Lott v. Kmart

Filing 27

ORDER finding as moot 4 Motion ; granting 6 Motion to Dismiss; finding as moot 12 Motion for Summary Judgment; finding as moot 15 Motion ; finding as moot 16 Motion to Strike ; finding as moot 17 Motion ; finding as moot 18 Motion ; adopting Report and Recommendations re 22 Report and Recommendations. Signed by Judge James L Graham on 7/29/13. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Harry William Lott,
Plaintiff,
v.

Case No. 2:13-cv-228

Kmart,
Defendant.
OPINION AND ORDER
This is a discrimination action filed pursuant to Title VII of
the civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title
VII”).

Plaintiff Harry William Lott alleges that defendant Kmart

discriminated against him on the basis of gender in failing to hire
him for a cashier position.

This matter is before the court on the

July 2, 2013, report and recommendation of the magistrate judge,
and plaintiff’s objections to the report and recommendation.
Plaintiff

filed

timely

objections

to

the

recommendation pursuant to Fed. R. Civ. P. 72(b).

report

and

If a party

objects within the allotted time to a report and recommendation,
the court “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to
which objection is made.”
Civ. P. 72(b).

28 U.S.C. §636(b)(1); see also Fed. R.

Upon review, the court “may accept, reject, or

modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”

28 U.S.C. §636(b)(1).

In the instant case, the magistrate judge recommended that
defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
be

granted.

Defendant

argued

that

the

complaint

should

be

dismissed because plaintiff had not exhausted his administrative

remedies under Title VII.

Defendant noted that although plaintiff

filed a charge of discrimination with the Ohio Civil Rights
Commission on August 16, 2012, and the Equal Employment Opportunity
Commission (“EEOC”) was notified of that charge on August 17, 2013,
plaintiff had not produced a right-to-sue letter.

Plaintiff did

not file a response to the motion to dismiss, but filed a motion
for summary judgment (Doc. 12) in which he argued that he could
file suit without first obtaining a right-to-sue letter.

The

magistrate judge concluded that plaintiff’s complaint should be
dismissed without prejudice for failure to exhaust administrative
remedies.

The magistrate judge further recommended that all other

pending motions be denied as moot.
The magistrate judge’s recommendation was based on an accurate
analysis of the governing law. Before filing suit in federal court
under Title VII, a plaintiff must first timely file a charge of
employment discrimination with the EEOC.

Nichols v. Muskingum

College, 318 F.3d 674, 677 (6th cir. 2003).

After investigation,

the EEOC will either file suit on behalf of the claimant or issue
a right-to-sue letter.

Rivers v. Barberton Bd. of Educ., 143 F.3d

1029, 1032 (6th Cir. 1998).

If, after 180 days, the EEOC fails to

make a “reasonable cause” finding, the claimant may request a
right-to-sue letter from the EEOC.

Equal Employment Opportunity

Commission v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 456
(6th

Cir.

1999).

Upon

receipt

of

a

right-to-sue

letter,

a

plaintiff has ninety days in which to bring a federal action
alleging a violation of Title VII.

42 U.S.C. §2000e-5(f)(1).

An

individual may not file suit under Title VII if he does not possess
a right-to-sue letter from the EEOC.

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Id.

Premature suits are

subject to a motion to dismiss at any time between the filing of
the lawsuit and plaintiff’s receipt of the letter. Portis v. State
of Ohio, 141 F.3d 632, 635 (6th Cir. 1998).
A party’s exhaustion of administrative process for filing a
claim of discrimination is a condition precedent to filing suit
under Title VII in the district court, not a jurisdictional
prerequisite.
2003).

Mitchell v. Chapman, 343 F.3d 811, 819-20 (6th Cir.

This precondition to filing suit is subject to equitable

tolling, waiver and estoppel.

Id. at 820.

In his objections, plaintiff does not dispute that he has not
received a right-to-sue letter.

Rather, he contends that the EEOC

failed to issue such a letter 180 days after the filing of the
charge of discrimination, and that this court should cure or waive
this

defect

pursuant

to

28

U.S.C.

§1406(a).

However,

that

provision relates to curing defects in venue, and it is not
applicable here.
As stated above, if the EEOC fails to make a determination
after 180 days, the complainant may request a right-to-sue letter
from the EEOC.

Frank’s Nursery, 177 F.3d at 456; Cleveland

Newspaper Guild, Local 1 v. Plain Dealer Publishing Co., 839 F.2d
1147, 1150 (6th Cir. 1988).

Under 29 C.F.R. §1601.28(a), when a

complainant requests in writing, at any time after the expiration
of 180 days from the filing of the charge, that a notice of right
to sue be issued, the EEOC must “promptly issue such notice[.]” 29
C.F.R.

§1601.28(a).

Plaintiff

cited

this

provision

in

his

objections, but did not state that he had requested a right-to-sue
letter from the EEOC.

In a similar case, the Sixth Circuit

concluded that where plaintiff failed to request a right-to-sue

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letter from the EEOC, the action was properly dismissed, and that
the circumstances did not warrant the application of waiver,
estoppel, or equitable tolling.

See Puckett v. Tennessee Eastman

Co., 889 F.2d 1481, 1488 (6th Cir. 1989)(failure to request a
right-to-sue letter “amounts to a position of arrogance regarding
the statutory requirement as mere surplusage”).
Because a right-to-sue letter is a condition precedent to
filing suit and plaintiff has not received such a letter, this
court concludes that the instant case must be dismissed for failure
to exhaust administrative remedies.

The court hereby adopts the

report and recommendation (Doc. 22). Defendant’s motion to dismiss
(Doc. 6) is granted, and plaintiff’s objections (Docs. 24 and 25)
are denied.

The other pending motions (Docs. 4, 12, 15, 16, 17,

and 18) are denied as moot.

This action is hereby dismissed

without prejudice to re-filing upon obtaining the requisite rightto-sue letter from the EEOC.

Date: July 29, 2013

s/James L. Graham
James L. Graham
United States District Judge

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