The opinion of the court was delivered by: LARIMER
Plaintiff, Victoria Talyansky ("Talyansky"), filed the instant complaint against defendant Mercury Print Productions, Inc. ("Mercury"), alleging that Mercury terminated her employment on the basis of her sex in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et al. ("Title VII").
Pending before me is defendant's motion to dismiss Talyansky's complaint. For the reasons discussed, infra, defendant's motion is granted and the complaint is dismissed.
Talyansky was employed through a temporary agency for Mercury from mid-October 1994 to December 4, 1994. On or about December 6, 1994, Talyansky received a telephone call from her temporary agency informing her that Mercury had no additional work for her. Talyansky claims that sometime in the beginning of 1997, she "accidently" discovered that, a day after her termination, Mercury had hired a male to perform the same job she had been performing prior to her termination.
Talyansky filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 9, 1997, almost three years after she left Mercury. The EEOC charge mirrors her complaint before this court. The EEOC dismissed the charge because it was not filed within 300 days of the alleged discriminatory conduct, as required by Title VII.
Talyansky's complaint contains a very vague claim that she was terminated from her employment because of her sex. Plaintiff did not set forth any facts or circumstances surrounding the claim. Talyansky did not file any administrative charge relating to this claim until October 9, 1997. The administrative charge is equally vague.
Under Title VII, a claimant must file a charge of discrimination with the EEOC within 300 days after the alleged discriminatory event. 42 U.S.C. §§ 2000e-5(e). When a plaintiff has not done so, the claim is time-barred. Butts v. City of New York Dept. of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993) (Title VII); Demers v. Niagara Mohawk Power Corp., 1996 U.S. Dist. LEXIS 7571, No. 94- CV-1277, 1996 WL 293162 *2-*3 (N.D.N.Y. May 24, 1996) (ADA). This statutory requirement is rigorously enforced and bars untimely claims of discrimination.
In the absence of factors that would warrant tolling or otherwise extending the filing period, courts have not been hesitant to dismiss claims that have not been timely filed with the EEOC. See VanSant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712-13 (2d Cir. 1996); South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994); Sharkey v. Lasmo (Aul Ltd.), 992 F. Supp. 321, 333-34 (S.D.N.Y. 1998) (ADEA case); Farrell v. State of New York, 946 F. Supp. 185, 193 (N.D.N.Y. 1996); Frank v. New York State Elec. & Gas, 871 F. Supp. 167, 171 (W.D.N.Y. 1994).
Of course, the timely filing of an EEOC charge is not a jurisdictional prerequisite to filing a federal lawsuit but is more akin to a statute of limitations and subject to waiver, estoppel and tolling under appropriate circumstances. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). In the present case, Talyansky did not file her administrative charge until almost three years after the allegedly discriminatory conduct, clearly outside of the 300 day filing requirement.
In the present case, Talyansky argues that her time for filing an administrative charge should be equitably tolled because, even though she was terminated in December 1994, at some later time she "accidentally" discovered that, the day after she was terminated, Mercury had hired a male to perform the job that she had been performing. Plaintiff fails to allege that she took any steps to determine the circumstances surrounding her termination from Mercury. Talyansky's complaint makes no mention of when she discovered that Mercury had hired a male to replace her or under what circumstances she discovered that information. Plaintiff was, after all, a temporary employee and not an employee of Mercury. Talyansky's responding papers to Mercury's motion do indicate that it was "in the beginning of 1997" when she discovered that Mercury had hired a male to do her job immediately after terminating her employment. But the fact that Mercury hired a permanent employee who happened to be male does not suggest discrimination.
Although equitable tolling may be used in appropriate situations to permit a plaintiff to proceed with an action even though the action had been filed beyond the statute of limitations, such tolling is applied only sparingly. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S. Ct. 453, 112 L. ...