Opinion
Civ. No. 02-4306 (RHK/JSM)
March 17, 2003
James I. Roberts, Roberts Law Office, Saint Cloud, Minnesota, for Plaintiff.
Kirsten J. Hansen, Arthur, Chapman, Kettering, Smetak Pikala, P.A., Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION
Introduction
Plaintiff Harvey Rogers alleges that a male supervisor sexually harassed him during his employment at Defendant Russ Davis Wholesale, Inc. ("Russ Davis"). Presently before the Court is Russ Davis's Motion to Dismiss or, in the Alternative, for Summary Judgment, made on the grounds that Rogers brought suit after the statutory limitations periods had run. Russ Davis argues that dismissal is warranted for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), or for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). In the alternative, Russ Davis moves for the entry of summary judgment in its favor. For the reasons set forth below, the Court will grant the motion for summary judgment with respect to Rogers's state law claims.
In addition to the briefing contemplated by Local Rule 7.1, the Court has received a supplemental memorandum from the Plaintiff in opposition to the motion to dismiss and a sur-reply from the Defendant. The Court has considered both briefs in reaching its ruling.
Background
Russ Davis hired Rogers on November 21, 1999, and employed him continuously through the date of his termination, July 12, 2001. (Compl. ¶ 3.2.) At the time he was terminated, Rogers worked as a laborer. (Id. ¶ 3.1.) He alleges that his supervisor, Ray Groshong, Jr., began sexually harassing him in June 2000. (Id., ¶¶ 4.2, 4.3.) After complaining about Groshong's conduct, Rogers allegedly suffered adverse employment actions that eventually included the termination of his employment. (Id. ¶ 4.4.)Rogers filed a charge of discrimination with the Minnesota Department of Human Rights ("MDHR"), which in turn cross-filed Rogers's charge with the Equal Employment Opportunity Commission ("EEOC"). By a letter dated July 5, 2002, the MDHR informed Russ Davis that it had reviewed Rogers's charge and determined there was no probable cause to believe Russ Davis had engaged in an unfair discriminatory practice. (Hansen Aff. Ex. A.) The MDHR's letter advised Russ Davis that Rogers could request reconsideration of that decision within ten calendar days or could file a private civil cause of action against Russ Davis within forty-five days. (Id.)
On August 2, 2002, James Roberts, Rogers's attorney, wrote to Drake Van Thiel, a representative of the EEOC, confirming a telephone conversation in which Roberts had (1) advised the EEOC that he was representing Rogers with respect to his charge of discrimination and (2) asked that the EEOC serve him (Roberts) with all notices relating to Rogers's charge. (Roberts Aff. Ex. B.)
On August 19, 2002, Roberts spoke to Van Thiel by telephone regarding the MDHR's "no probable cause" letter. (Roberts Aff. Ex. 6.) Roberts followed that conversation with a letter to Van Thiel that forwarded a copy of the MDHR's letter and asked the EEOC to issue a right-to-sue notice. (Roberts Aff. Ex. C.)
On September 6, 2002, Roberts received a copy of the EEOC's right-to-sue notice by facsimile. (Roberts Aff. Ex. A. ¶ 3.) The EEOC notification bore the date "August 9, 2002," and was addressed to Rogers at 26 Tousley Avenue North in "New York Mil [sic], MN 56567-4307." The notice stated that the EEOC was closing its file on Rogers's charge because it had "adopted the findings of the state or local fair employment practices agency that investigated this charge." (Id. Ex. A.) Rogers avers that he first saw the EEOC's dismissal and right-to-sue notice when his attorney showed it to him in connection with the pending motion. Rogers also avers that he himself never received such a notice in the mail. (Rogers Aff. ¶¶ 2-4.)
The correct name of the municipality is "New York Mills." The ZIP code in the address does correspond to that municipality.
On November 13, 2002, Rogers commenced this action, alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Minnesota Human Rights Act ("MHRA").
Analysis
I. Standard of Decision
"Dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and destined to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). A cause of action "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2002) (internal citations omitted) (citing Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993)).
In analyzing the adequacy of a complaint under Rule 12(b)(6), the Court must construe the complaint liberally and afford the plaintiff all reasonable inferences to be drawn from those facts. See Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002); Meyer v. City of Joplin, 281 F.3d 759, 760 (8th Cir. 2002). Where a party submits matters outside of the complaint for the Court's consideration, the Court may, in its discretion, either (1) convert the motion to dismiss under Rule 12(b)(6) to one for summary judgment under Rule 56 and consider the matters that are outside the pleadings or (2) refuse to consider the extraneous matters and decide the motion under the standard for dismissal set out above. See Casazza v. Kiser, 313 F.3d 414, 418 (8th Cir. 2002). The Court determines that, both parties having submitted matters outside the pleadings that are relevant to the issue of the statute of limitations, the Court will consider that evidence and convert the Defendant's motion to one for summary judgment.
Although Russ Davis also bases its motion to dismiss on a lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), it is well-settled that "the ninety-day limitation period of 42 U.S.C. § 2000e-5(f)(1) is not a jurisdictional prerequisite to federal suit." Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989). Accordingly, the Court does not evaluate Defendant's motion under the standard of decision for Rule 12(b)(1) motions.
Summary judgment is proper if, viewing the record in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). On summary judgment, however, the court must view the evidence, and the inferences which may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997).
II. Timeliness of the Employment Discrimination Complaint
Russ Davis moves for dismissal of the Complaint on the grounds that Rogers did not commence a civil action within the parameters set out in Title VII and the MHRA. Under Title VII, an individual must exhaust administrative remedies by (1) timely filing a charge of discrimination with the EEOC that sets forth the facts and nature of the charge and (2) receiving from the EEOC a right-to-sue notice. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). "If a charge filed with the [EEOC] . . . is dismissed by the [EEOC], the [EEOC] . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved. . . ." 42 U.S.C. § 2000e-5(f)(1) (emphasis added). Section 363.14 of the Minnesota Statutes provides that an individual must bring a civil action seeking redress for an unfair discriminatory practice within forty-five days after receiving notice that the MDHR has determined that there is no probable cause to credit the allegations contained in the charge. Minn. Stat. § 363.14, subd. 1(a)(1) (emphasis added). The Court begins with the timeliness of Rogers's state law claims.
A. The MHRA claims
Rogers does not contest Russ Davis's argument that his MHRA claims are untimely. Rogers brought those claims in a private civil action that commenced at least eighty-six days after his attorney had a copy of the MDHR's finding of no probable cause. In his opposition memorandum, Rogers never discusses the MHRA claims. As it is undisputed that Rogers received the MDHR's letter no later than August 19, 2002, it is clear that his MHRA claims are untimely. They will be dismissed.
Viewing the facts in the light most favorable to Rogers, his counsel would have possessed a copy of the MDHR's "no probable cause" finding no later than his conversation with Van Thiel about it on August 19. Assuming that August 19 were the first day that either Rogers or Roberts obtained the MDHR's determination letter, that date is still eighty-six days before Rogers commenced a private civil action.
B. The Title VII claims
Rogers argues exclusively about the timeliness of his Title VII claims, contending that he started his lawsuit sixty-eight days after his lawyer received a right-to-sue notice on September 6, 2002. Russ Davis replies that the EEOC is presumed to have mailed a right-to-sue notice on the date stated on the notice, and a charging party is presumed to have received the right-to-sue notice no more than five days later; therefore, Rogers is deemed to have received the EEOC's notice no later than August 14, 2002. Counting from August 14, Rogers would have brought his Title VII action on the ninety-first day after presumably receiving the EEOC's notice — one day late.
"Generally, the ninety-day filing period begins to run on the day the right to sue letter is received at the most recent address that a plaintiff has provided the EEOC." Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989). The EEOC can satisfy its requirement to give notice of the dismissal of a charge by providing notice to the aggrieved party's designated representative and thereby trigger § 2000e-5(f)(1)'s ninety-day filing period. See Thomas v. KATV Channel 7, 692 F.2d 548, 550 (8th Cir. 1982). The record before the Court establishes that prior to the date of the right-to-sue notice, Rogers's lawyer informed the EEOC both orally and in writing that he was representing Rogers and that the EEOC should send all future notices to him (i.e., Roberts). The record further establishes that Roberts received a copy of the EEOC's August 9 dismissal and right-to-sue notice on September 6, 2002.
This evidence is unanswered by Russ Davis and certainly gives rise to a genuine issue as to whether September 6, 2002 was the first date on which the EEOC effectively notified Rogers that the Commission was dismissing his charge. Russ Davis has cited no case in which the Eighth Circuit has adopted the presumptions regarding the date of mailing or receiving a right-to-sue notice that are urged on the Court, nor is this Court aware of such a case from the Eighth Circuit. The presumptions Russ Davis relies on are found in opinions that are not binding on this Court. Assuming, arguendo, that such presumptions applied in the Eighth Circuit, they would be — at most — rebuttable presumptions. Rogers has plainly presented evidence that rebuts them. In response, Russ Davis has offered no evidence pertaining to the actual EEOC notice at issue in this case other than a copy of the notice itself. For example, there is no evidence as to whether the EEOC actually mailed a dismissal notice to Rogers or his counsel prior to September 6, 2002. Nor is there any evidence before the Court as to how the right-to-sue notice was sent (e.g., by certified or regular mail). In short, Russ Davis has not met its burden under Rule 56 of establishing that no genuine issue of material fact exists regarding the statute of limitations issue for Rogers's Title VII claims.
In support of a presumption that an EEOC right-to-sue notice is received three days after mailing, Russ Davis cites Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. 1 (1984). At issue in Baldwin County was whether the plaintiff's act of filing a right-to-sue notice with the district court constituted the filing of a "complaint" within ninety days after the EEOC provided the plaintiff notice of her right to sue. Baldwin County did not, however, involve an actual dispute over the date on which the plaintiff received the EEOC notice. In any event, this Court questions the continued viability of the Supreme Court's application of Federal Rule of Civil Procedure 6(e) to the mailing of a right-to-sue notice. Effective December 2001, the Supreme Court amended Rule 6(e) to read as follows:
Additional Time After Service under Rule 5(b)(2)(B), (C), or (D). Whenever a party has the right or is required to do some act or take some proceedings within a proscribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the prescribed period.
Fed.R.Civ.P. 6(e) (emphasis added). An EEOC right-to-sue notice is not a "pleading or other paper" within the scope of Rule 5 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 5(a).
The Eighth Circuit emphasizes that "Title VII is remedial in character and should be liberally construed to achieve its purposes." Thomas, 692 F.2d at 550 (citing Craig v. Department of Health, Education Welfare, 581 F.2d 189 (8th Cir. 1978)).
[C]ourts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party. That approach . . . reflects not only the manifest importance of Title VII rights to complaining parties, but also the broad national commitment to eliminating such discrimination and the importance of private suits in fulfilling that commitment.
Craig, 581 F.2d at 192 (quoting Bell v. Brown, 557 F.2d 849, 853 (D.C. Cir. 1977)) (internal quotation marks omitted). The Court will deny the motion for summary judgment with respect to the Title VII claims.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that Defendant Russ Davis Wholesale Inc.'s Motion to Dismiss and in the Alternative for Summary Judgment (Doc. No. 11) is GRANTED IN PART. Plaintiff Harvey Rogers's claims under the Minnesota Human Rights Act are DISMISSED WITH PREJUDICE.