United States District Court, D. Maryland
L. Hollander United States District Judge.
April 11, 2018, Philip O'Briant, the self-represented
plaintiff, filed suit against his former employer. In his
Complaint, captioned as a claim for damages based on
employment discrimination, O'Briant asserts wrongful
discharge on May 23, 2014, based on racial discrimination.
ECF No. 1. He provides a Notice of Right to Sue letter, dated
June 26, 2015, advising him that he had 90 days to file a
lawsuit against his employer in state or federal court.
Id. at 7.
28 U.S.C. § 1915(e)(2)(B)(ii) a case shall be dismissed
“at any time if the court determines that . . . the
action . . . fails to state a claim on which relief may be
granted.” Federal Rule of Civil Procedure 8(a) sets
forth a liberal pleading standard, which requires only a
“ ‘short and plain statement of the claim showing
the pleader is entitled to relief, ' in order to
‘give the defendant fair notice of what ... the claim
is and the grounds upon which it rests.'” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
court is mindful that the pleadings of self-represented
litigants are accorded liberal construction. See Gordon
v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). Moreover,
courts are charged with liberally construing a complaint
filed by a pro se litigant to allow for the development of a
potentially meritorious case. See Hughes v. Rowe,
449 U.S. 5, 9 (1980). But, liberal construction does not mean
a court can ignore a clear failure to allege facts that set
forth a cognizable claim. See Weller v. Department of
Social Services, 901 F.2d 387 (4th Cir. 1990).
under the liberal standard of review for pro se pleadings,
the Complaint cannot procced, because it is clearly
time-barred. See Clarke v. DynCorp Int'l LLC,
962 F.Supp.2d 781, 787 (D. Md. 2013) (concluding that
plaintiff who “failed to file a civil suit during the
90- day period indicated in the right-to-sue letter issued in
response to his … charge of discrimination”
could not thereafter “make claims based on the
allegations in that charge” (citing 42 U.S.C. §
2000e- 5(f)(1)); Ford v. Master Sec. Co., LLC, No.
PWG-15-2220, 2016 WL 1752897, at *3 (D. Md. May 3, 2016).
Once the charge is filed with the EEOC and the employee
receives a right-to-sue letter regarding either a Title VII
claim or an age discrimination claim, the employee has ninety
days to bring his or her civil action against the employer.
42 U.S.C. § 2000e-5(f)(1); 26 U.S.C. § 626(e);
see also Angles v. Dollar Tree Stores, Inc., 494 F.
App'x 326, 328 (4th Cir. 2012).
time limit is not jurisdictional, however. The Fourth Circuit
has repeatedly applied an equitable tolling analysis to the
ninety-day filing requirement set out in 42 U.S.C. §
2000e- 5(f)(1). See Nguyen v. Inova Alexandria
Hosp., 187 F.3d 630, 1999 WL 556446, at *3 (4th Cir.
July 30, 1999) (“[W]e have engaged in a
‘case-by-case examination to determine if an equitable
tolling of the filing period is appropriate.'”
(quoting Harvey v. City of New Bern Police
Dep't, 813 F.2d 652, 654 (4th Cir.1987))); Dale
v. Md. Dep't of Transp., ELH-13-191, 2015 WL 221628,
at *12 (D. Md. Jan. 15, 2015). In calculating the date on
which the period begins to run, the Fourth Circuit has
rejected a mechanical approach or a strict “actual
receipt” rule, and instead has focused on the facts of
each case to determine when receipt occurred. See
Strothers v. City of Laurel, Md., 118 F.Supp.3d 852,
860-61 (D. Md. 2015).
facts are not favorable to O'Briant, who has filed
several employment discrimination actions in this Court in
the recent past. In O'Briant v. Atlas Container
Corp., JFM-16-2616 (D. Md.), his amended complaint was
dismissed, without prejudice, to give him time to complete
administrative proceedings before the EEOC or the Maryland
Human Relations Commission. Id., ECF 4, Order of
September 7, 2016. This led to O'Briant v. Rhodes, et
al., JFM-17-1050 (D. Md.), in which O'Briant sued
EEOC employees based on dissatisfaction with the outcome of
EEOC proceedings against Atlas. The case was dismissed for
lack of jurisdiction on April 24, 2017. Id., ECF 3.
The federal filing deadline for EEOC actions in federal court
was referenced in the Order. Id., ECF 3 at 3. A
third action, O'Briant v. Rhodes, Civil Action
No. RDB-18-855 (D. Md.), also against EEOC employees, was
likewise dismissed on March 30, 2018. The dismissal in that
case also referenced the 90-day deadline for filing a federal
complaint following an unsuccessful EEOC determination.
Id., ECF 3, n. 1.
provides no explanation as to why he ignored the 90-day
deadline for seeking federal review of his employment
discrimination claim. Although equitable tolling may be
considered in certain circumstances, the Court concludes that
O'Briant, who filed employment discrimination cases in
the past, was on ...