United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant Douglas County
School District No. 17's (“School District”)
motion to dismiss, Filing No. 11. This is an action for
gender discrimination in employment brought pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. and the Nebraska Fair employment Practices
Act, § 48-1101 et seq.
plaintiff, Jill Stogdill, formerly employed by the School
district as a teacher and guidance counselor, alleges that
she was discriminated against “[b]ased on [the School
District's] perception that [she] is not a stereotypical
female, ” and further alleges she was forced to resign
“because she was viewed by [the School District] as
non-typical and engaged in a life relationship with another
female.” Filing No. 1, Complaint at 5. She alleges she
was treated differently and more harshly than other
stereotypical males or females. Id. Attached to the
complaint is an Equal Employment Opportunity Commission
“Notice of Right to Sue” (“Right to Sue
Letter”). Id., Ex. A.
defendant moves for summary judgment, contending that the
plaintiff's action is time barred. In support of its
motion, the School District submits the affidavit of counsel,
Duncan A. Young (“Young Aff.”), and attached
exhibits, including copies of the Right to Sue Letter issued
by the Equal Employment Opportunity Commission
(“EEOC”) on January 18, 2018, and the
Administrative Dismissal of the charge before the Nebraska
Equal Opportunity Commission (“NEOC”) dated
February 28, 2018. Filing No. 12, Exs. E & F.
response, the plaintiff also submits an affidavit of counsel.
Filing No. 15-1 Declaration of Terry A. White (“White
Decl.”). The plaintiff contends she has complied with
statutory requirements and time limits, arguing that her
complaint in this action was filed within ninety days of the
date the Right to Sue Letter was received by counsel.
Plaintiff filed this action in the United States District
Court for the District of Nebraska on May 18, 2018.
Right to Sue Letter indicates on its face that it was mailed
on January 18, 2018. Filing No. 1-1, Ex. A; Filing No. 12, Ex
E. It informs the plaintiff that
Your lawsuit under Title VII . . . must be filed in a federal
or state court WITHIN 90 DAYS of your receipt of this notice
or your right to sue based on this charge will be lost. (The
time limit for filing suit based on a claim under state law
may be different.).
Id. at 1 (emphasis in original). The EEOC Right to
Sue Letter was addressed to the plaintiff at the same
address, 19706 Williams Street, Omaha, Nebraska 68130,
reflected in the initial charges she filed with the EEOC and
is the plaintiff's current address. Id.;
see Filing No. 12, Young Aff. at 2; Ex. B, Charge of
Discrimination. The Right to Sue Letter states that it was
issued at the plaintiff's request. Filing No. 1-1,
Complaint, Ex. A, Right to Sue Letter; Filing No. 12, Ex E.
plaintiff submits evidence that shows Stogdill and her
counsel made several requests for a Right to Sue Letter.
Filing No. 15-1, White Decl. at 1; Filing No. 15-2, Ex. A-1,
e-mail dated Nov, 8, 2017. The record shows that on December
13, 2017, plaintiff's counsel contacted Marilyn Koshiway
at the EEOC, stating
I understand you are or were handling Jill Stogdill's
charge of discrimination, EEOC# 32E-2016-00617, which was
transferred to you by the Nebraska Equal Opportunity
Commission, NEB 1-15/16-6-481107.
I have never heard from you regarding the status of Ms.
Stogdill's claim. I am requesting a Right to Sue Letter
so Ms. Stogdill can pursue her claims.
let me know the status of this request, by close of business
today. Filing No. 15-3, Ex. A-2, e-mail dated Dec. 13, 2017;
Filing No. 15-5, e-mail dated Dec. 13, 2017. Plaintiff's
counsel states in her declaration that she never received a
response. Filing No. 15-1, White Decl. at 1.
January 17, 2018, counsel e-mailed an investigator at the
NEOC as follows: “Can you please let me know who or
where at the EEOC received the NEOC file for Jill Stogdill
(nee Prochaska)? We have NEVER gotten anything from them and
her case is getting lost in the ...