Summary
applying the presumption to a pro se plaintiff who filed the complaint past the 90 day period after the court rejected her reasons for the late filing
Summary of this case from Formato v. Mount Airy #1, LLCOpinion
No. 02-CV-6467 CJS
October 14, 2003
Lottie M. Williams, Elmira, New York, for plaintiff
Stephanie M. Caffera, Esq., Nixon Peabody LLP, Rochester, New York, for defendants
DECISION AND ORDER
INTRODUCTION
This is an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Now before the Court is defendants' motion [#8] to dismiss the complaint, or in the alternative, for judgment on the pleadings. For the reasons that follow, defendant's application is granted.
BACKGROUND
The plaintiff, Lottie M. Williams, an African-American woman, worked for the defendant, St. Joseph's Hospital, as a housekeeper for approximately thirty years. On November 20, 2000, she was fired, purportedly for using the hospital's washing machine to wash her personal clothing. Plaintiff alleges that her termination was discriminatory, because white employees had also been caught using the hospital's washing machine and dryer, and were not disciplined. On January 19, 2001, plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"). On or about February 22, 2002, NYSDHR issued a finding of "no probable cause" to support plaintiff's complaint, noting, in part: "Investigation revealed that complainant was terminated for theft of services, which is grounds for immediate discharge under respondent's policy. Respondent has terminated other non-minority employees for this reason."
On May 20, 2002, the U.S. Equal Employment Opportunity Commission ("EEOC") issued plaintiff a "right to sue letter." The right to sue letter stated, in relevant part: "You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; otherwise, your right to sue based on this charge will be lost." (emphasis in original). Approximately two months later, on July 24, 2002, plaintiff attempted to file a document or documents in this Court. As will be discussed further below, at this time, it is unknown exactly what plaintiff attempted to file. That same day, July 24th, the Clerk of the Court returned plaintiff's submission to her by mail, along with a form letter advising her that her submission had not been in a form acceptable for filing. Subsequently, at plaintiff's request, the Clerk of the Court sent plaintiff a blank form complaint. On September 5, 2002, the Clerk of the Court received plaintiff's completed complaint, notarized on August 31, 2002. However, plaintiff did not include a filing fee or an application to proceed in forma pauperis. On September 5, 2002, the Clerk of the Court sent plaintiff a blank application to proceed in forma pauperis. On September 11, 2002, the Clerk of the Court received plaintiff's completed application, and filed the subject action. Thus, plaintiff's action was commenced 114 days after the issuance of the right to sue letter.
The form letter stated: "The enclosed documents which were received in the Office of the Clerk of the Court on July 24, 2002, are herewith returned to you, because they are not in a form this office can accept for filing."
On September 30, 2002, the Court issued a Memorandum and Order [#3] which stated, in relevant part:
Plaintiff has attached the right to sue letter in her complaint. The letter is dated May 20, 2002, and instructs plaintiff that she may file a lawsuit in federal court within 90 days of her receipt of the letter. She did not file this action until September 11, 2002, 114 days after the letter was mailed. Thus, the action is untimely. Therefore, unless plaintiff provides a sufficient justification extending the time in which to file, the action must be dismissed. See 42 U.S.C. § 200e-5(f)(1).
Within the Second Circuit, when the date of receipt is challenged, there is a presumption that the letter is received three days after it is mailed. . . . Accordingly, plaintiff is directed to respond and provide the Court with either information demonstrating that she filed within 90 days of the date she actually received the right to sue letter or some other justification that provides a basis for federal jurisdiction over these claims. Plaintiff is forewarned that a failure to respond to this order will lead to her complaint being dismissed with prejudice. . . .
Memorandum and Order [#3]. In response to this order, plaintiff submitted a letter, which states:
The reason I was past the due date of 90 days sending this pro-se action was because the "EEOC" complaint as sent back to me on July 24th stating that it was not on the proper form [sic], (see attached)
Not knowing the law I did not know how to proceed, so I called the office, they had to send me the proper form. I did not receive that form until the next month.
Due to the fact that I sent the original complaint in a timely manner in July, and taking into account that it was sent back to me, because it wasn't on the proper form. And when I did receive the proper forms, I also sent them back in a timely manner; provides a sufficient justification extending the time in which to file.
(emphasis added). In response to plaintiff's submission, the Court issued a Decision and Order [#5], finding that "plaintiff is raising an argument for equitable tolling," and stating that,
[s]uch equitable tolling is applied sparingly, however, and the Courts are less forgiving if a litigant has not exercised due diligence in pursuing a legal claim. [ citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)] The timeliness issue cannot be definitively determined on the papers before the Court. Nevertheless, plaintiff has supplied enough argument regarding equitable tolling to survive this initial review.
Decision and Order [#5] (Larimer, Chief Judge).
On May 8, 2003, defendants filed the subject motion to dismiss, or in the alternative, for judgment on the pleadings. Defendants first contend that this action should be dismissed because plaintiff has not complied with the Court's various Orders. Alternatively, defendants contend that they are entitled to judgment on the pleadings, because the action was not filed within 90 days of plaintiff's receipt of the right to sue letter, as required by 42 U.S.C. § 2000e-5(f)(1). Finally, defendants maintain that the individual defendants may not be held liable under Title VII. The Court then issued a motion scheduling order, stating, in relevant part:
As part of this argument, defendants contend that this action should be dismissed because plaintiff did not file her response by October 28, 2002, as she was ordered to do, but instead, filed it on November 5, 2002. This argument can be dealt with summarily. Plaintiff's response was, in fact, docketed by the Clerk of the Court on November 5, 2002. However, plaintiff mailed her response, by certified mail, return receipt requested, on October 23, 2002, and the letter was stamped received by the Court on October 24, 2002. It is unclear why the document was not docketed until November 5th. Nonetheless, plaintiff's submission was timely.
ORDERED, that if plaintiff Lottie M. Williams submits a response to the motion, she shall include a copy of the document which she attempted to file with the Clerk of the Court on July 24, 2002, and which was returned to her by the Clerk of the Court; and it is further
ORDERED, that the plaintiff Lottie M. Williams shall indicate in her response the date upon which she allegedly requested forms from the Office of the Clerk, and the date upon which she received the forms;
Motion Scheduling Order [#12]. In response to the Court's order, plaintiff submitted a packet [#15] of photocopied documents, some of which had not been created at the time plaintiff initially attempted to file documents with the Clerk of the Court. The packet did include a copy of plaintiff's complaint filed with the NYSDHR. However, plaintiff did not indicate what documents, if any contained in the packet, she had originally attempted to file, nor did she indicate the date upon which she received the blank form complaint from the Clerk of the Court. Upon receiving plaintiff's submission, the Court issued another Order, extending plaintiff's time to respond to the motion, and stating, in relevant part:
In this regard, defendants' description of plaintiff's filing is accurate: "[P]laintiff provided copies of nearly 50 pages of documents, including copies of numerous documents dated after July 24, 2002, as well as copies of several of the Court's Orders in this case. Clearly, plaintiff did not attempt to file all of these documents on July 24, 2002." Defs. Memo [#18], p. 1.
In light of Ms. Williams' pro se status, the Court will provide her with one additional opportunity to fully comply with the Court's Order. Accordingly, it is hereby
ORDERED, that on or before August 1, 2003, the plaintiff, Lottie M. Williams, shall file and serve a response to the motion to dismiss, and indicate 1) the date upon which she requested forms from the Office of the Clerk, and 2) the date upon which she received the forms. Failure to provide this information to the Court and to opposing counsel on or before August 1, 2003 may result in dismissal of this action;
Amended Motion Scheduling Order [#16]. In addition, a member of the Court's staff spoke with plaintiff by telephone, and reiterated that she needed to comply with the Court's Order in order to avoid having her case dismissed. The staff member followed up this conversation with a letter to plaintiff, which stated, in relevant part:
I am writing as a follow-up to our telephone conversation early last week. At that time, I told you that your deadline to file a response to defendants' motion to dismiss was now August 1, 2003. You told me that you could and would file the information regarding the date you requested forms from the court, and the date you received those forms, by August 1st.
(emphasis in original). Again, however, plaintiff did not comply with the Court's request. Instead, plaintiff submitted a copy of her form complaint in this action, several of the documents she had previously submitted, and a copy of her application to proceed in forma pauperis in this action. See, Document [#17].
On August 12, 2003, plaintiff and defendant's counsel appeared before the undersigned for oral argument of the motion. At that time, the Court gave plaintiff yet another opportunity to submit proof in support of her claim. Specifically, the Court directed plaintiff to submit an affidavit, on or before August 19, 2003, setting forth the specifics of what had occurred after July 24, 2002, with regard to her attempts to file this action. On August 19, 2003, the Court received an unsworn letter from plaintiff which states:
On July 19, 2002 I sent my complaint to the court. They were returned July 24, stating that they could not be accepted as sent. That [sic] the last full week of the month. The next week had only three business days. So I waited two weeks. My children said I should try again. I find out what they [meant]. So August 12 Monday I called again to see what type of papers did I need, in order to file. I was told that they need my name and address and they would be sent. It took awhile to get them. When I received them, my children and another friend help[ed] me fill the papers out and I sent them in in September, 6, 2002.
The Court does not see the relevance of plaintiffs statement that the week of July 24, 2002, was the last "full week" of the month. Further, the following week, starting July 29, 2002, had five, not three, business days.
Pl. letter dated August 16, 2003 (emphasis added). With this submission, plaintiff has clarified that she waited two weeks after her initial submission was returned to her before requesting forms from the Court. However, she still does not indicate, even approximately, when she received the forms from the Clerk of the Court. The Court has thoroughly considered the parties' submissions and arguments.
ANALYSIS
It is well settled that a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), is analyzed using the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6), and that, "[u]nder that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (citations and internal quotations omitted), cert. denied, 513 U.S. 816 (1994). Moreover, "[t]his standard is applied with particular strictness when the plaintiff complains of a civil rights violation. Id. (citation omitted). In addition, a Court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
To pursue a court action under Title VII, a plaintiff must file the lawsuit within 90 days after receiving a right to sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). In the instant case, the EEOC issued a right to sue letter to plaintiff on May 20, 2002. The Court must assume that plaintiff received the right to sue letter on May 23, 2002. FED.R.CIV.P. 6(e). Accordingly, the deadline for plaintiff to file her action was August 21, 2002. Since plaintiff did not file her action until September 11, 2002, the action was untimely by 21 days.
However, this fact is not necessarily fatal to plaintiff's action. Title VII's 90-day limitation period is subject to equitable tolling. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (citation omitted). Equitable tolling may apply where a plaintiff has "received inadequate notice" of the filing deadline, where "a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon," "where the court has led the plaintiff to believe that she has done everything required of her," or where "affirmative misconduct on the part of a defendant lulled the plaintiff into inaction." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (citations omitted). Moreover, equitable tolling may apply where a mental disability prevented the plaintiff from pursuing her legal remedies. Brown v. Parkchester S. Condominiums, 287 F.3d 58, 60 (2d Cir. 2002). Equitable tolling may also apply where a plaintiff "has actively pursued his judicial remedies by filing a defective pleading the statutory period." Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1991). However, courts are "much less forgiving in receiving later filings where the claimant failed to exercise due diligence in preserving his legal rights." Id. (citation omitted). With regard to a plaintiff who has attempted to file a "defective pleading," the Supreme Court has held that merely filing a right to sue letter with the federal court within the 90-day period does not commence and action or otherwise "call for the application of the doctrine of equitable tolling." Baldwin County Welcome Ctr. v. Brown, 466 U.S. at 149-51. Rather, the filing must qualify as a pleading under the Federal Rules of Civil Procedure. Id.
When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80-81 (2d Cir. 2003) (Citation and internal quotation marks omitted).
Of the circumstances listed above which could trigger equitable tolling, the only one which arguably could apply to plaintiff is that she attempted to file a defective pleading within the 90 days. However, the Court finds that the facts of the instant case do not warrant the application of equitable tolling. Here, all that can be said is that plaintiff attempted to file something with the Clerk of the Court on July 24, 2002. Despite repeated and explicit requests by the Court, plaintiff has not identified the exact document that she attempted to file. Therefore, plaintiff has not shown that whatever she submitted qualifies as a pleading under the Federal Rules of Civil Procedure. See, Baldwin County Welcome Ctr. v. Brown, 466 U.S. at 149-50; see also, FED. R. CIV. P. 3, FED. R. CIV. P. 8(a). Moreover, even if the Court could find that plaintiff filed a "defective pleading" in July 2002, equitable tolling still would not apply, because subsequently, plaintiff did not diligently pursue her rights. Specifically, when the Clerk of the Court returned plaintiff's submission to her on July 24, 2002, plaintiff still had approximately one month to commence her action. However, she did not make a diligent effort to file her action, but instead, she waited two weeks before contacting the Court to obtain additional information. Once she made that request, there is nothing to indicate that the Clerk of the Court in any way delayed sending the forms to plaintiff. Again, the Court has given plaintiff every opportunity to state when she received the forms, however, she has not done so. Accordingly, it appears that plaintiff took an additional period of time before completing the form complaint and returning it to the Court. And, even then, plaintiff did not include a filing fee. The Court is sympathetic to plaintiff, who lost her job after thirty years of service. Nonetheless, based upon all of the foregoing, the Court finds that equitable tolling does not apply in the instant case.
Although it is not required to reach the issue, the Court notes that the individual defendants would not be liable under Title VII in any event. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
CONCLUSION
Defendants' motion [#8] for judgment on the pleadings is granted, and this action is dismissed.SO ORDERED.