United States District Court, E.D. Virginia, Richmond Division
CURTIS A. VOLLMAR, Plaintiff,
RUNSIGNUP, INC., Defendant.
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss (the
"Motion," ECF No. 10) filed on behalf of RunSignUp,
Inc. (the "Defendant"). For the reasons that
follow, the Court will grant Defendant's Motion because
the claims contained in the Amended Complaint are
time-barred, and therefore, the matter must be dismissed with
Vollmar (the "Plaintiff) claims "he was
discriminated out of [his] job for being vegan." (Am.
Compl. 6, ECF No. 3.) The pleadings allege Plaintiff was fired
from Defendant's company after he sent a
"pro-vegan" email to his coworkers. (Id.)
According to Plaintiff, "[t]he core question is simple:
If 'carnism' can be professed and on display in the
work environment, should not veganism be allowed the same
to filing his lawsuit in this Court, Plaintiff filed an
administrative charge with the Equal Employment Opportunity
Commission ("EEOC" or the "Commission").
Thereafter, the Commission issued a right-to-sue letter on
March 29, 2018,  which allowed Plaintiff to pursue legal
action under Title VII within the constraints set by the
letter. (Am. Compl. Ex. 1.) The letter stated in relevant
part, "You may file a lawsuit against the respondents)
under federal law based on this charge in federal or state
court. Your lawsuit must be filed WITHIN 90
DAYS of your receipt of this notice; or your
right to sue based on this charge will be lost."
filed the Complaint on June 28, 2018. However, the Complaint
was never served on Bob Bickel, the original
defendant. On August 22, 2018, Plaintiff filed his
Amended Complaint that named RunSignUp, Inc. as the
Defendant. In addition, Plaintiff attached a hand-written
note to the summons that issued with the Amended Complaint.
(ECF No. 4.) That note stated, "After receiving my
original summons on June 28th, I attempted to have process
servers serve the original defendant in early July. The
process servers failed to serve the original defendant on
three occasions and have since destroyed the documents. This
took place in New Jersey of 2018." (Id.)
on this procedural history, Defendant contends that Plaintiff
failed to file his Amended Complaint within the 90-day
limitation period, rendering it untimely filed. (Def s. Mem.
in Supp. 5-9, ECF No. 11.) Defendant also argues that the
Amended Complaint cannot relate back to the Complaint's
original filing date. (Id. at 9.) Further, Defendant
contends that Plaintiffs Complaint fails to state a claim for
which relief can be granted because "veganism" is
not a protected class. (Id. at 11.)
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). To survive a 12(b)(6) challenge, the
complaint's "[f]actual allegations must be enough to
raise a right to relief above the speculative level,"
Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007),
to a level that is "plausible on its face,"
id. at 570. In addition, a plaintiffs well-pleaded
allegations are accepted as true and viewed in the light most
favorable to the plaintiff. T.G. Slater & Son, Inc.
v. Donald P. & Patricia A. Brennan LLC, 385 F.3d
836, 841 (4th Cir. 2004). A complaint's legal
conclusions, however, enjoy no such deference. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
reviewing a 12(b)(6) motion, the Court "generally cannot
reach the merits of an affirmative defense, such as the
defense that the plaintiffs claim is time-barred,"
however, the Court may consider an affirmative defense when
there are sufficient facts alleged in the complaint to make a
ruling. Goodman v. PraxAir, Inc., 494 F.3d 458, 464
(4th Cir. 2007). "This principle only applies, however,
if all facts necessary to the affirmative defense
'clearly appear on the face of the
complaint'" Id. (quoting Richmond,
Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244,
250 (4th Cir. 1993); also citing Desser v. Woods,
296 A.2d 586, 591 (Md. 1972)).
argues the Amended Complaint was untimely because it was
filed outside the 90-day limitation period, and furthermore,
the Amended Complaint does not relate back to the
Complaint's original filing date. (Def s. Mem. in Supp.
5-9.) Consequently, Defendant argues that Plaintiffs
allegations against it must be dismissed with prejudice. The
filing a lawsuit under Title VII, a prospective plaintiff
must first file an administrative charge with the EEOC. 42
U.S.C. § 2000e-5(b), (f)(1); Chacko v. Patuxent
Inst., 429 F.3d 505, 508 (4th Cir. 2005) ("Title
VII gives initial enforcement responsibility to the
EEOC"). If the EEOC declines to act upon this charge,
then a right-to-sue letter is issued, which informs a
plaintiff that he may file a lawsuit within the 90-day
limitation period that is triggered upon receipt of the
letter. 42 U.S.C. § 2000e-5(f)(1). "The timing
requirements for filing a lawsuit following an EEOC
right-to-sue notice have been strictly construed."
Lewis v. Norfolk S. Corp., 271 F.Supp.2d 807, 811
(E.D. Va. 2003) (citing Harvey v. City of New Bern Police
Dep't., 813 F.2d 652 (4th Cir. 1987) (holding that a
lawsuit filed ninety-one days after receipt of an EEOC notice
was untimely); Boyce v. Fleet Finance Inc., 802
F.Supp. 1404 (E.D. Va. 1992) (ninety-two days)). The 90-day
requirement is not jurisdictional, but it "is subject to
waiver, estoppel, and equitable tolling." Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
Fourth Circuit has rejected the principle that the 90-day
limitation period begins with the potential plaintiffs
actual receipt of the right to sue letter.
Harvey, 813 F.2d at 653-54. "If the date is
unknown, however, it is presumed that service by regular mail
is received within three days pursuant to Rule 6(e) of the
Federal Rules." Nguyen v. Inova Alexandria
Hosp., No. 98-2215, 1999 U.S. App. LEXIS 17978, *9 (4th
Cir. July 30, 1999) (citations omitted); see also
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