Opinion
No. 07-2438.
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 30, 2008.
Filed: June 17, 2008.
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 05-cv-03539), District Judge: Honorable Garrett E. Brown, Jr.
Louis Paul Toscano, Hackettstown, NJ, pro se.
Gregory C. Parliman, Day Pitney, Morristown, NJ, for ATT Corporate Headquarters.
Before: AMBRO, FUENTES and JORDAN, Circuit Judges.
OPINION
This is an appeal from the district court's dismissal of Louis Paul Toscano's amended complaint filed against ATT. Because the appeal presents "no substantial question," we will summarily affirm the judgment of the district court under Third Circuit L.A.R. 27.4 and I.O.P. 10.6.
I.
In Feburary 2005, Toscano filed a charge of discrimination against ATT with the Equal Employment Opportunity Commission ("EEOC"). The EEOC deemed the charge untimely filed and dismissed it in March 2005. In June 2005, Toscano filed a complaint against ATT in the Superior Court of New Jersey asserting several claims arising out of his termination by ATT and his subsequent placement on ATT's longterm disability plan. Specifically, Toscano alleged that ATT discriminated against him on the basis of a disability and violated his rights under the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), by declaring him totally disabled and placing him on its longterm disability benefits plan. In July 2005, ATT removed the case to the district court. In October 2006, ATT filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) or, in the alternative, for summary judgment arguing that Toscano's claims were time-barred. On March 8, 2007, 2007 WL 766348, the district court granted the motion for judgment on the pleadings and dismissed Toscano's claims. Toscano filed a timely appeal. We will now summarily affirm the district court's order and deny Toscano's motion.
In November 2007, Toscano filed a motion to appoint counsel in this case. We stayed the briefing schedule pending our ruling on the motion to appoint counsel.
II.
As the district court fully and properly explained, Toscano's complaint failed to state a claim because it is time-barred. Prior to filing an action for employment discrimination under the ADA, an employee must file a timely charge of discrimination with the EEOC. See 42 U.S.C. 12117(a); see also Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997). In a deferral state, such as New Jersey, the employee has 300 days from the date of the alleged unlawful employment practice in which to file. See 42 U.S.C. § 2000e-5(e)(1). Here, Toscano's discrimination charges against ATT stem from events occurring in 1992, but Toscano's claim with the EEOC was filed in February 2005 — well after the time had passed for timely filing. There is further no evident basis for equitable tolling following the limitations period.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise plenary review of the dismissal of a complaint under Federal Rule of Civil Procedure 12(c). See Learner v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002); see also Green v. Fund Asset Mgmt., 245 F.3d 214, 220 (3d Cir. 2001).
III.
Accordingly, we will summarily affirm the order of the district court dismissing Toscano's complaint. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. We also deny Toscano's motion for appointment of counsel.