DEBORAH v. BANK OF AMERICA CORPORATION

Filing 22

ORDER denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge W. Earl Britt on 12/19/2013. (Marsh, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO: 5:13-CV-00508-BR
DEBORAH SWOPE,
Plaintiff,
v.
BANK OF AMERICA, NATIONAL
ASSOCIATION D/B/A BANK OF AMERICA
HOME LOANS,
Defendant.

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ORDER

This matter is before the court on defendant’s motion to dismiss plaintiff’s claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), pursuant to Federal Rule
of Civil Procedure 12(b)(6). (DE # 11.) Plaintiff filed a response in opposition to the motion,
(DE # 15), and defendant filed a reply, (DE # 16). Plaintiff then filed a sur-reply, (DE # 17),
which is not permitted by Local Rule, and the court has not considered it.
According to plaintiff, she began her employment with defendant in March 2011. (Am.
Compl., ¶ 10.) Plaintiff contends that over the course of her employment with defendant, her
supervisor preferentially treated similarly situated male employees, who were under the age of
40. (Id. ¶ 24.) She complained on several occasions about the allegedly discriminatory
treatment to her supervisor’s manager as well as defendant’s employee relations department.
(Id. ¶¶ 25, 27.) Defendant terminated plaintiff’s employment in February 2012, at which time
plaintiff was 58 years old. (Id. ¶¶ 33, 34.)
On 13 April 2012, plaintiff filed a charge of discrimination with the U.S. Equal

Employment Opportunity Commission (“EEOC”). (Id. ¶ 39.) On 15 February 2013, the EEOC
mailed a letter notifying her of the right to sue. (Id. ¶ 42.) On 21 May 2013, in North Carolina
Superior Court, Wake County, plaintiff commenced this action by filing an application to extend
the time to file a complaint, which the assistant clerk granted on the same date and allowed
plaintiff until 11 June 2013 to file the complaint.1 (DE # 1-1.) On 10 June 2013, plaintiff filed a
verified complaint in the state court. (DE # 1-2.) On 12 July 2013, defendant removed the
action to this court. (DE # 1.) On 26 July 2013, and with permission of the court, plaintiff filed
an amended complaint asserting claims under Title VII, the ADEA, the Equal Pay Act, 29 U.S.C.
§ 206 et seq., and North Carolina law. (DE ## 8, 10.)
As noted previously, defendant moves to dismiss plaintiff’s Title VII and ADEA claims
pursuant to Rule 12(b)(6). Defendant contends that plaintiff did not timely file suit on her Title
VII and ADEA claims.
Typically, affirmative defenses, such as a limitations bar, may not
be raised in a Rule 12(b)(6) motion because it is intended merely
to test the legal adequacy of the complaint. However, a defense of
the statute of limitations may be raised in a Rule 12(b)(6) motion
where that defense appears clearly on the face of the complaint.
“If the bar is not apparent on the face of the complaint, then it may
not afford the basis for a dismissal of the complaint under Rule
12(b)(6).”
Darden v. Cardinal Travel Ctr., 493 F. Supp. 2d 773, 775 (W.D. Va. 2007) (citations omitted).
“Before a plaintiff may file suit under Title VII or the ADEA, [s]he is required to file a
charge of discrimination with the EEOC.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th
Cir. 2009) (citations omitted). A Title VII or ADEA action must be filed within 90 days of
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North Carolina Rule of Civil Procedure 3(a) permits the commencement of an action by issuance of a
summons when a person applies to the court requesting permission to file the complaint within 20 days and the court
grants that application.

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receipt of a right to sue letter from the EEOC. 29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5(f)(1).
As the Fourth Circuit has summarized:
The date on which the claimant received the EEOC letter
becomes critical in determining the commencement of the 90-day
period. In ascertaining the delivery date, we have rejected an
“actual receipt” rule. Instead, we have engaged in “a case-by-case
examination to determine if an equitable tolling of the filing period
is appropriate.”
We have also utilized procedural rules in ascertaining the
receipt date of notice of right to sue letters. Of course, if the actual
date of receipt is confirmed by evidence, that date governs. If the
date is unknown, however, it is presumed that service by regular
mail is received within three days pursuant to Rule 6(e) [now 6(d)]
of the Federal Rules.
Nguyen v. Inova Alexandria Hosp., No. 98-2215, 1999 WL 556446, at *3 (4th Cir. July 30,
1999) (unpublished) (citations omitted).
Here, the parties agree that the starting point of the analysis is the date the EEOC mailed
plaintiff the right to sue letter, Friday, 15 February 2013. (Mem., DE # 12, at 6; Resp., DE # 15,
at 4.) They also agree that because the date plaintiff received that letter is unknown, the threeday mailing presumption should apply. (Mem., DE # 12, at 6; Resp., DE # 15, at 3.) However,
they dispute how those three days should be counted. Defendant argues that by counting three
consecutive days, Saturday, 16 February; Sunday, 17 February; and Monday, 18 February,
which was a holiday, plaintiff is presumed to have received the letter on the next day which was
not a Saturday, Sunday, or holiday– Tuesday, 19 February. (See Mem., DE # 12, at 6; Reply,
DE # 16, at 2.) Therefore, according to defendant, the 90-day period to file an action expired on
20 May 2013, the day before plaintiff filed in state court. (Mem., DE # 12, at 6.) Plaintiff, on
the other hand, urges the court to count only postal mail days, that is, Saturday, 16 February;
Tuesday, 19 February; and Wednesday, 20 February. (Resp., DE # 15, at 3-4.) Under this
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computation, the 90-day period ended 21 May 2013, the day plaintiff filed suit.
The only case directly on point which the court has found is the one plaintiff cites,
Ragland v. Macy’s, Inc., Civil No. JKB-11-3106, 2011 WL 6370365 (D. Md. Dec. 19, 2011).
There, the right to sue letter was postmarked 27 May 2011. Id. at *1. The court recognized that
29 May was a Sunday and that 30 May, a Monday, was the Memorial Day holiday. Id. In
determining that 1 June was the presumptive date of receipt, the court stated, “It stands to reason
that the three days allowed for mail receipt should be days on which the mail is delivered. . . . It
would be unfair to Plaintiff to presume that she received the right-to-sue letter before June 1 in
the absence of evidence of the actual date of delivery.” Id. (citation omitted)). The court agrees
with this reasoning, particularly in light of the fact that the purpose behind the three-day
presumption is to ensure that a plaintiff has the benefit of the entire 90-day period, Seitzinger v.
Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999); see also Payan v. Aramark Mgmt.
Servs. Ltd. P’ship, 495 F.3d 1119, 1126 (9th Cir. 2007) (“In reviewing whether the presumption
has been rebutted, courts look for evidence suggesting that receipt was delayed beyond the
presumed period. The Second Circuit, for example, found that if a claimant presents sworn
testimony or other admissible evidence from which it could be reasonably be inferred . . . that it
took longer than three days to reach her by mail, the initial presumption is not dispositive.”
(citations and internal quotation marks omitted)).
The case on which defendant primarily relies, Davis v. Navy Fed. Credit Union, No.
1:11cv01282, 2012 WL 73233 (E.D. Va. Jan. 10, 2012), aff’d, 474 F. App’x 398 (4th Cir. 2012),
is not to the contrary. In fact, it arguably supports plaintiff’s position. In Davis, the court
applied the three-day presumption to ultimately conclude that the plaintiff’s Title VII and ADEA

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claims were untimely. Id. at *5. Because the third day was a Sunday and the next day was a
holiday, the court presumed the plaintiff received the right to sue letter on the day following the
holiday. Id. at *5 n.8. The court did not explicitly state it was counting only postal mail days.
Nonetheless, it is significant that the court gave the plaintiff the benefit of additional days to
account for non-mail days. See id.; Great Lakes Behavioral Inst./Diversified Care Mgmt., No.
2:05cv1678, 2007 WL 4198273, at *7 (W.D. Pa. Nov. 27, 2007) (applying the three-day
presumption to determine that when the third day was a Sunday and the following day, Monday,
was a holiday, the plaintiff is presumed to have received the right to sue letter on Tuesday
(collecting cases)). Although the circumstance here is different in that it is the intermediate (or
second) day, rather than the last (or third) day, which is not a postal mail day, these cases are
instructive.
Three postal days from the EEOC’s mailing of the right to sue letter to plaintiff on 15
February 2013 is 20 February 2013. Because there is no admissible evidence of the actual date
of plaintiff’s receipt of that letter, the court presumes receipt on 20 February 2013.2 Plaintiff
commenced this action in state court, as noted, on 21 May 2013. That date is the ninetieth day
after plaintiff’s presumptive receipt of the right to sue letter, and therefore, plaintiff timely filed

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Plaintiff’s memorandum in opposition to defendant’s motion states, “Plaintiff informed counsel that she
received the Right-to-Sue Letter on or around February 22, 2013.” (Resp., DE # 15, at 3.) Of course, this unsworn
statement is not admissible evidence of the date of receipt.

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her Title VII and ADEA claims. Defendant’s motion to dismiss is DENIED.
This 19 December 2013.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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