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Flemings v. University Medical Center

United States District Court, D. Nevada

March 21, 2018




         Pending 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. 25).[1] For the reasons set forth herein, Defendant's Motion to Dismiss is GRANTED.

         I. BACKGROUND

         This case centers upon workplace discrimination and retaliation claims by Plaintiff against his former employer, UMC. (See Compl., ECF No. 7).[2] 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).

         On May 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. ¶ 32).


         Dismissal 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.” Id.

         If the 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).


         In the 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.

         A. Plaintiff's Claims Under Title VII

         Title 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.

         In this 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.[3] Accordingly, Plaintiff had until August 22, 2016, to timely file his complaint with the Court.[4] 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.

         In his 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 ...

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