Opinion
No. 04 Civ. 2687 (HB) (FM).
January 25, 2005
OPINION ORDER
Plaintiff, Rose Francis ("Francis"), brought the instant case against her employer, Defendants Elmsford School District (the "District") and the Elmsford Board of Education (the "Board") (collectively "Defendants"). Plaintiff alleges that Defendants engaged in unlawful discriminatory practices relating to employment on the basis of Plaintiff's age, national origin, and race in violation of Title VII of the Civil Rights Act of 964, 42 U.S.C. § 2000 et seq. ("Title VII") and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the motion for summary judgment is GRANTED.
Defendants Wayne Harders ("Harders") and Dr. Carol Franks-Randall ("Franks-Randall") have been dismissed.
I. FACTUAL BACKGROUND
The court assumes familiarity with the discussion of the background facts as set forth in Francis v. Elmsford Sch. Dist., No. 04 Civ. 2687, 2004 WL 1769980 (S.D.N.Y. Aug. 5, 2004).
At the time of her claim, Francis was a sixty-seven year old African-American woman. (Pymm Aff. Ex. 1 at 1).
After receiving an Associate of Arts Degree from Westchester Community College in 1971 and her Bachelor of Arts Degree in Sociology from Lehman College in 1976, Francis began a career as a teacher at the Alice Grady School ("AGS") in the District in 1986. (Compl. ¶ 8). Francis's career as a teacher included time spent teaching First, Second, Fourth and Fifth grades.
On July 23, 2002, pursuant to the terms of the collective bargaining agreement between the District and the Elmsford Teachers Association, Francis was notified that she had been reassigned to Academic Intervention Services ("AIS"). As part of Francis's assignment to AIS, Francis was required to teach her AIS students in a portion of the hallway, rather than a conventional classroom.
II. PROCEDURAL BACKGROUND
On February 5, 2003, Francis filed a complaint against the District with the State of New York Division of Human Rights (herein, "SDHR) alleging "unlawful discriminatory practice relating to employment in violation of Article 15 of the Executive Law of the State of New York because of Age." (Verified Compl. SDHR, Feb. 6, 2003) (Pymm Aff. Ex. 1 at 1) (herein, "SDHR Claim"). The gravamen of the SDHR Claim was that she was "being treated differently and continually harassed to force my resignation because of my age." (SDHR Claim at 1 — 2).
On March 24, 2003, the District responded on behalf of all Defendants to Francis's SDHR Claim. (03/24/2003 Ltr. from Pymm to SDHR, Pymm Aff. Ex. 2 at 4). According to the District, Francis "was assigned a new position as an AIS teacher by the District because they believed she is better suited for the position [and] [t]he new position did not affect her tenure, salary, benefits, or the terms and conditions of her employment." (Pymm Aff. Ex. 2 at 2). In sum, the District denied any wrongdoing and "respectfully requested that the [SDHR Claim] be dismissed" because it had "no basis in law or fact." (Pymm Aff. Ex. 2 at 4).
In response to Francis's SDHR Claim, SDHR conducted an investigation that included a series of inquiries and requests for additional information from the District. (07/17/2003 Ltr. from Pymm to SDHR, Pymm Aff. Ex. 3 at 1). On July 17, 2003, at SDHR's request, the District submitted a supplemental response that provided additional detail. (Pymm Aff. Ex. 3 at 2). Following the District's supplemental submission, in early September 2003, SDHR conducted telephone interviews of fellow teachers Gail Morrow, Judy Short, Alice Nelsen, and Gary Crew regarding the conduct of Francis' superiors. (Pymm Aff. Ex. 4 at 2, 3).
On December 29, 2003, SDHR concluded its investigation and sent by mail its "Determination and Order After Investigation," including notice of a "right to sue," to Francis. (Pymm Aff. Ex. 5 at 1). In pertinent part, SDHR concluded that upon review of the evidence:
The Division of Human Rights has determined that, insofar as respondent Elmsford Union Free School District is concerned, there is no probable cause to believe that the said responded has engaged in or is engaging in the unlawful discriminatory practice complained of.
(Pymm Aff. Ex. 5 at 1). SDHR determined that while Francis may have been the oldest teacher at AGS, the District's records "indicate that there are three other teachers who are over the age of sixty." (Pymm Aff. Ex. 5 at 1). In its final analysis, SDHR determined that the District advanced a non-discriminatory, business related justification for changing Francis's assignment, the reason was not a pretext to discrimination and, accordingly, dismissed the SDHR Claim. (Pymm Aff. Ex. 5 at 2, 3).
On April 8, 2004, Francis filed the instant Complaint in the United States District Court for the Southern District of New York against the Board, the District, Harders, and Franks-Randall. The plaintiff brought the action under Title VII, ADEA, and Section 296 of the New York State Executive Law alleging discrimination on the basis of age, race, and national origin. The Complaint also asserted pendent state law claims for intentional and/or negligent infliction of emotional distress. (Complaint, ¶¶ 11 — 17).
On August 4, 2004, the Court granted in part and denied in part Defendants motion to dismiss. Francis v. Elmsford Sch. Dist., No. 04 Civ. 2687, 2004 WL 1769980 (S.D.N.Y. Aug. 5, 2004). The Court dismissed plaintiff's (1) N.Y. Exec. Law § 296 claim against all defendants, (2) state law tort claims against all defendants, (3) Title VII claim against Harders and Franks-Randall, and (4) plaintiff's demand for punitive damages from the District. Francis, No. 04 Civ. 2687, 2004 WL 1769980 at *5. As a result of Defendants' motion to dismiss, "the only claims to survive are plaintiff's Title VII claim against the School Board and the District, about which defendant did not move to dismiss." Francis, No. 04 Civ. 2687, 2004 WL 1769980, at *5 (S.D.N.Y. Aug. 5, 2004).
Accordingly, Defendants now move, pursuant to Federal Rules Civil Procedure 56, for summary judgment.
III. APPLICABLE STANDARD
A. Summary Judgment Standard Fed.R.Civ.P. 56(c)
A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ( per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not the court's role to resolve issues of fact; rather, the court may only determine whether there are issues of fact to be tried. Donohue, 834 F.2d at 58 (citations omitted). However, a disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV. DISCUSSION
A. Timeliness
Title VII and the ADEA require a claimant to file a Complaint with the EEOC or "a State or local agency with authority to grant or seek relief from such practice" (here, the SDHR) within 300 days of the complained-of acts. 42 U.S.C. § 2000e-5(e) (2004) (Title VII); 29 U.S.C. § 626(d) (ADEA); see also Tamayo v. City of N.Y., No. 02 Civ. 8030, 2004 WL 137198, at *3 (S.D.N.Y. Jan, 27, 2004) (Baer, J.). The terms of the statute also require that, to be timely, a Title VII or ADEA claim must be filed within ninety [90] days of the claimant's receipt of a right-to-sue letter from the EEOC or applicable State or local agency. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e).
See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 (1984) (per curiam); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) ("[T]o be timely, a claim under . . . the ADEA must be filed within 90 days of the claimant's receipt of a right-to-sue letter"); Bedden-Hurley v. N.Y. City Bd. of Educ., No. 03 Civ. 1507, 2005 WL 53282, at *2 (S.D.N.Y. Jan. 11, 2005); Gourdine v. Cabrini Med. Ctr., 307 F. Supp. 2d 587, 593 (S.D.N.Y. 2004) ("Failure to comply with the ninety-day time limitation warrants dismissal of the Complaint.") (citation omitted); Culbertson v. Charosa Found Corp. No. 03 Civ. 3742, 2004 WL 2370686, at *2 (E.D.N.Y.) ("For a Title VII or ADEA claim to be timely, it must be filed within ninety (90) days of the claimant's receipt of a right-to-sue letter").
The ninety day period commences on the date the plaintiff receives the EEOC right-to-sue notification and, in the absence of a direct challenge, there is a presumption "that a notice provided by a government agency has been mailed on the date shown on the notice." Sherlock v. Montefiore Med. Cent., 84 F.3d 522, 526 (2d Cir. 1996). As for the actual receipt of a letter, in this Circuit, "there is a rebuttable presumption that a mailed document is received three days after its mailing." Harrison v. N.Y. City Admin. for Children's Serv., No. 02 Civ. 0947, 2003 WL 21640381, at *3 (S.D.N.Y. Jul. 7, 2003). The district court is not permitted to extend this 90-day limitations period "by even one day unless a recognized equitable consideration justifies such an extension," Jones v. City of N.Y. Dept. of Hous., Pres. and Dev., No. 01 Civ. 10619, 2002 WL 1339099, at *2 (S.D.N.Y. Jun. 18, 2002) (citation omitted), and rarely do courts diverge from the strict application of the filing deadlines. See Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) ("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"); Hamilton v. Wilson, No. 03 Civ. 5685, 2004 WL 169789, at *4 (S.D.N.Y. Jan. 28, 2004) (If "plaintiff commenced her action 92 days after receiving the notice from the EEOC . . . her claim is time barred"); Toolan v. Bd. of Educ. of City of N.Y., No. 02 Civ. 6989, 2003 WL 22015437, at *2 (S.D.N.Y. Aug. 25, 2003) (dismissing plaintiff's Complaint because "although she was only one day late, she was still late"); Dix v. Saks, Inc., No. 02 Civ. 8957, 2003 WL 194210 (S.D.N.Y. Jan. 29, 2003) (the "deadline was September 17, 2002 [and] the Complaint, which she dated and filed on September 19 . . . appears to be untimely").
Here, SDHR issued its "Determination and Order After Investigation" on December 29, 2003. (Pymm Aff. Ex. 5 at 2). Pursuant to 42 U.S.C. § 2000e-5(e) (2004) (Title VII), 29 U.S.C. § 626(e) (ADEA) and the "rebuttable presumption that a mailed document is received three days after its mailing," Harrison, No. 02 Civ. 0947, 2003 WL 21640381, at *3, the tolling of Francis claim began on December 31, 2003 or January 2, 2004 and would elapse on April 1 or 2, 2004. However, Francis filed her Complaint in the United States District Court for the Southern District of New York on April 8, 2004, 96 or 97 days after the presumed receipt of the right-to-sue letter. B. Equitable Tolling
Similar to statute of limitations, filing deadlines are subject to equitable tolling. Zerilli-Edelglass v. N.Y. City Tran. Auth., 333 F.3d 74, 80 (2d Cir. 2003). Equitable tolling is appropriate only when a party "was prevented in some extraordinary way from exercising his rights" and is limited to "rare and exceptional circumstances." Zerilli-Edelglass, 333 F.3d at 80. In addition, equitable tolling is only available when the applicant, "has acted with reasonable diligence during the time period she seeks to have tolled, and has proved that the circumstances are so extraordinary that the doctrine should apply. Zerilli-Edelglass, 333 F.3d at 80-81.
Francis's suggests two justifications for tolling the filing limitations. First, Francis alleges that she never received the right-to-sue letter and, therefore, the claim is still timely because the filing deadline clock never started. Second, Francis claims that, even if she did receive the letter and the clock did start, the applicable filing deadline to was not 90 days but, rather, three years.
Not surprisingly, this is not the first time a plaintiff who missed the filing deadline has claimed that she failed to receive a right-to-sue letter. In Everson v. N.Y. City Transit Auth., the plaintiff claimed that he failed to receive a right-to-sue letter. 216 F. Supp. 2d 71, 77 (E.D.N.Y. 2002). The Court determined, however, that the plaintiffs' claims were nonetheless untimely because the plaintiff failed to present any evidence in support of his claim that he failed to receive the letter or why he never received the right-to-sue letter. Everson, 216 F. Supp. 2d at 77 — 78 (stating "[plaintiff] offers no explanation in the Complaint — such as having moved, for example — as to why he did not receive the letter").
Similarly, here, Francis's contention that she failed to receive a right-to-sue letter lacked a shred of evidentiary support. Beyond a one sentence conclusory allegation contained in Plaintiff's opposition papers, Francis fails to present an iota of support for her claim that she failed to receive a government issued "Determination and Order After Investigation." Accordingly, Francis's claim cannot be equitably tolled because "bare allegation[s] of non-receipt, absent any explanation or affidavit in response, is insufficient to overcome" the presumption of receipt. Loftin v. N.Y.S. Dept. of Mental Health, No. 02 Civ. 4532, 2003 WL 221767, at *1 (S.D.N.Y. Jan. 31, 2003).
Second, Francis argues that, regardless of whether she received the letter, her Complaint should be adjudicated on the merits because the applicable filing limitation for ADEA claims was not 90 days but three years. Francis is mistaken. On November 21, 1991, Congress enacted the Civil Rights Act of 1991 ("the 1991 Act"). The 1991 Act amended the filing limitations for actions brought under the ADEA "to require that such actions be filed within ninety days of a complainant's receipt of a `right-to-sue' letter from the Equal Employment Opportunity Commission." Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 887 (2d Cir. 1995).
See also, Edman v. Exxon Mobil Corp., No. 01 Civ. 00196, 2004 WL 2381112, at *1 (9th Cir. Oct. 13, 2004) (noting that the "ADEA provides that a civil action may be brought within 90 days after the date of the receipt of a right-to-sue notice from the EEOC"); Guevara v. Best W. Stevens Inn, Inc., No. 03 Civ. 2056, 2003 WL 22407428, at *1 (10th Cir. Oct. 22, 2003) (holding that "[u]nless a Title VII or ADEA plaintiff files suit within ninety days of receiving a right-to-sue letter from the EEOC, she is foreclosed from bringing suit on the allegations made in her EEOC claim").
Accordingly, the Court may not equitably toll the filing limitations for purposes of Francis's Complaint and, therefore, the Complaint is statutorily time barred.
V. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED.
The Clerk is instructed to close this motion and any other open motions and remove this case from my docket.
IT IS SO ORDERED.