United States District Court, D. Nevada
MUNDRE L. FLEMINGS, Plaintiff,
UNIVERSITY MEDICAL CENTER, Defendant.
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE.
before the Court is the Motion to Dismiss, (ECF No. 13),
filed by Defendant University Medical Center
(“UMC” or “Defendant”). Plaintiff
Mundre Flemings (“Plaintiff”) filed a Response,
(ECF No. 24), and Defendant filed a Reply, (ECF No.
For the reasons set forth herein, Defendant's Motion to
Dismiss is GRANTED.
case centers upon workplace discrimination and retaliation
claims by Plaintiff against his former employer, UMC.
(See Compl., ECF No. 7). Plaintiff, an
African-American male, worked as a charge nurse for UMC from
November 2013 until November 2014. (Id. ¶ 2).
During this period, Plaintiff alleges that the Director of
Nursing, Dave Tyrell (“Tyrell”), “subjected
[Plaintiff] to different terms and conditions of employment
and discipline” based on his race, nationality, and
gender. (See Id. ¶¶ 1-9). Specifically,
Plaintiff alleges that Tyrell frivolously disciplined
Plaintiff and prevented him from receiving a promotion.
(Id. ¶¶ 4, 6). As a result of this alleged
discrimination, Plaintiff submitted a Charge of
Discrimination to the Equal Employment Opportunity Commission
(“EEOC”) on October 27, 2014. (Id.
¶ 7). Shortly thereafter, Plaintiff resigned from UMC
and began employment with the Nevada Donor Network
(“NDN”). (Id. ¶ 30).
19, 2016, the EEOC notified Plaintiff that the agency could
not pursue his allegations but advised that he may file suit
within ninety (90) days of receiving the notice. (EEOC
Letter, Ex. B to Mot. to Dismiss, ECF No. 13-2). Plaintiff
subsequently filed his Complaint with this Court on August
29, 2016. In the Complaint, Plaintiff alleges that UMC's
discriminatory and retaliatory actions violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 1981 and
§ 1988, and Nevada common law. (See Compl.
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as a factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “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.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys. Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
instant Motion, Defendant argues that the Court should
dismiss Plaintiff's Title VII claims due to his failure
to file a complaint within ninety (90) days of receiving the
right-to-sue letter from the EEOC. (See Mot. to
Dismiss 1:18-28, ECF No. 13). Additionally, Defendant argues
that the Court should dismiss Plaintiff's remaining
claims for failure to state a claim upon which relief can be
granted. (Id.). The Court will address these
contentions in turn.
Plaintiff's Claims Under Title VII
VII provides that upon dismissing a charge of discrimination,
the EEOC must notify the claimant and inform him that he has
ninety days to bring a civil action. See 42 U.S.C.
§ 2000e-5(f)(1). If a litigant does not file suit within
ninety days “[of] the date EEOC dismisses a claim,
” then the action is time-barred. Payan v. Aramark
Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1121 (9th
Cir. 2007). Generally, courts measure the limitations period
starting on the date on which the right-to-sue notice letter
arrived at the claimant's address of record. See
Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th
Cir.1997). Where the date of actual receipt is unknown,
however, courts estimate the date “based on the date of
EEOC disposition and issuance of notice, with some
compensation for mailing time.” Payan, 495
F.3d at 1122. In the Ninth Circuit, courts apply a
“presumption of approximate receipt, ” which
presumes receipt three days after issuance of the EEOC
right-to-sue notice. Id. at 1125. A plaintiff may
rebut this presumption by providing “evidence
suggesting receipt was delayed beyond the presumed
period.” Id. at 1126.
case, the EEOC issued the right-to-sue letter to Plaintiff on
May 19, 2016. Pursuant to the Ninth Circuit's three-day
presumption, the approximated delivery date of the EEOC
notice is therefore May 23, 2016. Accordingly, Plaintiff had
until August 22, 2016, to timely file his complaint with the
Court. Plaintiff filed the initial complaint in
this action on August 29, 2016-one hundred and two (102) days
after the EEOC issued its notice. Plaintiff's claims
under Title VII are therefore outside the proscribed statute
of limitations period.
Response, Plaintiff argues that he was “well within his
90-days” and that he “is not responsible if the
letter was received later than the date on the actual
letter.” (Resp. 2:21- 25, ECF No. 24). This blanket
assertion without any corroborating evidence is insufficient
to rebut the three-day presumption. See Payan, 495
F.3d at 1127. Furthermore, while the Court recognizes
Plaintiff's pro se status in this matter and therefore
construes his filings liberally, the Ninth Circuit has made
clear that a party's pro se status does not afford
“different treatment under these standards.”
Id. Accordingly, as Plaintiff has failed to provide