United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE.
se plaintiff Xiomara Perez brings this action under the
Americans with Disabilities Act ("ADA"), 42 U.S.C.
§§ 12111-12117, alleging, primarily, that Mason
Tenders District Counsel Trust Funds (hereinafter "Mason
Tenders") failed to accommodate her disability. Now
before the Court is the July 12, 2017 Report and
Recommendation of the Hon. Andrew J. Peck, United States
Magistrate Judge, recommending that the Court grant Mason
Tenders' motion to dismiss, Dkt. 14, as well as
Perez's objections to the Report, Dkt. 20
("Objections"), and Mason Tenders' opposition
to Perez's Objections, Dkt. 27.
following reasons, the Court adopts Judge Peck's
recommendation and dismisses this action.
Background and Procedural History
2005, Plaintiff Xiomara Perez ("Perez") has been an
employee at Mason Tenders. Dkt. 2 at 10. On approximately May
13, 2016, according to Perez's complaint, she filed a
charge with the U.S. Equal Employment Opportunity Commission
("EEOC"). Id. at 3. On October 4, 2016,
she completed an EEOC intake questionnaire in which she
alleged that her employer had failed to accommodate her
disability, id. at 9-13, which she described as
"sleepiness, weakness, tiredness, aches and inability to
walk a normal pace, " id. at 12.
November 8, 2016, the EEOC dismissed her charge, issuing a
"Dismissal and Notice of Rights" to Plaintiff.
Id. at 5. Perez, it appears, received this notice
the same day. Id. at 4. The EEOC, according to the
notice, had been "unable to conclude that the
information obtained establishes violations of the
statutes." Id. at 5. The notice told Perez that
she had 90 days, from her receipt of the notice, to file a
lawsuit based on her charge. Id.
December 13, 2016, Perez retained a lawyer to help her
negotiate a raise with Mason Tenders. Perez Opp. at 4;
see also Perez Opp. Ex. A. According to Perez, her
lawyer told her she would have to file a complaint herself if
the negotiations failed. Objections at 7. He was to inform
her by telephone immediately of the outcome of those
January 24, 2017, Perez's lawyer wrote a letter informing
Perez that the wage negotiations with her employer had
failed. See Perez Opp. Ex. C. On February 6, 2017,
Perez received that letter. Objections at 7.
February 8, 2017, 92 days after her receipt of the EEOC
notice, Perez filed her complaint with this Court. Dkt. 2.
19, 2017, Mason Tenders filed a motion to dismiss the
complaint and memorandum of law in support. Dkts. 9-10.
28, 2017, this Court referred the case to Magistrate Judge
Peck for a report and recommendation on Mason Tenders'
motion to dismiss. Dkt. 14.
30, 2017, Perez filed a response in opposition to the motion
to dismiss. Dkt. 15.
11, 2017, Mason Tenders filed its reply. Dkt. 17.
12, 2017, Judge Peck held a hearing and, on the record,
explained that he believed Mason Tenders' motion should
be granted because Perez's complaint had been untimely.
Dkt. 22 ("Hr'g Trans."). That same day, Judge
Peck issued a report and recommendation which stated the
following: "For the reasons stated on the record at
today's conference (see transcript), the Court
should dismiss ...