Opinion
Civil Action No. 04-2101, Section "J" (1).
December 21, 2004
ORDER AND REASONS
Before the Court is a Motion to Dismiss filed by Defendant, Fair Grounds Corporation. The motion is opposed by Plaintiff. After reviewing the motion, opposition and the record, the Court finds that the Defendant's motion to dismiss should be DENIED.
Rec. Doc. 7.
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Background
On March 26, 2004, Plaintiff, a white male, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against his former employer, the Fair Grounds. On April 28, 2004, the EEOC issued Plaintiff his "right to sue" notice. On July 27, 2004, Plaintiff filed an application for appointment of attorney pursuant to 42 U.S.C. 2000e-5(f)(1). On July 28, 2004, Magistrate Judge Shushan ordered that a telephone conference be held to determine the propriety of appointing counsel for Plaintiff. On August 2, 2004, Magistrate Judge Shushan granted Plaintiff's application to proceed in forma pauperis, and on the same day Plaintiff filed his Complaint. On August 4, 2004, Magistrate Judge Shushan denied Plaintiff's motion for appointment of counsel. On October 8, Defendant filed its Motion to Dismiss. On November 12, 2004, Plaintiff filed an Amendment to his Original Petition for Damages. In its Motion to Dismiss, Defendant argues that Plaintiff's Complaint fails to state a claim upon which relief can be granted under Rule 12, because Plaintiff filed the Complaint after the ninety-day period set forth in 42 U.S.C. § 2000e-5(f)(1) elapsed. Further, Defendant argues that the Complaint does not contain the basic elements enumerated in Rule 8 of the Federal Rules of Civil Procedure.
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Standard of Review
Title VII requires persons claiming discrimination or retaliation to file a civil action within ninety days after receiving a right to sue letter from the EEOC. The Fifth Circuit has held that "the 90-day period of limitation established by 42 U.S.C. § 2000e-5(f)(1) begins to run on the day that the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant." Both the Supreme Court and the Fifth Circuit have previously found that a claimant is presumed to have received his "right to sue" letter three days after it is deposited in the mail.Federal Rule of Civil Procedure 8(a) requires that a pleading which sets forth a claim for relief "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Despite the fact that a pro se litigant's pleadings must be read more liberally than those filed by an attorney, the complaint must allege sufficient facts from which the court can determine the existence of subject matter jurisdiction and from which the defendants can fairly appreciate the claim made against them. Some facts must be alleged that convince the court that the plaintiff has at least a colorable claim. Conclusory allegations will not suffice.
See Marie v. Gaylord Paper Manufacturer, No. 03-3011, 2004 WL 392733, at *1 (E.D. La. Mar. 2, 2004) (citing Jackson v. Arthur Anderson, No. 3: 96-CV-2206-D, 1997 WL 74709, at *1 (N.D.Tex. Feb. 11, 1997) and cases cited therein; Weaver v. City of Topeka, No. 94-4224-SAC, 1995 WL 783628, at *6 (D. Kan. Dec. 12, 1995) and cases cited therein).
See id. (citing Mills v. Criminal Dist. Court #3, 837 F.2d 677, 678 (5th Cir. 1988)).
DISCUSSION
Defendant argues that the matter should be dismissed because of the following: (1) Plaintiff's Complaint fails to state a claim for which relief may be granted because it was untimely filed and (2) Plaintiff's Complaint fails to state a claim for which relief may be granted because it does not conform to Rule 8.(1) Timeliness
As stated above, a Title VII Plaintiff must file his lawsuit within ninety days of the issuance of his EEOC right to sue letter. Defendant properly asserts that, given the three day presumption recognized by the Fifth Circuit, the Plaintiff is deemed to have received the April 28, 2004 letter on May 1, 2004. Consequently, Plaintiff had ninety days, or until July 29, 2004, to file suit. According to the record, Plaintiff's Complaint was not filed until August 2, 2004. However, the record also reveals that Plaintiff applied for appointment of an attorney on July 27, 2004.
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Notably, the Supreme Court has recognized that the ninety day period may be tolled in cases where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon. Defendant relies upon Espinoza v. Missouri Pacific R.R. Co., which provides that the requirement to file a lawsuit within the ninety-day limitation period is strictly construed. However, Defendant fails to point out that in Espinoza, the Fifth Circuit also stated:
Baldwin, 466 U.S. at 151. In Baldwin, the Supreme Court recognized tolling in a Sixth Circuit case factually similar to the present matter. In the Sixth Circuit case of Harris v. Walgreen's Distribution Center, 456 F.2d 588, 591-92 (6th Cir. 1972), the court found that a motion for appointment of counsel tolled the statutory period within which the claimant was required to file suit.
Espinoza v. Missouri Pacific R.R. Co., 754 F.2d 1247, 1251 (5th Cir. 1985).
The Supreme Court in Baldwin County Welcome Center, 104 S.Ct. at 1725-26, listed some of the circumstances in which equitable tolling of the ninety-day period might be justified: (1) where notice from the EEOC does not adequately inform plaintiff of the requirement that suit be commenced within the statutory period; (2) where a motion for appointment of counsel is pending; (3) where the court itself has led plaintiff to believe that she has satisfied all statutory prerequisites to suit; and (4) where the defendant has, through affirmative misconduct, lulled the plaintiff into inaction.
Id. at 1251 (emphasis added).
The second circumstance listed exists in this case. Plaintiff filed an application for appointment of counsel on July 27, 2004, which was two days before the expiration of the ninety-day period. Plaintiff filed his Complaint on August 2, 2004 and his motion for appointment of counsel was not ruled upon until August 4, 2004. Therefore, his Complaint was timely filed.
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(2) Federal Rule of Civil Procedure 8
Defendant also argues that Plaintiff's Complaint does not meet the basic requirements of Rule 8 of the Federal Rules of Civil Procedure. It is important to note that since the filing of Defendant's Motion to Dismiss, Plaintiff amended his Complaint. Reading the Complaint and Amended Complaint in a light most favorable to Plaintiff, it appears that the criteria set forth in Rule 8 are satisfied. Although it is not easily discernable from Plaintiff's Complaint and Amending Complaint, the Court finds that the statements made by Plaintiff meet the low threshold established under Rule 8. It appears that Plaintiff is alleging racial discrimination in employment under Title VII. Specifically, Plaintiff asserts that (1) the Court has jurisdiction under Title XII (Title VII), (2) that Plaintiff was employed by Defendant and was discriminated against while at work, and (3) Plaintiff is entitled to an award of $600,000 dollars. Consequently, Plaintiff's Complaint and Amended Complaint satisfy the pleading requirement set forth in Rule 8. Accordingly,
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Although the Plaintiff's Opposition to the Motion to Dismiss is more cogent than the Complaint and Amending Complaint, the Court must look to the face of the Complaint and Amending Complaint when considering a motion to dismiss. See Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (explaining that the Complaint must "contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.").
IT IS ORDERED that Defendant's Motion to Dismiss should be and hereby is DENIED.