United States District Court, N.D. Indiana, Fort Wayne Division
JEFFREY T. LANGSTON, SR., Plaintiff,
MPS GROUP, CARAVAN FACILITIES MANAGEMENT, and UNION LOCAL 2209, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN, CHIEF JUDGE
T. Langston, Sr., a pro se litigant, filed a Complaint [ECF
No. 1] against Defendants MPS Group (MPS), Caravan Facilities
Management (Caravan), and Union Local 2209 (Union Local) on
July 7, 2017, alleging unlawful discrimination under the Age
Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621-34, as well as “other”
complaints of workplace favoritism, harassment, and otherwise
being singled out unfairly at work. The Plaintiff alleges
that he received a Notice of Right to Sue from the EEOC on
April 6, 2017, but does not attach a copy of that letter to
August 24, 2017, Defendant Caravan Facilities Management
filed a Motion to Dismiss [ECF No. 10] for failure to state a
claim under Fed.R.Civ.P. 12(b)(6), insufficient service of
process under Fed.R.Civ.P. 12(b)(5), and failure to timely
file a complaint within ninety days of receiving a Notice of
Right to Sue from the EEOC. On September 1, 2017, Defendant
MPS filed a Motion to Dismiss [ECF No. 14], concurring in
Defendant Caravan's arguments in Caravan's Motion to
Dismiss. Defendant Union Local's time to answer the
Complaint was extended until October 30, 2017 [ECF No. 17].
September 11, 2017, the Plaintiff filed a Response [ECF No.
16] to Defendants MPS and Caravan's Motions to Dismiss.
In response to the Defendants' argument regarding the
timeliness of his Complaint following receipt of the
EEOC's Notice of Right to Sue, the Plaintiff admitted
that he did not file his Complaint until ninety-three days
after receiving the Notice, but argued that his Complaint was
timely filed because there were three federal holidays in the
interim (Good Friday, Memorial Day, and July Fourth) that
“should not be held against [him].” (Pl. Resp.
Caravan filed a Reply [ECF No. 19] to the Plaintiff's
Response on September 18, 2017. Defendant MPS did not file a
Reply within the proscribed time limits. Although Defendant
Union Local has not filed an answer, such an exercise is moot
because the Court finds that the Plaintiff's suit is
42 U.S.C. § 2000(e)-5(f), a plaintiff who brings an
employment discrimination claim under Title VII of the ADEA
must file his claim in a district court within ninety days of
his receipt of a right-to-sue notice from the EEOC. See
Jones v. Madison Serv. Corp., 744 F.2d 1309, 1310 (7th
Cir. 1984). “Compliance with the 90-day limit is not a
jurisdictional prerequisite, but it is a ‘condition
precedent' to relief.” Scott v. Coca Cola
Enter., Inc., No 2:05-CV-41, 2005 WL 1661808, at *4
(N.D. Ind. July 15, 2005) (citing Perkins v.
Silverstein, 939 F.2d 463, 470 (7th Cir. 1991)). Thus,
courts apply this rule strictly, dismissing cases even if the
complaint is filed a single day late. See Faris v. Ind.
Univ.-Purdue Univ. at Indianapolis, 1999 WL 349195, at
*3 (7th Cir. May 27, 1999) (filed one day late); Childrey
v. United Ins. Co. of Am., 1994 WL 709332, at *1 (7th
Cir. Dec. 15, 1994) (filed one day late); Anooya v.
Hilton Hotels Corp., 733 F.2d 48, 49 (7th Cir.
1984) (filed one day late); Jones, 744 F.2d at 1310
(filed two days late); Moses v. U.S. Steel Corp.,
946 F.Supp.2d 834, 842 (N.D. Ind. 2013) (filed one day late);
Wells-Darden v. Brady's This Is It, Inc., 2010
WL 987208, at *2 (N.D. Ind. Mar. 12, 2010) (filed one day
late); Hines v. Serv. Corp. Int'l, 2008 WL
2692033, at *2 (N.D. Ill. July 1, 2008) (filed three days
late); Minor v. Lakeview Hospital, 421 F.Supp. 485,
486 (E.D. Wis. 1976) (filed one day late).
the time period in which a Plaintiff may file suit in federal
court may be equitably tolled under certain, limited
circumstances. Such tolling is limited to “situations
in which the claimant has made a good faith error (e.g.
brought suit in the wrong court) or has been prevented in
some extraordinary way from filing his complaint on
time.” Jones, 744 F.2d at 1314. Here, the
Plaintiff argues that he believed that federal holidays
counted towards the ninety day period and that such an error
should not be held against him. However, the Federal Rules of
Civil Procedure make clear that a party must “count
every day, including intermediate Saturdays, Sundays, and
legal holidays.” Fed.R.Civ.P. 6(a)(1); see also
Grzanecki v. Bravo Cucina Italiana, 408 F. App'x
993, 996 (7th Cir. 2011). “[C]onfusion regarding
whether holidays were included in the ninety day period
afforded does not qualify as a good faith error tantamount to
filing . . . suit in the wrong court.” Hines v.
Serv. Corp. Int'l, No. 08 C 856, 2008 WL 2692033, at
*2 (N.D. Ill. July 1, 2008).
the Plaintiff is proceeding pro se does not excuse his
misunderstanding. See Schmidt v. Wis. Civ. Of Vocational
Rehab., 502 F. App'x 612, 614 (7th Cir. 2013)
(“[M]istakes of law (even by plaintiffs proceeding pro
se) generally do not excuse compliance with deadlines or
warrant tolling a statute of limitations.”). See
also, e.g., Webster v. St. Vincent Hosp., No
1:08-CV-27, 2008 WL 1808693, at *1 (S.D. Ind. Apr. 21, 2008)
(“Even though [the plaintiff] is proceeding pro
se, her asserted lack of knowledge of the 90-day
deadline does not excuse the fact that the lawsuit was not
timely filed.”); Brown v. Ill. Dept. of Public
Aid, 318 F.Supp.2d 696, 699 (N.D. Ill. 2004)
(“Despite [the plaintiff's] pro se status,
the time limit is not flexible and the delay is fatal to his
claim.”); Clark v. Residents' Journal, No.
02 C 7933, 2003 WL 21518553, at *3 (N.D. Ill. July 2, 2003)
(no good faith error when pro se plaintiff believed only
business days counted towards ninety-day period);
Flaherty v. Ill. Dep't of Corrs., No. 94 C 1065,
1995 WL 290398, at *2 (N.D. Ill. May 10, 1995) (no tolling
where pro se plaintiff believed that federal holidays did not
count towards the ninety-day period). Cf. Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 850-51 (7th Cir. 2001)
(“While [the plaintiff's] failure to understand the
implications of the right-to-sue notice elicits sympathy,
procedural requirements established by Congress for gaining
access to the federal courts are not to be disregarded by
courts out of a vague sympathy for particular
litigants.”) (quoting Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984)).
“dismissing an action as untimely at the pleading stage
is unusual, we have held that a district court may so proceed
under Rule 12(b)(6) if the plaintiff pleads herself out of
court by making allegations that conclusively establish the
action's untimeliness.” Grzanecki, 408 F.
App'x at 996 (affirming dismissal). See also Portillo
v. Zebra Tech. Corp., 154 F. App'x 505, 507 (7th
Cir. 2005) (affirming dismissal); Knight v. Cty. Of
Milwaukee, No. 98-2510, 1998 WL 846857, at *2 (7th Cir.
Nov. 25, 1998) (affirming dismissal); Mullins v.
Arcelormittal Ind. Harbor LLC, No. 2:11-CV-256, 2012 WL
405674, at *2 (N.D. Ind. Feb. 7, 2012) (granting motion to
dismiss). Not only is it clear on the face of the
Plaintiff's Complaint that he did not file within the
ninety-day period, but the Plaintiff also explicitly admits
as much in his Response to the Defendants' Motions to
Dismiss; he instead chooses to argue that the ninety-day
period should be tolled because he believed that federal
holidays did not count. As noted above, a mistake regarding
whether federal holidays count is not the kind of mistake
that gives rise to equitable tolling. Thus, the Plaintiff, by
his own pleadings, has conclusively established that his
action is untimely, and his action must therefore be
Court notes that, in his Complaint, the Plaintiff references
an instance of alleged “defamation.” (Compl. 15,
ECF No. 1.) However, the Plaintiff cites to no case law or
statute in in connection with this reference. Given that the
Plaintiff has filed this case as an employment discrimination
case and that, overwhelmingly, the allegations in his
Complaint serve to demonstrate harassment and favoritism, the
Court construes this allegation as evidence in support of his
harassment claims. The Court does not construe this
allegation as stating a state-law claim in tort for
defamation. The Plaintiff offers no allegations that support
any other construction. Because the Court does not construe
this allegation as a claim under state law, the Court need
not consider whether the Court has jurisdiction to hear the
claim or whether the claim can survive a 12(b)(6) motion to
reasons stated above, the Court: GRANTS the Defendants'
Motions to Dismiss [ECF Nos. 10, 14] and DISMISSES the
Complaint [ECF No.1] WITH PREJUDICE. Because the Court finds
that the Plaintiff's action is time-barred, the Court
need not consider the remainder of the parties'
arguments. This ruling does not foreclose the ...