UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TERESA D. GREEN,

Plaintiff,

Civil Action 2:13-cv-41

v. Magistrate Judge Elizabeth P. Deavers

CENTRAL OHIO TRANSIT 

AUTHORITY,

Defendant.

OPINION AND ORDER

Plaintiff Teresa D. Green brings this employment action against her former employer,

Central Ohio Transit Authority (“COTA”), pursuant to Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., as well as the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12101 et seq. This matter is before the Court for consideration of Defendant’s Motion to

Dismiss for Failure to State a Claim and Lack of Jurisdiction. (ECF No. 8.) Plaintiff filed her

Response in Opposition to Defendant’s Motion on April 30, 2013. (ECF No. 17.) Defendant

filed its Reply on May 17, 2013. (ECF No. 19.) For the reasons that follow, Defendant’s

Motion is GRANTED. Plaintiff’s claims of race discrimination in violation of Title VII and

failure to accommodate in violation of the ADA are hereby DISMISSED for failure to state a

claim. 

I.

According to her Complaint, Plaintiff worked for COTA from March 19, 1992 until her

September 8, 2011 discharge. (Compl. ¶ 3, ECF No. 2.) Plaintiff is an African American

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woman who suffers from a chronic lung disorder. She alleges that she was subjected to

numerous instances of discrimination on the basis of her race and disability, as well as

retaliation, throughout her employment. Id. at ¶¶ 9, 10. 

Plaintiff filed three charges with the Equal Employment Opportunity Commission

(“EEOC”) during her employment with COTA. (Compl. Exs. 1-3, ECF No. 2; Mot. 2, Exs. 2, 3,

4, ECF No. 8-2 through 8-4.) She filed the first charge on February 10, 2011, approximately five

months after she was transferred to a new facility overseen by a supervisor named John

Hancock. Id. In the charge, Plaintiff alleged that the transfer constituted a failure to

accommodate her disability because the new position, which exposed her to diesel fumes,

aggravated her lung condition. (Compl. ¶¶ 12-13, ECF No. 2.) She also alleged in the charge

that Hancock discriminated against her on the basis of her race and disability. The EEOC sent

Plaintiff a right-to-sue letter on January 23, 2012. Id. at Ex. 1A, 1B.

Plaintiff filed a second charge with the EEOC on June 7, 2011. (Mot. Ex. 2, ECF No. 8.) 

In that charge she alleged that Hancock attempted to change her work schedule in retaliation for

filing the first charge. (Compl. ¶ 24, ECF No. 2.) She also alleged that Defendant had continued

to deny her a reasonable accommodation for her disability. Id. The EEOC never issued a rightto-sue letter with respect to this second charge, however, because the parties resolved the dispute

and Plaintiff withdrew the charge. (Mot. Ex. 3, ECF No. 8.)

Plaintiff was discharged on September 8, 2011, which led to her third and final EEOC

charge. (Compl. ¶ 26 , ECF No. 2.) In her final charge, Plaintiff alleged that COTA terminated

her in retaliation for filing the prior EEOC charges. The EEOC sent Plaintiff a right-to-sue letter

on October 22, 2012. Id. at Ex. 1. 

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On January 15, 2013, Plaintiff filed the instant action, asserting claims related to each of

the three EEOC charges set forth above. Specifically, she asserts claims for (1) racial

discrimination in violation of Title VII; (2) failure-to-accommodate and in violation of the

Americans with Disabilities Act (“ADA”); and (3) retaliatory discharge. Id. 

II.

Defendant moves to dismiss two sets of Plaintiff’s claims under Rule 12(b)(6) of the

Federal Rules of Civil Procedure.1 Dismissal under Rule 12(b)(6) is appropriate if the Plaintiff

has failed to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). To

properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal

pleading requirements set forth in Fed. R. Civ. P. 8(a). See Hill v. Lappin, 630 F.3d 468, 470–71

(6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28

U.S.C. § 1915(e)(2)(B)(ii)). Although this pleading standard does not require “‘detailed factual

allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of

1

Defendant also seeks dismissal under Rule 12(b)(1) for lack of subject-matter

jurisdiction because Plaintiff failed to exhaust her administrative remedies and timely file her

lawsuit within 90 days of receipt of her right to sue letter. (Mot. 3, ECF no. 8.) Failure to

exhaust administrative remedies in a Title VII action is generally not a jurisdictional

requirement. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 403 (6th Cir. 2008); Emswiler v.

CSX Transp., Inc., 691 F.3d 782, 780 (6th Cir. 2012). Thus, the Court addresses Defendant’s

arguments under Rule 12(b)(6). See, e.g., Mitchelle v. Chapman, 343 F.3d 811, 820 n.10 (6th

Cir. 2003) (“It is well-settled that the ninety day right to sue provision is an administrative

condition precedent, rather than a jurisdictional prerequisite. Consequently, the court should

dismiss the action pursuant to Rule 12(b)(6), for failure to state a claim, rather than Rule 12(b)(1)

for lack of subject matter jurisdiction.”). 

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‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a

motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that

is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is

established “when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. The Court is not required

to accept as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S. Ct. At

1949.

In considering whether this facial plausibility standard is met, a Court must construe the

complaint in the light most favorable to the non-moving party, accept all factual allegations as

true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations

omitted). The Court is not required, however, to accept as true mere legal conclusions

unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949. 

Ordinarily, the Court may not consider matters outside the pleadings when ruling on a

motion to dismiss without converting it to a motion for summary judgment under Rule 56. The

Court may, however, consider documents attached to a motion to dismiss or motion for judgment

on the pleadings without converting if they are referred to in the plaintiff’s complaint and are

central to the plaintiff’s claim. Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997). The

Court may also consider public records when ruling on such motions. Nieman v. NLO, Inc., 108

F.3d 1546, 1554 (6th Cir. 1997). Morever, as it relates to this case, the Court may take judicial

notice of the EEOC documents attached to Defendants’ Motion without converting the Motion to

one for summary judgment. See, e.g., Caplinger v. Uraniam Disposition Servs., LLC, No. 08-

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548, 2009 WL 367407 (Feb. 11, 2009) (“Documents filed with, and coming from the EEOC, are

considered matters of public record” and are properly considered with a motion to dismiss). 

III.

A plaintiff bringing claims under Title VII or the ADA must first exhaust her

administrative remedies with the Equal Employment Opportunity Commission (“EEOC”) and

obtain a right-to-sue letter. 42 U.S.C. § 2000e-5(a); Mayers v. Sedgwick Claims Mgmt. Servs.,

Inc., 101 Fed. App’x 591, 593 (6th Cir. 2004). Furthermore, a plaintiff must file her civil action

within ninety days of receiving a right-to-sue letter. 42 U.S.C. § 2000e-5(f); 42 U.S.C. § 12117;

Miller v. City of Canton, 319 Fed. App’x 411, 415 n.2 (6th Cir. 2009) (affirming dismissal of

Title VII claims as time barred where the plaintiff failed to timely file his action after receiving a

right-to-sue letter). Failure to obtain a right-to-sue letter or to bring an action within the ninety

day period is grounds for dismissal under Rule 12(b)(6). Mayers, 101 Fed. App’x at 593;

Graham-Humphreys v. Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000). 

Moreover, “[t]he federal courts have strictly enforced Title VII’s ninety-day statutory

limit.” Graham-Humphreys, 209 F.3d at 557. “[T]he Supreme Court [has] stated that

“[p]rocedural requirements established by Congress for gaining access to the federal courts are

not to be disregarded by courts out of a vague sympathy for particular litigants.’” Id. (quoting

Baldwin Cnty. Welcome Cntr. v. Brown, 466 U.S. 147, 152 (1984)). Invariant compliance is

necessary because “‘experience teaches that strict adherence to the procedural requirements

specified by the legislature is the best guarantee of evenhanded administration of the law.’” Id.

(quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). 

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Here, Defendant seeks dismissal of two sets of Plaintiff’s claims: (1) her failure-toaccommodate claim brought under the ADA; and (2) her race discrimination claim brought

under Title VII.2 The Court considers each of Defendant’s contentions below. 

A. Claims for Failure to Accommodate and Retaliation Arising from June 2011 EEOC

Charge 

Defendant asserts that Plaintiff’s failure-to-accommodate claim under the ADA must be

dismissed because she failed to obtain a right-to-sue letter. (Mot. 9, ECF No. 8.) Plaintiff filed a

charge with the EEOC on June 7, 2011, alleging that COTA failed to accommodate her chronic

lung condition and retaliated against her for filing a previous EEOC Charge. (Mot. Ex. 2, ECF

No. 8.) The parties resolved the charge, however, and Plaintiff withdrew it on August 11, 2011. 

Id. at Ex. 3. Less than one month later, on September 8, 2011, Defendant discharged Plaintiff. 

Because she never received a right-to-sue letter with respect to her June 7, 2011 charge,

Defendant asserts that her claims for failure to accommodate and retaliation must be dismissed. 

Plaintiff does not dispute that she never obtained a right-to-sue letter with respect to her

June 7, 2011 EEOC charge. Rather, she requests that the Court apply equitable tolling to excuse

her failure, indicating that she was unaware that withdrawing the charge would preclude her

from filing this action. (Op. 3, ECF No. 17.) The United States Court of Appeals for the Sixth

Circuit has indicated that equitable tolling could excuse a litigant’s failure to obtain a right-tosue letter. Puckett v. Tenn. Eastman Co., 889 F.2d 1481, 1488 (6th Cir. 1989). “Ignorance of

the legal process alone,” however, “will not provide the basis for an equitable tolling claim.” 

Jones v. General Motors Corp., 939 F.2d 380, 384 (6th Cir. 1991). Rather, “[t]o successfully

raise a claim of equitable tolling, a party must show either fraudulent concealment of the critical

2

Defendant does not seek dismissal of Plaintiff’s retaliatory discharge claim. 

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facts that would lead one to know that [s]he can sue, or a misrepresentation of those facts –

whether made in good faith or not – that was calculated to induce a plaintiff to forego that right

to sue.” Id. Here, without more, Plaintiff’s lack of knowledge of the law does not warrant

equitable tolling. 

Plaintiff also seeks equitable tolling on the grounds that Defendant allegedly breached the

agreement that prompted her to withdraw the June 7, 2011 charge. Plaintiff contends that

Defendant promised that if she withdrew the charge, they would move her to a different facility

where she would not be exposed to diesel fumes. (Op. 3, ECF No. 17.) According to Plaintiff,

Defendant initially transferred her to another facility pursuant to the agreement, but soon

afterward moved her back to the facility where she was exposed to fumes.3 Id. 

In making this argument, Plaintiff appears to confuse her June 2011 EEOC charge, which

is the one she withdrew without receiving a right-to-sue letter, with her February 2011 charge. 

Plaintiff posits that Defendant initially transferred her to a new facility pursuant to the

agreement, but that the accommodation “was short lived in that she was . . . sent back to the

McKinely Avenue Facility where her[] breathing problems began.” (Op. 3, ECF No. 17.) 

According to Plaintiff, “[t]his happened in approximately May/June 2011,” id., which was at

least two months before she withdrew her June 2011 EEOC charge. Consequently, the

agreement Defendant allegedly breached must have arisen from the February 2011 charge. 

Plaintiff has not demonstrated how Defendant’s alleged breach of an agreement underlying an

3

Notably, none of these allegations is in her Complaint. Thus, unless some exception

applies, the Court may not considered these matters which are not contained in the pleadings

when ruling upon this Motion to Dismiss. Plaintiff may not introduce evidence that relates to

her claim in the form of her legal memorandum. Nonetheless, because Plaintiff has apparently

conflated two of her EEOC charges, the Court will address this contention. 

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unrelated charge should excuse her failure to obtain a right-to-sue letter on the June 2011 charge. 

Nor has she indicated that the alleged breach of the unrelated charge could have been “calculated

to induce a plaintiff to forego th[e] right to sue” on a charge she had yet to file, much less

withdraw. Jones, 939 F.2d at 380. 

Accordingly, Plaintiff has not demonstrated circumstances sufficient to warrant equitable

tolling with respect to her failure to obtain a right-to-sue relating on her June 7, 2011 EEOC

charge. Consequently, Plaintiff’s failure to obtain a right-to-sue letter renders her unable to state

a claim upon which relief can be granted. Accordingly, Plaintiff’s claims for failure to

accommodate and retaliation arising from her June 7, 2011 EEOC charge are hereby

DISMISSED for failure to state a claim. 

B. Claims for Race Discrimination and Failure to Accommodate Arising From

February 2011 EEOC Charge

 

Defendant also seeks dismissal of Plaintiff’s claims for race discrimination and failure-toaccommodate relating to her February 10, 2011 EEOC charge. (Mot. 5-6, ECF No. 8.) 

Defendant asserts that these claims are time-barred because Plaintiff failed to file her civil action

within ninety days of receiving a right-to-sue letter. With respect to the allegations made in her

February 10, 2011 EEOC charge, as Defendant points out, Plaintiff is presumed to have received

her right-to-sue letter on January 28, 2012. See 20 C.F.R. § 422.210(c) (setting forth a

presumption that a claimant receives a right-to-sue letter five days after mailing); Compl. Ex. 1,

ECF No. 2-1 (reflecting a mailing date of January 23, 2012). Thus, the ninety-day period within

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which she was required to file a civil action expired on April 27, 2012. Plaintiff filed this action

on January 15, 2013, well after the ninety-day deadline expired.4

Plaintiff does not dispute that she filed her discrimination claim beyond the ninety-day

time period. (Op. 7, ECF No. 17.) Rather, she urges the Court to apply equitable tolling to

excuse her failure to timely file this action. Id. at 4. 

The Sixth Circuit Court of Appeals has identified five factors to consider in determining

whether to equitably toll a limitations period:

1) lack of notice of the filing requirement; 2) lack of constructive knowledge of the

filing requirement; 3) diligence in pursuing one’s rights; 4) absence of prejudice to

the defendant; and 5) the plaintiff’s reasonableness [in] remaining ignorant of the

particular legal requirement.

Truitt v. Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998); see also Weigel v. Baptist Hosp. of

East Tenn., 302 F.3d 367, 376 (6th Cir. 2002) (applying the five factors identified by the Truitt

Court). 

Here, although Plaintiff is not clear on this point, she seemingly posits that exceptional

circumstances warrant equitable tolling because Defendant allegedly breached the agreement the

parties reached following the EEOC charge.5

 (Op. 5, ECF No. 17.) Defendant counters that

4

Plaintiff originally timely filed an action for racial discrimination following receipt of

her right-to-sue letter. Green v. Cent. Ohio Transit Auth., No. 2:12-cv-356 (S.D. Ohio 2012). 

The filing of that action, however, does not toll or otherwise affect the ninety-day limitations

period. See Sain v. American Red Cross, 233 F. Supp. 2d 923 (S.D. Ohio 2002) (quoting Clark

v. Nissan Motor Mfg. Corp. USA, No. 97-5956, 1998 WL 786892, *3 (6th Cir. 1998)) (“‘If a

plaintiff in possession of a right-to-sue letter files suit within [the statutory filing] period, but

later dismisses the lawsuit without prejudice, courts will regard that plaintiff as never having

filed that suit and will not toll the statutory filing period.’”). 

5

As discussed above, Plaintiff indicates in her Opposition that the agreement related to

the June 7, 2011 EEOC charge; however it is clear from the record that it relates to the February

2011 charge. 

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equitable tolling should not apply because Plaintiff has failed to establish that she was unable to

timely commence this action. (Reply 2, ECF No. 19.) 

The Court declines to apply equitable tolling to Plaintiff’s claims arising from her

February 2011 EEOC charge. Even assuming Defendant breached the agreement arising from

Plaintiff’s February 2011 charge, Plaintiff has not demonstrated that the breach prevented her

from timely filing these claims. Her filing is especially dilatory given that the EEOC issued a

right-to-sue letter on January 23, 2012, nearly six months after Plaintiff’s termination and nine

months after the alleged breach took place. Put another way, even if Defendant breached their

agreement to provide a reasonable accommodation, Plaintiff still had ample opportunity to

timely file this action. See Steiner v. Henderson, 354 F.3d 432, 438 (6th Cir. 2003) (quoting

Graham-Humphreys, 209 F.3d at 560-61) (“[T]ypically, equitable tolling applies only when a

litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances

beyond that litigant’s control.”). Nor has Plaintiff demonstrated, or even mentioned, the five

factors relevant to the equitable tolling determination. In the absence of any allegation or

evidence that any of the five Truitt- factors applies here, the Court declines to apply equitable

tolling to excuse Plaintiff’s failure to timely file her race discrimination claim. Accordingly,

Plaintiff’s race discrimination claim is hereby DISMISSED for failure to state a claim.6

 

III.

6

Plaintiff indicates that even if her claims for race discrimination and failure to

accommodate are dismissed, she is still entitled to offer evidence of the purported discrimination

and accommodation issues to prove her retaliatory-discharge claim. (Op. 7, ECF No. 17.) The

question of whether certain evidence will be admissible at trial in this matter is reserved for

pretrial motions in limine. Nothing in this Opinion should be construed as a determination either

way as to the admissibility of evidence of purported discrimination or failure to accommodate. 

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Accordingly, Defendant’s Motion to Dismiss is GRANTED. (ECF No. 8.) Plaintiff’s

claims for failure to accommodate in violation of the ADA and race discrimination in violation

of Title VII are hereby DISMISSED for failure to state a claim. Consequently, the only claim

that remains in this action is Plaintiff’s claim for retaliatory discharge. 

IT IS SO ORDERED. 

Date: August 20, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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