Stanley v. Public Defender Corporation for the 6th and 24th Judicial Circuits of West Virginia et al

Filing 19

MEMORANDUM OPINION AND ORDER granting the 5 MOTION by Public Defender Corporation for the 6th and 24th Judicial Circuits of West Virginia, Robert E. Wilkinson to Dismiss Count II and to Dismiss Robert E. Wilkinson; dismissing Defendant Wilkinson with prejudice. Signed by Judge Robert C. Chambers on 3/30/2018. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

GINA STANLEY,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-3464

PUBLIC DEFENDER CORPORATION
FOR THE 6TH AND 24TH JUDICIAL
CIRCUITS OF WEST VIRGINIA and
ROBERT E. WILKINSON,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Public Defender Corporation for the 6th and
24th Judicial Circuits of West Virginia and Robert E. Wilkinson’s Motion to Dismiss Count II and
to Dismiss Defendant Robert E. Wilkinson. ECF No. 5. For the following reasons, the Court
GRANTS the motion.
I.
FACTUAL BACKGROUND
The following facts are undisputed as set forth in Plaintiff’s Complaint. Plaintiff
Gina Stanley is an attorney who was employed by the Defendant Public Defender Corporation.
Defendant Wilkinson is the Chief Public Defender. On July 24, 2012, Plaintiff was terminated
from her position. On or about March 29, 2013, Plaintiff filed a Charge of Discrimination against
the Public Defender Corporation with the Equal Employment Opportunity Commission (EEOC),
claiming discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964.

On April 6, 2017, the EEOC issued a “Notice of Right to Sue within 90 Days” letter to Plaintiff
against the Public Defender Corporation. 1

Thereafter, on June 29, 2017, Plaintiff filed this action against the Public Defender
Corporation and Mr. Wilkinson. In Count I of her Complaint, Plaintiff alleges a claim of unlawful
discrimination based on sex in violation of Title VII against the Public Defender Corporation. In
Count II, she alleges a claim of unlawful discrimination based on sex in violation of the West
Virginia Human Rights Act (WVHRA), W. Va. Code § 5-11-1, et seq., against the Public Defender
Corporation and Mr. Wilkinson. Defendants now move to dismiss Count II because Plaintiff did
not commence her action under the WVHRA within the statute of limitations.
II.
STANDARD OF REVIEW
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme
Court disavowed the “no set of facts” language found in Conley v. Gibson, 355 U.S. 41 (1957),
which was long used to evaluate complaints subject to 12(b)(6) motions. 550 U.S. at 563. In its
place, courts must now look for “plausibility” in the complaint. This standard requires a plaintiff
to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555
(internal quotation marks and citations omitted). Accepting the factual allegations in the complaint
as true (even when doubtful), the allegations “must be enough to raise a right to relief above the

1

The letter advises Plaintiff she has “the right to institute a civil action under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., against the abovenamed respondent. If you choose to commence a civil action, such suit must be filed in the
appropriate court within 90 days of your receipt of this Notice.” Notice of Right to Sue within 90
Days (April 6, 2017), ECF No. 5-3 (underlining original). The only respondent listed on the letter
is the Public Defender Corporation.
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speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their
truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at
the point of minimum expenditure of time and money by the parties and the court.” Id. at 558
(internal quotation marks and citations omitted). Although a motion to dismiss typically cannot
reach the merits of an affirmative defense, “where facts sufficient to rule on an affirmative defense
are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule
12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc).
III.
DISCUSSION
The statute of limitations for filing a civil action under the WVHRA is two years.
Metz v. E. Associated Coal, LLC, 799 S.E.2d 707, 710 (W. Va. 2017) (recognizing the two-year
“catch-all” statute of limitations period set forth in W. Va. Code § 55-2-12 applies to claims filed
under the WVHRA). It is not contested that Plaintiff was terminated on July 24, 2012, but she did
not file this action until June 29, 2017. Plaintiff argues, however, the Court should not find her
filing untimely for two reasons. First, she asserts the Charge of Discrimination she filed with the
EEOC was “dual filed” with the West Virginia Human Rights Commission (WVHRC). Therefore,
the Court should rule her WVHRA claim was filed as of the date of the Charge of Discrimination.
Second, Plaintiff argues in the alternative that, if the Court determines her WVHRA claim was not
“dual filed” with her EEOC claim, the statute of limitations on her WVHRA claim should be
equitably tolled. Upon consideration, the Court disagrees with both arguments.

As indicated by Defendants, a Charge of Discrimination filed with the EEOC does
not reflect that a charge was filed with the WVHRC. See Clay v. Consol Pennsylvania Coal Co.,
955 F. Supp. 2d 588, 596 (N.D. W. Va. 2013) (dismissing retaliation claims under the WVHRA
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because the charge filed with EEOC did not “relieve[] the plaintiff from his duty to actually file a
complaint with the WVHRC or a complaint with the court alleging violations under the WVHRA”
within the statute of limitations). As Plaintiff did not file her claim within two years of her
termination, it falls outside the statute of limitations. 2 In the alternative, Plaintiff argues the Court
should equitably toll the statute of limitations because she misinterpreted the law and believed she
preserved her WVHRA claim by filing a Charge of Discrimination with the EEOC. There are
simply no exceptional circumstances in this case or basis to apply equitable tolling because of
Plaintiff’s own misunderstanding of the law. See generally Seacrist v. Metro. Sec. Servs., Inc., Civ.
Act. No. 2:14-24372, 2015 WL 1527763, at *5 (S.D.W. Va. Apr. 3, 2015) (stating the Fourth
Circuit recognizes “that equitable tolling applies in two circumstances: first, when the plaintiffs
were prevented from asserting their claims by some kind of wrongful conduct on the part of the
defendant, and second, when extraordinary circumstances beyond plaintiffs control made it
impossible to file the claims on time” (internal quotation marks and citations omitted)).

Accordingly, as Plaintiff did not file her claim under the WVHRA within the statute
of limitations, the Court GRANTS Defendants’ Motion to Dismiss Count II and to Dismiss
Defendant Robert E. Wilkinson. ECF No. 5. As Mr. Wilkinson is not named as a Defendant in
Count I, 3 the Court DISMISSES him WITH PREJUDICE.

2

Plaintiff also could have filed a complaint with the WVHRC “within three hundred sixtyfive days after the alleged act of discrimination.” W. Va. Code Ann. § 5-11-10, in part.
3

Mr. Wilkinson also was named as a Respondent before the EEOC.
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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:

March 30, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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