United States District Court, S.D. Georgia, Statesboro Division
ALLISON S. PHILLIPS, Plaintiff,
DAVID EMANUEL ACADEMY, INC., Defendant.
RANDAL HALL, CHIEF JUDGE.
Allison S. Phillips, through counsel, filed the captioned
case alleging racial discrimination in her employment with
Defendant David Emanuel Academy, Inc., as well as retaliatory
discharge, pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Presently
before the Court is Defendant's motion to dismiss. For
the reasons set forth below, Defendant's motion to
dismiss is GRANTED.
spring of 2016, Plaintiff filed two charges of discrimination
with the United States Equal Employment Opportunity
Commission ("EEOC"): one for racial discrimination
based upon alleged disparate treatment in pay and one for
retaliatory discharge. (SeeCompl., Ex. 2, Doc. 4.) The EEOC
issued and mailed a Notice of Right to Sue letter on the
first charge on August 24, 2016. (See Compl., Ex. 1,
Doc. 4.) The EEOC issued and mailed a Notice of Right to Sue
letter on the second charge on August 25, 2016.
filed this suit on November 30, 2016.(Doc. 1.) Plaintiff does not
allege when she received the "Right to Sue"
letters. Rather, Paragraph 44 of the complaint states:
"The EEOC issued [Plaintiff] two separate right to sue
letters in late August 2016 and she is filing this Complaint
within 90 days of her receipt of said letters."
(Id., ¶ 44.)
April 4, 2017, Defendant filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)
(6), contending that Plaintiff failed to timely file this
case following the issuance of the Right to Sue letters.
motion to dismiss does not test whether the plaintiff will
ultimately prevail on the merits of the case. Rather, it
tests the legal sufficiency of the complaint. Scheur v.
Rhodes, 416 U.S. 232, 236 (1974). Therefore, the court
must accept as true all facts alleged in the complaint and
construe all reasonable inferences in the light most
favorable to the plaintiff. See Hoffman-Puah v.
Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)
. The court, however, need not accept the complaint's
legal conclusions as true, only its well-pled facts.
Ashcroft v. Iabal, 556 U.S. 662, 677-79 (2009).
complaint also must "contain sufficient factual matter,
accepted as true, *to state a claim to relief that is
plausible on its face.'" Id. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The plaintiff is required to plead "factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Although there is no probability
requirement at the pleading stage, "something beyond . .
. mere possibility . . . must be alleged."
Twombly, 550 U.S. at 556-57 (citing Durma
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)). When,
however, on the basis of a dispositive issue of law, no
construction of the factual allegations of the complaint will
support the cause of action, dismissal of the complaint is
appropriate. See Executive 100, Inc. v. Martin
Cntv.; 922 F.2d 1536, 1539 (11thCir. 1991).
its motion to dismiss, Defendant asserts that Plaintiff's
claims should be dismissed because the complaint was untimely
filed. A plaintiff must bring her Title VII claim within
ninety (90) days after receipt of the Right to Sue
letter related to the claim. 42 U.S.C. § 2000e-16(c).
Compliance with the ninety-day requirement is a statutory
precondition to suit that functions as a statute of
limitations. See Armstrong v. Martin Marietta Corp.,
138 F.3d 1374 (11th Cir. 1998); Patel v. Ga.
Dep't of Behavorial Health & Developmental
Disabilities, 2012 WL 12891433, at *3 (N.D.Ga. May 25,
Defendant has shown that the Right to Sue letters were mailed
on August 24 and 25, 2016. The ninety-day period for filing
suit began to run on the day the letters were received by
Plaintiff. When the date of receipt by a plaintiff is
unknown, there is a presumption in the law that the notice
was received three days after its mailing. Baldwin County
Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.l (1984)
(citing Fed.R.Civ.P. 6(e)); Kerr v. McDonald's
Corp., 427 F.3d 947, 953 n.9 (11th Cir.
2005); see also Phillips v. City of Atlanta, 2016 WL
5429668, at *8 (N.D.Ga. July 29, 2016). Thus, in this case,
it is presumed that Plaintiff received the August
24th Right to Sue letter on, August 27, 2016, and
the August 25th Right to Sue letter on August 28,
2016. However, because these days of receipt are on Saturday
and Sunday, the date of receipt is deemed to be Monday,
August 29, 2016. See Fed. R. Civ. P. 6(a) (1) (C) .
Upon this evidence, Plaintiff was required to file a
complaint by November 28, 2016, ninety days after August 29,
2016. Plaintiff was required to file a complaint arising out
of the second EEOC charge by November 28, 2016, ninety days
after August 29, 2016. Plaintiff, however, did not file this case
until November 30, 2016. Accordingly, Defendant has carried
its burden of establishing a statute of limitations defense.
attempts to rebut the three-day presumption of receipt in two
ways. First, Plaintiff's counsel represents in brief, and
not by way of affidavit, that she calendared the filing date
for November 30, 2016, when Plaintiff came to her office
"the same day that she received the Right to Sue letters
in the mail." (PL's Resp. to Mot. to Dismiss, at 2,
Doc. 11.) Even if the Court credits counsel's unattested
representation that she correctly calendared the filing date,
the accuracy of that date is dependent upon a hearsay
statement from her client that she received the Right to Sue
letters on the very day that she visited her attorney's
office. The lack of admissible evidence on this point is
insufficient to rebut the presumption that Plaintiff received
the Right to Sue letters three days after mailing.
Plaintiff's counsel attaches an announcement from the
United States Postal Service in 2012 that it was moving its
Savannah mail processing operations to Jacksonville,
Charleston and Macon. (PL's Resp. to Mot. to Dismiss, Ex.
2.) Plaintiff's counsel then "affirms" in brief
that mail deposited in Savannah routinely takes more than
three days to reach Statesboro, presumably where Plaintiff
would have received the Right to Sue letters. (See
PL's Resp. to Mot. to Dismiss, at 2.) This representation
is speculative at best and therefore insufficient to rebut
the three-day ...