Opinion
23-CV-3891 (VEC) (BCM)
03-19-2024
MARISE L. JEAN-LOUIS, Plaintiff, v. FOUNTAIN HOUSE, Defendant.
TO THE HON. VALERIE E. CAPRONI, JUDGE.
REPORT AND RECOMMENDATION
BARBARA MOSES, United States Magistrate Judge.
After plaintiff Marise L. Jean-Louis was fired by defendant Fountain House, she filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging religious discrimination. See Compl. (Dkt. 1) at ECF p. 12. On January 25, 2023, plaintiff received a right-to-sue letter from the EEOC, stating: "If you choose to file a lawsuit against [Fountain House] on this charge under federal law in federal or state court, your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice." Id. at ECF p. 8 (emphasis in the original). 104 days later, on May 9, 2023, plaintiff filed this action, pro se, alleging that she was fired for refusing to be vaccinated against Covid-19 and that defendant's conduct violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because her "sincerely held religious beliefs state that [her] body is pure and made in God's image and shall be subject to no unwanted intrusions." Id. at ECF p. 3.
Now before me for report and recommendation (see Dkt. 18) are (i) defendant's motion to dismiss the complaint (Dkt. 14) and (ii) plaintiff's cross-motion for leave to file an amended complaint. (Dkt. 24.) Because plaintiff's Title VII claim is time-barred - and her proposed amended complaint fails to cure that defect or plead any other viable federal claim - defendant's motion should be granted, plaintiff's cross-motion should be denied, and this action should be dismissed.
I. BACKGROUND
A. Factual Background
Fountain House "is a national mental health nonprofit" that operates "direct service programs in Manhattan and the Bronx." See fountainhouse.org/about (last visited November 15, 2023). Id. According to the parties' EEOC filings (which plaintiff attached to her complaint), she was employed at Fountain House as a Residence Staff Worker. Compl. at ECF p. 27 (Fountain House termination letter). In October 2021, Fountain House "began requiring," for the first time, that all employees "receive vaccinations for Covid-19." Id. at ECF p. 17. Plaintiff requested an exemption from the new vaccination policy on religious grounds. Id. at ECF pp. 17-18 (Fountain House response to EEOC charge).
Until then, Fountain House "asked" employees to be vaccinated, but if they declined, they could continue working, provided that they notified their supervisors and the Human Resources department about their decision, wore masks at all times while working, and presented negative PCR tests every 72 hours. Compl. at ECF p. 17 (Fountain House response to EEOC charge); see also id. at ECF pp. 23-24 (prior policy).
On December 20, 2021, Fountain House notified plaintiff of its decision to deny her exemption request. Compl. at ECF p. 27 (denial letter). It explained that granting her request would "create undue hardship" to its operations, since plaintiff's position "require[d] daily in-person interaction with vulnerable members . . . who require 24/7 assistance and care[.]" Id. Fountain House placed plaintiff on unpaid leave until January 3, 2022, at which point she would be terminated, unless by then she had "received at least one dose of the vaccine and agree[d] to continue to become fully vaccinated[.]" Id.
That same day, Fountain House learned that plaintiff had not been wearing a mask or taking PCR tests since October 14, 2021. Compl. at ECF p. 18 (Fountain House response to EEOC charge). At 11:32 a.m., Fountain House Human Resources Director Linda Noskewicz sent plaintiff an email stating:
It's my understanding that you have been working your shifts without submitting proof of a PCR test with a negative result every 72 hours since October 14th. That is absolutely unacceptable. You are endangering the lives of our residents and staff. These tests are required until your request for accommodation is decided. Do not show up for your shifts until you have obtained a negative PCR test. If you fail to do so, you will be sent home. This is not open for discussion.Id. at ECF p. 30 (emphasis in original). Fountain House explained to the EEOC that this email was sent before it notified plaintiff of its decision on her exemption request. Id. at ECF p. 18.
In a responding email sent at 2:51 a.m. the next day, plaintiff refused to be tested or wear a mask, writing: "As you know, Covid Tests (and masks), are authorized by the FDA as medical experiments. Just like I choose to not defile my body by injecting foreign substances into it, I also will not insert unwanted intrusions into a body cavity (nose/mouth, etc)." Compl. at ECF p. 31.
On December 21, 2021, Fountain House terminated plaintiff's employment. Compl. at ECF p. 12 (EEOC charge). According to Fountain House, it did so because, among other things, plaintiff "appeared at her normal shift at the residence" on December 20, "despite being told not to do so," and "refused to leave and sat in the building." Id. at ECF p. 19 (Fountain House response to EEOC charge). Plaintiff then "sent a series of threatening text messages to her supervisor" overnight, followed by a group email at 1:55 a.m. to senior management, refusing to resign or go on unpaid leave. Id. The next day, plaintiff again "showed up at the residence" and "insisted she be allowed to work her shift," prompting a call to the police. Id. Although plaintiff "had left the area" by the time the police arrived, Fountain House "made the decision to terminate her" because of "[h]er response to the decision regarding her attainment of a Covid 19 vaccine," her failure to wear a mask or submit PCR test results for the past two months, and "her unprofessional behavior towards her fellow employee[s], her supervisor, and those people she had contacted multiple times throughout the night." Id. at ECF p. 20.
B. EEOC Proceedings
On October 4, 2022, plaintiff submitted her Charge of Discrimination to the EEOC. See Compl. at ECF p. 12. On January 25, 2023, the EEOC informed her by email that it had "concluded its inquiry/investigation" into her allegations and was "unable to conclude that the evidence establishes a violation of Title VII." Id. at ECF pp. 10-11 (EEOC letter). The letter explained that, "[f]ollowing this dismissal, you may only pursue this matter by filing suit against [Fountain House] within ninety (90) days of receipt of this notice. Otherwise, your right to sue will be lost." Id. In its accompanying Determination and Notice of Rights, id. at ECF p. 8, the EEOC again advised, in bold text, that any lawsuit brought under federal law (whether in federal or state court) "must be filed WITHIN 90 DAYS of your receipt of this notice," adding, for emphasis, "[y]our right to sue based on this charge will be lost if you do not file a lawsuit in court within 90 days." Id.
The letter bears the date "1/25/2022," but this was clearly a typographical error. The EEOC's accompanying Determination and Notice of Rights, see Compl. at ECF p. 8, bears the date "1/25/2023."
State courts, like federal courts, have jurisdiction to adjudicate actions brought under Title VII. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 821 (1990); see also Meadows v. Robert Flemings, Inc., 290 A.D.2d 386, 387, 737 N.Y.S.2d 272 (1st Dep't 2002) (applying 90-day limitations period to Title VII claim brought in state court).
C. Procedural History
Plaintiff filed this action on May 9, 2023, 104 days after January 25, 2023. Her complaint asserts a single cause of action, under Title VII, alleging that defendant discriminated against her on the basis of religion when it "denied reasonable accommodation" for her sincerely held religious beliefs. Compl. at ECF pp. 3-5. On May 10, 2023, the Honorable Valerie E. Caproni, United States District Judge, granted plaintiff leave to proceed without prepayment of fees. (Dkt. 3.)
On August 8, 2023, plaintiff filed a one-sentence motion asking the Court to "take judicial notice that no entity of any kind may pass any law, policy or order that defies federal law." (Dkt. 12.) On August 18, 2023, Fountain House moved to dismiss plaintiff's complaint on the ground that her Title VII claim is barred by the 90-day statute of limitations set forth in 42 U.S.C. § 2000e-5(f)(1). Def. Mem. (Dkt. 16) at 2. Defendant argues that "Plaintiff clearly received the Notice of Rights and accompanying Letter (both of which clearly identified the 90 day time period to file a Complaint in Court) on January 25, 2023," that the 90-day period "is 'strictly enforced' even against pro se litigants," and that Jean-Louis's complaint must therefore be dismissed, because she "cannot establish that she adhered to the 90 day statute of limitations." Id. at 3-5.
That same day, Fountain House submitted a letter observing that plaintiff's judicial notice motion "does not appear to be seeking any specific relief from Defendant," but offering to respond should the Court so instruct. (Dkt. 13.)
On August 22, 2023, Judge Caproni referred this case to me for general pretrial management, including report and recommendation on dispositive motions (Dkt. 18), and the following day, I set a briefing schedule that required plaintiff to file her papers in opposition to defendant's motion to dismiss no later than September 25, 2023. (Dkt. 19 at 1.)
On September 23, 2023, plaintiff filed a motion for leave to amend her complaint, combined in a single document (Pl. Resp.) (Dkt. 24) with her opposition to defendant's Rule 12(b)(6) motion and the proposed amended pleading itself. Construed liberally, the proposed pleading appears to allege claims for religious discrimination and racial discrimination under Title VII and the New York City Human Rights Law (NYCHRL), N.Y. City Admin. Code §§ 8-100 to 131, as well as a common law claim for intentional infliction of emotional distress. Pl. Resp. at 23, 4 (¶¶ 9-11, 18-19), 7-11.Additionally, plaintiff accuses Fountain House of "tortious interference with the free exercise of religion under U.S. CONST AMEND I." Id. at 2-3.
The first 25 pages of the document are consecutively paginated, but only a small portion, titled "Statement of Facts," contains numbered paragraphs.
In her Statement of Facts, plaintiff alleges that she is "a devoted adherent of Buddhism and her religious beliefs prohibit the injection of foreign substances, inter alia, in her body, including the Covid-19 vaccines." Pl. Resp. at 3 (¶ 2). She does not identify her race. She states that when Fountain House announced its mandatory vaccination policy, she "immediately informed her employer of her religious objection" and requested "a reasonable accommodation in the form of an exemption from the vaccination requirement. Id. at 3 (¶ 4). Fountain House "denied her accommodation request," but "accommodated Caucasian others." Id. at 3 (¶¶ 5-6). Plaintiff "refused to comply with the vaccine mandate, citing her sincerely held religious beliefs, and was subsequently terminated from her position," with only "a couple days' notice and NOT until January 3d[.]" Id. at 4 (¶¶ 7-8). Additionally, plaintiff alleges, without elaboration, that she was "in a hostile work environment" and was "harassed" by Fountain House "based on race and religion as a[n] aspect of the covid-19 landscape[.]" Id. at 4 (¶ 19). As a result of "the unlawful termination and discrimination of race," plaintiff suffered "severe emotional distress." Id. at 4 (¶¶ 11, 21). Additionally, she suffered economically, losing her apartment, spending time in a homeless shelter, and relying on public assistance. Id. at 4 (¶¶ 12-15, 20).
Nor did she make any allegation of racial discrimination to the EEOC. See Compl. at ECF pp. 12-15.
Among the exhibits attached to plaintiff's September 23 filing are emails concerning her efforts to find housing in February 2023, see Pl. Resp. at 18-19; emails with Fountain House (some of which were also attached to her initial complaint), see id. at 20-25; and what appears to be a summons and complaint filed on April 26, 2023, in New York Supreme Court, New York County, alleging that Fountain House violated her "constitutional rights (Title VII)" by denying her a "religious accommodation . . . for the Covid-19 vaccine." Id. at ECF pp. 27-29.
On October 10, 2023, defendant filed a reply brief in further support of its motion to dismiss plaintiff's complaint and in opposition to plaintiff's motion for leave to amend, noting that plaintiff failed to address the statute of limitations issue, and reiterating its argument that her Title VII claim is "untimely, barred, and must be dismissed with prejudice." Def. Reply (Dkt. 26) at 2. Defendant further argues that plaintiff's motion for leave to amend "should be denied as futile," because she cannot cure the untimeliness of her Title VII claim and fails to state any other viable federal claim. Id. at 3-4. "To the extent Plaintiff now seeks to assert state-law or New York City Human Rights Law claims in an Amended Complaint," defendant adds, "the Court should decline to exercise supplemental jurisdiction over such claims[.]" Id. at 4.
On October 26, 2023, plaintiff submitted a reply brief in further support of her motion for leave to amend, arguing - for the first time - that "excusable neglect" prevented her from timely filing her initial complaint. Pl. Reply (Dkt. 31) at 2. Plaintiff explains that she "went to the address given to her by the EEOC," and "asked the clerk of Court if she was in the correct court," but the clerk "disingenuously or . . . mistakenly explained in detail that Plaintiff was in the correct Court." Id. It was not until fourteen days later, "after consulting with a legal professional respecting the exact courts whereabouts," that plaintiff realized "she was in the court room next door," at which point she "acted in good faith and in a timely fashion" to file her federal complaint. Id. According to plaintiff, this was "a classic example of the sort of error for which 'excusable neglect' is intended to provide relief." Id. at 6.
Plaintiff further argues that, in addition to her Title VII claim for religious discrimination,she has stated a constitutional claim under the First Amendment, arguing that Fountain House, as a "a taxpayer-funded entity, is subject to adhere to this constitutional obligation." Pl. Reply at 4 (citing Rendell-Baker v. Kohn, 457 U.S. 830 (1982)).Although she does not discuss the merits of her state law claims, plaintiff notes that this Court has supplemental jurisdiction over state law claims that form part of the same "case or controversy" as her federal claims. Id. at 7-8.
In her reply brief, plaintiff makes no mention of racial discrimination.
Although plaintiff's reply brief refers to Fountain House as a "taxpayer-funded entity," she did not make that allegation in her original complaint (which was silent on the issue) or in her September 23 filing - in which she asserted only that defendant's refusal to grant her an exemption from its vaccine requirement "ipso facto constitutes discrimination based on religion if the defendants [sic] absorb taxpayer funding." Pl. Resp. at 7 (emphasis added).
Lastly, plaintiff asks the Court to strike "the Defendant's inaccurate and disingenuous facts" pursuant to Fed.R.Civ.P. 12(f). Pl. Reply at 9. According to plaintiff, Fountain House "challenged the constitutionality of utilizing taxpayer funding for nonprofit corporations," and "misrepresent[ed] the scenario of the COVID-19 landscape, wherein accommodations for religious beliefs were mandated." Id. However, plaintiff does not identify any specific statements by defendant that she seeks to strike.
II. LEGAL STANDARDS
A. Title VII
Under Title VII, it is unlawful for a covered employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The statute requires, as a precondition to bringing suit, that a plaintiff file an administrative employment discrimination claim with the EEOC (or a state or local fair employment practices agency). See 42 U.S.C. § 2000e-5(e)(1); Cetina v. Longworth, 583 Fed.Appx. 1, 2 (2d Cir. 2014) (summary order). Thereafter, she must bring suit within 90 days after receipt of a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994).
Because "Title VII's time limits are 'analogous to a statute of limitations,'" McFarland v. Metro-North Commuter R.R., 993 F.Supp. 210, 210-11 (S.D.N.Y. 1998) (quoting Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996)), failure to bring suit within the prescribed 90-day period "gives rise to an affirmative defense," Lizarraga v. Cent. Parking, Inc. - Waldorf Astoria Hotel, 2014 WL 2453303, at *2 (S.D.N.Y. June 2, 2014), and is "grounds for dismissal." McFarland, 993 F.Supp. at 211; accord Lizarraga, 2014 WL 2453303, at *2. "Although pro se plaintiffs are entitled to leniency in other areas of litigation, the case law is clear: The 90-day deadline is strictly enforced against represented and pro se plaintiffs alike." Perez v. Mason Tenders District Council Trust Funds, 2017 WL 5125542, at *3 (S.D.N.Y. Nov. 1, 2017) (collecting cases and noting that "[i]f a pro se plaintiff misses her deadline by a few days, or even one day, her action must be dismissed as untimely"); see also, e.g., Ziyan Shi v. New York Dep't of State, Div. of Licensing Servs., 393 F.Supp.3d 329, 342 (S.D.N.Y. 2019) (dismissing Title VII claims filed one day too late); Glover v. Fed'n of Multicultural Programs, 2015 WL 4600645, at *7 (E.D.N.Y. July 29, 2015) (same); Lewis v. N.Y.C. Dep't of Educ., 2013 WL 5405534, at *5 (S.D.N.Y. Sept. 25, 2013) (three days too late); Toolan v. Bd. of Educ. of City of New York, 2003 WL 22015437, at *2 (S.D.N.Y. Aug. 25, 2003) (one day too late).
Because the 90-day limitations period is not jurisdictional, it is "subject to waiver, estoppel, and equitable tolling." Briones, 101 F.3d at 290; Lizarraga, 2014 WL 2453303, at *2. However, equitable tolling is only appropriate in "rare and exceptional circumstance[s]," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), in which a plaintiff is "prevented in some extraordinary way from exercising [her] rights." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). "For equitable tolling to apply, the district court must determine that 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." Adams-Shango v. N.Y.C. Dep't of Educ., 2012 WL 3834668, at *4 (S.D.N.Y. Aug. 22, 2012) (quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003), as amended (July 29, 2003)) (internal quotation marks omitted). In the absence of any "rare," "exceptional," or "extraordinary" circumstances, "the court cannot extend the limitations period by even one day." Legra v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 2016 WL 6102369 at *2 (S.D.N.Y. Oct. 19, 2016) (quoting Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)).
In calculating the 90-day limitations period, "courts generally presume that a right-to-sue letter from the EEOC is received three days after it is mailed." Legra, 2016 WL 6102369 at *2; accord Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996). "It is further presumed, in the absence of a challenge, that a notice by a government agency is mailed on the date shown in the notice." Loftin v. N.Y.S. Dep't of Mental Health, 2003 WL 221767 at *1 (S.D.N.Y. January 31, 2003).
B. Fed.R.Civ.P. 8(a)(2) and 12(b)(6)
Fed. R. Civ. P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." If that "short and plain statement" fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," the deficient claims may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When faced with a motion made pursuant to Rule 12(b)(6), the court must "accept as true all factual statements alleged" and "draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. In addition to the facts alleged in the complaint itself, a court faced with a Rule 12(b)(6) motion may consider "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)).
In Title VII cases, as noted above, the statute of limitations provides an affirmative defense. If that defense "appears on the face of the complaint," including the documents attached thereto, it may be adjudicated pursuant to Rule 12(b)(6). Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998); see also Smith v. Sebelius, 2011 WL 7427733, at *4 (S.D.N.Y. Dec. 28, 2011) ("[w]here it is clear from the plaintiff's own allegations and matters subject to judicial notice that a claim has been asserted outside the governing statute of limitations, Rule 12(b)(6) provides a basis for dismissal of the claim"), report and recommendation adopted, 2012 WL 627237 (S.D.N.Y. Feb. 27, 2012)).
The court must construe a pro se complaint "liberally and interpret it 'to raise the strongest arguments that [it] suggest[s].'" Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). To that end, the court may, "in its discretion, consider factual allegations made in the plaintiff's opposition papers 'as supplementing the Complaint, at least to the extent they are consistent with the allegations in the Complaint.'" Forrest v. City of New York, 2023 WL 2432493, at *5 (S.D.N.Y. Feb. 1, 2023) (quoting George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y. June 29, 2012)), report and recommendation adopted, 2023 WL 2433115 (S.D.N.Y. Mar. 9, 2023). Even in a pro se pleading, however, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Although a court is "obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports," it "cannot invent factual allegations that [s]he has not pled." Chavis, 618 F.3d at 170.
Fed. R. Civ. P.15(a)(2) instructs that courts "should freely give leave" to amend a complaint "when justice so requires." However, leave to amend is properly denied based on, among other things, "futility of amendment." Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "'Proposed amendments are futile,' and thus must be denied, 'if they would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.'" Tannerite Sports, LLC v. NBCUniversal News Grp., a division of NBCUniversal Media, LLC, 864 F.3d 236, 252 (2d Cir. 2017) (quoting Thea v. Kleinhandler, 807 F.3d 492, 496-97 (2d Cir. 2015)).
D. Supplemental Jurisdiction
Title VII claims come within a federal district court's original jurisdiction pursuant to 28 U.S.C. § 1331. Where, as here, the parties are not diverse, related state and local claims arising out of the same facts come within the district court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). However, once the court "has dismissed all claims over which it has original jurisdiction," it "may decline to exercise supplemental jurisdiction over a claim under subsection (a)." 28 U.S.C. § 1367(c)(3).
Although the statute is phrased in discretionary terms, and there is no "mandatory rule to be applied inflexibly in all cases," in the "usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine -judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); accord Page v. Oath Inc., 2018 WL 1406621, at *4 (S.D.N.Y. Mar. 20, 2018) ("Considering these factors will usually lead to the dismissal of the non-federal claims when the federal claims have been dismissed at a relatively early stage.").
III. DISCUSSION
A. The Motion to Dismiss
Plaintiff's Title VII religious discrimination claim - the only claim asserted in her initial complaint - should be dismissed as untimely. By filing a Charge of Discrimination with the EEOC, plaintiff satisfied her obligation to "exhaust her administrative remedies as a precondition to filing her claims in federal court." Ayala v. U.S. Postal Serv., 2017 WL 1234028, at *4 (S.D.N.Y. Mar. 31, 2017). However, upon receipt of the EEOC right-to-sue letter - and as made clear in the letter itself - plaintiff was required to sue, if at all, within 90 days. Instead, plaintiff filed this action 104 days after the date on the right-to-sue letter, which was at least 101 days after she received it, and was therefore at least 11 days too late.
The face of the EEOC's correspondence indicates that it was sent by email, see Compl. at ECF p. 10, and was therefore received the same day. Nothing in plaintiff's pleadings suggests otherwise. But even if the Court presumes that the right-to-sue letter was received three days later, on Saturday, January 28, 2023, see Sherlock, 84 F.3d at 525-26, the 90-day period within which this action could have been timely commenced expired on April 25, 2023.
Even if the Court were to exercise its discretion to consider the factual allegations made in plaintiff's September 23 and October 26 submissions as supplementing her pleading, see Forrest, 2023 WL 2432493, at *5, none of those allegations would permit equitable tolling of the 90-day period, as required to permit her to pursue a Title VII claim in this Court. Her pro se status, as noted above, does not excuse her untimely filing. See Perez, 2017 WL 5125542, at *3; Ayala v. U.S. Postal Serv., 2017 WL 1234028, at *6 (S.D.N.Y. Mar. 31, 2017) ("Courts in this Circuit construe the ninety-day deadline strictly, even where a pro se plaintiff files the complaint one or two days past the deadline."). Nor is plaintiff entitled to tolling on the ground that she attempted to file her complaint in this Court on April 25, 2023, but mistakenly filed it in a state court, which was "collocated with the correct venue." Pl. Reply at 6. Plaintiff's state court summons and complaint - which are hand-dated April 25 but file-stamped April 26, 2023 - clearly identify the court in which she filed those papers as the Supreme Court of the State of New York, County of New York. Pl. Resp. at ECF pp. 27-28. To the extent plaintiff now claims that she believed herself to be in federal court at the time, see Pl. Reply at 2, that claim is difficult to credit.
The Daniel Patrick Moynihan United States Courthouse at 500 Pearl Street, where this Court sits, is next door to the New York State Supreme Court Building at 60 Centre Street. However, the federal and state courts are not "co-located" in a single building.
Moreover, there was nothing "incorrect" about filing a Title VII claim in state court. See Yellow Freight System, 494 U.S. at 82. If the state court accepted plaintiff's April 26, 2023 filing as timely, she could have pursued her religious discrimination claim in that forum. Thus, even if plaintiff were genuinely confused as to the identity of the court in which she first filed, that would not warrant the relief she seeks, which is reserved for "rare and exceptional circumstance[s]," Smith, 208 F.3d at 17, in which a plaintiff is "prevented in some extraordinary way from exercising [her] rights." Johnson, 86 F.3d at 12. Plaintiff, who argues only that she acted with "excusable neglect," Pl. Reply at 6, does not begin to meet that standard. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (holding, in a Title VII case, that "the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect").
Because plaintiff's Title VII religious discrimination claim is time-barred, her complaint should be dismissed.
B. The Motion to Amend
In her proposed amended complaint, plaintiff repleads her Title VII claim and attempts to expand it by including allegations of discrimination based on race as well as religion. Pl. Resp. at 3 (¶ 5), 4 (¶¶ 9-11, 18-19). For the reasons stated above, however, she has not cured the fatal deficiency posed by her delayed filing. Thus, even if plaintiff had exhausted her administrative remedies as to racial discrimination, see 42 U.S.C. § 2000e-5(e)(1), her expanded Title VII claim would be time-barred and subject to dismissal. Consequently, to the extent plaintiff's proposed amendment asserts a claim under Title VII, it is futile and should be denied.
The same is true with respect to plaintiff's effort to plead a constitutional tort under the Free Exercise Clause of the First Amendment, see Pl. Resp. at 2-3, which I construe liberally as a claim made pursuant to 42 U.S.C. § 1983. Section 1983 permits civil suits against those who, acting "under color" of state law, have deprived a plaintiff of "any rights, privileges, or immunities secured by the Constitution" or laws of the United States. Id. To state a claim under § 1983, however, "a plaintiff must allege that . . . the defendant was a state actor, i.e., acting under color of state law, when he committed the violation[.]" Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted). In what may be an effort to satisfy this standard, plaintiff speculates that Fountain House received "federal, or even state funding." Pl. Resp. at 5. State funding, however, does not transform a private entity into a state actor. See Rendell-Baker, 457 U.S. at 838-44 (affirming dismissal of § 1983 suit brought by teachers who were discharged by publicly-funded alternative high school because the school was not a state actor when making personnel decisions); Dawkins v. Biondi Educ. Ctr., 164 F.Supp.3d 518, 524-31 (S.D.N.Y. 2016) (dismissing § 1983 claims arising out of plaintiff's discharge by a "public high school with private status," because defendants were not state actors when discharging staff). Plaintiff has therefore failed to state a claim under § 1983.
In her reply brief, plaintiff cites Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 208 L.Ed.2d 206 (2020), which she describes as "underscoring] the necessity of providing accommodations in favor of religious notions." Pl. Reply at 9. The defendant in that case, however, was the sitting Governor of New York, who was unquestionably a "state actor" when he issued executive orders limiting occupancy at religious services during the early months of the pandemic.
Since plaintiff has not pleaded any viable federal claims - and does not suggest that she could do so if given another opportunity to replead - the Court need not exercise its supplemental jurisdiction to consider her proposed state law claims under the NYCHRL or for intentional inflection of emotional distress. See Cohill, 484 U.S. at 351 ("When the single federal-law claim in the action was eliminated at an early stage of the litigation, the District Court had a powerful reason to choose not to continue to exercise jurisdiction."); Callahan v. Cnty. of Suffolk, 602 F.Supp.3d 399, 414 (E.D.N.Y. 2022) (denying late motion to amend complaint as "futile" because all federal claims had been dismissed and "this Court would decline to exercise supplemental jurisdiction over the state law claims" in the proposed amended pleading). That result is particularly appropriate where - as here - plaintiff has already filed a case in state court.
IV. CONCLUSION
Plaintiff cannot state a viable federal claim under either Title VII or § 1983. I therefore recommend, respectfully, that defendant's motion to dismiss the complaint (Dkt. 14) be GRANTED, that plaintiff's cross-motion to amend (Dkt. 24) be DENIED, without prejudice to her right to refile her state law claims in state court, and that this case be closed.
If my recommendation is accepted, there will be no need to rule on plaintiff's motion for judicial notice (Dkt. 12) or her motion to strike "defendants untruthful[] pleadings" contained within her reply brief (Dkt. 31 at 1, 9-10). If the case is not dismissed altogether, the motion for judicial notice should be DENIED, because general principles of law are not "adjudicative facts" of which judicial notice may be taken. See Fed.R.Evid. 201(a), (b). The motion to strike should also be DENIED, for two reasons. First, Rule 12(f) permits a court to strike "redundant, immaterial, impertinent, or scandalous matter" from "a pleading." Fed.R.Civ.P. 12(f). Defendant has moved to dismiss plaintiff's pleading but has not filed any pleading of its own. Second, it is impossible to determine from plaintiffs imprecise argument what "inaccurate assertions," in what filings, she seeks to strike. See Pl. Reply at 9.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Valerie E. Caproni, United States District Judge, at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).