LOMAX v. PNC BANK, N.A. et al

Filing 16

MEMORANDUM ORDER GRANTING 6 Defendant's Motion to Dismiss and DENYING 11 Plaintiff's Motion for an Emergency Injunction. The Clerk of Court shall mark this case CLOSED. Mailed to Pro Se Plaintiff this day. Signed by Judge Arthur J. Schwab on 5/24/2011. (lcb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GARETH EVAN LOMAX,
Plaintiff,
v.

11cv0147
ELECTRONICALLY
FILED

PNC BANK, N.A.,
Defendant.
MEMORANDUM ORDER RE: DEFENDANT’S MOTION TO DISMISS (Doc. No. 6)
AND PLAINTIFF’S MOTION FOR AN EMERGENCY INJUNCTION (Doc. No. 11)
A. Defendant’s Motion to Dismiss
Presently before this Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint. Doc.
No. 6. On February 14, 2011, Pro Se Plaintiff, Gareth Evan Lomax filed a Complaint against his
former employer, PNC Bank and his supervisors, alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.1
Doc. Nos. 3 and 4. Plaintiff alleges that he was hired by PNC Bank in approximately August
1993, and beginning in March 1994, he was discriminated against based upon his disabilities and
religion. Doc. No. 3. However, the substance of Plaintiff’s allegations need not be addressed
because his Complaint was not timely filed and therefore, is not properly before this Court.
Plaintiff does not dispute that on February 27, 1998, the Equal Employment Opportunity
Commission (“EEOC”) issued him a Dismissal and Notice of Rights to sue letter. Doc. No. 7-1.
Said letter specifically states that “if you decide to sue, you must sue WITHIN 90 DAYS from
your receipt of this Notice; otherwise your right to sue is lost.” Id. (emphasis original). Plaintiff

1

Plaintiff filed an Amended Complaint on March 25, 2011, in which he released all claims
against all Defendants except PNC Bank. Doc. No. 4.

has the burden to rebut the presumption that the date of receipt was three days after its mailing
by the EEOC. See Fed. R. Civ. Pro. 6(e); Baldwin County Welcome Ctr. v. Brown, 266 U.S. 147,
148 (1984); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). Plaintiff
has not submitted any sworn or admissible evidence from which it could be reasonably conferred
that he did not receive the letter until early 2011 and therefore, his Complaint, filed more than
twelve years after his right to sue letter was received, was not timely filed. Dicroce v. Norton,
218 Fed. Appx. 171, 174 (3d Cir. 2007) (Plaintiff’s unsupported assertion that his letter was
misplaced in the mail for sixteen months was insufficient evidence to withstand summary
judgment).2
Additionally, to the extent that Plaintiff is alleging that PNC Bank failed to compensate
him for designing the debit/credit card system, such a claim is time barred by the three year
statute of limitations under the Pennsylvania Wage and Collection Law, 43 P.S. § 260.9(a)(g)
(2010), and the two-year statute of limitations under the Fair Labor Standards Act, 29 U.S.C. §
255(a). Therefore, Plaintiff’s Complaint is time-barred and will be dismissed with prejudice
because any amendment would be futile.
B. Plaintiff’s Motion for an Emergency Injunction
On May 10, 2011, Plaintiff filed a Motion for an Emergency Injunction requesting,
among other things, that he be provided with counsel, forensic accounting of PNC Bank’s assets,
security and housing for himself and 32 members of his family, as well food, books, furniture,
supplies, cars, and offices. Doc. No. 11.

2

Equitable tolling also does not apply in this situation where there is no evidence that Plaintiff
actively pursued his judicial remedies during the statutory period. Dicroce, 218 Fed. Appx. at
174.
2

In evaluating whether a preliminary injunction is warranted, a court must consider: (1)
whether the movant has shown a reasonable probability of success on the merits; (2) that
remedies available at law, such as monetary damages are inadequate to compensate for that
injury; (3) that after considering the balance of hardships between plaintiff and defendant, a
remedy in equity is warranted; and (4) that public interest would not be disserved by a permanent
injunction. EBay Inc v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Allegheny Energy,
Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). A District Court should balance these
factors to determine if an injunction should be issued. Allegheny Energy, Inc., 171 F.3d at 158.
Here, as previously discussed, Plaintiff’s Complaint is time-barred and therefore, there is
no reasonable probability that he would be successful on the merits. The Court also finds that
the remaining three factors weigh against granting an injunction. As such, Plaintiff’s Motion for
an Emergency Injunction (Doc. No. 11) will be denied.
C. Order
AND NOW, this 24th day of May 2011, IT IS HEREBY ORDERED as follows:
(1)

Defendant’s Motion to Dismiss (Doc. No. 6) is GRANTED. Plaintiff’s
Complaint is DISMISSED WITH PREJUDICE.

(2)

Plaintiff’s Motion for an Emergency Injunction is DENIED.

(3)

The Clerk of Court shall mark this case CLOSED.

s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:
All Registered ECF Counsel and Parties
Gareth Evan Lomax, PRO SE PLAINTIFF
4060 Peachtree Road, D550
Atlanta, GA 30319
412-667-1001
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