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Cooper v. Mayor and Alderman City of Savannah

United States District Court, S.D. Georgia, Savannah Division

September 28, 2017

TONIA COOPER, Plaintiff,
v.
MAYOR AND ALDERMAN CITY OF SAVANNAH, Defendant.

          ORDER

          WILLIAM T. MOORE, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

         Before the Court is Defendant Mayor and Alderman City of Savannah's Motion to Dismiss. (Doc. 5.) For the following reasons, Defendant's motion is GRANTED and Plaintiff Tonia Cooper's complaint is DISMISSED. The Clerk of Court is DIRECTED to close this case.

         BACKGROUND

         In this case, Plaintiff Tonia Cooper claims she faced sexual harassment in her workplace and was later terminated in retaliation for complaining about the harassment.[1] In October 2008, Plaintiff began working for Defendant as a property maintenance inspector. (Doc. 1 ¶ 13.) In November 2013, Plaintiff began enduring almost daily unwanted touching and sexual language from her supervisor. (Id. ¶ 14.) This harassment continued until September 2, 2015, when Plaintiff complained both to the head of her division and to Human Resources. (Id. ¶¶ 17, 18.) Plaintiff's supervisor however, continued to make inappropriate comments until November 2015. (Id. ¶ 22.)

         Plaintiff alleges that Defendant[2] began unfairly criticizing her work performance in retaliation for reporting the harassment. (Id. ¶ 19.) At some point, Plaintiff was instructed to disregard policy procedures. (Id. ¶ 21.) On June 24, 2016, Plaintiff was discharged for the procedure violation. (Id.)

         According to the complaint, Plaintiff exhausted all of her State and Federal administrative procedures prior to filing suit (id. ¶ 5), received her right to sue letter from the Equal Employment Opportunity Commission ("EEOC") (id. ¶ 6), and filed her complaint within ninety days of receiving that letter (id.). Plaintiff's characterization of this sequence of events, however, is misleading to say the least. Moreover, Plaintiff's omission of significant facts regarding the exhaustion of her administrative remedies with the EEOC is dangerously close to a fraud on this Court designed to create jurisdiction where quite possibly none existed.

         What Plaintiff fails to state is that she filed two charges of discrimination with the EEOC. The first charge[3]was received by the EEOC on June 23, 2016 and alleged sex discrimination from November 1, 2013 to September 2, 2015. (Doc. 5, Ex. 1 at 1.) On June 15, 2016, the EEOC informed Plaintiff that the first charge was untimely and provided her with a Notice of Right to Sue. (Id. at 2.)

         On June 27, 2016, Plaintiff filed a second charge of discrimination alleging that she was told to resign or be discharged in retaliation for her filing the first charge of discrimination. (Id., Ex. 2 at 1.) In the second charge, Plaintiff stated that the discrimination occurred between June 10 and June 27, 2016. (IdJ On July 27, 2016, the EEOC provided Plaintiff with another Notice of Right to Sue. (Id. at 3.)

         On September 13, 2016, the EEOC rescinded the second Notice of Right to Sue. (Id. at 5.) That second notice was reissued the very same day. (Id. at 6.) Other than the date, the only difference between the two notices is the name of and contact information for the EEOC investigator, and Plaintiff's counsel being listed as receiving a carbon copy of the September 13, 2016 reissued notice. (Id. at 5-6.) The EEOC never provided notice pursuant to 29 C.F.R. § 1601.21(b)[4] that it was reconsidering its decision with respect to the second charge. Neither document states any reason why the second notice was rescinded and then reissued.

         Plaintiff attached to her complaint only a copy of the reissued second Notice of Right to Sue. Suspiciously, Plaintiff did not include the copy of her second charge of discrimination, which formed the basis for the second notice. The second charge only alleged retaliation, not any sexual harassment or discrimination. Moreover, Plaintiff completely failed to mention that the September 13, 2016 notice had been reissued in response to the rescinded July 27, 2016 notice. While the Court stops short of ascribing to Plaintiff a nefarious motive for the omissions, it does so only after giving Plaintiff the full benefit of every doubt.

         On December 7, 2016, Plaintiff filed her complaint in this Court. Plaintiff filed her complaint 175 days after the EEOC issued the first Notice of Right to Sue, 133 days after the EEOC issued the second Notice of Right to Sue, and 85 days after the EEOC rescinded and reissued the second notice. In her complaint, Plaintiff alleges claims for both sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Doc. 1 ¶¶ 23-26), intentional infliction of emotional distress (id. ¶¶ 27-28), attorney's fees (id. ¶¶ 29-32), and punitive damages (id. ¶¶ 33-35).

         In its Motion to Dismiss, Defendant argues that Plaintiff's Title VII claims are untimely because she filed her complaint more than ninety days after receiving the Notices of Right to Sue. (Doc. 5, Attach. 1 at 3-7.) With respect to the claim for intentional infliction of emotional distress, Defendant contends that Plaintiff failed to provide the proper ante litem notice required under state law, and that Defendant has immunity from this type of claim. (Id. at 8-9.) Finally, Defendant maintains that Title VII does not permit the recovery of punitive damages against municipalities. (Id. at 10.)

         In her response, Plaintiff concedes that her claims for intentional infliction of emotional distress and punitive damages should be dismissed. (Doc. 8 at 3.) Also, Plaintiff argues that all of her Title VII claims are timely because the EEOC reconsidered its earlier decision with respect to the second charge and reissued the second Notice of Right to Sue on September 13, 2016. (Id. at 2-3.) Plaintiff reasons that the later date is effective for determining the timeliness of her complaint because ...


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