Gates v. Hudson et al

Filing 12

REPORT AND RECOMMENDATIONS re 10 Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment - It is recommended that the complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), or in the alternative, that the defendants' Motion to Dismiss be granted. Signed by Magistrate Judge Tu M. Pham on 1/8/14. (Pham, Tu)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_________________________________________________________________
MICHAEL GATES,

)
)
Plaintiff,
)
)
)
v.
)
MEMPHIS AREA TRANSIT AUTHORITY, )
)
MEMPHIS CITY GOVERNMENT, and
)
WILL HUDSON,
)
)
Defendants.

No. 13-02622-JDT/tmp

________________________________________________________________
REPORT AND RECOMMENDATION
_________________________________________________________________
On August 12, 2013, plaintiff Michael Gates, a resident of
Memphis, Tennessee, filed a pro se complaint against defendants
Memphis Area Transit Authority (“MATA”), Memphis City Government,
and Will Hudson.

(ECF No. 1.) Gates also filed a motion seeking

leave to proceed in forma pauperis.

(ECF No. 2.)

On August 20,

2013, the court issued an order granting Gates leave to proceed in
forma pauperis.

(ECF No. 8.)

While the complaint was still in the

process of being screened,1 on October 18, 2013, defendants MATA
and Hudson filed a Motion to Dismiss or, in the Alternative, for
Summary Judgment (“Motion to Dismiss”).
1

(ECF No. 10.)

To date,

In the August 20 order, the court stated that “[t]he next step is
for the court to screen the complaint in order to determine whether
or not to issue summons. Pursuant to Local Rule 4.1(a), service
will not issue in a pro se case where the pro se plaintiff has been
granted leave to proceed in forma pauperis until the complaint has
been screened under 28 U.S.C. § 1915(e)(2).” (Id. at 2.)

Gates has not filed a response in opposition to the motion, and the
time for doing so has expired.

(See Local Rule 12.1(b) & 56.1(b))

(requiring a party opposing a motion to dismiss or motion for
summary judgment to file a response within 28 days after the motion
is served).

Pursuant to Administrative Order No. 2013-05, this

case has been referred to the United States Magistrate Judge for
management and for all pretrial matters for determination and/or
report and recommendation as appropriate.
For the reasons below, it is recommended that the complaint be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), or in the
alternative, that the defendants’ Motion to Dismiss be granted.
I.

PROPOSED FINDINGS OF FACT

Gates’s pro se complaint alleges as follows:
I believe that I was not hired and discriminated against
because of my age and my color and my education. I told
them (MATA) I would get my Class A CDL [commercial
driver’s license] back by paying a small fine I have in
Arizona.
A Class A CDL is above a Class B and
chauffeur’s endorsement. Can be easily obtained with a
Class A CDL. I cannot understand why I was not hired
since I was [an] OTR (over the road) driver for (3) long
haul companies.
(ECF No. 1, Compl. at IV.)

Gates did not attach to his complaint

his Charge of Discrimination filed with the Equal Employment
Opportunity Commission (“EEOC”) or his Dismissal and Notice of
Rights (“RTS notice”).

However, the defendants attached both

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documents

to

their

Motion

to

Dismiss.2

The

Charge

of

Discrimination alleges discrimination based on race and age, and
states as follows:
On or about November 15, 2012, I applied for the position
of Bus Driver with the above employer [MATA]. However,
I was denied employment with the company. No reason was
given for being denied employment with the company. I
have contacted the company and inquired about the
company’s decision of not hiring me. Still, I received
no response. I only received a standard denial letter.
I believe I have been discriminated against because of my
race (White) and age (63) in violation of Title VII of
the Civil Rights Act of 1964, as amended, and the Age
Discrimination in Employment Act (ADEA).
(ECF No. 11.)

According to the RTS notice, it was mailed to Gates

on February 5, 2013, with a copy sent to MATA’s Human Resources
Manager. Gates did not file the instant complaint until August 12,
2013.

In their Motion to Dismiss, the defendants move to dismiss

the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),
or in the alternative, for summary judgment pursuant to Federal
Rule of Civil Procedure 56.

Defendants argue, among other things,

that the complaint is untimely.
II.

PROPOSED CONCLUSIONS OF LAW

2

Attached to the Motion to Dismiss is a declaration by Lavelle
Fitch, the Director of Plan Administration and Labor Relations for
Mid-South Transportation Management, Inc. (“MTM”), which is the
management company for MATA. (ECF No. 10-2, Fitch Decl. ¶ 2.).
Fitch states that in February 2013, the EEOC provided to MTM the
Charge of Discrimination filed by Gates, a copy of which is
attached to her declaration. (Id. ¶ 3.) Fitch further states that
the EEOC by notice dated February 5, 2013, provided MTM with
Gates’s RTS notice, a copy of which is attached to her declaration.
(Id. ¶ 5.)
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The court is required to screen in forma pauperis complaints
and to dismiss any complaint, or any portion thereof, if the action
—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted; or
(iii) seeks monetary relief against a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2)(B)(i-iii).
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

During the pleading stage, the plaintiff must

provide factual allegations that are “enough to raise a right to
relief above the speculative level” and “state a claim to relief
that is plausible on its face.”
550 U.S. 544, 555, 570 (2007).

Bell Atlantic Corp. v. Twombly,

In ruling on a Rule 12(b)(6) motion

to dismiss for failure to state a claim, a court must “construe the
complaint in the light most favorable to plaintiff” and “accept all
well-pled factual allegations as true[.]”

Albrecht v. Treon, 617

F.3d 890, 893 (6th Cir. 2010) (internal quotation marks omitted)
(citing Ashcroft v. Iqbal, 556 U.S. 662 (2009); League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)).
Yet, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions,” and “[t]hreadbare recitals of the elements of a cause

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of

action,

suffice.”

supported

by

mere

conclusory

statements,

Iqbal, 556 U.S. at 678 (citation omitted).

do

not

“[T]o

survive a motion to dismiss, the complaint must contain either
direct or inferential allegations respecting all material elements”
of the offense.

In re Travel Agent Comm'n Antitrust Litig., 583

F.3d 896, 903 (6th Cir. 2009) (citation omitted).
As a general rule, a district court may not consider matters
outside the pleadings when ruling on a Rule 12(b)(6) motion to
dismiss

without

judgment.

converting

the

motion

into

one

for

summary

J.P. Silverton Indus. L.P. v. Sohm, 243 F. App’x 82,

86–87 (6th Cir. 2007); see Fed. R. Civ. P. 12(d).

However, “when

a document is referred to in the complaint and is central to the
plaintiff’s claim,” a defendant “may submit an authentic copy [of
the document] to the court to be considered on a motion to dismiss,
and the court’s consideration of the document does not require
conversion of the motion to one for summary judgment.”

Greenberg

v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999)
(quotation omitted).

Here, although the Charge of Discrimination

and RTS notice were not attached as exhibits to Gates’s complaint,
they are central to his claim and therefore may be considered by
this court without converting the defendants’ motion to dismiss
into a motion for summary judgment.

See Weiner v. Klais & Co.,

Inc., 108 F.3d 86, 89 (6th Cir. 1997) (where the plaintiff does not
refer directly to given documents in the pleadings, if those

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documents

govern

the

plaintiff’s

rights

and

are

necessarily

incorporated by reference, then the motion need not be converted to
one for summary judgment.); see also Hudson v. Genesee Intermediate
Sch. Dist., No. 13-12050, 2013 WL 6163220, at *1 n.1 (E.D. Mich.
Nov. 25, 2013) (finding that plaintiff’s RTS notice, although not
attached to the complaint but instead attached as an exhibit to
defendant’s motion to dismiss, was central to plaintiff’s claim and
therefore court did not convert defendant’s motion to dismiss into
a motion for summary judgment).
Pleadings filed by pro se litigants are to be “construed more
liberally than pleadings drafted by lawyers.” Williams v. Browman,
981 F.2d 901, 903 (6th Cir. 1992); see also Herron v. Kelly, No.
1:10CV1783, 2013 WL 3245326, at *5 (N.D. Ohio June 26, 2013)
(affording
pleading).

liberal

interpretation

to

a

pro

se

plaintiff’s

However, “pro se plaintiffs are not automatically

entitled to take every case to trial,” Pilgrim v. Littlefield, 92
F.3d 413, 416 (6th Cir. 1996), and “the lenient treatment of pro se
litigants has limits.”

Baker v. Boyd, No. 5:11CV-P59-R, 2013 U.S.

Dist. LEXIS 901874, at *2 (W.D. Ky. May 3, 2013) (quoting Pilgrim,
92 F.3d at 416) (internal quotation marks omitted).

One of these

limits includes the requirement that pro se plaintiffs comply with
applicable statutes of limitations.

See Simpson v. G4S Secure

Solution (USA), Inc., No. 12–2875–STA–tmp, 2013 WL 2014493, at *4
(W.D. Tenn. May 13, 2013) (citing Williams v. Sears, Roebuck & Co.,

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143 F. Supp. 2d 941, 945 (W.D. Tenn. 2001)) (“The 90–day filing
period applies to all plaintiffs, including those who act pro se .
. . .”); see also Sanford v. Ohio Dep’t of Mental Retardation and
Developmental Disabilities, No. 1:12-CV-2970, 2013 WL 3243624, at
*4 (N.D. Ohio June 25, 2013) (quoting Baldwin Cnty. Welcome Ctr. v.
Brown,

466

U.S.

147,

152

(1984))

(“Procedural

requirements

established by Congress for gaining access to the federal courts
are not to be disregarded by courts out of vague sympathy for
particular litigants.”) (internal quotation marks omitted).
In pertinent part, Title VII of the Civil Rights Act of 1964
provides that if the EEOC investigates and dismisses a charge of
discrimination, then it “shall so notify the person aggrieved and
within ninety days after the giving of such notice a civil action
may be brought against the respondent named in the charge by the
person

claiming

2000e-5(f)(1).

to

be

aggrieved

.

.

.

.”

42

U.S.C.

§

Under Federal Rule of Civil Procedure 6(d), three

days are added to this ninety-day period.

Further, “the Sixth

Circuit allots two days for postal delivery of an RTS notice beyond
the three day period allowed by [Rule 6(d)].”

Graham-Humphreys v.

Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 558, n.9 (6th
Cir. 2000).

Beyond these well-settled extensions, courts in the

Sixth Circuit strictly apply the ninety-day statute of limitations
for Title VII claims.

See Peete v. Am. Std. Graphic, 885 F.2d 331,

331 (6th Cir. 1989) (affirming order that found complaint filed

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ninety-one days after plaintiff actually received his RTS notice
was time-barred by one day).

“Where, as here, a defendant raises

a statute of limitations defense, dismissal is proper under Rule
12(b)(6) if it is apparent from the face of the complaint that the
statute of limitations has run.”

Reed v. Ohio State Univ. Med.

Ctr., No. 2:12–cv–241, 2012 WL 5378379, at *4 (S.D. Ohio Oct. 31,
2012); see also DRFP, LLC v. Republica Bolivariana De Venez., No.
2:04-CV-00793, 2013 WL 2096652, at *17 (S.D. Ohio May 14, 2013)
(quoting Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.
2012)) (“[S]ometimes the allegations in the complaint affirmatively
show that the claim is time-barred.
dismissing

the

claim

under

When that is the case . . .

Rule

12(b)(6)

is

appropriate.”)

(alteration in original) (internal quotation marks omitted).
It is well-established in the Sixth Circuit that actual
receipt of an RTS notice is not required before the ninety-day
limitations period begins to run.

Reed, 2012 WL 5378379, at *3;

see also Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 474 (6th
Cir.

1986)

(“We

are

not

inclined

toward

an

inflexible

rule

requiring actual receipt of notice by a claimant before the time
period

begins

presumption

to

that

run.”).
the

Rather,

plaintiff

there

receives

is
the

a

“rebuttable

right

to

sue

notification within five (5) days of the EEOC mailing the notice.”
Smith v. Huerta, No. 12-cv-02640-JTF-dkv, 2013 WL 3242492, at *2
(W.D. Tenn. June 25, 2013); see also Graham-Humphreys, 209 F.3d at

-8-

557 (citing Banks v. Rockwell Int’l N. Am. Aircraft Operations, 855
F.2d 324, 325–27 (6th Cir. 1988)) (“The Sixth Circuit has resolved
that notice is given, and hence the ninety-day limitations term
begins running, on the fifth day following the EEOC’s mailing of an
RTS notification to the claimant’s record residential address, by
virtue of a presumption of actual delivery and receipt within that
five-day duration, unless the plaintiff rebuts that presumption
with proof that he or she did not receive notification within that
period.”).
Satisfying the ninety-day statute of limitations is not a
jurisdictional prerequisite to filing a complaint, but rather a
requirement that is subject to waiver, estoppel, and equitable
tolling.

Zipes v. Trans. World Airlines, Inc., 455 U.S. 385, 393

(1982); see also Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct.
817, 819 (2013) (quoting Zipes, 455 U.S. at 394) (reiterating a
statute

establishing

speak

in

jurisdictional terms”) (internal quotation marks omitted).

A

statute

of

a

filing

limitations

may

deadline

be

tolled

“does

based

not

on

equitable

considerations. Snow v. Napolitano, No. 10-02530, 2013 WL 3717732,
at

*2

(W.D.

sparingly

Tenn.

use

July

equitable

11,

2013).

tolling,

However,
Peterson

federal
v.

courts

Klee,

No.

2:12–cv–11109, 2013 WL 2480687, at *4 (E.D. Mich. June 10, 2013),
and the doctrine is available only in “compelling cases that
justify a departure from established procedures.”

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Warith v.

Amalgamated Transit Union Local Chapter 268, No. 1:13 CV 985, 2013
WL 2443780, at *3 (N.D. Ohio June 4, 2013) (citing Puckett v. Tenn.
Eastman Co., 889 F.2d 1481 (6th Cir. 1989)).

The doctrine of

equitable tolling “allows courts to toll a statute of limitations
when a litigant’s failure to meet a legally-mandated deadline
unavoidably

arose

from

circumstances

beyond

that

litigant’s

control.” Plummer v. Warren, 463 F. App’x 501, 504 (6th Cir. 2012)
(quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010))
(internal quotation marks omitted).
In the instant case, the EEOC mailed the RTS notice to Gates
on February 5, 2013. Therefore, the complaint, filed on August 12,
2013, is time barred.

As for the doctrine of equitable tolling,

Gates has not responded to the Motion to Dismiss, and thus he has
not argued for the application of that doctrine. Based on a review
of the record, the court can find no basis for excusing Gates’s
untimely filing of his complaint under the equitable tolling
doctrine.

See Banks, 855 F.2d at 326 (refusing to equitably toll

statute of limitations when plaintiff failed to update address with
EEOC causing delayed receipt of RTS notice); Hunter, 790 F.2d at
475 (same). Thus, the court submits that Gates’s complaint is time
barred and recommends that the complaint be dismissed.3
III. RECOMMENDATION
3

Because Gates’s failure to timely file his complaint is sufficient
grounds for the court to dismiss the complaint, the court need not
address the remaining arguments raised in the Motion to Dismiss.
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For the reasons above, it is recommended that the complaint be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), or in the
alternative, that the defendants’ Motion to Dismiss be granted.
Respectfully submitted,
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
January 8, 2014
Date
NOTICE
WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS
REPORT AND RECOMMENDED DISPOSITION, A PARTY MAY SERVE AND FILE
WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND RECOMMENDATIONS.
A PARTY MAY RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN
(14) DAYS AFTER BEING SERVED WITH A COPY.
FED. R. CIV. P.
72(b)(2). FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS MAY
CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND FURTHER APPEAL.

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