Opinion
Case No. 8:17-cv-00216-TMC-JDA
03-14-2017
Mary E. Oglesby, Plaintiff, v. Itron Electricity Metering Inc., Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Defendant's motion to dismiss Plaintiff's disability discrimination claims. [Doc. 5.] Plaintiff brings this action against Defendant, alleging claims under the Family and Medical Leave Act ("FMLA"), 42 U.S.C. § 1981, the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and S.C. Code Ann. 41-10-80. [Doc. 1-3.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
On January 31, 2017, Defendant filed a motion to dismiss Plaintiff's third cause of action, claims of disability discrimination and retaliation under the ADA and/or the Rehabilitation Act. [Doc. 5.] On February 14, 2017, Plaintiff filed a response in opposition [Doc. 10], to which Defendant replied on February 21, 2017 [Doc. 12]. Accordingly, the motion is now ripe for review.
BACKGROUND
Plaintiff's employment with Defendant was terminated in January 2016. [Doc. 1-3 ¶ 6.] Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on January 11, 2016, alleging that Defendant discriminated against her based on age in violation of the Age Discrimination in Employment Act and because of her disability in violation of the ADA. [Doc. 5-2.] The EEOC issued a dismissal and notice of rights (EEOC notice of right to sue) on January 29, 2016. [Doc. 5-3.] Ninety days later, on April 28, 2016, Plaintiff filed a pro se Complaint (the "Original Complaint") against Defendant in the Oconee County Court of Common Pleas. [Doc. 1-1 at 3.] The Original Complaint stated in its entirety:
The company alleged that I violated company policies.[Id.]
O[n]] November 6, I was giv[en] a verbal warning for use of inappropriate language. The Counseling Discussion paper is for each action. During December of 2015, an investigation was conducted. I was discharged after the investigation. Brooke Dobbins stated that I continued the conduct for which I was previously disciplined for, which I deny.
On November 29, 2016, the state court issued a Dormant File Notice, notifying Plaintiff that no proof of service had been received and the Clerk of Court had requested that the action be dismissed. [Doc. 10-1.] The state court indicated that Plaintiff's action would be dismissed unless, within ten days, Plaintiff responded with an "appropriate motion or Affidavit of Service." [Id.] Plaintiff served the Summons and Complaint and filed an Affidavit of Service with the court on December 6, 2016. [Docs. 10-2, 10-3.] On January 4, 2017, Defendant filed in state court a motion to dismiss the Original Complaint on the grounds that it was not timely served and failed to state a claim for relief. [Doc. 1-2.] On January 5, 2017, Plaintiff, through counsel, filed an Amended Complaint, asserting claims under the FMLA, 42 U.S.C. § 1981, ADA, the Rehabilitation Act, and S.C. Code Ann. 41-10-80. [Doc. 1-3 at 2-9.] On January 24, 2017, based on the newly asserted federal claims raised in the Amended Complaint, Defendant removed the action to this Court. [Doc. 1.]
APPLICABLE LAW
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the [petition] in a light most favorable to the [petitioner]." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the [petition's] allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the [respondent] fair notice of what the . . . claim is and the grounds upon which it rests." While a [petition] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [petitioner's] obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the [petition] are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a [respondent] has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the [respondent's] liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (Where a petition pleads facts that are merely consistent with a respondent's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible the petitioner is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
American with Disabilities Act Claim
Defendant contends that Plaintiff's ADA claim is time-barred because Plaintiff failed to commence the action within ninety days of receipt of her EEOC notice of right to sue letter. [Doc. 5-1 at 4-6.] Specifically, Defendant argues that Plaintiff's Original Complaint does not save Plaintiff's ADA claim, raised in the Amended Complaint and filed in state court more than 340 days after the EEOC notice of right to sue letter was mailed and 336 days after the presumptive date of receipt, because (1) the Original Complaint was not served within 120 days as required under South Carolina law, thus the lawsuit was not "commenced" within 90 days of receipt of the right to sue letter, and (2) the Original Complaint does not reference any disability or anything that would have put Defendant on notice that it was being sued for disability discrimination. [Id.]
In ruling on a motion to dismiss under Rule 12(b)(6), a court may consider documents referenced by a plaintiff in the complaint and attached to a motion to dismiss, such as a right-to-sue notice from the EEOC, without converting a motion to dismiss into a summary judgment motion. See Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that at the motion to dismiss stage, courts may consider documents attached to a motion to dismiss "so long as they are integral to the complaint and authentic"); Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006) (noting its consideration of matters attached to defendant's motion to dismiss that are integral to complaint); Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006) ("In reviewing the Rule 12(b)(6) ruling, it is proper for this court to consider the plaintiff's relevant filings with the EEOC . . . none of which were attached to the complaint, because [plaintiffs] rely on these documents to satisfy the . . . time limit requirements.")
Plaintiff, acknowledging that her Original Complaint was not served within 120 days, asserts that when noticed by the court, she immediately cured the oversight, served the Summons and Complaint on Defendant, and filed the appropriate Affidavit with the state court within the ten-day period provided by the state court. [Doc. 10.] Plaintiff argues that the extension of the deadline to serve the Summons and Complaint was within the state court's discretion, as it is in this Court's discretion under Rule 4(m) of the Federal Rule of Civil Procedure. [Id.]
Federal law sets out the process by which an employee may institute an employment discrimination lawsuit against her employer:
Before bringing a civil suit for an ADA violation, the aggrieved party must file a charge with the EEOC. If the EEOC does not take action within 180 days from the date of filing, the aggrieved party is entitled to notice from the EEOC. Upon notification, i.e. a right to sue letter, the aggrieved party has 90 days to file suit.Davis v. Va. Commonwealth Univ., 180 F.3d 626, 628 n. 3 (4th Cir. 1999) (citing 42 U.S.C. § 2000e-5(f)(1)). In determining when the 90-day period for filing such a discrimination claim commences, the Fourth Circuit applies a case-by-case analysis. See Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987). Where the date of actual receipt of the notice of right to sue letter is verified by evidence, that date controls. See Dixon v. Digital Equip. Corp., No. 92-1483, 1992 WL 245867, at * 1 (4th Cir. Sept. 30, 1992). However, if the date of receipt is at issue, "it is presumed that service by regular mail is received within three days pursuant to Rule 6(e) of the Federal Rules." Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, No. 98-2215, 1999 WL 556446, at *3 (4th Cir. July 30, 1999) (recognizing that "[t]he date on which the claimant received the EEOC letter becomes critical in determining the commencement of the 90-day period"). The timing requirements for filing a lawsuit following an EEOC notice of right to sue have been strictly construed. See Harvey, 813 F.2d at 654 (holding suit filed ninety-one days after notice untimely); Boyce v. Fleet Finance Inc., 802 F.Supp. 1404 (E.D. Va.1992) (ninety-two days). The 90-day filing requirement is "not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Laber v. Harvey, 438 F.3d 404, 429 n. 25 (4th Cir. 2006) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
With respect to Defendant's argument that the Original Complaint was not timely and, thus, the action was not commenced within ninety days of receipt of her EEOC notice of right to sue letter, when service of process is attempted prior to removal of the action to the District Court, the state rules for service of process govern. See Redding v. Sun Printing, Inc., No. 5:12-cv-2113-JMC, 2013 WL 2149685, at *1 n.1 (D.S.C. May 16, 2013); accord Davis v. Tyson Foods, Inc., No. 3:14-cv-0720-GCM, 2015 WL 4638301, at *1 (W.D.N.C. Aug. 4, 2015) ("When service of process is attempted before removal to federal court, the state's service of process rules govern whether the attempt was sufficient."). South Carolina requires both filing of the summons and complaint and service on the defendant to commence a civil action. Section 15-3-20(B) of the South Carolina Code provides: "A civil action is commenced when the summons and complaint are filed with the clerk of court if actual service is accomplished within one hundred twenty days after filing." S.C. Code Ann. § 15-3-20(B). South Carolina Rule of Civil Procedure 3(a) similarly provides:
(a) Commencement of civil action. A civil action is commenced when the summons and complaint are filed with the clerk of court if:Rule 3(a), SCRCP.
(1) the summons and complaint are served within the statute of limitations in any manner prescribed by law; or
(2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing.
Here, the state court issued a Dormant File Notice, informing Plaintiff that her action would be dismissed unless she responded within ten days "with the appropriate motion or Affidavit of Service." [Doc. 10-1.] Plaintiff subsequently served Defendant and responded to the state court's notice. [Docs. 10-2, 10-3.] Thereafter, Defendant moved in state court to dismiss Plaintiff's action, arguing that Plaintiff failed to serve Defendant within 120 days. [Doc. 1-2.] The state court did not dismiss Plaintiff's action. This Court is not inclined to dismiss Plaintiff's Original Complaint based on state procedural rules when the state court did not dismiss the action following notice that the action may be dismissed, especially given Plaintiff's pro se status at that time.
Next, Defendant asserts that Plaintiff's ADA claim should be dismissed as time-barred because it was raised for the first time in her Amended Complaint. As stated, the EEOC notice of right to sue letter was mailed by the EEOC to Plaintiff on January 29, 2016. [Doc. 5-3 at 2.] The Court presumes that Plaintiff received the notice on February 2, 2016. Plaintiff's Amended Complaint was filed in state court on January 5, 2017, some 338 days after the presumptive date of receipt of the EEOC notice of right to sue letter. Thus, Plaintiff's ADA claim is time-barred unless it relates back to the Original Complaint's filing date.
"When a pleading is amended prior to removal, the relation back inquiry is governed by state law." Lloyd v. General Motors Corp., 560 F.Supp.2d 420, 422 (D. Md. 2008); Kirby v. Allegheny Beverage Corp., 811 F.2d 253, 257 (4th Cir. 1987) ("the [Federal Rules of Civil Procedure] do not apply to the filing or pleadings or motions prior to removal."). Rule 15(c) of the South Carolina Rules of Civil Procedure provides:
Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.SCRCP, Rule 15(c). "The central requirement here is that the party defending against the new claim have sufficient notice of it, i.e., 'the new claim must be 'logically related' to the matters originally pleaded so that the defendant is not prejudiced by the new claim asserted after the statute of limitations has expired.'" Whitfield Constr. Co. v. Bank of Tokyo Trust Co., 338 S.C. 207, 223 (S.C. Ct. App. 1999).
An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
Rule 15(c) of the Federal Rules of Civil Procedure is identical and states that an amendment of a pleading relates back to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . ." Fed.R.Civ.P. 15(c)(2). As with the state analysis, the Fourth Circuit has focused on two issues in determining whether an amended claim relates back to the date of the original complaint pursuant to Rule 15(c)(2): (1) to relate back there must be a factual nexus between the amendment and the original complaint; and (2) if there is some factual nexus an amended claim is liberally construed to relate back to the original complaint if the defendant had notice of the claim and will not be prejudiced by the amendment. Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983).
In this case, Plaintiff's Original Complaint asserted that she was discharged for use of "inappropriate language," but mentioned nothing about discrimination or retaliation, much less that she was discharged based on a disability. [Doc. 1-1.] Plaintiff's Amended Complaint, however, raises entirely new disability-based allegations. Even though the claims raised in Plaintiff's Amended Complaint arguably arose out of the same "transaction or occurrence"—her termination, the Court cannot find that the new claims are "logically related" such that Defendant is not prejudiced by the new claims raised more than 300 days after the EEOC issued its notice of right to sue letter. Consequently, the undersigned finds that Plaintiff's Amended Complaint does not relate back to Plaintiff's Original Complaint. Therefore, the undersigned recommends that Plaintiff's ADA claim should be dismissed as time-barred for failure to file within 90 days of receiving the EEOC notice of right to sue.
Plaintiff has not argued that she should be afforded equitable tolling. Neither can the undersigned find that equitable tolling is warranted. The Fourth Circuit has stated that equitable tolling generally applies in two types of situations: (1) where the plaintiff "has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass," Crabill v. Charlotte Mecklenburg Bd. Of Educ., 423 F. App'x 314, 320-21 (4th Cir. Apr. 20, 2011); or (2) where "extraordinary circumstances beyond the plaintiff['s] control made it impossible to file the claims on time," Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (citation omitted). The decision whether to allow equitable tolling turns on the facts and circumstances of each case. Crabill, 423 F. App'x at 321 (citation omitted). "Federal courts have typically extended equitable relief only sparingly." Id. (citations omitted). Plaintiff has failed to show that this is one of the rare situations where equitable tolling of the limitations period should apply.
Rehabilitation Act Claims
Defendant argues that Plaintiff's Rehabilitation Act claims should be dismissed because Defendant is not subject to suit under Sections 503 and 504 of the Act because those sections do not provide a private right of action. Further, Defendant asserts that Plaintiff fails to allege and cannot establish that Defendant is a recipient of federal financial assistance under Section 504. [Id. at 8.]
Defendant notes that Plaintiff's Amended Complaint fails to specify which section of the Rehabilitation Act she is suing under, thus Defendant moves to dismiss Plaintiff's claims under Sections 503 and 504, asserting that it is not subject to suit under either section of the Act. [Doc. 5-1 at 6-8.] Plaintiff clarifies in her Response, arguing that she has stated a claim for relief under Section 504 of the Rehabilitation Act. [Doc. 10.] Consequently, the undersigned will discuss whether Plaintiff has alleged the necessary elements to plead a cause of action under Section 504.
Section 504 of the Rehabilitation Act provides:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .29 U.S.C. § 794(a). Here, Plaintiff's Amended Complaint alleges that "Defendant had during the course of Plaintiff's employment, contracts to perform work for the federal and/or state and local governments." [Doc. 1-3 at 7.] Under the Rehabilitation Act, a plaintiff must allege that the program or activity in question receives federal financial assistance. See Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 119 (7th Cir. 1997). A "program or activity" can include a "corporation, partnership, or other private organization . . . which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation[,] . . . any part of which receives Federal financial assistance." Conner v. Nucor Corp., No. 2:14-cv-4145, 2015 WL 5785510, at *6 (D.S.C. September 9, 2015) (citing 29 U.S.C. § 794(b)(3)(A)(ii)). The Amended Complaint does not allege any facts indicating that Defendant qualifies as a program or activity that receives federal financial assistance. Although the Amended Complaint states that Defendant engaged in federal contracts, "courts have repeatedly held as a matter of law that a private entity's procurement contract with the government does not qualify as 'federal financial assistance' for purposes of the statute." Id. Because Plaintiff failed to allege that any program or activity implicated by the Amended Complaint received federal funds, the Amended Complaint also fails to state a plausible claim under Section 504. See id.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends Defendant's motion to dismiss Plaintiff's disability claims should be GRANTED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 14, 2017
Greenville, South Carolina