Moody v. Chilhowee R-IV School District

Filing 28

ORDERED that Plaintiff's Motion to Reconsider the Appointment of Counsel 23 is DENIED WITHOUT PREJUDICE to its reassertion; Plaintiff's Motion to Reconsider Judgment 24 is GRANTED; the Court's order dismissing this case with preju dice 21 and the judgment 22 are VACATED, and the Clerk of the Court is directed to re-open this case; and the parties are directed to file a proposed discovery plan and scheduling order pursuant to Local Rule 16.1(d) on or before February 17, 201 1. The proposed discovery plan and scheduling order shall be presented in accordance with the directives in the Courts previous Order, Doc. No. 13. Given plaintiffs pro se status, defendant shall take the lead in preparing the proposed scheduling ord er for execution and filing with the Court. It is further ORDERED that the Clerk of the Court send a copy of (1) this order and (2) the Courts previous order regarding discovery plan and scheduling order (Doc. No. 13), via regular and certified mail to Plaintiff at the following address: Sheree A. Moody, 306 Grover Apt. C, Warrensburg, MO 64093. **Copy of this order and doc 13 sent via regular and certified (article # 7006 0810 0004 8499 6129) as directed. Signed on 1/10/2012 by Chief District Judge Fernando J. Gaitan, Jr. (Baldwin, Joella)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SHEREE A. MOODY,
Plaintiff,
v.
CHILHOWEE R-IV SCHOOL DISTRICT,
Defendant.

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) No. 11-0536-CV-W-FJG
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ORDER
Pending before the Court are (1) Plaintiff’s Motion to Reconsider the Appointment
of Counsel (Doc. No. 23); and (2) Plaintiff’s Motion to Reconsider Judgement (Doc. No. 24).
I.

Background
Plaintiff’s complaint alleges violations of Title VII due to defendant’s alleged “racial

discrimination, sexual harassment, retaliation and disability, wrongful termination, wrongful
disciplinary action,” because of plaintiff’s color, disability, and sex. See Doc. No. 8, ¶¶4,
5. Plaintiff attaches as an exhibit her charge of discrimination dated February 11, 2011.
Doc. No. 8, Ex. 1, p. 3. On August 18, 2011, defendant filed a motion to dismiss, indicating
that plaintiff failed to timely file a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) within 300 days of the alleged unlawful conduct, and
failed to timely file a charge of discrimination with the Missouri Commission on Human
Rights (“MCHR”) within 180 days of the alleged unlawful conduct.
On November 1, 2011, the Court granted defendant’s motion to dismiss, noting that
(1) plaintiff’s charge of discrimination was filed with the EEOC on February 11, 2011, which
is at least 301 days after the last date of alleged unlawful conduct (April 16, 2010); (2)
plaintiff did not demonstrate equitable tolling should apply to her claims; (3) plaintiff’s Title
VII claims should be dismissed as the charge of discrimination was not filed within 300 days
of the unlawful conduct; and (4) plaintiff’s MHRA claims should be dismissed, as plaintiff

did not file a verified complaint with the MCHR until February 11, 2011, which was well
beyond the 180 day deadline provided by Missouri statute.
On November 23, 2011, plaintiff filed both a motion to reconsider appointment of
counsel (Doc. No. 23) and a motion to reconsider judgment (Doc. No. 24). In her motion
to reconsider judgment, plaintiff presents documentation indicating that she first submitted
her complaint to the United States Department of Education, Office for Civil Rights (“OCR”)
on April 29, 2010, and that the OCR forwarded the complaint to the EEOC on May 14,
2010. See Doc. No. 24, Ex. 1. Letters from the OCR indicate “The EEOC will consider the
date of filing to be the date the complaint was filed with OCR unless an earlier complaint
was filed with the EEOC.” Id., pp. 4, 8. Plaintiff then asserts that she had little success
communicating with the EEOC after May 2010, and found out after telephoning them in
February 2011 that the EEOC had been mailing documents to her using an incorrect
address. See Doc. No. 24, Ex. 1., pp. 16-21. When the EEOC finally mailed the charge
of discrimination to the correct address on February 7, 2011, plaintiff signed the document
on February 11, 2011, and the charge was received by the EEOC on February 14, 2011.
Thus plaintiff asks the Court to reconsider its judgment that she had failed to timely file her
charge of discrimination.
II.

Motion to Reconsider Judgment (Doc. No. 24)
A.

Standard

The Court construes plaintiff’s motion for reconsideration as a motion pursuant to
Fed. R. Civ. P. 60(b). Rule 60(b) motions may only be used to reconsider a final order on
certain enumerated grounds such as “(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence . . . ; (3) fraud . . ., misrepresentation, or misconduct
by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied,
released or discharged . . .; or (6) any other reason that justifies relief.” A party moving for
reconsideration pursuant to any portion of Rule 60(b) must “establish ‘exceptional
circumstances' to obtain the ‘extraordinary relief’ the rule provides.” De Wit v. Firstar Corp.,
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904 F.Supp. 1476, 1496 (N.D.Iowa 1995) (quoting United States v. One Parcel of Prop.
Located at Tracts 10 and 11 of Lakeview Heights, Canyon Lake, Comal County, Texas, 51
F.3d 117, 119 (8th Cir.1995)). A district court has wide discretion in deciding whether to
grant a Rule 60(b) motion, but the Eighth Circuit has cautioned that “exceptional
circumstances are not present every time a party is subject to potentially unfavorable
consequences as a result of an adverse judgment properly arrived at.” Atkinson v.
Prudential Prop. Co., Inc., 43 F.3d 367, 373 (8th Cir.1994).
B.

Analysis

In her motion to reconsider judgment (Doc. No. 24), plaintiff presents facts of which
the Court was not aware at the time of entry of judgment. See § I, Background, supra. In
particular, in opposing defendant’s prior motion to dismiss, plaintiff did not inform the Court
that she had filed a complaint with the OCR less than a month after the alleged unlawful
conduct. Plaintiff further did not inform the Court that once the complaint had been
received by the EEOC, the EEOC failed to mail the charge of discrimination to plaintiff’s
correct address until February 2011 (approximately 9 months after the OCR forwarded the
complaint to the EEOC for investigation). These are facts that would have dramatically
changed the outcome of the Court’s ruling on defendant’s motion to dismiss. Had the Court
been presented with this information prior to its ruling, the Court would have determined
that equitable tolling should apply to plaintiff’s claims under both Title VII and the MHRA.
In its response to plaintiff’s motion for reconsideration (Doc. No. 26), defendant
indicates that the Court should reject plaintiff’s motion for two reasons. First, defendant
argues that the information submitted by plaintiff in her motion for reconsideration could
have been submitted to the Court earlier, and therefore it is not newly-discovered evidence
that would entitle plaintiff to equitable relief. Although the Court agrees with defendant that
this does not qualify as “newly–discovered evidence,” plaintiff argues in her response that
this evidence could be considered “any other reason that justifies relief.” Given that plaintiff
is proceeding pro se and may not have recognized the importance of the evidence she
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provided to the Court until the Court dismissed her lawsuit, the Court believes that plaintiff
has sufficiently stated an “other reason” justifying relief. Furthermore, given that the Court’s
previous ruling was based on a demonstrably inaccurate factual record, the Court finds that
exceptional circumstances justifying Rule 60(b) relief have been established.
Second, defendant argues that plaintiff “does not dispute (nor address) the fact that
she did not file her Complaint within ninety (90) days of receiving the notice of right to sue
from the Equal Employment Opportunity Commission (EEOC).” This argument was raised
in defendant’s motion to dismiss (Doc. No. 11); however, the Court elected to not analyze
the merits of this ground for dismissal in its Order granting the motion to dismiss, as it was
unnecessary to do so at the time. Defendant noted in its motion to dismiss that plaintiff
received her “Dismissal and Notice of Rights” from the EEOC on February 24, 2011, and
plaintiff filed her complaint on June 13, 2011, 106 days after receiving the Dismissal and
Notice of Rights from the EEOC. Therefore, defendant argues that plaintiff still has not
demonstrated a meritorious claim.
Defendant’s argument, however, fails to take into account that plaintiff had filed a
motion for leave to proceed in forma pauperis in the current action. Long-standing case
law provides that the filing of a motion for leave to proceed in forma pauperis serves to toll
the limitations period for filing a Title VII case (or, for that matter, any case). See Huston
v. General Motors Corp., 477 F.2d 1003 (8th Cir. 1973); Abdul-Waali v. Restart, Inc., Case
No. 10-00567-CV-W-JTM, 2011 WL 281045 (W.D. Mo. Jan. 26, 2011); Weller v. Cass
County Prosecutor’s Office, Case No. 05-0042-CV-W-FJG, 2005 WL 2090788 (W.D. Mo.
Aug. 30, 2005); Green v. Nationscredit Financial Services Corp., Case No. 03-0639-CV-WFJG, 2005 WL 1005992 (W.D. Mo. March 31, 2005). In the present matter, plaintiff filed
her motion for leave to proceed in forma pauperis on May 25, 2011, which is 90 days after
receipt of the Dismissal and Notice of Rights from the EEOC. Defendant’s argument that
plaintiff’s action was not timely filed, therefore, is meritless.
Accordingly, plaintiff’s motion to reconsider judgment (Doc. No. 24) is GRANTED.
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Given the information presented by plaintiff, the Court has reconsidered its ruling on
defendant’s motion to dismiss, and finds that its order dismissing this case with prejudice
(Doc. No. 21) and the judgment (Doc. No. 22) should be VACATED. The Clerk of the
Court is directed to re-open this case.
III.

Motion to Reconsider the Appointment of Counsel (Doc. No. 23)
Plaintiff asks the Court to reconsider her previous request for counsel, which was

denied on June 13, 2011. See Order, Doc. No. 7. Plaintiff indicates that since the time the
Court denied counsel, she has contacted many attorneys, none of whom have taken her
case. See Doc. No. 23, Ex. 1 (chart listing approximately 12 attorneys). Plaintiff also
indicates that she is not capable of investigating the facts and presenting her claim to the
Court, as she indicates that she failed in submitting her findings of facts to the Court such
that the Court previously dismissed her case.
Although a civil litigant does not have a constitutional or statutory right to a courtappointed attorney, the district court may make such an appointment at its discretion.
Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985). The inquiry regarding plaintiffs’ need
for counsel focuses on the following, non-exclusive factors: (1) the factual and legal
complexity of the case; (2) plaintiff’s ability to investigate the facts and present the claim;
and (3) the existence of conflicting testimony. In re Lane, 801 F.2d 1040, 1043-44 (8th Cir.
1986).
Although plaintiff has made a reasonably diligent effort to obtain counsel (see
Bradshaw v. Zoological Society, 662 F.2d 1301, 1319 (9th Cir. 1981)), the Court does not
find that plaintiff has met the need-based factors in the present matter. Based on the
information before it, the Court is unable to determine whether this case has the potential
to become factually or legally complex (and, the Court notes that plaintiff has successfully
presented her motion for reconsideration of the judgment of dismissal, Doc. No. 24,
analyzed above). Nothing in the record shows that plaintiff lacks the ability to investigate
the facts or otherwise present her claim. Furthermore, a determination as to the existence
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of conflicting testimony would be premature at this early stage in the proceedings, where
defendant has not yet answered plaintiff’s complaint. Accordingly, plaintiff’s motion will be
DENIED WITHOUT PREJUDICE to its reassertion at a later date if circumstances change.
IV.

Conclusion
For the foregoing reasons:

(1)

Plaintiff’s Motion to Reconsider the Appointment of Counsel (Doc. No. 23) is
DENIED WITHOUT PREJUDICE to its reassertion;

(2)

Plaintiff’s Motion to Reconsider Judgment (Doc. No. 24) is GRANTED;

(3)

the Court’s order dismissing this case with prejudice (Doc. No. 21) and the judgment
(Doc. No. 22) are VACATED, and the Clerk of the Court is directed to re-open this
case; and

(4)

the parties are directed to file a proposed discovery plan and scheduling order
pursuant to Local Rule 16.1(d) on or before February 17, 2011. The proposed
discovery plan and scheduling order shall be presented in accordance with the
directives in the Court’s previous Order, Doc. No. 13. Given plaintiff’s pro se status,
defendant shall take the lead in preparing the proposed scheduling order for
execution and filing with the Court.
It is further ORDERED that the Clerk of the Court send a copy of (1) this order and

(2) the Court’s previous order regarding discovery plan and scheduling order (Doc. No. 13),
via regular and certified mail to Plaintiff at the following address: Sheree A. Moody, 306
Grover Apt. C, Warrensburg, MO 64093.
IT IS SO ORDERED.

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: January 10, 2012
Kansas City, Missouri

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