Barraza v. Magna International Inc

Filing 20

ORDER granting 9 defendant's motion to dismiss case and plaintiff's complaint is dismissed. Signed on 6/30/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 6/30/2017 (Crocker, Susan). Copy to plaintiff via certified mail, 70123460000173959337, and regular mail this date. Modified on 6/30/2017 (Crocker, Susan).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

JOSE BARRAZA,  

vs.

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)
)
) Case No.: 4:16-CV-00823-FJG
)
)
)
)

Plaintiff,

MAGNA INTERNATIONAL INC.,
Defendant.

ORDER

Currently pending before the Court is defendant Dieomatic Incorporated d/b/a

LMV Automotive Systems 1 (“LMV’s”) Motion to Dismiss (Doc. # 9).

I.

BACKGROUND

Plaintiff filed a Charge of Discrimination on April 11, 2016 with the Missouri
Commission on Human Rights and the EEOC. In his Charge, plaintiff states that he
was hired through a temporary agency to work with the defendant as a Quality
Inspector. Plaintiff states that he started working on February 5, 2016 and throughout
his tenure, he was subjected to harassment “because of my sex and/or my
nonconformity to gender sterotypes.” Plaintiff states that he reported the harassment,
but management failed to take immediate corrective action and because the work
environment was so hostile, plaintiff states he was constructively discharged on March
11, 2016. Plaintiff also states that he believes “that Respondent discriminated against

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Defendant states that Magna International Inc. appears to have been inadvertently
named as the defendant and does not conduct business at the location identified in the
Complaint. Counsel for defendant states that service was acknowledged on behalf of
Dieomatic Inc. d/b/a LMV Automotive Systems, which does conduct business at that
address.

me because of my sex (male/gender non-conforming) in violation of Title VII of the Civil
Rights Act of 1964, as amended.” (Doc. No. 10-1). On the Charge of Discrimination
Form, plaintiff check-marked the box that the discrimination was based on “Sex.” On
April 15, 2016, the EEOC issued a Dismissal and Notice of Right to Sue letter. The
letter stated that the EEOC was unable to conclude that the information obtained
established a violation of the statute and that no finding is made as to any other issues
that might be construed as having been raised by this charge. The letter goes on to
state:
Title VII, the Americans with Disabilities Act, the Genetic Information
Nondiscrimination Act, or the Age Discrimination in Employment
Act: This will be the only notice of dismissal and of your right to sue that
we will send you. You may file a lawsuit against the respondent(s) under
federal law based on this charge in federal or state court. Your lawsuit
must be filed WITHIN 90 DAYS of your receipt of this notice; or your
right to sue based on this charge will be lost. (The time limit for filing suit
based on a claim under state law may be different).

Ten days later, on April 25, 2016, the Missouri Commission on Human Rights issued a
Notice of Right to Sue pursuant to the Missouri Human Rights Act. The letter informed
plaintiff hat his complaint was dual-filed with the EEOC and the Missouri Commission on
Human Rights. The letter states that the MCHR has been informed that the EEOC has
completed its processing of the complaint and has issued a notice of right to sue. The
letter states that based on a review of the EEOC’s investigation summary, the MCHR
has decided to adopt the EEOC’s findings, terminate the proceedings and issue this
notice of right to sue on your claims under the MHRA. The letter informed plaintiff:
You are hereby notified that you have the right to bring a civil action within
90 days of the date of this letter against the respondent(s) named in the
complaint. Such an action may be brought in any state circuit court in any
county in which the unlawful discriminatory practice is alleged to have

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occurred, either before a circuit or associate circuit judge. . . . As noted
above, any action brought in court under this section must be filed within
90 days from the date of this letter and, in addition, any such case must be
filed no later than two years after the alleged cause occurred or your
reasonable discovery of the alleged cause. IF YOU DO NOT FILE A
CIVIL ACTION IN STATE CIRCUIT COURT RELATING TO THE
MATTERS ASSERTED IN YOUR COMPLAINT WITHIN 90 DAYS OF
THE DATE OF THIS NOTICE, YOUR RIGHT TO SUE IS LOST.

(Doc. No. 5-2).

Plaintiff filed his motion for leave to proceed in forma pauperis in this Court on

July 25, 2016. Plaintiff was granted leave to proceed in forma pauperis on October 19,

2016 and the Complaint was filed the same day 2. In his complaint, plaintiff marked that
his lawsuit was based on Title VII, the Americans with Disabilities Act and a “belief that
of which is transgenderism, retaliation.” In response to the question in the Employment
Discrimination Complaint form which asked him to explain why he believes he was
terminated, plaintiff checked the boxes for: religion, gender, disability and other – belief
that of which is transgenderism. In an Exhibit attached to plaintiff’s Complaint, plaint
states at the top: “Violation of Title VII Civil Rights Act.” Then plaintiff proceeds to list all
of the ways in which he believes defendant violated the statute and the effects that he
has suffered as a result of these violations. Plaintiff then goes into an extensive thirteen
page discussion explaining and detailing all of his allegations.
Defendant has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff’s
Complaint as untimely filed and because he failed to exhaust his administrative
remedies.

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In Abdul-Waali v. Restart, Inc., 2011 WL 281045, *2-3 (W.D.Mo. Jan. 26, 2011), the
Court stated: “[s]everal courts have considered whether the timely filing of a motion to
proceed in forma pauperis tolls the limitations period for filing a Title VII case. The
consensus of the courts confronting the issue has been to permit tolling. . . .This holding
is also consistent with Eighth Circuit precedent.”

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II.

STANDARD

To survive a motion to dismiss under 12(b)(6), Aa complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on
its face.@ Ashcroft v. Iqbal, 556 U.S. 662,129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007)). A pleading that merely pleads Alabels and conclusions@ or a Aformulaic
recitation@ of the elements of a cause of action, or Anaked assertions@ devoid of Afurther
factual enhancement@ will not suffice. Id. (quoting Twombly). ADetermining whether a

complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.@ Id.

at 1950. Under Fed. R. Civ. P. 12(b)(6) we must accept the plaintiff=s factual allegations
as true and grant all reasonable inferences in the plaintiff=s favor. Phipps v. FDIC, 417
F.3d 1006, 1010 (8th Cir. 2005).

III.

DISCUSSION

Defendant states that the Dismissal and Notice of Right to Sue letter was signed
by the EEOC’s Area Office Director on April 15, 2016. Plaintiff is presumed to have
received the letter within three days or by April 18, 2016. Adding ninety days to this
date, plaintiff was required to have filed his Complaint on or before Monday July 18,
2016. As noted above, plaintiff did not file his Complaint with this Court until July 25,

2016, which was 7 days past the deadline. Thus, defendant argues that plaintiff’s claim
is untimely and must be dismissed.
Plaintiff did not initially respond to defendant’s Motion to Dismiss. However, after

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the Court issued an Order to Show Cause, plaintiff filed a response to the Motion to
Dismiss. In his response, plaintiff states that he personally submitted and had
documents signed in front of a notary public on July 22, 2016. Plaintiff also states that
the deadline fell on a weekend and thus, it is automatically extended to the next
business day. With regard to the exhaustion arguments, plaintiff states that he only
marked the box for race discrimination, but he alleged age discrimination. He also
states that he did not check the retaliation box due to mentioning it in his report.
In reply, defendant argues that plaintiff does not dispute that he had 90 days to
bring his suit from the time he received his notice of right to sue letter from the EEOC,
nor does he dispute that the EEOC mailed him the letter on April 15, 2016. Defendant
states that plaintiff indicated that he submitted and signed documents on July 22, 2016
in front of a notary public, but this was still past the July 18, 2016 deadline. Defendant
notes that plaintiff has not provided any excuse for his tardiness and thus his Title VII
complaint must be dismissed.
After reviewing plaintiff’s Charge of Discrimination, the Notice of Right to Sue
Letters from the EEOC and the Missouri Commission on Human Rights and plaintiff’s
Complaint, the Court agrees with defendant and finds that plaintiff’s Complaint was
untimely filed. The letter from the EEOC was sent to plaintiff on April 15, 2016. A suit
filed under Title VII must be brought within ninety days after receipt of the notice of the
right to sue letter. 42 U.S.C. § 2000e-5(f)(1).
This ninety-day period of time within which suit must be filed begins to run
on the day that the right-to-sue letter is received at the most recent
address that a plaintiff has provided to the EEOC. Hill v. John Chezik
Imports, 869 F.2d 1122,1124 (8th Cir. 1989). The law presumes that a
letter is received three days after mailing. Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 148 n.1, 104 S.Ct. 1723,1724 n.1, 80 L.Ed.2d 196

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(1984).
Walker v. Tyson Foods, Inc., No. 5:16CV00226JLH, 2017 WL 1948527, *1 (E.D.Ark.
May 10, 2017). As the EEOC’s letter was sent on April 15, 2016, it is presumed to have
been received by the plaintiff on April 18, 2016. Ninety days from April 18, 2016, was
Sunday July 17, 2016. Plaintiff is correct in his observation that because the date fell on
a weekend, he had until the next business day – Monday July 18, 2016 to file his
Complaint. Fed.R.Civ.P. 6(a)(1)(C). However, as previously discussed, plaintiff did not
file his Complaint with the Court until July 25, 2016, seven days later. It should also be
noted that simply because plaintiff was proceeding pro se, he is not excused from these
requirements. In Almoghrabi v. GoJet Airlines, LLC, No. 4:14-CV-00507-AGF, 2015 WL

1061118, *3 (E.D.Mo. Mar. 11, 2015), the Court stated that a plaintiff’s pro se status

does not excuse him from complying with this statutory requirement. See also Houston

–Morris v. AMF Bowling Ctrs., Inc., No. 11-00325-CV-W-FJG, 2011 WL 5325646, at *3

(W.D.Mo. Nov. 3, 2011)(“rejecting Plaintiff’s request to equitably toll the statute of
limitations for an MHRA claim because she was ‘misled by the language’ of the MCHR
and EEOC right-to-sue notices and was ‘unfamiliar[ ] with handling and interpreting such
notices.’”).
In Brinkman v. Nasseff Mechanical Contractors, Inc., No. 16-3499(RHK/HB),

2017 WL 1653255 (D.Minn. May 2, 2017), the court noted:

The Supreme Court has recognized that Title VII’s time limitations may
be equitably tolled in appropriate circumstances . . .Equitable tolling is
premised on the excusable neglect of the party invoking it . . .and provides
a limited and infrequent form of relief appropriate only where (1) the
plaintiff pursued her claims diligently but (2) some extraordinary
circumstance stood in [her] way.

Id. at *5 (internal citations and quotations omitted). In this case, the Court finds that

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there is no basis for invoking equitable tolling. Plaintiff in his response to the Motion to
Dismiss offered no reason, let alone an extraordinary reason, why his Complaint could
not have been filed on or before the ninety day deadline. Accordingly, the Court finds
that because plaintiff’s Title VII claim was untimely filed it must be dismissed.
Defendants also argue that plaintiff failed to exhaust his administrative remedies
with regard to his ADA or Retaliation claims. In his Complaint plaintiff check marked the
box for ADA and then also marked the “other” box and listed transgenderism and
retaliation. However, in his Charge of Discrimination, plaintiff only marked the box for
“sex” when asked what his discrimination claim was based on and stated that he
believed that he was subjected to harassment “because of my sex and/or my nonconformity to gender sterotypes.” (Charge of Discrimination - Doc. 10-1). 3
“Exhaustion of administrative remedies is required under Title VII and the ADEA
because it provides the EEOC the first opportunity to investigate discriminatory
practices and enables it to perform its roles of obtaining voluntary compliance and
promoting conciliatory efforts.” Kirklin v. Joshen Paper & Packaging of Arkansas Co.,
No. 4:15-CV-00304KGB, 2017 WL 1179969, *11 (E.D.Ark. Mar. 29, 2017).

Prior to filing a civil action alleging violations of the ADA . . .a plaintiff
must exhaust her administrative remedies by submitting her discrimination
claims in an EEOC charge and receiving a “right to sue” letter. See, e.g.,

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Although plaintiff listed “transgenderism” as an “other” type of claim, the Court
construes this to be included in plaintiff’s Title VII sexual discrimination claim and this
claim is untimely for the reasons discussed above. In Rumble v. Fairview Health
Services, No.14-cv-2037(SRN/FLN), 2015 WL 1197415, *2 (D.Minn. Mar. 16, 2015), the
court noted: “[r]ecently courts have broadly characterized an individual’s transgender
status as part of that individual’s ‘sex’ or ‘gender’ identity. See, e.g., Smith v. City of
Salem, Ohio, 378 F.3d 566, 572-73 (6th Cir.2004)(holding that plaintiff with gender
identity disorder sufficiently stated constitutional and Title VII sex discrimination claims
based on his allegations that he was discriminated against because of his gender
nonconforming behavior and appearance).”

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42 U.S.C.§ 12117(a)(stating that the remedies and procedures set forth in
Title VII, including those pertaining to exhaustion, apply to persons
alleging discrimination based on disability).
Ayala v. PayPal, Inc., No. 8:16CV57, 2017 WL 2484171, *3 (D.Neb. June 8, 2017).
These exhaustion requirements also apply to retaliation claims. “To exhaust her
administrative remedies on a retaliation claim, a plaintiff must give notice of all claims of
discrimination in the initial EEOC charge.” Williams-Raynor v. Arkansas Dept. of

Health, No. 4:16CV00761JLH, 2017 WL 1017636,*5 (E.D.Ark. Mar. 15, 2017). When a

plaintiff fails to do so, these claims are unexhausted. See also Griffith v. City of

Watertown, 1:15-CV-01020-RAL, 2016 WL 4275635,*10 (D.S.D. Aug. 12, 2016)(Where

plaintiff did not make a retaliation claim in her administrative charge, summary judgment
was warranted due to failure to exhaust her administrative remedies). In the instant
action, plaintiff mentions nothing in the narrative description in his Charge of
Discrimination about a retaliation claim, nor was the Retaliation box checked on the
form. Accordingly, the Court finds that this claim as well as the ADA claim are subject to
dismissal.

IV.

CONCLUSION

Accordingly, because plaintiff’s Title VII claim was not timely filed and because
plaintiff failed to exhaust his administrative remedies as to the retaliation and ADA
claims, the Court hereby GRANTS defendant’s Motion to Dismiss (Doc. # 9) and
DISMISSES plaintiff’s Complaint.

Date: June 30, 2017
Kansas City, Missouri

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

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