United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
Walker filed this suit alleging that Statewide Healthcare
Services is liable to her for racial discrimination and
retaliation in violation of Title VII, and infliction of
emotional distress in violation of Mississippi law. Statewide
has moved to dismiss. It contends that Walker's Title VII
claims are too late, her retaliation claim is unexhausted,
and her emotional distress claim fails to satisfy state law.
The familiar motion to dismiss standard applies.
Are the Title VII claims timely?
had to bring her Title VII claims to court within 90 days of
receiving the EEOC's right to sue letter. See Mangum
v. Jackson Pub. Sch. Dist., No. 3:16-CV-594-CWR-LRA,
2016 WL 7077879, at *1 (S.D.Miss. Dec. 5, 2016). Walker's
second amended complaint sets out the following timeline:
The EEOC issued a Notice of Right to Sue on August 1, 2016
but the envelope in which it was mailed is postmarked August
10, 2017. The Notice of Right to Sue was received by
Plaintiff on or about August 13, 2017. On November 9, 2017,
Plaintiff caused her Complaint to be mailed for filing via
Federal Express, Priority Overnight, to the Circuit Court of
Newton County, Mississippi. However, Plaintiff's
Complaint was not delivered and file stamped until November
13, 2017. Plaintiff's Complaint was timely filed as it
was mailed prior to the expiration of ninety (90) day receipt
of the Right to Sue Letter.
contests the date of receipt. It notes that Walker's
previous complaint listed the date of receipt as August 12,
2017, and objects to Walker changing the date in her second
amended complaint. Statewide also observes that August 12 is
more likely to be the true date of receipt because August 13
was a Sunday. Adding to the confusion, Walker's
memorandum brief opposing dismissal says that she received
the letter on August 12-flatly contradicting her second
difference between August 12 and 13 matters a great deal. If
Walker received the EEOC's letter on August 12, her
lawsuit was due November 10. She missed that deadline, so her
Title VII claims would be dismissed. If, however, she received
the letter on August 13, her lawsuit was due November 11-a
Saturday, which extends her filing deadline to the next
business day, November 13. Because Walker met that deadline,
her claims would proceed. See Id. at *1 n.1 (citing
Fed.R.Civ.P. 6(a)(1)(C)); Tolbert v. Mem'l Health
Sys. of E. Texas, No. 9:12-CV-88, 2012 WL 3637146, at *2
(E.D. Tex. July 19, 2012).
as here, “the date on which a right-to-sue letter was
actually received is either unknown or disputed, courts have
presumed various receipt dates ranging from three to seven
days after the letter was mailed.” Taylor v. Books
A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002)
(applying maximum presumption). Given a postmark of August
10, therefore, we must presume that Walker received the
letter between August 13 and August 17. Under any of those
dates, Walker's lawsuit was timely.
parties are reminded that we are at the motion to dismiss
stage, where the allegations in the complaint are taken as
true. Statewide may renew its limitations defense if evidence
obtained during discovery indicates that Walker received the
letter before August 13. E.g., Marshall v.
M-Tek, Inc., No. 3-15-CV-941-CWR-FKB, 2016 WL 7323329,
at *2 n.2 (S.D.Miss. Dec. 15, 2016); Mangum, 2016 WL
7077879, at *1 (examining evidence that the right-to-sue
letter was delivered 13 days after it was dated and 10 days
after it was mailed).
Was the retaliation claim exhausted?
next argues that Walker's Title VII retaliation claim was
not exhausted before the EEOC. E.g., Pacheco v.
Mineta, 448 F.3d 783, 789 (5th Cir. 2006).
Title VII cases, “[a]dministrative remedies are
considered exhausted for any claims which can reasonably be
expected to grow out of the charge of discrimination. Title
VII was not designed for sophisticated litigants and most
complaints are initiated pro se, and therefore
should be construed liberally.” Zhan v. Univ. of
Mississippi Med. Ctr., No. 3:14-CV-777-CWR-FKB, 2015 WL
6511560, at *2 (S.D.Miss. Oct. 28, 2015) (citations omitted).
considering Walker's charge of discrimination, as well as
“the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination, ” the Court does not see that
retaliation issues were presented to the EEOC.
Pacheco, 448 F.3d at 789 (quotation marks and
citation omitted). Walker's response brief contains no
argument to the contrary. Accordingly, this claim is
Does the emotional distress claim satisfy ...