The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This employment discrimination case now is before the Court on
defendant's motion for summary judgment dismissing the complaint. Facts
As the motion turns on the question whether the action is timely, it is
necessary to recapitulate only the facts pertinent to that issue.
Plaintiff has a number of grievances against her former employer,
Cushman & Wakefield, Inc. ("Cushman"). On August 28, 2002, she filed
a charge of discrimination with the New York District Office of the Equal
Employment Opportunity Commission ("EEOC"). A right to sue letter was
mailed to plaintiff on March 24, 2003.*fn1 She commenced this action on
June 26, 2003.
The amended complaint asserted race and gender discrimination, as well
as retaliation, claims under Title VII of the Civil Rights Act of 1964,
as amended, and 42 U.S.C. § 1981.*fn2 It alleged that plaintiff's
counsel received the right to sue letter on March 28, 2003,*fn3 which
was exactly 90 days prior to the commencement of the action. But it was
silent as to when plaintiff received it.
Title VII suits must be commenced within 90 days after the plaintiff
receives a right to sue notice,*fn4 so it is not surprising that
discovery focused on when she as opposed to her attorney received it.
At her deposition on March 11, 2004, plaintiff, who was represented at
the deposition by her counsel of record, James C, Jones, Esq., testified
that she received the right to sue notice by regular mail but that she
could not remember when:
"Q When did you receive this notice? A Sometime
"Q Do you recall when? A The middle of the year,
early last year.
"Q Early last year, meaning 2003? A Yes.
"Q Do you see the date there at the bottom, it
says, date mailed, March 24, 2003? A Yes.
"Q Does that refresh your recollection as to
when you received this notice? A Sorry. 1 received
this notice sometime in March or April. 1 can't
remember which month or the date.
* * *
"Q Is there anything else that would help refresh
your recollection as to the exact date on which you
received this letter? A And what is the point to that?
"Q Can you just answer my question? A No. I received
it early last year, and then after that, I provided it
to my attorney. Any documents that I would have
received, I would give it to my attorney to handle
"Q There is nothing else that would help refresh
your recollection, like an entry in a diary or
journal, or something to refresh your recollection
as to the exact day that you received this letter?
On April 7, 2004, shortly after the deposition, plaintiff signed and
swore to the accuracy of the deposition transcript before Mr. Jones. She
signed also an errata sheet which made no corrections.*fn6
Just over one week later, Mr. Jones and defendant's counsel prepared
the PTO. They there stipulated as follows:
"Plaintiff personally received this Notice of
Right to Sue letter via regular mail but cannot
recall the date on which she received it, and
has no other evidence that would prove the date on
which she received it."*fn7
The PTO contained also defendant's contention that "[p]laintiff did
not file her Complaint within Title VII's strictly enforced `90 day'
Cushman then moved for summary judgment dismissing the complaint on the
ground, inter alia, that the action was untimely. Its Rule 56.1 Statement
averred, on the basis of the stipulation in the PTO and plaintiff's
deposition, that plaintiff could not recall, and had no other evidence
establishing, the date on which she received the notice.*fn9 In the
absence of any such evidence, it argued, plaintiff was presumed to have
received it three days after it was mailed, viz. on March 27, 2003, which
was 91 days prior to the commencement of the action.
Plaintiff did not submit a sufficient Rule 56.1 Statement in opposition
to the motion.*fn10
She did, however, submit an affirmation of Attorney Jones and an
affidavit of her own. Plaintiff there stated:
"Concerning the date on which I received the right
to sue letter from the EEOC in this matter, it jogged
my memory when my Attorney, James C. Jones, reminded
me that I called him on his cellular phone on the
evening of Friday March 28, 2003 (while he was having
dinner with friends) to say that `I received the Right
to Sue letter today'. He said that when he picked up
his office mail on Monday March 31, he learned that he
had also received the letter on Friday, March 28,
Mr. Jones, for his part, now tells the same story. He claims that he
received a call from plaintiff while dining with a friend on March 28,
2003 at which time she told him that she had received the right to sue
letter that day. He says that he "reminded Plaintiff [presumably
recently] of the . . . phone conversation and it jogged her memory as to
the date on which she received the EEOC letter."*fn12
Title VII requires that civil actions brought under its provisions be
commenced "within ninety days after the giving of [a] notice" by the EEOC
of the aggrieved person's right to sue.*fn13 The giving of notice occurs when the plaintiff receives
the right to sue letter.*fn14 In the absence of proof of the date of
receipt, however, the plaintiff is presumed to have received it three
days after it was mailed.*fn15
In this case, plaintiff stipulated that the letter was mailed on March
24, 2003. She testified and stipulated that she does not recall, and has
no other evidence, as to when she received it. Unless effect is given to
the belated submissions by plaintiff and her counsel, the three day
presumption applies, and the ...