United States District Court, E.D. Arkansas, Little Rock Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James M. Moody, Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
12, 2018, Plaintiff Terica Crossley filed her Complaint,
alleging violations of Title VII. Doc. 2. More
specifically, Ms. Crossley alleges that, in February 2016,
while she was employed by Arkansas Flag & Banner, Inc.,
she was sexually harassed by coworker, Sam Rutherford.
Doc. 2 at 4. Ms. Crossley further alleges that,
after she reported the sexual harassment to Defendant Kerry
McCoy, Ms. Crossley suffered verbal abuse by Mr. Rutherford
and, ultimately, retaliatory discharge from her employment
with Arkansas Flag & Banner, Inc. Doc. 2 at 4-5.
August 27, 2018, Defendants filed, and served on Ms.
Crossley, a Rule 12(b)(6) Motion to Dismiss and supporting
Brief, arguing that Plaintiff's Complaint should be
dismissed as time-barred and, alternatively, that Kerry McCoy
should be dismissed as a Defendant because she is not a
proper party. Docs. 11 and 12. Ms. Crossley as not
responded, and the time for doing so has now
passed. For the reasons discussed below, the Court
recommends that the Motion to Dismiss be granted and this
case be dismissed, with prejudice.
filed under Title VII must be brought within ninety (90) days
after the receipt of the right to sue issued by the EEOC. 42
U.S.C. § 2000e-5(f)(1); Williams v. Thomson,
Corp., 383 F.3d 789 (8th Cir. 2004); Maeqdlin v.
Int'l Ass'n of Mach. & Aerospace Workers, Dist.
949, 309 F.3d 1051 (8th Cir. 2002). Because the statute
of limitations is an affirmative defense that the defendant
must plead and prove, under Fed.R.Civ.P. 8(c)(1),
“untimeliness” generally will not provide a basis
for a Rule 12(b)(6) dismissal. However, an action may be
dismissed, as barred by the statute of limitations, where a
plaintiff's own pleadings establish the defense.
McDaniel v. Kraft Glob. Foods, 632 Fed.Appx. 314,
315 (8th Cir. 2016) (concluding dismissal was proper where
plaintiff's own pleadings showed that she brought her
lawsuit more than ninety days after receiving a right-to-sue
notice from the Equal Employment Opportunity Commission and
tolling of the limitations period was not warranted); see
also Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir.
2008) (citing Varner v. Peterson Farms, 371 F.3d
1011, 1017-18 (8th Cir. 2004) (dismissal proper because
complaint ruled out tolling of statute of limitations)).
the allegations in Crossley's Complaint as true, she
states that she received her Notice of Right to Sue from the
EEOC on June 29, 2016, and then waited over two
years before filing her Complaint. Thus, as Defendants
point out, the Complaint itself demonstrates on its face that
Ms. Crossley filed this action well outside the applicable
90-day statute of limitations.
the 90-day limitations period is subject to equitable tolling
in appropriate circumstances, courts have generally reserved
the remedy of equitable tolling for situations in which the
reasons for the delay were beyond the control of the
plaintiff. See Hill v. John Chezik Imports, 869 F.2d
1122, 1124 (8th Cir. 1989) (finding that equitable tolling
was not appropriate when the plaintiff did not inform the
EEOC of her new address). See also, Baldwin County
Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)
(“One who fails to act diligently cannot invoke
equitable principles to excuse that lack of
diligence.”); Heideman v. PFL, Inc., 904 F.2d
1262, 1266 (8th Cir. 1990) (“Equitable tolling is
appropriate only when the circumstances that cause a
plaintiff to miss a filing deadline are out of his [or her]
hands.”), cert. denied, 498 U.S. 1026 (1991). Here, Ms.
Crossley's Complaint does not allege any circumstances
that might justify equitable tolling of the limitations
period, and it is clear from the record that there are no
such circumstances in this case.
Crossley originally filed a lawsuit in the Eastern District
of Arkansas making these same claims against “Arkansas
Flag and Banner” on September 26, 2016 - within the
90-day statute of limitations for filing suit from the EEOC
Notice of Right to Sue. Crossley v. Arkansas Flag and
Banner, No. 4:16-cv-00685-BRW (“Crossley
I”). After nine months passed with no activity
in the case, the Court ordered Ms. Crossley to either: (1)
file proof of service on the defendant: or (2) provide good
cause why service had not been perfected. Crossley I at
doc. 8. The Court further warned Ms. Crossley that if
she did not do one or the other, her case would be dismissed
for failure to prosecute. Id. Ms. Crossley did not
respond. Accordingly, Crossley I was dismissed,
without prejudice, on July 31, 2017. Crossley I at doc.
Crossley's Motion to Proceed In Forma Pauperis
filed in this case, she acknowledges the prior dismissal but
states that by the time she received the Order in
Crossley I directing her to demonstrate service, or
show cause for the lack thereof, she had only a “short
time” and “did not have the money” to
perfect service. Doc. 1 at 3. Although the Court in
Crossley I gave her the opportunity to provide an
explanation for her delay in failing to serve her Complaint
she declined to do so and, instead, raised her
“justification” in this action, well
after the Court had dismissed Crossley I.
Crossley also states that, during the 11 months between her
Complaint in Crossley I being dismissed and her
initiating this action, she has been “studying and
preparing . . . and [is] now ready to proceed and collect
what Kerry owes me for all my pain and suffering.”
Doc. 1 at 3. However, a pro se
litigant's “unfamiliarity with the law does not
provide justification for tolling the statute of limitations
period.” See Hill v. Dunklin Cnty. Health
Dep't, No. 1:10CV168 SNLJ, 2010 WL 5088252, at *1
(E.D. Mo. Dec. 8, 2010); Luckett v. Herbster-Hellweg
Painting, No. 4:08CV00187, 2008 WL 2620894, at *2 (E.D.
Mo. June 27, 2008).
all of the claims in Ms. Crossley's Complaint are now
time-barred and there are no facts or circumstances that
might provide her with a plausible basis for seeking to
equitably toll the limitations period.
Ms. Crossley's Complaint is time-barred and no facts have
been asserted to support equitable tolling, this ...