United States District Court, E.D. Pennsylvania
LAWRENCE F. STENGEL, District Judge.
This case is a Title VII employment discrimination case brought by a pro se plaintiff, Mr. Bangura. Previously, the plaintiff had filed another complaint pro se, asserting the same facts under state law. I dismissed that complaint for lack of subject matter jurisdiction. The defendant again moves to dismiss this complaint. For the reasons stated below, I will grant the defendant's motion.
This dispute has a long, storied procedural history. The plantiff Bakarr Bangura is a former employee of the defendant Elwyn. He claims that he was fired based on national origin. On May 2, 2011, the plaintiff had filed a complaint in this court (Civ. A. No. 11-2793), alleging only a state claim under the Pennsylvania Human Relations Act (PHRA). Following an attempt to provide the plaintiff counsel, which he declined, I dismissed the case because the plaintiff had not exhausted his administrative remedies under the PHRA. The plaintiff appealed that decision; the Third Circuit vacated and remanded the decision to determine a basis for jurisdiction. See Bangura v. Elwyn, Inc., 461 Fed.Appx. 87 (3d Cir. Feb. 22, 2012)(per curiam)(unpublished).
After permitting the plaintiff to amend his complaint to include a basis for federal jurisdiction, I again dismissed his amended complaint because he failed to assert a basis for federal jurisdiction. See Bangura v. Elwyn, Inc., No. 11-2793, 2012 WL 2120568 (E.D.Pa. Jun. 12, 2012)(Stengel, J.). Because the plaintiff was pro se, I also touched on the merits of the plaintiff's claim as if it had been brought under Title VII in the memorandum. Id. at *1. I noted that the plaintiff filed his suit 188 days after he allegedly received his right to sue letter from the EEOC; therefore, his Title VII claim would still have failed as being time barred. Id.
The plaintiff again appealed, and the Third Circuit affirmed the dismissal on October 3, 2012. See Bangura v. Elwyn, Inc., 500 Fed.Appx. 113, 115 (3d Cir. Oct. 3, 2012)(per curiam)(unpublished)("Pro se filings generally must be liberally construed, but we cannot fault the District Court for declining to give Bangura a third opportunity to assert a federal claim under these circumstances, particularly after he expressly declined the appointment of counsel.").
On February 12, 2013, the plaintiff filed the current complaint in Common Pleas Court in Delaware County, Pennsylvania. This complaint, however, was filed as a Title VII claim, not a PHRA claim. It asserts the same facts as were brought in the plaintiff's previous complaint which I dismissed. The plaintiff's complaint states that he was suspended from work at Elwyn's Thornbury Program after an incident on September 5, 2008. He was then fired, which he believes was based on discrimination against him as an immigrant from West Africa. He filed a complaint with the EEOC on November 6, 2008. After filing a complaint with the EEOC, the plaintiff allegedly received his right to sue letter from the EEOC on October 26, 2010.
On March 18, 2013, the defendant removed the case to this court. Subsequently, the defendant moved to dismiss the complaint as being barred by the statute of limitations. The plaintiff failed to respond to the defendant's motion, even after being directed by this court to do so.
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson , 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id .; see also D.P. Enters. v. Bucks County Cmty. Coll. , 725 F.2d 943, 944 (3d Cir. 1984). A court "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Brown v. Card Service Center , 464 F.3d 450, 456 (3d Cir. 2006)(quoting Hishon v. King & Spalding , 467 U.S. 69, 73 (1984)).
The defendant argues that the plaintiff's complaint must be dismissed because it is barred by the statute of limitations under Title VII. Before a federal court can have jurisdiction to hear a Title VII case, a plaintiff must file a complaint with the Equal Employment Opportunity Commission (EEOC), which first reviews the merits of the plaintiff's complaint under Title VII. If the plaintiff's claim has some merit, he will then receive a right to sue letter from the EEOC. Title VII requires that a plaintiff file suit within ninety days of receiving the right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1) ("The Commission... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge"). The Third Circuit treats this requirement as a statute of limitations rather than a jurisdictional prerequisite to suit. See Figueroa v. Buccaneer Hotel, Inc. , 188 F.3d 172, 176 (3d Cir. V.I. 1999).
The plaintiff allegedly received the right to sue letter from the EEOC on October 26, 2010. He then filed this suit on February 12, 2013. Therefore, the plaintiff filed this suit over two years after he received his right to sue letter, well beyond the 90-day deadline imposed by the EEOC. As a result, the plaintiff is barred from bringing ...