Posner v. Coral Resorts LLC et al

Filing 70

ORDER AND OPINION RULING ON 64 REPORT AND RECOMMENDATION The Court GRANTS IN PART AND DENIES IN PART the Moving Defendants Motions to Dismiss or, in the Alternative for Summary Judgment, and to Strike as to Third Amended Complaint (Dkt. No. 57 ), GRANTING it as to the Plaintiff's Title VII claims and DENYING it as to the remaining claims. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 3/5/2018. (sshe, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION

Cindy Posner,

)

Case No 9:16-cv-03231-RMG

)

Plaintiff,
V.

)
)
ORDER AND OPINION

)

)
Coral Resorts, LLC; Hilton Head
)
Hospitality, LLC; Hilton Head Guest
)
Services, LLC; HHI Investment Company, )
LLC; and Elite Resort Group,
)
)
Defendants.
)

I.

Background

This matter is before the Court on the Report and Recommendation ("R. & R. ") of the
Magistrate Judge (Dkt. No. 64) recommending that the Court grant in part and deny in part
Defendants Coral Resorts, LLC, Hilton Head Hospitality, LLC, HHI Investment Company, LLC,
and Elite Resort Group's (the "Moving Defendants") Motions to Dismiss or, in the Alternative for
Summary Judgment, and to Strike as to the Third Amended Complaint (Dkt. No. 57). The Plaintiff
timely filed objections to the R. & R. on February 10, 2018 (Dkt. No. 65). For the reasons set
forth below, the Court adopts the R. & R., except for the portion titled "Timeliness of Claims
Under Title VII and ADEA'' (Dkt. No. 64 at 7-9), as the Order of the Court and grants in part and
denies in part the Moving Defendants' motion (Dkt. No. 57).
II.

Facts

The Court adopts the relevant facts as outlined in the R. & R. (Dkt. No. 64 at 2-4.) In
summation, Plaintiff, a Jewish female over age forty, alleges that while she was employed by
Defendants to sell time shares and schedule tours, Defendants paid younger male employees higher
wages than Plaintiff and other female employees, provided rent-free housing to younger male
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employees yet charged the Plaintiff $600 per month for the same, allowed other employees to
subject the Plaintiff to commentary about her age, sex, and religion, and subsequently fired
Plaintiff for complaining about the wage difference between her and younger male employees.
(Dkt. No. 64 at 2-3.)

III.

Legal Standards
A.

Magistrate Judge's Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with
making a de nova determination of those portions of the R. & R. to which specific objection is
made. 28 U.S.C. § 636(b)(l). Additionally, the Court may "accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge." Id.
B.

Motion to Dismiss

On a motion to dismiss under Rule 12(b)( 6), a "complaint must be dismissed if it does not
allege 'enough facts to state a claim to relief that is plausible on its face."' Giarratano v.
Johnson, 521F.3d298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6), ... [the Court]
must determine whether it is plausible that the factual allegations in the complaint are 'enough to
raise a right to relief above the speculative level."' Andrew v. Clark, 561F.3d261, 266 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 555). "In considering a motion to dismiss, [the Court]
accept[s] the complainant' s well-pleaded allegations as true and view[s] the complaint in the light
most favorable to the non-moving party." Stansbury v. McDonald 's Corp., 36 F. App'x 98, 9899 (4th Cir. 2002) (per curiam) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir.1993)).

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IV.

Discussion
The Moving Defendants move the Court to dismiss claims under Rule 12(b)(6), to grant

summary judgment under Rule 56, and to strike portions of Plaintiffs affidavit filed in response
to a moot motion for summary judgment. With respect to summary judgment, the R. & R.
concludes that summary judgment is premature because discovery has yet to begin. (Dkt. No. 64
at 14-15 .) With respect to striking portions of the Plaintiffs affidavit, the R. & R. notes that the
Moving Defendants previously raised the arguments in support of striking and that the Court has
already ruled that such motion is moot. (Dkt. No. 64 at 15.) The Court agrees with these
assessments and treats the current motion as a motion to dismiss under Rule 12(b)( 6).
The R. & R. recommends that the Court grant in part and deny in part the motion at issue,
granting it with respect to Plaintiffs Title VII and ADEA claims but denying it with respect to all
other claims. (Dkt. No. 64 at 15.) The Court agrees with and adopts the analysis and conclusions
of the Magistrate Judge regarding Plaintiffs failure to exhaust her Title VII administrative
remedies by submitting only an unverified Charge to the EEOC, requiring the dismissal of her
Title VII claims as untimely. (Dkt. No. 64 at 9-11.) The Court adopts the Magistrate Judge ' s
conclusion that the ADEA does not require a verified charge, and Plaintiffs failure to file a verified
Charge regarding her ADEA claims does not affect the viability of those claims. (Id. at 10 n.5 .)
The Court further agrees with and adopts the Magistrate Judge's analysis and conclusions
regarding the denial of the motion to dismiss regarding the other pending claims. (Id. at 11-15.)
The only remaining issue is whether Plaintiffs ADEA claim is time barred by the alleged
failure to file her suit in federal court within 90 days after receipt of the Right to Sue letter, as
mandated by 42 U.S.C. § 2000e-5(t)(l). When the date of receipt of the Right to Sue Letter is in
dispute or is unknown, there is a presumption that regular mail was received within three days of

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the date of mailing, in accord with Rule 6( e) of the Federal Rules of Civil Procedure. Nguyen v.

!nova Alexandria Hosp., 187 F.3d 630 at *3 (4th Cir. 1999) (unpublished). The 90-day rule is,
however, subject to equitable tolling, and the Court is required to conduct a case-by-case
examination to determine if equitable tolling is appropriate. Id. The critical issue is whether there
is sufficient evidence of circumstances beyond the Plaintiffs control and external to her conduct
that would make imposition of the time limit unjust. United States v. Sosa, 364 F.3e 507, 512 (4th
Cir. 2004); Crabill v. Charlotte-Meckenburg Bd. of Educ., 708 F. Supp. 2d 542, 555 (W.D.N.C.
2010).
Plaintiffs Right to Sue Letter was dated June 17, 2016, and it stated that a "lawsuit must
be filed WITHIN 90 DAYS of your receipt of this notice . . . . "

(Dkt. No. 55-1 at 1

(capitalization, bold and underline in the original).) The envelope was postmarked June 20, 2016.
(Dkt. No. 55

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35.) Plaintiff asserts she did not receive the Right to Sue Letter until August 1,

2016. Plaintiff has stated under oath that she received her mail (including her bills and letters)
exclusively at a mailbox at a UPS store during this period, that she was the only person who had
access to the box, that she checked the box every other week, and that she was not out of town
from the period from June 20, 2016 until August 1, 2016. (Dkt. No. 68 at 1-2.) Plaintiff further
states that she retained counsel on September 26, 2016. (Id. at 2.) Plaintiffs counsel filed the
complaint in this matter that same day, September 26, 2016. (Dkt. Nos. 1, 68 at 2, 69.)
In an earlier era, the date of receipt of the Right to Sue Letter was not in doubt because the
EEOC sent the Right to Sue Letter certified mail, return receipt requested. The EEOC discontinued
this practice as a cost-cutting measure, introducing a level of uncertainty and confusion regarding
the 90-day limit from receipt of the Right to Sue Letter. Nguyen, 187 F.3d at *4.

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Defendant contends that Plaintiffs account of her delayed receipt of her Right to Sue Letter
"strains credulity" and her assertions to the contrary should be disregarded by the Court. (Dkt.
No. 57-1 at 8.) This argument presupposes the inherent reliability of timely mail delivery so
compelling that this Court should presume the Plaintiff is willfully offering false evidence under
oath to the Court. However, a September 2, 2016 report of the Office oflnspector General of the
United States Postal Service documented problems with delayed mail arising out of cost cutting
measures taken by the Postal Service in 2014. OIG, USPS, Mail Processing and Transportation
Operational

Changes:

Audit

Report

(Sept.

2,

2016),

available

https ://uspsoig.govI sites/default/files/document-Ii brary-files/2016/N 0-AR-16-009. pdf).

at
This

included findings that a nationwide mailing test conducted by the Inspector General that covered
a period through March 2016 had delayed service in 27% of the samples. Id. at 2, 15-21. The
Court takes judicial notice of the Inspector General ' s report.
After a careful review of the evidence before the Court, the Court finds by a preponderance
of the evidence that Plaintiff received the Right to Sue Letter in this matter on August 1, 2016.
There is no evidence that Plaintiff delegated the retrieval of her mail to any other person, she
accessed her mailbox at least twice per month, and she did not absent herself from town during
this period for any unreasonable length of time. See Strothers v. City ofLaurel, Md., 118 F. Supp.
2d 852, 861-62 (D. Md. 2015); Crabill v. Charlotte-Mecklenburg Bd. of Educ., 708 F. Supp. 2d
at 554. Under these circumstances, the Court finds equitable tolling to be appropriate regarding
Plaintiffs ADEA claim. 1
V.

Conclusion

1

The Court finds it unnecessary to address the timeliness of the Title VII claim because Plaintiff
failed to exhaust her administrative remedies by submitting only an unverified Charge under Title
VII.

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For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART
the Moving Defendants Motions to Dismiss or, in the Alternative for Summary Judgment, and to
Strike as to Third Amended Complaint (Dkt. No. 57), GRANTING it as to the Plaintiffs Title
VII claims and DENYING it as to the remaining claims.

AND IT IS SO ORDERED.

United States District Court Judge
March S, 2018
Charleston, South Carolina

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