Opinion
Civil Action 4:02-CV-516-Y
October 10, 2002
ORDER GRANTING MOTION TO DISMISS
Pending before the Court is defendant American Eurocopter Corporation's Motion to Dismiss [doc. # 15-1], filed August 9, 2002. Having carefully considered the motion, response, reply, second response, and supplemental reply, the Court concludes that the motion should be GRANTED.
"A motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1933) (quoting Wright Miller, Federal Practice and Procedure § 1357 (1969)). The court must accept as true all well pleaded, non-conclusory allegations in the complaint, and must liberally construe the complaint in favor of the plaintiffs. Kaiser Aluminum, 677 F.2d at 1050. A court should not dismiss a complaint for failure to state a claim unless it appears beyond doubt from the face of the plaintiff's pleadings that he can prove no set of facts in support of his claim that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1934); Garrett v. Commonwealth Mortgage Corp., 938 F.2d 592, 594 (5th Cir. 1991); Kaiser Aluminum, 677 F.2d at 1050.
The pro-se plaintiff, Kenneth Barton, filed a complaint on June 12, 2002, alleging, in essence, that the defendant had discriminated against him and unjustly terminated him because of his race, in violation of Title VII of the Civil Rights Act of 1964. In its motion, the defendant states that the plaintiff's complaint should be dismissed because the plaintiff has not received a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"), which the plaintiff is required to obtain before filing suit against the defendant under Title VII. However, in his second response, the plaintiff attaches a copy of a Notice of Right to Sue from the EEOC dated September 11, 2002. The defendant, citing Tolbert v. United States, 916 F.2d 245, 249 (5th Cir. 1990), alleges that receipt of the letter after the plaintiff filed his suit "does not cure Plaintiff's failure to exhaust his administrative remedies before filing suit." (Def.'s Suppl. Reply at 2.)
Before a plaintiff may file a civil action under Title VII, he must exhaust administrative remedies, which include filing a charge of discrimination with the EEOC within a certain time after the alleged violations occurred and filing suit within ninety days after receiving a right-to-sue letter from the EEOC. See 42 U.S.C.A. § 2000e-5(b), (e), (f) (West 1994); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n. 3 (7th Cir. 1993). These administrative requirements are conditions precedent to filing a civil suit for relief under Title VII. See Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991). However, such administrative requirements are not jurisdictional prerequisites but are requirements that, like a statute of limitations, are subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Taylor, supra. Therefore, in a Title VII action, the Court must examine whether the plaintiff has either alleged compliance with the statutory conditions or demonstrated an equitable basis for enjoining the requirements. See Perkins, 939 F.2d at 470.
In Tolbert, a former federal employee appealed to the EEOC the agency decision of "no discrimination." 916 F.2d at 247. Before the EEOC had issued a decision and before the end of the 180-day waiting period applicable to federal employees, the plaintiff filed suit in federal court. The district court dismissed the complaint for failure to exhaust administrative remedies. On appeal, the Fifth Circuit, finding that the requirements under Title VII are jurisdictional requirements, stated, "[A]nyone who files too early, has, by definition, filed before [he] has exhausted [his] administrative remedies. . . . Thus, the court had no jurisdiction over the action, and was required to dismiss it." Id. at 248.
However, in an earlier-decided Fifth Circuit opinion, Pinkard v. Pullman-Standard, Inc., 678 F.2d 1211 (5th Cir. 1982), the Court specifically found that the receipt of the right-to-sue letter from the EEOC is a condition precedent, not a jurisdictional requirement, and consequently, is subject to equitable injunction. In Pinkard, the plaintiffs brought suit under Title VII claiming that the defendant discharged them because of their race. The plaintiffs received their right-to-sue letters while the action was pending. The Fifth Circuit, noting that the plaintiffs had received their right-to-sue letters after they filed their complaints, stated:
The dissent asserts that the majority condones and encourages the filing of Title VII claims without the receipt of a right-to-sue letter and that our holding will cause the EEOC to cease its mediation efforts when a suit is prematurely filed. The dissent misrepresents our holding. We do not in any way approve the filing of suit prior to the receipt of a right-to-sue letter. As we have noted[,] a prematurely filed suit is subject to dismissal upon proper motion at any time prior to the receipt of statutory notice of the right to sue. Moreover, contrary to the implications of the dissent, the filing of a Title VII action simply does not require the EEOC to terminate its mediation efforts or issue a right-to-sue letter.Id. at 1219.
Because the rule in this circuit is that "one panel may not overrule the decision-Bright or wrong — of a prior panel, absent en banc reconsideration or a superseding contrary decision of the Supreme Court," the Court is bound by the decision in Pinkard. In re Dyke, supra. Based on Pinkard and subsequent cases interpreting Pinkard, the plaintiff's action is not subject to dismissal if he receives a right-to-sue letter before the defendant files a motion to dismiss or motion for summary judgment. See Sanborn v. David A. Dean Assocs.; No. Civ. A. 3:98-CV-2239-D, 1998 WL 690608, *1 (N.D. Tex. Sept. 29, 1998) (holding that the defendant was entitled to dismissal of the plaintiff's claims because the defendant moved for summary judgment before the plaintiff had exhausted her administrative remedies); Gates v. City of Dallas, Tx., No. 3:96-CV02198-D, 1997 WL 405144, *2 n. 2 (N.D. Tex. July 15, 1997) (stating that if the plaintiffs "have not yet exhausted their administrative remedies, as it appears they have not, defendants will be entitled to dismissal without prejudice of Plaintiffs' Title VII . . . claims, provided defendants move for summary judgment before plaintiffs have obtained their right-to-sue letters"); Hollis v. Johnston-Tombigbee Furniture Mfg. Co., No. Civ. A 193CV346DD, 11994 WL 1890941 (N.D. Miss. Dec. 21, 1994) (stating that the "plaintiff's action is subject to dismissal without prejudice if he has yet to obtain a right-to-sue letter, but the defect is cured if he receives one before the court addresses the matter").
In this case, the plaintiff filed his original complaint on June 12, 2002, the defendant filed its motion to dismiss on August 9, and the plaintiff's right-to-sue letter was dated September 11. Because the plaintiff filed his complaint before receiving his right-to-sue letter and he received the right-to-sue letter after the defendant filed its motion to dismiss, the Court has no option, based on binding case precedent, but to grant the defendant's motion and dismiss the suit without prejudice.
Consequently, it is ORDERED that the defendant's motion to dismiss [doc. # 15-1] is GRANTED WITHOUT PREJUDICE to the plaintiff's right to refile. If the plaintiff chooses to refile his complaint, the Court will waive the $150 refiling fee.