BOYCE v. ANCORA STATE HOSP.

Filing 24

OPINION FILED. Signed by Judge Noel L. Hillman on 12/15/15. (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
This case concerns allegations of employment
discrimination.

Presently before the Court is defendant’s

motion to dismiss plaintiff’s amended complaint.

For the

reasons expressed below, defendant’s motion will be granted, and
plaintiff’s amended complaint will be dismissed with prejudice.

I.

BACKGROUND
Plaintiff, Marilyn Boyce, appearing pro se, filed a form

complaint on January 10, 2014, alleging employment
discrimination.

In her complaint, plaintiff alleges that

defendant’s discriminatory acts, based on her race and gender,
occurred on August 22, 2009.

While it is not clear when

plaintiff filed her charge with the EEOC, she originally stated
she received her right to sue letter on December 12, 2013.
On February 27, 2015, the Court dismissed plaintiff’s
complaint without prejudice because she did not state facts that
could show that she complied with the administrative
requirements prior to filing her suit, and granted plaintiff
leave to file an amended complaint.
(“Opinion”) [Doc. No. 15].

See Feb. 27, 2015 Op.

The Court expressed concern about

the two different versions of the right to sue letter submitted
by the parties.1

The Court further cautioned plaintiff to “amend

her complaint to clearly state the dates and provide
documentation regarding when she filed her charge with the
EEOC,” and to clearly state facts to “support equitable tolling
of any missed filing deadlines.” Op. at 8.

1

The copy attached to the complaint appears to bear the date
“12/11/13,” while the copy submitted by defendant appears to
bear the date “7/11/13.” The Court cautioned plaintiff to
submit only authentic documents and to explain any alterations
that may have been made. Op. at 7 n.1.
2

Plaintiff filed an amended complaint on March 17, 2015.
Am. Compl. [Doc. No. 17].

Plaintiff now alleges that the

discriminatory acts occurred on January 10, 2010, termination
occurred on August 22, 2009, and that termination was finalized
on April 19, 2012 when the Civil Service Commission (“CSC”)
delivered its decision.

Am. Comp. at 5.

Plaintiff further

alleges there were “unusual and extraordinary circumstances” due
to her medical condition and relocation, warranting equitable
tolling.

Id. at 4-5.

Plaintiff also alleges that she was

subjected to hostile work environment for the first time in her
amended complaint.

Id. at 6.

Defendant moves to dismiss plaintiff’s amended complaint
because she did not timely exhaust her EEOC remedies, did not
timely file a lawsuit, and did not provide a basis for equitable
tolling.
II.

[Doc. No. 20].

JURISDICTION

Plaintiff brings this action pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”) for employment
discrimination.

42 U.S.C. §§ 2000e, et seq.

This Court

exercises subject matter jurisdiction pursuant to 28 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
3

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
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
4

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.

Id.; Fowler, 578 F.3d

at 210 (citing Iqbal, 129 S. Ct. at 1950).

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
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
5

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).
IV.
A.

ANALYSIS
EXHAUSTION OF ADMINISTRATIVE REMEDIES

A Title VII plaintiff raising claims of discrete
discriminatory acts must file her charge with the EEOC “within
6

three hundred days after the alleged unlawful employment
practice occurred.”

42 U.S.C. § 2000e-5(e)(1); see also

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122
(2002).

If the EEOC finds no reason to take action on the

charge, it will issue a right to sue letter; a complainant
cannot file a Title VII suit without having first received a
right to sue letter, and the suit must be filed within 90 days
of the date on which the complainant received the right to sue
letter. 42 U.S.C. § 2000e-5(f)(1); see also Burgh v. Borough
Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir.
2001).

“Both the [300-day] period for filing the administrative

complaint and the 90-day period for filing the court action are
treated as statutes of limitations.”

Id. (citations omitted).

The only document plaintiff has provided to evidence when
she initially filed a charge of discrimination with the EEOC is
a letter dated February 19, 2013 from the EEOC requesting
plaintiff to provide “additional information, a signed charge or
both before [the EEOC] can formally docket [the] complaint as a
charge.”

Am. Compl. at 11.

This letter was previously attached

to plaintiff’s response to defendant’s reply brief [Doc. No.
13], and does not provide any new information regarding when
plaintiff filed a charge of discrimination with the EEOC.
In her amended complaint, plaintiff now alleges, without
attaching any new documents for support, that the 300-day period
7

accrued on April 19, 2012, when CSC finalized and delivered her
termination.

Am. Compl. at 17.

Because of plaintiff’s pro se

status, the Court permitted plaintiff to amend her complaint;
however, the Court also instructed plaintiff to attach documents
that clearly show that she filed her EEOC charge within 300 days
of the alleged discriminatory act.

Op. at 7.

Plaintiff has not

provided any new documents, but now argues for a new accrual
date for the 300-day period.
Even accepting plaintiff’s new accrual date of April 19,
2012 as true, the 300-day period for filing a charge with the
EEOC expired on February 13, 2013.

Despite the Court’s

instruction, plaintiff failed to provide any new documents to
show that she filed her EEOC charge before February 13, 2013.
Therefore, the date on which plaintiff filed her EEOC charge
remains unclear; however, the EEOC letter clearly demonstrates
that plaintiff had not filed her charge with the EEOC as of
February 19, 2013, six days past the 300-day period.2
Accordingly, the Court finds that plaintiff failed to clearly
show that she filed her charge within 300 days of the alleged
discriminatory act as required, and thus her claims are time-

2

While the EEOC acknowledges receipt of a “correspondence
alleging employment discrimination” in the letter, it also
requests further action by plaintiff – providing additional
information, a signed charge or both – before the EEOC can
“formally docket [the] complaint as a charge or pursue [the]
matter further.” Am. Compl. at 11.
8

barred.
Likewise, plaintiff failed to timely file her suit within
90 days of the date on which plaintiff received her right to sue
letter.

In her amended complaint, plaintiff states that she

received the right to sue letter from the EEOC on July 11, 2013.3
The 90-day filing period expired on October 9, 2013.

Plaintiff

filed her complaint on January 10, 2014, approximately three
months after the filing period expired.

Accordingly, the Court

finds that plaintiff’s claims are time-barred because she failed
to file her suit within 90 days of the date on which plaintiff
received her right to sue letter.
B.

EQUITABLE TOLLING

The Court recognized that plaintiff’s submissions suggest
that she may be asking for equitable tolling of the 90-day
period to file suit after receiving the right to sue letter.
Op. at 8.

“Equitable tolling is appropriate in Title VII cases

3

The Court notes that the EEOC right to sue letter is dated
“7/11/13” and plaintiff now alleges that she received the letter
on July 11, 2013. Am. Compl. at 4 (“Plaintiff received her if
[sic] right to sue letter on July 11th 2013.”). The Court
further notes that in her response to the motion to dismiss
complaint, she stated the right to sue letter was issued on July
11, 2013, but she received the letter on November 12, 2013.
[Doc. No. 9]. Despite the Court’s instruction to clearly state
the dates due to the conflicting dates in plaintiff’s
submissions and provide documentation regarding her filings,
plaintiff failed to do so. Therefore, the Court will accept as
true that plaintiff received her right to sue letter on July 11,
2013.
9

where ‘the defendant has actively misled the plaintiff; when the
plaintiff “in some extraordinary way” was prevented from
asserting her rights; or when the plaintiff timely asserted her
rights in the wrong forum.’”

Dicroce v. Norton, 218 F. App'x

171, 173 (3d Cir. 2007) (quoting Seitzinger v. Reading Hosp. &
Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)).
While the Supreme Court has recognized the equitable
tolling doctrine, it also cautioned that the doctrine should be
applied sparingly.

See Baldwin County Welcome Ctr. V. Brown,

466 U.S. 147, 152 (1984); see also Seitzinger, 165 F.3d at 240
(“We therefore approach the [equitable tolling] doctrine warily,
so as to guard against possible misuse.”).

Furthermore, the

burden is on the plaintiff to demonstrate that she exercised
reasonable diligence and that equitable tolling is warranted.
Byers v. Follmer Trucking Co., 763 F.2d 599, 600-01 (3d Cir.
1985).

“Mere excusable neglect is not sufficient.”

Miller v.

New Jersey State Dep't of Corr., 145 F.3d 616, 619 (3d Cir.
1998) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
96 (1990)).
While equitable tolling may be granted due to a plaintiff’s
medical issues, they must prevent the plaintiff from timely
filing to justify tolling.

See Nara v. Frank, 264 F.3d 310, 320

(3d Cir 2001); see also Horne v. Tennis, No. 09-1562, 2011 WL
221725, at *1 (E.D. Pa. Jan. 20, 2011) (holding that the
10

plaintiff’s paranoid schizophrenia, confirmed by a letter from
his treating psychologist, was insufficient to find him
incompetent or incapable to timely file, thus does not warrant
equitable tolling); Patnaude v. Gonzales, 478 F. Supp. 2d 643,
648 (D. Del. 2007) (“[T]he alleged [condition] must be
demonstrated and compelling.”); Powell v. Independence Blue
Cross, Inc., No. 95-2509, 1997 WL 137198, at *5 (E.D. Pa. Oct.
31, 2002) (stating that a condition must prevent a plaintiff
from managing her affairs); Sistrun v. Time-Warner Cable, No.
02-CV-8023, 2004 WL 1858042, at *9 (E.D. Pa. Aug. 19, 2004)
(holding that the plaintiff’s medical and emotional conditions
insufficient to warrant equitable tolling).
Plaintiff’s amended complaint and subsequent submissions
now seem to suggest that equitable tolling should apply to both
the 300-day period for filing a charge with the EEOC and the 90day period for filing a suit after receiving a right to sue
letter.

The crux of plaintiff’s argument is that she fell

“gravely ill” after receiving the right to sue letter on July
11, 2013 and had to relocate after being hospitalized.

Am.

Compl. at 3-4.
Even considering plaintiff’s pleadings as true, the
hospitalization and relocation occurred approximately five
months after the 300-day period expired, and there is no
evidence to suggest this had an impact on her ability to timely
11

file a charge with the EEOC.
Plaintiff attached documentation indicating that she was
hospitalized for three days from January 10, 2013 to January 13,
2013 mainly for shortness of breath.

Am. Compl. at 14.

The

document indicates that plaintiff was “stable for discharge . .
. and was discharged home without any problems.”

Id. at 15.

While the hospitalization does fall within the 300-day period to
file an EEOC charge if plaintiff’s new accrual date is accepted
as true, the Court finds the hospitalization insufficient to
warrant equitable tolling.

Plaintiff alleges that she suffers

from chronic obstructive pulmonary disease (“COPD”).

However,

plaintiff has not shown how her three-day hospitalization due to
COPD prevented her from timely filing her EEOC charge and that
she exercised reasonable diligence in attempting to do so.
Plaintiff was discharged without any problems with one month
remaining in the 300-day period.

Accordingly, the Court finds

that equitable tolling does not apply to the 300-day period to
file a charge with the EEOC.
Likewise, equitable tolling does not apply to the 90-day
period to file her Title VII action after receiving her right to
sue letter.

Plaintiff received her right to sue letter on July

11, 2013; however, she filed her complaint on January 10, 2014,
approximately three months after the 90-day filing period
expired.

Even if plaintiff had timely filed her EEOC charge,
12

equitable tolling does not apply to the 90-day period to file
suit.

Plaintiff’s assertion that she fell “gravely ill” after

receiving the right to sue letter is unsupported, and as
discussed above, her documented medical conditions are
insufficient to warrant equitable tolling.

Furthermore,

plaintiff’s documents that address her medical conditions are
dated January 10-13, 2013; January 18, 2014; and June 29, 2014.
These dates do not impact the Court’s analysis of applying
equitable tolling to the period between the date of right to sue
letter (July 11, 2013) and the date complaint was filed (January
10, 2013).

Accordingly, the Court finds that equitable tolling

does not apply to the 90-day period to file a suit after
receiving the right to sue letter.
C.

HOSTILE WORK ENVIRONMENT

In her amended complaint, plaintiff alleges, for the first
time, that defendant subjected her to hostile work environment
including: requiring plaintiff to be alone with a patient, who
was on restriction; writing plaintiff up for eating food in a
patient’s room; and not giving restroom or lunch breaks.
Compl. at 6.

Am.

Plaintiff does not provide any dates or documents

for these alleged incidents.
“In determining whether an actionable hostile work
environment claim exists, [courts] look to ‘all circumstances,’
including ‘the frequency of the discriminatory conduct; its
13

severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”

National R.R.

Passenger Corp., 536 U.S. at 116 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993)).

Because a hostile work

environment claim under Title VII consists of a series of
separate acts, a court may consider acts occurring outside of
the 300-day filing period, as long as “an act contributing to
the claim occurs within the filing period.”

Id. at 117.

Plaintiff’s submissions fail to show that plaintiff
exhausted administrative remedies even under the liberal federal
pleading rules.

Accepting plaintiff’s new accrual date of April

19, 2012 as true and the last possible date for an act
contributing to her hostile work environment claim, the 300-day
period for filing a charge with the EEOC expired on February 13,
2013.

As discussed above, the February 19, 2013 letter from the

EEOC demonstrates that plaintiff had not filed a charge with the
EEOC as of February 19, 2013.
While the Court may consider acts occurring outside the
300-day period for evaluating the claim as series of separate
acts, at least one act contributing to the hostile environment
claim must have occurred within the filing period.

Plaintiff’s

alleged incidents occurred while she was still employed by
defendant and plaintiff does not allege that any of the
14

incidents occurred within the 300-day period between April 19,
2012 and February 13, 2013.

Therefore, viewed in the light most

favorable to plaintiff, plaintiff’s submissions show that she
failed to timely file a charge with the EEOC based on hostile
work environment.

Accordingly, the Court finds that plaintiff’s

hostile work environment claim is time-barred.
V.

CONCLUSION
The Court finds that plaintiff failed to plead sufficient

facts to maintain her Title VII claims despite the Court’s
permission and instructions to amend her claim to clearly state
the dates and provide documentation regarding when she filed her
charge with the EEOC, and to provide clear and sufficient facts
for the Court to determine if equitable tolling is warranted.
For the foregoing reasons, defendant’s motion to dismiss
the amended complaint will be granted, and plaintiff’s amended
complaint will be dismissed with prejudice.
An appropriate Order follows.

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

December 15, 2015

At Camden, New Jersey

15