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Miller v. Downtown Bid Services Corp.

United States District Court, District of Columbia

November 17, 2017

RAYONNA MILLER, Plaintiff,
v.
DOWNTOWN BID SERVICES CORPORATION, [1]Defendant.

          MEMORANDUM OPINION

         The pro se plaintiff, Rayonna Miller, brings this civil action against the defendant, Downtown BID Services Corporation, alleging that the defendant retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to -17 (2012). See Complaint (“Compl.”); Letter from Rayonna Miller to the Court (July 5, 2017).[2] Currently before the Court is the defendant's motion to dismiss the plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Defendant's Rule 12(b)(6) Motion to Dismiss Plaintiff's Complaint with Prejudice (“Def.'s Mot.”). Upon careful consideration of the parties' submissions, [3] the Court concludes that it must grant the defendant's motion and dismiss this case with prejudice.

         I. BACKGROUND

         The plaintiff, a former employee of the defendant, alleges that on September 13, 2016, her employment was “wrongfully terminated” in “retaliat[ion] [ ] for . . . filing [a] complaint [with the EEOC] for sexual harassment.” Compl. at 1.[4] Following her termination, the plaintiff filed a complaint with the EEOC alleging a charge of employment discrimination on the basis of retaliation in violation of Title VII of the Civil Rights Act. See Def.'s Mem., Exhibit (“Ex.”) A (EEOC Notice of Charge of Discrimination) at 1.[5] On October 7, 2016, following an investigation into her complaint, the EEOC mailed to the plaintiff a “Dismissal and Notice of Rights, ” notifying her that it was “unable to conclude that the information obtained establishes violations of the statutes” and that she “may file a lawsuit against the [defendant] . . . based on [her] charge in federal or state court . . . WITHIN [NINETY] DAYS of [her] receipt of this notice.” Id., Ex. A (Dismissal and Notice of Rights (“Right-to-sue Notice”)) at 2. On January 31, 2017, the plaintiff filed this civil action in the Superior Court of the District of Columbia (the “Superior Court”). See Compl. at 1. In her Complaint, the plaintiff acknowledged that she “received a letter for the right to sue from the EEOC [illegible] in October 2016, ” and although she was “not sure of the actual[] date” when she received the letter, she “believe[d] this month (January 2017) would be the end of [her] [ninety] days [to sue].” Id. The defendant removed the case to this Court on March 3, 2017. See Notice of Removal at 1.

         II. STANDARD OF REVIEW

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a motion to dismiss for “failure to state a claim upon which relief can be granted, ” Fed.R.Civ.P. 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although the Court “must treat the complaint's factual allegations as true [and] must grant [the] plaintiff the benefit of all reasonable inferences from the facts alleged, ” Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (first alteration in original) (citation omitted), legal allegations devoid of factual support are not entitled to this assumption, see, e.g., Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, a plaintiff must provide more than “a formulaic recitation of the elements of a cause of action.” Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F.Supp.2d 22, 27 (D.D.C. 2007) (quoting Twombly, 550 U.S. at 555). “In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (citation omitted). And although filings by a pro se litigant “must be held to less stringent standards than [those] drafted by lawyers, ” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009), this latitude “does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure, ” Moore v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993) (citation omitted).

         III. ANALYSIS

         The defendant moves to dismiss the Complaint with prejudice on the ground that the plaintiff's retaliation claim “is time-barred because she failed to file her Complaint within [ninety] days after receiving her [Right-to-sue Notice] from the EEOC.” Def.'s Mem. at 3. Specifically, the defendant argues that “if [the plaintiff] received the [Right-to-sue Notice] within five days after it was mailed, the filing deadline was January 10, 2017, and her Complaint was exactly [twenty-one] days late.” Id. at 5.[6] The plaintiff responds that the Court should deny the defendant's motion in light of several circumstances, including that she was: (1) “under the impression that [she] had [ninety] business days instead of [ninety] calendar day[s] to file [her] claim”; (2) “unable to . . . [retain] an attorney who would represent [her] in this matter”; and (3) experiencing various other circumstances that made her “[un]able to give 100 percent towards [this] court case, ” including that her termination had “caused a major setback” and “put her at a disadvantage” “physically[, ] mentally[, ] and emotionally”; she “was mentally frustrated and worried about how [she] was going to be able to obtain an income”; and she was hindered by a “time consuming” “travel commute, ” the need to “obtain childcare, ” and other issues. Pl.'s Resp. at 1.[7]

         A Title VII claimant has ninety days from the receipt of an EEOC right-to-sue notice or a notice of final agency action to file a civil action. See 42 U.S.C. § 2000e-5(f)(1). “[C]ourts have strictly construed the [ninety]-day statute of limitations in Title VII cases, even where the plaintiff is proceeding pro se, ” Ruiz v. Vilsack, 763 F.Supp.2d 168, 173 (D.D.C. 2011), and the “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for [the] particular litigant[], ” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam)). Thus, courts “will dismiss a suit for missing the deadline by even one day, ” Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C. 2006) (citing Smith v. Dalton, 971 F.Supp. 1, 2-3 (D.D.C. 1997)). Here, because the plaintiff failed to plead the precise date on which she received the Right-to-sue Notice, see Compl. at 1 (only alleging that she received the notice in October 2016), the Court “‘must fix a presumptive date of receipt for purposes of determining whether [the p]laintiff complied with the ninety day filing requirement, '” Ruiz, 763 F.Supp.2d at 171 (quoting Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. 94, 97 (D.D.C. 1995)). “Courts generally assume that the final EEOC decision was mailed on the same day that it was issued . . ., and that the plaintiff received the decision either three or five days after it was mailed.” Id. (citing, inter alia, Baldwin Cty., 446 U.S. at 148 n.1); see also McGary v. Hessler-Radelet, 156 F.Supp.3d 28, 34 (D.D.C. 2016) (observing that “it is reasonable to presume that a recipient residing in the United States received [an EEOC] notice within three to five days of when it was sent”). Applying the most generous presumption, the Court will assume that the plaintiff received the Right-to-sue Notice on October 12, 2016, five days after it was issued. See Def.'s Mem., Ex. A (Dismissal and Notice of Rights) at 2. Consequently, the plaintiff was required to file this civil action no later than ninety days thereafter, by January 10, 2017. Because the plaintiff did not file her Complaint in the Superior Court until January 31, 2017, see Compl. at 1, she failed to comply with the statutory filing deadline.[8]

         Although the ninety-day filing requirement is applied “strictly, ” Ruiz, 763 F.Supp.2d at 173, it “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, ” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Courts apply equitable tolling “sparingly, ” however, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), and “only in extraordinary and carefully circumscribed instances, ” Dyson v. District of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013) (quoting Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)). A plaintiff “is entitled to equitable tolling only if [s]he shows (1) that [s]he has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing.” Dyson, 710 F.3d at 421 (alterations in original) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The plaintiff's burden is “weighty, ” id., and as the Supreme Court has made clear, is not satisfied by “‘a garden variety claim of excusable neglect' or a ‘simple miscalculation, '” Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014) (quoting Holland, 560 U.S. at 651).

         To the extent that the plaintiff argues she is entitled to equitable tolling, she has failed to satisfy her burden. First, she has not shown that she diligently pursued her rights. Although she alleges that during the statutory period she was “look[ing] for a lawyer to represent [her] in th[is] case, ” Compl. at 1, a plaintiff must do more to show that she “actively pursued h[er] judicial remedies, ” such as showing that she “fil[ed] a defective pleading during the statutory period, ” Irwin, 498 U.S. at 96; see also Williams v. Court Servs. & Offender Supervision Agency for D.C., 840 F.Supp.2d 192, 197 (D.D.C. 2012) (finding that the pro se plaintiff “diligently pursued his claim” by “refil[ing] his complaint within three or four days of receiving notice” that his in forma pauperis motion had been denied after he “contact[ed]-on his own accord-the Clerk's Office to check on the status of his motion”); Turner v. Shinseki, 824 F.Supp.2d 99, 108, 111 (D.D.C. 2011) (Walton, J.) (equitably tolling the limitations period where the pro se plaintiff timely filed a complaint that was deemed “deficient due to the plaintiff's failure to properly name all parties in the caption, properly sign the Complaint, submit the requisite number of copies, and use the correct civil cover sheet, ” and re-filed the corrected complaint after the limitations period expired); Butler v. Schapiro, 839 F.Supp.2d 252, 255-56 (D.D.C. 2012) (equitable tolling invoked where the plaintiff's “attorney's paralegal attempted to file th[e] complaint on time, and it was accidentally delivered to a different government office, ” but “[u]pon discovery of this mistake, [her] attorney promptly filed the complaint with the correct office the next day”). Here, the plaintiff failed to make any attempt to preserve her rights within the limitations period, despite admittedly being aware of the ninety-day filing requirement. See Compl. at 1 (“I believe . . . []January 2017[] would be the end of my [ninety] days.”). Even absent this admission, the Right-to-sue Notice gave her “clear notice of her responsibilities.” Dyson, 710 F.3d at 421; see Def.'s Mem., Ex. A (Dismissal and Notice of Rights) at 2 (“Your lawsuit must be filed WITHIN [NINETY] DAYS of your receipt of this notice; or your right to sue on this charge will be lost.”).

         The plaintiff's lack of diligence is not excused by her contention that she “was under the impression that [she] had [ninety] business days instead of [ninety] calendar day[s] to file [her] claim.” Pl.'s Resp. at 1. The Court agrees with the defendant that this contention is undermined by the plaintiff's representation in her Complaint that she “believe[d] that . . . []January 2017[] would be the end of [her] [ninety] days” to file this civil action, Compl. at 1; see Def.'s Reply at 3, because the statute of limitations period would not have expired until February 10, 2017, at the earliest, if it were measured in business days, see Def.'s Resp. at 3. In any event, this Circuit has rejected the position that miscalculating a filing deadline is a sufficient ground for equitable tolling, see, e.g., Menominee Indian Tribe, 764 F.3d at 58 (rejecting the plaintiff's explanation that it mistakenly believed it was entitled to class-action tolling of the applicable statute of limitations), and more specifically, courts have declined to invoke equitable tolling due to the plaintiff's miscalculation of a deadline based on a mistaken belief that the limitations period should be measured in business days instead of calendar days, see Swain v. N.Y. Life Ins. Co., No. 92-15124, 979 F.2d 856, 1992 WL 337733, at *1 (9th Cir. Nov. 18, 1992) (rejecting argument in part because the Federal Rules of Civil Procedure generally do not exclude non-business days for the purposes of computing time (citing Fed.R.Civ.P. 6(a))); Williams v. Kaztronix, No. 13-cv-652 (ES), 2014 WL 1272141, at *4 (D.N.J. Mar. 26, 2014) (declining to invoke equitable tolling in part because “[t]o the extent that [the p]laintiff may have been unclear as to how the ninety-day filing period is calculated, her uncertainty was not the result of the EEOC's, this Court's[, ] or [the d]efendants' actions or representations”); Manley v. N.Y.C. Police Dep't, No. 05-cv-579 (FBLB), 2005 WL 2664220, at *4 (E.D.N.Y. Oct. 19, 2005) (concluding that “diligence required [the plaintiff] to seek clarification from the EEOC or another source [regarding how to calculate the ninety-day period], or to err on the side of caution by assuming that the right-to-sue letter's reference to ‘[ninety] days' did not refer to [ninety] business days”).

         Second, none of the circumstances that the plaintiff identifies in her response rises to the level of an “extraordinary circumstance [that] stood in [her] way and prevented timely filing.” See Dyson, 710 F.3d at 421 (second alteration in original). Her inability to retain an attorney is not an extraordinary circumstance, as she could have at any time filed this action pro se, which she ultimately did. See Charles v. Brennan, 174 F.Supp.3d 97, 103-04 (D.D.C. 2016) (rejecting the plaintiff's argument that the defendant's interference in his hiring of an attorney qualified as an extraordinary circumstance because the plaintiff “utterly fail[ed] to allege how the [defendant's] actions impeded the filing of either a pro se complaint or a complaint prepared by a different attorney within the [ninety]-day time period”); see also Martin v. Piedmont Airlines, 916 F.Supp.2d 11, 14 (D.D.C. 2013) (declining to invoke equitable tolling where the pro se litigant “attribute[d] his delay to his inability to obtain legal advice . . . or to retain legal counsel”); United States v. Lawson, 608 F.Supp.2d 58, 62 (D.D.C. 2009) (concluding that “a failure to meet [a] statutory deadline due to pro se representation is not a circumstance in which it is appropriate to toll the statute of limitations”). As to the plaintiff's claims that she was “[un]able to give 100 percent towards [this] court case” because she was “mentally frustrated, ” “worried, ” and “at a disadvantage” “physically[, ] mentally[, ] and emotionally” as a result of her termination and other circumstances, see Pl.'s Resp. at 1, “[i]t is not sufficient to show that a plaintiff was ‘preoccupied, depressed, [or] obsessed with the events' [s]he was experiencing, ” Miller v. Rosenker, 578 F.Supp.2d 67, 72 (D.D.C. 2008) (quoting Gupta v. Northrop Grumman Corp., 462 F.Supp.2d 56, 60 (D.D.C. 2006)). Although it may be appropriate to invoke equitable tolling upon a showing that the plaintiff was non compos mentis, i.e., “completely incapable of handling h[er] affairs and legal rights” due to disability or mental illness, id. at 72, here, the plaintiff has failed to allege facts showing that she suffered from such a condition. Indeed, since receiving her Right-to-Sue notice, the plaintiff acknowledges her ability to pursue her personal affairs by alleging, inter alia, that she “actively s[ought] [ ] an attorney who c[ould] assist [her] in this case” and “a new source of income.” Pl.'s Resp. at 1; see Charles, 174 F.Supp.3d at 103 (concluding that the plaintiff's “conclusory statement” that “his depression rendered him incapable of handling his affairs” was insufficient and undermined by his admission that “he was capable enough to meet with an attorney . . . before the expiration of the [ninety] days” (emphasis removed) (internal citation omitted)).

         In sum, the plaintiff has failed to demonstrate that this case is one of the “extraordinary and carefully circumscribed instances” in which it is appropriate to equitably toll the statutory period. See Dyson, 710 F.3d at 421 (quoting Smith-Haynie, 155 F.3d at 580). Accordingly, the Court agrees with the defendant that the plaintiff's retaliation claim is time-barred.

         IV. ...


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