Waithe v. Whited et al

Filing 17

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned Magistrate Judge recommends that Defendant United's motion to dismiss 8 , analyzed as a motion for summary judgment, should be granted and the complaint dismissed. Signed by Magistrate Judge John S. Bryant on 5/6/15. (xc:Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MALISSA WAITHE,

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Plaintiff
v.
UNITED ROAD TOWING,
Defendant
TO:

No. 3:14-0673
Chief Judge Sharp/Bryant

THE HONORABLE CHIEF JUDGE KEVIN H. SHARP
REPORT AND RECOMMENDATION
The remaining Defendant, United Road Towing, has filed

its motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) on the grounds that Plaintiff’s complaint fails to state
a claim upon which relief can be granted. Specifically, Defendant
argues

that

Plaintiff’s

claim

of

racial

discrimination

in

employment is time-barred because Plaintiff has failed to file a
timely

charge

of

discrimination

with

the

Equal

Employment

Opportunity Commission (“EEOC”) or any state agency.
Plaintiff Waithe has filed a response in opposition
(Docket Entry No. 10) and Defendant has filed a reply (Docket Entry
No. 14).
For the reasons stated below, the undersigned Magistrate
Judge recommends that Defendant’s motion be granted, and that the
complaint be dismissed.

STATEMENT OF THE CASE
Plaintiff Malissa Waithe, who is proceeding pro se and in
forma pauperis, has filed her complaint alleging that her former

employer,
terminated

Defendant
her

United

employment

Road
on

Towing

March

13,

(“United”)
2013,

wrongfully

“following

[a]

racially motivated incident, instigated and committed by [a] white
employee who was not terminated.” (Docket Entry No. 1 at 6). Upon
review, the Court found that “the complaint states a colorable
claim of discrimination in violation of Title VII against United
Road Towing that is not facially frivolous or malicious.” (Docket
Entry No. 3 at 2).
Defendant United has filed its motion to dismiss.
STANDARD OF REVIEW
Although United entitled its motion as one to dismiss
pursuant to Rule 12(b)(6), it relies upon the affirmative defense
of Plaintiff’s failure to comply with a statute of limitations
contained in Title VII. Therefore, the undersigned Magistrate Judge
finds that this motion is properly analyzed under the standard that
applies to a motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
2

P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914 (6th
Cir. 2000). The moving party bears the initial burden of satisfying
the court that the standards of Rule 56 have been met. See Martin
v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The ultimate

question to be addressed is whether there exists any genuine
dispute of material fact. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary judgment

is inappropriate.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,

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drawing all justifiable inferences in its favor. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

ANALYSIS
Defendant United argues that Plaintiff’s complaint must
be dismissed because she has failed to file a timely charge of race
discrimination with the EEOC or the appropriate state agency within
the

statutory

limitations

period.

Title

42,

§

2000e-5(e)(1)

provides that a charge of employment discrimination shall be filed
with the EEOC within 180 days after the alleged unlawful employment
practice occurred or, alternatively, a charge must be filed with an
appropriate state agency within 300 days after the alleged unlawful
employment

practice

occurred.

Defendant

United

argues

that

Plaintiff has failed to comply with either of these limitations
periods, and that her complaint is now time-barred and must be
dismissed for her failure to exhaust administrative remedies.
In her response (Docket Entry No. 10), Plaintiff Waithe
makes three arguments. First, Plaintiff argues that upon initial
review the Court has already found that “the complaint states a
colorable claim of discrimination in violation of Title VII against
United Road Towing that is not facially frivolous or malicious.”
(Docket Entry No. 3 at 2). However, this argument is unavailing for
Plaintiff because the standard for an initial review of an in forma
pauperis complaint assumes all well-pled facts in the complaint to

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be true but does not take into account any affirmative defense that
may be raised by a defendant.
Second, Plaintiff argues that the Sixth Circuit has held
that a right-to-sue letter is not a jurisdictional requirement for
bringing a Title VII action, citing Truitt v. County of Wayne, 148
F.3d 644 (6th Cir. 1998). While Plaintiff is correct in this
statement of law, this argument also is unavailing for Plaintiff.
Defendant United does not here challenge the jurisdiction of the
Court based upon Plaintiff’s failure to file an administrative
charge

of

discrimination.

Instead,

United

relies

upon

the

affirmative defense of failure to exhaust administrative remedies
by filing a timely charge of discrimination with the EEOC or
appropriate state agency within the limitations period required by
the statute. As the Truitt opinion makes clear, this affirmative
defense is not a jurisdictional prerequisite and may be waived by
a defendant if it is not asserted. It has been asserted by United
here, however, so there is no waiver of the defense.
Finally, Plaintiff argues that failure to file a timely
charge of discrimination with the EEOC is subject to estoppel and
equitable tolling, citing Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982). Again, Plaintiff correctly states the law.
Nevertheless, Plaintiff here has offered no evidence, or even an

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argument, that would support a finding of estoppel or equitable
tolling in this case.
Plaintiff in her motion papers states that she filed a
Title VII complaint with the EEOC on or about May 5, 2014 (Docket
Entry No. 10 at 2). This filing occurred more than a year after
Plaintiff’s allegedly wrongful termination on March 13, 2013. Thus,
from the record before the Court, it appears undisputed that
Plaintiff failed to file a charge of discrimination with the EEOC
or with an appropriate state agency within 300 days after the
alleged unlawful employment practice occurred, as required by 42
U.S.C. § 2000e-5(e)(1).
In general, exhaustion of administrative remedies is
central to Title VII’s statutory scheme because it provides the
EEOC the first opportunity to investigate discriminatory practices
and

enables

it

to

perform

its

role

of

obtaining

voluntary

compliance and promoting conciliatory efforts. Williams v. Little
Rock Mun. Waterworks, 21 F.3d 218, 222 (8th Cir. 1994). To exhaust

her remedies, a Title VII plaintiff must timely file her charges
with the EEOC and receive, from the EEOC, a “right-to-sue” letter.
Failure to exhaust her administrative remedies in this manner is
fatal to Plaintiff’s claim in this Court, and the undersigned
Magistrate Judge finds from the undisputed record that there is no
genuine dispute as to any material fact and that Plaintiff’s claim
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must be dismissed as a matter of law. Bybee v. Pirtle, 99 F.3d 1136
(6th Cir. 1996) (unpublished).
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge

recommends

that

Defendant

United’s

motion

to

dismiss,

analyzed as a motion for summary judgment, should be granted and
the complaint dismissed.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 6th day of May, 2015.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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