United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Dorothy Poniatowski brings this action pro se against her former employer, the U.S. Department of Homeland Security ("DHS"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-34, and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 701 et seq.  Jeh Johnson, as Secretary of the DHS, moves to dismiss under Fed.R.Civ.P. 12(b)(6) on the ground that Poniatowski failed to timely file her complaint. For the reasons that follow, the motion is denied.
Poniatowski was an auditor for DHS in New York from 2001 to 2009. Compl. ¶¶ 8, 13(a). Poniatowski filed complaints with the Equal Opportunity Employment Commission ("EEOC") four times from January 2006 to July 2008. Compl. ¶ 14; Compl. Exs. A-D. Her complaints alleged discrimination on the basis of national origin, disability, and age and further alleged that she was retaliated against for filing complaints with the EEOC. Id .; see also Compl. Ex. E at 1-6. Her complaints were consolidated and on September 30, 2012, an EEOC administrative judge dismissed Poniatowski's claims in their entirety. Id. at 1, 22. The DHS adopted this decision in full in a November 27, 2012 order. Compl. Ex. F at 1, 9. The DHS's final order explained Poniatowski's right to appeal to the EEOC and her right to file a civil action in a federal district court, id. at 1, 10-11, and was therefore her "right-to-sue" letter. The order stated that Poniatowski had "the right to file a civil action in an appropriate United States District Court within 90 days after you receive this final decision if you do not appeal to EEOC...." Id. at 11. The order further explained that "[f]iling a request for an attorney does not extend the time in which to file a civil action" and that both any request for a court-appointed attorney and the civil action itself must be filed "within 90 days of the date you receive the agency or EEOC final decision." Id.
Poniatowski filed this action and requested to proceed in forma pauperis on March 4, 2013. Dkt. Nos. 1-2. She alleges that DHS discriminated against her on the basis of national origin, disability, and age and that she was retaliated against for her Equal Employment Opportunity ("EEO") activity. Compl. ¶ 12. Prior to an initial pretrial conference in this case, the government indicated its intention to move to dismiss the complaint on the ground that it was not filed within 90 days of Poniatowski's receipt of her right-to-sue letter. Poniatowski's original complaint alleged that she received her right-to-sue letter "on December 1, 2013." Original Compl. ¶ 15. Given that this date was more than a year after DHS's final order and after the date Poniatowski filed her complaint, the Court inquired about her allegation at the initial pretrial conference on May 1, 2014. Poniatowski told the Court that she would need to check her files in order to allege the correct date on which she received her right-to-sue letter, and the Court granted her leave to amend her complaint as to that specific paragraph only. See Dkt. No. 29.
On May 30, 2014, Poniatowski amended paragraph 15 to allege that she received the rightto-sue letter "on or about December 1, 2012." Am. Compl. ¶ 15; see also Dkt. No. 31 (order treating Poniatowski's May 30, 2014 submission as an amendment to her complaint). The government moved to dismiss on the ground that Poniatowski's complaint, filed on March 4, 2013, was three days late. Def. Br. 5-6.
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 36 (2d Cir. 2011). To avoid dismissal, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Pro se litigants are not exempt from these pleading standards, but courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Pro se complaints are read with a "special solitude" to raise the "strongest [claims] that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotations and citations omitted).
Under Title VII, the ADEA, and the Rehabilitation Act, an aggrieved party has 90 days from the date they receive a right-to-sue letter to file a civil action. 42 U.S.C. § 2000e-16(c) (Title VII); Long v. Frank, 22 F.3d 54, 58 (2d Cir. 1994) (holding that actions brought under 29 U.S.C. § 633a are subject to the same limitations period from Title VII); 29 U.S.C. § 794a(a)(1) (Rehabilitation Act, which incorporates remedies, procedures, and rights of Title VII); see also 29 C.F.R. § 1614.407 ("A complainant who has filed an individual complaint... is authorized under title VII, the ADEA and the Rehabilitation Act to file a civil action in an appropriate United States District Court... [w]ithin 90 days of receipt of the final action on an individual... complaint if no appeal has been filed...."). The 90-day limit is not jurisdictional but rather operates as a statute of limitations. See Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 565 (2d Cir. 2006); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984).
Poniatowski essentially alleges that she does not know precisely when she received her rightto-sue letter. Although her original complaint stated that she received the letter " on December 1, 2013, " Original Compl. ¶ 15 (emphasis added), this date in 2013 - months after this action was filed - was plainly incorrect. After the Court instructed Poniatowski to allege the correct date that she actually received the letter, her amended complaint used the phrase " on or about December 1, 2012, " Am. Compl. ¶ 15 (emphasis added). Poniatowski explains that she purposefully added the phrase "on or about" because she was not able to determine on exactly which date she received the rightto-sue letter. Pl. Br. at 2. Instead, she explains that she used December 1, 2012 in her amended complaint because that was the earliest date she might have received the letter and that she might have received it as late as December 4, 2012. Id.
If the Court credited the December 1, 2012 date without qualification, Poniatowski's complaint would in fact be untimely because it would have been filed 93 days after receipt. See, e.g., Sanchez v. Nat'l Cleaning Co., 11 F.Supp.2d 453, 455 (S.D.N.Y. 1998) (dismissing complaint filed 92 days after date alleged in complaint as the date plaintiff received right-to-sue letter). However, given Poniatowski's addition of the phrase "on or about" - a phrase whose purposefulness is demonstrated by the fact that it was not present in her original complaint - the Court construes Poniatowski's pro se complaint as alleging that she does not know when she received the right-to-sue letter. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("[A] pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that [s]he has a valid claim."); see also Russell v. Hollister Corp., No. 13 Civ. 5273 (PAC) (JLC), 2014 WL 2723236, at *4-*5 (S.D.N.Y. June 17, 2014) (declining to strike amended complaint that alleged a date of receipt that made a previously untimely complaint timely because dismissal under such circumstances would be "a draconian sanction that is particularly inappropriate given [the plaintiff's] status as a pro se plaintiff").
Because the date of Poniatowski's receipt of her right-to-sue letter is uncertain at this time, the Court turns to the presumptions applicable in determining the timeliness of claims triggered by the receipt of right-to-sue letters. "Normally it is assumed that a mailed document is received three days after its mailing, " and "normally it may be assumed, in the absence of a challenge, that a notice provided by a government agency has been mailed on the date shown on the notice." Sherlock v. Montefiore Med. Center, 84 F.3d 522, 525-26 (2d Cir. 1996). The right-to-sue letter here was dated November 27, 2012, and without any argument or evidence to the contrary, the Court presumes it was mailed on that date. See id.
Although the Court would typically apply a presumption that it took three days for Poniatowski to receive the letter by mail, here, the right-to-sue letter itself specifically provided for a longer presumption. Compl. Ex. F at 14. The "Certificate of Service" reads, in relevant part: "For timeliness purposes, it shall be presumed that the parties received the foregoing within five (5) calendar days after the date it was sent via first class mail." Id. It is unclear why the EEOC and DHS chose to expressly adopt this generous five-day presumption, rather than the typical three-day presumption, but they did. The prominence of this language in the right-to-sue letter and the reliance that litigants - particularly pro se litigants such as Poniatwoski - may place on this unequivocal language point toward holding the government to its word. Cf. Manley v. New York City Police Dep't, No. 05 Civ. 679 (FLB), 2005 WL 2664220, at *4 (E.D.N.Y. Oct. 19, 2005) (dismissing untimely complaint but noting it was doing so "in the absence of any allegation that the EEOC or any other party misled [plaintiff] into believing that a more generous limitations period applied"). Several other district courts have also used the five-day presumption from similar right-to-sue letters, either as an initial presumption or on equitable tolling grounds. See, e.g., Russell v. Potter, No. 10 Civ. 1130 (SJF) (GRB), 2012 WL 760562, at *2 (E.D.N.Y. Mar. 7, 2012); Ruiz v. Vilsack, 763 F.Supp.2d 168, 171 (D.D.C. 2011); Washington v. White, 231 F.Supp.2d 71, 75 (D.D.C. 2002); Grey v. Henderson, 169 F.Supp.2d 448, 452 (M.D. N.C. 2001).
Five days from November 27, 2012 was December 2, 2012, and because that date was a Sunday in 2012, it is presumed Poniatowski received the right-to-sue letter on December 3, 2012. See Griffin v. TNT Int'l Express, No. 05 Civ. 10475 (PKC), 2006 WL 3755180, at *1 (S.D.N.Y. Dec. 20, 2006) ("[P]laintiff is presumed to have received the notice on Sunday, August 14, or, because of the absence of Sunday mail delivery, Monday, August 15."). Either way, from Sunday, December 2, 2012 or Monday, December 3, 2012, the ninetieth day falls on a weekend, so pursuant to Fed.R.Civ.P. 6(a), Poniatowski ...