Opinion
Civil Action No. 06-cv-01900-WDM-CBS.
April 12, 2007
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the recommendation of Magistrate Judge Craig B. Shaffer, issued March 13, 2007, that Defendant's amended motion to dismiss be granted. Plaintiff Tara Carlson (Carlson) failed to file a timely objection to this recommendation and therefore is not entitled to de novo review. 28 U.S.C. § 636(b). For the reasons given below, Judge Shaffer's recommendation will be rejected.
Magistrate Judge Shaffer recommends that this case be dismissed because Carlson failed to bring this action within ninety days of receiving her right-to-sue letter from the EEOC, as required by 42 U.S.C. § 2000e-5(f)(1). According to Judge Shaffer's calculations, Carlson missed her deadline by one day, because even after tolling the deadline while her application to proceed in forma pauperis was pending, this action was not commenced until ninety-one days after she received her right-to-sue letter. I disagree. It appears that Judge Shaffer based his calculations on June 19, 2006 as the date Carlson received her right-to-sue letter, and September 18, 2006 as the date this action was commenced. Even accepting these as the controlling dates, however, this action would be timely because ninety days from June 19, 2006 falls on a Sunday (September 17, 2006), giving Carlson until the following Monday to file. Kane v. Douglas Elliman Hollyday Ives, 635 F.2d 141, 142 (2d Cir. 1980); Pearson v. Furnco Constr. Co., 563 F.2d 815, 818-19 (7th Cir. 1977).
There is some question as to whether the receipt date Carlson alleged in her Amended Complaint (June 25, 2006) or the date she alleged in her amended response brief (June 19, 2006) should be controlling for purposes of this motion to dismiss. However, since this action would be timely under either date, I need not resolve this issue.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Shaffer, issued March 13, 2007 (Docket No. 36), is rejected. 2. Defendant's motion to dismiss, filed December 18, 2006 (Docket No. 22), is denied.