Hill v . Textron CV-00-221-M 03/17/01
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Hill, Jr.,
Plaintiff
v. Civil N o . 00-221-M
Opinion N o . 2001 DNH 051
Textron Automotive
Interiors, Inc.,
Defendant
O R D E R
James Hill, Jr. brings this action against his former
employer, Textron Automotive Interiors, seeking damages for
alleged acts of racial harassment and discrimination. See 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. Textron moves to dismiss both of Hill’s
claims, asserting that they are time barred. See Fed. R. Civ. P.
12(b)(6). Hill objects.
Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inquiry, focusing not on “whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v . Rhodes, 416 U.S.
232, 236 (1974). In considering a motion to dismiss, “the
material facts alleged in the complaint are to be construed in
the light most favorable to the plaintiff and taken as admitted.”
Chasan v . Village District of Eastman,
572 F.Supp. 5 7 8 , 579
(D.N.H. 1983). See also The Dartmouth Review v . Dartmouth
College,
889 F.2d 1 3 , 15 (1st Cir. 1989). “[D]ismissal is
appropriate only if ‘it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.’” Roeder v . Alpha Industries, Inc.,
814
F.2d 2 2 , 25 (1st Cir. 1987)(quoting Conley v . Gibson,
355 U.S.
4 1 , 45-46 (1957)).
Background
Accepting the allegations set forth in the complaint as true
(as the court must do at this stage of the litigation), the
material facts appears as follows. Hill alleges that he “is
partly Portuguese and his skin is darker than a Caucasian’s.”
Complaint, at para. 1 0 . Accordingly, he says he “is a person of
color.” Id., at para. 2 .
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In November of 1989, Textron hired Hill as a machine
operator. Hills says that during his tenure with Textron he was
subjected to racial harassment that was both severe and
pervasive. He also claims to have been the victim of racial
discrimination. In October of 1996, Hill was laid off. He says
that although Textron normally followed a strict policy of laying
off workers in order of their seniority, he was terminated while
an employee of lesser seniority was retained. He claims
Textron’s decision to terminate him was motivated by unlawful
racial discrimination.
Approximately five months after his termination, Hill filed
a charge of discrimination with the New Hampshire Human Rights
Commission (the “HRC”). Complaint, at para. 7 . In December of
1998, the HRC issued a finding of “no probable cause.” In
January of 1999, counsel for Hill requested the Equal Employment
Opportunity Commission (“EEOC”) to reconsider the matter and
issue a “right to sue” letter. Approximately three months later,
on March 2 3 , 1999, the EEOC mailed a “Dismissal and Notice of
Rights” letter to both Hill and Textron. Hill’s copy was
addressed to the post office box he had provided as his mailing
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address. In that notice, the EEOC told Hill that it had adopted
the findings of the HRC, informed him of his right to sue
Textron, and specifically notified him that “your lawsuit must be
filed within 90 days of your receipt of this Notice; otherwise
your right to sue based on this charge will be lost.” Exhibit B
to defendant’s memorandum. The copy sent to Textron arrived in
due course. Hill, however, asserts in a rather conclusory
fashion that he never received his copy. Nevertheless, the
letter addressed to Hill was not returned as undelivered or
undeliverable.
In January of 2000, more than a year after Hill asked the
EEOC to reconsider the matter and issue a right to sue letter,
counsel for Hill contacted the EEOC and left a message inquiring
into the status of Hill’s case. She received no response and,
with newly found urgency, faxed a letter of inquiry to the EEOC.
On February 4 , 2000, the EEOC faxed her a copy of the right to
sue letter it mailed nearly a year earlier, dated March 2 3 , 1999.
Hill and his counsel say that was the first time they learned
that the EEOC had issued a right to sue letter. And, because he
commenced this litigation within 90 days of his counsel’s having
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received a copy of the right to sue letter on February 4 , 2000,
Hill asserts that his complaint should be deemed timely. Not
surprisingly, Textron points out that Hill filed this action more
than one year after the EEOC mailed the right to sue letter and,
for that reason, says Hill’s Title VII claim is barred by the 90
day filing requirement.
As for Hill’s section 1981 claim, Textron asserts that it
too is time barred. In support of that position, Textron says
because section 1981 itself contains no statute of limitations,
the court must borrow New Hampshire’s three-year statute of
limitations. Hill, on the other hand, urges the court to apply
the four-year limitations period set forth in 28 U.S.C. § 1658
and rule that he filed his section 1981 claim against Textron in
a timely manner.
Finally, Textron says Hill cannot maintain a cause of action
under section 1981 because he “does not have a contractual
relationship with his employer.” Defendant’s memorandum at 9.
In response, Hill argues that employees at will, like employees
under contract, may avail themselves of the protections afforded
5
by section 1981. That issue is apparently unresolved in this
circuit and, among those courts to have addressed i t , there is a
split of authority.
Discussion
I. Hill’s Title VII Claim.
Section 2000e-5 of Title 42 provides that an individual must
file suit in federal court within 90 days after the EEOC provides
him or her with a right to sue letter. 42 U.S.C. § 2000e-5(f)(1)
(the EEOC “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.”) (emphasis
supplied). However, most courts have concluded that the 90-day
period does not begin to run until the aggrieved individual
actually receives notice in the form of a right to sue letter,
and the EEOC, in turn, has adopted the general rule that the 90
day period begins to run upon the claimant’s receipt of the right
to sue letter. See EEOC Compliance Manual, para. 255, §
4.5(a)(2) (2000), Exhibit D to defendant’s memorandum (“the date
the [right to sue letter] is received begins the Title
VII/ADA/ADEA 90 day limitation.”).
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In considering the effect of a claimant’s failure to file
suit within the 90 days specified in section 2000e-5(f)(1), the
Court of Appeals for the First Circuit has concluded that
“section 2000e-5(f)(1) is nonjurisdictional.” Rice v . New England
College, 676 F.2d 9, 10 (1st Cir. 1982). The fact that the 90-
day filing rule is non-jurisdictional is significant. First,
because it is more akin to a statute of limitations than a
jurisdictional prerequisite to suit, it is subject to waiver and
equitable tolling. See generally Zipes v . Trans World Airlines,
Inc.,
455 U.S. 385 (1982). Second, subject matter jurisdiction
issues may be resolved by the court in fundamentally different
ways than a limitations defense. Jurisdictional issues are
typically raised in the context of a Rule 12(b)(1) motion to
dismiss and, in deciding such a motion, the court “may consider
pleadings, affidavits, and other evidentiary materials without
converting the motion to dismiss to a motion for summary
judgment.” Lex Computer & Management Corp. v . Eslinger & Pelton,
P.C.,
676 F. Supp. 399, 402 (D.N.H. 1987); see also Richmond, F &
P R. C o . v . United States,
945 F.2d 765, 768 (4th Cir. 1991);
Lawrence v . Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990).
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On the other hand, when deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim (e.g., failure to comply
with pertinent limitations period), the court must accept the
truth of the allegations set forth in the complaint and is
typically restricted to an examination of that pleading and any
attachments to i t . See Watterson v . Page, 987 F.2d 1 , 3-4 (1st
Cir. 1993) (“Ordinarily, of course, any consideration of
documents not attached to the complaint, or not expressly
incorporated therein, is forbidden, unless the proceeding is
properly converted into one for summary judgment under Rule 56. 1
Turning to the substance of Hill’s complaint, he does not
seem to be arguing that the 90 day filing deadline should be
equitably tolled. Instead, he claims that he did not receive the
EEOC’s right to sue letter until a copy was faxed to his attorney
1
To be sure, the Watterson court went on to observe
that, “courts have made narrow exceptions for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to plaintiffs’
claim; or for documents sufficiently referred to in the
complaint.” Id., at 4 . In this case, however, many of the
documents upon which the parties rely in support of their
arguments (e.g., affidavits) fall outside the categories listed
in Watterson. Thus, in ruling on Textron’s motion to dismiss,
the court must accept the allegations set forth in the complaint
as true and cannot rely upon the additional materials submitted
by the parties that raise or address disputed issues of fact.
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on February 4 , 2000. Thus, he says his civil suit - filed on May
5 , 2000 - was actually filed within the prescribed 90 day period
following his actual receipt of the right to sue notice. While
Textron understandably doubts Hill’s asserted failure to receive
the initial right to sue letter in March of 1999, that factual
matter is plainly disputed and, therefore, cannot be resolved on
a Rule 12(b)(6) motion to dismiss. In other words, because the
grounds for concluding that Hill’s civil suit is untimely are not
apparent from the complaint and, instead, come into focus only
when one examines Textron’s motion to dismiss and its
accompanying affidavits, the court is precluded, given the
current procedural posture, from granting Textron’s motion to
dismiss Hill’s Title VII claim as barred by the 90 day filing
requirement.
II. Hill’s Section 1981 Claim.
As to Hill’s section 1981 claim, Textron asserts that it
must be dismissed for two reasons. First, Textron says the claim
is barred by the applicable statute of limitations. Next, even
assuming Hill’s claim is not time-barred, Textron asserts that
since he was an employee at will, Hill “did not have the
9
requisite contractual relationship with Textron to state a claim
under section 1981.” Defendant’s memorandum at 9.
A. Section 1981 and the Statute of Limitations.
In count one of his complaint, Hill claims that Textron’s
decision to terminate his employment violated his rights under 42
U.S.C. § 1981. That statute provides, in relevant part, that:
(a) Statement of Equal Rights. All persons within the
jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce
contracts . . . as enjoyed by white citizens . . . .
42 U.S.C. § 1981(a). In Patterson v . McLean Credit Union,
491
U.S. 164 (1989), the Supreme Court held that section 1981 “does
not apply to conduct which occurs after the formation of a
contract and which does not interfere with the right to enforce
established contract obligations.”
Id., at 171.
In 1991, responding at least in part to the Patterson
decision, Congress enacted the Civil Rights Act of 1991 which,
among other things, amended section 1981 by adding the following
provision:
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(b) “Make and enforce contracts” defined. For
purposes of this section, the term “make and enforce
contracts” includes the making, performance,
modification, and termination of contracts, and the
enjoyment of all benefits, privileges, and conditions
of the contractual relationship.
42 U.S.C. § 1981(b). Thus, the amendments enacted as part of the
Civil Rights Act of 1991 provide that the statute’s “prohibition
against racial discrimination in the making and enforcement of
contracts applies to all phases and incidents of the contractual
relationship, including discriminatory contract terminations.”
Rivers v . Roadway Express, Inc.,
511 U.S. 298, 302 (1994).
Consequently, while under prior Supreme Court precedent Hill
would have no claim under section 1981 stemming from Textron’s
allegedly racially motivated decision to terminate his
employment, the amendments to section 1981 enacted as part of the
Civil Rights Act of 1991 provide him with such a cause of action.
For reasons discussed below, it is important to note that Hill’s
section 1981 claim arises out of the 1991 amendments to the
statute.
Section 1981 contains no statute of limitations.
Historically, therefore, courts have borrowed the most closely
11
analogous state statute of limitations and applied it to claims
arising under section 1981. See, e.g., Johnson v . Rodriguez, 943
F.2d 104 (1st Cir. 1991) (adopting Massachusetts’ three-year
personal injury statute of limitations for claims arising under
section 1981). In 1990, however, Congress enacted a statute of
limitations generally applicable to all civil actions arising
under federal law, which provides:
Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the date
of the enactment of this section may not be commenced
later than 4 years after the cause of action accrues.
28 U.S.C. § 1658. S o , the critical issue presented by
defendant’s motion to dismiss is whether the four-year
limitations period prescribed by
28 U.S.C. § 1658 applies to
Hill’s claim (since it is brought pursuant to the amendments to
section 1981 that were enacted after the effective date of
section 1658), or whether the court should continue to borrow New
Hampshire’s three year statute of limitations, notwithstanding
the provisions of
28 U.S.C. § 1658 and the subsequent amendments
to section 1981.
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The Court of Appeals for the First Circuit has yet to
address this issue. At least two district court opinions from
this circuit stand for the proposition that, with regard to
claims brought pursuant to section 1981, it remains appropriate
to borrow the state’s most closely analogous statute of
limitations. See Joseph v . Wentworth Institute of Technology,
120 F. Supp. 2d 134 (D.Ma. 2000); Govan v . Trustees of Boston
University,
66 F. Supp. 2d 74 (D.Ma. 1999). However, those
decisions simply rely upon the circuit court’s opinion in Johnson
v .
Rodriguez, supra, and do not consider the effect or
applicability of
28 U.S.C. § 1658 (which was enacted after the
relevant events giving rise to the Johnson case) to claims
brought pursuant to the 1991 amendments to section 1981.
Consequently, those opinions provide little guidance in this
case.
To be sure, there is a split of authority on the issue.
However, the court is persuaded that the better reasoned opinions
are those that conclude the four-year limitations period set
forth in 28 U.S.C. § 1658 applies to claims, such as Hill’s, that
arise under the amendments to
42 U.S.C. § 1981 enacted as part of
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the Civil Rights Act of 1991. The United States District Court
for the Western District of Tennessee recently described the
disagreement:
A careful reading of the opinions in those cases
reveals a split on the question of the applicability of
§ 1658 to claims brought under the Civil Rights Act of
1991. . . . Those courts holding that § 1658 had no
effect essentially did so based on the principle of
stare decisis. Essentially, those courts found that
there was a distinction between an act “enacted” after
1990 and an amendment to an existing act after 1990.
Amendments to a pre-1990 act after 1990 did not come
under the fall back statute of limitations contained in
§ 1658. Those cases holding that § 1658 required the
application of a four year statute of limitations did
so based upon the theory that the relevant statutory
amendment was not “merely technical in nature” and that
it either created a new cause of action or restored a
cause of action previously overlooked by courts. In
either event, the relevant amendment was an enactment
for purposes of § 1658.
Miller v . Federal Express Corp., 56 F. Supp. 2d 955, 965
(W.D.Tenn. 1999) (citations omitted). See also Nealey v .
University Health Services, Inc.,
114 F. Supp. 2d 1358, 1365
(S.D. Ga. 2000) (collecting cases and concluding that the four-
year limitations period provided by
28 U.S.C. § 1658 applies to
claims brought under the Civil Rights Act of 1991 amendments to
section 1981); Miller v . Federal Express Corp.,
56 F. Supp. 2d
955, 963-65 (W.D. Tenn. 1999) (discussing the legislative history
14
of 28 U.S.C. § 1658 and concluding that its four-year limitations
period applies to claims brought under the amendments to section
1981 that were enacted as part of the Civil Rights Act of 1991).
But see Zubi v . AT&T Corp.,
219 F.3d 220, 226 (3rd Cir. 2000)
(“Congress here chose to build upon a statutory text that has
existed since 1870. Accordingly, we hold that [plaintiff’s]
civil action arises under an Act of Congress enacted before
December 1 , 1990, and is governed by [the State’s] two year
statute of limitations.”).
This court is persuaded that, because Hill’s section 1981
claim against Textron arises out of the amendments to that
statute that were enacted as part of the Civil Rights Act of
1991, and because he filed his claim within four years, it is
timely filed under 28 U.S.C. § 1658, the applicable federal
limitations statute.
B. Section 1981 and Employees at Will.
Next, Textron argues that, as an "employee at will," Hill
cannot avail himself of the provisions of section 1981. In
essence, it says that because Hill’s employment was terminable at
15
will, he lacked any contractual relationship with Textron and,
therefore, has no viable claim that his employment "contract" was
terminated in a manner that violated any protections afforded by
section 1981.
The court of appeals for this circuit has yet to address
this issue. However, the great weight of authority from other
circuit courts of appeals supports the view that employees at
will can avail themselves of the protections afforded by section
1981. See, e.g., Lauture v . International Business Machines
Corp., 216 F.3d 258 (2d Cir. 2000); Perry v . Woodward,
199 F.3d
1126 (10th Cir. 1999), cert. denied,
120 S.Ct. 1964 (2000);
Spriggs v . Diamond Auto Glass,
165 F.3d 1015 (4th Cir. 1999);
Fadeyi v . Planned Parenthood Ass’n of Lubbock, Inc.,
160 F.3d
1048 (5th Cir. 1998). And, at least one district court in this
circuit shares the view that an employee at will may pursue
claims against his or her former employer under section 1981.
See Joseph v . Wentworth Institute of Technology,
120 F. Supp. 2d
at 144. Moreover, the conclusion that employees at will have a
sufficient “contractual” relationship with their employer to
bring suit under section 1981 is entirely consistent with New
16
Hampshire’s common law, which holds that "at will" employment
relationship to be contractual in nature. See generally Monge v .
Beebe Rubber Co., 114 N.H. 130 (1974).
Textron’s reliance upon Gonzalez v . Ingersoll Milling
Machine Co., 133 F.3d 1025 (7th Cir. 1998), for the
countervailing view is misplaced and unpersuasive. In that case,
the Seventh Circuit discussed, but did not resolve, the question
of whether an employee at will can bring suit under section 1981.
See
id., at 1035 (“However, we need not determine whether
[plaintiff’s] at-will status provided adequate support for her
section 1981 claim . . . . ” ) .
This court joins the majority of courts that have concluded
that an employee at will is not precluded from bringing suit
under 42 U.S.C. § 1981. Accordingly, defendant’s motion to
dismiss count one of plaintiff’s complaint is denied.
Conclusion
Defendant’s motion to dismiss (document no. 4 ) is denied.
I f , after engaging in pertinent discovery, Textron should elect
17
to revisit the question of whether Hill filed his Title VII claim
in a timely fashion (e.g., in a motion for summary judgment), the
parties’ legal memoranda should, at a minimum, address the
following issues:
1. Who bears the burden of showing when Hill actually
received the right to sue letter. See, e.g., Stambaugh
v . Kansas Dept. of Corrections, 844 F. Supp. 1431, 1433
(D. Kansas 1994) (holding that the burden rests with
the plaintiff to prove that he filed suit within 90
days of receipt of a right to sue letter.); See also
Rice v . New England College, 676 F.2d at 10 (suggesting
that, absent evidence from plaintiff, court will
presume that notice of right to sue was delivered in
the ordinary course by the Postal Service).
2. Whether this case presents a situation in which the
presumption of receipt set forth in Rule 6(e) applies.
See generally Baldwin County Welcome Center v . Brown,
466 U.S. 1 4 7 , 148 n . 1 (1984); Stambaugh,
844 F. Supp.
at 1432-33 (collecting cases).
3. Whether plaintiff’s claim that “mail was often not
delivered to my residence” is relevant, since he
provided the EEOC with a post office box address,
rather than a street address, as his mailing address.
4. The date on which plaintiff changed his mailing address
and, if that change occurred prior to the EEOC’s
issuance of the right to sue letter, whether he
notified the EEOC of his new address.
5. Whether principles of equitable tolling apply to the
circumstances of this case and, if s o , whether Hill can
properly invoke such equitable principles given the
substantial delay (i.e., one year) in contacting the
he status of his complaint.
EEOC to check on the
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SO ORDERED.
Steven J. McAuliffe
United States District Judge
March 1 7 , 2001
cc: Leslie H . Johnson, Esq.
Debra Dyleski-Najjar, Esq.
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