Brooks v. LKQ

Filing 33

MEMORANDUM AND ORDER: The Court rules as follows: (1) The R & R (Doc. No. 30 ) is ADOPTED; (2) Keystone Automotive Industries, Inc.'s Motion to Dismiss (Doc. No. 5 ) is GRANTED; and (3) Brooks' claims are hereby DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter final judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/15/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
NANETTE BROOKS,
Plaintiff,
v.
LKQ,
Defendant.

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No. 3:16-02618
Chief Judge Crenshaw

MEMORANDUM OPINION AND ORDER
The Magistrate Judge has entered a Report and Recommendation (“R&R”) (Doc. No. 30)
that recommends Nanette Brooks’ employment discrimination complaint under Title VII be
dismissed because it was not timely filed. Brooks has filed Objections (Doc. No. 31) to the R & R,
and her former employer, Keystone Automotive Industries, Inc., which she identifies as
LKQ/Keystone Automotive in the Complaint, has filed a response (Doc. No. 32). Having conducted
the de novo review required by Rule 72 of the Federal Rules of Civil Procedure, the Court will
accept the R & R and dismiss Brooks’ claims.
Title VII contains a ninety-day limit for filing suit after the receipt of a Right to Sue letter.
42 U.S.C. § 2000e-5(f). “Because courts must ‘strictly enforce[ ] Title VII’s ninety-day statutory
limit,’ [a court] ordinarily may not extend it even by ‘a single day.’” Rembisz v. Lew, 830 F.3d 681,
683 (6th Cir. 2016) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d
552, 557 (6th Cir. 2000)).
Here, the Equal Employment Opportunity Commission (“EEOC”) issued two Right to Sue
Letters on June 9, 2016, and, “[t]he Sixth Circuit has resolved that notice is given, and hence the

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ninety-day limitations term begins running, on the fifth day following the EEOC's mailing of [a
Right to Sue] notification to the claimant’s record residential address[.]” Graham-Humphreys, 209
F.3d at 557. By virtue of that presumption, Brooks should have received the letter on June 14, 2016,
and the ninety day period expired on September 12, 2015 yet her Complaint was not filed until
September 30, 2016.
In both her Complaint and Objections, Brooks tacitly concedes that her Complaint comes
too late. In the former she writes, “[l]et me begin by pleading my case to be heard although the 90
day window has expired,” (Doc. No. 1 at 5), and in the latter she “beg[s] the courts [sic] not to
dismiss my case because I did not understand what ‘days’ were include in the 90-day window,”
(Doc. No. 31 at 1). She nevertheless request that the case be allowed to go forward for several
reasons, all of which are unavailing.
Brooks argues that she did not understand whether the ninety-day period included weekends
and holidays and that, when she asked the EEOC, she received no answer. However, the letters she
received from the EEOC could not have been any clearer. They stated: “Your lawsuit must be filed
WITHIN 90 DAYS or your receipt of this notice; or your right to sue based on this charge will
be lost.” (Doc. No. 1 at 10, 12) (emphasis in original). The letters in no way suggested that
weekends did not count. The contention that the EEOC failed to answer Brooks’ question about
whether weekends were included is not a basis for equitable tolling. See Grzanecki v. Bravo Cucina
Italiana, 408 F. App’x 993, 995-96 (7th Cir. 2011) (stating that “equitable tolling is available only
when the court or an opponent takes some action that lulls or misleads a plaintiff into filing late,”
and finding that “the refusal of the EEOC and court to provide legal advice did not affirmatively
mislead” plaintiff); Stephens v. Salvation Army, 2006 WL 2788245, at *4 (S.D.N.Y. Sept. 26, 2006)

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(rejecting plaintiff’s claims that he was mislead by court clerk into concluding that weekends and
holidays did not count because “the right to sue letter received from the EEOC . . . states clearly that
any action [plaintiff] wished to pursue in state or federal court had to be commenced within 90 days
from receipt of the letter”). Moreover, accepting Brooks’ position would mean that the ninety-day
period in all cases would turn the limitations period into 126 days since there are 18 Saturdays and
18 Sundays in any given ninety day period.
Brooks next asserts that her delay in filing suit should be excused because “of the mental toll
and traumatization that was inflicted upon [her] by LKQ’s employees.” (Doc. No. 31 at 1). “The
Sixth Circuit has not ruled on the issue of whether equitable tolling is applicable where a plaintiff
claims that her mental distress prevented her from filing within Title VII and ADEA limitations
periods[.]” Holt v. City of Dickson, 2015 WL 6619969, at *4-5 (M.D. Tenn. Oct. 30, 2015).
Assuming mental distress is grounds for equitable tolling, Brooks “would have to show that ‘(1)
[s]he is mentally incompetent and (2) h[er] mental incompetence caused h[er] failure to comply with
[the] statute of limitations.’” Id. (quoting Ata v. Scutt, 662 F.3d 736, 742 (6th Cir.2011). “There is
little precedent on how to apply this standard in the Sixth Circuit, but other circuits look to whether
the plaintiff’s disability is such that she is unable to manage her normal business or comprehend her
legal rights or liabilities.” Id. (collecting cases).
In support of the request for equitable tolling on the grounds of mental distress, Brooks
attaches a Psychological Fitness for Duty Report from James S. Walker, a Clinical Neuropsychologist. The report, apparently done at the request of LKQ, is of limited evidentiary value
because it was prepared on January 27, 2016, almost 8 months before Brooks was required to file
suit. Nevertheless, even though the examination indicated that Brooks had some psychological

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issues, it did not indicate that she was incapable of managing her affairs. Quite the contrary, Dr.
Walker opined that Brooks could perform the essential functions of her job with a reasonable
accommodation in the form of weekly psychological visits, and that “three months may be sufficient
for that therapy to be successful.” (Doc. No. 31 at 8).
Additionally, Brooks asserts that she filed a “police report in June 2016” that complained
about her being followed by LKQ employees and that, prior to filing suit she had “been aggressively
seeking employment” and “had many interviews[.]” (Doc. No. 1 at 5). Brooks also claims that when
she “found the strength and courage to move forward with the suit,” she “went downtown to file an
Order of Protection” against certain LKQ employees. These facts, in conjunction with her claim that
she inquired about whether weekends were included in the time computation, suggest that Brooks
was able to manage her affairs and comprehend her legal rights.
For much the same reasons, Brooks’ final basis for equitable tolling fails. In this regard she
claims that, after her husband had surgery, she needed to “nurse [him] back to good health.” (Doc.
No. 20 at 3). Brooks does not, however, indicate when the surgery occurred, or show that her
husband required uninterrupted, constant care. As the Magistrate Judge pointed out, “[e]ven
assuming that caring for a family member can serve as a ground for equitable tolling–and Brooks
cites no authority that it can–Brooks does not show how caring for her husband prevented her from
timely filing this action.” (Doc. No. 30 at 8).
The Sixth Circuit “has repeatedly cautioned that equitable tolling relief should be sparingly
granted,” Reed v. ADM/ARTCO, 57 F. App’x 682, 683 (6th Cir. 2003), and “[t]he party seeking
equitable tolling bears the burden of proving [s]he is entitled to it,” Robertson v. Simpson, 624 F.3d
781, 784 (6th Cir. 2010). Brooks has not carried that burden.

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Accordingly, the Court rules as follows:
(1) The R & R (Doc. No. 30) is ADOPTED;
(2) Keystone Automotive Industries, Inc.’s Motion to Dismiss (Doc. No. 5) is GRANTED;
and
(3) Brooks’ claims are hereby DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter final judgment in accordance with Rule 58 of the Federal
Rules of Civil Procedure.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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