MARY GORDON BAKER, Magistrate Judge.
Plaintiff filed the instant employment action on September 18, 2018. (Dkt. No. 1.) Currently before the Court are Motions for Summary Judgment filed by both parties, limited to the issue of whether equitable tolling should apply to excuse the untimely filing of Plaintiff's complaint. (Dkt. Nos. 32; 33.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to the United States Magistrate Judge. For the reasons stated herein, the undersigned recommends that equitable relief be granted here; Plaintiff's Motion for Summary Judgment (Dkt. No. 33) be granted; and Defendant's Motion for Summary Judgment (Dkt. No. 32) be denied.
Plaintiff was formerly employed by Defendant, the Boeing Company, Inc. (Dkt. Nos. 1; 14.) Plaintiff alleges that he worked "in various engineering-related jobs for Defendant until he developed a disability imbalance that precluded him from working in a non-office environment." (Dkt. No. 14 at 1.) Plaintiff alleges that despite his requests for reassignment, he was never reassigned. (Id.) Defendant eventually terminated Plaintiff's employment. (Id.) Prior to filing suit in this Court, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Id. at 2.) The EEOC issued Plaintiff a "Right to Sue" letter on June 13, 2018, which Plaintiff received on June 16, 2018. (Id.) The letter stated that any lawsuit arising from Plaintiff's charge must be filed within 90 days of Plaintiff's receipt of the instant notice. (Id.) The 90-day period expired Friday, September 14, 2018. (Id.) Plaintiff filed his complaint, pro se, on Tuesday, September 18, 2019. (Dkt. No. 1.) On December 11, 2018, Plaintiff filed an Amended Complaint, through counsel. (Dkt. No. 14.)
On February 26, 2019, Plaintiff moved for a hearing on the issue of the original complaint's untimely filing. (Dkt. No. 26.) Plaintiff asked that the Court decide the "preliminary issue" of whether equitable tolling applies to the filing of his complaint. (Id.) The Court denied Plaintiff's request for a hearing and instead bifurcated discovery to allow the parties two weeks to engage in discovery limited to the issue of equitable tolling. (Dkt. No. 27.) The Court directed the parties to file dispositive motions on this specific issue by March 21, 2019. (Id.) During the limited discovery period, Plaintiff gave deposition testimony on facts relevant to the issue of equitable tolling, and the parties obtained the audio recording of Plaintiff's phone call to the Charleston Federal Courthouse (the "Courthouse") on September 7, 2019. Both parties filed dispositive motions on the issue on March 21, 2019. (Dkt. Nos. 32; 33.)
Their motions establish the following facts, which are relevant to the timing of the filing of Plaintiff's complaint in this Court:
Plaintiff left the following voicemail in response:
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are `material' when they might affect the outcome of the case, and a `genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "`the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Under Title VII, a claimant must file a civil action within 90 days of the date of his receipt of a duly issued notice of right to sue from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); see also Watts-Means v. Prince George's Family Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993) ("Title VII plaintiffs have a ninety-day period in which to file their claims after the EEOC has given them a right-to-sue letter.") (citing 42 U.S.C. § 2000e-5(f)(1)). If suit is not brought within the statutory time period, the case is subject to dismissal. See Harper v. Burgess, 701 F.2d 29, 30 (4th Cir. 1983) (affirming dismissal of a lawsuit brought pursuant to Title VII because the plaintiff did not file suit within the 90-day limitation period required by 42 U.S.C. § 2000e-5(f)).
The 90-day limitations period to file a judicial complaint is subject to equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 439 (1990) (noting that the Supreme Court has interpreted Title VII's requirement that suit be filed within 90 days of receipt of notice of a final administrative decision (or the rightto-sue letter) "to be subject to tolling in appropriate circumstances") (citing Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983)); Laber v. Harvey, 438 F.3d 404, 429 n.25 (4th Cir. 2006). "Plaintiffs are entitled to equitable tolling only if they show that they have pursued their rights diligently and extraordinary circumstances prevented them from filing on time." Raplee v. United States, 842 F.3d 328, 333 (4th Cir. 2016). Equitable tolling is available only in "those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted). The plaintiff bears the burden of establishing the elements of equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Here, Plaintiff argues the Courthouse's closure due to Hurricane Florence is an "extraordinary circumstance" sufficient to warrant equitable tolling here. (Dkt. No. 33 at 9.) Plaintiff contends that the audio recording establishes that "he wanted and intended to file timely," but was prevented by the Courthouse closure. (Id.) Defendant, however, argues the evidence establishes that Plaintiff did not diligently pursue his rights during the 90-day period, and therefore, equitable tolling should not apply. (Dkt. No. 32 at 6.) According to Defendant, Plaintiff "sat on his rights" because he never attempted to file his complaint by mail or fax, and he waited an additional day following the Courthouse's reopening to file his lawsuit. (Id.)
Plaintiff responds that as a pro se litigant, he was not aware he could file his complaint by mail or fax. (Dkt. No. 33 at 1.) Plaintiff asserts that the pro se section of the Court website did not include any references to filing a complaint by mail or fax, and Plaintiff assumed he had to file the complaint in person. (Id. at 1-2.) He further notes that the Court clerk told him he could file the complaint in person during his September 7, 2019 phone call, and she did not mention the options of filing by mail or fax. (Id. at 2.)
Upon review, the undersigned recommends that equitable relief be granted here and this action be allowed to proceed. The record establishes that Plaintiff called the Courthouse on Friday, September 7, 2019, and sought advice from the Court clerk for filing his complaint, as described above. The Courthouse was then closed from Tuesday, September 11, 2019 through the date Plaintiff's complaint was due, September 14, 2019, due to the evacuation for Hurricane Florence. Plaintiff called the Court on Wednesday, September 12, 2019 and heard a recording that the Courthouse was closed "until further notice." Plaintiff left a voicemail expressing his intent to file his claim "this week," and stated that he could not do that because the Courthouse was closed. Given the materials available on the pro se section of the Court website, Plaintiff believed he needed to file his complaint in person.
While Defendant argues that Plaintiff should have faxed the Complaint to Court while the Courthouse was closed, the undersigned finds little merit to that argument. (Dkt. No. 32 at 9.) In so arguing, Defendant cites Local Rule 5.02, which describes the procedure for filing nonelectronic documents between 4:30pm and midnight for documents that are due that same day. (Dkt. No. 32 at 9.) Local Rule 5.02 explains that the party seeking to file documents can fax the documents to a designated fax number. Notably, the Rule states that "such emergency filings can be accomplished if the party making the request contacts the clerk of court during the hours of 8:30 am to 4:30 pm to make arrangements to accept the after-hours filing." Local Civ. Rule 5.02 (D.S.C.). As an initial matter, it is not clear if Local Rule 5.02 applies to emergency situations where the Courthouse is closed for an entire day, such as for a hurricane evacuation. Further, it is unclear how Plaintiff could have complied with the Rule while the Courthouse was closed from September 11-14, when the Rule requires that the "party making the request contacts the clerk of court during the hours of 8:30 am to 4:30 pm to make arrangements to accept the after-hours filing."
Plaintiff called the Court on Sunday, September 16, 2019, and Monday, September 17, 2019, to find out the date the Courthouse would reopen. Plaintiff learned that the Courthouse was reopened on Monday afternoon, and he filed the Complaint in person on Tuesday, September 18, 2019. Plaintiff avers that he waited until Tuesday because he believed there was not enough time for him to reach the Courthouse on Monday afternoon to file the Complaint in person.
Based on the above facts, the undersigned finds that the Courthouse closure due to a hurricane evacuation is the type of extraordinary circumstance that warrants equitable tolling and that Plaintiff's recorded phone calls to the Court establish his diligent attempts to pursue his rights.
Defendant asserts that the caselaw within this district supports finding equitable tolling should not apply in this instance. (Dkt. No. 32 at 7-11.) However, the cases cited by Defendant can be distinguished from the instant facts, as discussed further below.
As an initial matter, none of the cases cited by Defendant involve a Courthouse closure. In most of the cases cited by Defendant, the plaintiff did not allege any attempt to comply with the 90-day deadline prior to its expiration. For example, in Johnson v. Bryant, No. CA 0:11-537-JFA-PJG, 2012 WL 2935254, at *2 (D.S.C. July 19, 2012), the plaintiff argued she was entitled to equitable relief because there was a "disputed issue of fact as to when she received the right to sue notice from the EEOC." The court found that Plaintiff was bound to the date of receipt alleged in her verified complaint and denied her request for equitable relief. Id.
Similarly, in Harvey v. City of New Bern Police Dep't, the plaintiff's wife took delivery of the EEOC right to sue letter and shared the letter with her husband six days later. 813 F.2d 652, 653 (4th Cir. 1987). The plaintiff ended up filing a complaint ninety-one days after his wife had received the letter. Id. The court found that the plaintiff failed to show he did not have "sufficient time within which to act," and that "these are not such facts as would support equitable tolling." Id. at 654.
In Anderson v. Greenville Health Sys., the plaintiff claimed he was entitled to equitable relief because "he was misled and confused by the initial disposition of the EEOC regarding his claims." No. 6:16-cv-01051-MGL, 2016 WL 6405751, at *2 (D.S.C. Oct. 31, 2016), aff'd, 687 F. App'x 281 (4th Cir. 2017). The court found that equitable relief was not warranted because the plaintiff failed "to provide the Court with specific allegations of how he was purportedly induced or tricked into allowing the filing deadline to pass as to his claims." Id.
In Workman v. Bill M., the plaintiff argued "equitable tolling is appropriate because he has been confined in a jail without a law library, has `no prior lawyer schooling,' only has a tenthgrade education, does not have a lawyer, and `never filed legal paperwork till the day [he] turn[ed] in the following suit.'" No. 6:17-cv-00972-RBH, 2017 WL 4843968, at *3 (D.S.C. Oct. 26, 2017), aff'd, 717 F. App'x 278 (4th Cir. 2018). The court found such allegations failed to demonstrate "extraordinary circumstances that warrant equitable tolling." Id.
Defendant further asserts that the cases where courts in this district have found equitable tolling appropriate are not analogous to the instant facts, citing Holmes v. McCarthy, No. 317-cv-000682-MBS-KDW, 2017 WL 5495782, at *5 (D.S.C. Oct. 4, 2017), adopted by, 2017 WL 5484045 (D.S.C. Nov. 15, 2017), and Middleton v. Colvin, No. 815-cv-00299-BHH-JDA, 2015 WL 5916209, at *3 (D.S.C. Oct. 8, 2015). In Holmes, the plaintiff "investigated the appropriate method for filing and reached out to the Clerk of Court as the court's website indicated she could. Upon advising the Clerk of Court's representative of her apparent transportation issues, she was advised that she should fax specific pages of her filing to the Clerk of Court's fax number." 2017 WL 5495782, at *5. The plaintiff faxed certain documents on the last day of the 90-day period. Id. She attempted to hand-deliver the hardcopy of her filings that same day, but she arrived after the courthouse had closed. Id. The plaintiff returned to the courthouse the following business day to file her documents, "when able to have family transport" her there. Id.
The Holmes court noted that "one of the situations in which equitable tolling has been permitted is when a `claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period' or when `tricked by his adversary's misconduct into allowing the filing deadline to pass.'" Id. (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The court found that the plaintiff's actions were "akin to `filing a defective pleading during the statutory period[.]'" and found equitable relief was therefore appropriate. Id.
In Middleton, the plaintiff mailed in her complaint to the court on January 14, prior to the January 20 deadline and the clerk of court returned it to her for lack of filing fee on January 14. 2015 WL 5916209, at *3. The plaintiff mailed her complaint again on January 20, and the court received it on January 22. Id. The court found that "fairness concerns" warranted equitable tolling. Id. Specifically, the court noted that the plaintiff "clearly attempted to timely commence this civil action but was mistaken as to the process of opening a case. Once notified of her deficiencies, Plaintiff quickly re-filed her Complaint and commenced this action. Plaintiff's attempt to make a timely filing was hampered by a mistake in procedure . . ." Id.
Plaintiff cites the recent case, Reese v. S.C. Dep't of Mental Health, No. 3:16-cv-3491-JFA-PJG, 2018 WL 4957403, at *3 (D.S.C. June 27, 2018), adopted by, 2018 WL 4677714 (D.S.C. Sept. 28, 2018), as further support for his interpretation of Holmes and Middleton. (Dkt. No. 32 at 8.). In Reese, the plaintiff "waited until the very last day of the limitations period to file his Complaint, and when instructed to correct certain deficiencies [by a clerk], elected not to do so immediately to ensure his Complaint was filed by the deadline. Instead, he let another two days elapse before returning to the clerk's office to file his Complaint and other documents, even though he had been advised of the 90-day limitations period in his right-to-sue letter." No. 3:16-cv-3491-JFA-PJG, 2018 WL 4957403, at *3 (D.S.C. June 27, 2018), adopted by, 2018 WL 4677714 (D.S.C. Sept. 28, 2018). The plaintiff argued he was entitled to equitable relief because "the clerk of court's instructions were misleading"; "he does not have legal education; he has a job and is busy; and he had to make some corrections to the Complaint before filing it." 2018 WL 4677714, at *4.
The court found that plaintiff failed to establish that he was misled by the clerk when she told him that fixing and filing his complaint would not jeopardize his deadline. The court cited Holmes and Middleton for the proposition that "a party has `actively pursued' his or her remedies when the party attempted to file his or her complaint within the appropriate window of time." Id. at *3. The court ultimately found that the plaintiff failed to show that an extraordinary circumstance prevented him from filing on time or that he "actively pursued his judicial remedies by filing a defective pleading during the statutory period." Id. at *5 (emphasis in original). Notably, in the underlying Report and Recommendation, the Magistrate Judge found that even if equitable relief were granted, two of the plaintiff's claims were time-barred for the independent reason that he failed to file his EEOC charges within the 300-day period imposed by Title VII and the remaining claim failed on the merits. 2018 WL 4957403, at *3.
Defendant appears to rely on Reese, Holmes, and Middleton to argue that a plaintiff must file something within the applicable deadline to constitute an attempt to file within the deadline, and that absent such an attempt, equitable relief is not appropriate. The undersigned does not find that the caselaw mandates such a narrow interpretation. (Dkt. No. 32 at 8.) Rather, the undersigned finds that the Courthouse closure due to a hurricane evacuation is the type of extraordinary circumstance that warrants equitable tolling and that Plaintiff's recorded phone calls to the Court establish his diligent attempts to pursue his rights. Thus, the undersigned recommends equitable relief be granted in this instance and that this matter be allowed to proceed. See Raplee, 842 F.3d at 333.
For the foregoing reasons, the undersigned recommends that equitable relief be granted and this matter proceed; that Plaintiff's Motion for Summary Judgment (Dkt. No. 33) be
AND IT IS SO RECOMMENDED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge.
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
