Timely correction saves complaint

A prompt correction to a signature defect on a complaint alleging Title VII violations against a plaintiff’s former employer allowed the complaint to survive a motion to dismiss filed by the defendant employer for untimely filing.

The signature defect was corrected after the court found the original complaint was signed by counsel who was not licensed by the Virginia State Bar to practice in the commonwealth.

The defendant sought a motion to dismiss because the corrected complaint was filed more than 90 days after the issuance of the right to sue letter from the Equal Employment Opportunity Commission, or EEOC.

United States District Judge Elizabeth K. Dillon wrote the opinion in Caison v. Thermo Fisher Scientific (VLW 022-3-468) for the U.S. District Court for the Western District of Virginia last month.

Background

Yolanda Caison was hired by Thermo Fisher Scientific in 2014. Caison, who is Black, alleged that during her employment, she was denied training opportunities afforded to her white coworkers and that “various racist comments” were made by coworkers.

In April 2021, Caison was questioned about an investigation involving a white female employee who had recently quit her job. While Caison stated she knew nothing about the situation and was told to return to work, she was later told to “go home and not return until the investigation was concluded.”

Caison was terminated by Thermo Fisher Scientific on April 27, 2021, for undisclosed reasons.

Caison’s complaint alleged Title VII violations committed by Thermo Fisher Scientific, including “denying her opportunities for training and terminating her because of her race.” She additionally alleged Thermo Fisher Scientific “retaliated against her for participating in protected activity.”

In October 2021, Caison filed a discrimination charge with the EEOC, who issued a dismissal and notice of rights, otherwise known as the right-to-sue letter, on Nov. 1, 2021. The notice was made available on that same day on an online portal available to the parties.

The action was filed in the Eastern District of Virginia on Jan. 31, 2022.

However, the complaint and civil cover sheet were signed by Charles Tucker Jr., who is not a Virginia State Bar member. The next day, the court asked plaintiff’s counsel to resubmit the complaint and civil cover sheet with corrected signatures by “local, admitted counsel.”

The error was corrected Feb. 2, with Richmond attorney Alexander L. Taylor Jr. signing the original complaint and civil cover sheet.

The action was eventually transferred to the Western District following the granting of plaintiff’s motion to transfer. The defendant moved to dismiss on May 2, with the plaintiff filing a reply on Oct. 10.

‘Distinction without a difference’

Thermo Fisher Scientific sought to dismiss the complaint as untimely filed, claiming the original complaint signed by Tucker “is a legal nullity” and that the complaint signed by Taylor extended beyond the 90-day window permitted by Title VII to file a lawsuit following receiving a right-to-sue letter.

Per the opinion, the defendant cited a local rule requiring counsel who presents suits or pleadings be a member of the “bar of this Court” and that the same local rules “require Virginia State Bar membership to sign an initial pleading.”

Because that was not the case here, the defendant sought to make the Feb. 2 complaint — which was filed more than 90 days after the right-to-sue letter was issued — “the operative complaint for purposes of analyzing timeliness.”

Dillon disagreed, noting the defendant’s argument “disregards Rule 11 of the Federal Rules of Civil Procedure.”

“Plaintiff corrected the first complaint in accordance with Rule 11,” Dillon wrote, citing the portion of the rule that states “[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.”

“Plaintiff promptly corrected the signature error one day after being notified,” the judge continued. “Therefore, the complaint can be deemed timely filed as of January 31, 2022.”

The defendant further argued the use of the word “unsigned” in Rule 11(a)’s correction provision. Since the papers were signed by an attorney not licensed with the Virginia bar, rather than being submitted without a signature, the defendant argued the correction provision does not apply.

This is “a distinction without a difference,” Dillon said.

“A paper that, due to the application of another rule, is considered invalid because of a wrong signature can be considered unsigned under Rule 11,” she explained.

To support the argument that the pleading should be considered a “legal nullity,” the defendant presented prior cases which barred pleadings signed by a “lay person or a pleading signed by a corporate agent for a corporation.”

But those cases “do not address this situation,” Dillon wrote.

“The requirement that a pleading be signed by an attorney licensed in Virginia is completely consistent with Rule 11’s allowance for unsigned pleadings to be promptly corrected,” the judge noted.

Dillon denied Thermo Fisher Scientific’s motion to dismiss and allowed the case to proceed.

Attorney comments

Tucker and Taylor did not respond to a request for comment by deadline, nor did Reston attorney Nigel L. Wilkinson, who represented Thermo Fisher Scientific.

Virginia Beach attorney Lisa Bertini, whose practice specializes in employment law issues, said Dillon’s “reasoning is flawless” in denying the motion to dismiss.

“The original complaint was filed timely,” Bertini said in an email to Virginia Lawyers Weekly. “Regardless if on the 90th day, it was timely filed.”

She further noted that the EEOC has 180 days to resolve charges brought to the commission yet took just seven days before dismissing and giving the complainant a right-to-sue letter.

“There is authority out there that the EEOC didn’t do its due diligence by investigating the claim,” Bertini said.

McLean employment lawyer Declan Leonard told Virginia Lawyers Weekly this case is an example of going “down to the wire on this 90-day filing requirement.”

“It’s playing with fire, and this case is a prime example of why,” Leonard said. “The judge here clearly showed mercy on the plaintiff in her interpretation of Rule 11 and could have just as easily kicked the case on jurisdictional grounds.”

Leonard also noted his surprise that there wasn’t more focus on why an out-of-state counsel signed the complaint to begin with.

“To me it would have been relevant if the plaintiff already had local Virginia counsel, and the out-of-state counsel simply signed thinking it was OK,” Leonard said. “That scenario is more excusable in my opinion than if the plaintiff had not secured Virginia counsel at the time the original complaint was filed.”