United States District Court, N.D. Mississippi, Oxford Division
Tamara Brown, Plaintiff, Pro se, Memphis, TN.
For Desoto County School District, Defendant: Todd P. Photopulos, LEAD ATTORNEY, PRO HAC VICE, BUTLER SNOW LLP - Memphis, Memphis, TN; William Mackin Johnson, LEAD ATTORNEY, BUTLER SNOW LLP - Jackson, Ridgeland, MS.
REPORT AND RECOMMENDATION OF DISMISSAL
Jane M. Virden, UNITED STATES MAGISTRATE JUDGE.
This matter is before the court for a report and recommendation by the undersigned Magistrate Judge on the Defendant's Motion to Dismiss for Failure to State a Claim . Upon due consideration of this case and the applicable law, the court finds the pro se plaintiff's claims against the defendant should be dismissed without prejudice for the reasons hereafter discussed.
Plaintiff claims she filed a Charge of Discrimination with the EEOC on December 1, 2011. Compl.  at 2. She received her right to sue letter (" RTS letter") from the EEOC on May 14, 2013. Id. at 2. Plaintiff filed her complaint on March 11, 2014, in the United States District Court for the Western District of Tennessee. Id. at 1. This was some 301 days after she alleges to have received her RTS letter. Id. at 4.
Defendant filed a motion to dismiss on April 11, 2014, arguing improper venue, lack of personal jurisdiction, and the complaint was untimely under Title VII. See Mem. in Supp. of Mot. to Dismiss . On August 13, 2014, the Western District of Tennessee denied the School District's motion without prejudice and transferred the case to this Court. See J. . This court accepted the transfer and assigned the case to District Judge Biggers and Magistrate Judge Virden on August 25, 2014. The School District renewed its motion to dismiss on September 9, 2014, asking the court to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6). Defendant asserts Plaintiff's claim is barred by the 90-day limitation period under Title VII. In light of Plaintiff's pro se status, the court allowed her an additional thirty days from September 24, 2014, to respond to the motion to dismiss. The thirty-day extension has passed, and Plaintiff has not filed a response.
Standard of Review
Motions to dismiss test the sufficiency of a plaintiff's complaint. See Guthrie v. Tifco Inds., 941 F.2d 374, 379 (5th Cir. 1991). To survive a motion to dismiss, plaintiffs are required to plead " enough facts to state a claim to relief that it is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Put differently, " [f]actual allegations must be sufficient to raise a non-speculative right to relief." Colony Ins. Co. v. Peachtree Constr. Ltd., No. 09-11106, 647 F.3d 248 (5th Cir. July 19, 2011). " [C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
Title VII requires a Plaintiff to bring her action in federal court within 90 days of receiving the RTS letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). " [F]iling ... an EEOC charge is not a jurisdictional prerequisite but, rather, a " precondition to filing suit in district court." Taylor, 296 F.3d at 379 (quoting Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996)). The 90-day limitations period is strictly construed and acts as a statute of limitations. Taylor, 296 F.3d at 379; Taylor v. Seton-Brackenridge Hosp., 349 Fed.App'x 874, 876 (5th Cir. 2009) (citing Espinoza v. Missouri Pacific R.R. Co., 754 F.2d 1247, 1251 (5th Cir. 1985)). If a plaintiff does not file suit within the prescribed 90-day period, they lose the right to pursue their claims. See Menson v. City of Baton Rouge, 539 Fed.App'x 433, 434 (5th Cir. 2013); see e.g. Brown v. Bank of Am., 331 Fed.App'x 284, 285 (5th Cir. 2009).
Plaintiff claims she received her RTS letter on May 14, 2013. The RTS letter informed her: " Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost." Compl.  at 5 (emphasis in original). The RTS gave Plaintiff sufficient notice of her rights and time limitation. Ms. Brown initiated the instant lawsuit on March 11, 2014 -- 301 days after she allegedly received her RTS letter -- and failed to meet the 90-day timing requirement of Title VII. Therefore, this action is barred by the statute of limitations. The undersigned Magistrate Judge recommends this matter be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to timely initiate suit.
The parties are referred to L. U. Civ. R. 72(a)(3) for the applicable procedure in the event any party desires to file objections to the findings and recommendations herein contained. The parties are warned any such objections are required to be in writing and must be filed within fourteen days of this date. Failure to timely file written objections to the proposed findings, conclusions and recommendations contained in this report will bar an aggrieved party, except upon grounds of plain error, from attacking on appeal unobjected-to proposed factual ...