United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
Dennis Saylor IV United States District Judge.
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.
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.
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.
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.
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
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.
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.
Uwakwe alleges that she was employed by Pelham Academy and
the Justice Resource Institute, Inc. (“JRI”)
beginning in April 2008. (Compl. ¶ 10). 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).
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).
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. ¶¶
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).
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.
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).
letter was addressed to Uwakwe “c/o” Benneth O.
Amadi, her attorney. 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. 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).
counsel received the notices on June 20, 2016, three days
after mailing. (Def. Mem. in Response to Ct. Order Ex. 1
that point, there is no evidence in the record of any
activity with respect to these claims for more than half a
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 &
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).
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.
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).
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.
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 ...