Opinion

Byrd v. PepsiCo, Inc.

Court
District Court, N.D. Ohio
Filed
Jan 29, 2021
Cited by
0 cases
Authority
More cited than 28.0%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES M. BYRD, JR., ) Case No. 5:20-cv-01923

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge Kathleen B. Burke

)

PEPSICO/FRITO-LAY, et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiff James M. Byrd, Jr. filed a lawsuit against Defendants PepsiCo/Frito-

Lay1 in state court, which Defendants removed to this Court on the bases of federal

question and diversity jurisdiction under 28 U.S.C. §§ 1331 and 1332. (ECF No. 1.)

Defendants now move to dismiss Plaintiff’s complaint as untimely. (ECF No. 6.) For

the following reasons, the Court GRANTS Defendants’ motion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a discrimination charge with the Equal Employment

Opportunity Commission in February 2019. (ECF No. 1-1, PageID #9.) The EEOC

concluded its investigation of his claim on March 3, 2020, after which Plaintiff

received a letter from the EEOC denying his charge and informing him of his right to

1 Plaintiff named PepsiCo/Frito-Lay as Defendants. (ECF No. 1-1, PageID #8.)

Defendants state that Plaintiff’s employer was FL Transportation, Inc., a wholly

owned subsidiary of PepsiCo, Inc., and that several PepsiCo, Inc. subsidiaries include

the name “Frito Lay.” (ECF No. 1., PageID #1 n.1.) Defendants, therefore, respond

for PepsiCo, Inc., FL Transportation, Inc., and any other PepsiCo, Inc. entity Plaintiff

intended to sue. (Id.) They are collectively referred to as “Defendants” here.

sue. (Id.) The letter, which Plaintiff attached to the complaint, is dated March 3,

2020 (id., PageID #20), but Plaintiff claims he did not receive the letter until March

30, 2020 (ECF No. 9., PageID #135). The bottom quarter of the first page of the letter

is prominently titled “NOTICE OF SUIT RIGHTS.” (Id.) The corresponding

paragraph provides, in relevant part, “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.” (Id.)

Plaintiff filed this claim in state court on August 3, 2020—153 days after the

March 3, 2020 date of the right-to-sue notice and 126 days after Plaintiff claims to

have received the notice. (ECF No. 1-1.) In his lawsuit, Plaintiff alleges Defendants

failed to make reasonable accommodations for his disability as required under the

Americans with Disabilities Act, 42 U.S.C. § 12101. (Id., PageID #8.) Defendants

respond, having removed the case to this Court, that Plaintiff’s claim is time-barred

and should be dismissed because he failed to file suit within 90 days from receiving

the right-to-sue notice from the EEOC. (ECF No. 6, PageID #42.)

LEGAL STANDARD

At the motion to dismiss stage, a complaint must “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). In assessing plausibility, the Court construes factual

allegations in the complaint in the light most favorable to the plaintiff, accepts the

allegations of the complaint as true, and draws all reasonable inferences in the

plaintiff’s favor. Wilburn v. United States, 616 F. App’x 848, 852 (6th Cir. 2015).

In addition to the allegations in the complaint, courts “may consider exhibits

attached to the complaint, public records, items appearing in the record of the case,

and exhibits attached to defendant’s motion to dismiss, so long as they are referred

to in the complaint and are central to the claims contained therein.” DeShetler v.

FCA US LLC, No. 3:18 CV 78, 2018 WL 6257377, at *4 (N.D. Ohio Nov. 30, 2018)

(quoting Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016)). Plaintiff attached several

documents to his complaint, including the March 3, 2020 right-to-sue letter, that the

Court considers on this motion to dismiss.

Further, “pleadings and documents filed by pro se litigants are liberally

construed and held to less stringent standards than formal pleadings drafted by

lawyers, [but] pro se plaintiffs must still meet basic pleading requirements and courts

are not required to conjure allegations on their behalf.” Thomas v. Slusher, No. 1:17-

cv-794, 2018 WL 931301, at *4 (N.D. Ohio Feb. 16, 2018) (citation omitted) (quoting

Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

ANALYSIS

Before filing an employment discrimination lawsuit, a plaintiff must file a

timely charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1). If the EEOC dismisses the

charge, it must notify the plaintiff of the dismissal and of the right to initiate a civil

action, which the plaintiff must do within 90 days after the EEOC provides notice.

42 U.S.C. § 2000e-5(f)(1); Graham-Humphreys v. Brooks Museum of Art, Inc., 209

F.3d 552, 557 (6th Cir. 2000). “Failure to . . . bring an action within the ninety-day

period is grounds for dismissal under Rule 12(b)(6).” Green v. Central Ohio Transit

Auth., No. 2:13-cv-41, 2013 WL 4479093, at *3 (S.D. Ohio Aug. 20, 2013) (citing

Mayers v. Sedgwick Claims Mgmt. Servs., Inc., 101 F. App’x 591, 593 (6th Cir. 2004)).

Courts strictly enforce the 90-day time period and presume the EEOC has

provided notice to trigger the 90-day limitation period five days after it mails the

right-to-sue letter to the claimant’s record address. Graham-Humphreys, 209 F.3d at

557–58. The presumption may be rebutted where the plaintiff proves “that he did

not in fact receive notification within that period.” Rucker v. Potter, 215 F. App’x 406,

408 (6th Cir. 2007) (citing Graham-Humphreys, 209 F.3d at 557–58).

The limitation period is subject to equitable tolling “under very limited

circumstances.” Franklin v. FirstEnergy Corp., No. 5:11-CV-02444, 2012 WL

2130987, at *5 (N.D. Ohio June 12, 2012) (citing Brown v. Mead Corp., 646 F.2d 1163,

1165 (6th Cir. 1981)). Accordingly, “[f]ederal courts apply equitable tolling sparingly”

and require a plaintiff to “demonstrate facts showing his diligence in pursuing the

claim.” Williams v. Northwest Airlines, 53 F. App’x 350, 352 (6th Cir. 2002) (citations

omitted). “Absent compelling equitable considerations, a court should not extend

limitations by even a single day.” Graham-Humphreys, 209 F.3d at 561.

Unfortunately for Plaintiff, his ADA claim is time-barred because he allowed the 90-

day time limit to lapse before filing suit and he provides no information warranting

equitable tolling.

I. Plaintiff’s Claim Was Untimely

Plaintiff’s right-to-sue letter is dated March 3, 2020. He attached to his

briefing an envelope from the EEOC that is addressed to him and postmarked

March 4, 2020. (ECF No. 9, PageID #137.) Plaintiff represents that the

March 4, 2020 envelope contained the right-to-sue letter, and the Court accepts his

representation as true at this stage in the proceedings. The Court initially presumes,

as it must, that Plaintiff received the notice letter five days after the postmarked

date, on March 9, 2020. Accordingly, the 90-day limitations period began running on

March 9, 2020, and expired on June 7, 2020. Plaintiff did not file his complaint until

August 3, 2020, well outside the limitations period.

Plaintiff claims, however, that he did not receive the notice within the

presumptive five-day window. Instead, he states the notice was incorrectly mailed to

his mother’s address, where he has not lived since August 2019. (ECF No. 9, PageID

#135.) As a result, he claims he did not actually receive the notice until March 30,

2020, and that he filed this lawsuit “exactly 90 business days” from his receipt. (Id.)

Even giving Plaintiff the benefit of the doubt as to the alleged facts, this argument

fails to make the filing of his suit timely.

The complaint states that Plaintiff initiated his charge with the EEOC in

February 2019, seven months before he claims to have moved to a new address. (ECF

No. 1-1, PageID #9.) It is possible that the EEOC mailed the notice to his old address

because that was the address on file from Plaintiff’s charge and he neglected to inform

the EEOC of the change. In that instance, Plaintiff’s neglect would not excuse his

late filing. Graham-Humphreys, 209 F.3d at 558. But construing the allegations in

Plaintiff’s favor, the complaint and related documents do not definitively establish

that turn of events, so the Court does not reject his argument on that basis.

Accepting Plaintiff’s claim that the EEOC mailed the notice to the wrong

address and that Plaintiff received the notice on March 30, 2020, he still filed his

complaint more than one month after the limitations period expired. The 90-day

computation period includes weekends and holidays, not just business days, as

Plaintiff argues. Vactor v. Urbana City Sch., No. 3:20-cv-00006, 2020 WL 1491384,

at *3 (S.D. Ohio Mar. 27, 2020), adopted, 2020 WL 2110584 (S.D. Ohio May 4, 2020).

If Plaintiff received the notice on March 30, 2020, his claim was due June 28, 2020,

and he did not file until August 3, 2020. Because his ADA claims are untimely, the

complaint must be dismissed unless equitable tolling applies. See Graham-

Humphreys, 209 F.3d at 558 (citation omitted).

II. Equitable Tolling Does Not Apply

Courts may consider the following non-exhaustive factors to determine

whether equitable tolling should apply: (1) “lack of notice of the filing requirement”;

(2) “lack of constructive knowledge of the filing requirement”; (3) “diligence in

pursuing one’s rights”; (4) “absence of prejudice to the defendant”; and (5) “the

plaintiff’s reasonableness in remaining ignorant of the particular legal requirement.”

Graham-Humphreys, 209 F.3d at 561 (quoting Truitt v. County of Wayne, 148 F.3d

644, 648 (6th Cir. 1998)). Courts should also be guided by the underlying principle

that “equitable tolling applies only when a litigant’s failure to meet a legally-

mandated deadline unavoidably arose from circumstances beyond that litigant’s

control.” Id. at 560–61 (citations omitted).

No such unavoidable circumstance exists here. Plaintiff admits receiving

notice of the filing requirement on March 30, 2020, and does not claim ignorance of

the deadline, which neutralizes the first, second, and fifth factors. (ECF No. 9,

PageID #135.) As to the third factor, Plaintiff raises several arguments against

dismissal, but none demonstrates that he diligently pursued his claim. Where, as

here, none of the other factors favor equitable tolling, the fourth factor is rendered

immaterial. Graham-Humphreys, 209 F.3d at 562 n.12 (citations omitted).

Turning to the third factor in more detail, Plaintiff argues that he could not

have filed sooner than August 3, 2020, because he was required to stay at home

between March 23, 2020, through May 1, 2020, due to Ohio’s Stay At Home order put

in place to slow the spread of the Covid-19 pandemic. (ECF No. 9, PageID #135.) As

Defendants point out, however, courts remained open during that time and Plaintiff

could have filed his complaint regardless of the Stay At Home order. Moreover,

assuming the earliest he could have filed was May 2, 2020, his complaint would have

been due July 31, 2020, and he did not file until August 3, 2020.

Plaintiff also filed an unauthorized surreply (ECF No. 11), which the Court

need not consider, see L.R. 7.1, but will nevertheless briefly address to show that none

of Plaintiff’s additional arguments merit equitable tolling. First, Plaintiff’s inability

to obtain legal counsel, assuming he diligently pursued representation, does not

excuse untimely filing. Plaintiff did not require counsel to file suit. Indeed, he

ultimately filed his complaint pro se, although belatedly, and he offers no valid

explanation why he could not have done so earlier. Second, Ohio’s temporary tolling

rules adopted in response to the Covid-19 pandemic did not modify or toll federal

deadlines, like the 90-day deadline set forth in Section 2000e-5(f)(1), and therefore do

not save his belated complaint.

Third, Plaintiff states, “Defendant has not technically fired Plaintiff to try to

stop Plaintiff from filing suit.” (ECF No. 11, PageID #161.) An employer’s conduct

can justify equitable tolling of the 90-day time period where the conduct “reasonabl[y]

leads the employee to delay in pursuing his claim[.]” Franklin, 2012 WL 2130987,

at *5. Defendants’ conduct, taken as true, is not the type of misleading conduct that

justifies equitable tolling. See Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)

(citation omitted) (“The most common situation calling for equitable tolling involves

some affirmative representation or action by the employer that causes an employee

to miss a filing deadline.”). Plaintiff has not alleged that Defendants misled him in a

way that caused him to miss the 90-day filing deadline. To the contrary, continuing

to employ Plaintiff while still refusing to accommodate his disability, as Plaintiff

alleges, presumably would have encouraged Plaintiff to file his ADA claim sooner

rather than later. Defendants’ alleged conduct would not have reasonably prevented

Plaintiff from diligently pursuing his claim in a timely manner.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss

(ECF No. 6), DISMISSES the Complaint (ECF No. 1-1), and DIRECTS the Clerk to

enter judgment accordingly.

SO ORDERED.

Dated: January 29, 2021

J. Philip Calabrese

United States District Judge

Northern District of Ohio

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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