The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHRINE CONTEJEAN, )
)
Plaintiff, )
)
v. ) No. 4:24-cv-1001 PLC
)
AMEREN, )
)
Defendant. )
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss self-represented
Plaintiff’s complaint as untimely pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF No.
18] Plaintiff opposes Defendant’s motion. [ECF No. 21] In addition, Plaintiff’s Motion for
Appointment of Counsel is before the Court. [ECF No. 24].
I. Background
Plaintiff Katherine Contejean filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Missouri Commission on Human Rights (“MCHR”).1
[ECF No. 1-1 & 19-1] On December 5, 2023, the EEOC issued a “Dismissal and Notice of Rights”
(“Notice” or “Notice of Right to Sue”) to Plaintiff. [ECF No. 19-1] The Notice states the “EEOC
is closing this charge because: Charging Party failed to respond.” [ECF No. 19-1] The Notice also
included notification of Plaintiff’s right to sue, advising her that any lawsuit against Defendant on
the Charge “must be filed WITHIN 90 DAYS of your receipt of this notice.” (emphasis in
original) [ECF No. 19-1] The Notice of Right to Sue further stated that Plaintiff’s “right to sue
based on this charge will be lost if you do not file a lawsuit in court within 90 days.” [ECF No. 19-
1 Plaintiff did not attach a copy of either Charge to her complaint and it is not clear from the record the
precise dates on which Plaintiff filed her Charges with the agencies.
1] In February 2024, Plaintiff filed a Charge with the MCHR and on April 22, 2024, the MCHR
issued its Notice of Right to Sue. [ECF No. 1-1]
On July 22, 2024, Plaintiff filed her complaint alleging race and age discrimination and
retaliation under the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., (“Title VII”) and the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. (“ADEA”). [ECF No.
1] Defendant moves to dismiss Plaintiff’s complaint as untimely based on Plaintiff’s failure to
bring her federal claims within 90 days of her receipt of the EEOC’s December 2023 Notice of
Right to Sue and for failing to exhaust her administrative remedies by cooperating with the
agency’s investigation. [ECF No. 18]
Plaintiff counters that her lawsuit is timely because she filed it within 90 days after
receiving her Notice of Right to Sue from the MCHR. [ECF No. 21] Plaintiff states that following
receipt of her Notice of Right to Sue from the EEOC, the agency “directed [her] to file another
Notice of Right to Sue through MCHR since the Right to Sue with the EEOC was about to expire
due to family emergency in Cleveland, Ohio and that fact of my ongoing search to obtain an
Attorney to represent me in this case.” [ECF No. 21] Plaintiff states that she filed her Charge with
the MCHR in February 2024, received a Notice of Right to Sue from the MCHR in April 2024,
and timely filed her lawsuit in this Court in July 2024. [ECF No. 21]
Defendant replies that Plaintiff’s filing of her suit within 90 days from her receipt of a right
to sue letter from the MCHR is insufficient to preserve her federal claims under Title VII and the
ADEA. [ECF No. 22] Defendant further contends that, to the extent Plaintiff is arguing that
equitable tolling of the statutory deadline would be appropriate, that the circumstances surrounding
the untimely filing demonstrate that equitable tolling is not warranted. [ECF No. 22] Specifically,
Defendant argues that Plaintiff failed to exercise reasonable diligence is pursuing her claims
despite knowing that her Right to Sue from the EEOC was “about to expire” and that Plaintiff’s
stated reasons for not pursuing her claims, an unspecified “family emergency” and an “ongoing
search to obtain an [a]ttorney,” do not justify application of equitable tolling. [ECF No. 22]
Following completion of briefing on Defendant’s motion to dismiss, Plaintiff filed a
Motion for Appointment of Counsel requesting that the Court appoint counsel to represent her
because she has been unable to locate an attorney willing to take her case. [ECF No. 24]
II. Legal Standard
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency
of a complaint. Fed. R. Civ. P. 12(b)(b). To survive a Rule 12(b)(6) motion to dismiss, “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 (2006)). A claim satisfies the plausibility standard “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. When considering a motion to dismiss for
failure to state a claim, a court must “accept the allegations contained in the complaint as true
and draw all reasonable inferences in favor of the nonmoving party.” Cole v. Homier Distrib.
Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Coons v. Mineta, 410 F.3d 1036, 1039
(8th Cir. 2005)). Dismissal is appropriate “only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations.” Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984). “Where the allegations show on the face of the complaint
there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008).
III. Discussion
A. Motion to Dismiss
Defendant argues that Plaintiff’s action is time-barred because it was not filed within 90
days of Plaintiff’s receipt of the EEOC’s Notice of Right to Sue. [ECF No. 19] Defendant further
contends that Plaintiff did not exhaust her administrative remedies because she failed to cooperate
with the EEOC’s investigation, prompting dismissal of her Charge. [ECF No. 19]
A plaintiff must file her Title VII or ADEA action within ninety days from receipt of her
Notice of Right to Sue from the EEOC. 42 U.S.C. § 2000e-5(f) (Title VII); 29 U.S.C. §626(d), (e);
Hill v. John Chezik Imports., 869 F.2d 1122, 1124 (8th Cir. 1989). The presumption is that a
plaintiff receives notice three days after the mailing date. Hales v. Casey’s Mktg. Co., 886 F.3d
730, 736 (8th Cir. 2018); Fed. R. Civ. P. 6(d). Failure to file a timely civil action warrants dismissal
of the complaint. See Braxton v. Bi-State Development Agency, 728 F.2d 1105, 1108 (8th Cir.
1984); Williams v. Thomson Corp., 383 F.3d 789, 790 (8th Cir. 2004).
The EEOC mailed the Notice of Right to Sue to Plaintiff on December 5, 2023. [ECF No.
19-1] Plaintiff does not dispute that she received the letter, and is therefore presumed to have
received it on December 8, 2023. Thus, Plaintiff was required to file suit bringing her Title VII
and ADEA claims against Defendant no later than March 8, 2024. Plaintiff did not file suit until
July 22, 2024, or 227 days after the presumed date of receipt. [ECF No. 1]
The ninety-day limitation period of 42 U.S.C. § 2000e-5(f)(1), however, is not a
jurisdictional prerequisite to federal suit and is subject to equitable tolling. See Hill, 869 F.2d at
1123. Equitable tolling is an “exceedingly narrow window of relief,” Muffuletto v. Client Services,
Inc., No. 4:12CV1982, 2012 WL 6216865, at *1 (E.D. Mo. Dec. 13, 2012), and is reserved for
“circumstances which were truly beyond the control of the plaintiff.” Hill, 869 F.2d at 1124.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1)
that he has been diligently pursing his rights; and (2) that some extraordinary circumstance stood
in his way.” Luckett v. Herbster-Hellweg Painting, No. 4:08CV00187 FRB, 2008 WL 2620894,
at *2 (E.D. Mo. June 27, 2008) citing Walker v. Norris, 436 F.3d 1026 (8th Cir.2006). The
Supreme Court has noted four circumstances in which the application of equitable tolling may be
appropriate: (1) the EEOC provided inadequate notice to plaintiff; (2) the court has not ruled on a
pending motion for appointment of counsel and equity justifies tolling the statutory period until
the motion is acted upon;2 (3) the court led the claimant to believe that he or she did everything
required of him; and (4) defendant lulled the claimant into inaction through affirmative
misconduct. Baldwin Cty. Welcome Center v. Brown, 466 U.S. 147, 151 (1984). “The Eighth
Circuit has also applied equitable tolling where an administrative agency has made a mistake of
law and/or has provided a plaintiff with misleading information that led the plaintiff into
reasonably believing that her actions would suffice to protect her rights.” Ousley v. ResCare
Homecare, No. 4:13-cv-00898-SPM, 2013 WL 5966050, at *3 (E.D. Mo. Nov. 8, 2013) (citations
omitted).
In her response to Defendant’s motion to dismiss, Plaintiff states that sometime after
receiving the EEOC’s Notice of Right of Sue, “the EEOC…directed [her] to file another Notice
of Right to Sue through MCHR since the Right to Sue with the EEOC was about to expire due to
family emergency in Cleveland, Ohio and the fact of my ongoing search to obtain an Attorney to
represent me in this case.” [ECF No. 21] Defendant counters that the circumstances surrounding
Plaintiff’s untimely filing demonstrate that equitable tolling is not warranted. [ECF No. 22]
Specifically, Defendant argues that Plaintiff failed to exercise reasonable diligence in pursuing her
2 With respect to this situation, the Supreme Court cited to Harris v. Walgreen’s Distribution
Center, 456 F.2d 588 (6th Cir. 1972), where a plaintiff filed a motion for appointment of counsel prior to
filing his complaint. After the district court’s denial of the motion for appointment of counsel, the plaintiff
filed a second motion for appointment of counsel and a complaint. Id. at 589-91. Because the plaintiff’s
original motion for appointment of counsel was filed within the statutory deadline, the Sixth Circuit found
that equitable tolling of the limitations period was warranted until the court ruled on the motion for
appointment of counsel. Id. at 591-92.
This is distinguishable from the present case, in which Plaintiff filed her complaint before filing
her motion for appointment of counsel. Thus, although Plaintiff has a pending motion for appointment of
counsel, there is no basis for determination that this unresolved motion influenced Plaintiff’s decision on
the timing to file her complaint.
claims despite knowing that her Right to Sue letter from the EEOC was “about to expire[.]” More
specifically, Defendant contends that Plaintiff’s stated reasons for not pursuing her claims, an
unspecified “family emergency” and her “ongoing search to obtain an [a]ttorney,” do not justify
application of equitable tolling.
Here, the EEOC’s Notice of Right to Sue clearly informed Plaintiff of the time she had to
file her federal claims. Plaintiff’s response to the motion dismiss demonstrates that she was aware
of the impending deadline but, instead of pursuing her EEOC Charge by filing suit, elected to file
another charge with a different agency. While Plaintiff states that someone from the EEOC
allegedly advised her “to file another Notice of Right to Sue through the MCHR” because the
“Right to Sue with the EEOC was about to expire,” Plaintiff does not state that the EEOC misled
her into believing that she did not need to comply with the clearly articulated directives of the
EEOC’s Notice of Right to Sue by filing a suit bring her federal claims within the 90 days of the
EEOC notice. See Ousley, 2013 WL 5966050, at *4 (equitable tolling not warranted when EEOC
advised the plaintiff “to wait for the [MCHR Notice] after [she] had received [the EEOC Notice]”
and the plaintiff “felt 90 days began from the date of [the MCHR notice]” because the plaintiff
was not “misled into reasonably believing that she did not need to file her federal claims within 90
days of the EEOC Notice”); Shempert v. Harwich Chem. Corp., 151 F.3d 793, 798 (8th Cir.1998)
(equitable tolling did not apply where a plaintiff claimed that an EEOC letter had misled her but
the language of the EEOC’s letter notified the plaintiff of the applicable time limits; stating,
“equitable tolling is allowed only if the language was misleading”).
Further, Plaintiff’s stated reasons for not timely filing her action, including an unspecified
“family emergency” and her unsuccessful efforts to secure counsel, do not warrant equitable
tolling. See Ousley, 2013 WL 5966050, at * 4 (distraction resulting from the plaintiff’s spouse’s
medical condition and plaintiff’s need to care for him “is not the sort of extraordinary
circumstances that warrants equitable tolling”); Luckett v. Herbster-Hellweg Painting, No.
4:08CV00187 FRB, 2008 WL 2620894, at * 2 (E.D. Mo. June 27, 2008) (plaintiff’s loss of
“someone close to him” did not rise to the level of a circumstance beyond his control that prevented
him from filing his lawsuit within the prescribed time period”); Muffuletto, 2012 WL 6216865, at
*1 (plaintiff pro se status, lack of legal knowledge or legal resources, and confusion about or
miscalculations of the limitations period do not warrant equitable tolling). Here, Plaintiff has not
demonstrated that the “family emergency” was such that it could excuse Plaintiff’s failure to act
within the statutory period or would excuse the more than seven-month delay between Plaintiff’s
receipt of the EEOC Notice of Right to Sue and the filing of her lawsuit. Nor can it be said that
Plaintiff’s inability to secure the assistance of counsel prevented her from timely filing suit, as
evidenced by her eventual decision to file her action pro se. Accordingly, equitable tolling does
not apply in this case.
Plaintiff’s lawsuit was not timely filed within 90 days of her receipt of the EEOC’s Notice
of Right to Sue and it is immaterial that Plaintiff brought her lawsuit within the statutory deadline
of her receipt of the MCHR’s Notice of Right to Sue because she is not pursuing claims under the
Missouri Human Rights Act. Instead, Plaintiff’s claims fall solely under Title VII and the ADEA,
both of which require a plaintiff to timely file a charge of discrimination with the EEOC, receive
a Notice of Right to Sue from the EEOC, and file a lawsuit within 90 days of receipt of the EEOC’s
Notice of Right to Sue. Saali v. Walmart, 4:23-cv-1499 HEA/PLC, 2024 WL 1092012, at *5 (E.D.
Mo. Mar. 13, 2024) (citing 42 U.S.C. §2000e(f)(1) and Littell v. Aid Ass’n for Lutherans, 62 F.3d
257, 259 (8th Cir. 1995)). Accordingly, Plaintiff’s action is dismissed as untimely. In light of the
Court’s finding that Plaintiff’s action is time-barred, the Court does not consider Defendant’s
argument that Plaintiff did not exhaust her administrative remedies by failing to cooperate with
the EEOC’s investigation.
B. Motion to Appoint Counsel
Following completion of briefing on Defendant’s Motion to Dismiss, Plaintiff filed a
Motion for Appointment of Counsel requesting that the Court appoint her an attorney because she
has been unable to find an attorney willing to take her case. [ECF No. 24] Specifically, Plaintiff
asserts she has “been looking on her own for month and months” but that no attorney will take the
case due to conflicts of interest, the attorney’s lack of “bandwidth to handle the case” due to the
“timeframe,” or because Plaintiff has “gone down the road too far with this case and they don’t
want to pick it up[.]” [ECF No. 24-1] Plaintiff states she is “not in poverty…its just that [she]
cannot find an attorney willing to help with the exception of a friend attorney that has provided
some guidance but his firm does not handle these types of cases.” [ECF No. 24-1]
Title VII provides the district court may appoint counsel for a complainant “in such
circumstances as the court may deem just[.]” Scott v. Tyson Foods, Inc., 943 F.2d 17 (8th Cir.
1991); 42 U.S.C. §2000e-5(f)(1). However, there is no automatic right to the appointment of
counsel under Title VII. Slaughter v. City of Maplewood, 731 F.2d 587, 590 (8th Cir. 1984).
“Three factors are generally considered relevant in evaluating applications for appointment of
counsel in Title VII cases: (1) the plaintiff’s financial resources, (2) the plaintiff’s efforts to secure
counsel, and (3) the merits of the discrimination claim.” Id.; Hale v. North Little Rock Housing
Authority, 720 F.2d 996, 998 (8th Cir.1983)
Here, Plaintiff’s request for appointment of counsel stems not from her indigency but solely
from her inability to find an attorney who is willing to represent her. In her filings, Plaintiff states
that she has been unsuccessful in securing the services of an attorney for approximately a year.
[ECF Nos. 21 (response to motion to dismiss suggesting Plaintiff did not timely file suit before
March 8, 2024, in part, due to her “ongoing search to obtain an [a]ttorney”) & 24 (motion for
appointment of counsel stating she has been searching for an attorney for “months and months)]
Despite Plaintiffs alleged considerable efforts to secure counsel, the balance of relevant factors
does not support appointment of counsel in this case. Plaintiff states that she does not lack the
financial means to hire an attorney. More importantly, Plaintiff has failed to demonstrate that she
has a meritorious case because her action was not timely filed. Accordingly, the Court denies
Plaintiff's Motion for Appointment of Counsel [ECF No. 24]
IV. Conclusion
Because Plaintiff filed her complaint more than 90 days after she received notice of her
right to sue from the EEOC and because equitable tolling is not warranted, the Court dismisses
this action as time-barred.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [ECF No. 18] is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED with prejudice.
IT IS FINALLY ORDERED that Plaintiff's Motion to Appoint Counsel [ECF No. 24] is
DENIED.
plriee Feb
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 17th day of January, 2025