Scott v. Hampton City School Board

Filing 8

MEMORANDUM ORDER re: 5 Motion to Dismiss for Failure to State a Claim. Defendant's motion to dismiss is GRANTED in part, DENIED in part, and deemed MOOT in part. ECF No. 5. The motion is DENIED to the extent it seeks dismissal for lack of j urisdiction, but is GRANTED to the extent it asserts that the face of the complaint demonstrates that the instant suit was filed outside the applicable limitations period. The remainder of Defendant's arguments seeking dismissal based on the all eged insufficiency of the factual assertions in the complaint are deemed MOOT in light of the fact that the suit is dismissed in its entirety as untimely. In light of the above rulings, Plaintiff's complaint is DISMISSED with prejudice.. Signed by District Judge Mark S. Davis and filed on 4/27/15. Copies distributed to all counsel of record 4/27/15. (ldab, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

Newport News Division

THOMAS SCOTT,
Plaintiff,
Civil No.:

v.

4:14cvl28

HAMPTON CITY SCHOOL BOARD,
Defendant.

MEMORANDUM ORDER

This matter is before the Court
dismiss

filed

by

("Defendant").

Such motion

discrimination
("Plaintiff"),
Federal

defendant

complaint
pursuant

Rules

of

Civil

an

Hampton

seeks

filed

to

on

Rule

City

dismissal
by

School

of

the

plaintiff

12(b)(1)

Procedure.

unopposed motion to

For

and
the

Board

employment

Thomas

12(b)(6)

reasons

Scott
of

set

the

forth

below, Plaintiff's complaint is DISMISSED with prejudice.
A.

On

September

discrimination

24,

2014,

action

Plaintiff

pursuant

to

filed

this

employment

the

Americans

with

Disabilities Act ("ADA") and Title VII of The Civil Rights Act
of

1964

("Title

"Defendant
employment"

VII").

Plaintiff's

discriminated
and

by

against

"refusing

him
to

complaint

by
offer

accommodations on account of his disability."

alleges

that

terminating

his

him

reasonable

Compl. f 1, ECF

No. 1.

The summons and complaint was served on Defendant in

early 2015, and Defendant thereafter filed the pending motion to
dismiss.

Plaintiff,

opposing dismissal,

however,

has

failed

to

file

a brief

and the unopposed motion to dismiss

is

therefore ripe for review.
B.

Federal Rule of Civil

move

to dismiss

Procedure

a complaint

jurisdiction."

Fed.

R.

12(b)(1)

allows

due to a "lack

Civ.

P.

a party to

of subject-matter

12(b)(1).

It

is

well-

established that "[b]efore a plaintiff may file suit under Title
VII

or

[the

ADA],

he

with

the

discrimination
Commission)]."

(4th

Cir.

Title

VII

repeatedly

charge

Jones

2009);

v.

see

EEOC
Calvert

into

the

a

the

ADA) .

plaintiff's

federal

48

1995));

406

of

see Balas v.

(4th

Cir.

administrative

Corr.,

551

remedies,

That

or

the

of

Opportunity

F.3d

300

(incorporating

the

Fourth

failure

to

of

Circuit

file

an

has
EEOC

subject

matter

551 F.3d at 300

(citing

F.3d

said,

charge

297,

134,

138-40

Huntington Ingalls Indus.,

2013).

a

The

courts

Davis

Dep't

Ltd.,

§ 12117(a)

Jones,

N.C.

file

Employment

Grp.,

jurisdiction over the claim."
v.

to

[(Equal

U.S.C.

that

"deprives

required

42

procedures
held

is

the

untimely

(4th Cir.

711 F.3d 401,

untimely

pursuit

filing of

suit

of

in

federal court after administrative remedies have been pursued,
does

not deprive

a federal

court

of jurisdiction.

Zipes

v.

Trans World Airlines,

Inc., 455 U.S. 385,

393 (1982)); Laber v.

Harvey, 438 F.3d 404, 429 n.25 (4th Cir. 2006).

Rather, because

such time periods are subject to equitable tolling,
not

jurisdictional,

but

statute-of-limitations

(citing

Zipes,

455

Dynamics Armament

are

[instead]

defense."

U.S.

at

in

Laber,

393);

438

see

and Technical Products,

and the ADA" provide the

nature

F.3d

at

Pennington v.

WL 3356119, at *1 (W.D. Va. July 3, 2013)
Title VII

the

they "are

Inc.,

of

429

a

n.25

General

I:12cv63,

2013

(indicating that "both

same period for

filing suit

after the EEOC issues a "right-to-sue-letter," and that although
the defendant in that case "appears to treat th[e]

of

subject

matter

jurisdiction"

the

requirement

issue as one

that

suit

be

filed within such period "*is not a jurisdictional prerequisite
. . . but a requirement that,

subject to waiver,

estoppel,

like a statute of limitations,

and equitable tolling."'

is

(quoting

Crabill v. Charlotte Mecklenburg Bd. of Educ, 423 F. App'x 314,
321 (4th Cir. 2011))

(additional citations omitted)).

Here, the record indicates that Plaintiff filed a charge of

discrimination with the EEOC and received a right to sue letter.
Defendant's jurisdictional arguments do not call such facts into

question,

but

instead

assert

that

a

portion

of

Plaintiff's

claims were not timely presented to the EEOC, and further assert

that all of

Court.

Plaintiff's

claims

were

not

timely

filed

in this

Based on the nature of Defendant's challenges, the Court

denies Defendant's motion

jurisdiction,
arguments

finding

must

to the extent it asserts a lack of

instead that

be addressed

Defendant's

within

"untimeliness"

the context

of the Rule

12(b)(6) standard.1
C.

Federal
defendant

Rule

to

seek

of

Civil

dismissal

claim within a complaint,

Procedure
of

a

12(b)(6)

complaint,

or

permits

an

a

individual

based on the plaintiff's "failure to

state a claim upon which relief can be

granted."

Fed.

R.

Civ.

1 Defendant's motion to dismiss is advanced pursuant to both Rule 12(b)(1)
and Rule 12(b)(6), with the supporting brief invoking 12(b)(1) in the
context of the untimeliness argument.
Notwithstanding such reference to
Rule 12(b)(1), this Court construes the unopposed untimeliness argument as
a Rule 12(b)(6) claim because timeliness is not a jurisdictional matter.
See Majied v. United States, No. 7:05cv77, 2007 WL 1170628, at *1 n.l
(W.D. Va. Apr. 18, 2007) (construing a 12(b)(1) motion to dismiss due to

untimeliness in a Privacy Act case as "a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6)" even though such motion only
invoked Rule 12(b)(1), noting that the "court is not convinced that the
statute of
limitations
issue asserted is
properly analyzed in
jurisdictional terms"); Carpenter v. Virginia Dept. of Transp., No.
5:06cv35, 2006 WL 3314436, at *2 (W.D. Va. Nov. 14, 2006) (construing a
12(b)(1) motion associated with an EEOC exhaustion claim as a 12(b)(6)
motion based on the court's conclusion that the issue in that case was not

jurisdictional); Reid v. Prince George's County Bd. of Educ, — F. Supp.
3d. —, 2014 WL 5089070, at *2-3 (D. Md. Oct. 8, 2014) (ruling on a
limitations' claim within a motion raising both 12(b)(1) and 12(b)(6)
arguments, explaining that although the defendants appear to rely on Rule
12(b)(1) in seeking dismissal due to untimeliness of the complaint, such
challenge is in actuality a challenge "pursuant to Rule 12(b)(6), not
12(b)(1)"); see also Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1187-88 (2d Cir. 1996) (construing the district court's dismissal of
an ERISA claim for lack of subject matter jurisdiction as "a dismissal for

failure to state a claim upon which relief can be granted under [Rule]
12(b)(6)," noting that "[g]enerations of jurists have struggled with the
difficulty of distinguishing between Rules 12(b)(1) and 12(b)(6) in
federal question cases," and further explaining that "[i]n most
circumstances,
court

it makes little practical difference whether the district

correctly

labels

its

dismissal

of

an

action

as

one

for

lack

of

subject matter jurisdiction under Rule 12(b)(1) or for failure to state a
claim under Rule 12(b)(6)").

P.

12(b)(6).

complaint

In

must

order

to

include

survive

enough

a motion

facts

for

to dismiss,

the

claim

to

a

be

"plausible on its face," thereby raising the right to relief
"above

the speculative

allegations
fact)."

in

the

level

on the assumption

complaint

Bell Atl.

Corp.

are

v.

true

Twombly,

(2007)

"generally

defense,

cannot

reach

if

550 U.S.

(internal citations omitted).

motion

(even

that all the

doubtful

544,

in

555,

570

Although a Rule 12(b)(6)

the

merits

of

an

affirmative

such as the defense that the plaintiff's claim is time-

barred [,]

... in the relatively rare circumstances where facts

sufficient to rule on an affirmative defense are alleged in the
complaint,

the

defense

may

be

filed under Rule 12(b)(6)."
458,

464

(4th Cir.

Both

Title

2007)

VII

Goodman v.

given

George's
(citing

them a

and

the

ADA

42 U.S.C.

§ 12117(a)

Center,

motion

PraxAir,

§

7

F.3d

to

Inc.,

dismiss
494

plaintiffs

No.

Watts-Means

40,

(Title

2000e-5

of Corrections,

at *6 (E.D. Va. Mar. 31, 2014)

provide

letter."

§ 2000e-5 (f) (1)

(incorporating

Virginia Dept.

a

F.3d

with

file their claims after the

right-to-sue

Family Crisis

by

(en banc).

ninety-day period in which to

has

reached

into

42

(4th Cir.

VII));

the

3:13cv361,

v.

see

ADA);

"a

EEOC

Prince

1993)

42 U.S.C.

Morse

v.

2014 WL 1308725,

(noting that the "the requirement

that plaintiffs file suit within 90 days of receipt of [a right

to sue] letter are the same for the ADA,

. . . Title VII," and

other federal employment discrimination statutes).

The "timing requirements for filing a lawsuit following an
EEOC right-to-sue notice have been strictly construed" in the
Fourth

Circuit.

2d 807, 811
Police

filed

(E.D.

Dep't,

Harvey,

Lewis

v.

Norfolk Southern Corp.,

Va. 2003)

813

F.2d

271

F.

Supp.

(citing Harvey v. City of New Bern

652

(4th Cir.

1987)).

For example,

in

the Fourth Circuit affirmed the dismissal of a complaint
"ninety-one

letter.

Harvey,

Finance Inc.,

days

813

802

F.

judge of this

Court

the

sue

right

to

after"

the

F.2d at 654.
Supp.

1404,

receipt

Similarly,
1411

(E.D.

dismissed a complaint

letter

was

of

right

to

sue

in Boyce v. Fleet
Va.

1992),

another

filed 92 days

received.

limitations period is strictly construed,

a

Although

the

after
90-day

it remains subject to

equitable tolling in limited circumstances.

See Olson v. Mobil

Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990)

(labeling equitable

tolling "a narrow limitations exception" and explaining,
context

of

an

employment

cannot

countenance

ad

discrimination

hoc

case,

litigation

for

that

in the

"[c]ourts

every

missed

deadline").

As

stated

accompanying

case,

on

the

face

instructions

of

the

received

by

right

to

Plaintiff

sue

letter

Scott

in

and
this

the 90-day limitations period begins

to run on the date

that the right to sue letter is "received."

ECF No. 1-3, at 2-

3.

That said, the Fourth Circuit has expressly rejected a legal

interpretation of "receipt" that necessarily requires "actual
receipt," as such a rule may allow a plaintiff to unfairly
manipulate the limitations period.

See Watts-Means, 7 F.3d at

41-42 (finding that the limitations period did not begin to run
when the plaintiff picked up her EEOC right to sue letter at the

post office,

but rather,

it started five days earlier when a

notice was left at the plaintiff s home stating that a certified
letter was "available
813

F.2d

at

654

for pickup"

(concluding

that

at

the post

the

office);

limitations

Harvey,

period

began

the day the EEOC right to sue letter was received and signed for
by

the

plaintiff's

wife

even

though

plaintiff to the letter until six days
Alexandria Hosp.,

1999)

period

187

F.3d 630,

delivered

to

to

run

[the

designated neighbor"

when

did

later);

1999 WL 556446,

(unpublished table opinion)

began

she

the

plaintiff's]

not

alert

Nguyen v.
at *3

the
Inova

(4th Cir.

(holding that "the limitations

Notice

of

home

and

Right

to

picked

Sue

up

by

was

a

even though the plaintiff was on vacation

and did not actually receive such letter from her neighbor until
more than a week after it was delivered).2

In order to protect the rights of potential plaintiffs, the EEOC
provides instructions that accompany a right to sue letter which tell the

recipient to record the date he or she received the right to sue letter,
and to provide such date (along with the right to sue letter and the
envelope it came in) to his or her attorney.
ECF No. 1-3, at 3.
Additionally, the instructions warn as follows: "Furthermore, in order to
avoid any question that you did not act in a timely manner, it is prudent

When

the

date

that

an

EEOC

right

to

sue

letter

was

delivered to a plaintiff's home is "disputed or unknown," courts
within the Fourth Circuit apply a "presumption that notice was
received
Vienna

three

days

Wolftrap

after

Hotel,

it
F.

525

was
Supp.

mailed."
2d

Panyanouvong

793,

796-97

(E.D.

v.
Va.

2007) (citing Nguyen, 1999 WL 556446, at *3);3 see Crabill, 423
F.

App'x at 321

(stating that "the law presumes" receipt of an

EEOC right to sue letter three days after its mailing)
Baldwin

Cnty.

(1984)).

Welcome

Such

Ctr.

v.

presumption,

Brown,

of

rebutted by contrary evidence.
Sherlock v.

Montefiore Med.

466

course,
Nguyen,

Ctr.,

84

U.S.

is

147,

subject

1999 WL

F.3d

(citing
148

to

556446,

n.l

being
at

522,

525-26

(2d

sue

letter

that

*3;
Cir.

1996).
1.

Here,

the

face

of

the

EEOC

right

to

was

provided to the Court by Plaintiff indicates that it was mailed

on June 13,
however,

2014.

asserts

approximately

ten

ECF No.
that

days

1-3,

such

at 2.

letter

later,

with

was

the

Plaintiff's complaint,
not

"received"

actual

receipt

until

date

that your suit be filed within 90 days of the date this Notice was mailed
to you (as indicated where the Notice is signed) or the date of the
postmark, if later." Id. (emphasis in original).

The three day presumption applied in Panyanouvong and Nguyen was drawn
from

the

"mailbox

rule"

set

forth

in

former

Federal

Rule

of

Civil

Procedure 6(e).
The current version of such provision has been revised
and renumbered, and now appears in subsection (d) of that same Rule.
See
Fed.

R.

Civ.

P.

6(d).
8

remaining

conspicuously

assertion

that

2014."

he

Compl.

vague

received

SI

3

as

such

(emphasis

a

result

letter

"on

added).

of

or

Plaintiff's

about

Although

June

23,

Plaintiff's

complaint uses the equivocal language "on or about" immediately
preceding the identified date of receipt,

the Court finds that

the addition of such imprecise language in front
date

purporting

to

alter

the

start

of

the

of a critical

limitations

clock

fails to effectively identify any date other than June 23, 2014,
particularly

dismissal
Dept.

of

of

because

his

complaint

Homeland

(N.D.N.Y.

Apr.

Plaintiff

Sec,

14,

No.

has

as

failed

to

untimely.

appear

See

3:09cv975,

2010

(holding

that,

2010)

presumptive receipt date of September 27,

to

Johnson

WL

oppose

v.

1486910,

U.S.
at

considering

*2

the

2009, the plaintiff's

allegation in his amended complaint that he received the right
to

sue

letter

"on

or

about

September

plaintiff's "failure to oppose the

28,

2009,"

and

the

. . . Defendant's motion to

dismiss on the ground that the action is untimely," the lawsuit
was untimely because the operative court filing was made 92 days
after September 28,

Saxton v.

American

Tel. & Tel. Co., 10 F.3d 526, 532 n.ll (7th Cir. 1993)

(finding

that

suit

was

2009

timely

(emphasis added));

filed

based

on

a

sworn

affidavit

from

counsel, with supporting evidence, indicating that the right to
sue letter was received by counsel on May 22, 1990, but noting
that the plaintiff's complaint

"alleged that her counsel had

received

"[i]f

the

that

letter

allegation

would be untimely,
August

16,

'on

were

Mar.

filed,

16,

but

period began to

[May

accurate,

16,

[the

later");

2012)

(concluding

in

that

suit

not filed until
Management

2012 WL 1130654,

that

the

its

run on April

and

plaintiff's]

Branham v.

Inc., No. 2:11-1543,

noting

1990,]"

the complaint was

1990-ninety-two days

(D.S.C.

timely

about'

because

Analysis & Utilization,

*2

or

analysis

that

19,

2011 based on

complaint

the

at

was

limitations

the plaintiff's

allegation "in his Amended Complaint that he received the Notice

of

Right

to

Sue

from

the

EEOC

on

or

about

April

19,

2011"

(emphasis added)).

Assuming,
statement

in

in Plaintiff's favor, that the imprecise factual
his

complaint

is

sufficient

establish that the right to sue letter was

at

this

stage

to

in fact received on

June 23, 2014,4 and that such date is not only the date of actual
receipt but also the date of legally operative receipt, the face
of

Plaintiff's

timely filed.

complaint

still

demonstrates

that

it

was

not

Notably, if the 90-day filing period began to run

on June 23, 2014, Plaintiff had until September 22, 2014 to file

his complaint.5

However, Plaintiff did not file his complaint

As discussed below, assuming

that "on or about June 23,

2014" refers

specifically to June 23, 2014, and not to any other date, is actually an
assumption that favors Plaintiff.

Ninety days from June 23, 2014 is actually Sunday, September 21, 2014;
however, the Federal Rules of Civil Procedure provide that "if the last
day is a Saturday, Sunday, or legal holiday, the period continues to run
10

until September 24, 2014, thus rendering it untimely.
even

making

assumption
receipt

the

in

was

additional,

Plaintiff's

actually

and

that

favor

June

24,

legally

the

2014,

or

Moreover,

impermissible,

operative

even

June

date
25,

of

2014,

Plaintiff's complaint would still be late as:

(1) it would still

have been filed after the expiration of the

90-day limitations

period;

and

(2)

Plaintiff

tolling in his complaint,

provides

no

basis

for

equitable

and obviously provides no such basis

in a brief on the pending motion as no such brief was filed with
the Court.6
2.

Alternatively,
to

assert

that

the

if the language "on or about" is interpreted
EEOC

right

to

sue

letter

was

received

on

a

date other than June 23,

2014,

it necessarily also reveals that

Plaintiff is himself unsure of the precise date he received such

letter.

Tellingly,

Plaintiff's

factual

in

the

absence

assertions

be

of

any

supported

requirement
with

that

evidence

at

until the end of the next day that is not a Saturday, Sunday, or legal
holiday."
Fed. R. Civ. P. (6)(a)(1)(C).
Plaintiff's filing deadline
would therefore have been extended to September 22, 2014.

6 This Court's finding that Plaintiff's complaint is untimely could
conceivably have been different if Plaintiff appeared to oppose
Defendant's motion. Notably, in scenarios where a complaint is unartfully
pled, or contains a critical typographical error, by appearing and
opposing dismissal, a plaintiff has the opportunity to seek leave to amend
the complaint, or to argue that a 12(b)(6) issue requires submission of
evidence and thus can only be resolved if the motion is converted into a
motion for summary judgment.
However, here, Plaintiff's failure to
respond in opposition to dismissal necessarily results in him resting on
the facts as stated in his complaint.
11

this early stage in the litigation, Plaintiff's own version of
the

facts

asserts

that

93

calendar

approximately

the

EEOC

days

letter

before

was

he

received

filed

suit.

Plaintiff's inability to identify a specific date of receipt, a
critical date that Plaintiff was advised by the EEOC to record

in order to protect his rights, ECF No.
date

"unknown."

See

2014 WL 3844790,

at

Poniatowski

*3

(S.D.N.Y.

v.

Aug.

1-3, at 3, renders such
Johnson,

5,

No.

2014)

I:13cvl490,

(applying legal

presumptions regarding the receipt date of a right to sue letter
in

a

case

where

the

plaintiff's

amended

complaint

added

the

phrase "on or about" immediately before the stated receipt date,
concluding

that,

based

amended complaint
know

when

Sherlock,

she

received

that

the

she

the

days

the

the pro

date

such

se

language,

the

plaintiff "does
letter");

see

not
also

526

(noting that the plaintiff's affidavit

had

no

the presumption
after

of

right-to-sue

recollection

actually received the right to
rebut

addition

revealed that

84 F.3d at

indicating

on

that

the

listed

on

of

the

date

that

she

sue letter did not "suffice[]
letter
the

had

EEOC

been

notice

received"
as

the

to

three

date

of

mailing).

Deeming

the

date

of

receipt

letter is presumed to have
16,

"unknown,"

been received by

2013, three days after it was mailed.

filed his complaint on September 24,
12

the

right

to sue

Plaintiff on

June

Being that Plaintiff

2014, 100 days after June

16, 2013, and because he did not advance any basis for equitable

tolling in his complaint or in any subsequent filing in this
Court,

Plaintiff's

complaint

is alternatively

deemed

based on operation of the three-day presumption.
v.

La

Petite

1986)

Acad.,

(dismissing

Inc.,

the

637

F.

Supp.

plaintiff's

1166,

complaint

See Sanderlin
1171

for

because it was filed 92 days after the right to

untimely

(E.D.

Va.

untimeliness

sue letter was

received by the plaintiff's husband and the "plaintiff g[a]ve no
equitable reasons why the time period should be tolled").
D.

For

dismiss
part.

the

reasons

discussed

is GRANTED in part,
ECF No.

5.

above,

Defendant's

DENIED in part,

motion

to

and deemed MOOT in

The motion is DENIED to the extent it

seeks

dismissal for lack of jurisdiction, but is GRANTED to the extent
it asserts that the face of

instant

period.
dismissal

suit

was

The
based

filed

outside

remainder
on

the

the complaint demonstrates that the

of

the

applicable

Defendant's

alleged

limitations

arguments

insufficiency

of

the

seeking
factual

assertions in the complaint are deemed MOOT in light of the fact
that

the

suit

is

light of the above

dismissed

rulings,

in

its

entirety

as

untimely.

In

Plaintiff's complaint is DISMISSED

with prejudice.

13

The Clerk is DIRECTED to forward a copy of this Memorandum
Order to all counsel of record.
IT IS

SO ORDERED.

/sMQ"
Mark S.

Davis

UNITED STATES DISTRICT

Norfolk, Virginia

April AT , 2015

14

JUDGE