Osborne v. Eastar Health System, LLC
Filing
33
OPINION & ORDER by Magistrate Judge Kimberly E. West denying 12 Motion to Dismiss. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JEREMY OSBORNE,
Plaintiff,
v.
EASTAR HEALTH SYSTEMS, L.L.C.,
Defendant.
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Case No. CIV-15-414-KEW
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss (Docket Entry #12).
Plaintiff alleges in this action that
Defendant violated the Americans with Disabilities Act (“ADA”).
Defendant alleges that Plaintiff’s complaint was untimely.
Plaintiff alleges he was terminated by Defendant on November
25, 2013.
Plaintiff attests by affidavit that he submitted a
Uniform Intake Questionnaire to the Equal Employment Opportunity
Commission (“EEOC”) on November 21, 2013 and signed a Charge of
Discrimination with the EEOC on December 18, 2013.
Plaintiff also
pursued a challenge to Defendant’s actions with the Oklahoma Office
of Civil Rights Enforcement (“OCRE”).
On February 10, 2014, Plaintiff faxed a letter to the EEOC
investigator requesting an update in the status of his case.
On
February 21, 2014, Plaintiff received a Pre-Determination Letter
from the EEOC by mail which indicated the EEOC was dismissing the
charge and issuing a Right to Sue letter.
On March 7, 2014, the
EEOC mailed a Right to Sue Letter to Plaintiff and Defendant.
On
March 11, 2014, Defendant received the Right to Sue Letter from the
EEOC.
Plaintiff asserts he did not receive the letter.
On May 7,
2014, the EEOC set a letter to Plaintiff stating that his complaint
had been investigated and no further action would be taken.
Plaintiff concedes that he received this letter.
2015,
Plaintiff
commenced
this
action
with
On October 23,
the
filing
of
Complaint alleging a violation of the ADA by Defendant.
a
At
paragraph 34 of the Complaint, Plaintiff states that the “. . .
EEOC did not issue a “Dismissal and Notice of Rights,” or “Right to
Sue Letter” pursuant to its investigation.”
Plaintiff contends he
did not have any knowledge of the issuance of the Right to Sue
Letter until he was advised by his counsel of the same on December
3, 2015.
Title VII, and by extension the ADA, requires that a complaint
be filed within ninety days from receipt of the notice of right sue
letter from the EEOC; otherwise, the plaintiff is foreclosed from
bringing suit based on the allegations in the EEOC charge.
U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1614.407(a).
See 42
“Compliance with
the filing requirements of Title VII [and the ADA] is not a
jurisdictional prerequisite, rather it is a condition precedent to
suit that functions like a statute of limitations and is subject to
waiver, estoppel, and equitable tolling.”
F.3d 385, 389 (10th Cir. 1995).
is strictly administered.
Brown,
466
U
.S.
147,
Million v. Frank, 47
The ninety day filing requirement
See Baldwin County Welcome Center v.
152
(1984)
(“Procedural
requirements
established by Congress for gaining access to the federal courts
are not to be disregarded by courts out of a vague sympathy for
particular litigants. As we stated in Mohasco Corp. v. Silver, 447
2
U.S. 807, 826 (1980), ‘in the long run, experience teaches that
strict adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration of
the law.’”).
(Bracketed information added by this Court).
The Tenth Circuit Court of Appeals has expressly determined
that the 90 day period for filing this action does not commence
until the Right to Sue Letter is actually received by Plaintiff.
Jackson v. Continental Cargo, 183 F.3d 1186, 1189-90 (10th Cir.
1999).1
Defendant contends the EEOC’s mailing log indicates the
letter was mailed to Plaintiff and, as such, the mailing-time
presumption is invoked. Under that presumption, federal courts may
presume the letter was received from three to seven days after the
letter was mailed.
Cir. 2001).
Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th
However, this “presumption is rebuttable . . .
evidence denying receipt creates a credibility issue that must be
resolved by the trier of fact.”
Witt v. Roadway Exp., 136 F.3d
1424, 1430 (10th Cir.) cert. denied, 525 U.S. 881 (1998).
mailing-time
surrounding
presumption
Plaintiff’s
taken
together
communications
with
with
the
the
The
allegations
EEOC
and
the
notification that a Right to Sue Letter was going to be issued
creates a factual issue requiring a credibility determination which
will be presented to the trier of fact as an interrogatory at trial
1
Plaintiff concedes that the Right to Sue Letter issued by the
EEOC is the appropriate document which triggers the 90 day time for
filing this action.
His attempt to resurrect the argument to the
contrary that interaction with the OCRE can begin this period set forth
in the surreply is without merit. Rodriguez v. Wet Link, LLC, 603 F.3d
810, 814 (10th Cir. 2010)(receipt of a state agency right to sue letter
does not trigger the federal filing period).
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or by summary judgment, should the parties uncover additional
evidence on this issue in discovery. Until that time, dismissal is
not appropriate.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
(Docket Entry #12) is hereby DENIED at this time.
IT IS SO ORDERED this 16th day of September, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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