CHARLES R. SIMPSON III, Chief Judge.
This matter is before the Court on Motions to Dismiss made by the Defendants, Auto Rail Services of LAP, Inc. ("Auto Rail"), Plaintiff's former employer, and General Drivers, Warehousemen and Helpers, Local Union No. 89 ("Local 89"). Plaintiff's Complaint alleges violations of Title VII, 42 U.S.C. § 1981, 1985, and 2000 by the Defendants. Following his termination by Defendant Auto Rail, Plaintiff, an African-American, filed two charges with the EEOC. He received one right-to-sue letter on August 13, 1998, and filed his Complaint on November 12, 1998, ninety-one (91) days after receiving his right-to-sue letter. Plaintiff also stated his intention to amend his Complaint once he received a second right-to-sue letter, but no such amendment has been made. For the reasons that follow, the Motions to Dismiss will be denied by separate order.
A condition precedent to filing a Title VII action is that the suit must be filed within ninety (90) days after receiving the right-to-sue letter. Ball v. Abbott Advertising, Inc., 864 F.2d 419, 420-21 (6th Cir. 1988). However, if the last day of the ninety-day period falls on a legal holiday, the period runs until the end of the next day. Fed.R.Civ.P. 6(a). Veteran's Day was observed on November 11, 1998, and accordingly, the time period for filing within the 90 day period was extended under Rule 6(a) until November 12, 1998. Plaintiff's Complaint was thus timely filed.
Defendants also assert that Plaintiff failed to comply with Federal Rule Civil Procedure 4(m), which requires service of a summons and a complaint upon a defendant within 120 days of the filing of the complaint. The summons and Complaint in the instant case were not served upon the Defendants until November 13 and 15, 1999, one year after the filing of the Complaint. However, by Order of November 24, 1998, service of the summons and Complaint was stayed pending the resolution of Plaintiff's motion to proceed in forma pauperis. The Court granted that motion by Order of April 26, 1999. Pursuant to Rule 4(c)(2), the Court must appoint the United States Marshall to effect service upon the defendants when a plaintiff is authorized to proceed in forma pauperis. On November 9, 1999, the Court did ordered that service be effected upon Defendants. As this delay was not due to the fault of the Plaintiff, the Court finds good cause under Rule 4(m) to extend the time for service. Plaintiff's Complaint is therefore not subject to dismissal under Rule 4(m).
Defendant Auto Rail Services also argues that Plaintiff's claims are within the exclusive jurisdiction of the National Labor Relations Board. Plaintiff's Complaint states, "All of these actions were taken against me because I filed legitimate grievances concerning violations of the bargaining agreement and because of my race." Thus, Plaintiff alleges racial discrimination as a basis for the actions taken against him, and dismissal of these claims would not be appropriate.
Defendant Local 89 asserts that Plaintiff has not identified any act or omission by the union upon which relief can be granted. Plaintiff's Complaint alleges the union conspired with the company to harass and eventually fire Plaintiff based on his race. As Plaintiff is proceeding pro se, we liberally construe his pleadings and find this sufficient to overcome Defendant's motion to dismiss on that basis. Finally, Local 89 alleges that no showing exists that Plaintiff ever named Local 89 in a timely charge of discrimination to the EEOC. At this stage of the proceedings, Plaintiff's allegations in his Complaint must be accepted as true. Liberally construed, Plaintiff's Complaint alleges that he filed a claim of discrimination with the EEOC against both Defendants. Therefore, the motion to dismiss will be denied.
CHARLES R. SIMPSON III, Chief Judge.
Defendants having made Motions to Dismiss in this case, for the reasons set forth in the memorandum opinion entered herein this date, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the Motions to Dismiss made by the Defendants are DENIED.
IT IS SO ORDERED.