SILLA v. HOLDINGS ACQUISITION CO., L.P. AND RIVERS CASINO

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

REJEANA M. SILLA, )

)

Plaintiff, )

)

v. )

) 2:20-cv-00963

HOLDINGS ACQUISITION CO., L.P. d/b/a )

RIVERS CASINO, ) Chief Judge Mark R. Hornak

)

Defendant. )

)

OPINION

Mark R. Hornak, Chief United States District Judge

Before the Court is the Defendant’s Motion to Dismiss (ECF No. 9) Plaintiff’s Amended

Complaint (ECF No. 7) for failure to state a claim under the Federal Rule of Civil Procedure

12(b)(6). For the following reasons, Defendant’s Motion to dismiss is GRANTED, and the

Plaintiff’s complaint is DISMISSED on the terms set forth below.

I. BACKGROUND

Ms. Rejeana M. Silla (“Silla”) brings this action raising various claims of discrimination,

harassment, and retaliation against Defendant Holdings Acquisition Co., L.P. d/b/a/ Rivers Casino

pursuant to the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964

(“Title VII”), and the Pennsylvania Human Relations Act (“PHRA”). (ECF No. 7.) Ms. Silla’s

complaint additionally brings a state law claim for breach of contract, alleging that the Defendant

breached a contract for employment created by its employee onboarding documents. (ECF No. 7.)

The Defendant moves to dismiss claiming that this case was filed too late, specifically that Ms.

Silla filed it after the expiration of the 90-day filing window that follows the issuance of a

Dismissal and Notice of Rights by the Equal Employment Opportunity Commission (EEOC) under

42 U.S.C. Section 2000e–5(f)(1)1. (ECF Nos. 9, 10.) In response, Ms. Silla argues that her initial

complaint was, if not timely, filed close enough to 90 days following her receipt of that letter.

(ECF No. 12.) Ms. Silla further proposes that equitable tolling should apply to allow the action to

proceed despite her delay in filing, both because her medical condition prevented her from timely

filing and because communications with the EEOC led her to believe that she could file later. (ECF

No. 12.)

For the reasons set forth below, the Court concludes both that Ms. Silla’s federal law claims

are untimely, and that equitable tolling is not appropriate based on the facts alleged in the

Complaint and otherwise properly before the Court. And because the Court dismisses Ms. Silla’s

federal claims as untimely, the Court will also dismiss Ms. Silla’s state law claims without

prejudice for lack of supplemental jurisdiction under 28 U.S.C. § 1367(c)(3).

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint for

“failure to state a claim upon which relief can be granted.” The Supreme Court’s Ashcroft v. Iqbal

decision held that “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements” are not enough to survive a Rule 12(b)(6) motion. 556 U.S. 662, 678 (2009)

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, a plaintiff’s factual

allegations must “raise a right to relief above the speculative level” and state a plausible claim for

relief. Twombly, 550 U.S. at 555. In reading the complaint, the Court should “accept all factual

allegations as true, construe the complaint in a light most favorable to the plaintiff, and determine

whether, under a reasonable reading of the complaint, the plaintiff may be entitled to relief.”

1 The ADA incorporates by reference Title VII’s powers, remedies, and procedures, including the requirement that a

civil action must be filed within ninety days after the EEOC notifies the person aggrieved of a charge’s dismissal.

Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003); 42 U.S.C. § 12117 (2000); 42 U.S.C. § 2000e–

5(f)(1). This ninety (90) day period is therefore applicable to the claims asserted under both Title VII and the ADA.

Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431 (3d Cir. 2017) (citing Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)).

The Third Circuit further requires that lower courts utilize a three-part framework to assess

Motions to Dismiss. First, the Court must “identify the elements of the claim.” Malleus v. George,

641 F.3d 560, 563 (3d Cir. 2011). Second, the Court should “review the complaint to strike

conclusory allegations.” Id. And finally, the Court “look[s] at the well-pleaded components of the

complaint and evaluat[es] whether all of the elements identified in part one of the inquiry are

sufficiently alleged.” Id. If the facts alleged in the complaint “show” that the plaintiff is entitled to

relief, the motion to dismiss should be denied. See Fowler, 578 F.3d at 210–11.

Ordinarily, the statute of limitations is an affirmative defense that cannot be addressed at

the motion to dismiss stage. But in our Circuit, what is commonly knows as the “Third Circuit

Rule” permits it to be raised and adjudicated at this stage of the proceedings when the complaint,

and documents that are properly considered at this stage, demonstrate that the action is time-barred.

See Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002).

III. DISCUSSION

Under 42 U.S.C. § 2000e–5(f)(1), claims brought under Title VII must be filed within ninety

(90) days of a claimant's receipt of the EEOC Right to Sue letter. Elkadrawy v. Vanguard Group,

Inc., 584 F.3d 169, 173 (3d Cir. 2009). The beginning of that 90-day period is “generally

considered to be the date on which the complainant receives the right-to-sue letter.” Burgh v.

Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir.2001) (citations omitted).

The 90–day filing period is not a jurisdictional requirement, but instead is treated as a statute of

limitations. Figueroa v. Buccaneer Hotel, Inc., 188 F.3d 172, 176 (3d Cir.1999). The Third Circuit

has held that raising this issue is an affirmative defense and that the burden of proof “rests solely

on the employer.” Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003). Here, the

Defendant has properly raised this issue in its motion to dismiss. Therefore, the question is whether

it has met its burden.

A. Whether the Complaint Was Timely Filed

The relevant facts relating to the timeliness of Ms. Silla’s filing are as follows. On February

25, 2020, Ms. Silla filed a charge of discrimination under the ADA and Title VII of the Civil Rights

Act against Rivers Casino with the EEOC. (ECF No. 1.) The EEOC issued a Dismissal and Notice

of Rights with respect to that charge on March 20, 2020. (ECF No. 10-2.) That Dismissal and

Notice of Rights states clearly that Silla’s “lawsuit must be filed within 90 days of [her] receipt of

[the] notice, or [her] rights based on [her] charge will be lost.” (ECF No. 10-2, at 1.) 2 Ms. Silla

initiated the present action by filing her original complaint on June 26, 2020 – ninety-eight (98)

total days after the EEOC issued the Dismissal and Notice of Rights. (ECF No. 1.)

As calculated from the date of the letter’s issuance, Ms. Silla’s complaint would appear to be

eight (8) total days outside of the 90-day period. However, the statute of limitations analysis

requires an examination of when the letter was received, as the 90–day period’s onset is calculated

based on the date on which the complainant receives the right-to-sue letter. Burgh, 251 F.3d at

470; 42 U.S.C. § 2000e–5(f)(1). The actual date of a letter’s receipt controls where that date is

known. Where the date of receipt is unknown, the Third Circuit follows the Federal Civil Rules’

three (3) day grace period rule with respect to EEOC Right to Sue letters:

2 To decide a motion to dismiss, courts may generally consider only allegations contained in the complaint, exhibits

attached to the complaint, and matters of public record. Fed. R. Civ. P. Rule 12(b)(6); see Pension Ben. Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993). However, the Third Circuit has held that “a court may

consider an undisputedly authentic document that defendant attaches as exhibit to motion to dismiss if plaintiff's

claims are based on the document.” Pension Ben. Guar. Corp., 998 F.2d at 1196. Here, the Plaintiff’s claims are

based on the EEOC Right to Sue letter attached by the Defendant, which is undisputedly authentic. Therefore, the

Court will consider the language of that letter in evaluating the Defendant’s motion to dismiss.

“. . . in the absence of other evidence, courts will presume that a plaintiff

received her right-to-sue letter three days after the EEOC mailed it. See Fed. R. Civ.

P. Rule 6(e); Mosel [v. Hill's Dept. Store, Inc.], 789 F.2d [251], 253 n. 2 [ (3d

Cir.1986) ] (stating that the Supreme Court has suggested that Rule 6(e) applies

when parties dispute the date of receipt). Rule 6(e)'s three-day presumption

attempts to ensure that the plaintiff has the benefit of the full ninety-day period

when the date of actual receipt is unknown.”

Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999) (citations omitted).

Thus, where there is no evidence to the contrary, courts will presume that a plaintiff received her

right-to-sue letter three (3) days after the EEOC mailed it. Id; see also Gilliam v. Verizon

Pennsylvania, Inc., No. CIV.A. 13-1557, 2014 WL 901296, at *3 (W.D. Pa. Mar. 7, 2014).

Ms. Silla did not make any representations regarding the receipt-date of the letter in her

Amended Complaint, which simply pled that “[t]he EEOC issued Plaintiff a notice of right to sue

on March 20, 2020.” (ECF No. 7, at 13.)3 Thus, because the date of the letter’s actual receipt is not

known, the Fed. R. Civ. P. 6(d) grace period applies and Ms. Silla is presumed to have received

the Notice of Rights letter within three (3) days of its March 20, 2020 issuance. Applying the three-

day grace period to presume that Ms. Silla received the letter on March 23, 2020, the 90-day right

to sue period would require any action to be filed on or before June 21, 2020. Ms. Silla’s filing on

June 26, 2020, thus remains at minimum five (5) days late. (ECF No. 9, at 1.)

B. Equitable Tolling

Ms. Silla’s filing was untimely even applying the Federal Rules’ grace period presumption.

However, Ms. Silla also argues that the Court should apply equitable tolling to allow her action to

3 Ms. Silla does make the following statement in her Response to the Defendant’s Motion to Dismiss: “In a letter to

the EEOC Area Acting Director, Deborah Kane, in which Plaintiff states that she had received the letter around

March 27, 2020.” (ECF No. 12, at 1.) To the extent the Court construes this statement as an argument that Ms. Silla

in fact did receive the letter on March 27, 2020, that argument is not persuasive because a Plaintiff cannot rely on

new facts alleged in a response to a motion to dismiss in order to defeat the motion, Hammond v. City of Phila., No.

CIV. A. 005082, 2001 WL 823637, at *3 (E. D. Pa. June 29, 2001), and Ms. Silla made no representations as to the

date she received the letter in her Amended Complaint. Regardless, even if Ms. Silla had properly alleged that she

received the letter on March 27th, her action would still be untimely by one (1) day.

proceed. Equitable tolling may be applied to allow plaintiffs to sue after the statutory time period

for filing a complaint has expired if they have been prevented from filing in a timely manner due

to inequitable circumstances. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir.

1999). Specifically, the Supreme Court has held that equitable tolling may be appropriate when a

claimant received inadequate notice of her right to file suit, where a motion for appointment of

counsel is pending, or where the court has misled the plaintiff into believing that she had done

everything required of her. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984).

And in United States v. Midgley, 142 F.3d 174 (3d Cir. 1998), the Third Circuit also expressed a

willingness to invoke equitable tolling in other special circumstances, including when the

defendant has actively misled the plaintiff; when the plaintiff “in some extraordinary way” was

prevented from asserting her rights; and when the plaintiff timely asserted her rights in the

incorrect forum. See id. at 179.

First, as part of her argument that the court should apply equitable tolling, Ms. Silla cites to

certain email communications with the EEOC. (ECF No. 12-1.) These emails include a

communication from an EEOC staffer intended to be sent to his supervisor but erroneously sent to

Ms. Silla, recommending but not deciding that Ms. Silla’s case be reopened in part (which it

ultimately was not). (ECF No. 12-1, at 5.) When evaluating a plaintiff’s argument that equitable

tolling should apply because of EEOC actions, courts ask whether the plaintiff was reasonably

misled by those actions. For example, in Elchik v. Akustica, Inc., No. 2:12-CV-00578, 2013 WL

1403341, at *1 (W.D. Pa. Apr. 5, 2013), the Court held that the 90-day right to sue time was

equitably tolled because the EEOC’s had issued a Notice of Intent to Reconsider that revoked a

prior Right to Sue letter, leading the plaintiff to reasonably interpret that letter as having the effect

of tolling or restarting the 90-day period.

Although Ms. Silla cites to the EEOC emails, unlike the plaintiff in Elchik, she does not appear

to assert that she delayed the filing of her suit in reliance on those communications. Indeed, it

would not have been reasonable for her to do so. The erroneously sent email did not report that her

investigation had been reopened or indicate that the EEOC actually planned to reopen it. (ECF No.

12-1, at 5.). The sender notified Ms. Silla that she should disregard the erroneous communication.

(ECF No. 12-1, at 2.). And most significantly, Ms. Silla promptly emailed the sender back,

indicating that she understood the erroneous nature of the communication and would disregard it.

Id. Therefore, this case is not like Elchik, where the plaintiff delayed filing suit in reasonable

reliance on the EEOC’s issuance of a formal Notice of Intent to Reconsider that actually had the

effect of revoking its prior Right to Sue Letter. The EEOC communications cited here do not justify

the application of equitable tolling because they were clearly informal and accidental, and Ms.

Silla stated that she understood that communication’s informal nature and would not rely on it.

Second, Ms. Silla asserts that her complaint was untimely filed because her anxiety and other

stressors – including the stress of having lost her job –caused her to suffer medically documented

dizzy spells and exhaustion. (ECF No. 12, at 3.) Various Circuits have held that a statute of

limitations may be tolled where a mental health condition prevents the plaintiff from timely filing.

See Nunally v. MacCausland, 996 F.2d 1, 6 (1st. Cir.1993) (plaintiff’s “crippling” schizophrenic

disorder raised a genuine issue of fact as to whether she was capable of filing within a limitations

period); Biester v. Midwest Health Serv., 77 F.3d 1264, 1268 (10th Cir. 1996) (exceptional

circumstances justifying equitable tolling include an adjudication of incompetence,

institutionalization for mental incapacity, or other evidence that the individual is incapable of

pursuing his own claims); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (equitable tolling

justified where a pro se petitioner was prevented from pursuing his legal rights because of his

“mental incompetency combined with forced confinement and medication, no access to legal

materials, and the temporary loss of his glasses”). However, some Circuits have only recognized

mental illness as a ground for equitable tolling in extreme circumstances, requiring a finding that

a plaintiff has demonstrated that they are by reason of their mental disorder incapable of managing

their affairs or unable to rationally think or function. See Miller v. Runyon, 77 F.3d 189, 191 (7th

Cir. 1996), cert denied 519 U.S. 937, 117 (1996); Speiser v. U.S. Dep't of Health and Human

Services, 670 F. Supp. 380, 384 (D.D.C.1986).

The Third Circuit has not set forth a specific standard for determining when equitable tolling

is justified based on mental deficiency affecting the ability to make a timely filing. However, in

Barren v. United States, 839 F.2d 987 (3d Cir. 1988), the court did determine that mental

incompetence was not a per se reason to toll the statute of limitations in a federal action. See also

Hedges v. United States (3d Cir. 2005) (characterizing Barren as having held that “mental

incompetence, even rising to the level of insanity, does not toll a federal statute of limitations for

claims against the Government”). In view of that holding, a court must consider all relevant factors

in determining whether in the circumstances, asserted mental incompetence had an effect on the

ability to file. Harris v. Potter, No. CIV.A. 03-3522, 2004 WL 1613578, at *5 (E.D. Pa. July 16,

2004). For example, in Harris, the Court determined that equitable tolling applied where the

plaintiff provided documentation from a doctor explaining that symptoms from diagnosed

conditions including major depression with psychosis and post-traumatic stress disorder had been

“severe and incapacitating,” and where the defendant, her employer, had been clearly made aware

of her diagnoses after she had episodes at work and by her express notification. Id. at *5.

Here, the complaint does not allege mental health diagnoses that are sufficiently “severe and

incapacitating” to justify the application of equitable tolling. While the Court does not minimize

Plaintiff’s asserted health problems, it is clear from what Ms. Silla has told the Court in the record

that she could have filed on time despite her medical conditions–especially given that Ms. Silla

continued to attend school while experiencing those conditions. (ECF No. 12, at 3.) Ms. Silla’s

asserted symptoms are therefore unlike the evidence presented by the plaintiff in Harris, in which

the plaintiff’s mental illness was described as “severe in nature” and having “markedly

compromised her functioning,” resulting in the court’s conclusion that the plaintiff’s mental illness

was debilitating and that the mental illness had prevented her from exercising her rights. Id. Indeed,

in a similar case, the court rejected the application of equitable tolling where a Plaintiff asserted

high blood pressure and cardiac problems exacerbated by “stress and aggravation” from his job,

finding that–unlike in Harris–the Plaintiff had produced no evidence of an “inability to carry on

his affairs” as a result of his health problems. Hatcher v. Potter, No. CIV.A. 04-2130, 2005 WL

3348864, at *5 (E.D. Pa. Dec. 7, 2005), aff'd, 196 F. App'x 120 (3d Cir. 2006). Similarly, although

Ms. Silla has alleged health problems that may well have negatively affected the quality of her

life, she has not asserted facts that would demonstrate that those health problems rendered her

unable to carry on her affairs such that she was prevented from filing the present action in a timely

manner.

And finally, the Defendant here did not have notice of Ms. Silla’s health problems such that it

could have anticipated that she would be unable to timely file her action. Ms. Silla asserts in her

response that the Defendant did not object to “an extension of a few days to file the Amended

Complaint” after Ms. Silla informed defense counsel of the need for an extension via email. (ECF

No. 12, at 3.)(emphasis added). But this does not establish that the Defendant was aware of her

health problems and inability to file the initial complaint within the statute of limitations. In

Harris, the defendant was aware, both constructively and by the plaintiff’s express notification,

that the plaintiff suffered from such extreme health problems that she had been incapacitated and

hospitalized. 2004 WL 1613578, at *5. The Defendant here had no such notification – constructive

or express – that any health problems would make Ms. Silla unable to file her complaint on time.

And indeed, because no such extreme health problems have been alleged here, the question of

notice and prejudice to the Defendant is somewhat superfluous: “Although absence of prejudice is

a factor to be considered in determining whether the doctrine of equitable tolling should apply

once a factor that might justify such tolling is identified, it is not an independent basis for invoking

the doctrine and sanctioning deviations from established procedures.” Hedges v. United States,

404 F.3d 744 (3d Cir. 2005).

Because statutes of limitation are intended to expedite the resolution of disputes, courts apply

the equitable tolling doctrine sparingly. See Irwin v. Department of Veterans Affairs, 498 U.S. 89,

95–96 (1990). Here, neither the Defendant nor the EEOC actively misled Ms. Silla. Instead, the

EEOC clearly notified Ms. Silla of the 90-day time period to file suit. (ECF No. 12-1.) And Ms.

Silla has not asserted health circumstances that were sufficiently severe to have prevented her from

filing in a timely fashion. Therefore, the Court concludes that equitable tolling is inappropriate in

this case.

IV. CONCLUSION

No matter how it is measured on the record before the Court, Ms. Silla’s action was not filed

in a timely fashion, having been filed five (5) days outside of the Right to Sue time period as

calculated from Ms. Silla’s presumptive receipt of the letter. Ms. Silla’s federal claims are

therefore dismissed with prejudice. Ms. Silla’s state law claims are also dismissed but without

prejudice. The Court has no independent jurisdiction over her state law claims,4 and after having

dismissed Ms. Silla’s federal claims, the Court also should not and will not exercise supplemental

jurisdiction over those claims under 28 U.S.C. § 1367(c)(3). For the foregoing reasons,

Defendant’s Motion to Dismiss (ECF No. 9) is GRANTED, and the Plaintiff’s federal law claims

asserted under Title VII and the ADA are DISMISSED with prejudice, and the balance of her

claims are dismissed without prejudice to their refiling in state court. The Clerk will close the case

on the docket of this Court, and an appropriate Order will issue.

s/ Mark R. Hornak

Mark R. Hornak

Chief United States District Judge

Dated: November 17, 2020

cc: All counsel of record and Plaintiff, via CM/ECF

4 The parties lack diversity: Ms. Silla has asserted that she resides in Pennsylvania, apparently on a permanent basis,

and she therefore appears to be domiciled in Pennsylvania. (ECF No. 7, at 12.) Ms. Silla asserts that Rivers Casino is

likewise a resident of Pennsylvania. (ECF No. 7, at 12.) Thus, because she has not alleged that the Defendant is a

citizen of a different state, Ms. Silla has not established that the parties are diverse. See 28 U.S.C. § 1332.