Michael Wiggins v. Albert Einstein Medical Center ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-3129
__________
MICHAEL WIGGINS,
Appellant
v.
ALBERT EINSTEIN MEDICAL CENTER;
MARK WILHELM, Director of Security; LOREN MARGOTT,
Human Resources; CARLA BRYANT, Employee Relations
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-19-cv-02656)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 18, 2022
Before: MCKEE, SHWARTZ, and MATEY, Circuit Judges
(Opinion filed: April 22, 2022)
___________
OPINION*
___________
PER CURIAM
Michael Wiggins appeals from the order of the District Court dismissing his
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
amended complaint under Fed. R. Civ. P. 12(b)(6). We will affirm in part, vacate in part,
and remand for further proceedings.
I.
Wiggins was employed by the Albert Einstein Medical Center as a Protective
Services Officer from April 4, 2016, until his termination on March 6, 2018. Thereafter,
he filed pro se a complaint and then an amended complaint against Einstein and three of
its employees. Wiggins concedes that none of his claims properly lies against the
employees, so we address only his claims against Einstein.
Wiggins asserted three such claims. First, he claimed that Einstein terminated him
in violation of Title VII of the Civil Rights Act of 1964. Second, he claimed that his
termination was wrongful under principles of promissory estoppel. Third, he claimed
that his termination was in breach of an implied employment contract. Wiggins’s second
and third claims relied on Pennsylvania state law.
Einstein filed a motion to dismiss Wiggins’s amended complaint under Rule
12(b)(6). The District Court granted that motion and dismissed his amended complaint
without leave to amend. Wiggins appeals.1
II.
1
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a
complaint under Rule 12(b)(6). See Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).
To survive dismissal on the merits, “the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Eshleman v.
Patrick Indus., Inc., 961 F.3d 242, 247 (3d Cir. 2020) (quotation marks omitted).
2
On appeal, Wiggins concedes that his claim of promissory estoppel fails as a
matter of law for the reasons explained by the District Court. We thus will affirm the
dismissal of that claim. We also will affirm the dismissal of Wiggins’s breach-of-
contract claim substantially for the reasons explained by the District Court.2 But we will
vacate the dismissal of Wiggins’s Title VII claim and remand for further proceedings.
Wiggins alleged that Einstein violated Title VII by terminating him in retaliation
for filing a formal complaint of racial discrimination with its human resources
department. Einstein did not move to dismiss this claim on the merits, and the District
Court did not address them. Instead, Einstein argued that Wiggins’s Title VII claim is
untimely because he did not file his complaint within 90 days of receiving a right-to-sue
letter on this claim from the Equal Employment Opportunity Commission (“EEOC”) as
required by 42 U.S.C. § 2000e-5(f)(1).3 The District Court agreed and dismissed this
claim on that basis.
2
The court dismissed this claim because it concluded that (1) Wiggins did not plausibly
allege the existence of an employment contract, and (2) even if he had, he alleged only a
contract to employ him for a reasonable period of time and Einstein employed him for a
reasonable period of time. Wiggins has not challenged the second of these independently
dispositive rulings. In any event, we agree that Wiggins did not allege anything
suggesting that Einstein—in contrast to the express at-will employment language
contained in the offer letters attached to Wiggins’s amended complaint—undertook a
contractual duty to employ him for longer than it did, if at all. See, e.g., Schoch v. First
Fid. Bancorp., 912 F.2d 654, 659-60 (3d Cir. 1990) (summarizing circumstances held not
to rebut Pennsylvania’s strong presumption of at-will employment).
3
Einstein attached this letter to its motion to dismiss. Wiggins did not challenge
Einstein’s reliance on that letter before the District Court and has not challenged the
District Court’s reliance on that letter on appeal. Thus, we will assume that the court
properly considered it at the Rule 12(b)(6) stage. Cf. Schmidt, 770 F.3d at 249-50.
3
That ruling was premature. The 90-day period under § 2000e-5(f)(1) is akin to a
statute of limitations and is subject to equitable tolling. See Burgh v. Borough Council of
Montrose, 251 F.3d 465, 470 (3d Cir. 2001). Statutes of limitations are affirmative
defenses that are not grounds for a Rule 12(b)(6) dismissal unless untimeliness is
apparent on the face of the complaint. See Schmidt, 770 F.3d at 249. And “[u]nder
Federal Rule of Civil Procedure 8, a complaint need not anticipate or overcome
affirmative defenses; thus, a complaint does not fail to state a claim simply because it
omits facts that would defeat a statute of limitations defense.” Id. at 248.
Wiggins, in response to Einstein’s motion, argued that his non-compliance with
the 90-days deadline should be excused for equitable reasons.4 In particular, he argued
that he could not file suit within the 90-day period because he was out of town during that
entire period, and he submitted evidence to that effect. (Wiggins also has asserted other
equitable considerations on appeal.) The District Court, however, did not address
whether those circumstances warranted tolling of the 90-day period. To the contrary, its
order does not reflect awareness that the 90-day period can be tolled.5
4
Wiggins also argued that this claim was timely because he filed it within 90 days of
receiving a second right-to-sue letter. The District Court rejected that argument because
Wiggins’s second right-to-sue letter was not related to the retaliation claim alleged in his
complaint. Wiggins concedes the correctness of that ruling.
5
Neither Einstein nor the District Court mentioned equitable tolling. Instead, Einstein
advised the court only that the 90-days deadline is “strictly construed” (ECF No. 17-1 at
4), and the court concluded without explanation that Wiggins’s “absence [from town]
does not relieve me of my obligation to strictly construe the 90-day limitation” (ECF No.
26 at 7). But we have specified that the 90-day period “is strictly construed” to require
dismissal only “in the absence of some equitable basis for tolling[.]” Burgh, 251 F.3d at
470 (emphasis added). The court did not acknowledge the availability of equitable
4
Wiggins ultimately will bear the burden of showing that equitable tolling is
warranted, See D.J.S.-W. ex rel. Stewart v. United States, 962 F.3d 745, 755 n.9 (3d Cir.
2020), and his arguments thus far might not be enough to carry it.6 “However, while a
court may entertain a motion to dismiss on statute of limitations grounds, it may not
allocate the burden of invoking [equitable tolling7] in a way that is inconsistent with the
rule that a plaintiff is not required to plead, in a complaint, facts sufficient to overcome an
affirmative defense.” Schmidt, 770 F.3d at 251 (internal citation omitted). Holding
Wiggins to a burden on the equitable-tolling issue at this stage would “effectively
tolling. Wiggins did not use the words “equitable tolling” either, but his arguments were
relevant to that issue and his pro se status triggered a duty to “liberally construe his
pleadings” and “apply the applicable law, irrespective of whether the pro se litigant has
mentioned it by name.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). For the
same reason, we conclude that Wiggins has properly raised the issue of equitable tolling
on appeal even though he has framed his arguments in terms of “good cause” for a filing
extension under Fed. R. Civ. P. 6(b)(1), which is inapposite in this context.
6
Wiggins asserts, inter alia, that he was out of town (for what he variously describes as
personal, family, and medical reasons) when the EEOC letter arrived at his residence and
for the entire 90-period thereafter. He further asserts that this circumstance prevented
him from filing suit within the 90-day period. But equitable tolling typically requires the
plaintiff to show that he or she exercised due diligence in the face of some extraordinary
obstacle to filing. See D.J.S.-W., 962 F.3d at 749-50. Wiggins, who knew that he had
filed an EEOC charge before he left town, has not alleged any circumstances that might
have prevented him from monitoring his mail or contacting the EEOC during that time.
Nevertheless, it is premature to hold Wiggins to his burden on equitable tolling at this
stage as discussed herein. We note that Wiggins requires some additional period of
tolling because, as the District Court also noted, he filed his complaint more than 300
days after returning. Wiggins argues on appeal that this period too should be tolled
because, after he returned, the EEOC erroneously advised him that he could revive the
90-day period by filing a second charge. The District Court can consider Wiggins’s
assertions regarding his dealings with the EEOC as may be appropriate on remand.
7
Schmidt addressed the discovery rule, but its discussion applies equally to the issue of
equitable tolling.
5
require[] [him] to plead around an affirmative defense in his complaint, which is
inconsistent with Rule 8 and Rule 12(b)(6)[.]” Id. at 252. Thus, the timeliness of
Wiggins’s Title VII claim cannot be resolved on the face of his amended complaint, and
we will vacate the dismissal of this claim for this reason. We express no opinion on
whether equitable tolling is warranted or on the merits of this claim.
III.
For these reasons, we will affirm the District Court’s judgment to the extent that it
dismissed Wiggins’s claims of promissory estoppel and breach of contract, but we will
vacate the judgment to the extent that it dismissed his Title VII claim and will remand for
further proceedings on that claim. Wiggins’s request for injunctive relief in his amended
reply brief is denied.8
8
Wiggins asks that, in light of his dealings with the EEOC, we compel the EEOC to
deem withdrawn the charge that led to his first right-to-sue letter. That request is not
properly made in a brief on appeal (let alone against a non-party). Once again, the
District Court can consider Wiggins’s assertions regarding his dealing with the EEOC as
may be appropriate on remand.
6