Summary
holding that the mere fact that the plaintiff was proceeding pro se did not make equitable tolling appropriate
Summary of this case from Asbury v. City of RoanokeOpinion
No. 4:02-cv-001.
November 26, 2002
MEMORANDUM
Plaintiff Cliftena D. Carter ("Carter"), a female African-American, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000e-17, claiming race and sex discrimination in employment. Defendant moves to dismiss the complaint and the Court has converted the motion into one for summary judgment under FED. R. CIV. P. 12(b) and 56. [Court File No. 10]. Defendant contends that Carter did not timely file her Title VII civil action in federal district court within 90 days of her receipt of the right-to-sue ("RTS") notice from the Equal Employment Opportunity Commission ("EEOC") as required by 42 U.S.C. § 2000e-5(f)(1). See Graham-Hymphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 557-62 (6th Cir. 2000). Carter opposes the summary judgment motion. [Court File Nos. 19, 20, 21]. After reviewing the record, the Court concludes the defendant's motion is well taken and it will be GRANTED pursuant to FED. R. CIV. P. 56.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. Facts
The Court has reviewed the record in the light most favorable to Carter. On September 28, 2001, the EEOC office in Nashville, Tennessee, issued a RTS notice to Carter. [Court File No. 6, Ex. A]. The RTS notice was correctly addressed to Carter at her residence in Lincoln, Tennessee. Carter filed the instant suit in federal district court on January 15, 2002, which is 109 days after issuance of the RTS notice.
Carter alleges she received the RTS notice by mail on October 19, 2001. Carter submits her sworn affidavit [Court File No. 19, Ex. A] wherein she states the following. On October 19, 2001, she received the RTS notice in the mail. In an effort to explain the three-week delay in mail delivery, Carter makes a vague, conclusory statement that in the aftermath of the September 11, 2002 terrorist attack on the World Trade Center in New York City and the anthrax mail scare, much of the mail sent to her residence was delayed. However, Carter does not bother to submit a sworn affidavit from any employee of the United States Postal Service to substantiate that Carter experienced such significant delays in the delivery of her mail during the period of time from September 28, 2001, through October 19, 2001. Furthermore, Carter does not proffer any probative evidence, other than her own unsubstantiated and self-serving affidavit, to prove that she in fact received the RTS notice on October 19, 2001.
Carter consulted with attorney Charles Brooks ("Brooks") on October 25, 2001, to discuss her Title VII claims. It is alleged that during this meeting, Carter told Brooks that she received the RTS notice on October 19, 2001. Brooks did not agree to represent Carter, but Brooks told Carter that she should file suit in federal district court by mid-January 2002, to comply with the 90-day deadline.
Carter also submits the sworn affidavit of Brooks who states:
On or about October 25, 2001, I consulted with Cliftena Carter concerning her discrimination complaint. During our discussion she advised me that she had recently received her Right to Sue letter from the EEOC. I was unable to accept the case. I informed Ms. Carter she could file a pro se complaint within Ninety (90) days of receipt of her Right To Sue Letter. We discussed the fact she should file her complaint pro se on or before mid-January, within Ninety (90) days of the date she informed me she received the Right To Sue Notice.
[Court File No. 19, Ex. B].
The problem with Brooks' affidavit is that he does not have personal knowledge of the precise date when Carter received the RTS notice. According to Brooks, Carter only told him that she recently received the RTS notice. On this critical point, Brooks' affidavit is inadmissible hearsay, merely repeating what Carter said, and cannot be considered by this Court under FED. R. CIV. P. 56 and Rules 801, 802 of the FEDERAL RULES OF EVIDENCE. Brooks cannot corroborate and verify Carter's allegation that she received the RTS notice on October 19, 2001.
III. Analysis
42 U.S.C. § 2000e-5(f)(1) provides that if the EEOC elects not to prosecute a person's employment discrimination charge, the EEOC shall notify the petitioner of his or her right to initiate a private suit to enforce Title VII. "[W]ithin ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." The federal courts strictly enforce the 90-day statutory limit. Graham-Humphreys, 209 F.3d at 557.
The actual receipt of a RTS notice by the charging party is not required to start the 90-day limitations period. As long as the RTS notice is correctly mailed by the EEOC to Carter's address of record, a presumption exists that the mail is received by her. The 90-day limitations period in 42 U.S.C. § 2000e-5(f)(1) begins to run five days after the date of mailing unless Carter rebuts the presumption with proof that she did not actually receive the RTS notice within the five days allowed for mail delivery. Brown v. Hyperion Seating Corp., 194 F.3d 1311 (Table, text at 1999 WL 801591 (6th Cir. Sept. 27, 1999)); Graham-Humphreys, 209 F.3d at 557-58; Banks v. Rockwell Intern. N. Am. Aircraft Operations, 855 F.2d 324, 325-27 (6th Cir. 1988); Cook v. Providence Hospital, 820 F.2d 176, 179 n. 3 (6th Cir. 1987); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 474-75 (6th Cir. 1986); see also Coen v. Riverside Hospital, 2001 WL 69184 (Jan. 18, 2001).
Carter had a total of 95 days from September 28, 2001, to file her Title VII action in this Court, unless she rebuts the presumption by presenting adequate proof that she actually received the RTS notice on October 19, 2001. The Court finds that the affidavits of Carter and Brooks are insufficient to rebut the presumption that the RTS notice was delivered to Carter five days after it was mailed to her by the EEOC. Carter's unsubstantiated, self-serving affidavit does preclude entry of summary judgment. Cook, 820 F.2d at 179. Carter failed to file her lawsuit in federal court with the time limit provided in 42 U.S.C. § 2000e-5(f)(1). Accordingly, her Title VII complaint is time-barred and will be DISMISSED.
B. Equitable Tolling
Carter raises the issue of equitable tolling in a vague, conclusory manner without any discussion and explanation of the relevant facts and law. The Court infers that Carter's equitable tolling claim is predicated on her unsubstantiated allegation that mail delivery to her residence was somehow delayed by the September 11, 2001 terrorist attacks on the World Trade Center in New York City, and subsequent anthrax scares which caused some disruptions in the operations of the United States Postal Service.
After reviewing the record, the Court concludes that Carter has not met her burden of showing that equitable tolling is necessary and proper in this case. The 90-day filing requirement in 42 U.S.C. § 2000e-5(f)(1) is not a jurisdictional requirement. It is a timing requirement similar to a statute of limitations and is subject to equitable tolling. Brown, 1999 WL 801591, at *2; Graham-Humphreys, 209 F.3d at 560; Truitt v. County of Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998).
The federal courts sparingly resort to equitable tolling in rare, exceptional circumstances. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); King v. Henderson, 230 F.3d 1358 (Table, text at 2000 WL 1478360 (6th Cir. Sept. 27, 2000)); Graham-Humphreys, 209 F.3d at 560-61. Absent compelling equitable considerations, a court should not extend a time limitation by even a single day. King, 2000 WL 1478360, at *5; Graham-Hymphreys, 209 F.3d at 561; Johnson v. United States Postal Service, 863 F.2d 48 (Table, text at 1988 WL 122962, at *3 (6th Cir. Nov. 16, 1988)). Generally, the procedural requirements established by the United States Congress for gaining access to federal courts are strictly construed and vigorously enforced. The procedural requirements and filing deadlines are not to be disregarded by federal courts out of a vague sympathy for particular litigants. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (per curiam); King, 2000 WL 1478360, at *5; Graham-Humphreys, 209 F.3d at 557.
Typically, the doctrine of equitable tolling applies only when a litigant's failure to satisfy a filing deadline mandated by law unavoidably results from circumstances beyond the litigant's control. King, 2000 WL 1478360, at *5; Graham-Hymphreys, 209 F.3d at 560-61. The Sixth Circuit has identified five factors to consider when determining whether it is appropriate to apply the doctrine of equitable tolling to a statute of limitations: (1) lack of notice of the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendants; and (5) the plaintiff's reasonableness in remaining ignorant of the particular legal requirement for filing the claim. Cook, 295 F.3d at 521; Graham-Humphreys, 209 F.2d at 561; Truitt, 148 F.3d at 648; Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988).
This Court has considered these five factors and reviewed the entire record. The Court concludes that Carter has not met her burden of showing this is an appropriate case for equitable tolling. The relevant factors do not weigh in favor of equitable tolling.
Carter has not presented any proof to support her bare allegation that her failure to comply with the 90-day time limit in 42 U.S.C. § 2000e-5(f)(1) is due to unavoidable circumstances beyond her control. There is no probative evidence that regular mail delivery from the EEOC office in Nashville, Tennessee, to Carter's residence in Lincoln, Tennessee, was delayed or disrupted by the terrorist attacks that occurred in the Eastern United States on September 11, 2001. EEOC mailed the RTS notice to Carter from Nashville, Tennessee on September 28, 2001. Applying the five-day mailing rule discussed supra, Carter should have received the RTS notice by October 3, 2001. Defendant points out that the first incident of anthrax was not diagnosed in Florida until October 4, 2001, and the United States Center for Disease control issued its first public press release about the anthrax scare on October 4, 2001. [Court File No. 23]. Carter does not dispute the accuracy of the defendant's statement on this point. In sum, Carter has not established that the anthrax scare in October 2001 delayed the delivery of the RTS notice to her through the mail. There are no grounds here for equitable tolling.
The Court recognizes that during the period of time when Carter received the RTS notice from the EEOC and she filed suit in federal district court, she was acting pro se and may not have been aware of the five-day mailing rule and presumption of mail delivery adopted by the Sixth Circuit in Graham-Humphreys, 209 F.3d at 557-60, and the other cases cited supra. The fact that she was not represented by an attorney in October 2001-January 2002 does not make equitable tolling appropriate. As the Sixth Circuit explains in Graham-Humphreys, pro se litigants are required to follow the law. When Carter chose to represent herself, she assumed the risks and accepted the hazards which accompany self-representation. Id. at 561. Ignorance of the law alone is not sufficient to warrant equitable tolling. Id.; Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (per curiam).
Accordingly, an order will enter GRANTING summary judgment in favor of the defendant. Carter's complaint will be DISMISSED.
ORDER
In accordance with the accompanying memorandum opinion, the defendant's motion to dismiss the complaint [Court File No. 9], which has been converted into a motion for summary judgment, is GRANTED pursuant to FED. R. CIV. P. 56. The plaintiff's complaint is DISMISSED WITH PREJUDICE. Defendant shall recover its costs of this action.