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RICHARDSON v. DIAGNOSTIC REHABILITATION CTR.

July 27, 1993

ROBERT RICHARDSON
v.
DIAGNOSTIC REHABILITATION CENTER



The opinion of the court was delivered by: BY THE COURT; JAMES T. GILES

 GILES, J. July 27, 1993

 Defendant has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion is denied.

 I. FACTUAL BACKGROUND

 The allegations of the complaint, which we assume to be true for the purposes of deciding this motion to dismiss, see, e.g., Jenkins v, McKeithen, 395 U.S. 411, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969), are as follows. Defendant Diagnostic Rehabilitation Center ("DRC") is in the business of providing drug and alcohol treatment services. Plaintiff Robert Richardson ("Richardson"), who is an African American, was employed by DRC from February 1990 until May 1991. DRC discriminated against Richardson, because of his race, in the terms and conditions of his employment. This discriminatory treatment culminated after Richardson allowed a former DRC client to stay at his residence overnight while Richardson tried to get him admitted to a homeless shelter. Richardson's white supervisor advised him that this violated a DRC policy against fraternization with clients and forced him to resign, in spite of the fact that white employees who violated the same policy were retained. White personnel were subsequently assigned to perform the work Richardson had done. Richardson now brings this action against DRC, alleging that its discriminatory behavior violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. DRC moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted, arguing that the Title VII claim is untimely and that the § 1981 claim is barred by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989).

 II. TITLE VII

 Title VII requires that a civil action be brought within ninety days after the plaintiff receives a "right to sue letter" from the Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 2000e-5(f)(1); Mosel v. Hills Department Store, Inc., 789 F.2d 251, 252-53 (3d Cir. 1986). *fn1" In calculating the ninety day period, the day of receipt is omitted and the day of filing is counted. Dunlap v. Sears, Roebuck & Co., 478 F. Supp. 610, 611 n.2 (E.D. Pa. 1979) (citing Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978); Geronymo v. Joseph Horne Co., 440 F. Supp. 1157 (W.D. Pa. 1977)); Fed.R.Civ.P. 6(a). DRC argues that Richardson's Title VII claim must be dismissed because it was filed more than ninety days after he received his right to sue letter. The court agrees that the complaint was filed outside the ninety day limitation period. However, principles of equitable tolling save the Title VII claim from defendant's motion to dismiss.

 A. Chronology

 The court denied Richardson's i.f.p. motion on October 2, 1992, because it found that he was employed and did not meet the standards for indigency. The court further ordered "that plaintiff shall file the required $ 120 filing fee by November 2, 1992 or the complaint shall be dismissed without prejudice." See Order of October 2, 1992. Plaintiff paid the fee to the Clerk of the Court on November 2.

 Although plaintiff paid the filing fee as ordered by the court, and the complaint was already on file with the Clerk of the Court, the Clerk did not docket the complaint at the time that the fee was paid. When the court later discovered that the complaint had not been docketed in spite of the timely payment of the filing fee, it ordered the Clerk to file the complaint. The order further directed the Clerk to issue summons, and explained some of the technical details of filing and service to plaintiff. See Memorandum and Order of January 26, 1993. The Complaint was officially filed and docketed the next day, approximately four months after the end of the ninety day limitations period.

 B. Equitable Tolling

 Title VII's ninety day limit for bringing suit is a statute of limitations, rather than a jurisdictional requirement, and is therefore subject to equitable tolling. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150-52, 104 S. Ct. 1723, 1725, 80 L. Ed. 2d 196 (1984); Mosel, 789 F.2d at 253. See also Irwin v. Veterans Administration, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990) (thirty day period after receipt of notice from EEOC in which to bring Title VII action against federal government is subject to equitable tolling). The above chronology shows, and it is undisputed by defendant, that plaintiff submitted his complaint and i.f.p. motion to the Clerk of the Court within the ninety day limitations period. While a complaint accompanied by an i.f.p. motion is usually not deemed "filed" until leave to proceed in forma pauperis is granted or the filing fee is paid, the filing of the motion tolls the applicable statute of limitations. Adams v. Heckler, 624 F. Supp. 63 (E.D. Pa. 1985) (tolling sixty day limitations period for 42 U.S.C. § 405 (g) appeal from denial of Social Security disability benefits) (citing Krajci v. Provident Consumer Discount Co., 525 F. Supp. 145, 149 (E.D. Pa. 1981), aff'd without op., 688 F.2d 822 (3d Cir. 1982); Mitchell v. Hendricks, 68 F.R.D. 564, 568 (E.D. Pa. 1975)); accord, Jones v. Waters, 563 F. Supp. 817, 818 (E.D. Pa. 1983) (tolling two year statute of limitations for 42 U.S.C. § 1983 civil rights actions); Baxter v. Consolidated Rail Corp., 552 F. Supp. 394, 394-95 (E.D. Pa. 1982) (tolling three year statute of limitations for action under Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.); Cross v. Glenn, 1992 U.S. Dist. LEXIS 18374, Civil Action No. 91-5774, 1992 WL 357754 at *2 (E.D. Pa. Nov. 25, 1992) (tolling two year statute of limitations for assault and battery claim); Ortiz v. Clarence H. Hackett, Inc., 581 F. Supp. 1258, 1260 (N.D. Ind. 1984) (tolling ninety day period from receipt of right to sue letter for bringing suit under Title VII) (citing Quiles v. O'Hare Hilton, 572 F. Supp. 866, 867 (N.D.Ill. 1983); Crook v. Penn Central Transportation Co., 427 F. Supp. 956, 961 (N.D.Ill. 1977)). A contrary holding would have the unjust effect of making the timeliness of any complaint submitted with a motion to proceed in forma pauperis depend upon the speed with which the court addresses the plaintiff's allegations of indigency.

 While submission of the complaint and i.f.p. motion to the Clerk tolled the statute of limitations, we need not assume that it stayed the limitations period for all time. Instead, we assume that a limitations period will generally begin to run again when the i.f.p. motion is denied. See Ortiz, 581 F. Supp. at 1261. Plaintiff's i.f.p. motion was denied on October 2, 1992. However, when the court denied plaintiff's i.f.p. motion, it gave him until November 2 to pay the filing fee. Because the court's order "led plaintiff to believe that [he would have] satisfied all statutory prerequisites to suit" if he paid the filing fee by November 2, the limitations period must ...


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