Opinion
Civil Action No. 98-3408(JBS)
January 28, 1999
Ms. Holly C. Moore, Plaintiff Pro Se.
Lawrence B. Fine, Esquire, MORGAN LEWIS BOCKIUS LLP, for the Defendants.
OPINION
This action comes before the court on defendants' motion to dismiss pursuant to Federal Rule Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Because the court finds that plaintiff failed to file her Complaint within ninety days after receipt of a Notice of Right to Sue from the Equal Employment Opportunity Commission ("EEOC"), as required under 42 U.S.C. § 2000e-5(f)(1), the court holds that plaintiff has failed to state a claim upon which relief can be granted and grants defendants' motion to dismiss.
BACKGROUND
Plaintiff pro se, Holly C. Moore, brought this action on July 20, 1998 against the defendants alleging "violation of Title VII Civil Rights Act of 1964, Retaliation." The defendants named in the Complaint are her former employer, Kennedy Memorial Hospital — UMC, a.k.a. Kennedy Health System, and individual defendants Maureen Kelly Simon, Joseph Devine, Kenneth Funkhouser, and Diana DiCiccio, all former or current employees with Kennedy.
The relevant facts are not in dispute. On June 22, 1993, plaintiff filed a Complaint with the New Jersey Division on Civil Rights against Kennedy. In her Complaint, plaintiff alleged that Kennedy discriminated against her on the basis of race. Kennedy denied the allegations and submitted a position statement in support of its assertion that plaintiff was treated fairly. On June 25, 1997, the New Jersey Division on Civil Rights issued a finding of no probable cause and closed plaintiff's case.
On April 2, 1998, the EEOC sent plaintiff a Notice of Right to Sue informing her of her right to file suit in this court within ninety days. The notice was sent to plaintiff at 7322 No. 1 Lonspur Place, Philadelphia, PA 19153. On April 13, 1998 the EEOC sent a second notice to plaintiff. Apparently, the EEOC initially had an incorrect address, as the second notice was sent to 7322 Longspur Place, Number 1, Philadelphia, PA 19153. This court will give plaintiff the benefit of the doubt and adopt the date of the second notice as the appropriate date for purposes of the instant motion to dismiss.
Plaintiff's Complaint, application to proceed in forma pauperis, and request for appointment of counsel were received in the Clerk's Office on July 20, 1998 and filed on July 21, 1998. The court will use the July 20 date for the purposes of this motion. Plaintiff's motion for appointment of counsel was denied by Magistrate Judge Kugler in an Order filed on August 19, 1998. Defendants filed the instant motion to dismiss on September 8, 1998.
DISCUSSION
I. Standard for Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the complaint. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the complaint, and view them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts.Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A court may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
The question before the court is not whether the plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n. 3, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (quoting Conley, 355 U.S. at 47).
II. Analysis
The EEOC, having decided not to file suit on behalf of an employee, must send the employee a Notice of Right to Sue, informing the employee that she has ninety days to file suit against her employer. 42 U.S.C. § 2000e-5(f)(1). "While the 90-day rule is not a jurisdictional predicate, 'in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.'" Mosel v. Hills Dep't Store, 789 F.2d 251, 253 (3d Cir. 1986) (dismissing plaintiff's employment discrimination complaint when filed ninety-one days after receipt of right-to-sue letter) (quoting Johnson v. Al Tech Specialities Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)).
"If an employer provides evidence that the EEOC mailed a letter on a given date, the Court must presume that the plaintiff received it within three days of the mailing." Oakley v. Wianecki, 1998 WL 329266, *6 (D.N.J. 1998) (citing Seitzinger v. Reading Hosp. Med. Ctr., 1997 WL 476339, at *6); Fed.R.Civ.P. 6(e)). However, should the third day fall on a Sunday, the plaintiff will be allowed an additional day before the 90 day period begins to run. See id. at *6 n. 5 (finding that plaintiff received notice on Monday, January 22, 1996, four days after notice was mailed, when January 21 was Sunday).
In the present case, the defendants claim that plaintiff's Complaint should be dismissed for failure to file within the ninety day time period pursuant to 42 U.S.C. § 2000e-5(f)(1). Defendants maintain that plaintiff's ninety days began to run on April 16, 1998, three days after the EEOC mailed the second notice on April 13, 1998, and expired on July 15, 1998, six days before plaintiff's Complaint was filed on July 21, 1998. Defendants argue that even with the benefit of the three day presumption, plaintiff's Complaint must be dismissed because she did not file her Complaint until ninety-six days after receipt of the Notice.
Applying the three day presumption under Rule 6(e), and construing all facts in plaintiff's favor, the court finds that plaintiff received notice of her right to sue from the EEOC on Thursday, April 16, 1998 as the date upon which plaintiff received notice under Rule 6(e). The plaintiff had ninety days from that date, or by Wednesday, July 15, 1998, in which to file her Complaint. Plaintiff's Complaint was not received by the Clerk's Office until July 20, 1998, ninety-five days after she received notice from the EEOC. Accordingly, plaintiff's Complaint is untimely and must be dismissed for failure to state a claim upon which relief can be granted.
CONCLUSION
For the reasons stated above, the court finds that plaintiff failed to file her Complaint within ninety days after her receipt of a Notice of Right to Sue from the EEOC. Accordingly, the court grants defendants' motion to dismiss for failure to state a claim upon which relief can be granted.
The accompanying Order is entered.
ORDER
THIS MATTER having come before the court on defendants' motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6); and the court having considered the moving papers, and for the reasons set forth in the Opinion of today's date,
IT IS on this day of January, 1999 hereby ORDERED that defendants' motion to dismiss plaintiff's Complaint is GRANTED and the Complaint is DISMISSED WITH PREJUDICE.