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Perez v. Mason Tenders District Council Trust Funds

United States District Court, S.D. New York

November 1, 2017

XIOMARA PEREZ, Plaintiff,
v.
MASON TENDERS DISTRICT COUNCIL TRUST FUNDS, Defendant,

          OPINION & ORDER

          PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE.

         Pro 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.

         For the following reasons, the Court adopts Judge Peck's recommendation and dismisses this action.

         I. Background[1] and Procedural History

         Since 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.

         On 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.

         On 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 negotiations. Id.

         On 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, [2] Perez received that letter. Objections at 7.

         On February 8, 2017, 92 days after her receipt of the EEOC notice, Perez filed her complaint with this Court. Dkt. 2.

         On June 19, 2017, Mason Tenders filed a motion to dismiss the complaint and memorandum of law in support. Dkts. 9-10.

         On June 28, 2017, this Court referred the case to Magistrate Judge Peck for a report and recommendation on Mason Tenders' motion to dismiss. Dkt. 14.

         On June 30, 2017, Perez filed a response in opposition to the motion to dismiss. Dkt. 15.

         On July 11, 2017, Mason Tenders filed its reply. Dkt. 17.

         On July 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 ...


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