Stewart v. Ragon et al

Filing 12

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiffs claims are dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT STEWART,
Plaintiff,
v.
NORA RAGON,et al.,
Defendants.

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4:11CV3009

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On April 8, 2011, this court
ordered plaintiff Robert Stewart (“Stewart”) to show cause why this matter should not be
dismissed for his failure to file suit within 90 days of his receipt of a right-to-sue letter from
the Equal Employment Opportunity Commission (“EEOC”).1 (Filing No. 8 at CM/ECF p. 2.)
Specifically, the court determined that Stewart received a right-to-sue notice on September
17, 2010, but did not file suit until January 21, 2011 (i.e., 126 days after receiving the rightto-sue notice). (Id.) The court gave Stewart until April 27, 2011, to show that equitable or
exceptional circumstances exist that warrant tolling of the 90-day period. (Id.) The court
warned Stewart that failure to do so would result in this matter being dismissed without
further notice.
On April 21, 2011, Stewart filed a document entitled an “Amended Complaint to
Show Cause.” (Filing No. 9.) In it, Stewart argues that the 90-day period should be tolled
because Stewart did not receive a copy of his “grievance” until November 29, 2010. (Id.
at CM/ECF p. 3.) Even if Stewart needed a copy of his “grievance” prior to filing suit, he
had approximately 17 days from November 29, 2010, to file suit and still be within the 90day time period. However, he waited an additional 53 days after receiving the copy of his
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As set forth in the court’s April 8, 2011, Mem orandum and Order, there is a tim e lim it for bringing a
discrim ination claim under federal law. Pursuant to Title VII, a claim ant m ust file suit within ninety days of
receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). A claim ant’s failure to file suit within
this period bars his or her right to pursue the claim , absent equitable tolling or exceptional circum stances.
Zipes v. Trans W orld Airlines, Inc., 455 U.S. 385, 393-96 (1982).

“grievance” to file suit in this court. As such, Stewart failed to file suit within 90 days of his
receipt of a right-to-sue letter.
The court set this matter for an evidentiary hearing to determine whether the plaintiff
could provide additional evidence to support his claim of equitable or exceptional
circumstances for toling the 90-day time period. An evidentiary hearing occurred on June
2, 2011. The plaintiff personally appeared and offered testimony that he did not receive
the right-to-sue letter when he was notified of the EEOC’s decision in this matter. Plaintiff
admitted that he received notification of the decision, but alleges he did not receive the
right-to-sue letter. The plaintiff indicated he later requested a right-to-sue letter from the
EEOC, and the EEOC sent him a copy of the right-to-sue letter. The plaintiff believes that
receipt of the later requested right-to-sue letter should be the date from which the 90-day
limitation should be computed. The court finds that the plaintiff is mistaken and that he in
fact received the right-to-sue letter. His right-to-sue letter is dated and would have been
a part of the decision which plaintiff admits was sent on or about September 17, 2010.
The court finds that the plaintiff has failed to show that equitable or exceptional
circumstances exist that warrant tolling of the 90-day time period.
IT IS THEREFORE ORDERED that:
1.

Plaintiffs claims are dismissed with prejudice.

2.

A separate judgment will be entered in accordance with this Memorandum

and Order.
DATED this 1st day of September, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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