United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. [DE 15]. The matter has been fully briefed
and is ripe for ruling. For the reasons discussed below, the
motion to dismiss is granted and the complaint is dismissed.
March 3, 2017, plaintiff filed a complaint with this Court
alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended ("Title
VII"). Plaintiff alleges that she was subject to sexual
discrimination while employed by defendants as a front desk
clerk at the Comfort Inn in Lumberton, North Carolina from
September 19, 2013 until she was terminated on April 11,
2014. [DE 1]. Plaintiff filed a Charge of Discrimination with
the Equal Employment Opportunity Commission
("EEOC") in May, 2014. Id. at 6. In
November, 2016, the EEOC mailed plaintiff a Notice of Suit
Rights letter, informing plaintiff that it had concluded the
processing of the Charge of Discrimination, and that the EEOC
case file would be closed. Id. Plaintiff states that
she received the Notice of Suit Rights letter on or before
November 30, 2016. Id.
12(b)(6) motion to dismiss tests the legal sufficiency of the
complaint. Papasan v. Allain, 478 U.S. 265, 283
(1986). When acting on a motion to dismiss under Rule
12(b)(6), "the court should accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff." Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for
relief that is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Facial plausibility
means that the facts pled "allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, " and mere recitals of the elements
of a cause of action supported by conclusory statements do
not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must be dismissed if the factual
allegations do not nudge the'plaintiff s claims
"across the line from conceivable to plausible."
Twombly, 550 U.S. at 570. The complaint must plead
sufficient facts to allow a court, drawing on judicial
experience and common sense, to infer more than the mere
possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009). The court need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or
arguments. Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009). Although the Court must
construe the complaint of a pro se plaintiff
liberally, such a complaint must still allege "facts
sufficient to state all the elements of [her] claim" in
order to survive a motion to dismiss. Bass v. E.I. DuPont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents attached to the complaint,
as well as those attached to the motion to dismiss so long as
they are integral to the complaint and authentic.
Fed.R.Civ.P. 10(c); Sec'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007); Philips v. Pitt County Mem'lHosp., 572
F.3d 176, 180 (4th Cir. 2009). A court ruling on a motion to
dismiss under Rule 12(b)(6) may also properly take judicial
notice of matters of public record. Sec'y of State
for Defence, 484 F.3d at 705.
first argue that plaintiffs Title VII claims should be
dismissed as untimely. A plaintiff must bring suit within
ninety days of receiving a right to sue notice from the EEOC.
42 U.S.C. § 2000e-5(f)(1). Failure to comply with this
time limit forecloses a plaintiff from bringing suit on the
allegations made in the EEOC discrimination charge. Zipes
v. Transw or Id. Airlines, Inc. 455 U.S. 385, 393
(1982); Harvey v. City of New Bern Police Dep't,
813 F.2d 652, 654 (4th Cir. 1987).
plaintiffs allegation that she received the notice on
November 28, 2016 as true, plaintiff had until February 27,
2017 to file her Title VII claims. However, plaintiff did not
commence suit until March 3, 2017, when she filed her
complaint with this Court, a full 93 days after receiving the
Notice of Suit Rights letter. Thus, it is clear from the face
of the complaint that plaintiffs action is untimely as a
matter of law.
admits that the complaint was filed beyond the 90-day
limitations period, but argues that she is entitled to
equitable tolling of the deadline. The Fourth Circuit Court
of Appeals has recognized that "principles of equitable
tolling may, in the proper circumstances, apply to excuse a
plaintiffs failure to comply with the strict requirements of
a statute of limitations." Harris v.
Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). However,
"[procedural requirements established by Congress for
gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for particular
litigants." Baldwin County Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984). Thus, the equitable
remedy of tolling is typically applied only
"sparingly." Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 96 (1990); see also Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)
("rarely will circumstances warrant equitable
tolling"); Chao v. Va. Dep't of Transp.,
291 F.3d 276, 283 (4th Cir. 2002) ("The circumstances
under which equitable tolling has been permitted are .. .
quite narrow."); United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000) ("[T]he threshold
necessary to trigger equitable tolling is very high, lest the
exceptions swallow the rule.").
in order for equitable tolling to be merited, a plaintiff
must show either that the plaintiff was prevented from
asserting his or her claims by some kind of wrongful conduct
on the part of the defendant, or that "extraordinary
circumstances beyond plaintiff['s] control made it
impossible to file the claims on time." Harris,
209 F.3d at 330. The plaintiff bears the burden of
establishing exceptional circumstances that warrant equitable
does not contend that wrongful conduct by any defendant
prevented her from timely filing her lawsuit. Nor has
plaintiff demonstrated that extraordinary circumstances
beyond her control made it impossible to file her claims on
time. Plaintiff argues that her inability to obtain
representation, a delay in receiving her files from the EEOC,
and the failure of the USPS to deliver her complaint on the
day promised constitute extraordinary circumstances meriting
equitable tolling. However, plaintiff received her Right to
Sue letter months before the deadline, and there is no
requirement that a plaintiff have the underlying EEOC file or
even be represented in order to file suit. Harris,
209 F.3d at 331 (citing Barrow v. New Orleans S.S. Ass
'n, 932 F.2d 473, 478 (5th Cir. 1991)) (equitable
tolling not appropriate even where the delay in filing was
the result of a plaintiff s unfamiliarity with the legal
process or his lack of legal representation). Plaintiff
spro se status at the time she filed the complaint
also does not justify equitable relief. Asbury v. City of
Roanoke, 599 F.Supp.2d 712, 7720 (W.D. Va. 2009)
("Any litigant, whether represented by counsel or not,
is required to follow the law"). Moreover, plaintiff was
aware of the deadline, and thus could and should have been
diligent in pursuing her rights. Harvey v. City of New
Bern Police Dep 't, 813 F.2d 652, 654 (4th Cir.
1987) ("The ninety day notice period itself is clear
evidence that Congress intended to require claimants to act
expeditiously, without unnecessary delay.").
plaintiff cannot rely on the failure of USPS to deliver her
complaint on the day promised as an excuse for her delay.
Plaintiff did not mail her complaint until 4:00 pm on the
90th day of the limitations period, [DE 16-2 at ¶ 11],
and the complaint was not scheduled to arrive until February
28, 2017, a day after the limitations period had expired.
Id. Even if USPS had delivered the complaint on this
day as guaranteed, it still would have been filed outside of
the 90-day limitations period.
plaintiff did not file her complaint within the 90-day
statutory limitations period, and she has not demonstrated
extraordinary circumstances that warrant equitable
tolling. As a result, plaintiffs Title VII ...