United States District Court, E.D. Michigan, Southern Division
ELLIOT D.L. WARD, Plaintiff,
v.
COMCAST, Defendant.
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT UNDER 28 U.S.C. §
1915(E)(2)(B)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
Plaintiff
Elliot D.L. Ward has filed an employment discrimination
lawsuit against his former employer, Comcast, claiming his
June 11, 2019 termination violated the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the
Americans with Disabilities Act of 1990, 42 U.S.C. §
12112 et seq.. ECF No. 1. Concurrent with the
Complaint, Plaintiff filed an application to proceed in forma
pauperis. ECF No. 2.
Plaintiff
declares that he is “unable to pay the costs of these
proceedings” and has declared under penalty of perjury
that he has no assets and no cash on hand. ECF No. 2,
PageID.20. Plaintiff's Motion to Proceed in Forma
Pauperis (ECF No. 2) is GRANTED. The
Complaint shall be filed on the docket.
Under
28 U.S.C. § 1915(e)(2)(B), this Court is required to
screen all in forma pauperis actions and to dismiss before
service any such action that is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. The standard for dismissal under § 1915(e)(2)(B)
for failure to state a claim is the same as the standard
articulated in Ashcroft v. Iqbal, 556 U.S. 662
(2009) and Bell Atlantic Corporation v. Twombly, 550
U.S. 544 (2007) for Federal Rule of Civil Procedure 12(b)(6).
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
2010). Under Rule 12(b)(6), a complaint is subject to
dismissal for failure to state a claim if it appears from the
face of the complaint that it was not brought within the
applicable statute of limitations. Rauch v. Day &
Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978).
Here,
the Complaint was filed on November 19, 2019. ECF No. 1.
Attached to the Complaint is the right-to-sue letter
Plaintiff received from the Equal Employment Opportunity
Commission (EEOC). Plaintiff states that he received the
letter on November 19, 2019, which is the day he filed the
Complaint, but the EEOC letter states that it was mailed on
July 18, 2019. Plaintiff does not offer any facts explaining
why the EEOC letter would be dated July 18, 2019, but not
received by the Plaintiff until four months later, on the
same day he filed this Complaint.
The
question of when Plaintiff received his EEOC right-to-sue
letter is important, because under 42 U.S.C. §
2000e-5(f)(2), a Title VII complaint must be filed within
ninety (90) days of the date that the complainant receives
the EEOC's right-to-sue letter. Ball v. Abbott
Advert., Inc., 864 F.2d 419, 420-21 (6th Cir. 1988). In
the absence of any proof from the Plaintiff that the
EEOC's letter was received on a particular date, the
Sixth Circuit Court of Appeals has ruled that it may be
presumed that notice has been given, and hence the ninety-day
limitations term begins running, on the fifth day following
the EEOC's mailing of a right-to-sue notification to the
claimant's record residential address, “by virtue
of a presumption of actual delivery and receipt within that
five-day duration, unless the plaintiff rebuts that
presumption with proof that he or she did not receive
notification within that period.” Graham-Humphreys
v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,
557-58 (6th Cir. 2000).
Applying
the Sixth Circuit's rule to this case, the 90-day period
would begin running on July 23, 2019-five days after July 18,
2019, the date of the EEOC's right-to-sue letter. Thus,
to be timely, Plaintiff's Complaint would have to have
been filed within 90 days of July 23, 2019, that is, by no
later than October 23, 2019. Unfortunately, as stated,
Plaintiff's Complaint was not filed until November 19,
2019, nearly a month after the statute of limitations had
expired. The Court must therefore dismiss the Complaint
because it appears from the face of the Complaint that it is
barred by the statute of limitations.
The
Court's dismissal is without prejudice. This means that
Plaintiff may re-file this case as long as he is able to
present facts showing that he actually did not receive the
EEOC's letter until sometime after August 21, 2019.
August 21 is the key date because counting back from the
filing date of November 19, the 90th day is August 21st.
Therefore, if Plaintiff has proof that he actually received
the EEOC letter at any point between August 21 and November
19 of 2019, then the original Complaint would have been filed
within the 90-day statute of limitations.
Or,
Plaintiff could also refile this complaint if he can allege
facts showing that there were some special circumstances
beyond his control that prevented him from meeting the
statute of limitations. If such circumstances can be shown,
Plaintiff might be entitled to what is called an
“equitable tolling” of the statute of
limitations. See Graham-Humphreys, 209 F.3d at
560-61 (“Typically, equitable tolling applies only when
a litigant's failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that
litigant's control.”).
In
consideration of the above, although the Complaint will be
dismissed, Plaintiff may, within twenty-one (21) days
of the date of this Order, file an amended complaint
which shall include all of the following: (i) the actual date
when Plaintiff received the right-to-sue letter; (ii) proof
supporting Plaintiff's statement regarding the date of
his receipt of the letter; and (iii) additional facts, if
any, that may entitle Plaintiff to equitable tolling of the
statute of limitations.
For the
reasons stated above, IT IS HEREBY ORDERED
that the Motion to Proceed in Forma Pauperis (ECF No. 2) is
GRANTED. IT IS FURTHER ORDERED that the
Complaint is DISMISSED WITHOUT PREJUDICE for
failing to state a claim upon which relief could be
granted.
If
Plaintiff wishes to file an amended complaint consistent with
this Order, he must do so within twenty-one (21) days
of the date of this Order. If Plaintiff does not
file an amended complaint within twenty- one days, the
Complaint ...