter. The General Manager in turn offered Plaintiff one dollar more per hour.”
Id. The same day, “while Plaintiff was bent over[,] Mr. Porter kneed her in the buttock” and “took
Plaintiff’s phone again[,] this time holding it over his head, so Plaintiff was not able to reach it,”
telling her that he would “catch her slipping one day.” Id. Two other employees were present.
Id. After her shift, Plaintiff informed the General Manager by text that she would not return to
work. Id. Citing the severity of Porter’s treatment, Plaintiff alleges that her resignation on July
13 amounted to “constructive[] discharge” and that Defendant “knew or reasonably should have
known of [Porter’s] conduct.” Id. at ¶¶8, 10. Plaintiff demanded trial by jury and seeks money
damages in a variety of categories. Id. at ¶¶10–12, Prayer for Relief.
Plaintiff alleges that she “filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) and received a favorable determination.” Id. at ¶8. Plaintiff
filed with her Complaint what Plaintiff calls a “Right to Sue Letter.” Id. Plaintiff generally alleges
that “[a]ll other prerequisites to filing this suit have been met.” Id.
On inspection, the “Right to Sue Letter” is a “Dismissal and Notice of Rights” form issued
on March 8, 2022. Id., Ex. A. The letter is on EEOC letterhead, is addressed to Plaintiff, and lists
Plaintiff’s EEOC representative as Investigator Cassandra Evans-Brown. Id. The letter contains
a “Charge No.” of “423-2021-01109” in the header. Id. The letter begins by noting that the EEOC
was “closing this charge because [Plaintiff’s] charge was not filed within the time limits under the
law; in other words, [Plaintiff] waited too long after the date of the alleged discrimination to file
[her] charge.” Id. The letter then goes on to give “Notice of [Plaintiff’s] Right to Sue,” in which

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the EEOC informs Plaintiff that Plaintiff must “file a lawsuit against the respondent(s) on this
charge under federal law” within 90 days. Id.
B. Defendant’s Subsequent Factual Submissions
Defendant thereafter filed the instant motion for judgment on the pleadings, arguing that
“Plaintiff ha[d] failed to state a plausible claim for relief due to her failure to timely exhaust her
administrative remedies.” [Docket No. 8] at ¶6. Specifically, Defendant argued that Plaintiff “did
not file her EEOC Charge until February 16, 2022—over a month after the 180-day deadline to
file a charge.” Id. at ¶3. In support, Defendant submitted to this Court a copy of Plaintiff’s EEOC
Form 5 Charge of Discrimination. Id., Ex. A. The form bears the “Agency(ies) Charge No(s)” of
“423-2021-01109,” Plaintiff’s name, home phone number, and address, the name, address, and
approximate number of employees of Defendant, the date range of alleged discrimination, a short,
written narrative recounting similar facts to those Plaintiff later pled in her Complaint, and a
“Charging Party Signature” section, reading:
I declare under the penalty of perjury that the above is true and
correct.
Digitally Signed By: Debra E. Andrews
02/16/2022
Id.
C. Plaintiff’s Subsequent Factual Submissions
To support her opposition, Plaintiff filed several factual submissions, including through
numbered paragraphs of a Response and an attached notarized affidavit with exhibits, [Docket No.
12] at ¶1-7; [Docket No. 13], Ex. 1, Exs. A–F, including as follows:
Plaintiff “filed with the EEOC online to report the sexual harassment by Corey Porter while
employed at Zaxby’s” on July 19, 2021, and “was assigned an appointment of August 6” for an

Page 4 of 20

interview. Id., Ex. 1 at ¶1. Plaintiff does not declare what was involved in “fil[ing] with the EEOC
online,” but in her response pleads that she “filed her initial inquiry (questionnaire) online, and
subsequently received email confirmation of said inquiry.” Id., Ex. 1 at ¶1. Plaintiff attaches in
support her emailed appointment confirmation, which, per the metadata, appears to have been
pulled from the online EEOC Public Portal on July 19, 2021. Id., Ex. 1 at Ex. A. The confirmation
lists Plaintiff’s name and contact information, along with the “Jackson” office address and an
“Appointment Code” of “423-2021-01109.” Id. At the end of the confirmation, the EEOC invites
Plaintiff to “click ‘Next’ below to answer a few important questions about [her] inquiry.” Id.
Plaintiff subsequently spoke on the phone with Investigator Evans-Brown for
approximately eleven minutes on August 6, 2021, based on Plaintiff’s phone logs. Id., Ex. 1 at ¶2,
Ex. B. Plaintiff does not describe the conversation. Id.
Plaintiff did not receive any contact from the EEOC until December 6, 2021. Id., Ex. 1 at
¶4. Plaintiff repeatedly logged into her EEOC portal to monitor her status. Id. at ¶3. Plaintiff’s
counsel also emailed [e-mail] on November 10, 2021, with Plaintiff’s name and
“423-2021-01109” in the subject line, requesting an update and attaching a letter of representation.
Id., Ex. 1, Ex. C. Plaintiff pleads that “said letter made [the EEOC] aware of issues with the online
portal and requested an update on the claim as the deadline 3 was quickly approaching.” Id. at ¶4.
Plaintiff declares she called Investigator Evans-Brown on December 6, 2021, for an
update—though the attached call logs show Evans-Brown called Plaintiff. Id., Ex.1 at ¶4, Ex. D.
Evans-Brown thereafter emailed Plaintiff on January 25, 2022, stating:

3

The EEOC is “is empowered … to prevent any person from engaging in any unlawful
employment practice as set forth in” related code sections, but, first, a complainant shall file “a
charge … within one hundred and eighty days after the alleged unlawful employment practice
occurred[.]” 42 U.S.C. § 2000e–5(a), (e)(1).
Page 5 of 20

Our office has been trying to contact you regarding an inquiry you
submitted in our office with the intent to file a charge. A charge has
been prepared and sent to you on 12/6/2021. Please contact us if you
wish to continue to file a charge.
Id., Ex. 1 at ¶5, Ex. E. Plaintiff declares this was the first communication she or her attorney
received from the EEOC since the December 6, 2021, call. Plaintiff says she never received the
prepared “charge” the EEOC referenced, and Evans-Brown had not mentioned an available charge
to be signed on that phone call. Id., Ex. 1 at ¶3, 5, 7. Plaintiff called Evans-Brown, and EvansBrown informed her “that [her] charge was supposed to be signed on December 6, 2021, and that
now it had expired [and her] only recourse was to go the Right to Sue route.” Id. at Ex. 1, ¶5.
Plaintiff’s call logs show she called Investigator Evans-Brown again on February 16, 2022,
for a twelve-minute phone call, and received a one-minute phone call in return about twenty
minutes later. Plaintiff declares she received confirmation 4 of filing on that day. Id., Ex. 1, ¶6.
II.

LAW AND DISCUSSION
A. Standing of Motion

Defendant has moved for judgment on the pleadings under Rule 12(c) of the Federal Rules
of Civil Procedure, seeking dismissal with prejudice for Plaintiff’s purported failure to state a claim
upon which relief may be granted. [Docket No. 8].
1. Waiver
While motions to dismiss for failure to state a claim upon which relief can be granted
ordinarily “must be made before pleading if a responsive pleading is allowed,” Fed. R. Civ. P.
12(b), this Court is satisfied that Defendant did not waive its exhaustion argument by failing to
move prior to its responsive pleading. In Defendant’s answer, Defendant included affirmative

4

Plaintiff claims this was via an attached confirmation email, but the attachment is actually a call
log. Id., Ex. 1 at ¶6, Ex. F.
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defenses that “[t]he Complaint fails to state a claim upon which relief can be granted, in whole or
in part,” and “Plaintiff’s claims are barred … by any applicable statute of limitations.” 5 [Docket
No. 6] at 1. Defendant also asserts that “Plaintiff’s claims are barred to the extent she has failed
to exhaust her administrative remedies” by way of affirmative defense and responsive pleading—
albeit errantly 6 asserting that this presents an “jurisdiction[al]” issue. Id. at 1, 4–5. Further, a
“[f]ailure to state a claim upon which relief can be granted … may be raised: … by a motion under
Rule 12(c).” Fed. R. Civ. P. 12(h)(2).
2. Standards of Review
“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard
as a motion to dismiss under Rule 12(b)(6),” and “[t]he central issue is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief.” Doe v. MySpace, Inc., 528
F.3d 413, 418 (5th Cir. 2008) (internal citations omitted). This Court determines whether,
accepting Plaintiff’s facts as true, id., Plaintiff has pled “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).
“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under

5

That said, such conclusory affirmative defenses stand on shaky ground. Defendant listed
nineteen affirmative defenses, the majority of which are unsupported by well-pled factual
allegations. Courts disfavor this type of “shotgun pleading” style “where the pleader heedlessly
throws a little bit of everything into his complaint in the hopes that something will stick.” See,
e.g., S. Leasing Partners, Ltd. v. McMullan, 801 F.2d 783, 788 (5th Cir. 1986) (quoting Rodgers
v. Lincoln Towing Serv., Inc., 596 F.Supp. 13, 27 (N.D. Ill. 1984), aff’d, 771 F.2d 194 (7th Cir.
1985)), recognized as abrogated on other grounds by Childs v. State Farm Mut. Auto. Ins. Co., 29
F.3d 1018, 1024 n.18 (5th Cir. 1994).
6

Fort Bend Cty., Texas v. Davis, 587 U.S. 541, 139 S. Ct. 1843, 1851 (2019) (“Title VII’s chargefiling requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription
delineating the adjudicatory authority of courts.”).
Page 7 of 20

Rule 56” 7 and “[a]ll parties must be given a reasonable opportunity to present all the material that
is pertinent to the motion.” Fed. R. Civ. P. 12(d). As an exception, the court may consider attached
documents “that are referred to in the plaintiff's complaint and are central to the plaintiff’s claim.”
Allen v. Hays, 812 F. App’x 185, 189 (5th Cir. 2020) (per curiam) (quoting Sullivan v. Leor Energy,
LLC, 600 F.3d 542, 546 (5th Cir. 2010)).
In their filings on this motion, both Defendant and Plaintiff have made evidentiary
offerings outside of what was filed with their initial pleadings. Defendant attaches what Defendant
purports 8 to be Plaintiff’s signed EEOC Form 5 Charge of Discrimination. [Docket No. 8], at ¶5,
Ex. A. Plaintiff attaches her own notarized affidavit and several supporting exhibits. [Docket No.
13], Ex. 1. Defendant posits its own exhibit should be “considered part of the pleadings” because
Plaintiff pled filing a charge but did not attach a copy, and Defendant does not object to Plaintiff’s
evidence. [Docket No. 9] at 5 (quoting Carter v. Target Co., 541 Fed. App’x 413 (5th Cir. 2013)
(quoting Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)); [Docket
No. 14]. Plaintiff does not object to Defendant’s exhibit and offers no argument as to how this
Court should treat her own evidence. See generally [Docket Nos. 12, 13].
Because the parties “present[ed] documents outside the pleadings and ask[ed] the Court to
review them,” this Court decides “whether [the] motion for judgment on the pleadings should be
converted to one for summary judgment.” See Buckhalter v. Nat’l Union Fire Ins. Co. of
Pittsburgh, P.A., No. 3:22-cv-131-KHJ-MTP, 2023 WL 9233807, at *3 (S.D. Miss. Feb. 3, 2023).
Neither party has requested conversion. Indeed, Defendant indicates the Court should treat
7

“The court shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a)).
8

Defendant does not authenticate this document by declaration, nor explains its source, see
generally [Docket Nos. 8, 9], but Plaintiff does not object. See generally [Docket Nos. 12, 13].
Page 8 of 20

Defendant’s evidence as intrinsic to the pleadings and its motion as one under Rule 12(b)(6). See
supra. This Court finds that, while it has reviewed the evidence to determine appropriate relief,
this Court has not relied on extrinsic evidence (i.e., “matters outside the pleadings”) to adjudge on
the pleadings. 9 See infra. This Court therefore evaluates this motion as under Rule 12(b)(6), even
with the submissions of the parties. 10
B. Administrative Exhaustion
A plaintiff generally may not file suit in federal court under Title VII without first
exhausting administrative remedies. This requires (1) filing a timely charge with the EEOC and
(2) receiving a notice from the EEOC of the right to sue. Ernst v. Methodist Hosp. Sys., 1 F.4th
333, 337 (5th Cir. 2021) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002)).
Administrative exhaustion is not a jurisdictional requirement, but
neither is it merely a procedural “gotcha” issue. Instead,
administrative exhaustion is a mainstay of proper enforcement of
Title VII remedies and exists to facilitate the EEOC’s investigation
and conciliatory functions and to recognize its role as primary
enforcer of anti-discrimination laws.
Id. (cleaned up; internal quotations omitted). “A charge under [Title VII] shall be filed within one
hundred and eighty days after the alleged unlawful employment practice occurred[.]” 42 U.S.
Code § 2000e–5(e). The EEOC provides Form 5 Charge of Discrimination, and a properly
completed form will likely satisfy the first step of administrative exhaustion.
9

For the purposes of this order, this Court considers the evidence attached by Defendant and
Plaintiff as evidence referred to in Plaintiff’s complaint (i.e., in Plaintiff’s allegations that she
“filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC)”
and that “[a]ll other prerequisites to filing this suit have been met,” [Docket No. 1] at ¶8) and
central to her claims. Due the timing of Defendant’s motion, Plaintiff did not have the opportunity
to amend her complaint as a matter of course. Fed. R. Civ. P. 15(a)(1). This Court thus further
treats her evidence as a proffer that Plaintiff could cure a defect by amending.
10

However, assuming arguendo that the Court were to convert this motion into one for summary
judgment, this Court would similarly treat Plaintiff’s allegations and inferences as true and would
likely come to the same conclusions as herein.
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Here, Plaintiff interviewed with EEOC Investigator Evans-Brown and alleges she filled
out an intake questionnaire on July 19, 2021, within days of the alleged discrimination. [Docket
No. 13], Ex. 1 at ¶1, Exs. A, B. Plaintiff thereafter signed—and received confirmation of
submission of—a formal EEOC Form 5 on February 16, 2022, over a month after the 180-day
deadline. [Docket No. 8], Ex. A; [Docket No. 13], Ex. 1 at ¶6. The EEOC notified Plaintiff of her
right to sue on March 8, 2022. [Docket No. 1], Ex. A.
1. Excusal of Untimely Charge
Plaintiff argues that, should the signed February 16, 2022, EEOC Form 5 be considered
the operative charge, “Plaintiff should not be punished” for its tardy signing. [Docket No. 13] at
3. Rather, Plaintiff asserts that “Plaintiff and her counsel [were] diligent in their efforts to file a
charge within the statutory time limits” and the fault for the motion’s tardiness lies with the EEOC
(i.e., “due to the untimely response and inactions of Investigator Evans-Brown”). Id. The Court
construes this argument as a request for this Court equitably to toll Plaintiff’s charge-filing
deadline, given neither the EEOC nor Evans-Brown are parties to this matter. Accord [Docket No.
14] at 1, 3–5 (Defendant reaching the same conclusion).
The court may toll or excuse a deadline when fairness or equity demand, akin to
“enlarg[ing] the statute of limitations.” See Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th
Cir. 1996). This Circuit and the Supreme Court already have established that “filing a timely
charge of discrimination with the EEOC … is subject to … equitable tolling.” Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982); Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 521
(5th Cir. 2008). Thus, “the application of equitable tolling [is] a fact-specific, discretionary
matter” for this Court to determine. Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011).
“Equitable tolling is to be applied ‘sparingly[,]’” and “[t]he plaintiff has the burden[.]” Id.
(citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) and Wilson v. Sec’y, Dep’t
Page 10 of 20

of Veterans Affairs, 65 F.3d 402, 404 (5th Cir.1995) (per curiam)). The Fifth Circuit has identified
“at least three bases for equitable tolling” in the Title VII context:
(1) the pendency of a suit between the same parties in the wrong
forum; (2) plaintiff's unawareness of the facts giving rise to the
claim because of the defendant’s intentional concealment of them;
and (3) the EEOC’s misleading the plaintiff about the nature of her
rights.
Id. (citation omitted). Generally, a party seeking equitable tolling must show “(1) that [s]he has
been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in h[er]
way” to prevent timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). What is an
“extraordinary circumstance” will vary by case.
Plaintiff exercised some degree of diligence in pursuing her rights: she contacted the EEOC
days after the alleged discrimination, “consistently logged into [her] portal and contacted
Investigator Evans-Brown for a status on [her] claim,” and retained an attorney to represent her in
her claim. [Docket No. 13], Ex. 1 at ¶¶1, 3, 7. This Court, however, does not find that Plaintiff
was prevented from timely filing due to “negligence” by Investigator Evans-Brown. Id., Ex. 1 at
¶8. Plaintiff’s call records show that Investigator Evans-Brown called Plaintiff on December 6,
2021, and talked to Plaintiff for over twenty minutes. Id., Ex. 1, Ex. D. Even if Plaintiff is correct
that Plaintiff called Investigator Evans-Brown, the call records would show that the Investigator
made herself available immediately for a long, unexpected phone call. Id. Investigator EvansBrown also claims that she prepared and sent Plaintiff a charge on December 6, 2021. Id., Ex. 1,
Ex. E. There is no evidence that Plaintiff attempted to contact the EEOC or Investigator EvansBrown for an update in the following month prior to the deadline. Therefore, Plaintiff and her
counsel’s allegations of negligence based on not “receiv[ng]” updates or the charge, even if true,
ring hollow. Id., Ex. 1 at ¶3, 5, 7. Further, none of the Fifth Circuit’s enumerated bases for
equitable tolling justifies that remedy under these facts.
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Plaintiff’s counsel was involved as early as November 2021, when she emailed a letter of
representation to the EEOC’s intake email. Id., Ex. 1 at ¶3. According to Plaintiff’s response,
which is unsupported by an attorney declaration or a copy of the letter, the letter of representation
“requested an update on the claim as the deadline was quickly approaching.” Id. at ¶4. This
indicates Plaintiff’s counsel was at least aware of an impending deadline, and this Court presumes
Plaintiff’s counsel had the requisite knowledge and experience to be aware of the specific EEOC
charge-filing deadlines. Despite knowing of a deadline limiting her client’s rights, purportedly
receiving no response or update from the EEOC, and purportedly being unable to log in to the
EEOC portal, Plaintiff’s counsel chose not to call or contact the EEOC again prior to the deadline
or otherwise ensure her client’s charge timely was filed.
Courts are more “reluctant to apply equitable tolling to situations of attorney error or
neglect, because parties are bound by the acts of their lawyer.” Granger, 636 F.3d at 712.
“[E]gregious behavior” by an attorney may be a circumstance justifying equitable tolling.
Holland, 560 U.S. at 651. “[A] garden variety claim of excusable neglect” is not. Irwin v. Dep’t
of Veterans Affs., 498 U.S. 89, 96 (1990). Here, Plaintiff does not fault her own attorney or allege
ineffective assistance of counsel; she instead declares, “[I]t is … no fault of my own or my counsel
that I was not timely notified that my charge was available and had not been signed.” [Docket No.
13], Ex. 1. The situation appears as simple neglect, and this Court does not find “egregious
behavior” by Plaintiff’s counsel justifying equitable tolling.
For the foregoing reasons, the Court declines equitably to toll the statutory time limit for
Plaintiff’s requirement to file a charge of discrimination with the EEOC. [Docket No. 13] at 3.
2. Existence of a Timely Charge
Because Plaintiff will not be excused for the tardiness of her signing of the EEOC Form 5
Charge of Discrimination, this Court now considers her alternative argument—that Plaintiff
Page 12 of 20

“satisfied the … Title VII requirements when she filed the questionnaire and completed the initial
phone interview with Investigator Evans-Brown.” [Docket No. 13] at 3. Substantively, Plaintiff
argues that she did file a charge with the EEOC, prior to the statutory deadline. Id.
a. Legal Principles and Issue
“To exhaust, however, a claim need not always arise from the EEOC charge form. In some
circumstances, other documents can serve as a charge.” Ernst, 1 F.4th at 337. In Federal Express
Corporation v. Holowecki, the Supreme Court held that “if a filing is to be deemed a charge it [A]
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” and [B]
must include the information required by regulations. 552 U.S. 389, 402 (2008); see also 42 U.S.C.
§ 2000e–5(b) (“Charges shall be in writing under oath or affirmation and shall contain such
information and be in such form as the Commission requires.”). Under this framework, the Court
decided that a completed “Intake Questionnaire” along with an affidavit asking the EEOC to “force
Federal Express to end their age discrimination plan” was properly a charge for exhaustion
purposes. Id. at 405. 11 In EEOC v. Vantage Energy Services, Inc. (which Plaintiff cites), this
11

The Court in Holowecki made its determination through an administrative deference framework
and cited Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
which the Supreme Court has overruled after the briefing of this motion. Loper Bright Enterprises
v. Raimondo, No. 22-1219, 2024 WL 3208360, at *22 (U.S. June 28, 2024). This Court finds that
the holding of Holowecki remains sound for several reasons, including:

(1) the Loper Bright Court indicted it does “not call into question prior cases that relied on
the Chevron framework,” and “[t]he holdings of those cases .. are still subject to statutory stare
decisis despite our change in interpretive methodology,” id. at *21;
(2) the Holowecki Court was able to justify its holding without Chevron deference, instead
applying Skidmore v. Swift & Co., 323 U.S. 134 (1944), see 552 U.S. at 399–403, which Loper
Bright did not overrule, see 2024 WL 3208360, at *17; and
(3) because Plaintiff’s alleged exhaustion would have taken place prior to Loper Bright,
Plaintiff, Defendant, and the EEOC would have all understood the charge-filing requirements
under the Holowecki framework per the “presumption of legal knowledge” maxim.
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Circuit confirmed that Holowecki’s holding extends to Title VII. 954 F.3d 749 (per curiam), cert.
denied 141 S. Ct. 1048 (2021). The court confirmed that an “intake questionnaire” was a filed
charge where the claimant provided the information required by regulation and “checked ‘Box 2’
on the questionnaire, which states ‘I want to file a charge of discrimination, and I authorize the
EEOC to look into the discrimination I described above’” to meet “Holowecki’s additional requestto-act condition.” Id. at 754–55.
The Equal Employment Administration sets forth its charge-filing requirements via
regulation:
•

“[T]he term[] file … shall include all forms of digital transmission.” 29 CFR §
1601.3(b) (emphasis added).

•

“A charge shall be in writing and signed and shall be verified.” § 1601.9 (emphasis
added). “[T]he term verified shall mean sworn to or affirmed before a notary public,
designated representative of the Commission, or other person duly authorized by law
to administer oaths and take acknowledgements, or supported by an unsworn
declaration in writing under penalty of perjury.” § 1601.3(a) (emphasis added).

•

“Each charge should contain the following:
(1) The full name and contact information of the person making the charge
except as provided in § 1601.7;
(2) The full name and contact information of the person against whom the
charge is made, if known (hereinafter referred to as the respondent);
(3) A clear and concise statement of the facts, including pertinent dates,
constituting the alleged unlawful employment practices: See § 1601.15(b);

Page 14 of 20

(4) If known, the approximate number of employees of the respondent employer
or the approximate number of members of the respondent labor organization,
as the case may be; and
(5) A statement disclosing whether proceedings involving the alleged unlawful
employment practice have been commenced before a State or local agency
charged with the enforcement of fair employment practice laws and, if so, the
date of such commencement and the name of the agency.”
§ 1601.12(a) (emphasis added).
Additionally:
Notwithstanding the provisions of paragraph (a) of this section, a
charge is sufficient when the Commission receives from the person
making the charge a written statement sufficiently precise to identify
the parties, and to describe generally the action or practices
complained of. A charge may be amended to cure technical defects
or omissions, including failure to verify the charge, or to clarify and
amplify allegations made therein. Such amendments and
amendments alleging additional acts which constitute unlawful
employment practices related to or growing out of the subject matter
of the original charge will relate back to the date the charge was first
received. …
§ 1601.12(b) (emphasis added).
Plaintiff’s EEOC Form 5 already checks off each requirement. It is in writing, signed, and
verified because Plaintiff’s digital signature is accompanied by a declaration “under the penalty of
perjury that the above is true and correct.” [Docket No. 8], Ex. A; 29 CFR § 1601.3(a). Plaintiff
listed her name and contact information, Defendant’s name and address, an approximate number
of Defendant’s employees, and a statement of “particulars” including specific dates and alleged
discriminatory acts. Id.; § 1601.12(a). To the extent Plaintiff submitted an intake questionnaire
or other statement that did not include any specific requirement, the later submitted, verified Form

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5 amends it to cure any technical defects that relates back to the date of the intake questionnaire
(including verification itself). § 1601.12(b); see also Vantage Energy, 954 F.3d at 756 (in a similar
factual scenario, noting that “verification of a charge (and, by extension, an intake questionnaire
that qualifies as a charge) can occur outside the filing period”) (citing Edelman v. Lynchburg
College, 535 U.S. 106, 113, 118 (2002)).
Plaintiff must still have taken some minimum actions to have exhausted her claim: Within
180 days of the alleged discrimination, she must have filed with the EEOC (perhaps by
transmission through an online portal or email) “a written statement sufficiently precise to identify
the parties, and to describe generally the action or practices complained of,” that meets
Holowecki’s request-to-act condition. § 1601.3(b); § 1601.12(b).
b. Sufficiency of Plaintiff’s Pleadings
Plaintiff’s complaint alleges that she “filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) and received a favorable determination. A true
and correct copy of the Right to Sue Letter to Plaintiff is attached hereto as Exhibit ‘A’.” [Docket
No. 1] at ¶8 (emphasis added). Nothing in the numbered paragraphs of the Complaint states a
“charge of discrimination” was filed before the deadline. This Court cannot simply infer timeliness
in Plaintiff’s favor; Plaintiff notes only a single charge in her complaint, and its timeliness is
contradicted by the Right to Sue Letter, which states that the “charge was not filed within the time
limits under the law,” and the filed Form 5, which was signed after the deadline. [Docket No. 1],
Ex. A; [Docket No. 8], Ex. A.
Plaintiff also alleges that “[a]ll other prerequisites to filing this suit have been met.”
[Docket No. 1] at ¶8. Defendant argues that this is a “blanket allegation … insufficient to survive
dismissal,” quoting case law that “conclusory statement[s]” are inadequate. [Docket No. 9] at 5–

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6 (citing case law including Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) and
Carter v. Target Corp., 541 F. App'x 413, 417 (5th Cir. 2013)). But “[i]n pleading conditions
precedent, it suffices to allege generally that all conditions precedent have occurred or been
performed.” Fed. R. Civ. P. 9(c).
Although not raised by the parties, the Court considers whether Rule 9(c) of the Federal
Rules of Civil Procedure may sustain Plaintiff’s complaint. The Vantage Energy court noted that
the “fail[ure] to plead with specificity that [claimant] timely filed his charge” was not fatal, as this
is a “condition[] precedent to suit governed by Rule 9(c), which, … c[an] be and w[as] generally
pled.” Vantage Energy, 954 F.3d at 753 n.4 (emphasis added). 12 This Court, however, finds that
Plaintiff’s allegation was not a well-pled Rule 9(c) statement because Plaintiff splits her
allegations: she pleads that she filed a charge (and does not say when) and then states “[a]ll other
prerequisites to filing this suit have been met.” [Docket No. 1] at ¶8 (emphasis added). The scope
of these “conditions precedent” does not include charge-filing. Even if it did, as Defendant points
out, the allegation is belied by the intrinsic evidence showing Plaintiff’s Form 5 was filed after the
deadline. [Docket No. 9] at 5–6.
Plaintiff’s later-submitted evidence does not rescue her complaint. While Plaintiff avers
that she completed an intake questionnaire, she submits no evidence or allegation that the
questionnaire met Holowecki’s request-to act condition, and the intake questionnaire is not before
this Court. Compare Goode v. Early Encounters, Inc., No. 2:21-CV-152-RPM, 2022 WL 4488010,
at *1 (S.D. Miss. Sept. 27, 2022) (denying motion to dismiss after plaintiff attached her

12

(citing CHARLES A. WRIGHT & ARTHUR R. MILLER, 5A FED. PRAC. & PROC. CIV. §
1303 (4th ed.) for the proposition, “[I]f the defendant properly challenges the subdivision (c)
allegation, a disputed issue will have been raised that may be resolved only on a summary
judgment motion or at trial.”).
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questionnaire, in which “box 2” was checked, to her opposition for the court’s consideration).
Investigator Evans-Brown hints that Plaintiff met the request-to-act condition, referencing “an
inquiry you submitted in our office with the intent to file a charge” in her January 2022 email.
[Docket No. 13], Ex. 1 at ¶5, Ex. E. Given Plaintiff’s multiple phone calls with Investigator EvansBrown, however, it is unknown whether this “intent” was “submitted” verbally or in writing. If
Plaintiff had shown it was the latter, it would demonstrate exhaustion.
c. Amendment of Pleadings
While this Court is not yet convinced that Plaintiff has adequately pleaded exhaustion, this
Court is also not yet convinced that Plaintiff’s suit should be dismissed with prejudice. The Federal
Rules of Civil Procedure direct this Court to “freely give[s] leave” for parties to amend their
pleadings when justice so requires.” Fed. R. Civ. P. 12(b). This Court finds that justice requires
providing Plaintiff an opportunity to cure this exhaustion problem.
First, ordinarily, Defendant would have raised a Rule 12(b)(6) motion to dismiss prior to
filing its answer. In that scenario, Plaintiff could have amended her complaint to submit additional
evidence of exhaustion without consent from Defendant or leave of this Court. Fed. R. Civ. P.
15(a)(2). Defendant deprived Plaintiff of that opportunity by raising this motion after the time for
amendments as a matter of course had elapsed.
Second, amendment is not likely to be futile. Plaintiff had multiple interviews with
Investigator Evans-Brown. [Docket No. 13], Ex. 1 at ¶¶2, 4, Exs. B, D. Plaintiff’s appointment
confirmation shows that she at least provided her name, contact information, and local EEOC
office (City of Jackson) to the EEOC, and the EEOC invited her to provide more information. Id.,
Ex. 1 at ¶1, Ex. A. Indeed, this July 2021 confirmation bore a code that the verified Form 5 and
Right to Sue Letter later identified as her “Charge No.” Id.; [Docket No. 1], Ex. A; [Docket No.

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8], Ex. A. Plaintiff alleges she submitted an intake questionnaire, and Investigator Evans-Brown
states that she made an inquiry “with the intent to file a charge.” Id., Ex. 1 at ¶5, Ex. E. Evidently,
Plaintiff had provided Investigator Evans-Brown with enough information that the latter could
prepare and send her a charge for signing by December 2021. Id.
Third, although Plaintiff did not demonstrate the diligence and impediment required to
justify equitable tolling (see supra), Plaintiff did contact the EEOC almost immediately after the
alleged discrimination took place. [Docket No. 13], Ex. 1 at ¶1, Ex. A. This at least shows
Plaintiff’s then-existing intent to pursue her remedies through administrative channels.
Fourth, this Court wishes to guard itself and the parties from the possibility that Plaintiff’s
suit is frivolous. Plaintiff clearly understands Holowecki’s request-to act condition, as she
highlighted Vantage Energy’s requirement that “box 2 of the questionnaire is checked saying that
the claimant wants to file a charge” in a motion response otherwise bereft of argument and analysis.
[Docket No. 12] at ¶8. Yet, despite introducing various pieces of evidence, including call-logs,
Plaintiff does not append a copy of her intake questionnaire to her opposition. Defendant calls this
omission “telling[],” [Docket No. 14] at 2, and this Court shares Defendant’s concern. Further,
Plaintiff does not even allege in her affidavit that she checked “box 2” of the questionnaire. This
case should not proceed through lengthy and costly discovery and litigation only for the Court and
parties to discover at the eleventh hour that the claims are barred by a threshold exhaustion issue.
The true explanation may be benign: perhaps Plaintiff did not have time to find or request a copy
of her questionnaire by the due-date of her motion response. 13 But a long time has now passed,
and this Court will give Plaintiff two more weeks to amend her complaint.

13

This Court notes for record clarity that Plaintiff’s stricken sur-reply also did not append a copy
of this intake questionnaire.
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III.

CONCLUSION

This Court will proceed with this case if Plaintiff can present a written statement pre-dating
the deadline, that [A] may 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 and [B] meets the criteria for a charge under 29 CFR § 1601.12(b). If Plaintiff is unable
adequately to demonstrate that such a written statement existed, the Court will be inclined to grant
Defendant’s motion and dismiss this action with prejudice. To allow Plaintiff to so demonstrate,
this Court will grant Plaintiff leave to amend her complaint under Rule 15(a)(2) of the Federal
Rules of Civil Procedure.
IT IS, THEREFORE, ORDERED that Defendant’s motion is DENIED without
prejudice, and Plaintiff has two (2) weeks as of the date of this order to file with the court an
amended complaint that refers to and—in addition to Plaintiff’s signed EEOC Form 5 and the
presently pled Right to Sue letter—attaches as an exhibit Plaintiff’s initial intake questionnaire or
otherwise adequately demonstrates that Plaintiff filed a timely charge with the EEOC that meets
the requirements discussed herein. Besides regarding administrative exhaustion, no additional
amendments are permitted. Thereafter, Defendant will have two (2) weeks to file its responsive
pleading or motion.
SO ORDERED this the

25th

day of September , 2024.

/s/ HENRY T. WINGATE
HENRY T. WINGATE
UNITED STATES DISTRICT COURT JUDGE

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