BOYCE v. ANCORA STATE HOSP.

Filing 15

OPINION FILED. Signed by Judge Noel L. Hillman on 2/27/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARILYN BOYCE,

Civil No. 14-0185 (NLH/JS)

Plaintiff,
OPINION
v.

ANCORA STATE HOSPITAL
Defendant.

APPEARANCES:
MARILYN BOYCE
2435 NORTH 16TH STREET
PHILADELPHIA, PA 19132
Pro Se Plaintiff
ERICA RITTENHOUSE HEYER
New Jersey Office of the Attorney General
Employment Litigation Section
R.J. Hughes Justice Complex
25 Market Street, 2nd Floor West Wing
PO Box 112
Trenton, NJ 08625-0112
Attorney for Defendant

HILLMAN, District Judge
Before the Court is defendant’s motion to dismiss.

Because

plaintiff failed to exhaust her administrative remedies,
defendant’s motion will be granted.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, proceeding pro se, filed a form complaint on

January 10, 2014, alleging employment discrimination.

She

states the discriminatory act occurred on August 22, 2009, and
that she filed charges with the N.J. Division of Civil Rights on
“Monday, Nov. 2012.”

She states that she received the right to

sue letter from the EEOC on December 12, 2013, and attached a
copy of the EEOC “Dismissal and Notice of Rights”.

The date on

the EEOC notice is unclear but appears to be “12/11/13”.
Plaintiff alleges that defendant engaged in discriminatory
conduct with respect to her race and sex, but provides no other
information.
Defendant moves to dismiss plaintiff’s complaint on grounds
that she failed to exhaust her administrative remedies, that she
failed to allege facts that could support a prima facie claim of
either sex or race discrimination, and that her complaint should
be dismissed for insufficiency under Fed. R. Civ. P. 8.

Because

failure to exhaust administrative remedies is a threshold issue,
the Court will address this issue first.

See Devine v. St.

Luke's Hosp., 406 F. App’x 654, 656 (3d Cir. 2011) (failure to
exhaust remedies is a ground to dismiss a case for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6)).
II.

JURISDICTION

Plaintiff brought this action pursuant to Title VII of the
Civil Rights Act of 1964 for employment discrimination.

This

Court exercises subject matter jurisdiction pursuant to 28
2

U.S.C. § 1331.
III. STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under the liberal federal pleading rules, it is not
necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).

Bogosian v.
However,

“[a]lthough the Federal Rules of Civil Procedure do not require
a claimant to set forth an intricately detailed description of
the asserted basis for relief, they do require that the
pleadings give defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.”

Baldwin Cnty.

Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
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the claimant is entitled to offer evidence to support the
claim.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.
Following the Twombly/Iqbal standard, the Third Circuit has
provided a three-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the Court must take note of the elements

needed for plaintiff to state a claim.

Santiago v. Warminster

Tp., 629 F.3d 121, 130 (3d Cir. 2010).

Second, the factual and

legal elements of a claim should be separated; a district court
must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions.
at 210 (citing Iqbal, 129 S. Ct. at 1950).

Id.; Fowler, 578 F.3d
Third, a district

court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
plausible claim for relief.

Id.

A complaint must do more than

allege the plaintiff's entitlement to relief.

Fowler, 578 F.3d

at 210; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008) (stating that the “Supreme Court’s Twombly
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formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).

The defendant bears the burden of showing

that no claim has been presented.

Hedges v. United States, 404

F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must
only consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
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IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Plaintiff alleges that defendant violated Title VII which
prohibits employment discrimination on the basis of race, color,
religion, sex, or national origin.

See 42 U.S.C. § 2000e.

An

individual cannot bring a Title VII claim in court, however,
without (1) initially filing a charge of discrimination with the
EEOC “within three hundred days after the alleged unlawful
employment practice occurred”; and (2) if the EEOC declines to
continue with an individual's claim, the employee has 90 days
from the date of the EEOC's right to sue letter to file a civil
complaint in court.

See 42 U.S.C. § 2000e–5(e)(1), 5(f)(1).

Plaintiff has not alleged or provided documents that show
when she initially filed a charge of discrimination with the
EEOC or the N.J. Division of Civil Rights.

See Saracino v. New

Jersey Dept. of UI/DT Finance, 251 F. App’x 95, 97 (3d Cir.
2007).

In her complaint, plaintiff states that the

discriminatory act occurred on August 22, 2009.

Plaintiff would

have had to bring a charge within 300 days, or no later than
June 18, 2010.

Plaintiff has provided no evidence that she

filed her charge on or before that date.

She states in her

complaint that she filed charges with the N.J. Division of Civil
Rights on “Monday, Nov. 2012.”

Plaintiff also submitted a

letter dated February 19, 2013, from the EEOC stating that they
received her correspondence alleging employment discrimination.
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Neither letter establishes that plaintiff filed her charge
within the 300 day filing deadline.
Thus, plaintiff has not stated facts that could show that
she complied with the administrative requirements prior to
filing her lawsuit.

However, because of plaintiff’s pro se

status, the Court will permit plaintiff to file an amended
complaint attaching copies of documentation that clearly show
that she filed her charge within 300 days of the alleged
discriminatory act.
When filing her amended complaint, Plaintiff is cautioned
to also plead facts establishing that she filed her lawsuit
within 90 days of receiving the EEOC’s right to sue letter.
date, she has asserted conflicting facts on this issue.

To

In her

complaint, plaintiff states she received the EEOC right to sue
letter on December 12, 2013.

However, in her response to the

motion to dismiss (in which defendant produced a copy of the
same right to sue letter showing a date of July 11, 2013, not
December 11, 2013), plaintiff states that the right to sue
letter was issued on July 11, 2013, 1 and that she filed her

1

The Court is concerned about the two different versions of the
right to sue letter submitted by the parties. The copy attached
to the complaint appears to have the date “12/11/13” but when
compared to the copy produced by the defendant it appears the
copy submitted by plaintiff may have been altered by hand.
Plaintiff is cautioned to submit only authentic documents and to
explain any alterations that may have been made.
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complaint within 90 days of November 12, 2013.

This appears to

be an allegation she received the letter in November rather than
December, 2013.
Plaintiff’s submissions to the Court also suggest that
she may be asking the Court to equitably toll the 90 day
requirement due to the notice being mailed to the wrong address
and certain medical problems.

See Oshiver v. Levin, Fishbein,

Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994) (equitable
tolling permitted but a plaintiff who fails to exercise
reasonable diligence may lose the benefit of the doctrine of
equitable tolling).

Based on the limited and contradictory

facts provided by plaintiff, however, the Court cannot determine
at this time if equitable tolling is warranted in this case.
Since the Court will permit plaintiff to amend her
complaint to clearly state the dates and provide documentation
regarding when she filed her charge with the EEOC, the Court
will permit plaintiff to also clearly state what facts, if any
support equitable tolling of any missed filing deadlines.

It is

plaintiff’s burden to provide clear and sufficient facts for the
Court to determine if equitable tolling is warranted.

Estacio

v. Postmaster General of U.S., 344 F. App’x 810, 813 (3d Cir.
2009).

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V. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss
will be granted.

Plaintiff will be granted leave to file an

amended complaint clearly setting forth the dates that her
charge was filed with the EEOC, along with supporting
documentation, as well as facts to establish that she was unable
to make proper inquiries as to the status of her claim with the
EEOC.

Plaintiff will have thirty (30) days after entry of the

Court’s Order to file her amended complaint.

Failure to do so

will result in the termination of her lawsuit. 2
An appropriate Order follows.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:

February 27, 2015

At Camden, New Jersey

2

Because exhaustion of administrative remedies is a threshold
issue, and because the Court is granting defendant’s motion to
dismiss on that ground, the Court will not consider defendant’s
alternative arguments for dismissal at this time. If plaintiff
files an amended complaint, defendant may file a motion to
dismiss the amended complaint and raise any arguments previously
raised, including failure to exhaust administrative remedies.
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