Opinion
00 Civ. 329 (SAS)
February 14, 2002
For Plaintiff: Mona C. Engel, Esq., Law Offices of Robert F. Danzi, Westbury, New York
For Defendant: Karen Stefflre, Esq., Proskauer Rose LLP, New York, New York
OPINION AND ORDER
Plaintiff Li-Lan Tsai has sued her former employer, the Rockefeller University (the "University"), under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. ("ADA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Although plaintiff was terminated on November 20, 1996, she did not file a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") until October 14, 1999.
Plaintiff contends that the 300-day filing period imposed under Title VII and the ADA should be tolled and her Charge deemed timely filed because: (1) for nearly three years she was unable to protect her legal rights, and (2) an unidentified EEOC employee misinformed her about the time period in which a lawsuit could be filed. Defendant has moved for summary judgment under Federal Rule of Civil Procedure 56(c) arguing that there are no exceptional circumstance that would warrant tolling the 300-day filing period for over two years. For the following reasons, defendant's motion is granted and this case is dismissed.
I. FACTS
Tsai, a Chinese female, was hired by the University in 1978 as a research assistant. Amended Complaint ¶ 7. Plaintiff alleges that she is disabled due to Hepatitis B, cirrhosis of the liver, a torn meniscus in her knee, as well as headache, fatigue, weakness and shortness of breath. Id. ¶¶ 13, 42. Tsai claims that the University discriminated against her because of her disabilities as well as her race and gender, and then retaliated against her when she complained about the alleged discrimination. Id. ¶¶ 33-36, 43. The University terminated Tsai's employment on November 20, 1996. Id. ¶ 7.
A. Plaintiff's Pursuit of Her Legal Rights
The following facts are taken from defendant's Rule 56.1 Statement because it contains facts based solely upon specific deposition testimony of plaintiff as well as plaintiff's writings and pleadings. Plaintiff's Rule 56.1 Statement, on the other hand, denied all but three of defendant's factual allegations even though the evidence in support of many of these allegations is plaintiff's own deposition testimony and pleadings. See Klein v. National Life of Vermont, 7 F. Supp.2d 223, 233 (E.D.N Y 1998) (citing Trans-Orient Marine Corp. v. Star Trading Marine Inc., 925 F.2d 566, 572 (2d Cir. 1991) ("The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony."). Plaintiff's Rule 56.1 Statement is also deficient in that it often contains long narratives and conclusions which are not supported with citations to admissible evidence. See Ofudu v. Barr Labs., Inc., 98 F. Supp.2d 510, 513 (S.D.N Y 2000) (disregarding conclusory assertions without proper foundation); Fernandez v. DeLeno, 71 F. Supp.2d 224, 227 (S.D.N.Y. 1999) (Rule 56.1 statement disregarded where the party failed to include any evidentiary citations). Accordingly, the following facts remain undisputed despite allegations to the contrary contained in plaintiff's Rule 56.1 Statement. See Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998) (uncontroverted facts set forth in movant's Rule 56.1 statement deemed admitted).
On October 29, 1996, Tsai consulted an attorney about the problems she had been having with the University since July 1996. Defendant's Rule 56.1 Statement ("Def. 56.1") ¶ 4; see also Deposition of Li-Lan Tsai ("Tsai Dep."), Ex. D to the Affidavit of Karen Stefflre, attorney for defendant, in Support of Defendant's Motion for Summary Judgment ("Stefflre Aff.") at 142-43. For example, plaintiff disputed her vacation days and the University's failure to raise her salary. Def. 56.1 ¶ 5; Tsai Dep. at 142-43. Plaintiff also felt that she was forced to attend too many meetings with the University's personnel department. Def. 56.1 ¶ 6; Tsai Dep. at 143. Plaintiff wanted an attorney to represent her at these personnel meetings because she "need[ed] someone who knows the law to go with me." Def. 56.1 ¶ 7; Tsai Dep. at 143, 184. However, due to her illnesses, plaintiff never had the opportunity to have the attorney she consulted actually appear on her behalf. Def. 56.1 ¶ 9; Tsai Dep. at 146-47.
Although Tsai was terminated on November 20, 1996, she waited nearly three years before filing a Charge of Discrimination with the EEOC. Def. 56.1 ¶ 12; Tsai Dep. at 245; Charge of Discrimination, Ex. B to the Stefflre Aff. During this three-year period, however, plaintiff exercised other legal rights by, inter alia, appealing from adverse determinations, consulting with retained counsel, and testifying on her own behalf. Specifically, Tsai pursued various legal rights in the following ways:
• Approximately two weeks after she was terminated, Tsai filed for unemployment insurance benefits in person with assistance from her husband. Def. 56.1 ¶ 13; Tsai Dep. at 192-93.
• On January 10, 1997, after her claim for unemployment insurance benefits was denied, Tsai applied for short-term disability benefits. Def. 56.1 ¶ 14; Tsai Dep. at 149.
• On April 24, 1997, Tsai completed and filed an application for Social Security disability benefits. Def. 56.1 ¶ 16; Tsai Dep. at 130.
• In May 1997, plaintiff consulted — in person — with an attorney, Mark Brandoff, telling him about her alleged wrongful termination and that she wanted to sue the
• University. Def. 56.1 ¶¶ 17-18; Tsai Dep. at 130, 132, 137. Brandoff asked Tsai to send him the termination papers as well as other relevant documents. Def. 56.1 ¶ 19; Tsai Dep. at 133. Plaintiff failed to send Brandoff the requested documents. Def. 56.1 ¶ 20; Tsai Dep. at 134-35.
• On May 15, 1997, Tsai completed and submitted an application for long-term disability benefits. Def. 56.1 ¶ 21; Tsai Dep. at 151.
• On August 18, 1997, Tsai wrote a three-page handwritten letter to the long-term disability insurance carrier pressing her claim for long-term disability benefits and requesting an early determination of her claim. Def. 56.1 ¶ 23; Tsai Dep. at 152-53; Letter Dated August 18, 1997 to Mr. Weber, Ex. E to the Stefflre Aff.
• On September 15, 1997, Tsai's claim for long-term disability benefits was denied. See Amended Complaint filed by Tsai against the Rockefeller University Long Term Disability Plan and Teachers Insurance Annuity Association ¶ 24, Ex. F to the Stefflre Aff. Thereafter, on November 8, 1997, plaintiff wrote a five-page handwritten letter to the long-term disability carrier appealing the adverse determination. Def. 56.1 ¶ 26; Tsai Dep. at 158-59; Letter Dated November 8, 1997 to Mr. Weber, Ex. G to the Stefflre Aff.
• On December 3, 1997, Plaintiff wrote a four-page handwritten letter complaining that more information concerning her medical condition was required in order to process her appeal of the denial of long-term disability benefits. Def. 56.1 ¶ 28; Tsai Dep. at 161-62; Letter Dated December 3, 1997 to Mr. Williams, Ex. H to the Stefflre Aff.
• On December 10, 1997, plaintiff wrote a two-page handwritten letter to the Social Security Administration requesting that her application be expedited. Def. 56.1 ¶ 30; Tsai Dep. at 166; Letter Dated December 10, 1997 to Ms. Landrigan, Ex. I to the Stefflre Aff.
• On January 21, 1998, plaintiff wrote another letter to the Social Security Administration seeking an expedited decision on her application for benefits. Def. 56.1 ¶ 34; Tsai Dep. at 179; Letter Dated January 21, 1998 to Ms. Landrigan, Ex. J to the Stefflre Aff.
• On January 21, 1998, Plaintiff wrote a three-page letter to the long-term disability carrier complaining that her appeal had not yet been decided and urging that time was of the essence. Def. 56.1 ¶ 34; Tsai Dep. at 177; Letter Dated January 21, 1998 to Mr. Williams, Ex. K to the Stefflre Aff.
• In April 1998, after the Social Security Administration denied plaintiff's claim for social security benefits, Tsai consulted the law firm of Binder and Binder about handling an appeal of the decision. Def. 56.1 ¶ 36; Tsai Dep. at 170, 176.
• In April 1998, Tsai went to Binder and Binder's office and retained them to represent her before the Social Security Administration. Def. 56.1 ¶ 37; Tsai Dep. at 117-18, 123-24.
• On January 22, 1999, Tsai wrote to Bill Lam Lee, Acting Assistant Attorney General, Civil Rights Division, Department of Justice, complaining about the University's treatment of her and asking for his assistance. Def. 56.1 ¶ 38; Tsai Dep. at 181, 252; Letter Dated January 22, 1999 to Mr. Lee, Ex. L to the Stefflre Aff.
• On May 25, 1999, Tsai personally appeared at an administrative hearing before the Social Security Administration to testify in support of her appeal. Def. 56.1 ¶ 40; Tsai Dep. at 254. Tsai was represented by Binder Binder at the hearing. Def. 56.1 ¶ 41; Tsai Dep. at 124-25.
• Sometime in 1999, Tsai discussed her claims against the University with three different attorneys. Def. 56.1 ¶ 42; Tsai Dep. at 250. Each attorney told Tsai that her claims against the University were time-barred because she had not filed a charge of discrimination with the EEOC within the 300-day filing period. Id.
B. Plaintiff's Contact with the EEOC
After learning of the EEOC some time in 1997, plaintiff telephoned to inquire about suing the University for employment discrimination. Def. 56.1 ¶¶ 47-49; Tsai Dep. at 238, 240. According to Tsai, the EEOC representative informed her that she had three years to bring a lawsuit but said nothing else. Def. 56.1 ¶ 50; Tsai Dep. at 243. Plaintiff does not know the name or title of the person with whom she spoke. Def. 56.1 ¶ 51; Tsai Dep. at 240.
Plaintiff could not recall whether she called the EEOC before or after the 300-day filing period expired. Tsai Dep. at 240.
Plaintiff does not know why the EEOC misinformed her about the time period in which to file a Charge of Discrimination. Def. 56.1 ¶ 54; Tsai Dep. at 249. Had plaintiff known of the 300-day period, she would have tried to timely file with the EEOC. Def. 56.1 ¶ 56; Tsai Dep. at 104.
Plaintiff did not contact the EEOC again until October 14, 1999, when she went there to file a Charge of Discrimination against the University. Def. 56.1 ¶ 53; Tsai Dep. at 244-45. The EEOC dismissed plaintiff's claims as time-barred and issued a right-to-sue letter on October 21, 1999. See Dismissal and Notice of Rights, Ex. A to the Amended Complaint. Plaintiff filed a pro se complaint with this Court on January 18, 2000.
Plaintiff alleged disability discrimination and retaliation but did not allege race or sex discrimination. See Charge of Discrimination, Ex. B to the Stefflre Aff.
II. DISCUSSION
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law[,]' [while] [am issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must view the evidence "in the light most favorable" to the non-movant. See Breland-Starling v. Disney Publishing Worldwide, 166 F. Supp.2d 826, 829 (S.D.N.Y. 2001) (citing Anderson, 477 U.S. at 255). A court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the nonmovant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). However, the non-moving party may not "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999), cert. denied, 120 S.Ct. 2688 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (quotation marks, citations, and alterations omitted)
B. The 300-Day Filing Period
Timely filing of a charge of discrimination with the EEOC is a prerequisite to filing a Title VII or ADA complaint in federal court. 42 U.S.C. § 2000e-5b (Title VII); 42 U.S.C. § 12117(a) (ADA). "In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days." Butts v. City of New York Dep't of Hous., Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (finding EEOC filing period to be 300 days in New York). A charge may be filed with the EEOC either in person or by mail. See 29 C.F.R. § 1601.8. When the plaintiff fails to file a timely Charge with the EEOC, a subsequent civil action is generally time-barred. See Contes v. City of New York, No. 99 Civ. 1597, 1999 WL 500140, at *6 (S.D.N.Y. July 14, 1999) (dismissing Title VII action where plaintiff failed to file EEOC charge within 300 days after alleged unlawful employment practice); Crawford v. New York City Bd. of Educ., No. 99 Civ. 925, 1999 WL 1072495, at *2 (S.D.N.Y. Nov. 29, 1999) (dismissing ADA claim where plaintiff failed to comply with 300-day filing requirement), aff'd, 225 F.3d 645 (2d Cir. 2000).
Title VII and the ADA have the same 300-day filing deadline. See Sahu v. Mayo Pound., No. 00-1216MN, 2001 WL 515077, at *1 (8th Cir. May 16, 2001).
The last discriminatory conduct alleged by plaintiff occurred on November 20, 1996, the date on which the University terminated her employment. Therefore, the 300-day filing period expired on September 16, 1997. Plaintiff did not file a Charge of Discrimination with the EEOC until October 14, 1999, two years and one month after the 300-day filing period expired. In these circumstances, plaintiff must come forward with evidence of exceptional circumstances that would justify tolling the 300-day filing period. See Miller v. International Tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985) (placing the burden of showing extraordinary circumstances justifying equitable tolling in an employment discrimination action on the plaintiff-employee); Braham v. State Ins. Fund, No. 97 Civ. 7121, 1999 WL 14011, at *3 (S.D.N.Y. Jan. 14, 1999) ("A plaintiff seeking to toll the statute of limitations on equitable grounds such as illness bears the burden to show that the limitations period should be extended."). In sum, plaintiff has failed to meet this burden.
C. Tolling Is Not Warranted Because Plaintiff Was Capable of Protecting Her Legal Rights During the 300-Day Filing Period
The Second Circuit has recognized that the time limits established by Title VII and the ADA are "analogous to a statute of limitations, and [are] therefore, considered subject to waiver, estoppel, and equitable tolling." Downey v. Runyon, 160 F.3d 139, 146 (2d Cir. 1998). Equitable tolling may, in certain circumstances, excuse a failure to follow the filing requirements of Title VII and the ADA. Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996). However, the filing period "may be tolled for equitable reasons only in `exceptional circumstances.'" Braham, 1999 WL 14011, at *4. Such exceptional circumstances may exist where a plaintiff was unable to protect her legal rights or was affirmatively misled by the EEOC as to the filing period.
Illness may constitute an "exceptional circumstance" for purposes of tolling only when it is so severe as to prevent the party from pursuing his or her legal rights. Lloret v. Lockwood Greene Eng'rs Inc., No. 97 Civ. 5750, 1998 WL 142326, at *2 (S.D.N.Y. Mar. 27, 1998). Accordingly, courts have repeatedly refused to apply equitable tolling where a plaintiff has evidenced an ability to pursue his or her legal rights during the relevant period. See Braham, 1999 WL 14011, at *4 (tolling unwarranted where plaintiff filed a judicial action during the filing period); Chalom v. Perkins, No. 97 Civ. 9505, 1998 WL 851610, at *6 (S.D.N.Y. Dec. 9, 1998) (no tolling based on illness where plaintiff filed an administrative complaint during the filing period); Lloret, 1998 WL 142326, at *4 (tolling not warranted where plaintiff who was suffering from depression filed bankruptcy claim during filing period); Pauling v. Secretary of the Dep't of Interior, 960 F. Supp. 793, 804 n. 6 (S.D.N.Y. 1997) (tolling not appropriate where plaintiff filed for workers' compensation benefits during filing period); Sanders v. Transit Workers Union, Local 100 AFL-CIO, No. 91 Civ. 6320, 1995 WL 77916, at *5 (S.D.N.Y. Feb. 23, 1995) (time period not tolled where plaintiff filed a pro se lawsuit during the filing period)
Here, plaintiff pursued various legal rights in a number of ways. For example, during the 300-day filing period, plaintiff applied for unemployment insurance benefits. After her claim for unemployment benefits was denied in January of 1997, she applied for short-term disability benefits. In April of 1997, plaintiff applied for Social Security disability benefits and pursued this claim by writing several letters to the Social Security Administration. The following month, Tsai asserted a claim for long-term disability benefits and pursued that claim by writing several letters to the insurance carrier. In May 1997, still well within the 300-day filing period, plaintiff consulted an attorney — in person, at his office — about bringing a discrimination suit against the University.
These actions clearly negate Tsai's argument that she was too incapacitated to pursue her legal rights during the 300 days following the termination of her employment. Moreover, plaintiff testified that had she known of the 300-day filing period, she would have attempted to file within the statutory period. This admission contradicts Tsai's argument that she was incapable of pursuing her discrimination claims against the University.
Oddly, it was only plaintiff's discrimination claims against the University that she neglected and allowed to expire. As a matter of law, however, a mere failure to act diligently is not a ground for extending the 300-day filing period. See, e.g., Torre v. Columbia University, No. 97 Civ. 981, 1998 WL 386438, at *8 (S.D.N.Y. July 10, 1998) (finding tolling not applicable where plaintiff failed to act diligently), aff'd, 189 F.3d 462 (2d Cir. 1999); South v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994) ("[A] plaintiff's failure to act diligently is not a reason to invoke equitable tolling.").
D. There Is No Evidence to Warrant Tolling the Statutory Filing Period Based on Alleged Statements by the EEOC
Plaintiff's alternative argument for tolling — that she relied on a statement by the EEOC to the effect that she had three years to commence an action — is also insufficient to toll the requirement for filing a timely EEOC charge. Because the EEOC is not a party to plaintiff's action, it is doubtful whether its actions can create a right to equitable tolling. See Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 891 (2d Cir. 1995) (questioning whether acts of the EEOC can trigger equitable tolling where the federal government is not a defendant); Angotti v. Kenyon Kenyon, 929 F. Supp. 651, 656 (S.D.N.Y. 1996) (acknowledging that, after Vernon, tolling is apparently not available based on statements by EEOC unless the EEOC is a defendant).
This argument may be completely without merit depending on when plaintiff first telephoned the EEOC. If plaintiff contacted the EEOC after the 300-day period had run, the information conveyed to her, whether right or wrong, was immaterial. However, there is no evidence in the record as to when plaintiff called the EEOC. Accordingly, the following discussion assumes that plaintiff called within the 300-day period.
Assuming, arguendo, that the limitations period can be tolled based on statements by a non-party, no such extension is warranted here because plaintiff has not established that the statement allegedly made to her by the EEOC constituted affirmative misconduct aimed at causing her to forgo her legal rights. See Long v. Frank, 22 F.3d 54, 58-59 (2d Cir. 1994) (holding that tolling is inappropriate in a case of a misrepresentation by the EEOC absent evidence of "affirmative misconduct"). Plaintiff has admitted that she does not know why the EEOC allegedly gave her incorrect information about the filing period. Moreover, plaintiff has not submitted any evidence that the EEOC engaged in affirmative misconduct to cause her to forgo her legal rights.
The Second Circuit has held that the doctrine of equitable tolling was created to protect claimants in cases where the defendant's intentional and fraudulent misconduct caused them to be unaware of, and thus lose, their legal rights. See Long, 22 F.3d at 58-59.
Plaintiff cannot even offer any evidence to support her allegations that the EEOC misinformed her because she does not know the name of the EEOC representative with whom she spoke. Plaintiff's case is thus similar to Edmonston v. MGM Grand Air, Inc., 808 F. Supp. 197 (E.D.N.Y. 1992). There, in granting summary judgment for the employer, the court held that tolling was not warranted because the plaintiff, who was pro se when he spoke with the EEOC, "provide[d] no evidence other than his affidavit to support his assertion of misleading by the EEOC." 808 F. Supp. at 204.
Conaway v. Control Data Corp., 955 F.2d 358 (5th Cir. 1992), is also instructive. In Conaway, the plaintiff urged the court to toll the filing deadline for his age discrimination claim, stating that he had been misled by the EEOC regarding the time for filing a charge. Id. at 362-63. Specifically, the plaintiff alleged that, during a telephone call with the EEOC, he was told that he could file suit within two years from the date of the discrimination or three years if the discrimination was intentional. Id. at 362. The plaintiff argued, as does Tsai, that he was misled by virtue of the EEOC's failure to tell him that he had 300 days to file an administrative charge. Id. at 363-63. He did not, however, present any evidence to corroborate his allegations.
The Fifth Circuit held that "the alleged incomplete oral statements made by the EEOC to [plaintiff] during a telephone conversation will not support equitable tolling." Id. at 363. The court noted that the EEOC entertains numerous calls every day and "[i]t would be virtually impossible for the EEOC or a defendant to rebut a plaintiff's unsupported allegation that the EEOC provided incomplete information in a telephone conversation." Id. Accordingly, tolling was not applied. For the same reasons, tolling is not warranted here.
In sum, plaintiff cannot invoke the tolling doctrine based on a misstatement allegedly made by the EEOC because she has offered no admissible evidence that the EEOC purposefully failed to advise her of the applicable filing requirements in order to interfere with her legal rights. Absent admissible evidence corroborating plaintiff's allegations, tolling cannot save plaintiff's complaint which must be dismissed as time-barred. See, e.g., Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 32 (S.D.N.Y. 1994) (rejecting tolling argument based on plaintiff's unsupported contention that on an unspecified date she telephoned the EEOC and was misinformed about the time period in which she could file a charge), aff'd, 50 F.3d 3 (2d Cir. 1995); cf. Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1303 (5th Cir. 1979) (no tolling where plaintiff relied on erroneous representations by state agency that complaint had been filed with the EEOC).
III. CONCLUSION
For the reasons stated above, defendant's motion for summary judgment is granted and this case is dismissed. The Clerk of the Court is directed to close this case.
SO ORDERED: