United States District Court, S.D. New York
August 22, 2005.
STEPHANIE J. McGUGAN, Plaintiff,
AUTOMATIC DATA PROCESSING, INC., Defendant.
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Plaintiff Stephanie McGugan, appearing pro se, brings this
employment discrimination action against defendant Automatic Data
Processing ("ADP"). Defendant now moves to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the
complaint is time-barred.
Defendant's motion raises the issue of whether McGugan filed a
charge of discrimination with the EEOC within 300 days of the
allegedly unlawful act as required by law. Both sides have
submitted correspondence between McGugan and the EEOC on this
Defendant's motion to dismiss the complaint is granted. FACTS
The facts below are drawn from McGugan's complaint and the
submitted correspondence. The court is entitled to rely on this
correspondence without converting the motion into a motion for
summary judgment because plaintiff had knowledge of the
correspondence and relied upon it in bringing this suit. See
Chambers v. Time-Warner, Inc., 282 F.3d 147, 152 (2d Cir.
McGugan is an African-American woman who was employed by ADP
until her employment was terminated on November 2, 2002. She
claims that from 1998 until November 2002, ADP failed to promote
her because of her race and retaliated against her complaints by
terminating her employment. McGugan's complaint is prepared on a
form provided by the Pro Se Clerk's office of this court.
Paragraphs 9 and 10 of the form deal with the issue of prior
resort to an administrative agency.
9. It is my best recollection that I filed a charge
with the New York State Division of Human Rights or
the New York City Commission on Human Rights
regarding defendant's alleged discriminatory conduct
on: [handwritten] 11/03/02 at NJ EEOC (my case was
dispatched to NYC EEOC).
10. It is my best recollection that I filed a charge
with the Equal Employment Opportunity Commission
regarding defendant's alleged discriminatory conduct
on: [handwritten] 11/03/02. As stated in paragraphs 9 and 10 of her complaint, McGugan
claims to have filed a charge of discrimination with the Newark
Area Office of the EEOC on November 3, 2002. McGugan attempts to
support this claim in two affirmations which she submitted in
response to the defense motion. In the first of the affirmations,
3. Attached as Exhibit A is a true and exact copy of
a letter that will confirm that I did in fact file a
complaint within 300 days of my last day of
4. Also included in Exhibit A is a true and exact
copy of [a] Charge of Discrimination that I,
Stephanie J. McGugan, the Plaintiff, filed with the
Equal Employment Opportunity Commission ("EEOC")
which bears a date of November 8, 2002.
5. Also included in Exhibit A is a true and exact
copy of a letter received from the EEOC indicating
that Stephanie J. McGugan, the plaintiff, did in fact
file a Charge of Discrimination against ADP with the
New Jersey Office of the Equal Employment Opportunity
Exhibit A is a letter to McGugan from the Newark Area Office of
the EEOC dated November 8, 2002. The letter began: "This letter
is in reply to your inquiry regarding the filing of a potential
charge of discrimination with this office". The letter proceeded
to describe how the EEOC enforces certain federal laws
prohibiting employment discrimination, and then stated
The EEOC is authorized to accept, investigate and attempt to conciliate charges alleging such
discrimination as long as they are filed with this
agency in a timely manner, usually within 180-300
days of the alleged harm.
Finally, the letter advised that the "information you completed"
would be transferred to the New York District Office of the EEOC.
Contrary to McGugan's assertions, the November 8 letter, which
is the entire Exhibit A, did not include any charge of
discrimination, nor did it indicate that McGugan had filed such a
charge. Although the letter referred to an "inquiry regarding the
filing of a potential charge of discrimination" and also to "the
information you completed," neither McGugan's inquiry nor the
information she completed constituted the filing of a charge of
discrimination. Indeed, McGugan has not submitted to the court
any copy of a charge of discrimination filed in November 2002.
There is other correspondence that refutes McGugan's claim. An
employee in the New York District Office of the EEOC wrote
McGugan on November 29, 2002, and stated
The EEOC New York Office is in receipt of your
questionnaire. I have documents that need to be
submitted to us before we can formally docket any
charge of discrimination.
The questionnaire referred to had apparently been filled out by
McGugan when she visited the Newark EEOC office in early November 2002. It
further appears that it is this questionnaire which was described
in the November 8 letter as "the information you completed."
McGugan argues that the November 29 letter confirmed that her
charge of discrimination was timely filed at the New Jersey
office, but it did not. Although the language of the letter could
be more precise, it is sufficiently advised McGugan that certain
documents remained to be completed and submitted to the EEOC
before the EEOC could docket a charge of discrimination.
The next item of correspondence in the record is a letter to
McGugan from the New York District Office of the EEOC dated May
22, 2003, which read:
Dear Mrs. McGugan:
The EEOC is in receipt of your general questionnaire.
Please be informed that a general questionnaire does
not constitute in filling a charge. I have enclosed
the appropriate documents for you to submit along
with your allegations. Please attach your allegations
to the Charge of Discrimination Form 5. Also,
please be aware that your allegations that will be
set forth in the Charge of Discrimination must be
If you have any questions please do not hesitate to
call me at the number listed above.
Arlean Nieto It is not clear if the May 22 letter referred to the same
questionnaire as the November 29 letter. In any event, the May 22
letter clearly informed plaintiff that no charge of
discrimination had yet been filed and that, before such filing
could occur, plaintiff must fill out and submit additional
documents to the EEOC.
McGugan did file a charge of discrimination with the New York
District Office of the EEOC on September 11, 2003. That charge of
discrimination bore the number 160-2003-02376. The court infers
that this number reflects a filing in 2003, not in 2002. Attached
to that charge of discrimination is a four-page addendum in which
plaintiff provided detailed allegations of the same racial
discrimination as found in the complaint now before this court.
Finally, on September 17, 2003, the New York District Office of
the EEOC issued a Dismissal and Notice of Right informing McGugan
that "the documentary evidence provided does not substantiate
your allegations of race discrimination and retaliation." There
was also a Notice of Right to Sue. This document bore the same
2003 case number as the charge of discrimination filed in
September 2003. There was no reference to a 2002 charge.
McGugan asked the EEOC to reconsider its decision in a letter
dated December 1, 2003. By letter dated December 16, 2003 the
EEOC informed McGugan that the EEOC would not reconsider her charge
On December 12, 2003 McGugan submitted this complaint to the
Pro Se Clerk's office of the Southern District of New York, and
the complaint was subsequently filed on January 23, 2004.
In a deferral state such as New York, a plaintiff must file an
administrative charge of discrimination under Title VII within
300 days of the allegedly unlawful employment act.
42 U.S.C. § 2000e-5(e)(1); Harris v. City of New York, 186 F.3d 243, 247
(2d Cir. 1999). Failure to file a timely charge with the EEOC
usually requires dismissal of the plaintiff's suit by the
district court. However, a plaintiff's failure to file a timely
charge with the EEOC does not necessarily deprive the court of
jurisdiction. Rather, timely filing is "a requirement that, like
a statute of limitations, is subject to waiver, estoppel, and
equitable tolling." Haghpassand v. Reuters Consulting Group, 03
Civ. 5686 (LBS), 2004 WL 594576, at *4 (S.D.N.Y. Mar. 25, 2004),
quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982). Equitable tolling is only applied in cases where
plaintiff has acted diligently, but has been "prevented in some
extraordinary way from exercising his rights." Zerilli-Edelglass
v. New York City Transit Authority, 333 F.3d 74, 80 (2d Cir.
2003). In this case, McGugan's last day of employment by ADP was
November 2, 2002. The 300-day period commencing on November 3,
2002 ended on August 31, 2003. However, August 31 was a Sunday
and September 1 was Labor Day. Thus, plaintiff had until
September 2, 2003 to file a charge of discrimination with the
ADP's position is that McGugan did not file a charge of
discrimination with the EEOC until September 11, 2003, and that
the charge was therefore untimely. McGugan claims to have filed a
charge of discrimination on November 3 or 8, 2002, but she has
produced no such charge. Moreover, despite plaintiff's argument
to the contrary, the November 8 and November 29 EEOC letters do
not confirm that plaintiff filed a charge at that time.
Therefore, the court finds that McGugan did not file an EEOC
charge of discrimination until September 11, 2003, more than 300
days after the termination of her employment.
McGugan argues that her completion of an EEOC questionnaire at
some point prior to November 8, 2002 should be regarded as a
timely filing of a charge of discrimination. However, the
argument that a questionnaire is equivalent to a charge of
discrimination has been repeatedly rejected, and is unavailing
here. See Haghpassand, 2004 WL 594576, at *5; see also
Walker v. New York City Transit Authority, 99 Civ. 3337 (DC),
2001 WL 1098022, at *6 (S.D.N.Y. Sept. 19, 2001).
McGugan also argues that the 300-day deadline should be
equitably tolled because the EEOC led her to believe that she had
filed a charge of discrimination in early November 2002. McGugan
relies primarily on the language of the November 8 letter,
particularly the opening sentence: "This letter is in reply to
your inquiry regarding the filing of a potential charge of
discrimination with this office." The November 8 letter also
states that "The information you completed will be transferred to
the New York District Office," and McGugan argues that she
interpreted the word "information" to refer to her charge of
In any event, the EEOC letter November 29, 2002 informed
McGugan that it was "in receipt of your questionnaire" and that
it required additional documents before it could "formally docket
any charge of discrimination." Finally, in the letter dated May
22, 2003, McGugan was again advised that although the EEOC was in
receipt of her general questionnaire, "a general questionnaire
does not constitute in filing a charge." That letter even
supplied plaintiff with the forms needed for filing a charge of
Even accepting the poor wording of the November 8 letter, the
later correspondence shows that the EEOC advised plaintiff that
she had not filed a charge of discrimination well before the
expiration of the 300-day period. At the latest, plaintiff should have known from the May 22 letter
that she had not filed a charge of discrimination. At that point,
plaintiff still had at least three months to file a charge of
discrimination before the 300-day period expired. The court
therefore finds that the circumstances behind plaintiff's delayed
filing are not so extraordinary as to justify tolling the 300-day
period for the filing of a charge of discrimination.
Defendant's motion is granted. The complaint is dismissed as
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