United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Scott alleges that his former employer, Piedmont Columbus
Regional Hospital (“Piedmont”), discriminated
against him because of his race and age, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 (“Title VII”), and
the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621 to 634 (“ADEA”). Piedmont moved
to dismiss Scott's action because Scott did not allege
that he filed it within ninety days after receiving his
right-to-sue letter from the Equal Employment Opportunity
Commission (“EEOC”). As discussed below,
Piedmont's motion to dismiss (ECF No. 9) is granted.
TO DISMISS STANDARD
survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The complaint must include sufficient factual
allegations “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
In other words, the factual allegations must “raise a
reasonable expectation that discovery will reveal evidence
of” the plaintiff's claims. Id. at 556.
But “Rule 12(b)(6) does not permit dismissal of a
well-pleaded complaint simply because ‘it strikes a
savvy judge that actual proof of those facts is
improbable.'” Watts v. Fla. Int'l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556).
who is proceeding pro se, used a pro se employment
discrimination complaint form. He stated that his action is
brought under Title VII and the ADEA. Compl. ¶ 1, ECF
No. 4. The Complaint does not state that it is brought
pursuant to any other statute. Scott asserted that he filed a
charge of discrimination with the EEOC and that he received a
right-to-sue letter from the EEOC. Id. ¶¶
7-8. Although the form asks for the date Scott received the
right-to-sue letter, Scott left that question blank.
Id. ¶ 8. Scott alleges that Piedmont
discriminated against him in a number of ways based on his
age and race. Id. ¶¶ 12-14. Scott filed a
charge of discrimination with the EEOC, and the EEOC sent him
a right-to-sue letter which states that it was mailed on
August 27, 2018. Compl. at 15. The letter states: “This
will be the only notice of dismissal and of your right to sue
that we will send you. You may file a lawsuit against the
respondent(s) under federal law based on this charge in
federal or state court. Your lawsuit must be filed WITHIN
90 DAYS of your receipt of this notice; or your right to
sue based on this charge will be lost.” Id.
Scott filed this action on December 6, 2018, which was beyond
the ninety day deadline.
plaintiff seeking relief under Title VII or the ADEA must
first exhaust his administrative remedies by filing a charge
of discrimination with the EEOC. See 42 U.S.C. §
2000e-5(b) & (f)(1) (setting forth procedures for EEOC to
handle Title VII charges of discrimination and stating that a
civil action may be brought after the EEOC procedures are
finished); 29 U.S.C. § 626(d)(1) (stating that no ADEA
civil action may be commenced unless an EEOC charge has been
filed). The purpose of the exhaustion requirement is to allow
the EEOC to “have the first opportunity to investigate
the alleged discriminatory practices” so it can
“perform its role in obtaining voluntary compliance and
promoting conciliation efforts.” Gregory v. Ga.
Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir.
2004) (per curiam) (quoting Evans v. U.S. Pipe &
Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983)). If the
EEOC dismisses the charge or otherwise terminates the
proceedings, it must send the plaintiff a notice, often
called a right-to-sue letter. Once the plaintiff receives the
right-to-sue letter, he must file his action within ninety
days. See 42 U.S.C. § 2000e-5(f)(1) (setting
90-day deadline for Title VII cases); 29 U.S.C. § 626(e)
(setting 90-day deadline for ADEA cases).
Scott does not dispute that the EEOC mailed his right-to-sue
letter on August 27, 2018. Scott does not allege or argue
that he filed his Complaint in a timely manner, within ninety
days after receiving the right-to-sue letter. Rather, Scott
argues that “it is not uncommon for people - especially
those who haven't retained a personal attorney to miss
deadlines.” Pl.'s Opp'n to Def.'s Mot. to
Dismiss 3, ECF No. 16-2. He further argues that the Court
should find that he missed the ninety-day deadline due to
“excusable neglect.” Id. at 4.
statutory time limit for filing suit after receiving a
right-to-sue letter is “non-jurisdictional, ” so
it is “subject to equitable tolling, permitting a court
to disregard the late filing under certain
circumstances.” Gant v. Jefferson Energy
Co-op., 348 Fed. App'x 433, 434 (11th Cir. 2009)
(per curiam); accord Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982) (holding that
“filing a timely charge of discrimination with the EEOC
is not a jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statute of limitations,
is subject to waiver, estoppel, and equitable
tolling”). “Equitable tolling ‘is an
extraordinary remedy which should be extended only sparingly,
'” and the plaintiff “must establish that
tolling is warranted.” Bost v. Fed. Express
Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (quoting
Justice v. United States, 6 F.3d 1474, 1479 (11th
Cir. 1993)). “Equitable tolling is appropriate when a
movant untimely files because of extraordinary
circumstances that are both beyond his control and
unavoidable even with diligence.” Arce v.
Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006) (quoting
Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999) (per curiam)). Extraordinary circumstances
justifying equitable tolling “include ‘fraud,
misinformation, or deliberate concealment.'”
Gant, 348 Fed.Appx. at 434 (quoting
Jackson, 506 F.3d at 1355). But, equitable tolling
is not appropriate when a plaintiff fails to act with due
diligence or is negligent. Bost, 372 F.3d at 1242.
So, “where the plaintiff's failure to file was
caused by plaintiff's own negligence, the limitations
period will not be equitably tolled.” Bryant v.
U.S. Dep't of Agric., 967 F.2d 501, 504 (11th Cir.
1992) (quoting Smith v. McClammy, 740 F.2d 925 (11th
Cir. 1984)). Equitable tolling “does not extend
‘to what is at best a garden variety claim of excusable
neglect.'” Id. (quoting Irwin v.
Veterans Admin., 498 U.S. 89, 95 (1990)).
Scott argues that excusable neglect caused his Complaint to
be untimely. Scott does not argue that extraordinary
circumstances like fraud, misinformation, or deliberate
concealment prevented him from filing his Complaint on time.
He simply contends he should be excused from the deadline
requirement without explaining how his neglect was excusable.
Equitable tolling is not authorized under these
circumstances. Because Scott's Complaint was untimely
under both Title VII and the ADA, it must be dismissed.
reasons set forth above, Piedmont's motion to dismiss