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DAVIS v. BROWNER

September 19, 2000

LILLIE ANN DAVIS, PLAINTIFF,
V.
CAROL M. BROWNER, ADMINISTRATOR U.S. ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Alesia, District Judge.

MEMORANDUM OPINION AND ORDER

Before the court is defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the court grants the defendant's motion to dismiss.

I. BACKGROUND

Plaintiff Lillie Ann Davis ("plaintiff"), an African-American woman, brings this action against defendant Carol M. Browner, Administrator of the U.S. Environmental Protection Agency ("defendant"), under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. In her complaint, plaintiff — proceeding pro se — alleges that she was discriminated against because of her race and was also retaliated against after she complained about the racial discrimination she allegedly suffered.

In her reply to the defendant's motion, plaintiff claims that she attempted to file her complaint sometime after August 12, 1999 — after receiving the July 30, 1999 decision. However, according to plaintiff, when she originally tried to file her complaint a person in the clerk's office told her that she needed a right-to-sue letter.*fn2 Plaintiff then apparently sent a letter requesting a right-to-sue letter. On September 12, 1999, plaintiff received a letter from the EPA, dated September 8, 1999, which reiterated that the EEOC had affirmed the Final Agency Decision and dismissed her claim. Plaintiff has attached this letter to her response to defendant's motion. Further, it appears from the substance of the letter that the July 30, 1999 decision was attached to the letter and resent to plaintiff. Plaintiff then filed her complaint on December 7, 1999. Although the EEOC's July 30, 1999 decision was not attached to plaintiff's amended complaint, that decision — the result of plaintiff's exhaustion of her administrative remedies — is the basis for this court's jurisdiction and, therefore, is central to plaintiff's claim. See Gibson v. West, 201 F.3d 990 (7th Cir. 2000) (holding that a federal employee must properly exhaust administrative remedies as a condition precedent to bringing an action in federal court). Further, in her complaint, plaintiff references EEOC Appeal No. 01985079, which is the same case the EEOC's July 30, 1999 decision addressed. Accordingly, the court will consider the EEOC's July 30, 1999 decision in ruling on the motion to dismiss. See Wright v. Associated Ins. Companies, Inc., 29 F.3d 1244, 1248 (7th Cir. 1994).

II. DISCUSSION

Defendant has brought a motion to dismiss or, in the alternative, a motion for summary judgment. The basis for the motion to dismiss is that plaintiff's complaint was untimely and, therefore, this court lacks jurisdiction. Plaintiff, on the other hand, argues that her complaint was timely. Specifically, plaintiff contends that the 90-day time limit did not begin to run until September 12, 1999 — when she received the letter with the attached EEOC decision.

A. Legal Standard

While the Federal Rules of Civil Procedure provide a liberal notice pleading standard, the complaint must include either direct or inferential allegations with respect to all material elements of the claims asserted. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991).

B. Timeliness of Filing

Defendant argues that plaintiff's claim is barred because it was not filed within the 90-day time period. Title VII clearly states that plaintiff must bring suit "[w]ithin 90 days of receipt of notice of final action taken by a department . . . or by the Equal Employment Opportunity Commission. . . ." 42 U.S.C. § 2000e-16(c). The time limit is not flexible, even for pro se litigants, and a one-day delay is fatal. Thomas v. United Parcel Serv., No. 99 C 6258, 2000 WL 290279, at *2 (N.D.Ill. Mar.17, 2000).

In its July 30, 1999 decision, the EEOC stated that, if she disagreed with the EEOC's decision, the plaintiff had a right to file a civil action in this court. The decision states: "It is the position of the Commission that you have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision." (Def.Mot. to Dismiss, Ex. A (emphasis in original)); see also 42 U.S.C. § 2000e-16(c) (stating that the time period for filing a Title VII action against a federal employer is 90-days from the receipt of the Final Agency Decision). In this case, the July 30, 1999 decision of the EEOC resulted in an exhaustion of plaintiff's remedies. As stated in the decision itself, plaintiff could have filed an action in federal court following receipt of that decision. In her response to defendant's motion to dismiss, plaintiff claims that she received the EEOC's decision on August 12, 1999. Thus, the 90-day time period began to run on that date.*fn3 Plaintiff, therefore, had to file her civil action with this court by November 10, 1999 in order to comply with the 90-day time limitation. See St. Louis v. Alverno College, 744 F.2d 1314, 1316 (7th Cir. 1984) (holding that the 90-day time period begins to run upon actual receipt by the plaintiff). Plaintiff did not file her complaint until December 7, 1999. Absent a defense that ...


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