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Foster v. Walgreen Co.

United States District Court, W.D. New York

April 16, 2014

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.


ELIZABETH A. WOLFORD, United States District Judge.

Page 616


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

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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.


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 from the EEOC. (Dkt. 1).


Title VII, ADA, and ADEA claims must be filed in federal court within 90 days of the claimant's receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a); 29 U.S.C. § 626(e). The 90-day limit is strictly construed. See Hughes v. Elmira Coll., 584 F.Supp.2d 588, 590 (W.D.N.Y. 2008) (dismissing plaintiff's claims as untimely where plaintiff filed complaint 91 days after right-to-sue letter received). Equitable tolling of the time limitation is only appropriate in " rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising his rights." Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)

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(internal quotations and citations omitted).

" The equitable considerations that have been recognized as justifying tolling the limitations period have been applied sparingly." Nearhood v. Tops Mkts., Inc., 76 F.Supp.2d 304, 306 (W.D.N.Y. 1999). " [T]he Supreme Court has recognized only four situations justifying equitable tolling of Title VIP's time limits: (1) where a claimant receives inadequate notice of the right to sue; (2) where circumstances justify tolling while a claimant's motion for appointment of counsel is pending; (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 the plaintiff into inaction." Coffey v. Donahoe, No. 12-CV-138A, at *12 (W.D.N.Y. Feb. 22, 2013) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)). The district court should also consider whether the plaintiff " (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 80-81 (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, No. 01-7282, at *14 (2d Cir. Apr. 29, 2002)).

Even construing Plaintiff's papers liberally, there are no extraordinary facts that would justify equitable tolling in this case. Plaintiff asks the Court to proceed with her case despite her delay in commencing the action, arguing that she has poor math skills. (Dkt. 10). However, Plaintiff's errors in calculating the time to file her claim do not provide grounds to extend the limitations period. Smith v. Sebelius, No. 10 Civ. 6356 (JSR) (DF), at *17 (S.D.N.Y. Dec. 28, 2011) (" In any event, the mere fact that a plaintiff relies on a faulty assumption in making the time calculation cannot suffice to toll the statute." ); see also Thomas v. Providence Hous. Dev. Corp., No. 11-CV-6480 CJS, at *2-3 (W.D.N.Y. May 15, 2013) (dismissing plaintiff's claims as untimely because they were filed 93 days after receipt of right-to-sue letter); Manley v. New York City Police Dept., No. CV-05-679(FB)(LB), at *10-13 (E.D.N.Y. Oct. 18, 2005) (dismissing plaintiff's claims as untimely for filing 91 days after receipt of the right-to-sue letter, despite plaintiff's arguments that he " lost track of time" and thought the days were calculated by business days, not calendar days). Indeed, " 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) (internal quotations and citations omitted).

Here, Plaintiff alleges that she received her EEOC right-to-sue letter on June 14, 2013.[3] (Dkt. 1 at ¶ 12). Plaintiff did not commence this action until September 23, 2013. As a result, Plaintiff failed to file her complaint within the required 90 days.

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Because it appears from the face of Plaintiff's complaint that her action was not timely filed, and because no equitable considerations warrant tolling of the limitations period, Defendant's motion to dismiss (Dkt. 7) is granted, and Plaintiff's complaint is dismissed in its entirety.


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