Creusere v. Southwest Ohio Regional Council of Carpenters

Full title: Jan Albert Creusere Plaintiff, v. Southwest Ohio Regional Council of…

Court: United States District Court, S.D. Ohio, Western Division

Date published: Mar 28, 2002

Case C-1-01-0021 (S.D. Ohio Mar. 28, 2002)

Opinion

Case C-1-01-0021.

March 28, 2002

ORDER

Sandra S. Beckwith, United States District Judge

This matter is before the Court on Plaintiff's Objection and Motion to Vacate Part of Report and Recommendation Issued Nov. 6, 2001 by the Magistrate (Doc. No. 13).

I. Background

This action was brought by Jan Albert Creusere, pro se plaintiff, ("Creusere") on January 16, 2001, against two unions, Southwest Ohio Regional Council of Carpenters ("SWORCC")¹ and the United Brotherhood of Carpenters and Joiners ("UBC"), and two union officials, Gregory L. Martin and Dave Nelson. (Doc. No. 1). The defendants filed motions to dismiss Creusere's complaint for failure to state a claim upon which relief could be granted. (Doc. Nos. 5, 7). The Magistrate recommended that Creusere's claims² be dismissed as being time barred. (Doc. No. 12). Creusere has filed a timely objection to the Magistrate's recommendation that Claim 4 of his complaint be dismissed. (Doc. No. 13).

1 SWORCC is now known as the Ohio and Vicinity Regional Council of Carpenters.

2 Creusere's pro se complaint contained six numbered paragraphs. The Magistrate assumed that each of the numbered paragraphs constituted a separate claim. This Court will make the same assumption for purposes of this opinion.

In his complaint, Creusere fails to clearly identify his claims or the legal bases for those claims. The Magistrate concluded that Creusere is alleging that the defendants violated their duty of fair representation under the Labor Management Relations Act, 29 U.S.C. § 185 ("the LMRA"). (Doc. No. 12, p. 1) Because Creusere's claims involve conduct that occurred more than six months prior to the filing of his complaint, the Magistrate concluded that the claims were time barred under the LMRA's six months statute of limitations. (Doc. No. 12, p. 2). Accordingly, the Magistrate recommended that the claims be dismissed. (Doc. No. 12, p. 2)

Pursuant to Fed.R.Civ.P. 72(b), the Courts 5 review of the Magistrate's recommendation with respect to Claim 4 is de novo. The Court will review the unopposed recommendations of the Magistrate for clear error. Fed.R.Civ.P. 72(b), Advisory Committee Notes, 1983 Addition. See also, Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999) ("If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." (citations omitted)).

II. Analysis

It is well-settled that courts should not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000) When considering a motion to dismiss, the court "must accept all of the allegations in the complaint as true, and construe the complaint liberally in favor of the plaintiff." Herron, 203 at 414. This particularly true in the case of a complaint filed by a pro se plaintiff. Id. ("A pro se plaintiff's complaint is held to an especially liberal standard . . .").

After reviewing the Magistrate's Report and Recommendation, the Court agrees with the Magistrate's conclusion that Creusere's claims are time barred under the LMRA. The Supreme Court has held that claims against a union for violation of its duty of fair representation under the LMRA have a six month statute of limitations. DelCostello v. Int'l. Bhd. of Teamsters, 462 U.S. 151, 164-64 (1983). See also, Martin v. Lake County Sewer Co., Inc., 269 F.3d 673, 677 (6th Cir. 2001). According to the complaint, the conduct giving rise to the claims occurred on June 15, 1999, September 3, 1999, September 17, 1999, October/November 1999, December 27, 1999, and May 30, 2000 or June 12, 2000, respectively. Creusere filed his complaint on January 16, 2001, more than six months after his claims arose. Thus, the claims are time barred under the LMRA's six-month statute of limitations.

Although the Court agrees with the Magistrate that Creusere's claims are time barred under the LMRA, it does not agree that the claims should necessarily be dismissed on this basis. In his report, the Magistrate assumed that the claims included in the complaint only alleged violations of the LMRA. Despite the fact that a Right to Sue letter ("RTS letter") issued by the Equal Employment Opportunity Commission ("EEOC") was attached to the complaint, the Magistrate did not address whether the complaint alleged violations of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq., and/or the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq. ("the ADEA"), as well as violations of the LMRA. (Doc. No. 1, Attachments).³

3 In his objection to the Magistrate's report and recommendation, Creusere apologizes for failing to attach the RTS letter to his complaint. This statement is confusing because the RTS letter and the underlying EEOC charge are, in fact, attached to the complaint filed in this case.

In light of the fact that the EEOC charge and the RTS letter were attached to the complaint, the Court finds that it was clear error for the Magistrate to fail to analyze Creusere's claims as alleging possible Title VII or ADEA violations. As a result, the Court will determine whether any of the claims state valid claims under Title VII or the ADEA. Because the Court has determined that the Magistrate's failure to consider the claims as Title VII or ADEA claims was clear error, it will not limit its review to the Magistrate's recommendation with respect to Claim 4, the only recommendation to which Creusere objected.

a. Title VII and the ADEA

Title VII makes it unlawful for a labor organization "to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin . . .". 42 U.S.C. § 2000e-2 (c). Similarly, the ADEA makes in unlawful for a labor organization "to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age . . .". 29 U.S.C. § 623 (c). Under Title VII's and the ADEA's statutory schemes⁴, a person claiming to be aggrieved must file a charge with the EEOC. 42 U.S.C. § 2000e-5; 29 U.S.C. § 626 (d). If the EEOC chooses not to investigate the charge, it will notify the aggrieved person that they have ninety days to bring a civil action against a respondent. 42 U.S.C. § 2000e-5 (f)(1); 29 U.S.C. § 626 (e). The EEOC gives notice by issuing a RTS letter and mailing it to the aggrieved person. See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000). The timely filing of an EEOC charge and the issuance of a RTS letter are conditions precedent to filing a Title VII or an ADEA lawsuit. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Rivers v. Barberton Board of Education, 143 F.3d 1029, 1031-32 (6th Cir. 1998); Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir. 1984), cert. denied, 493 U.S. 964 (1989)

4 The Sixth Circuit has noted that Title VII and the ADEA "share a common purpose, i.e., elimination of discrimination in employment, both statutory schemes are similar and both statues have almost identical filing requirements and statutes of limitation". Jones v. Airco Carbide Chemical Co., 691 F.2d 1200, 1202, fn. 2 (6th Cir. 1982).

A liberal reading of Creusere's complaint and EEOC charge reveals that the incidents described in Claims 2, 4, 5, and 6 of the complaint were included in the EEOC charge. (Doc. No. 1, Attachments). However, the incidents described in Claims 1 and 3 do not appear in the EEOC charge. Therefore, with respect to Claims 1 and 3, the claims do not state a valid claim under Title VII or the ADEA because the conditions precedent to filing a lawsuit (filing an EEOC charge and the issuance of a RTS letter) were not met. Because Claims 1 and 3 do not state claims for relief under the LMRA, Title VII, or the ADEA, they should be dismissed against all the defendants.

The Court will now address the issue of whether Claims 2, 4, 5, and 6 state claims for relief under Title VII or the ADEA. As the claims may state valid claims with respect to some defendants but not others, the Court will consider each defendant separately.

b. Defendant United Brotherhood of Carpenters and Joiners of America

As already discussed, filing a charge with the EEOC and the issuance of a RTS letter are conditions precedent to initiating a Title VII or an ADEA lawsuit. A review of the EEOC charge and RTS letter attached to the complaint in this case reveals that Defendant UBC is not named in either the EEOC charge or the RTS letter. The only defendants named it this action that also appear in the EEOC charge and/or RTS letter are Defendants SWORCC and Martin.

Generally, a defendant must be named in the EEOC charge that gives rise to a subsequent lawsuit. See Romain v. Kurek, 772 F.2d 281, 283 (6th Cir. 1985). The only circumstances under which a defendant not named in an EEOC charge can be included in a subsequent lawsuit is when (1) the unnamed defendant shares a clear identity of interest with a defendant named in the EEOC charge or (2) the unnamed defendant has unfairly prevented the petitioner from filing an EEOC charge. Id. The Sixth Circuit has adopted two tests for determining whether parties share an identity of interest. Under the first test, "an identity of interest exists when the unnamed party possesses sufficient notice of the claim to participate in voluntary conciliation proceedings." Alexander v. Local 496, Laborers' Int'l. Union of N. America, 177 F.3d 394, 411 (6th Cir. 1999), cert. denied, 528 U.S. 1154 (2000). Under the second test, a court uses the following four factors to determine the nature of the relationship between the parties:

(1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;

(2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;

(3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;

(4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id.

From the record before the Court, it does not appear that there is any relationship between Defendant UBC and Defendants SWORCC and Martin. Certainly, there is nothing in the record to indicate that, under the tests outlined in Alexander, Defendant UBC shares an identity of interest with Defendants SWORCC or Martin. Furthermore, Creusere has not alleged that Defendant UBC prevented him from filing an EEOC charge against it. Consequently, with respect to Defendant UBC, Creusere has failed to meet the conditions precedent for filing a Title VII or an ADEA lawsuit (filing an EEOC charge and the issuance of a RTS letter). Therefore, to the extent Defendant UBC is named in Claims 2, 4, 5, and 6, those claims should be dismissed against Defendant UBC for failure to state a claim for relief.

c. Defendants Martin and Nelson

Defendants Martin and Nelson, former SWORCC officials, argue that they cannot be liable under Title VII because the Sixth Circuit has ruled that individuals cannot be held liable under that act. Defendants Martin's and Nelson's statement of the current state of the law in the Sixth Circuit is not completely accurate. While the Sixth Circuit has held the individual employees cannot be held liable under Title VII, it has not made the same pronouncement with respect to other types of individuals, such as union officials. See Wathen v. General Electric Co., 115 F.3d 400, 406 (6th Cir. 1997). However, for the reasons discussed below, this Court believes that if the Sixth Circuit addressed this issue, it would find that individual union officials cannot be held liable under Title VII or the ADEA.

In Wathen, the Sixth Circuit, following a majority of other circuits, held that Congress did not intend individual employees to be held liable under Title VII. 115 F.3d at 406. The plaintiff in Wathen argued that the basis for individual liability could be found in the statute's definition of the term employer which states that an employer is "a person engaged in an industry affecting commerce who has fifteen or more employees or . . . any agent of such person. 42 U.S.C. § 2000e(b) (emphasis added)". Id. at 405. The Wathen court observed that the majority of courts addressing the individual liability issue have concluded that "[t]he obvious purpose of the agent provision was to incorporate respondeat superior liability into the statute." Id. at 405-06. Moreover, the court noted that Title VII only applies to employers with fifteen or more employees. Id. at 406. The court concluded that the purpose of this size limitation was "`in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims.'" Id. (quoting Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993)). The court also pointed out that the legislative history for Title VII indicates that the issue of agent liability was not mentioned during Senate floor debates, "`implying that Congress did not contemplate agent liability under Title VII.'" Id. (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2nd Cir. 1995)). Finally, the court concluded that the remedial provisions of Title VII "are incompatible with the imposition of liability on individual employees" because successful Title VII plaintiffs are limited to reinstatement and back pay, which are remedies only available from an employer. Id. Additionally, the court noted that the "statute contains no provision for damages to be paid by individuals, further evidencing a lack of congressional intent to hold individuals liable." Id. For these reasons, the court held that "Congress did not intend individuals to face liability under the definition of "employer" it selected for Title VII." Id.

For similar reasons, this Court finds that Congress did not intend for individual union officials to be held liable under Title VII or the ADEA. The basis for potential individual liability of union officials can be found in the statutes' definition of a "labor organization" which includes an identical agent provision to the employer agent provision considered by the Wathen court. 42 U.S.C. § 2000e(d); 29 U.S.C. § 630 (d). The Court can find no reason why the labor organization agent provision should be interpreted differently than the employer agent provision. Therefore, as in Wathen, the Court concludes that the purpose of the agent provision in the labor organization definition is to incorporate respondeat superior liability into the statutes rather than to impose agent liability on union officials.

As with employers, the statutes only apply to labor organizations that have a substantial number of members or labor organizations that operate a hiring hall. 42 U.S.C. § 2000e(e); 29 U.S.C. § 630 (e). Furthermore, the statute only applies to labor organizations that are certified, labor organizations that are associated in some manner with a national or international labor organization, or local labor organizations that are recognized or acting as the representatives of employees. 42 U.S.C. § 2000e(e) (1-4); 29 U.S.C. § 630 (e) (1-4). As the court concluded in Wathen with respect to employers, these limitations indicate that Congress did not intend to target small, unorganized labor entities for liability.⁵

5 The definition of a "labor organization" also includes any organization, agency, or employee representation committee, group, association or plan which exists to participate or participates in various labor activities or any conference, general committee, joint or system board, or joint council which is engaged in various labor activities and is subordinate to a national or international labor organization. 42 U.S.C. § 2000e(d); 29 U.S.C. § 630 (d). This section of the definition of a "labor organization" clearly does not contemplate individuals.

Finally, the remedial provisions available to a plaintiff for violation of Title VII by a labor organization is back pay payable by the labor organization . 42 U.S.C. § 2000e-5 (g). The statute makes no provisions for damages to be paid by individual union officials, "evidencing a lack of congressional intent to hold individuals liable." Wathen, 115 F.3d at 406.

For these reasons, the Court concludes that an individual union official cannot be held liable under Title VII or the ADEA. Consequently, the Court finds that Defendants Martin and Nelson, former union officials of SWORCC, cannot be liable under Title VII or the ADEA. Accordingly, to the extent Defendants Martin and Nelson are named in Claims 2, 4, 5, and 6, those claims should be dismissed.

d. Southwest Ohio Regional Carpenters

With respect to Defendant SWORCC, Creusere has met the Title VII/ADEA conditions precedent because Defendant SWORCC was specifically named in the EEOC charge and the RTS letter. Furthermore, as a labor organization, Defendant SWORCC is potentially liable under Title VII and the ADEA. Notwithstanding, Defendant SWORCC argues that the claims against it should still be dismissed for failure to state a claim upon which relief can be granted.^{6 7}

6 Defendant SWORCC has limited its arguments to Claim 4, the only claim referenced by Creusere in his objection. Defendant SWORCC does not address any other claims in its arguments, presumably due to its belief that this Court would only review the Magistrate's recommendation with respect to Claim 4. The Court will assume Defendant SWORCC would make similar arguments with respect to the other claims included in the complaint and will, therefore, analyze Defendant SWORCC's argument with respect to all the claims included in the complaint.

7 One of Defendant SWORCC's arguments applies specifically to Claim 4. In Claim 4, Creusere claims he was discriminated against on the basis of his religion because special accommodations were not made for him to receive a flu shot and job-related training on a day other than his Sabbath. Defendant SWORCC argues that although the announcements for the flu shots and training were in its official newsletter, it was not involved in sponsoring those events. If Defendant SWORCC did not have any involvement in the events, it could not be liable under Title VII. Unfortunately, on the limited record before the Court, it cannot conclude that Defendant SWORCC was not involved in the sponsorship or organization of the events. The only evidence before the Court is the SWORCC newsletter, which simply includes the names of the apparent sponsors without any statements indicating that they are the sole sponsors and organizers of the events. Hopefully, this issue can be resolved on summary judgment if evidence regarding Defendant SWORCC's lack of involvement in the sponsorship and organization of the events is submitted to the Court.

First, Defendant SWORCC contends that the complaint only includes claims that allege violations of its duty of fair representation, and as such, the claims can only allege violations of the LMRA. (Doc. No. 15, p. 3). Consequently, Defendant SWORCC argues that these claims should be dismissed because they are time barred for the same reasons previously discussed in this opinion. (Doc. No. 15, p. 3). Defendant SWORCC's contention that the conduct described in the claims only allege violations of the LMRA is incorrect. The fact that conduct violates the LMRA does not preclude liability under Title VII if the conduct is motivated by a plaintiff's race, color, religion, sex, or national origin. Farmer v. ARA Services, Inc., 660 F.2d 1096, 1104 (6th Cir. 1981) ("[I]t is almost axiomatic that a union's breach of the duty of fair representation also subjects it to liability under Title VII if the breach can be shown to be because of the complaint's race, color, religion, sex, or national origin); Seep v. Commercial Motion Freight, Inc., 575 F. Supp. 1097, 1104 (S.D. Ohio 1983). Similarly, if the conduct that violates the LMRA is motivated by the plaintiff's age, that conduct would also violate the ADEA. Creusere claims Defendant SWORCC's conduct was on account of his race, religion, and/or age. Therefore, his claims allege violations of the LMRA, Title VII, and the ADEA.

Second, Defendant SWORCC argues that even if Creusere's claims allege violations of Title VII, any such claims are time barred because the complaint was filed more than ninety days after the issuance and mailing of the RTS letter, in violation of Title VII's ninety-day limitation term. (Doc. No. 15, pp. 5-7). Creusere argues that his claims are not time barred because he did not receive the RTS letter until or about October 20, 2000,⁸ and the RTS letter stated that he had ninety days from the date of his receipt of the letter to file his complaint. (Doc. No. 13, p. 2). His complaint was filed on January 16, 2001, which was within ninety days of the date he claims he received the RTS letter.

8 For purposes of this opinion, the Court will assume that Creusere is claiming he received the RTS letter on October 20, 2000.

With respect to Title VII's and the ADEA's ninety-day limitation term, a civil action is timely if it is filed within ninety days of the EEOC giving the petitioner notice he has a right to file a civil action. 42 U.S.C. § 2000e-5 (f)(1); 29 U.S.C. § 626 (e). Under Sixth Circuit law, notice is given on the fifth day following the EEOC's mailing of an RTS letter. Graham-Humphreys, 209 F.3d at 557. There is a presumption of actual delivery and receipt during this five day mailing period. Id. The presumption of actual delivery and receipt can be rebutted by proof the plaintiff did not receive the RTS letter. Id. Thus, in the present case, the ninety-day limitation term ended on October 28, 2000, ninety-five days after the RTS letter's issue and mailing date⁹, unless Creusere presents sufficient evidence to rebut the presumption of actual delivery and receipt.

9 The October 19, 2000, letter from the EEOC indicates that the RTS letter was mailed on July 25, 2000, the same date it was issued.

The sufficiency of the evidence required to rebut the presumption of actual delivery and receipt was at issue in Cook v. Providence Hospital, 820 F.2d 176 (6th Cir. 1987). The plaintiff in that case claimed that she never received a RTS letter from the EEOC. Id. at 177. When discussing the rebuttable presumption of actual receipt and delivery, the court observed the following:

We recognize the difficult situation in which an addressee is placed: what evidence, other than her denial of receipt, is available to rebut the presumption that a letter is received? Nonetheless, on these facts, we believe [the plaintiff's] denials are not sufficient to support a reasonable conclusion that the letter was not received.

Id. at 179, fn. 3. But see, Bratton v. Yoder Co., ( In re Yoder), 758 F.2d 1114, 1118 (6th Cir. 1985) ("[Testimony of non-receipt] is sufficient to rebut the presumption of receipt".).

In the present case, Creusere asserts that he did not receive the RTS letter until October 20, 2000. (Doc. No. 13, p. 2). Under Cook, this assertion, standing alone, would not be sufficient to rebut the presumption of actual delivery and receipt. However, in this case, unlike the situation in Cook, there is additional evidence of lack of receipt in the form of correspondence between Creusere and the EEOC. (Doc. No. 1, Attachments).

This correspondence includes a September 8, 2000 letter sent by Creusere to the EEOC in which he requested information regarding the status of his charge and inquiring whether he would receive a RTS letter. (Doc. No. 1, Attachments). When the EEOC did not respond, Creusere called the EEOC on October 2, 2000, requesting a response to his September 8th letter. (Doc. No. 1, Attachments). On October 6, 2000, Creusere sent another letter to the EEOC indicating that he had received a telephone message on October 5, 2000, in which an EEOC representative stated the charges were "closed with a `no cause' determination on July 25, 2000." (Doc. No. 1, Attachments). In this same letter, Creusere once again inquired as to the status of a RTS letter and requested that one be issued with the current date. (Doc. No. 1, Attachments). On October 19, 2000, the EEOC responded with a letter stating that the RTS letter had been mailed on July 25, 2000 and one could not be reissued with a different date. (Doc. No. 1, Attachments).

Assuming this correspondence is authentic, it is clear that Creusere did not receive his RTS letter anywhere near the July 25, 2000, issuance date. Despite Defendant SWORCC's argument to the contrary, the Court finds no reason to disbelieve Creusere's assertion that he received the RTS letter on October 20, 2000. (Doc. No. 15, p. 7). It defies logic to believe Creusere would waste time writing letters to the EEOC inquiring as to the status of a RTS letter if he already had such a letter in hand. Thus, the Court finds that Creusere's denial of receipt coupled with the correspondence is sufficient evidence to support the reasonable conclusion that Creusere did not receive the RTS letter until October 20, 2000.

Even if the Court concluded that Creusere had not presented sufficient evidence to rebut the presumption of actual receipt and delivery, it would conclude that Creusere's complaint was timely filed under the doctrine of equitable tolling. The Sixth Circuit has held that Title VII's ninety-day limitation term is "a timing requirement similar to a statute of limitations, subject to waiver, estoppel and equitable tolling." Truitt v. County of Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998). When determining whether the limitation term should be tolled, courts should consider the following factors: (1) the lack of actual or constructive knowledge of the issuance of the right to sue letter, (2) the party's diligence in pursuing his rights, (3) the prejudice to the defendant, and (3) the reasonableness of the party's ignorance of the legal requirements. See id. at 648. Equitable tolling is not appropriate in cases of "garden variety neglect." See Graham-Humphreys, 209 F.3d at 560.

While the Sixth Circuit has addressed the issue of equitable tolling on numerous occasions, it has rarely found circumstances under which the limitation term should be tolled. Generally, the cases involving a failure to receive or delay in receiving a RTS letter are situations where the plaintiff has failed to notify the EEOC of a change of address or failed to retrieve a certified letter from the postal office. Graham-Humphreys, 209 F.3d at 552; Banks v. Rockwell Int'l N. American Aircraft Oper., 855 F.2d 324 (6th Cir. 1988); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472 (6th Cir. 1986). The Sixth Circuit has invariably held that in such situations, the limitation term should not be tolled because the plaintiff's neglect caused the lack or delay of receipt. Id.

A case with a fact pattern most similar to the facts of the present case is the Cook case, 820 F.2d at 176. In that case, the plaintiff claimed that she did not receive the RTS letter issued by the EEOC. Id. at 177. Over a year after the charge had been closed, the plaintiff called the EEOC to inquire as to the status of her case and was told it had been closed and that she should have received a RTS letter. Id. Over a year after this telephone call, the plaintiff obtained a copy of the RTS letter during a meeting with an EEOC official. Id. The plaintiff filed her complaint within ninety days of obtaining the RTS letter. Id. The district court dismissed the plaintiff's complaint because it was filed more than ninety days after she learned she had a right to sue during her telephone conversation with the EEOC. Id. at 178. The plaintiff appealed, arguing that the ninety-day term limitation should be equitably tolled until the date she received the letter from the EEOC official. Id.

The appellate court concluded that the ninety-day time limitation should not be tolled. Id. at 180. In reaching this conclusion, the court determined that the question of whether the plaintiff had received her RTS letter was irrelevant because she admitted she had actual knowledge of her right to sue over a year before filing her action as a result of her telephone call to the EEOC:

Assuming, arguendo, that Cook did not receive the Notice, she admits that she had actual knowledge, fully one year prior to suit, that the EEOC had given her the right to sue; yet, she unjustifiably failed to pursue her rights.

Id. at 179. Because the plaintiff had waited more than a year to file her action after learning of her right to sue, the court held that the circumstances of the case did not warrant a tolling of the limitation term. Id. at 179-80.

A number factors distinguishes the present case from the Cook case. First, unlike the Cook plaintiff, Creusere did not have actual or constructive knowledge of his right to sue until he received his RTS letter.¹⁰ Furthermore, Creusere filed his lawsuit within ninety days of learning of his right to sue from the RTS letter; the plaintiff in Cook waited over a year to file suit. Additionally, Creusere did not wait over a year to inquire about the status of his EEOC charge and RTS letter. Creusere made at least three attempts, through correspondence and telephone calls, to learn of the status of his EEOC charge and RTS letter prior to the expiration of the original ninety-day limitation term. Thus, Creusere did not "unjustifiably" fail to pursue his rights.

10 It could be argued that the October 5, 2000 telephone message from the EEOC constituted notification of the right to sue. However, it appears that the message only notified Creusere that his case had been closed. Unlike the telephone conservation in Cook, it appears the EEOC representative did not tell Creusere that he had a right to sue or that a RTS letter had been mailed. This is demonstrated by the fact that in the correspondence acknowledging the receipt of the telephone message, Creusere once again inquires as to the status of a RTS letter. The implication to be drawn from this statement is that the message from the EEOC did not mention the status of the RTS letter.

Another factor to be considered is that, based on the limited record before the Court, it appears Creusere believed he was required to have a RTS letter in hand before he could file a lawsuit. In the October 6th letter to the EEOC, Creusere states the following: "I have already obtained packets of documents and information from the 6th District Court on filing suit but I can't do anything until I have the `Right to Sue' letters. Please respond." These statements demonstrate that Creusere intended to file an action, had taken steps to file such an action, but believed he could not proceed without a RTS letter in hand.

A final factor to consider is that Creusere received the RTS letter on October 20, 2000, eight days before the expiration of the ninety-day limitation term. The RTS letter stated the following:

This will be the only notice of dismissal and your right to sue that we will send you. . . 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.

(Doc. No. 1, Attachments). The Court finds that Creusere's belief that he had ninety days from October 20, 2000, the date he received the letter, to file his complaint was perfectly reasonable in light of these statements. If the RTS letter had accurately explained the state of the law, Creusere would have been aware he had only eight days remaining in which to file his lawsuit. Creusere should not be penalized for relying on inaccurate information contained in an official EEOC notification.

Thus, applying the factors outlined in Truitt, the Court finds that (1) Creusere did not have actual or constructive knowledge of the issuance of the RTS letter until October 20, 2000, (2) Creusere diligently pursued his rights, (3) it does not appear nor has Defendant SWORCC argued that it will be prejudiced by a tolling of the limitation term, and (4) Creusere's ignorance of the legal requirements was reasonable in light of the language of the RTS letter. Quite simply, this is not a case of "garden variety of neglect".

The Court concludes that, under the circumstances of this case, the ninety-day limitation term should be tolled for equitable considerations until October 20, 2000, the date Creusere claims he received the RTS letter.

In sum, the Court concludes that the ninety-day limitation term began to run on October 20, 2000, and, therefore, Creusere filed his complaint in a timely manner. However, the Court wishes to emphasize that its conclusion on this issue is based on the record before it at this time. If after discovery, it can be established that Creusere received the RTS letter prior to October 20, 2000 or that he was or should have been aware of his right to sue prior to that date, the Court is willing to revisit its decision on this issue.

III. Conclusion

For all the foregoing reasons, the Court GRANTS Defendants UBC's, Martin's, and Nelson's motions to dismiss. The Court GRANTS Defendant SWORCC's motion to dismiss with respect to Claims 1 and 3 and DENIES Defendant SWORCC's motion to dismiss with respect to Claims 2, 4, 5, and 6.