The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Defendant the New York State Office of Mental Health ("OMH") and Manhattan Psychiatric Center ("MPC") (collectively, the "State"), have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the pro se discrimination complaint of plaintiff Kevin R. Loftin ("Loftin"). For the reasons set forth below, the motion is granted.
Loftin pro se commenced this suit on June 14, 2002 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") alleging that defendant terminated him because of his race and color and discriminated against him by unequal terms and conditions in his employment. The State moved to dismiss on grounds that Loftin failed to meet the requisite filing requirements of Title VII by neglecting to file this federal lawsuit within ninety days after receiving his right-to-sue letter. The motion was marked fully submitted on November 27, 2002.
Loftin is a former employee of OMH. He was employed at MPC from August 22, 1991 to January 13, 1992. He alleges that he never received a right-to-sue letter mailed to him by the United States Equal Employment Opportunity Commission ("EEOC"). However, OMH received two right-to-sue letters: a September 13, 1993 right-to-sue letter and an October 22, 1993 right-to-sue letter.*fn1 Both right-to-sue letters list Loftin as an addressee and list his current address.
On May 15, 2001, Loftin sought confirmation of his case being closed from the EEOC. In response, by letter dated August 6, 2001, the EEOC indicated that they were unable to provide a copy of its original determination because the file had been destroyed in accordance with federal regulation.
The Title VII Claims Are Untimely
Pursuant to 42 U.S.C. § 2000e-5(f)(1), a plaintiff "may initiate a Title VII court action within 90 days of the notification by the [EEOC] that it is unable or unwilling to settle the dispute between employee and employer." Johnson v. Al Tech Specialties Steel Co., 731 F.2d 143, 144 (2d Cir. 1984) Loftin's time to file suit lapsed ninety days from the mailing of the 1993 right-to-sue letter. The EEOC's letter of determination constitutes the final determination of the Commissioner and starts the 90-day statute of limitations. See 29 C.F.R. § 1601.19(a); 29 C.F.R. § 1601.28(e); 42 U.S.C. § 2000e-5(f)(1).
There is a presumption that a right-to-sue letter properly mailed is not only received by the addressee, but also is received in the due course of the mails. Battaglia v. Heckler, 643 F. Supp. 558, 559-60 (S.D.N.Y. 1986). Fed.R.Civ.P. 6(e) creates a presumption that items sent by mail are received within three days. See Sherlock v. Montefiore Medical Ctr., 84 F.3d 522 (2d Cir. 1996). It is further presumed, in the absence of a challenge, that a notice by a government agency is mailed on the date shown in the notice. Id. at 526. Loftin's bare allegation of non-receipt, absent any explanation or affidavit in response, is insufficient to overcome this presumption.
In Everson v. N.Y. City Transit Auth., the plaintiff claimed that he never received a right-to-sue letter. However, the court held that his claims were untimely because plaintiff failed to offer any evidence as to why he never received the right-to-sue letter. Everson v. N.Y. City Transit Auth., 216 F. Supp.2d 71 (E.D.N.Y. 2002) (stating "[plaintiff] offers no explanation in the Complaint — such as having moved, for example — as to why he did not receive the letter")
Here, because the right-to-sue letters were dated September 13, 1993 and October 22, 1993 respectively, Loftin was presumed to have received the letters by September 16, 1993 and October 25, 1993 respectively. Loftin's claim of non-receipt is unsubstantiated.
Loftin's undated, handwritten note attached to the complaint does not prove that he never received the right-to-sue letter. The note states that Loftin never received a letter "talking about a right to sue," but it shows that Loftin has knowledge of the right-to-sue letter and apparently even spoke with the New York State Human Rights Division who told him to speak to the EEOC about this matter.
Without affidavits establishing an absence of fault on the part of Loftin, his Title VII claims are untimely under the well-established legal presumption of receipt. More than ninety days has passed since Loftin's receipt of either ...