Opinion
04 Civ. 9501 (LAK)(FM).
October 31, 2005
REPORT AND RECOMMENDATION TO THE HONORABLE LEWIS A. KAPLAN
I. Introduction
This is a pro se employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., by Sean Felder ("Felder"), who alleges that Burns Security, which was later acquired by defendant Securitas Security Services ("Securitas"), denied him a position as a security guard on the basis of his race. The defendant has moved for an order dismissing the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on timeliness grounds. For the reasons set forth below, this motion should be denied because Felder commenced his action within the required ninety-day period.
Although the complaint identifies the defendant as "Securticus Security Services," it appears that its correct name is "Securitas Security Services."
II. Facts
On March 4, 2003, Felder filed a discrimination complaint with the New York State Division of Human Rights ("NYSDHR"), alleging that Burns Security denied him a position as a security guard at Yankee Stadium because of his race. (See Affirm. of Claudia M. Cohen, Esq., dated August 26, 2005 ("Cohen Affirm."), Ex. C). Subsequently, that complaint was dual filed with the Federal Equal Employment Opportunity Commission ("EEOC"). (See id. at 1). On February 5, 2004, the EEOC notified Felder that it had adopted the NYSDHR's December 11, 2003, determination that there was no probable cause to believe that Securitas had engaged in unlawful discrimination, and that he had the right to file a federal suit. (See id. Exs. E, G). The Right to Sue Letter specifically advised Felder that any suit had to be filed within ninety days of his receipt of the letter or his right to sue would be lost. (Id. Ex. G).
Felder's original complaint is dated April 30, 2004. (See Docket No. 2). A file stamp on the complaint confirms that it was received by the Pro Se office of this Court on May 6, 2004. In that original complaint, Felder stated that he received the EEOC Right to Sue Letter on the date it was issued, February 5, 2004. (Id. at 5).
A copy of the original complaint is annexed hereto as Exhibit A.
Securitas alleges that Felder filed his pro se complaint on December 3, 2004. (See Def.'s Mem. at 3). What actually happened on that date is that Chief Judge Mukasey granted Felder's request to proceed in forma pauperis, directed the Clerk of the Court to assign his action a docket number, and ordered Felder to file an amended complaint within sixty days to specify his race. (See Docket No. 3).
Felder filed his amended complaint on January 5, 2005. (Docket No. 4). In his amended complaint, Felder stated that he received the EEOC Right to Sue Letter in June 2003. (See Cohen Affirm., Ex. A). The copy of the letter annexed to the amended complaint confirms, however, that it was not issued by the EEOC until February 5, 2004. (Docket No. 4 (attach.)).
Securitas filed its present motion to dismiss on August 26, 2005. (Docket Nos. 10-11). On September 21, 2005, by memorandum endorsement, I extended Felder's plaintiff's time to respond to the motion until September 30, 2005. (Docket No. 16). Despite that extension, Felder has not submitted any papers addressing the substance of the motion.
III. Discussion
A. Standard of Review
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164 (1993); Harris v. City of N.Y., 186 F.3d 243, 247 (2d Cir. 1999); Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995). The court may grant the motion only when "it appears beyond doubt . . . that the plaintiff can prove no set of facts [in support of his claim] which would entitle him to relief." Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. N.Y.S. Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
Although the same rules apply when considering a motion to dismiss a plaintiff's pro se complaint, such complaints "are held to less stringent standards than formal pleadings drafted by lawyers, and are to be construed liberally." Oyekoya v. U.S., 108 F. Supp. 2d 315, 317 (S.D.N.Y. 2000) (quoting Santiago v. Meinsen, 89 F. Supp. 2d 435, 438 (S.D.N.Y. 2000)); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (same); Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) ("Since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel") (quoting Lerman v. Bd. of Elections, 232 F.3d 135, 139-40 (2d Cir. 2000)).
B. Statute of Limitations
A plaintiff has 90 days from receipt of a right to sue letter from the EEOC in which to commence a Title VII action in federal court. See 42 U.S.C. § 2000e-5(f)(1); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 145-46 (2d Cir. 1984);Hicks v. N.Y.C. Dep't of Sanitation, No. 96 Civ. 1238(SHS), 1998 WL 419433, at *1 (S.D.N.Y. July 22, 1998). Generally, courts presume that a notice provided by a government agency has been mailed on the date on the notice, and that such notice is received within three days after mailing. Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996). The Second Circuit has noted that such presumptions are "convenient and reasonable in the absence of evidence to the contrary." Id. at 526.
"While the 90-day rule is not a jurisdictional predicate, 'in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.'"Johnson, 731 F.2d at 146 (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982)). Thus, absent an equitable excuse, a plaintiff's failure to commence an action within the statutory 90-day period is grounds for dismissal of the suit, even when the plaintiff is proceeding pro se. Sanchez v. Nat'l Cleaning Co., 11 F. Supp. 2d 453, 455 (S.D.N.Y. 1998) (dismissing the action where pro se plaintiff filed the complaint 92 days after receipt of the EEOC's right to sue letter).
Here, the EEOC Right to Sue Letter was issued and mailed on February 5, 2004 and is presumed to have been received on February 9, 2004 since February 8, 2004 was a Sunday. See Fed.R.Civ.P. 6(a). In his original complaint, Felder stated that he received the Right to Sue Letter on February 5, 2004, the day it was issued by the EEOC. If so, Felder only would have had until May 5, 2004 to file a complaint and this action would therefore be untimely. Felder's admission in his original complaint is not binding, however, because "it is well established that an amended complaint ordinarily supercedes the original, and renders it of no legal effect." Harris, 186 F.3d at 249 (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)).
Admissions made in a superceded pleading nevertheless may be considered by a trier of fact in assessing the plaintiff's credibility as a witness. Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 32 (2d Cir. 2002).
In his amended complaint, Felder stated that he received the Right to Sue Letter in June 2003, which clearly is impossible since the EEOC did not issue its determination until the following year. Consequently, because Felder's representation in his original complaint has been superseded and his representation in the amended complaint unquestionably is wrong, there is no evidence before this Court which establishes the date that Felder received the Right to Sue Letter. Accordingly, the Court must apply the presumption that Felder received the Right to Sue Letter within three days of its issuance, i.e., by February 9, 2004. Based on that assumption, Felder had until May 9, 2004, to commence an action in this Court. Felder met this deadline by submitting his original complaint to the Pro Se office on May 6, 2004. See Yekimoff v. N.Y.S. Div. of Parole, No. 02 Civ. 8710(BSJ), 2004 WL 1542256, at *1 n. 1 (S.D.N.Y. July 8, 2004) (quoting Tilton v. NYNEX World Trade/Lamarian Sys., Inc., No. 98 Civ. 5770(AKH), 1999 WL 476441, at *1 (S.D.N.Y. July 8, 1999) ("In the Second Circuit, it is well settled that a pro se plaintiff's complaint is deemed filed with the court on the day that the Pro Se Office receives a copy of the complaint."). Moreover, Felder's amended complaint relates back to the filing of his original complaint because it did not substantially alter the original pleading. See Fed.R.Civ.P. 15(c)(2).
IV. Conclusion
For the foregoing reasons, the motion of the defendant Securitas Security Services to dismiss the complaint in this action as untimely should be denied.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Lewis A. Kaplan, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Kaplan. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).