Opinion
Case No. 02 C 7933.
July 1, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Arminta Clark filed a pro se complaint against her former employer, Defendant Residents' Journal, alleging that it discriminated against her based on her religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Presently before us is Defendant's motion to dismiss for failure to state a claim because the statute of limitations governing Plaintiff's claim has tolled. For the reasons set forth below, we grant Defendant's motion.
For the purposes of a motion to dismiss, we must accept all well-pled allegations as true and construe the complaint in a light most favorable to the plaintiff. See MCM Partners, 62 F.3d 967, 972 (7th Cir. 1995).
Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") alleging religious discrimination, and received a Notice of Right To Sue ("right-to-sue letter") on August 2, 2002. Plaintiff's right-to-sue letter plainly states in bold, capital letters that claimants must sue the respondent(s) "WITHIN NINETY (90) DAYS OF YOUR RECEIPT OF THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST." Although she was aware that there was a time limit for filing her complaint, Plaintiff believed that she had three months, or until November 2, 2002, in which to file her complaint. Plaintiff speculated that she may have had even longer than November 2,2002 in which to file because she was unaware that weekends counted toward the 90-day period.
The traditional presumption is that the right-to-sue letter is received five days after it is issued. See Loyd v. Sullivan, 882 F.2d 218 (7th Cir. 1989). However, the Seventh Circuit has held that in certain cases, the 90-day period does not commence until the plaintiff actually obtains physical possession of the right-to-sue letter issued by the EEOC. See Houston v. Sidley Austin, 185 F.3d 837, 839 (7th Cir. 1999) (citations omitted). Because Plaintiff admits receiving the right-to-sue letter on August 2, 2002, see Clark Aff. ¶ 1, she therefore had constructive notice beginning on that date. See Luttrell v. O'Connor Chevrolet, Inc., 2001 WL 1539045 at *2 (N.D. Ill. 2001).
Plaintiff unsuccessfully sought free legal assistance prior to first attempting to file her complaint. She attempted to file her complaint in federal court on October 25, 2002, but an employee of the Office of the Clerk informed her that her complaint was incomplete because she needed to complete the jurisdictional component. The clerk told her that she "had plenty of time" to make the correction and file her complaint. Plaintiff subsequently attempted to secure legal assistance from Vista Legal Services to complete her complaint, but was again unsuccessful. On October 29, 2002, and October 30, 2002, Plaintiff became ill and was confined to her bed. She did not file her complaint on either day. On October 31, 2002, Plaintiff took her daughter to a dental appointment. She did not file her complaint on that day. Plaintiff filed her complaint on November 1, 2002 — 92 days after receiving her right-to-sue letter.
Plaintiff claims this appointment was for her daughter's toothache and that if she had to reschedule, her daughter might have spent several more weeks without dental care. See Pl. Mem. in Opp. to Def. Mot. to Dismiss at 7.
II. ANALYSIS
A. Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is to decide the adequacy of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a motion to dismiss, we must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in the plaintiff s favor. See MCM Partners, Inc. v. Andrews-Bartlett Assoc., Inc., 62 F.3d 967,972 (7th Cir. 1995), aff'd 161 F.3d 443 (7th Cir. 1998), cert. denied 528 U.S. 810 (1999). Therefore, a complaint should not be dismissed "unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Defendant alleges that Plaintiff cannot state a claim because the statute of limitations has tolled. Title VII requires a plaintiff to file suit in federal court within 90 days of receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The 90-day filing period may be waived or equitably tolled in certain situations. See Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982); See also Baldwin Cty. Welcome Cir. v. Brown, 466 U.S. 147, 104 S.Ct. 1723 (1984) (per curiam). Equitable tolling is appropriate where the claimant has actively pursued her judicial remedies or has been induced or tricked into allowing the filing deadline to pass. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58 (1990). The Seventh Circuit has interpreted the Supreme Court's opinion in Baldwin County Welcome Center as suggesting "that equitable tolling is appropriate where the plaintiff is mislead by the defendant or notified improperly of her rights by the court." Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932, 934 (7th Cir. 1988). The Seventh Circuit has further held that when the plaintiff has made a good faith error or has been prevented in some extraordinary way from filing her complaint on time, equitable tolling is appropriate. See Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312 (7th Cir. 1984) (citation omitted).
B. Discussion
As an initial matter, we conclude that Plaintiff failed to file her complaint in a timely manner. Plaintiff claims she was never told about the 90-day requirement. See Clark Aff. ¶¶ 18-19. To the contrary, Plaintiff's right-to-sue letter, which is attached to the complaint, plainly states in bold, capital letters that claimants must sue the respondent(s) "WITHIN NINETY (90) DAYS OF YOUR RECEIPT OF THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST." Although Plaintiff received her right-to-sue letter on August 2, 2002, she did not file her complaint until November 1, 2002 — 92 days after her receipt of the letter.
Plaintiff contends that she was mislead by an employee of the Office of the Clerk when she attempted to file her complaint on October 25, 2002, five days before the expiration of the 90-day deadline. On that day, a clerk purportedly informed her that the Office of the Clerk would not accept her complaint until she circled the jurisdictional component of her complaint. The clerk allegedly told Plaintiff that she "had plenty of time" to make the correction and file her complaint. See Clark Aff. ¶ 13. In support of her contention, Plaintiff cites Scary v. Philadelphia Gas Works, 202 F.R.D. 148, 153 (E.D. Pa. 2001), in which the clerk of court incorrectly informed the pro se plaintiff that he had "done everything required of him," even though he had not yet paid the filing fee. The Scary court allowed equitable tolling, finding that the clerk's statement was untrue and had induced plaintiff to file late. See id. Scary is distinguishable. Here, Plaintiff has not alleged that the statements of the clerk were untrue. Indeed, the clerk here may have told Plaintiff the truth by asking her to complete the jurisdictional basis section of her complaint. Furthermore, we cannot find the clerk's alleged statement that plaintiff "had plenty of time" to circle a jurisdictional statute of the complaint misleading. At the time the clerk informed Plaintiff of her remaining duty, Plaintiff still had five days to file her complaint. We do not conclude that the clerk's statement could be construed as instructing the Plaintiff that the ninety-day limitation was inapplicable.
A court may grant equitable tolling where the claimant has "actively pursued his judicial remedies," Irwin, 498 U.S. at 96, and "for situations in which the claimant has made a good faith error." Jones, 744 F.2d at 1314. For example, equitable tolling is justified where a plaintiff timely files a complaint, but files it in the wrong court. See Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965). Plaintiff in this case did not timely file in the wrong court. In fact, Plaintiff did not timely file at all. Although she brought the complaint into the clerk's office on the 85th day, she had not completed it. Plaintiff did not, therefore, actively pursue a judicial remedy.
Plaintiff further argues that extraordinary circumstances prevented her from filing her complaint after her visit to the Office of the Clerk on October 25, 2002. Those extraordinary circumstances consist of her illness on the 89th and 90th days, as well as her daughter's dental appointment on the 91st day. The threshold necessary to trigger equitable tolling is very high. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (holding equitable tolling inappropriate even where attorney's father died three weeks prior to the deadline). Here, Plaintiff's sudden illness and her daughter's dental appointment do not meet the high threshold requirement necessary to invoke the doctrine of equitable tolling. One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence. See Baldwin County Welcome Ctr., 466 U.S at 151. Plaintiff could have filed her complaint prior to her illness or made arrangements to file on the days she was ill. Furthermore, a dental appointment does not excuse her absence from the courthouse on the ninety-first day. Although Plaintiff was only two days late in completing the complaint, the length of the delay in filing has no bearing on this analysis; equitable tolling will apply only to exceptional cases, regardless of how minimal the delay in filing. See Marcello, 212 F.3d at 1010.
Plaintiff's incorrect assumption that only business days counted towards the ninety-day limitation, as well as her unsuccessful attempts to obtain free legal services, do not amount to goof faith error. Equitable tolling "permits plaintiff to avoid the bar of the statute of limitations if, despite all due diligence, he is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter Health Care Corp., 920 F.2d 446, 451 (7th Cir. 1990) (emphasis added), cert. denied 111 S.Ct. 2916 (1991).
Finally, Plaintiff asks that we equitably toll the statute of limitations because of her pro se status. A pro se complaint is held to "less stringent standards than formal pleadings drafted by lawyers." See Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). However, Plaintiff's pleadings are not at issue here. The Supreme Court has held that a plaintiff's pro se status at the time of filing does not automatically or independently justify equitable tolling. See Baldwin County Welcome Ctr., 466 U.S. at 152. Moreover, courts in the Northern District have held that "the time limit is not flexible, even for pro se litigants." Davis v. Browner, 113 F. Supp.2d 1223, 1226 (N.D. Ill. 2000); see also Wilson v. Doctors Hosp. of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill. 1996) ( pro se plaintiff cannot file claim beyond statutory 90-day period without specified basis for equitable tolling). In consideration of the established law, Plaintiff's pro se status will not alter our decision to not equitably toll the statute of limitations in this case. III. CONCLUSION
While we acknowledge the difficulties faced by litigants without the resources to pay for legal assistance, plaintiff has not pled the exceptional circumstances required to justify equitable tolling.
For the foregoing reasons, we grant Defendants' motion to dismiss. It is so ordered.