WALKER v. UNITED PARCEL SERVICE et al
OPINION. Signed by Judge Robert B. Kugler on 4/7/2017. (TH, )
NOT FOR PUBLICATION
(Doc. No. 11)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARVIN WALKER, JR.,
Civil No. 16-4949 (RBK/KMW)
UNITED PARCEL SERVICE et al.,
KUGLER, United States District Judge:
This matter comes before the Court upon Defendants United Parcel Service, Reverdy
Wells, and Rob Rambo (“Defendants”)’s Motion to Dismiss (Doc. No. 11). Plaintiff brings claims
against Defendants for violations of Title VII of the Civil Rights Act of 1964, harassment, and
perjury. For the following reasons, Defendants’ motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff brings claims against his employer, United Parcel Service (“UPS”) and his
supervisors for violations of Title VII, harassment, and perjury. Plaintiff alleges that Defendants
discriminated against him on the basis of race, color, and/or national origin in the following
ways: Plaintiff was denied seniority rights afforded to white employees; Plaintiff received
harsher punishments than white employees; Plaintiff was given more work and stops than white
employees; Plaintiff was unable to file a grievance against white employees; Plaintiff was
harassed by management; Plaintiff was defamed by Defendants Wells and Rambo; and that
Plaintiff was the subject of racist statements and color classification by Defendant Wells. Compl.
1. On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must
“accept all factual allegations as true and construe the complaint in the light most favorable to
the Plaintiff.” Phillips v. Cty. Of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Accordingly, for
purposes of this motion, the Court adopts and accepts as true the facts as pled in the Complaint.
at 7 (Doc. No. 1). Plaintiff further alleges that Defendant Wells committed perjury during a
hearing before the New Jersey Appeal Tribunal and that there was perjury in a statement
provided to the EEOC on October 28, 2015. Id.
Plaintiff filed a charge with the EEOC regarding these allegations on August 26, 2015.
Id. Plaintiff received a Notice of Right to Sue letter from the EEOC on May 12, 2016. Id.
Plaintiff filed the complaint in this case on August 12, 2016. Id. at 1. Defendants filed the instant
motion to dismiss on October 19, 2016.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips, 515 F.3d at 233). In other words, a complaint is sufficient if it contains enough
factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is not
for courts to decide at this point whether the moving party will succeed on the merits, but
“whether they should be afforded an opportunity to offer evidence in support of their claims.” In
re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002). Yet, while “detailed factual
allegations” are unnecessary, a “plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original)
To make this determination, a court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the
court should identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 680). Finally, “where there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 680).
This plausibility determination is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. A complaint cannot
survive where a court can infer only that a claim is merely possible rather than plausible. Id.
A. Title VII
Defendants raise several arguments as to why Plaintiff’s complaint should be dismissed
with prejudice. The Court, however, finds that their first argument is sufficient.
Defendants argue that Plaintiff’s complaint is time-barred. Defs.’ Br. at 6-8 (Doc. No. 111). Defendants note that a plaintiff has ninety days to file a complaint in federal court once the
plaintiff has received a Right to Sue letter from the EEOC. Defs.’ Br. at 6 (citing 42 U.S.C.
§ 2000e-5(f)(1) (2012)). The Third Circuit has noted that the ninety day statute of limitations for
complaints filed under Title VII runs from the date plaintiff receives their Right to Sue letter.
Carter v. Potter, 258 F. App’x 475, 478 (3d Cir. 2007). Plaintiff’s complaint states that he
received his Right to Sue letter on May 12, 2016. Compl. at 7. The Court takes notice that
August 10, 2016 was nintey days after May 12, 2016. The Court observes that Plaintiff filed the
instant Complaint on August 12, 2016. Therefore, notwithstanding some equitable tolling of the
statute of limitations, Plaintiff’s complaint was filed out of time.
Defendants go on to argue that the simple fact that Plaintiff is pro se is not, itself,
grounds for equitable tolling of the statute of limitations. Defs.’ Br. at 7. Defendants cite to a
particularly instructive case from the United States District Court for the District of Columbia,
Smith v. Dalton. 971 F. Supp. 1 (D.D.C. 1997). The Plaintiff in Smith filed his Title VII
complaint one day out of time. Smith, 917 F. Supp. at 3. The Smith Court noted that equitable
tolling is justified in instances laid out by the Supreme Court in Baldwin County Welcome Center
v. Brown, 466 U.S. 147 (1984). However, when one of those factors is not present, courts should
not disregard “congressionally mandated time requirements ‘for gaining access to the federal
courts . . . out of a vague sympathy for particular litigants.’” Id. at 3 (quoting Baldwin Cty.
Welcome Center, 466 U.S. at 152). The fact that Plaintiff was “no match” against defense
counsel was insufficient to toll even one day of Title VII’s statute of limitations. Id. at 4.
Plaintiff argues that his Complaint was timely filed because the period from May 12,
2016 to August 12, 2016 contained two federal holidays (Memorial Day and the Fourth of July).
Pl.’s Opp’n at 2-3 (Doc. No. 12). Plaintiff claims that he spoke to a representative from the
“District Court office” who assured him that he could file until August 12, 2016 due to the two
federal holidays. Id. at 2. Plaintiff does not mention a date for this conversation, nor does he
establish with whom he spoke.
Defendants reply that courts have not credited pro se litigant’s contentions that the
Clerk’s Office gave them incorrect information regarding the ninetieth day for filing their
complaint. Defs.’ Reply Br. at 1 (Doc. No. 13). For example, in Aljadir v. University of
Pennsylvania, the District Court for the Eastern District of Pennsylvania held that the ninety day
period should not be tolled based on an allegation that Plaintiff failed to file by the ninetieth day
after receiving incorrect information from the Clerk’s Office. 547 F. Supp. 667, 670 (E.D. Pa.
1982), aff’d 709 F.2d 1490 (3d Cir. 1983).
The Third Circuit has stated unequivocally that the ninety day time limit “is strictly
enforced and a delay of even one day will bar a claim.” Burgh v. Borough Council Borough of
Montrose, 251 F.3d 465, 472 (3d Cir. 2001) (citing Figueroa v. Buccaneer Hotel Inc., 188 F.3d
172, 176 (3d Cir. 1999)). The Court finds that Plaintiff has not presented a compelling argument
for tolling the ninety day statute of limitations for filing his Title VII complaint after receiving
his Right to Sue letter from the EEOC. Therefore, Plaintiff’s Title VII claims are time barred and
the complaint will be dismissed.
B. State Law Claims
The Third Circuit has held that “where the claim over which the district court has
original jurisdiction is dismissed before trial, the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.
2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
Plaintiff’s claims under federal law have been dismissed, and there is no affirmative justification
for this Court to retain supplemental jurisdiction over any potential state law claims at this point
in the litigation. To the extent that Plaintiff’s complaint may allege state law claims for
harassment, failure to promote, retaliation, etc., the Court declines to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(c)(3). Any potential state law claims are therefore
dismissed without prejudice.
For the reasons stated herein, Defendants’ Motion to Dismiss is GRANTED.
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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