Molly H. Ingmire v. Target Corporation , 520 F. App'x 832 ( 2013 )

Case: 12-14531 Date Filed: 05/29/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14531
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-00256-RWS
MOLLIE H INGMIRE,
Plaintiff-Appellant,
versus
TARGET CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 29, 2013)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Case: 12-14531 Date Filed: 05/29/2013 Page: 2 of 4
Mollie Ingmire appeals the dismissal of her employment discrimination
complaint against Target Corporation as time-barred. In March 2011, Ingmire
voluntarily dismissed a previous complaint alleging employment discrimination
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and
under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§
623(a), 626(c), as well as asserting various state law claims. Ingmire filed the
present complaint nearly six months later, on September 20, 2011, alleging
substantially the same claims. On appeal, Ingmire argues that her second
complaint was timely filed within the applicable 90-day limitations period, because
she properly renewed her initial, timely filed complaint within 6 months as
permitted under the Georgia renewal statute, O.C.G.A. § 9-2-61. After careful
review, we affirm.
We review the grant of a motion to dismiss de novo, accepting the
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Similarly,
when the appellant raises a question of law, we review the issue de novo. Phillips
v. United States, 260 F.3d 1316, 1318 (11th Cir. 2001). A party abandons all
issues on appeal not plainly and prominently raised in the initial brief. United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
2
Case: 12-14531 Date Filed: 05/29/2013 Page: 3 of 4
We look to state law to determine a limitations period for a federal cause of
action “only when Congress has failed to provide a statute of limitations.” Phillips,
260 F.3d at 1318 (quotations omitted). Federal statutory law provides for a 90-day
limitations period for a claim under the ADEA, which runs from the date of the
plaintiff’s receipt of a right-to-sue notice from the EEOC. See 29 U.S.C. § 626(e);
Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005). The ADA also
provides for a 90-day statute of limitations, as it expressly incorporates the
enforcement mechanisms contained in Title VII, 42 U.S.C. § 2000e-5. See 42
U.S.C. § 12117(a); see also Zillyette v. Capital One Financial Corp., 179 F.3d
1337, 1339 (11th Cir. 1999).
Georgia law provides for the renewal of a case that has previously been
dismissed, allowing for a new complaint to be filed outside of the applicable
statute of limitations, so long as it is filed within six months of the original
dismissal. See O.C.G.A. § 9-2-61. In Phillips, we held that § 9-2-61 did not apply
to extend the limitations period for causes of action brought under the Federal Tort
Claims Act (“FTCA”). 260 F.3d at 1317, 1319. We reasoned that Congress
established the statute of limitations for FTCA claims to ensure uniformity, and the
incorporation of diverse state renewal provisions would undermine the uniform
application of the limitations period. Id. at 1319.
3
Case: 12-14531 Date Filed: 05/29/2013 Page: 4 of 4
As applied here, Congress has established a 90-day limitations period for
claims under both the ADA and ADEA, so Georgia’s relevant limitations period is
inapplicable. See 29 U.S.C. § 626(e); 42 U.S.C. § 12117(a); Kerr, 427 F.3d at 951;
Phillips, 260 F.3d at 1318; Zillyette, 179 F.3d at 1339. As in Phillips, the
application of the Georgia renewal statute and other state renewal statutes would
undermine the uniformity intended by Congress’s adoption of the 90-day
limitations period for filing claims under the ADA and ADEA. See 260 F.3d at
1319. Furthermore, Ingmire has abandoned any appeal of her state law claims by
failing to address them in her brief. Jernigan, 341 F.3d at 1283 n.8. Accordingly,
we affirm.
AFFIRMED.
4