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Roberts v. AM. Neighborhood Mori. Acceptance Co.

United States District Court, D. Maryland

September 6, 2017

JARRATT ROBERTS, Plaintiff
v.
AM. NEIGHBORHOOD MORI. ACCEPTANCE CO. Defendant

          MEMORANDUM

          JAMES K. BREDAR, UNITED STATES DISTRICT JUDGE

         Plaintiff Jarratt Roberts filed this lawsuit on January 18, 2017 alleging that Defendant American Neighborhood Mortgage Acceptance Company created a hostile work environment in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e el seq., and retaliated against Plaintiff in violation of 42 U.S.C. §1981. Defendant now brings this Partial Motion to Dismiss Plaintiffs Title VII claims (ECF. No. 15) on the grounds that this action was filed more than 90 days after Plaintiff received a letter from the Equal Employment Opportunity Commission informing him of his right to sue. See 42 U.S.C. §2000e-5(f). No hearing is necessary to resolve the motion. See Local Rule 105.6. The motion will be DENIED.

         I. Background[1]

         Jarratt Roberts began working for American Neighborhood Mortgage Acceptance Company ("ANMAC") in late 2012. (Pl's Compl. ¶ 1, ECF. No. 1.) Roughly one year into his employment, ANMAC ''required Roberts to commence working" in a new capacity. (Id. ¶ 31.) Attendant to this change in position, ANMAC required Roberts to sign a "Loan Originator Agreement, " which contained an arbitration provision. (Pl's Opp'n to Def.'s Mot. Partial Dismissal Ex. 1 ¶9, ECF. No. 20-2.) This provision stipulated that ten days prior to the initiation of any lawsuit "the party intending to initiate such a claim" will provide the other party "specific written demand [and] a statement of the grounds upon which such demand is sought." (Id.) If the parties are not able resolve the issue, then the dispute "shall be resolved through binding arbitration, " though the employee is allowed to file a complaint with a state agency. (Id.) Both parties are supposed to share the costs of arbitration, but if "an injunction is issued in favor of the Company, [the employee] will reimburse the Company for all legal fees and costs incurred relating to the injunction." (Id.)

         After enduring more than a year of discriminatory and offensive behavior, Roberts was "laid off' in January 2014, and filed a charge on February 19, 2014 with the Equal Employment Opportunity Commission ("EEOC") alleging a hostile work environment. (Pl's Compl. ¶ 3, 62; Def.'s Mot. Partial Dismissal Ex. 1, ECF No. 15-1.) On September 29, 2016, the EEOC issued Roberts a notice of right to sue. (Def.'s Mot. Partial Dismissal Ex. 2, ECF. No. 15-3.) Under Title VII of the Civil Rights Act, an employee who wishes to sue his employer must bring an action within 90 days of such notification. 42 U.S.C. §2000e-5(f). On October 19, 2016, Mr. Roberts submitted a written demand for monetary relief to ANMAC in accordance with the arbitration provision in the Loan Originator Agreement. (Pl's Compl. ¶ 6; Pl's Opp'n to Def.'s Mot. Partial Dismissal Ex. 2 ¶ 9.) On November 30, 2016, more than 10 days after submitting a written request to ANMAC, and 59 days after receiving the right to sue letter, Mr. Roberts filed a demand before the American Arbitration Association ("AAA"). (Pl's Compl. ¶ 7.) On December 16, 2016, Mr. Roberts, through counsel, sent a copy of the demand for arbitration to the State Department of Assessment and Taxation, which served as ANMAC's designated agent for service of process. (Pl's Opp'n to Def.'s Mot. Partial Dismissal Ex. 3 ¶9, ECF. No. 20-4.)

         Meanwhile, AAA had been unable to contact to ANMAC. AAA sent ANMAC a letter on December 3, 2016 notifying them of Plaintiff s demand for arbitration and requesting payment of ANMAC's portion of the arbitration filing fees. (See Pl's Opp'n to Def.'s Mot. Partial Dismissal Ex. 4, ECF. No. 20-5 (referring to letter dated December 3, 2016)). On December 21, AAA sent a letter "[v]ia email" to Roberts' counsel and "[v]ia mail" to Joseph Panebianco, the President of ANMAC, stating that AAA had not received payment of ANMAC's share of the filing fee. (Id.) Nearly one month later, on January 17, 2017, AAA again sent notification to Roberts' counsel and ANMAC's President stating that ANMAC had yet to respond to AAA. (Id. (letter dated January 18, 2017); Pl's Opp. to Def.'s Mot. Partial Dismissal, Ex. 8, ECF. No. 20-9 (email dated January 17, 2017)). The next day, 21 days after the expiration of Roberts' 90 day filing deadline, Mr. Roberts filed his complaint in this court.

         That complaint includes causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., as well as under 42 U.S.C. §1981. Defendant now brings this motion to dismiss the Title VII claims on the grounds that Plaintiff filed this action more than 90 days after receiving his right to sue letter.

         II. Nature of the Motion

         As a preliminary matter, this Court must decide whether compliance with the 90 day limitation under 42 U.S.C. §2000e-5(f) is necessary for the Court to retain subject matter jurisdiction, or whether the 90 day limitation is a mere condition precedent to filing, more akin to a statute of limitations. The Court faces this issue because the Defendant styled its motion as one challenging the Court's subject matter jurisdiction under Rule 12(b)(1). See Def.'s Mot. Partial Dismissal at 1 (ECF. No. 15). The Plaintiff, however, contends that the appropriate vehicle for this defense is a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted, and asks that the Court deny the Defendant's motion on the ground that it is pursued under the wrong subsection of Rule 12. For the foregoing reasons, the Court finds that the 90 day limitation is not jurisdictional in character and the Defendant's argument is more properly heard pursuant to Rule 12(b)(6). However, rather than deny the motion on the ground that the motion was presented pursuant to the wrong rule, the Court will consider the motion under Rule 12(b)(6), finding that the parties have well argued their positions in that alternative context as well.

         Title VII sets out various administrative hurdles to filing a lawsuit in federal court. See 42 U.S.C. § 2000e-5. Among these hurdles are jurisdictional prerequisites as well as conditions precedent to filing a suit. Initial filing with the EEOC and receiving a notice of right to sue are jurisdictional prerequisites. See Davis v. North Carolina Dep't of Correction, 48 F.3d 134, 140 (4th Cir. 1995). The 180/300 day limitation for tiling a charge with the EEOC and the 90 day limitation for filing a suit after receiving a notice of right to sue are requirements of a different character. In Zipes v. Trans World Airlines, Inc.. 455 U.S. 385 (1982), the Supreme Court held that the requirement that a plaintiff file a complaint with the EEOC within 180/300 days of the alleged discriminatory conduct is non-jurisdictional. 455 U.S. at 398. In Zipes, the Court also noted that earlier cases seemed to treat the 90 day filing requirement, at issue in the present case, as a condition precedent and not as a jurisdictional prerequisite. See 455 U.S. at 389 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 811 n.9). In Mohasco Corp. v. Silver, the Court stated that the defendants had not raised the plaintiffs failure to commence their action within 90 days as a defense, and thus the action was not dismissed on those grounds. 447 U.S. 811 n.9. If filing within 90 days was a jurisdictional requirement, then the defendant's failure to raise the issue would be inconsequential. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety").

         The Fourth Circuit and this Court have extrapolated from Zipes that the 90 day limitation is non-jurisdictional by means of a syllogism. Major premise: "jurisdictional provisions are not subject to equitable tolling." Dale v. Maryland Dep't of Transp, No. ELH-13-191, 2015 WL 221628, at * 12 (D. Md. 2015); see also Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000) ("[T]hese principles [of equitable tolling] may not apply to overcome a jurisdictional bar."). Minor premise: the 90 day limitation is subject to equitable tolling. See Dale, 2015 WL 221628 at * 13 (citing cases). Conclusion: the 90 day limitation is not jurisdictional. See Laber v. Harvey, 438 F.3d 404, 429 n. 25 (4th Cir. 2006) (citing Zipes) ("If equitable tolling applies [to the 90 day limitation], which it does, the time limits are not jurisdictional, but are rather in the nature of a statute-of-limitations defense.").

         Previous decisions from the Fourth Circuit and this Court have admittedly suggested the 90 day filing requirement is jurisdictional. In Davis v. North Carolina Department of Correction, the Fourth Circuit characterized the general question of administrative exhaustion under Title VII as "jurisdictionar but did not squarely address the specific question of whether the 90 day requirement was jurisdictional. See 48 F.3d at 138 ("With these restrictions on federal court jurisdiction over Title VII claims in mind . . . ." (emphasis added)). Earlier, in Staton v. Newport News Cablevision, 769 F.2d 200 (4th Cir. 1985), the Fourth Circuit had stated that failure to file a complaint within 90 days "defeats the jurisdiction of the district court." 769 F.2d at 201. In McCleary-Evans v. Maryland Department of the Environment, No. JKB-12-2928, 2013 WL 1890734 (D.Md. 2013), this Court stated that if a Title VII plaintiff misses the 90 day deadline, "then the suit must be dismissed for lack of subject-matter jurisdiction." 2013 WL 1890734 at * 1. But as the Supreme Court stated in Zipes, "[a]lthough our cases contain scattered references to the timely-filing requirement as jurisdictional, the legal character of the requirement was not at issue in those cases." 455 U.S. at 395. In Davis, the "restrictions on federal court jurisdiction" that the court contemplated were the requirements that a plaintiff first avail themselves of a state law claim (in a so-called "deferral system"). Davis, 48 F.3d at 137-38. In Staton and McCleary the immediate issue was whether the plaintiff had timely filed within the 90 day window after receiving a notice of right to sue, but there was no question of equitable relief in either case. In McCleary. the question was whether the plaintiff could avail herself of the "mailbox" rule and "rest[] upon her allegations" that she received her right to sue letter within the 90 day period, even if the letter was issued outside of the 90 day period. 2013 WL 1890734 at * 1. In Staton, the plaintiff claimed that an "administrative error" caused them to file 111 days after receiving his right to sue letter. 769 F.2d at 200. In cases such as these, a passing reference to the jurisdictional character of this requirement should not be considered a definitive pronouncement. Furthermore, in the more recent case of Dale v. Maryland Department of Transportation, Judge Hollander eloquently described how cases after Staton have abrogated its holding that the failure to timely file "defeats the jurisdiction of the district court." 2015 WL 221628 at * 11-13 (quoting Staton, 769 F.2d at 200).

         Accordingly, the Defendant's contention that the Plaintiff failed to timely file his complaint within 90 days after receiving a right to sue letter is a non-jurisdictional objection and one properly brought under Federal Rule of Civil Procedure 12(b)(6), not 12(b)(1). Considering the state of the law, however, the Court finds Defendant's styling of the motion as a Rule 12(b)(1) challenge to subject matter jurisdiction is a reasonable mistake. Instead of denying the motion on the ground that it was improperly characterized, this Court will consider the motion as one brought under Rule 12(b)(6) for failure to state a claim. See Neal v. Residential Credit Solutions, Inc., No. JKB-11-3707, 2012 WL 1453597, at *1 (D. Md. 2012) (considering a 12(b)(6) motion under 12(b)(1)). Plaintiffs suggestion that this Court "lacks the discretion to convert [a Rule] 12(b)(1) motion to any other kind of motion, " is without support or merit. Pl's Opp'n to Def.'s Mot. Partial Dismissal 5.[2]

         III. Stan ...


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