The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Three women employed by the Department of Veterans Affairs ("VA") filed suit on March 11, 2010 alleging that while employed at the VA, they were subject to a hostile work environment and retaliation in violation of Title VII, 42 U.S.C. § 2000e. Defendant Eric Shinseki, Secretary of the VA, moves to dismiss claims filed by two of the three plaintiffs, Irene Prevorse and Jan Hensel. Defendant asserts that the claims of both Prevorse and Hensel are untimely because they were not filed within the 90-day filing period required by 42 U.S.C. § 2000e-16(c).*fn1
For the reasons stated, the Court finds that the claims of plaintiff Hensel and Prevorse are untimely.
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes this Court to dismiss a party or claims if jurisdiction is lacking. In ruling on a motion to dismiss for lack of jurisdiction, "[t]the party invoking jurisdiction bears the burden of establishing that jurisdiction exists." Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)(quotation omitted). At this stage of the litigation, the Court accepts as true all material allegations in the complaint, and draws all reasonable inferences in the plaintiff's favor. Id.
"Prior to bringing suit under either Title VII . . ., a federal government employee must timely 'exhaust the administrative remedies at his disposal.'" Belgrave v. Pena, 254 F.3d 384, 385 (2d Cir. 2001)(per curium)(quoting Downey v. Runyon, 160 F.3d 139, 145 (2d Cir.1998). Federal employees must comply with the regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") and must exhaust administrative remedies before bringing suit. Id.
The EEOC regulations require that the aggrieved employee, inter alia, (1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within 45 days of the alleged discriminatory act, see 29 C.F.R. § 1614.105(a)(1), and, if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint ("EEO complaint") within 15 days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint ("EEO notice"), see id. § 1614.106(a), (b). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408(a), (b).
The defendant argues that plaintiff Hensel's and plaintiff Pervorse's own allegations in the complaint show that they have failed to file their complaint within 90 days of receiving notice of their final administrative decision. According to the complaint, plaintiff Hensel's final administrative decision was issued on December 7, 2009, and she received notice that same day. (See Compl. Dkt. 1, at ¶ 8). Plaintiff Prevorse's final agency decision was issued on November 16, 2009, and she alleges that she received notice that same day. (Id. at ¶ 11).*fn2 The complaint was filed on March 11, 2010. Therefore, plaintiff Hensel filed her action 94 days after the final agency decision had been issued, and plaintiff Prevorse filed her action 115 days after her final agency decision was issued. As defendant correctly notes, the claims of both plaintiffs are untimely.*fn3
Although untimely, the 90-day limitations period is subject to equitable tolling. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), the Supreme Court ruled that the statutory time limit for filing charges is not a jurisdictional prerequisite and can be waived or tolled where deemed equitable by the district court. Equitable tolling is only appropriate "in [ ] rare and exceptional circumstance[s]," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (internal quotation marks omitted), where a party has been "prevented in some extraordinary way from exercising his rights," Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation marks and alteration omitted). Equitable tolling has been applied in situations where the claimant actively pursued her judicial remedies by filing a defective pleading during the statutory period, or where she had been induced or tricked by her adversary's misconduct into allowing the filing deadline to pass. See Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The doctrine has also been applied where the claimant received inadequate notice, or where a motion for appointment of counsel was pending. See South v. Saab Cars USA, Inc, 28 F.3d 9, 11-12 (2d Cir. 1994). Plaintiff does not assert any basis for equitable tolling of the 90-day limitations period..
"[I]n 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) (quotation omitted) (dismissing action filed 97 days after receipt). See also Zerilli-Edelglass v. N.Y.C. Transit Authority, 333 F.3d 74, 78 (2d Cir. 2003) (affirming dismissal of complaint received by pro se office 92 days after receipt of right to sue notice); Ford v. Consol. Edison Co. of N.Y., Inc., No. 03 Civ. 9587(PAC), 2006 WL 538116, at *6-7 (S.D.N.Y. Mar. 3, 2006) (dismissing Title VII claim as time barred where lawsuit was filed 92 days after plaintiff's attorney received right-to-sue letter); Manley v. N.Y. City Police Dep't, No. 05 Civ. 679(FB), 2005 WL 2664220, at *5 (E.D.N.Y. Oct.19, 2005) (dismissing Title VII claim as untimely where lawsuit was filed 91 days after receipt of right-to-sue letter).
Although plaintiffs Hensel and Prevorse do not cite any basis for this Court to apply equitable tolling, they do assert that their claims are timely under the "single filing rule." The "single filing rule", also known as the "piggybacking rule," permits a plaintiff who has failed to file her own timely discrimination charge to "piggyback" off of a timely charge filed by a co-worker. The Second Circuit has explained the rule as follows: "[W]here one plaintiff has filed a timely EEOC complaint, other non-filing plaintiffs may join in the action if their individual claims arise out of similar discriminatory treatment in the same time frame.'" Holowecki v. Federal Express Corp., 440 F.3d 558, 564 (2d Cir. 2006) (quoting Snell v. Suffolk County, 782 F.2d 1094, 1100 (2d Cir. 1986) (emphasis added). "The rule thereby avoids unnecessary repetition of EEOC filings where the initial complaint went unaddressed," Snell, 782 F.2d at 1100.
The single filing rule does not apply, however, where a plaintiff has filed her own administrative charge. Rather, in that situation, each plaintiff is required to bring suit within 90 days of receiving her own right-to-sue letter. The Second Circuit has held that "[a]n individual who has previously filed an EEOC charge cannot piggyback onto someone else's EEOC charge." Holowecki, 440 F.3d at 564; see also Levy v. United States Gen. Accounting Office, 175 F.3d 254, 255 (2d Cir. 1999) (per curiam) (affirming lower court holding that individuals who filed administrative charge but failed to file federal suit within 90 days of receipt of right-to-sue letter could not take advantage of single filing rule). The Fifth, Eighth, and Eleventh Circuit Courts of Appeals are in accord. See Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 557-58 (11th Cir. 1997) ("A plaintiff who has not filed an individual EEOC charge may invoke the single-filing rule where such plaintiff is similarly situated to the person who actually filed an EEOC charge, and where the EEOC charge actually filed gave the employer notice of the collective or class-wide nature of the charge. . . . However, where a plaintiff has filed an individual EEOC charge, such a plaintiff should be required to rely upon his or her own EEOC charge, and cannot reasonably rely upon the other claimant's charge.")(emphasis in original);Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1224 n. 22 (5th Cir. 1995) (holding that employee who filed his own EEOC charge "is bound by the parameters of his own EEOC charge, and cannot subsequently utilize the single filing ...