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United States District Court, N.D. New York

March 26, 2004.


The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge



  Plaintiff, an insulin dependent diabetic, instituted this lawsuit claiming violations of the Page 2 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 § 1981a.

  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 Page 3 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 15, 2003.

  The 90 day period in which to file a timely claim begins to run from the date the Page 4 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 filing.

  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 Page 5 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.



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