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Foster v. Walgreen Co.

United States District Court, W.D. New York

April 16, 2014

PAULINE FOSTER, Plaintiff,
v.
WALGREEN CO., Defendant

Pauline Foster, Plaintiff, Pro se, Pauline Foster, Rochester, NY.

For Walgreens, Defendant: Sharon M. Porcellio, LEAD ATTORNEY, Bond, Schoeneck & King, PLLC, Buffalo, NY; Katherine S. McClung, Bond Schoeneck & King PLLC, Rochester, NY.

OPINION

ELIZABETH A. WOLFORD, United States District Judge.

Page 616

DECISION AND ORDER

Pro se Plaintiff Pauline Foster (" Plaintiff" ), a former employee of Defendant Walgreen Co.[1] (" Defendant" ), alleges Defendant

Page 617

engaged in unlawful employment discrimination because of Plaintiff's race, age, and disability, in violation of Title VII of the Civil Rights Act (" Title VII" ), 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621, et seq., and the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq. (Dkt. 1). Presently before the Court is Defendant's motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 7). Defendant contends that Plaintiff's complaint is untimely. ( Id.) For the following reasons, Defendant's motion is granted and the complaint is dismissed.

BACKGROUND

Plaintiff was employed by Defendant until her termination in December 2012. (Dkt. 1 at ¶ 19).[2] Shortly after her termination, Plaintiff filed a complaint with the New York State Division of Human Rights (" NYSDHR" ), alleging race, age, and disability discrimination. ( Id. at ¶ 8). The complaint was cross-filed with the Equal Employment Opportunity Commission (" EEOC" ). (Dkt. 7-2 at ¶ 3). On March 29, 2013, the NYSDHR issued a determination of " No Probable Cause" to believe that Defendant engaged in the alleged discrimination. ( Id. at ¶ 4).

On June 14, 2013, the EEOC issued Plaintiff a " right-to-sue" letter, notifying Plaintiff that the EEOC adopted the NYSDHR's findings. (Dkt. 1-1 at 1). That letter also instructed Plaintiff that any lawsuit she may wish to file " under federal law . . . must be filed WITHIN 90 DAYS of your receipt of this notice; or, your right to sue based on this charge will be lost." ( Id.) (emphasis in original).

Plaintiff alleges that she received the " right-to-sue" letter from the EEOC on June 14, 2013. (Dkt. 1 a ¶ 12).

Plaintiff filed her complaint on September 23, 2013, 101 days after she received her " right-to-sue" letter ...


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