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Poniatowski v. Johnson

United States District Court, S.D. New York

December 31, 2014

DOROTHY PONIATOWSKI, Plaintiff,
v.
JEH JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, District Judge.

I. INTRODUCTION

Dorothy Poniatowski brought this case against her former employer, the Department of Homeland Security, under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. She claims that she was discriminated against on the basis of disability, national origin, and age, and that she was subject to retaliation for filing complaints with the Equal Employment Opportunity Commission. See Complaint, Dkt. No. 2.

Plaintiff filed this case pro se on March 4, 2013. See id . The government moved for summary judgment on December 8, 2014. Dkt. No. 51. Plaintiff filed a letter in opposition to the motion for summary judgment on December 29, 2014. Dkt. No. 58. For the reasons outlined below, the government's motion for summary judgment is granted.

II. BACKGROUND[1]

Ms. Poniatowski worked as an auditor at the Department of Homeland Security from 2001 through 2009. 56.1 Statement, ¶ 1. She filed multiple complaints with the EEOC between 2006 and 2008, alleging discrimination on the basis of disability, national origin, and age, and retaliation. 56.1 Statement, ¶ 2. On September 30, 2012, an Administrative Law Judge dismissed her claims in their entirety. 56.1 Statement, ¶ 3. The Department of Homeland Security adopted this decision as its final agency action in this matter on November 27, 2012. 56.1 Statement, ¶ 4. The agency mailed its final decision to Ms. Poniatowski by first-class mail the same day, and she received it on or about December 1, 2012. 56.1 Statement, ¶¶ 5, 7. The agency also mailed its final decision to Ms. Poniatowski's attorney at the time-Alan E. Wolin-by certified mail, and he received it on November 29, 2012. 56.1 Statement, ¶¶ 5, 8, 9. The final decision mailed to Ms. Poniatowski included instructions for filing an action in the district court and noted that such filing must be made within 90 days after she received the decision. 56.1 Statement, ¶ 6. Ms. Poniatowski filed her complaint in this court on March 4, 2013, 95 days after her former counsel received the final agency decision. 56.1 Statement, ¶ 10.

III. LEGAL STANDARD

The government is entitled to summary judgment if it can show that "there is no genuine dispute as to any material fact and that [they are] entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " while a fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

To defeat a motion for summary judgment, plaintiff "must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). "[M]ere speculation or conjecture as to the true nature of the facts" will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citations and internal quotations omitted). Nor will wholly implausible alleged facts or bald assertions that are unsupported by evidence. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986) (citing Matsushita, 475 U.S. at 585-86). The issue of fact must be genuine-plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.

In determining whether there exists a genuine dispute as to a material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The Court's job is not to "weigh the evidence or resolve issues of fact." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002). Rather, the Court must decide whether a rational juror could find in favor of the non-moving party. Id .

IV. DISCUSSION

In her opposition letter, Ms. Poniatowski does not make an argument or offer any evidence that her case was timely filed in this Court. As a consequence, the Court deems the assertions in the government's 56.1 Statement to be admitted. See Jackson v. Federal Express, 766 F.3d 189, 194 (2d Cir. 2014). The Court finds plaintiff's claim was not timely and that she is not entitled to equitable tolling.

A. Statute of Limitations

Ms. Poniatowski was required to file her lawsuit-if at all-no later than 90 days after receiving notice of the Department of Homeland Security's final agency action. See 42 U.S.C. § 2000e-16(c) (for Title VII claims); Long v. Frank, 22 F.3d 54, 58 (2d Cir. 1994) (for ADEA claims); 29 C.F.R. § 1614.407 (for Title VII, ADEA, and disability-discrimination claims properly filed under the Rehabilitation Act). Ms. Poniatowski was represented by an attorney at the time the notice was mailed, thus she received notice when her attorney received notice. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 91 (1990); Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 38 (2d Cir. 2011) ("90-day ...


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