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Rosinski v. DRS EW & Network Systems

November 18, 2008


The opinion of the court was delivered by: William M. Skretny United States District Judge



Plaintiff Joanne Rosinski alleges that her former employer, Defendant DRS EW & Network Systems, Inc. ("DRS"), discriminated against her because of her gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York Human Rights Law ("NYHRL"). Presently before this Court is Defendant's Motion to Dismiss Plaintiff's Complaint for failure to state a claim.*fn1 Defendant has not requested oral argument, and this Court has determined that oral argument is unnecessary. For the reasons stated below, Defendant's Motion is denied.


On February 26, 2007, Plaintiff filed administrative complaint number 10116338 with the New York State Division of Human Rights ("DHR"). Complaint, Docket No.1 at 9. The administrative complaint was dual-filed with the Equal Employment Opportunity Commission ("EEOC"), and assigned Federal Charge Number 16GA701840. Id. The DHR investigated Plaintiff's allegations and issued a determination based on its findings. Id. at 15. On September 28, 2007, the EEOC adopted the DHR's findings and issued a Notice of Suit Rights advising Plaintiff that a lawsuit based on the allegations in her administrative complaint must be filed within 90 days of her receipt of the Notice. Id. at 17. Plaintiff alleges she received the EEOC's Notice on October 1, 2007. Id. at 3, ¶ 12. There is no dispute that the 90th day thereafter was Sunday, December 30, 2007.

Plaintiff's pro se Complaint*fn2 was received at the Court Clerk's office on Wednesday, January 2, 2008, and filed on January 4, 2008. On February 4, 2008, Defendant moved to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the ground that the Complaint was untimely filed. Docket No. 5 at 2.


A. Time Limitations and the Doctrine of Equitable Tolling

To maintain an action under 42 U.S.C § 2000e-5, a plaintiff must ordinarily file a timely charge with the EEOC, receive from that agency a right to sue letter, and file an action within 90 days of receipt of that letter. Banks v. State University of New York at Buffalo, No. 06-CV-239S, 2007 U.S. Dist. LEXIS 20529, at *16 (W.D.N.Y. Mar. 21, 2007); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994); 42 U.S.C § 2000e-5(f)(1). "The Second Circuit construes Title VII's time limits as analogous to a statute of limitations." Banks, 2007 U.S. Dist. LEXIS 20529, at *16 (citations and internal quotation marks omitted). "[T]he failure to bring suit within the statutory filing period is a ground for dismissing a complaint in the absence of a recognized equitable consideration." Hassan v. N.Y. City Off Track Betting Corp., No. 5 Civ. 9677, 2007 U.S. Dist. LEXIS 15261, 2007 WL 678422, at *3 (S.D.N.Y. Mar. 6, 2007) (citing Skeete v. IVF Am., Inc., 972 F. Supp. 206, 209 (S.D.N.Y 1997)). So, "[w]hile the 90-day rule is not a jurisdictional predicate, in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day." Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984).

"[E]quitable tolling is only appropriate in [ ] rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising his rights." ZerilliEdelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal quotations and citations omitted) (alteration in original). The United States Supreme Court has recognized four situations where principles of equity may support tolling in Title VII cases: (1) where a claimant does not receive sufficient notice of suit rights from the EEOC; (2) during the pendency of a claimant's motion for appointment of counsel; (3) where the court has led a plaintiff to believe she has done everything required of her; or (4) where affirmative conduct by the defendant has lulled a plaintiff into inaction. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed. 2d 196 (1984) (citations omitted). "[A] district court must consider whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply. Zerilli-Edelglass, 333 F.3d at 81 (citation and internal quotation marks omitted).

B. Analysis

Defendant urges that strict application of Title VII's time limits is appropriate here, and that dismissal is required because Plaintiff filed her Complaint after her 90-day window to commence an action had expired.

Plaintiff acknowledges that her Complaint was filed more than 90 days after she received her Notice of Suit Rights, but urges that equitable tolling is warranted in this case. Because the 90th day fell on Sunday, December 30, 2007, Plaintiff's last day for filing ordinarily would have been Monday, December 31, 2007. Fed. R. Civ. P. 6(a)(3). However, the Chief Judge for the District closed the Courthouse on December 31, 2007,*fn3 making the Courthouse inaccessible for commencing an action, and January 1, 2008 was a legal holiday. Id. 6(a)(3), (4)(A). Plaintiff therefore contends that the 90-day period ended on January 2, 2008. This Court agrees with Plaintiff's calculation.

To meet the January 2nd deadline, Plaintiff express mailed her Complaint on December 31, 2007, to the Court Clerk's office. Affidavit of Joanne Rosinski, Docket No. 8, ¶ 5, Exhibit C. Plaintiff attests that she relied on the instructions for employment discrimination complaints posted on the Court's website to compose and file her Complaint. Id., ¶ 3, Exhibit B. The instructions directed Plaintiff to pay to the Court Clerk a $150.00 filing fee. Id. Therefore, she enclosed with her Complaint a check dated December 30, 2007, in the amount of $150.00. Id., Exhibit A. A Clerk's office employee accepted delivery of Plaintiff's package on the morning of January 2, 2008. Id., Exhibit B. On January 3, 2008, the Clerk's office notified Plaintiff by phone message that the applicable filing fee was, in fact, $350.00. Id., ¶ 7; see 28 U.S.C. § 1914(a).*fn4 Plaintiff did not receive the message until she returned home from work that day, after the Clerk's office had closed. Id., ΒΆ 7. On January 4, 2008, Plaintiff went to the Clerk's office and paid ...

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