United States District Court, W.D. North Carolina, Charlotte Division
Cogburn United States District Judge.
MATTER is before the court on defendant's Motion
to Dismiss Title VII Claim (#8). Having considered
defendant's motion and reviewed the pleadings, the court
enters the following Order.
a former employee of defendant, filed suit after the Equal
Opportunity Employment Commission (“EEOC”)
declined to pursue charges on her behalf. In a letter dated
November 13, 2017, which plaintiff's counsel received on
November 15, 2017, the EEOC notified plaintiff of their
decision and of her right to sue. Plaintiff filed a request
for an extension under North Carolina Rule of Civil Procedure
3(a) on February 9, 2018. The clerk issued a summons the same
day, and plaintiff proceeded to file suit in Mecklenburg
County Superior Court on February 20, 2018. The matter was
removed to this court by defendant on March 22, 2018 on the
basis of federal question jurisdiction. In her original
complaint, plaintiff alleges causes of action based on Title
VII of the Civil Rights Act of 1964, as amended, 28 U.S.C.
§ 2000e et. seq. (“Title VII”) and
Section 1981 of the Civil Rights Act of 1866 against
April 16, 2018 plaintiff amended her complaint to add another
claim under North Carolina public policy and to dismiss her
claims without prejudice as to a prior defendant, Cyril Bath
Company, pursuant to a stipulated agreement (#16).
instant motion is limited solely to dismissal of the Title
VII claim against defendant, as defendant argues that the
claim is time-barred due to plaintiff's failure to file
suit within 90 days of receipt of her right-to-sue letter
from the EEOC. Plaintiff argues that she filed the request
for an extension in Mecklenburg County Superior Court 86 days
after receiving the letter from the EEOC, and thus satisfied
the requirement to file suit within 90 days of receipt of the
letter. In response, defendant counters that a federal
statutory deadline cannot be extended through a state law
procedural rule, and that plaintiff's Title VII claim
motion to dismiss “challenges the legal sufficiency of
a complaint.” Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009). To survive such motion,
“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
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully, ” as
“threadbare recitals of the elements of a cause of
action supported by mere conclusory statements” are
insufficient to defeat a Rule 12(b)(6) motion. Id.;
see also Twombly, 550 U.S. at 547 (complaints will
be dismissed when plaintiffs “have not nudged their
claims across the line from conceivable to plausible”);
Aziz v. Alcolac, Inc., 658 F.3d 388, 391
(4th Cir. 2011).
“a short and plain statement of the claim showing that
the pleader is entitled to relief” is required.
Fed.R.Civ.P. 8(a)(2). Such statement does not require
“specific facts, ” but need only give defendants
“fair notice of what the . . . claim is and the grounds
upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at
544). For purposes of the motion, the factual allegations in
the complaint are accepted as true and viewed in the light
most favorable to the non-moving party, Coleman v. Md.
Court of Appeals, 6266 F.3d 187, 189 (4th
Cir. 2010), though the court need not accept
“unwarranted inferences” or “unreasonable
arguments.” Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008). The court also notes
that “[a] Rule 12(b)(6) motion ‘does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.'” Pisgah
Laboratories, Inc. v. Mikart, Inc., 2015 WL 996609, at
*2 (W.D. N.C. Mar. 5, 2015) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir.
timeliness, Title VII states that a claimant must file a
civil action within 90 days of receipt of notice to sue. 42
U.S.C. § 2000(e)-5(f)(1). Generally, the 90-day period
commences upon the delivery of the letter. See Nguyen v.
Inova Alexandria Hosp., 187 F.3d 630 (4th
Cir. 1999) (unpublished); see also Harper v.
Burgess, 701 F.2d 29, 30 (4th Cir. 1983)
(holding that notice to plaintiff's counsel also
triggered the limitations period). Should a claimant fail to
file suit within said period, “the right to bring suit
under Title VII is lost.” Dixon v. Digital
Equipment Corp., 976 F.2d 725, 725 (4th Cir.
1992) (unpublished). Certain exceptions to this rule may
allow a claimant to file after the 90-day deadline has
otherwise expired, such as when a claimant has received
inadequate notice of the right to sue or the accompanying
deadline, where a motion for appointment of counsel is
pending and equity justifies tolling the period until the
motion has been acted upon, or where the court has led the
claimant to believe that everything required of them has
already been done. See Baldwin Cty. Welcome Ctr. v.
Brown, 466 U.S. 147, 150 (1984) (citations omitted).
the EEOC's letter that informed plaintiff of her right to
sue and the accompanying 90-day deadline was dated November
13, 2017, and in plaintiff's Response (#14) to the
instant motion, plaintiff concedes that counsel received the
letter two days later on November 15, 2017. To meet the
90-day deadline based on November 15, 2017, plaintiff had to
file suit by February 13, 2018. On February 9, 2018,
plaintiff filed an Application and order Extending Time to
File Complaint Pursuant to North Carolina Rule of Civil
Procedure 3(a), and the clerk of court issued a summons the
same day. Plaintiff then filed her complaint on February 20,
core issue, then, is whether plaintiff's filing of said
Application and order Extending Time to File Complaint
Pursuant to North Carolina Rule of Civil Procedure 3(a) and
subsequent issuance of a summons by the clerk of court
satisfies the 90-day deadline. This court has already
resolved this issue, finding in a similar matter that a
claimant may initiate a Title VII claim in state court or
federal court and that an action is commenced upon issuance
of a summons; as a summons was issued in this matter within
the 90-day deadline, plaintiff successfully commenced a Title
VII claim in state court within 90 days of receipt of notice
of her right to sue and her Title VII claim is thus not
time-barred, despite defendant's preemption arguments to
the contrary. See Koures v. Pfizer, Inc., 2011 WL
1868870 at *4-7 (W.D. N.C. 2011). It is also worth noting
that this court's colleagues agree with this holding, and
with the idea that plaintiff should still be able to avail
herself of Rule 3 despite defendant's arguments about the
language and intent of Title VII. See Lassiter v. Labcorp
Occupational Testing Servs., Inc., 337 F.Supp.2d 746
(M.D. N.C. 2004) (holding that the North Carolina Rules of
Civil Procedure do not limit commencing of a lawsuit to
filing a complaint, and if a summons is issued within ...