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Derek Demperio v. Tsa Stores

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


April 26, 2012

DEREK DEMPERIO, PLAINTIFF,
v.
TSA STORES, INC., D/B/A THE SPORTS AUTHORITY, DEFENDANT.

The opinion of the court was delivered by: Gary L. Sharpe Chief Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff pro se Derek Demperio commenced this action against defendant TSA Stores, Inc., d/b/a The Sports Authority, alleging violations of the Americans with Disabilities Act,*fn1 Title VII,*fn2 the Fourteenth Amendment and common-law negligence and breach of contract. (See Compl., Dkt. No. 1.) Pending is TSA's motion to dismiss. (See Dkt. No. 12.) For the reasons that follow, the motion is granted.

II. Background*fn3

Demperio filed a verified complaint with the New York State Division of Human Rights (NYSDHR) against Sports Authority on September 14, 2009. (See Compl. at 10.) After investigating his claims, the NYSDHR found that no probable cause existed that Sports Authority engaged in discriminatory practices. (See Dkt. No. 12, Attach. 6.*fn4 ) This finding was adopted by the United States Equal Employment Opportunity Commission (EEOC) in its notification of the right-to-sue dated October 3, 2011. (See Compl. at 17.) On January 9, 2012, Demperio commenced this action alleging causes of action under both federal and state law, and seeking injunctive relief and compensatory damages. (See Compl. at 1, 11-15.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12 is well established and will not be repeated here.*fn5 For a full discussion of the standard, the court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

TSA argues that Demperio's Complaint should be dismissed because, inter alia, his ADA and Title VII claims are untimely, and his Fourteenth Amendment claim fails as a matter of law. (See Dkt. No. 11 at 6-11.) Demperio offers no opposition to TSA's argument with respect to his Fourteenth Amendment claim,*fn6 but counters that his Complaint was timely. (See Dkt. No. 15.) The court agrees with TSA.

To be timely, claims under the ADA or Title VII must be filed within ninety days of the "claimant's receipt of a right-to-sue letter from the EEOC." Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011) (citing 42 U.S.C. § 2000e-5(f)(1) (discussing the timeliness of a Title VII action); 42 U.S.C. § 12117(a) (stating that the Title VII limitations period is also applicable to claims under the ADA)). Absent proof to the contrary, it is presumed that a right-to-sue letter is mailed on the date shown on the notice, and "received three days after its mailing." Id.; see Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996) ("If a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach [him] by mail, the initial presumption is not dispositive.").

Here, the right-to-sue letter was presumptively mailed on October 3, 2011, the date shown on the notice, and received three days later, on October 6, 2011. (See Compl. at 17); Tiberio, 664 F.3d at 37.

Consequently, the limitations period on Demperio's ADA and Title VII claims expired on January 4, 2012, see 42 U.S.C. §§ 2000e-5(f)(1), 12117(a), five days before he filed his Complaint, (see Compl. at 1). While the mailing and receiving presumptions are not always dispositive, see Sherlock, 84 F.3d at 526, they are in this case, as Demperio failed to offer evidence to rebut them.

In order to avoid dismissal, Demperio avers that he did not physically receive the right-to-sue letter until Sunday October 16, 2011. (See Dkt. No. 15 ¶ 7.) This was so because his mailing address was different from his actual residence, and when he checked his mail "mid-week of the week ending Saturday October 8, 2011[,] the EEOC letter was not included in the mail [he] picked up that day." (Id. ¶¶ 6-7.) Based on his interpretation of the letter, Demperio concluded that he had until January 14, 2012 to file his suit. (See id. ¶ 8.) However, Demperio's response discusses only his knowledge; it is devoid of any evidence from which the court could infer "either that the notice was mailed later than its typewritten date or that it took longer than three days to reach [him] by mail."*fn7 Sherlock, 84 F.3d at 526. Although Demperio is a pro se litigant, (see Dkt. No. 15 ¶¶ 10-11), strict adherence to procedural requirements ensures an "evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). As such, Demperio's failure to comply with the statute of limitations, and inability to offer evidence to rebut the three-day receipt presumption, are fatal to his ADA and Title VII claims.*fn8

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby ORDERED that TSA's motions to dismiss (Dkt. No. 12) is GRANTED and all claims against it are DISMISSED; and it is further ORDERED that the Clerk close this case; and it is further ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.

IT IS SO ORDERED.


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