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Norton v. County of Alpena

United States District Court, E.D. Michigan, Southern Division

March 29, 2017

BRANDY NORTON, Plaintiff,
v.
COUNTY OF ALPENA, Defendant.

         HON. DENISE PAGE HOOD

          ORDER GRANTING DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT [#11]

          Denise Page Hood Chief Judge, United States District Court

         I. BACKGROUND

         On March 9, 2016, Plaintiff Brandy Norton (“Norton”) filed a Complaint against Defendant County of Alpena (“Alpena”) alleging discrimination under the Americans with Disabilities Act of 1990 (“ADA”) for failure to accommodate and retaliation (Count I). (Doc # 1) On June 1, 2016, Alpena filed an amended Motion for Summary Judgment. (Doc # 11) A Response and Reply have been filed. (Doc # 13; Doc # 14; Doc # 17) The Court held a hearing on November 9, 2016.

         Norton worked for Alpena as the Plaza Pool Director from 2005 through 2012. (Doc # 1, Pg ID 2) On January 21, 2012, Norton filed a Charge of Discrimination (No. 471-2012-00641) (“First Charge”) with the Equal Employment Opportunity Commission (“EEOC”) alleging disability discrimination from March 2011 through January 2012 for failure to accommodate in violation of the ADA. (Doc # 11-2, Pg ID 80) On April 9, 2012, Norton filed a second Charge of Discrimination (No. 471-2012-01532) (“Second Charge”) with the EEOC alleging disability discrimination from January 2012 through March 2012 for retaliation in violation of the ADA. (Doc # 11-3, Pg ID 82)

         On September 25, 2013, the EEOC issued a separate Determination for each Charge. As to the First Charge, the EEOC determined that there is reasonable cause to believe that Norton was denied a reasonable accommodation in violation of the ADA. (Doc # 14-8, Pg ID 158) As to the Second Charge, the EEOC determined that there is reasonable cause to believe that Norton was subjected to different terms and conditions of employment in violation of the ADA. (Doc # 14-9, Pg ID 161)

         In June 2014, Norton received a Notice of Right to Sue (“First Notice”) on the First Charge only. The United States Department of Justice (“DOJ”) issued this First Notice on June 10, 2014, informing Norton that she had the right to institute civil action under the ADA against Alpena within 90 days of receipt of the First Notice. (Doc # 11-4, Pg ID 84)

         According to an Affidavit of Norton, she notified the DOJ within a week that the First Notice had incorrectly omitted the Second Charge. (Doc # 14-4, Pg ID 145) Norton called the main number to the Civil Rights Division several times in June 2014 and left messages. Id. at 146. She was told that “both RTS letters had been mailed at the same time” and was assured that the error would be corrected. Id. Norton called the DOJ again in or around July 2014 and was told that the DOJ could not locate the files and Notice of Right to Sue letter on the Second Charge. Id. She was advised to contact the EEOC to request a copy of the files and told that the EEOC would have a copy of the Notice of Right to Sue letters on the First Charge and Second Charge. Id. Norton sent a letter to the EEOC on July 29, 2014 requesting the documents; however, in response, she received the documents related to the First Charge only. (Doc # 14-5, Pg ID 151; Doc # 14-6, Pg ID 153-54) Norton called the EEOC and was told that was all they could locate. (Doc # 14-4, Pg ID 146) The EEOC provided Norton with contact information for Kristen Greer (“Greer”) at the DOJ Civil Rights Division. Norton then called Greer and was told again that the Notice of Right to Sue letter on the Second Charge had been mailed out. Greer told her that she would speak with the Employment Litigation Division to have the situation “taken care of, ” “rectified, ” and “don't worry.” Id.

         On December 17, 2015, the DOJ issued a Notice of Right to Sue (“Second Notice”) on both the First Charge and the Second Charge informing Norton that she had the right to institute civil action under the ADA against Alpena within 90 days of receipt of the Second Notice. (Doc # 11-5, Pg ID 87). This Second Notice also stated: “Please be advised that this notice, originally dated June 10, 2014, is being re-issued and the new applicable date is the date of this letter.” Id. at 88.

         Norton then hired an attorney, and she filed her one-count Complaint on March 9, 2016, within 90 days of receipt of the Second Notice. Count I contains both the failure to accommodate claim related to the First Charge and the retaliation claim related to the Second Charge. (Doc # 1, Pg ID 2-8)

         Through the instant motion, Alpena argues that it is entitled to judgment as a matter of law because Norton failed to file this litigation within 90 days of receiving the First Notice from the DOJ in July 2014. Norton argues that Alpena waived its right to challenge the jurisdiction of this Court. Norton further argues that equitable tolling is appropriate here.

         II. ANALYSIS

         A. Standard of Review

         Rule 56(a) of the Federal Rules of Civil Procedures provides that the court “shall grant 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.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view admissible evidence in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ...


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