United States District Court, W.D. North Carolina, Charlotte Division
CHRISTY N. OBIMAH, Plaintiff,
AMERICAN RED CROSS, Defendant.
C. MULLEN UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant's Motion to
Dismiss (Doc. No. 6) pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. This motion has been fully briefed
and is ripe for disposition.
Christy N. Obimah (“Plaintiff”) initiated this
claim against her former employer Defendant American Red
Cross (“Defendant”) alleging hostile work
environment and retaliation under both Title VII and 42
was hired by Defendant on or about July 20, 2000 as a senior
accountant. Plaintiff, who is Nigerian, alleges that she
endured harassment and ridicule because of her national
origin. Specifically, Plaintiff alleges that she was often
ridiculed because of her accent and about “Nigerian
scams and Nigerian leaders being crooks.” (Compl., Doc.
No. 1, p. 2). Plaintiff was also allegedly told that
“she had better go back to Africa” and that
Homeland Security should not have let her back into the
country after she took a trip to Nigeria. (Id.).
Additionally, Plaintiff alleges she was mocked regarding the
similarity of her name to President Obama and told she cannot
be promoted because “there was no telling how many
Mercedes-Benz she would get.” (Id.).
August 2015, Plaintiff sought help from Defendant's Human
Resources Department to address the alleged discriminatory
conduct to which she had been subjected. Plaintiff claims her
working conditions deteriorated after she reported her
complaints to Human Resources. Plaintiff alleges that her
work was more strictly scrutinized and that she was
ultimately terminated on November 18, 2015 as a result of her
Standard of Review
purpose of a motion to dismiss is to test the legal
sufficiency of the complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). “To
survive a motion to dismiss, 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)). A claim has facial plausibility “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting
Twombly at 556). This plausibility standard requires
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. Conclusory allegations
or legal conclusions are not entitled to the assumption of
truth. Id. at 681.
Title VII Claims
Complaint alleges both retaliation and hostile work
environment under Title VII. A plaintiff has ninety (90) days
from the date of receipt of the EEOC Right-to-Sue Letter in
which to file an action. 42 U.S.C. §§ 2000e-5;
See also Land v. Food Lion, Inc., No. 3:12-cv-00006-
GCM, 2012 WL 1669678, at *3 (W.D. N.C. May 14, 2012)
(“Failure to bring suit within the prescribed ninety
day limit of 42 U.S.C. § 2000e-5 is grounds for
dismissal of this action.”) (quoting Reid v.
Potter, No. 3:06cv267, 2007 WL 3396424, *2 (W.D. N.C.
Nov. 9, 2007)). “Where the date of the receipt is
unknown or in dispute, courts presume receipt three days
after the date of mailing by the EEOC.” Id.
(citing Taylor v. Potter, 355 F.Supp.2d 817, 819
(M.D. N.C. 2005)). The issuance of a second notice only tolls
the 90 day limitation when the second notice is issued
pursuant to a reconsideration on the merits under 29 C.F.R.
§ 1601.21(b), (d). See Santini v. Cleveland Clinic
Fla., 232 F.3d 823, 825 (11th Cir. 2000) (citing
Gitlitz v. Compagnie Nationale Air France, 129 F.3d
554, 557 (11th Cir.1997)).
Right to Sue Letter in this case was mailed on January 4,
2018 but was erroneously dated January 4, 2017. The
EEOC issued a corrected Dismissal and Notice of Rights to
Plaintiff dated January 10, 2018. Plaintiff filed her lawsuit
on April 10, 2018. It is undisputed that Plaintiff filed too
late with respect to her receipt of the original EEOC letter,
but Plaintiff argues that her claim should still be allowed
because she filed within 90 days of receipt the corrected
letter. However, the second notice did not restart the 90 day
requirement because it merely corrected a technical defect.
See Id. As Plaintiff filed her Complaint 96 days
after the issuance of her right to sue letter, her Title VII
claims must be dismissed.
Section 1981 Claims