Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LAUREY v. CHEMUNG COUNTY DEP'T OF SOCIAL SERV.

July 30, 2004.

MARY ARETHA LAUREY, Plaintiff,
v.
CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant.



The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District

DECISION AND ORDER

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 Civil Procedure.

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 merits. BACKGROUND*fn1

  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.

  DISCUSSION

  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 Cir. 1982)).

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.