Bishop v. Richmond State Supportive Living Center

Filing 14

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHERLEY BISHOP,
Plaintiff,
v.
RICHMOND STATE SUPPORTIVE
LIVING CENTER,
Defendant.

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CIVIL ACTION NO. H-13-0698

MEMORANDUM AND ORDER
By Order [Doc. # 6] entered July 15, 2013, the Court dismissed this case
without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure
because pro se Plaintiff Sherley Bishop had not obtained service on Defendant. The
case is now before the Court on Plaintiff’s letter Motion for Reconsideration [Doc. #
7]. Also pending is Defendant Richmond State Supportive Living Center’s Motion
to Dismiss [Doc. # 10], to which Plaintiff filed a letter Response [Docs. # 11 and
# 12], and Defendant filed a Reply [Doc. # 13]. Having reviewed the full record and
applied governing legal authorities, the Court denies the Motion for Reconsideration
and, alternatively, grants the Motion to Dismiss.
I.

BACKGROUND
Plaintiff filed this lawsuit on March 11, 2013. The Original Complaint states

in its entirety:
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On March 11, 2012 I was terminated from Richmond State Supportive
Living Center. I was placed on Administrative Leave and Under
Investigation on February 25, 2012. I learned that there was never an
investigation. I called on March 16, 2012 to check my time and I was
informed by HR that I was terminated as of March 11, 2012 at 8:00 P.M.
I did not receive any type of documentation from Beth Cox informing
me of the matter. I spoke with Mr. Al Berra Secretary concerning my
issue, but did not receive any feedback. I proceeded by filing a
grievance packet with Richmond State Supportive Living Center. I
received a hearing date on June 23, 2012. Richmond State Supportive
Living Center denied my Employment.
Original Complaint [Doc. # 1].1
II.

MOTION FOR RECONSIDERATION
On May 16, 2013, the Court issued an Order [Doc. # 4] directing Plaintiff to

present evidence of service on Defendant by July 10, 2013. Plaintiff was cautioned
that failure to serve Defendant would result in the dismissal of this lawsuit. When
Plaintiff failed to comply with the Court’s May 16, 2013 Order, the Court dismissed
this case without prejudice on July 15, 2013. See Order [Doc. # 6].
Plaintiff filed a letter dated August 5, 2013 [Doc. # 7], asking the Court to
reconsider the dismissal. Plaintiff did not present any evidence that she had properly
served Defendant. Therefore, the Court held the letter Motion for Reconsideration in
abeyance and directed Plaintiff to present evidence of service by September 3, 2013.

1

As discussed below, it appears that Plaintiff’s employment with Defendant was
terminated on March 11, 2011, not 2012.

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See Order [Doc. # 8], entered August 6, 2013. The Court advised Plaintiff that failure
to obtain proper service on Defendant by the extended deadline would result in the
denial of her Motion for Reconsideration.
On August 19, 2013, Plaintiff filed a Proof of Service [Doc. # 9]. In the Proof
of Service, Plaintiff stated that she had personally delivered a summons to Defendant
on August 16, 2013.2 The Federal Rules of Civil Procedure allow service by “[a]ny
person who is at least 18 years old and not a party.” See FED. R. CIV. P. 4(c)
(emphasis added). Plaintiff is a party to this lawsuit and, therefore, she cannot
properly serve Defendant. Because Plaintiff has not properly served Defendant with
the summons and complaint in this case, the Motion for Reconsideration of the
Court’s prior dismissal of this lawsuit pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure is denied.
III.

MOTION TO DISMISS
It is unclear from Plaintiff’s Original Complaint what causes of action she

asserts in this case. In her Response to the Motion to Dismiss, Plaintiff mentions
“Titles I and V of the Americans with Disabilities Act, Age Discrimination Act [and]
Civil Rights Act of 1991.” See Response [Doc. # 11], p. 2. Except for stating that she

2

There is no assertion in the Proof of Service that Plaintiff also served a copy of the
complaint, and Defendant represents that no copy of the complaint was served.

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is over the age of 40 and has various health problems, Plaintiff has failed to allege any
factual basis for the claims mentioned in the Response. On that basis, as an alternative
to the denial of the Motion for Reconsideration, Defendant’s Motion to Dismiss is
granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc.,
681 F.3d 614, 617 (5th Cir. 2012).
Moreover, any claims Plaintiff may assert under the Americans With
Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), or
Title VII, are time-barred. A lawsuit asserting violations of these federal employment
laws must be filed within 90 days after receipt of the Notice of Right to Sue issued by
the Equal Employment Opportunity Commission (“EEOC”). See Henson v. Bell
Helicopter Textron, Inc., 128 F. App’x 387, 390-91 (5th Cir. Apr. 18, 2005) (citing
42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a)) (ADA claim); Julian v. City of
Houston, 314 F.3d 721, 726 (5th Cir. 2002) (citing 29 U.S.C. § 626(e)) (ADEA
claim); Bradshaw v. City of Gulfport, 427 F. App’x 386, 387 (5th Cir. June 7, 2011)
(citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)). In this
case, the EEOC issued the “Notice of Right to Sue Within 90 Days” (“Notice”) on
October 12, 2012. Where, as here, the plaintiff does not state when she received her
notice, it is presumed that she received it between three and seven days after it was
mailed. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002), cert.

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denied, 537 U.S. 1200 (2003). Therefore, it is presumed that Plaintiff received the
Notice by October 19, 2012.3
Plaintiff filed this lawsuit on March 11, 2013, 150 days after the EEOC issued
the Notice. Plaintiff has offered no explanation for her failure to file this lawsuit
within the 90-day period. As a result, the Complaint, construed liberally to assert
federal employment claims, is time-barred. Defendant’s Motion to Dismiss is granted
on this basis also.
IV.

CONCLUSION AND ORDER
Plaintiff has not properly served Defendant with the summons and complaint

in this case, and almost ten (10) months have passed since the Original Complaint was
filed on March 11, 2013. As a result, Plaintiff’s Motion for Reconsideration of the
Court’s dismissal of this case pursuant to Rule 4(m) is denied.
Even were the Court to reconsider the Rule 4(m) dismissal, Plaintiff has failed
to state a timely claim upon which relief can be granted. Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Reconsideration [Doc. # 7] is DENIED
and the case remains dismissed pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure. Alternatively, it is hereby
3

In an unfiled Employment Discrimination Complaint, Plaintiff states that she received
the Notice of Right to Sue letter from the EEOC on July 31, 2012. See “Employment
Discrimination Complaint” [Doc. # 5], p. 6. This is clearly incorrect because the
Notice was not issued by the EEOC until October 12, 2012.

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ORDERED that Defendant’s Motion to Dismiss [Doc. # 10] is GRANTED.
The Court will issue a separate final order.
SIGNED at Houston, Texas, this 10th day of October, 2013.

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