West v. CSX Corp.

Full title: SUE ANN WEST v. CSX CORPORATION

Court: United States District Court, D. Maryland

Date published: Feb 16, 2006

Civil No. JFM-05-3256 (D. Md. Feb. 16, 2006)

Opinion

Civil No. JFM-05-3256.

February 16, 2006

MEMORANDUM

J. MOTZ, District Judge

In this action brought against CSX Corporation ("CSX"), plaintiff asserts three claims: (1) for disability discrimination under Article 4 of the Baltimore City Code; (2) for disability discrimination under the Americans With Disabilities Act ("ADA"); and (3) for retaliation under the ADA.¹ CSX has filed a motion to dismiss all three claims. Plaintiff, appearing pro se, has responded to the motion. The motion will be granted.²

1 The three claims are asserted in an amended complaint. Plaintiff has filed a motion for leave to file a second amended complaint. CSX is correct when it contends in opposition to the motion that the second amended complaint adds nothing of substance. However, in order to avoid an unnecessary procedural issue, I will grant Plaintiff's motion to amend.

2 In light of the fact that I am granting CSX's motion on other grounds, I do not reach its argument that plaintiff's ADA claims against it should be dismissed because it was not named as a respondent in plaintiff's administrative charge.

I.

Article 4 of the Baltimore City Code does not expressly create a private right of action. If it did so, it would be in violation of the Maryland constitution. The Maryland Court of Appeals has long since made clear that Baltimore City has the power to legislate "only in respect to such subjects as are delegated to it in the legislative grant of powers." State v. Stewart, 152 Md. 419, 422, 137 A. 39, 41 (1927).

II.

A claim of disability discrimination under the ADA requires an employment relationship between the parties. See McGuiness v. University of New Mexico School of Medicine, 170 F.3d 974, 979 (10th Cir. 1998).³ Here, plaintiff was not employed by CSX but by one of its subsidiaries, Chessie Computer Services, Inc.

There are situations in which a parent corporation may be deemed to be the employer of a subsidiary's employees. However, in order for this rule to apply, the parent must exercise "excessive control" over the subsidiary, as evidenced by either (1) day-to-day supervision and control of the employment practices of the subsidiary, or (2) the parent's disregard of the corporate entities through co-mingled funds, undercapitalization of the subsidiary, or the use of the same work force and business offices. Johnson v. Flowers Industries, Inc., 814 F.2d 978, 981 (4th Cir. 1987). Here, plaintiff has pointed to nothing that would establish either of these conditions. The mere fact that CSX has promulgated standards for all of its subsidiaries concerning individuals with disabilities, harassment, corporate ethics and work place violence does not establish that CSX supervised and controlled the employment practices of a subsidiary. Likewise, the mere fact that certain benefits of employees of CSX subsidiaries were administered through the parent corporation does not establish day-to-day control.

As reflected in the fact that plaintiff named Chessie Computer Services, Inc. in the charge she filed with the EEOC, she has been fully aware that Chessie Computer, not CSX, was her employer. Thus, there is no inequity in dismissing her complaint against CSX.

III.

Lawsuits for discrimination and retaliation under the ADA must be filed within the 90 day period following the EEOC's notice to a plaintiff of her right to sue in court. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117. It is undisputed that in this case the EEOC dismissed plaintiff's claims on June 21, 2005. In her complaint, however, plaintiff asserts that she did not receive written notice of the dismissal and of her right to sue until July 5, 2005. July 5 was less than 90 days before September 30, 2005, when this suit was filed.

The Fourth Circuit has not adopted an "actual receipt" rule. Thus, for example, in Harvey v. City of New Bern Police Dep't, 813 F.2d 652 (4th Cir. 1987), the court held that the 90 day filing period began to run not on the day that the plaintiffs actually received the notice of the right to sue but on the day that the notice was delivered to his house by the Postal Service and his wife signed for it. Likewise, in Watts-Means v. Prince George's Family Crisis Center, 7 F.3d 40 (4th Cir. 1993), the court held that "the limitations period is triggered when the Postal Service delivers notice to a plaintiff that the right-to-sue letter is available for pickup, and not when the letter is actually picked up." Id. at 42.

This case is unlike Harvey and Watts-Means in that CSX cannot point to direct evidence of when the right-to-sue notice (or a notice that it was available for pickup) was delivered to plaintiff.⁴ The record is replete with circumstantial evidence, however, showing that notwithstanding her allegation in the complaint, plaintiff was fully aware that the EEOC had dismissed her charge before July 5, 2005. This evidence includes (1) a letter plaintiff sent to the chief executive officer of CSX on July 25, 2005 advising him that "the Federal EEOC has given me the right to sue by September 21," and (2) a letter sent by her then lawyer, Mindy G. Farmer, on September 15 repeating that the EEOC had "issued her [plaintiff] a right to sue to exercise by Wednesday, September 21, 2005 for retaliation and disability." If, as asserted in these letters, September 21, 2005 was the deadline for plaintiff to file a lawsuit, she had received her right-to-sue notice on June 23, 2005 — two days after the EEOc had dismissed her charge⁵ Moreover, a letter that plaintiff alleges she wrote to the EEOC on June 28, 2005 establishes beyond doubt that plaintiff had oral notice of the dismissal on June 21, 2005, the very day the decision was made. In the June 28th letter plaintiff stated that she was advised by a representative of the EEOC "mid-afternoon" on June 21 that her charges had been dismissed. This alone may have been sufficient to trigger the running of the limitations period. See Ebbert v. Daimler Chrysler Corp., 319 F.3d 103, 116 (3d Cir. 2003).

4 Plaintiff herself has never produced the right-to-sue notice or the envelope in which it was contained.

5 In some cases where the date of receipt is in dispute, courts have turned to Fed.R.Civ.P. 6(e) as establishing a presumption that the plaintiff received the notice three days after mailing. Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975); Hanson-Hodge v. Massanari, 2002 W.L. 32361841 (D. Md. 2002). If that presumption were applied here, plaintiff would have been required to file her lawsuit on or before September 22, 2005.

In Harvey and Watts-Means the Fourth Circuit rejected the "actual receipt rule" because it would allow plaintiffs "open-ended time extension, subject to manipulation at will." Here, the wisdom and accuracy of that observation is fully demonstrated. Of course, in a given case it might be unjust not to apply an "actual receipt rule." However, again as noted by the Fourth Circuit in Harvey and Watts-Means, the doctrine of equitable tolling is available to prevent such an injustice. Here, however, no facts are present that would justify application of that doctrine. Plaintiff has ample notice of her right to sue, and she simply failed to bring this action on time. See Harvey, 813 F.2d at 654.

A separate order granting defendant's motion dismissing this action is being entered herewith.