Abraham v. Greater Birmingham Humane Soc'y, Inc.

ALPHONZO ABRAHAM, Plaintiff, v. THE GREATER BIRMINGHAM HUMANE SOCIETY, INC., a charitable agency, Defendant.

CASE NO. 2:11-cv-04358-SLB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: March 17, 2014

MEMORANDUM OPINION

This case is presently pending before the court on defendant's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 30.)¹ Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that the Motion to Dismiss is due to be granted in part and denied in part. The motion will be granted as to the Motion to Dismiss plaintiff's state law claims and denied as to the Motion to Dismiss plaintiff's Title VII retaliation claims.

I. STANDARD OF REVIEW

A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be granted. To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint"does not need detailed factual allegations;" however, the "plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations and footnote omitted). The plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

"When considering a motion to dismiss, all facts set forth in the plaintiff's complaint 'are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). All "reasonable inferences" are drawn in favor of the plaintiff. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002). "'[U]nsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.'" Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)). Furthermore, "[a] complaint may not be dismissed because the plaintiff's claims do not support the legal theory he relies upon since the court must determine if the allegations provide for relief on any possible theory." Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) (emphasis in original; citation omitted).

"A statute of limitations bar is an affirmative defense, and plaintiffs are not required to negate an affirmative defense in their complaint." La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (quoting Tregenza v. Great Am. Comm'ns Co., 12 F.3d 717, 718 (7th Cir. 1993) (internal quotation marks and alterations omitted). Accordingly, "[d]ismissal under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred." Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005) (quoting La Grasta, 358 F.3d at 845) (internal quotation marks omitted).

II. STATEMENT OF FACTS

Plaintiff filed this lawsuit against his former employer the Greater Birmingham Humane Society, Inc. ("defendant") on December 30, 2011. (See doc. 1)² The Complaint did not include any factual allegations regarding the events giving rise to this case, nor did the Complaint list any causes of action. (Id.) The Complaint, consisting of less than two pages, mentioned in passing that plaintiff seeks relief for acts of discrimination and retaliation in violation of Title VII of the Civil Rights Act, ("Title VII"), the Age Discrimination in Employment Act, ("ADEA"), and the Americans with Disabilities Act, ("ADA"). (Id. ¶ 8.) Claims brought pursuant to these statutes are time-barred unless filed within ninety days afterthe plaintiff receives notice of his right to sue letter from the Equal Employment Opportunity Commission ["EEOC"].

In Paragraph 4 of the Complaint, plaintiff stated that "a final letter following the [EEOC] investigation was sent by the EEOC to the Plaintiff on or about September 28, 2011." (Id. ¶ 4 [emphasis added].) Rule 6(d) of the Federal Rules of Civil Procedure creates a presumption that receipt occurs three days after the mailing date if the date of receipt is unknown. Fed. R. Civ. P. 6(d). Since the Complaint did not specify when plaintiff received the letter, the court would have presumed that plaintiff received the letter on October 1, 2011. Assuming plaintiff received the letter on October 1, 2011, plaintiff commenced suit on the final day within the 90-day limitations period. Evidently unaware that the Complaint was timely as alleged, plaintiff filed a Motion for Relief seeking equitable relief from the 90-day statute of limitations on January 2, 2012. (Doc. 2.) Plaintiff indicated that the 90-day limitations period expired on December 28, 2011, two days prior to the commencement of this action, because the EEOC sent the right to sue letter on September 28, 2011. (Id. ¶¶ 2-3.) Plaintiff requested such relief from the statutory deadline on grounds that his attorney "sought to file it electronically on or before the December 28, 2011 deadline, but was unable to do so for reasons not known to the attorney, so the attorney filed the complaint . . . directly with the Clerk of Court."³ (Id. ¶ 4.)

Defendant filed a Motion to Dismiss and an opposition to plaintiff's Motion for Relief. (See doc. 5.)⁴ The Motion to Dismiss asserted that dismissal was warranted on several grounds, including expiration of the statute of limitations. (Id.) As to its statute of limitations argument, defendant contended that "plaintiff missed the 90-day deadline" by his own admission in the Motion for Relief and that the alleged justification for the untimeliness - electronic difficulties - did not justify equitable tolling. (Id. at 5-7).

Plaintiff responded to the Motion to Dismiss by filing an Amended Complaint, (doc. 8), a Motion to Withdraw the Motion for Relief, (doc. 9), and a Verified Response to Defendants' Motion to Dismiss, (doc. 10). In the Amended Complaint, plaintiff alleged that he received the EEOC right-to-sue letter on September 30, 2011. (Doc. 8 ¶ 4.) According to plaintiff's calculations, the 90-day limitations period therefore expired on December 30, 2011 - the day plaintiff commenced this litigation. (Id. ¶ 5.) Plaintiff reiterated that he received the right-to-sue letter on September 30, 2011 in Paragraph 2 of the Motion to Withdraw the Motion for Relief. (Doc. 9 ¶ 2.) This statement is contradicted two paragraphs later wherein plaintiff stated that he "did not receive that letter until after Friday, September 30, 2011." (Id. ¶ 4. [emphasis added].) Nevertheless, plaintiff contradicts that statement in the following paragraph, emphasizing that he "did not receive the EEOC letter until Friday, September 30,2011." (Id. ¶ 5 [emphasis in original].) Plaintiff further alleged that he received the right-to-sue letter on September 30, 2011 in his opposition to the Motion to Dismiss. (Doc. 10 ¶ 12.)

At oral argument on defendants' Motion to Dismiss, the court informed counsel for plaintiff that the claims are time-barred even assuming plaintiff received the letter on September 30, 2011. Specifically, plaintiff had miscalculated the 90-days limitations period, as 90 days from September 30, 2011 is December 29, 2011, not December 30, 2011. The court further noted that the Complaint was not time-barred as alleged based on the three-day mailing presumption provided for by Rule 6(d). Thereafter, plaintiff's counsel indicated that plaintiff received the right-to-sue letter after September 30, 2011, and that this was reflected "somewhere" in the record. Plaintiff's counsel offered no explanation for plaintiff's repeated representation that the right-to-sue letter was received on September 30, 2011. The court ultimately struck the Amended Complaint upon motion of defendant for failure to comply with the requirements of Rule 15 of the Federal Rules of Civil Procedure, (see doc. 20), but denied defendant's Motion to Dismiss to afford plaintiff an opportunity to replead his claims in compliance with Federal Rules of Civil Procedure 8(a), 8(e)(1), 10(b), and 11(b), (see docs. 21 & 22).

Plaintiff thereafter filed a Motion for Leave to File Amended Complaint, (doc. 23). In the proposed Amended Complaint attached thereto, plaintiff alleged, for the first time in this litigation, causes of action under Alabama state law for negligence, wantonness, bad faith failure to investigate, and conspiracy based on events surrounding his 2009 terminationfrom defendant's employment. (Doc. 23-1 ¶¶ 25-40.) The only remaining federal cause of action alleged was a retaliation claim under Title VII. (Id. ¶¶ 41-43.) Furthermore, plaintiff also alleged for the first time in this litigation that he received the right-to-sue letter on approximately October 10, 2011. (Id. ¶ 4c.) Plaintiff explained that the EEOC mailed the letter to his former residence (his aunt's house) and that he took possession of the letter 12 days after September 28, 2011. (Id.)

In response, defendant filed an Opposition to Plaintiff's Motion for Leave to Amend Complaint and in the alternative Motion to Dismiss the proposed Amended Complaint, (doc. 24). Defendant presented several arguments as to why plaintiff's claims should be dismissed, including that both plaintiff's state law claims and Title VII retaliation claim were time-barred by the applicable statute of limitations. (Id. ¶¶ 8-9....