The opinion of the court was delivered by: Beryl A. Howell United States District Judge
Presently before the Court is plaintiff's motion to accept her Complaint as timely filed on July 30, 2010 and defendant's motion to dismiss the plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to file in a timely manner. For the reasons explained below, the defendant's motion to dismiss has been converted to a motion for summary judgment under Federal Rule of Civil Procedure 56 and is denied. The Court equitably tolls the statute of limitations period and accepts the Complaint as timely filed on August 2, 2010.
Plaintiff Rhonda Smith, an African American female, is currently an employee at the Department of Justice. Compl. ¶¶ 3, 6. Ms. Smith alleges that the Department of Justice "continuously subjected [her] to a discriminatory hostile work environment based on her race." Id. ¶ 242.
On May 1, 2010, Ms. Smith received a final agency decision notifying her that she had ninety days to bring suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f) and 16(c) and the Rehabilitation Act, 29 U.S.C. § 791.
Pl.'s Mot. to Accept the Compl. ("Pl.'s Mem.") at 1. Plaintiff's counsel tried to file the Complaint through a hired messenger service, on Friday, July 30, 2010, the last day of the ninety-day filing period. Id. at 1-2. The messenger arrived at the Court with the Complaint at about 4:45 PM on July 30, but the Clerk's office was closed. Id. at 3. Shortly thereafter, the messenger informed plaintiff's counsel that the Complaint could not be left in the Court's after-hours drop box because there was a sign that indicated the Court would not accept new filings left in the box. Id. In a sworn statement, the messenger affirmed: "I tried to file the Complaint, but I saw a posted policy from the Clerk's Office to the effect that I could not file a new case or anything with a payment in the night drop box." Affidavit of Collin Barth, sworn to August 2, 2010 ("Barth Aff.") ¶ 5. Based on the messenger's understanding of this sign, plaintiff's counsel told the messenger to have the Complaint stamped "received," but not to leave it in the drop box. Pl.'s Mem.at 3. The "received" stamp on the Complaint indicates receipt by the Clerk's office at 5:11 PM on July 30, 2010. Id. at 6 (Copy of Stamped Complaint). When the Court reopened on the following business day, Monday, August 2, 2010, the plaintiff filed the Complaint. Compl., ECF No. 1.
On August 2, 2010, the plaintiff also filed a motion to accept her Complaint as timely filed as of July 30, 2010. ECF No. 2. On September 30, 2010, the defendant moved to dismiss the case pursuant to 12(b)(6) due to the plaintiff's delay in filing the Complaint. ECF No. 6.
On August 9, 2011, the Court notified the parties that it intended to treat the defendant's motion to dismiss as a motion for summary judgment pursuant to Rule 12(d).*fn1 See Fed R. Civ. P. 12(d); see also Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011); Wiley v. Glassman, 511 F.3d 151, 160 (D.C. Cir. 2007). The Court provided the parties with a reasonable opportunity to present any additional material pertinent to that motion by August 19, 2011.
On August 19, 2011, the plaintiff filed an additional affidavit and memorandum in opposition to the motion for summary judgment. The defendant did not file any additional materials.
The parties' motions are now before the Court.
The defendant has filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6) on the grounds that the plaintiff's claim is time-barred. "A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint." Strong-Fischer v. Peters, 554 F. Supp. 2d 19, 21-22 (D.D.C. 2008) (quoting DePippo v. Chertoff, 453 F. Supp. 2d 30, 33 (D.D.C. 2006)). If, on a motion under Rule 12(b)(6), however, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ.P. 12(d); see also Strong-Fischer, 554 F. Supp. 2d at 22; Morris v. Lowe's Home Centers, Inc., No. 10-cv-388, 2011 WL 2417046, at *2-3 (M.D.N.C. June 13, 2011). Since matters beyond the pleadings will be considered here, the defendant's motion will be treated as one for Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" based upon the pleadings, depositions, and affidavits and other factual materials in the record. Fed. R. Civ. P. 56(a), (c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The Court "need consider only the cited materials, but it may consider other materials in the record." Fed. R. ...