United States District Court, N.D. New York
March 26, 2004.
ROBERT F. PANINSKI, Plaintiff,
ONONDAGA COUNTY DEPARTMENT OF CORRECTIONS and TIMOTHY H. COWIN, COMMISSIONER Defendants
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff, an insulin dependent diabetic, instituted this lawsuit
claiming violations of the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101,
et seq. ("the ADA"), and § 102 of the Civil Rights Act of 1991, 42 U.S.C
The complaint alleges two ADA infractions by defendant, the first, not
making reasonable accommodations for plaintiffs disability, the second,
for employing arbitrary methods of disciplining plaintiff regarding his
medical leave application.
Plaintiff filed a charge with the Equal Employment Opportunity
Commission ("the EEOC") asserting that defendant discriminated against
him because of his disability. On June 14, 2003, plaintiff received a
right to sue letter from the EEOC. The original complaint in this action
was filed on September 15, 2003.
Currently before the court is defendants motion pursuant to Federal
Rule of Civil Procedure 12(b)(6) seeking dismissal of the complaint for
failing to state a claim upon which relief can be granted. Plaintiff has
entered opposition to this motion.
Defendant maintains that the complaint should be dismissed because
plaintiff did not institute his lawsuit within 90 days of receipt of his
right to sue letter as required by statute.
A dismissal under Rule 12(b)(6) is a dismissal on the merits of the
action, a determination that the facts alleged in the complaint fail to
state a claim upon which relief may be granted. Teltronics Services.
Inc. v. L M Ericsson Telecommunications, Inc., 642 F.2d 31, 34 (2d Cir.)
cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). In
deciding a 12(b)(6) motion, the court must "accept as true all of the
allegations of the complaint and all
reasonable inferences that can be drawn therefrom, and view them in a
light most favorable to the non-moving party. Rocks v. City of
Philadelphia, 868 F.2d 644, 645 (3rd Cir. 1989). Dismissal of a claim is
not proper unless it is obvious that the plaintiff is unable to prove no
set of facts supporting his claim which would enable him to prevail. Robb
v. City of Philadelphia, 733 F.2d 286, 290 (3rd Cir. 1984). A complaint
may be dismissed, however, when the facts pleaded and the reasonable
inferences therefrom are legally insufficient to support the relief
sought. Pennsylvania v. ex rel. Zimmerman v. Pepsico. Inc., 836 F.2d 173,
179 (3d Cir. 1986). "The function of a motion to dismiss is merely to
assess the legal feasibility of the complaint, not to assay the weight of
the evidence which might be offered in support thereof." Ryder Energy
Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 744, 749
(2d Cir. 1984)(quoting Geisler v. Petrocelli, 616 F.2d 636, 639).
As a prerequisite to filing a suit in federal court under the ADA, a
plaintiff must first file a charge of discrimination with the EEOC and
must receive a notice of right to sue. Plaintiff then has 90 days from
the receipt of the notice of right to bring suit. 42 U.S.C. § 2000e5(f)(1)
"If a charge filed with the Commission . . . is dismissed by the
Commission . . ., the Commission shall so notify the person aggrieved and
within ninety-days after the giving of such notice a civil action may be
brought against the respondent named in the charge.").
Defendant's motion papers allege that the EEOC Right to Sue letter was
delivered to the office of plaintiff's attorney on June 14, 2003, a
Saturday, and was actually not received by the attorney until Monday,
July 16, 2003. Thereafter, the original complaint was filed on September
The 90 day period in which to file a timely claim begins to run from
the date the
claimant or the claimant's attorney receives the letter notice, whichever
comes first. Irwin v. Department of Veterans Affairs, 498 U.S. at 92-93,
111 S.Ct. 456. The EEOC letter notice was date stamped on July 13, 2003,
and recites that it is "To: Robert F. Paninski, 33 Woodworth Road,
Central Square, N.Y. 13036." The amended complaint avers that the letter
notice was delivered, presumably by plaintiff, to his attorney's office
on Saturday July 14, 2003, but not seen by the attorney until July 16,
2003. If plaintiff did receive the letter notice on July 14, 2003, the 90
day period would have started to run on that date, expired on September
11, 2003, and the original complaint filed on September 15, 2003,
apparently would have been time barred.
Normally it is assumed that a mailed document is received three days
after its mailing. Baldwin County Welcome Center v. Brown, 466 U.S. 147,
148 n. 1, 104 S.Ct. 1723, 1724 n. 1, 80 L.Ed.2d 196 (1984)(citing Federal
Rule of Civil Procedure 6(e) ("Whenever a party has the right or is
required to do some act or take some proceedings within a prescribed
period after the service of notice or other paper upon the party and the
notice or paper is served upon the party by mail, 3 days shall be added
to the prescribed period.")) And normally it may be assumed, in the
absence of challenge, that a notice provided by a government agency has
been mailed on the date shown on the notice. Id. In this case the letter
notice was date stamped July 13, 2003. Adding 3 days to this date would
extend the 90 day time period in this case to September 16, 2003, thereby
bringing plaintiffs original complaint filed September 15, 2003, within
the ambit of the 90 day period, and not subject to dismissal for untimely
Plaintiff's clam under 42 U.S.C. § 1981a will be dismissed for the
following reasons. To establish a claim under 42 U.S.C. § 198 la, a
plaintiff must show: that he/she is a member
of a racial minority; (2) an intent to discriminate on the basis of race
by the defendant; and (3) that the discrimination concerned one or more of
the activities enumerated in the statute. Brown v. City of Oneonta,
195 F.3d 111, 121 (2d Cir. 1999). Plaintiffs factual assertions provide
scant evidence that defendant intended to discriminate on the basis of
race, and has not set forth enough evidence to meet his minimal burden of
this element of a prima facie case under § 1981a.
Accordingly, defendants motion pursuant to Federal Rule of Civil
Procedure 12(b)(6) seeking dismissal of the complaint as untimely is
DENIED; the complaint's claim under 42 U.S.C. § 1981 (a) DISMISSED.
IT IS SO ORDERED.
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