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Uwakwe v. Academy

United States District Court, D. Massachusetts

December 11, 2017



          F. Dennis Saylor IV United States District Judge.

         This is an action for workplace discrimination. Plaintiff Dorothy Uwakwe, a Nigerian-American woman, alleges that her former employers, defendants Pelham Academy and Justice Resource Institute, Inc., discriminated against her on the basis of her race and national origin.

         The principal question before the Court is whether Uwakwe's discrimination claims under Title VII, 42 U.S.C. § 2000e et seq., are time-barred. Title VII claims are subject to a fairly short limitations period: they must be filed within 90 days after the plaintiff receives a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Here, the EEOC apparently mailed the notices on June 17, 2016. This action was not filed until April 1, 2017, 288 days later.

         Defense counsel received a copy of the notices on June 20, 2016, three days after they were mailed. Plaintiff, and her counsel, have submitted affidavits saying that they did not receive the notices until January 3, 2017, and then only after an inquiry by counsel. The notices were addressed properly and were not returned as undeliverable. Plaintiff and her counsel do not proffer any reason, plausible or not, why they might not have received the notices. They simply deny that they did.

         By law, such a notice is presumed to have been received within a reasonable time after mailing, which the First Circuit has suggested is anything from three to five days. The first question presented is whether plaintiff's simple denial is enough to overcome that presumption: more precisely, whether that simple denial is sufficient to delay accrual of the limitations period. Although the First Circuit has not addressed that question, the Second and Sixth Circuits have concluded that mere denial, without more, is not enough. This Court will adopt that approach, and conclude that plaintiff is deemed to have received the notice by June 22, 2016.

         The question then becomes whether the doctrine of equitable tolling should apply and toll the running of the limitations period beginning on June 22, 2016 (the presumed latest date of receipt). The answer to that question depends on whether plaintiff's counsel acted diligently under the circumstances.

         As set forth below, plaintiff's counsel did little to monitor the proceeding. He did not send an e-mail or make any other written inquiry to the EEOC for more than half a year after the matter had been closed. More importantly, once he became aware that the notices had been sent, he did not act quickly to get the complaint on file; instead he simply assumed that he was entitled to a wholly new limitations period, and waited nearly three more months before filing the complaint.

         Because of that lack of diligence, the limitations period will not be tolled. Accordingly, and for the reasons that follow, defendants' motion for summary judgment will be granted as to Counts 1 through 4 and 7. The remaining two counts will be dismissed for failure to state a claim.

         I. Background

         A. Factual Background

         Dorothy Uwakwe alleges that she was employed by Pelham Academy and the Justice Resource Institute, Inc. (“JRI”) beginning in April 2008. (Compl. ¶ 10).[1] She alleges that she was wrongfully accused of assaulting another employee. (Id. ¶¶ 13-14). Subsequently, on October 3, 2014, she was demoted from a supervisory position that paid $18 per hour to a residential counselor position that paid $12.75 per hour. (Id. ¶ 13).

         Uwakwe alleges that the demotion was due to discrimination based on her race and national origin and that she was constructively discharged. (Id. ¶¶ 10-13). She also alleges that she was humiliated by defendants and her co-workers and subjected to a hostile work environment because of her accent. (Id. ¶¶ 11-12, 15).

         The complaint asserts claims for (1) discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964; (2) retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a), the Equal Pay Act of 1963, 29 U.S.C. § 215(a)(3), and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H, 11I; (3) hostile work environment; (4) constructive discharge; (5) intentional/reckless infliction of emotional distress; (6) breach of the implied covenant of good faith and fair dealing; and (7) wage and salary discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a), and the Massachusetts Civil Rights Act. (Id. ¶¶ 19-44).

         B. Procedural Background

         On March 25, 2015, Uwakwe filed separate charges against JRI and Pelham with the Equal Employment Opportunity Commission (“EEOC”), EEOC Charge Nos. 846-2015-09662 and 523-2015-00382 respectively. (Def. Mot. to Dismiss Ex. 1).

         On June 17, 2016, the Boston Area Office of the EEOC mailed one letter and two documents titled “Dismissal and Notice of Rights.” (Compl. Ex. A; Def. Mot. to Dismiss Ex. 2).[2] The letter stated: “Included with this letter is your Notice of Dismissal and Right to Sue. Following this dismissal, you may only pursue this matter by filing suit against the Respondent named in the charge within ninety (90) days of receipt of said notice. Otherwise, your right to sue will be lost.” (Compl. Ex. A). The notices stated: “Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost.” (Compl. Ex. A; Def. Mot. to Dismiss Ex. 2).

         The letter was addressed to Uwakwe “c/o” Benneth O. Amadi, her attorney.[3] It set forth the correct and complete business address for attorney Amadi at his office in Lynn. (Compl. Ex. A at 1). The notices themselves were addressed to Uwakwe herself, with what appears to be a correct and complete address at her home in Roslindale.[4] At the bottom of the page, the notices indicated that two individuals were provided “cc” copies: (1) plaintiff's counsel Amadi, again with his correct mailing address, and (2) defense counsel, also with a correct address. (Compl. Ex. A; Def. Mot. to Dismiss Ex. 2).[5]

         Defense counsel received the notices on June 20, 2016, three days after mailing. (Def. Mem. in Response to Ct. Order Ex. 1 ¶ 3).

         From that point, there is no evidence in the record of any activity with respect to these claims for more than half a year.

         On December 30, 2016, Uwakwe's counsel Amadi e-mailed Anthony Pino, an EEOC Enforcement Supervisor. The e-mail stated as follows: “Please cause the Notices of Right to Sue to issue in relation to the above-referenced EEOC Charge Numbers. . . . My client wants to file federal complaints and therefore requests for the Rights to Sue.” (Compl. Ex. A). Pino responded on January 3, 2017: “As you can see from the attached, this matter was closed on June 17, 2016.” (Id.). According to Uwakwe, Pino's e-mail attached only the notice related to the charge against JCI. (Pl. Mot. to Strike at 2-3 & n.2).

         Amadi did not express surprise or make any protest to Pino. Nor did he follow up as to the absence of any notice concerning Pelham. Instead, on January 6, 2017, he sent the following e-mail to Pino: “Since the letter you enclosed in your email to me was alleged to have been mailed on or about June 17, 2016, but is being received today, January 3, 2017, I shall start counting the 90 days from today for the filing of my client's case in the Federal District Court.” (Pl. Response to Ct. Order Ex. A).[6]

         Amadi filed this action on behalf of Uwakwe on April 1, 2017-288 days after the date the notices were mailed, and 88 days after the date of Pino's e-mail.

         Defendants responded by filing a motion to dismiss Counts 1, 2, 3, 4, and 7 of the complaint as untimely; Count 5 as barred by the exclusivity provisions of the Massachusetts Workers' Compensation Act; and Count 6 for failure to state a claim. (Def. Mot. to Dismiss at 1-2).

         In response to the motion to dismiss, Uwakwe submitted an affidavit that stated, in its entirety, as follows:

1. I did not personally receive any right-to-sue letter (“RTS”) at all from the EEOC.
2. I was informed by my Attorney that he received a copy from the EEOC on January 3, 2017, by email.

         (Aff. in Opp. to Mot. to Dismiss Ex. 1 (“Uwakwe Aff.”)). Attorney Amadi also submitted an affidavit that stated, among other things, as follows:

2. I received the EEOC right-to-sue- letter (“RTS”) by email from the EEOC on January 3, 2017. . . .
6. I enquired constantly from [sic] and plaintiff did not personally receive any copy of the RTS from the EEOC at all. My office did not also receive any EEOC RTS at all prior to January 3, 2017.
7. I was contacting the EEOC Investigator who was investigating the case, and each time I was informed that they were still investigating the case; and that they had too many other cases also to attend to.
8. I was very much in contact with the EEOC and I was diligently contacting them from time to time. But when I called the investigator's line in the last week of December 2016, the recorded message indicated that she was not on duty and that Mr. Pino of the EEOC should be contacted. I called Mr. Pino of the EEOC and he was not around also; and when he did not return my call, I emailed him on or about December 30, 2016 and informed him that my client need the Right to Sue letter.
9. Mr. Pino later replied to my email on January 3, 2017 and the email contained the RTS as an attachment.
11. Apart from the fact that the RTS was stamped June 27, 2017 [sic], there is nothing to show in reality that it was received by my office or by the ...

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