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Vollmar v. Runsignup, Inc.

United States District Court, E.D. Virginia, Richmond Division

November 15, 2018

CURTIS A. VOLLMAR, Plaintiff,
v.
RUNSIGNUP, INC., Defendant.

          MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION TO DISMISS)

          HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.

         This 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 prejudice.

         I. BACKGROUND

         Curtis Vollmar (the "Plaintiff) claims "he was discriminated out of [his] job for being vegan." (Am. Compl. 6, ECF No. 3.) The pleadings[1] 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 protections?" (Id.)

         Prior 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, [2] 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." (Id.)

         Plaintiff filed the Complaint on June 28, 2018. However, the Complaint was never served on Bob Bickel, the original defendant.[3] 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.)

         Based 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.[4] (Id. at 11.)

         II. STANDARD OF REVIEW

         "A 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).

         When 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)).

         III. DISCUSSION

         Defendant 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 Court agrees.

         Before 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).

         The 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 Pennington v. Gen. Dynamics ...


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