The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Mary A. Laurey, appearing pro se, commenced this
discrimination action on September 9, 2002. Plaintiff, who is
black, asserts a claim under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2003 et seq., alleging that her former
employer, defendant Chemung County Department of Social Services
("DSS"), discriminated against her in a number of ways, and that
DSS terminated her employment in retaliation for plaintiff's
filing an administrative complaint against DSS with the New York
State Division of Human Rights ("DHR"). Defendant has moved for
summary judgment pursuant to Rule 56 of the Federal Rules of
There are two asserted bases for defendant's motion: that this
action is untimely, and that plaintiff's claims are meritless.
For the reasons that follow, I find that plaintiff's
discrimination claim is untimely, and that defendant is entitled
to summary judgment on that claim. I also find that plaintiff's
retaliation claim is timely, but that it must be dismissed on the
Plaintiff began working at DSS in early August 1998, as a
temporary social welfare examiner trainee. Almost from the
beginning of her employment there, plaintiff had a number of
problems with her supervisors.
Eventually, plaintiff alleges, the stress of her working
environment affected her health. On her doctor's advice, she
stopped reporting to work after June 28, 2000.
On June 30, 2000, plaintiff filed a charge of discrimination (a
copy of which is attached to the complaint in this action) with
the New York State Division of Human Rights ("DHR"). She alleged
that she was "being subjected to unequal treatment for reasons
directly related to [her] race and color."
Plaintiff alleges that on November 6, 2000, she received a
letter from defendant informing her that she had not completed
her probationary employment term,*fn2 and that she was being
terminated. One week later, she filed a second complaint with the
DHR, alleging that defendant had "unlawfully discriminat[ed]
against [her] in retaliation for [her] prior [discrimination]
complaint, by terminating [her] employment. . . ." On November 14, 2001, the DHR issued two reports, finding no
probable cause for either plaintiff's discrimination or
retaliation charges. On March 13, 2002, the Equal Employment
Opportunity Commission ("EEOC") adopted the DHR's findings on the
discrimination charge, and issued plaintiff a right-to-sue
letter. The EEOC issued a right-to-sue letter on plaintiff's
retaliation charge on June 7, 2002. Plaintiff filed the complaint
in this action on September 9, 2002.
I. Timeliness of the Complaint
For a Title VII complaint to be timely, it must be filed no
more than 90 days of the plaintiff's receipt of a right-to-sue
letter. See 42 U.S.C. § 2000e-5(f); Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996); Cornwell v.
Robinson, 23 F.3d 694, 706 (2d Cir. 1994). Although this
requirement is not jurisdictional, but rather, a condition
precedent to filing suit, see Johnson v. Al Tech Specialties
Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984), it is strictly
enforced and should not be extended "by even one day" absent some
recognized equitable consideration. Johnson v. Al Tech
Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)
(quoting Rice v. New England College, 676 F.2d 9, 11 (1st
In the case at bar, defendant contends that the action is
untimely because the complaint was filed 180 days after issuance
of the first right-to-sue letter, and 94 days after issuance of
the second right-to-sue letter.*fn3 I agree with defendant
as to the former, but not as to the latter. Plaintiff's complaint is clearly untimely as to the
discrimination claim. She had actual notice of the 90-day filing
period from the right-to-sue letter itself, and after reviewing
plaintiff's submissions in response to defendant's motion, I find
no basis for tolling or extending her time period within which to
file her complaint on that claim. See Zerilli-Edelglass v. New
York City Transit Authority, 333 F.3d 74, 80 (2d Cir. 2003)
("equitable tolling is only appropriate in rare and exceptional
circumstances, in which a party is prevented in some
extraordinary way from exercising his rights") (internal brackets
and quotation marks omitted).
The retaliation claim stands on a different footing, however.
First, the 90-day period commences not upon the issuance or
mailing of a right-to-sue letter, but upon its receipt. See
Sherlock, 84 F.3d at 525. Second, "[n]ormally it is assumed that
a mailed document is received three days after its mailing."
Id.; see Fed.R.Civ.P. 6(e); Williams v. St. Joseph's
Hosp., No. 02-CV-6467, 2003 WL 23350424, at *2 (W.D.N.Y. 2003);
Gardner v. Honest Weight Food Co-op, Inc., 96 F. Supp.2d 154,
158 (S.D.N.Y. 2000).
Presumably, then, plaintiff received the second right-to-sue
letter on June 10, 2002. Plaintiff states in the complaint that
she received it on June 9, 2002, see Complaint ¶ 12, but that
date fell on a Sunday, making it unlikely that she actually
received it on that day.
Regardless of whether plaintiff received the letter on June 9
or 10, however, her retaliation claim is timely. Ninety days from
June 9 and 10 would be September 7 and 8, 2002. Those dates fell
on Saturday and Sunday. Under the Federal Rules, when "computing
any period of time prescribed . . . by any applicable statute,
. . . [t]he last day of the period so computed shall be included,
unless it is a Saturday, a Sunday, . . . in which event the
period runs until the end of the next day which is not one of the
aforementioned days." Fed.R.Civ.P. 6(a). Thus, even if
plaintiff received the second right-to-sue letter on June 9, 2002, she ...