IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LILLIE MIMS, et al.,

Plaintiffs,

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vs. : CIVIL ACTION 13-643-KD-M

:

MONROE COUNTY BOARD 

OF EDUCATION, et al.,

Defendants.

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REPORT AND RECOMMENDATION

The Defendants’ Motion to Dismiss and For More 

Definite Statement (Doc. 4) has been referred for report 

and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local 

Rule 72.2. After consideration of the pleadings, said 

Motion to Dismiss, Plaintiffs’ Response thereto and 

Defendants’ Reply, it is recommended that Defendants’ 

Motion to Dismiss and For More Definite Statement be denied 

in part and granted in part. 

I. FACTS AND PROCEEDINGS

The facts are, briefly, as follows. Plaintiff Lillie 

Mims filed two EEOC Charges of Discrimination, the first 

for race discrimination bearing the number 420-2012-02902 

and the second, for race discrimination and retaliation 

bearing the number 420-2013-00072, against the Monroe 

County Board of Education (the Board). (Docs. 4-1, 4-3 at 

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1, 1). The EEOC investigated both charges and found that 

“the information obtained establishes [no] violations of 

the statutes” for either charge. (Docs. 4-2, 4-3 at 1, 1). 

On September 26, 2013, the EEOC mailed to Plaintiff Mims 

two separate Dismissal and Notice of Rights letters

(hereinafter “right to sue letter”), stating their 

conclusions for each charge, and informing her of her right 

to sue the Board within ninety (90) days of her receipt of 

each right to sue letter. (Id.).

On December 30, 2013, Plaintiffs filed their 

Complaint consisting of three causes of action seeking 

redress from unlawful employment practices under Title VII, 

the Civil Rights Act of 1964, as amended, 42 U.S.C. § 

2000(e), and the Fourteenth Amendment as enforced by 42 

U.S.C. § 1983, and under 42 U.S.C. § 1981 through 

declaratory judgment pursuant to the provisions of 28 

U.S.C. § 2201. (Doc. 1). The first two causes of action 

allege the Title VII claims,1 and the third cause of action 

																																																							 1 In the Motion, Defendants note that although both 

Plaintiffs Mims and Turner filed EEOC charges, the 

Complaint only mentions the EEOC charges filed by Plaintiff 

Mims. (Doc. 4 at 2, n. 1). In their Response in 

Opposition to Defendants’ Motion, Plaintiffs concede that 

the Complaint was filed more than ninety days after Turner 

received her right to sue letter from the EEOC. (Doc. 7 at 

1). (The right to sue letter was mailed to Turner on May 

2, 2013, so presumably, she received the letter on Monday, 

May 6, 2013, with the ninety-day limitations period ending 

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alleges claims of “equal protection of the law as enforced 

by Title 42 U.S.C. §§ 1981 and 1983.” (Doc. 1 at 9-11).

Defendants filed their Motion to Dismiss and For More 

Definite Statement alleging that the first two Title VII

causes of action are due to be dismissed as untimely 

because they were filed outside of the ninety day 

limitations period set out in Plaintiffs’ right to sue 

letters issued by the EEOC. (Doc. 4 at 2-3). Defendants 

also request a more definite statement for Plaintiff’s 

third cause of action alleging that a § 1981 claim and an 

Equal Protection claim as enforced by § 1983 are two 

separate causes of action and should not be joined in one 

single count. (Doc. 4 at 3). 

II. DISCUSSION

a. Motion to Dismiss Standard

A defendant may move to dismiss a complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(6) if the 

plaintiff has failed to state a claim upon which relief may 

be granted. To survive a 12(b)(6) motion to dismiss for 

failure to state a claim, the complaint “does not need 

																																																																																																																																																																				

on Monday, August 5, 2013. See n. 2, infra.) The Court 

treats this concession as a voluntary dismissal of 

Plaintiff Turner’s Title VII claim and instructs the Clerk 

to amend the docket sheet to reflect such. Hence forward, 

the Court will address the limitations period as to 

Plaintiff Mims’ Title VII claims only.

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detailed factual allegations;” however, the “plaintiff's 

obligation to provide the ‘grounds' of his ‘entitle[ment] 

to relief’ requires more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action 

will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (internal citations omitted). Factual 

allegations, on the assumption that all allegations in the 

complaint are true, must be enough to raise a right to 

relief above the speculative level and state a claim for 

relief that is plausible on its face. Id. at 555, 570. 

The Court accepts all facts as true and limits its 

consideration to the pleadings and exhibits attached 

thereto. Abraham v. Greater Birmingham Humane Soc’y, 

Inc., No. 2:11-CV-4358-SLB, 2014 WL 1043230, *1 (N.D.Ala. 

Mar. 17, 2014)(citing Grossman v. Nationsbank, N.A., 225 

F.3d 1228, 1231 (11th Cir. 2000)(citation omitted). 

Without converting it to a motion for summary judgment, the 

Court may consider facts outside the pleadings in resolving 

a motion to dismiss where the parties were given sufficient 

opportunity to develop the record and the authenticity of 

the documents considered is undisputed. Rogers v. 

Shinseki, No. CV 112-194, 2014 WL 1093147, at *4 (S.D.Ga. 

Mar. 18, 2014)(citing Tillery v. U.S. Dep’t of Homeland 

Sec., 402 F. App’x 421, 424 (11th Cir. 2010)(citation

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omitted); see also Judkins v. Saint Joseph’s Coll. of Me., 

483 F.Supp.2d 60, 62 (D.Me. Apr. 20, 2007)(determining the 

EEOC charge and other EEOC documents could be considered on 

a motion to dismiss). All reasonable inferences are drawn 

in favor of the plaintiff; however, unsupported conclusions 

of law or of mixed fact and law have long been recognized 

not to prevent a Rule 12(b)(6) dismissal. Abraham, 2014 WL

1043230 at *1 (citing Dalrymple v. Reno, 334 F.3d 991, 996 

(11th Cir. 2003)(citation omitted). 

b. Statute of Limitations

“A statute of limitations bar is an affirmative 

defense, and plaintiffs are not required to negate an 

affirmative defense in their complaint.” Abraham, 2014 WL 

1043230 at *1 (citing La Grasta v. First Union Sec., Inc.,

358 F.3d 840, 845 (11th Cir. 2004)(citation omitted). 

Accordingly, “[d]ismissal under Federal Rule of Civil 

Procedure 12(b)(6) on statute of limitations grounds is 

appropriate only if it is apparent from the face of the 

complaint that the claim is time-barred.” Id. (citing Tello 

v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th 

Cir. 2005) (citation omitted). 

In order for Plaintiff Mims to maintain her Title VII 

claims, she has the initial burden of establishing that she 

filed her Complaint within ninety days of receiving the 

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EEOC’s right to sue letter. Green v. Union Foundry Co., 

281 F.3d 1229, 1233 (11th Cir. 2002); see also 42 U.S.C. § 

2000e-5(f)(1); Santini v. Cleveland Clinic Fla., 232 F.3d 

823, 825 (11th Cir. 2000). “Once the defendant contests 

this issue, the plaintiff has the burden of establishing 

that [she] met the ninety day filing requirement.” Green 

at 1234 (citing Jackson v. Seaboard Coast Line R.R. Co., 

678 F.2d 992, 1010 (11th Cir. 1982). “Following clearly 

established Eleventh Circuit precedent, the determination 

of what actions constitute a Title VII plaintiff’s 

‘receipt’ of a right to sue letter must be decided based on 

the individual characteristics of a given fact pattern.” 

Henderson v. NCO Fin. Sys., No. CA-09-769-CG-C, 2010 WL 

1382737, at *4 (S.D.Ala. Mar. 12, 2010); see also Bell v. 

Eagle Motor Lines, Inc., 693 F.2d 1086 (11th Cir. 

1982)(determination of when an EEOC letter is received is 

on a case-by-case basis and ninety day clock started 

running upon the arrival of the letter to the address 

provided by the would-be plaintiff); Law v. Hercules, 713 

F.2d 691 (11th Cir. 1983)(declining to establish an “actual 

receipt rule” which would begin the clock when plaintiff 

claims to have become aware of the letter, because to do so 

would foster a manipulable open-ended time extension which 

would render the statute of limitation meaningless). 

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Defendants contend that Plaintiff’s Title VII claims 

must have been filed within ninety days of receiving her 

right to sue letters from the EEOC, which were mailed to 

Plaintiff on September 26, 2013. (Doc. 4 at 2). Plaintiff 

Mims filed her claims on December 30, 2013 (Doc. 1), which 

date Defendants assert is outside her ninety-day window to 

file. In response, Plaintiff merely states that her claims 

were timely filed, but she does not offer any evidence or 

argument as to when she received her EEOC right to sue 

letters. 

Without proof of when Mims received her right to sue 

letters, the Court presumes that the date on which Mims 

received her letter was Monday, September 30, 2013, three 

days from when the letters were mailed.2 See FED. R. CIV. P.

6(e); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 

150 n. 1 (1984); Henderson, 2010 WL 1382737, at *5 

(collecting cases and stating that “‘when a plaintiff does 

not assert that he or she received the right to sue letter 

																																																							 2

 September 29, 2013 is technically three days from 

the date the EEOC mailed the right to sue letter; however, 

September 29th is a Sunday and Rule 6(a)(1)(C) of the 

Federal Rules of Civil Procedure states that “if the last 

day [of the limitations period] is a Saturday, Sunday, or 

legal holiday, the period continues to run until the end of 

the next day that is not a Saturday, Sunday or legal 

holiday.” Thus, Monday, September 30, 2013 is the day on 

which Plaintiff is deemed to have received her right to sue 

letter.

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on a specific date, the Court presumes the plaintiff 

received the letter three days after it was mailed,’ which 

clearly is an estimation of how long the letter may have 

taken to reach the specified address”). Excluding the day 

of the event that triggers the limitations period, FED. R.

CIV. P. 6(1)(1)(A), and counting ninety days from October 1, 

2014, the last day on which Plaintiff could file her Title 

VII claims would be Sunday, December 29, 2013; thus 

applying Rule 6(a)(1)(C), see n. 2 supra, the last day on 

which Plaintiff may file rolls over to Monday, December 30, 

2013, which is the day she filed. Accordingly, it appears 

from the face of the Complaint that Plaintiff’s Title VII 

claims are timely filed. 

c. Request for More Definite Statement

Defendants request the Court to order Plaintiffs to 

amend their third cause of action because it potentially 

contains two separate causes of action. Though Plaintiffs 

contend, and the Court agrees, that the Complaint is 

compliant with the Federal Rules of Civil Procedure, it 

would nonetheless be helpful for the Court, and Defendants, 

if Plaintiffs better defined their third cause of action. 

Accordingly, it is recommended that the balance of the 

Motion be granted and Plaintiffs be ordered to amend their 

Complaint as follows. As for the first two counts, 

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Plaintiffs’ counsel is instructed to refer only to the 

Title VII claims as they relate to Plaintiff Mims. As for 

the third claim, Plaintiffs’ counsel is instructed to amend 

the Complaint in such a fashion that would indicate whether 

they are alleging one cause of action under the Equal 

Protection Clause, §§ 1981 and 1983, claiming relief in the 

alternative or alleging more than one cause of action under 

those statutes. If more than one cause of action is being 

alleged, Plaintiffs are ordered to separate out those 

causes of action into separate counts, and include the 

facts surrounding each alleged basis of relief. 

Plaintiffs’ counsel is also ordered to clearly indicate, by 

name, which claims pertain to which Plaintiffs instead of 

using “Plaintiffs” throughout the entire Complaint. 

Lastly, Plaintiff’s counsel is instructed that the Amended 

Complaint shall fully contain all of the claims on which 

they intend proceed, as it will wholly supersede the 

original Complaint. See FED. R. CIV. P. 10(b). 

III. CONCLUSION

In conclusion, based on the record before it, the 

Court concludes that Defendants’ Motion to Dismiss is due 

to be denied in part and granted in part. Specifically, it 

is recommended that the Motion be denied as to the 

timeliness of Plaintiff Mims’ Title VII claims; it is 

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further recommended that the balance of the Motion be 

granted, and Plaintiffs are hereby ordered to amend their

Complaint as instructed in subsection “c.” of this Report. 

Notice of Right to File Objections

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); 

FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. In order to be 

specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific.

DONE this 20th day of May, 2014.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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