“Title VII does not allow a plaintiff who misses the 90-day window to resurrect the same claims by including them in a new EEOC charge, restarting the process and resetting the limitations clock.”
How later courts described this case
- “Title VII does not allow a plaintiff who misses the 90-day window to resurrect the same claims by including them in a new EEOC charge, restarting the process and resetting the limitations clock.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
DARRON TERRY SMITH, )
)
Plaintiff, )
)
v. ) Case No. 2:18-cv-02803-JTF-jay
)
UNIVERSITY OF TENNESSEE, et al., )
)
Defendants. )
_____________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
TO GRANT DEFENDANT’S MOTION TO DISMISS
_ _____________________________________________________________________________
Before the Court is Defendants’ University of Tennessee, The University of Tennessee
Health Science Center, and College of Health Professions, Department of Physician Assistant
Studies (“Defendants”), Motion to Dismiss; the Motion was filed on March 1, 2018. (ECF No.
11.) Pursuant to Administrative Order 2013-05, this case, including Defendants’ Motion, was
referred to the Magistrate Judge for management of all pretrial matters. Plaintiff Darron Terry
Smith did not file a response to Defendants’ Motion. The Magistrate Judge entered a Report and
Recommendation suggesting that this Court grant Defendants’ Motion and dismiss Plaintiff’s
claim. (ECF No. 15.) Plaintiff did not file any objections to the Report and Recommendation.
For the following reasons, the Court finds that the Magistrate Judge’s Report and
Recommendation should be ADOPTED and Defendants’ Motion to Dismiss GRANTED.
FINDINGS OF FACT
In his Report and Recommendation, the Magistrate Judge provides, and this Court adopts
and incorporates, proposed findings of fact in this case. (ECF No. 15, 1–2.)
LEGAL STANDARD
Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts
by permitting the assignment of certain district court duties to magistrates.” United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear
and determine any pretrial matter pending before the Court, except various dispositive motions.
28 U.S.C. § 636(b)(1)(A). Regarding those excepted dispositive motions, magistrate judges may
still hear and submit to the district court proposed findings of fact and recommendations for
disposition. 28 U.S.C. § 636(b)(1)(B). Upon hearing a pending matter, “the magistrate judge must
enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R.
Civ. P. 72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who
disagrees with a magistrate’s proposed findings and recommendation may file written objections
to the report and recommendation. Fed. R. Civ. P. 72(b)(2).
The standard of review that is applied by the district court depends on the nature of the
matter considered by the magistrate judge. See Baker, 67 F. App’x at 310 (citations omitted) (“A
district court normally applies a ‘clearly erroneous or contrary to law’ standard of review for
nondispositive preliminary measures. A district court must review dispositive motions under the
de novo standard.”). Upon review of the evidence, the district court may accept, reject, or modify
the proposed findings or recommendations of the magistrate judge. Brown v. Bd. of Educ., 47 F.
Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also receive
further evidence or recommit the matter to the [m]agistrate [j]udge with instructions.” Moses v.
Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11,
2015). A district judge should adopt the findings and rulings of the magistrate judge to which no
specific objection is filed. Brown, 47 F. Supp. 3d at 674.
ANALYSIS
Plaintiff alleges three counts in his Complaint: (1) race discrimination in violation of 42
U.S.C. § 2000e-2(a) in the form of pay discrimination and other conditions of employment; (2)
retaliation in violation of 42 U.S.C. § 2000e-3(a) for opposing pay discrimination; and (3)
retaliatory discharge in violation of 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 1981. (ECF No. 1,
13–18.)
The Court adopts the Magistrate Judge’s conclusion that Defendants’ Motion to Dismiss
should be granted because Plaintiff’s claims are time-barred. Title VII requires a charge of
discrimination to be filed with the EEOC within three hundred days of the alleged unlawful
employment practice. 42 U.S.C. § 2000e-5(e)(1). Additionally, Title VII provides that a civil
action must be brought within ninety days after the EEOC issues a notice of right to sue. 42 U.S.C.
2000e-5(f)(1). The Sixth Circuit is clear that “the starting date for the 300-day limitations period
is when the plaintiff learns of the employment decision itself, not when the plaintiff learns that the
employment decision may have been discriminatory motivated.” Amini v. Oberlin College, 259
F.3d 493, 499 (6th Cir. 2001). Plaintiff was issued his first right to sue letter on July 19, 2016,
relating to his race discrimination, retaliation, and retaliatory discharge charges filed with the
EEOC on March 4, 2015 and amended on July 30, 2015. (ECF No. 15, 4–5.) Plaintiff was then
issued his second right to sue letter on August 28, 2018, relating to his race discrimination and
retaliation charges filed with the EEOC on October 24, 2016. (ECF No. 15, 5.) The Court agrees
with the Magistrate Judge that Plaintiff’s March 4, 2015 and July 30, 2015 charges are time-barred
because Plaintiff waited more than ninety days from the date of receiving notice of his right to sue
before filing his Complaint in this Court. The Court also agrees with the Magistrate Judge that
Plaintiff’s act of filing essentially the same charges on October 24, 2016 and receiving a right to
sue letter on August 28, 2018 does not revive the March 4, 2015 and July 30, 2015 charges. See
Hollimon v. Shelby County Government, 325 F. App’x 406, 407 (6th Cir. 2009) (“Title VII does
not allow a plaintiff who misses the 90-day window to resurrect the same claims by including them
in a new EEOC charge, restarting the process and resetting the limitations clock.”). The Court
also adopts the Magistrate Judge’s finding that Plaintiff’s failure to rehire claim that was included
in his first charge with the EEOC was not included in Plaintiff’s Complaint.
Lastly, the Court adopts the Magistrate Judge’s conclusion that Plaintiff’s race
discrimination claim under 42 U.S.C. § 1981 is barred by the Eleventh Amendment. The Eleventh
Amendment “bars all suits, whether for injunctive, declaratory or monetary relief, against the state
and its departments . . .” Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993).
Furthermore, courts have repeatedly held that the University of Tennessee is “an arm and alter ego
of the State of Tennessee.” Stefanovic v. University of Tennessee, 935 F.Supp. 944, 946 (E.D.
Tenn. 1996). Defendants are protected by the Eleventh Amendment, and Plaintiff’s § 1981 claim
should be dismissed.
CONCLUSION
Upon de novo review, the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation to GRANT Defendants’ Motion to Dismiss Plaintiff’s Complaint and,
accordingly, DISMISSES said claims from this action.
IT IS SO ORDERED on this 27th day of September 2019.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
United States District Judge