United States District Court, D. Delaware
Duffy, Dover, Delaware; Pro Se Plaintiff.
Jennifer C. Bebko Jauffret, Esquire, and Lori Ann Brewington,
Esquire, Richards, Layton & Finger, PA, Wilmington,
Delaware, Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE
Mahala Duffy, who proceeds pro se and has been
granted leave to proceed in forma pauperis, filed
this action alleging employment discrimination pursuant to 42
U.S.C. §§ 2000e, et seq. Before the Court
is Defendant's motion to dismiss. (D.I. 9). Briefing on
the matter is complete.
was employed by Defendant until her employment was terminated
on September 28, 2015. (D.I. 2 at p.2). Plaintiff alleges
discrimination occurred during her employment with Defendant
by reason of sex and religion and that there was a hostile
work environment and the termination of her employment.
(Id. at 2-3).
30, 2015, Plaintiff filed a charge of discrimination with the
Delaware Department of Labor which was simultaneously
dual-filed with the Equal Employment Opportunity
Commission. (Id.). The EEOC mailed the notice
of suit rights to Plaintiff on May 9, 2016. (Id. at
p.4). The Complaint states that Plaintiff received a notice
of right to sue letter on May 11, 2015. (Id. at
p.2). In Plaintiffs opposition to the motion to dismiss, she
states that she received the notice of suit rights on May 12,
2016, via U.S. mail. (D.I. 11 at 2). Plaintiffs Complaint was
signed on August 8, 2016, the envelope it was mailed in is
postmarked August 10, 2016, and the complaint was received
and filed by the Clerk of Court on August 12, 2016. On
September 13, 2016, the Court issued a service order after
screening the Complaint. (D.I. 5).
moves for dismissal (D.I. 9) pursuant to Fed.R.Civ.P.
12(b)(5) and (6) on the grounds that: (1) Plaintiff failed to
file this action within ninety days of receipt of the
EEOC's notice of suit rights as required by 42 U.S.C.
§ 2000e-5(f)(1); (2) equitable tolling is not applicable
under the circumstances of this case; and (3) the Complaint
and summons were not served on Defendant within ninety days
as required by Fed. R. Civ. P 4(m). (See D.I. 10).
reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the
court must accept all factual allegations in a complaint as
true and take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Because Plaintiff proceeds pro se, her pleading is
liberally construed and her complaint, "however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers."
Erickson, 551 U.S. at 94. A court may consider the
pleadings, public record, orders, exhibits attached to the
complaint, and documents incorporated into the complaint by
reference. Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion
maybe granted only if, accepting the well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Daw's v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
moves for dismissal and contends that more than ninety days
passed from Plaintiff's receipt of the right to sue
letter and the filing of the Complaint and, therefore, she is
time-barred from raising her Title VII claims. Defendant
further argues that Plaintiff's claims are not saved by
equitable tolling. Plaintiff responds that the Complaint was
timely filed, relying upon the August 10, 2016 postmark of
the mailing and the three-day rule set forth in former
Fed.R.Civ.P. 6(e) ...