United States District Court, E.D. Michigan, Southern Division
Matthew F. Leitman, District Judge.
REPORT AND RECOMMENDATION
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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].
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
Factual Background 
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].
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.
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.
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.