United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA United States District Judge
heart of this Opinion is a simple question: When did
Plaintiff Aurelio Torres file his Complaint? This Court's
records supply one answer - November 1, 2016. But Plaintiff
insists that he filed the Complaint one day sooner, on
October 31, 2016.
Complaint's filing date is a dispositive issue in this
case. In his Complaint's First and Second Claims for
Relief, Plaintiff alleges that Defendants Ciele Partners L.P.
and The Fireman Group Café Concepts, Inc. (together,
“Defendants”) violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17
(“Title VII”). And in his Ninth Claim for Relief,
Plaintiff alleges that Defendants violated the Age
Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621-634 (the “ADEA”). Plaintiff
first sought redress for these alleged wrongs by filing a
charge of discrimination and retaliation with the Equal
Employment Opportunity Commission (the “EEOC”).
On July 28, 2016, the EEOC mailed to Plaintiff a letter
stating that it would not be pursuing his case and notifying
Plaintiff of his right to sue Defendants (the “Right to
Sue Letter”). Plaintiff received the Right to Sue
Letter on August 1, 2016. The parties agree that Plaintiff
needed to file his Complaint within 90 days of receiving the
Right to Sue Letter - i.e., on or before October 31, 2016 -
in order for his Title VII and ADEA claims to be
moved to dismiss Plaintiff's First, Second, and Ninth
Claims for Relief, arguing that all three claims are
time-barred because Plaintiff filed his Complaint on November
1. Because Defendants and Plaintiff submitted documentary
evidence in support of their motion to dismiss and
opposition, respectively, the Court converted Defendants'
motion to dismiss into a Rule 56 motion for summary judgment.
And because the undisputed facts of this case establish that
Plaintiff filed his Complaint on November 1, not October 31,
the Court grants Defendants' motion and dismisses
Plaintiff's First, Second, and Ninth Claims for Relief.
operate Trattoria Dell'Arte, a restaurant in New York
City. (Compl. ¶¶ 9-10). Plaintiff began working at
the restaurant in 1988, and continued working there as a cook
and sous-chef until September 11, 2014, when he was
terminated. (Id. at ¶¶ 12-15, 29-31). In
July 2015, Plaintiff filed with the EEOC a charge claiming
that he suffered discrimination and retaliation during his
time at Trattoria Dell'Arte. (Id. at ¶ 5).
28, 2016, the EEOC mailed the Right to Sue Letter to
Plaintiff. (Right to Sue Letter 1). Enclosed with the letter
was a “Dismissal and Notice of Rights” form,
which, in a section titled “Notice of Suit Rights,
” stated that if Plaintiff wished to sue Defendants
under Title VII or the ADEA, his “lawsuit must be filed
WITHIN 90 DAYS of [his] receipt of th[e]
notice.” (Id. at 2; see also Id. at 3
(same)). Plaintiff received the Right to Sue Letter on August
1, 2016. (Pl. Letter Pre-Motion Letter Response 3; Pl. Opp.
parties agree that Plaintiff needed to file his Complaint on
or before October 31, 2016, in order for his Title VII and
ADEA claims to be timely. (1/12/17 Tr. 2; Pl. Opp. 7).
Plaintiff contends that he met this deadline. (See,
e.g., Pl. Pre-Motion Letter Response 3 (“Plaintiff
filed a lawsuit with this Court by and through its ECF system
on October 31, 2016.”); Pl. Opp. 7 (“[T]his
action was filed on October 31, 2016.”); id.
at 9 (“[T]he Complaint was timely filed (i.e.,
‘delivered') to the Clerk on October 31,
Plaintiff also concedes that his Complaint “was not
uploaded into the CM/ECF system on October 31,
2016.” (Pl. Pre-Motion Letter Response 3 (emphasis
added); accord Pl. Opp. 7). And the parties have
introduced several documents that corroborate Plaintiff's
October 31, 2016, at 4:53 p.m., Plaintiff received an
automated email from “Pay.gov” confirming that he
had paid the $400.00 filing fee necessary to initiate a civil
action in this District. (10/31/16 Payment E-Mail; see
also 1/12/17 Tr. 4 (Plaintiff recalling that he
attempted to upload Complaint “at
4:50-something”)). But at 10:33 a.m. the following day
- November 1, 2016 - Plaintiff received via e-mail an
automated Notice of Electronic Filing (the “November 1
Notice of Electronic Filing”) “generated
by” this Court's “CM/ECF system.”
(11/1/16 Notice of Electronic Filing). It stated, in relevant
NOTICE TO ATTORNEY TO FILE INITIAL PLEADING. Notice to
Attorney Victor Hugo Saldarriaga to electronically file the
initial pleading in this case. Failure to file the initial
pleading may result in the dismissal of the case pursuant to
Standing Order 15-mc-00131. Initial Pleading due by
(Id.). The first entry on this case's docket
contains an identical message; this entry is also dated
November 1, 2016. (Docket 2). A slightly different message,
however, appears at the top of this case's docket:
“Date Filed: 10/31/2016.” (Id. at 1;
see also 1/12/17 Tr. 5-6 (discussing “Date
Filed” message at top of docket)).
consulting with the Court's ECF Help Desk, Plaintiff was
able to upload his Complaint to the Court's CM/ECF system
on November 1, 2016. (Docket 2; Pl. Opp. 5).