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HOLMES v. NBC/GE

February 8, 1996

SANDRA HOLMES, Plaintiff, against NBC/GE, ET AL., Defendants.


The opinion of the court was delivered by: MOTLEY

 Plaintiff, who claims to have suffered race and gender discrimination in the terms and conditions of her employment, filed this action alleging violations of, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Title VII). Defendants National Broadcasting Company, Inc. and General Electric Company (hereinafter "Defendants") have moved to dismiss the complaint, or, in the alternative, for partial summary judgment, on the ground that plaintiff failed to commence this action within 90 days of receipt of the "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC) as required by 42 U.S.C. § 2000e-5(f)(1). At oral argument on the motion, the parties were directed to submit additional evidence concerning the actual date this letter was received by plaintiff. Accordingly, given the factual submissions of the parties, the court considers the alternative relief sought by defendants: i.e., summary judgment under Fed. R. Civ. Proc. 56. For the reasons set forth herein, the motion is denied.

 BACKGROUND

 This Title VII action is based on alleged employment discrimination on the basis of race and gender. Plaintiff is a black female who has been employed by NBC for approximately thirty years. This case arises out of the alleged placement of sexually explicit postcards on a bulletin board in plaintiff's department at NBC and management's purported ineffectual response that followed. Additionally, subsequent to her complaints concerning these postcards, plaintiff allegedly experienced retaliation and an increasingly hostile work environment. Plaintiff seeks declaratory and injunctive relief, an award of back pay and back benefits, compensatory and punitive damages, costs and attorneys's fees.

 The complaint in this action alleges that the right-to-sue letter that preceded this action was received "on or about October 2, 1994." (Complaint at P 10.) *fn1" The complaint was filed on December 30, 1994. If October 2, 1994 is considered the day of receipt of the right-to-sue letter, the matter was commenced 89 days from receipt of the right-to-sue letter and thus would be considered timely.

 In support of the motion for summary judgment, defendants submit an affidavit from an employee at the local New York office of the EEOC alleging that the right-to-sue letter regarding plaintiff was mailed by certified mail on September 26, 1994. (See Affidavit of Holly Woodyard, dated June 21, 1995, at P 3.) Defendants argue that the court should deem plaintiff to have received the letter three days after the letter was allegedly mailed in accordance with Fed. R. Civ. Proc. 6(e). *fn2" Applying this presumption, defendants conclude that the complaint should be dismissed because plaintiff would be deemed to have received the right-to-sue letter on September 29, 1994, and the last day upon which the suit had to be commenced would have been December 28, 1994: i.e. two days before the date the complaint was filed.

 At oral argument on defendants' motion, the court directed plaintiff's counsel to provide an affidavit setting forth the actual date upon which the right-to-sue letter was received. In plaintiff's subsequent submission, counsel for plaintiff stated that he actually received the right-to-sue letter on October 2, 1994, a Sunday, because that was the day he checked his office mailbox for the mail that was delivered on Saturday, October 1, 1994. (Affidavit of James Callwood, Esq., dated December 2, 1995, at PP 4-5.) He further alleges that he checked his mail on Friday, September 30, 1994, and the right-to-sue letter had not been delivered on that day. (Id. at P 3.)

 ANALYSIS

 I. Standard for Summary Judgment.

 A motion for summary judgment shall only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the inferences to be drawn from the facts in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). The non-moving party may defeat the motion for summary judgment by producing sufficient specific facts to establish a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 II. Timeliness of the Complaint.

 In accordance with 42 U.S.C. s 2000e-5(f)(1)), a Title VII action "must be commenced within ninety days of the receipt of an EEOC right-to-sue letter." Sherlock v. Montefiore Medical Ctr., 95 Civ. 3839, 1995 U.S. Dist. LEXIS 13143, *2, 1995 WL 542458 at *2 (S.D.N.Y. Sept. 12, 1995); Spira v. Ethical Culture School, 888 F. Supp. 601, 602 (S.D.N.Y. 1995). This requirement should be strictly enforced and not extended "'by even one day.'" Johnson v. AL Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982)). See also, Moscowitz v. Brown, 850 F. Supp. 1185, 1192 (S.D.N.Y. 1994) (finding action untimely where filed ninety-one days after receipt of the right-to-sue letter). *fn3"

 The 90-day filing rule is not a jurisdictional prerequisite to suit in federal court, but rather "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127, reh'g denied, 456 U.S. 940, 72 L. Ed. 2d 461, 102 S. Ct. 2001 (1982)); see also, Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 349 ...


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