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Middleton v. Octapharma Plasma Inc.

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

July 10, 2019

CARDALE MIDDLETON, Plaintiff,
v.
OCTAPHARMA PLASMA, INC., Defendant.

          Matthew F. Leitman, District Judge.

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.

         On January 4, 2018, Plaintiff Cardale Middleton, proceeding pro se (without a lawyer), filed a civil complaint against his former employer, Octapharma Plasma, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Before the Court is Defendant's motion to dismiss Plaintiff's first amended complaint [Doc. #23], which has been referred for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion be GRANTED and that the complaint be DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Procedural Background

         Plaintiff Cardale Middleton, proceeding pro se, originally filed his complaint in this Court on January 4, 2018, alleging that Defendant Octapharma Plasma, Inc. (“Octapharma”) violated Title VII of the Civil Rights Act of 1962, 42 U.S.C. § 2000e, et seq.

         On February 26, 2018, Defendant filed a motion to dismiss [Doc. #12, Pg. ID 32] seeking dismissal for untimely filing and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff submitted a first response on February 26, 2018 [Doc. #14], followed by a second response on March 3, 2018 [Doc. #15], where he expressed his reasons for delayed filing as voluntary admission to the Samaritan Behavioral Center before the 90 day deadline, Id. [Pg. ID 66] and his case being dropped by his lawyer, coupled with his belief that he had “two years from the date to bring [his] lawsuit to court.” Id. [Pg. ID 61]. On August 2, 2018, I recommended that the case be dismissed as time-barred [Doc. #17]. Upon Plaintiff's objection filed August 15, 2018 [Doc. #18], Judge Matthew F. Leitman dismissed Plaintiff's complaint without prejudice but allowed Plaintiff to file a First Amended Complaint (“FAC”) by October 1, 2018 with specific plausible factual allegations sufficient to satisfy the Sixth's Circuit equitable tolling test described in Zappone v. United States, 870 F.3d 551 (6th Cir. 2017) [Doc. #19, Pg. ID 88].

         Plaintiff filed his FAC on September 28, 2018 [Doc. #20]. On October 20, 2018, Defendant filed a motion to dismiss on the grounds that Plaintiff's allegations were insufficient to support equitable tolling [Doc #23]. On November 30, 2018, Plaintiff filed a response to Defendant's motion to dismiss, further clarifying the reasons as to why he delayed in filing within the 90 day period [Doc. #25]. Defendant filed a reply on December 14, 2018, stating that Plaintiff failed to state “'specific factual allegations' in compliance with the Zappone factors.” [Doc. #26, Pg. ID 270].

         B. Factual Background [1]

         Mr. Middleton was terminated from Octapharma in or shortly after January 2016. He filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on February 1, 2016. [Doc. #23-4, Pg. ID 213], alleging that Octapharma discriminated against him based on race and gender under Title VII during his employment. He received a Dismissal and Notice of Rights from the EEOC on February 4, 2016. [Doc. #23-2, Pg. ID 204]. He filed his complaint to this Court almost two years later, on January 4, 2018. [Doc. #1].

         Plaintiff proffers the following reasons why his complaint was untimely. He voluntarily entered the Samaritan Behavioral Center on March 28, 2016, 53 days after receiving the Dismissal and Notice of Rights from the EEOC. [Plaintiff's response to first dismissal motion Doc. #15, Pg. ID 66]. Plaintiff also submitted a “Notice of Intent to Terminate Hospitalization” form signed by himself on April 1, 2016 and by staff on April 5, 2016, the latter being 61 days after the notice from the EEOC. Id. Pg. ID 65. Plaintiff received a letter from his attorney, Clifford Paskel, dated May 9, 2016, 95 days after receiving the notice from the EEOC, stating that Mr. Paskel would not be taking any further action on Plaintiff's behalf, but that Plaintiff “may not be able to bring a Federal Claim within the 90 day limit [and Plaintiff has] three (3) years from the date of discrimination to file a case in State rather than Federal Court.” Id. Pg. ID 68. Plaintiff stated that he believed “an initial complaint was made by the lawyer who was acting on [his] behalf at the time. And [the lawyer] leaving [him] was the case being dropped.” Id. Pg. ID 62. Plaintiff also stated that “after a month [his] case was dropped and [he] was informed [he] had two years from the date to bring [his] lawsuit to court.” Id. Pg. ID 61.

         In Plaintiff's First Amended Complaint, he states he sought legal help even though he was in a “state of extreme fear and paranoia” and found it difficult to talk about the discrimination [Doc. #20, Pg. ID 103]. Plaintiff states he was “diagnosed with bipolar disorder based on false claims and medicated with over 4 different medications.” Id. Pg. ID 104. This, coupled with the discrimination at work, harassment after employment from outside forces, and the anxiety from having to file a complaint, led the Plaintiff to believe he developed post-traumatic stress disorder (PTSD). Plaintiff states the reason he failed to abide by the federal filing deadline was due to this “mental disability along with ongoing harassment.” Id, Pg. ID 105. When he was informed by his attorney that their legal representation was over, Plaintiff began to handwrite a complaint. Id. Pg. ID 104.

         In Plaintiff's Response to Defendant's Motion to Dismiss the First Amended Complaint, he states that he would become nauseous and fatigued when reading letters from the EEOC or his attorney and would sometimes be unable to finish reading the letters [Doc. #25, Pg. ID 260]. Plaintiff states he was in “psychiatric incarceration” before and after the 90 day deadline. Id. Pg. ID 264.

         II. ...


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