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noting that Rule 56 may be "an appropriate vehicle" to resolve a statute of limitations defense
Summary of this case from Palmer-Williams v. United StatesOpinion
10 Civ. 6356 (JSR) (DF)
12-28-2011
MARILYN SMITH, Plaintiff, v. KATHLEEN SEBELIUS, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, U.S.D.J.:
In this employment discrimination case, pro se plaintiff Marilyn Smith ("Plaintiff") claims that defendant Kathleen Sebelius, Secretary of the Department of Health and Human Services ("Defendant") denied Plaintiff a promotion on the basis of her race and sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000c-17 ("Title VII"). On June 14, 2011, Defendant filed a motion to dismiss the Complaint as untimely. (See Dkt. 7.) When Plaintiff initially failed to file any opposition, the Court issued an Order, dated August 24, 2011 (see Dkt. 10), requiring Plaintiff to show cause why this Court should not recommend dismissal for the reason stated in Defendant's motion. Plaintiff has now responded, both to Defendant's motion and to the Court's Order To Show Cause, by arguing that she should be entitled to equitable tolling of the relevant statute of limitations. (See Dkts. 15, 14.) In neither of her submissions, however, has Plaintiff set forth facts sufficient to justify equitable tolling, and I therefore recommend that Defendant's motion be granted and the Complaint dismissed.
BACKGROUND
A. Plaintiff's Discrimination Claim
Plaintiff, who works for the Food and Drug Administration, a division of the Department of Health and Human Services, claims in her Complaint that, in April 2004, she applied internally for the position of Director of the Northeast Regional Laboratory, that her experience was greater than that of the individual who was selected, and that she was not selected because of her African-American race and her female sex. (See generally Complaint for Employment Discrimination, filed Aug. 25, 2010 ("Compl.").)
Plaintiff's Complaint, as filed, includes two attachments (1) her curriculum vitae and narrative recitation of her qualifications (referred to herein as "Compl. Attachment 1"), and (2) a copy of the decision by the U.S. Equal Employment Opportunity Commission ("EEOC") on her complaint of discrimination (referred to herein as "Compl. Attachment 2").
B. Administrative Proceedings
Before commencing this action, Plaintiff pursued her complaint of discrimination administratively, by filing a charge with the EEOC on August 16, 2005. (See id., ¶ III(A); see also Compl. Attachment 2, at 2.) After conducting an investigation and providing Plaintiff with an investigation report, the EEOC notified Plaintiff of her right to request a hearing. (See Compl. Attachment 2, at 2.) When Plaintiff failed to make such a request within the time frame provided in the pertinent regulation, the agency issued a final decision without a hearing on July 24, 2008, denying Plaintiff's claim. (Id.) In its decision, the agency found that, although Plaintiff had established a prima facie case of discrimination, her employer had articulated legitimate, nondiscriminatory reasons for not selecting her for the position in question, and Plaintiff had not shown that those reasons were pretextual. (See id., at 3.) On May 14, 2010, the EEOC affirmed that decision on an administrative appeal. (See generally id.)
In its May 14, 2010 decision, the EEOC notified Plaintiff of her right to commence a federal civil lawsuit, stating: "You have a right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision." (Id., at 6 (emphasis in original).) According to Plaintiff, she received this notice of her right to sue on May 26, 2010. (Compl., ¶ III(B).) Thus, her 90-day period to file suit expired on August 24, 2010.
C. Proceedings in this Court
Plaintiff does not dispute that her Complaint, while dated August 24, 2010, was not filed with the Court until August 25, 2010, one day after the end of the limitations period. (See Compl., at 1 (time-stamped as "filed" on Aug. 25, 2010 at 11:03 a.m.).) By motion dated June 14, 2010, Defendant argued that, because of Plaintiff's late filing, her Complaint should be dismissed as time-barred. (See Memorandum of Law in Support of Motion to Dismiss the Complaint, dated June 14, 201 (Dkt. 8).)
Where the complaint of a pro se plaintiff bears a stamp showing that it was received by the Court's Pro Se Office on a date earlier than the complaint's docketing date, the Court will deem the complaint to have been filed on the earlier date, for statute-of limitations purposes. See, e.g., Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988). Here, Plaintiff's Complaint does not bear a stamp indicating an earlier date of receipt by the Pro Se Office, and it is in fact apparent from the Civil Cover Sheet that the Pro Se Office received the Complaint on August 25, 2010, the same day that the Complaint was docketed.
As Plaintiff did not immediately file an opposition to Defendant's motion, the Court issued an Order To Show Cause on August 24, 2011, setting out its calculation of the 90-day limitation period, explaining that the statute of limitations could be equitably tolled under extraordinary circumstances, and directing Plaintiff to show cause why this Court should not recommend that her Complaint be dismissed. (See Order To Show Cause, dated Aug. 24, 2011 (Dkt. 10).) The Court stated: "In particular, Plaintiff should submit a sworn affidavit or a declaration made under penalty of perjury, together with any supporting documents, addressing (1) the Court's calculation . . . regarding the timeliness of her claims; and (2) any equitable considerations (e.g., her efforts to preserve her Title VII claims and anything that prevented her from doing so) that would warrant tolling the 90-day limitations period." (Id., at 2-3.)
Shortly thereafter, the Court received two submissions from Plaintiff, both dated August 29, 2011. One of those submissions was styled as a "Response To [the Court's] Order To Show Cause" (referred to herein as "Pl. Resp.") (Dkt. 14), and the other as an "Affirmation in Opposition To [Defendant's] Motion" (referred to herein as "Pl. Opp.") (Dkt. 15). In the first of these submissions, liberally construed, Plaintiff argues that she should be granted the benefit of equitable tolling because she needed to take time to consider whether to bring this action, especially in light of the fact that she would be proceeding pro se. (See Pl. Resp., ¶ 1 (stating that she had to "think long and hard" about whether to commence the suit, especially when she was "in need of education to learn the process," as a pro se litigant).) In addition, Plaintiff explains that, by engaging in a hurried calculation of the 90-day time period, she merely made mental jumps from May 26 to June 26, to July 26, and finally to August 26, apparently not realizing that certain months have 31 days, and thereby mistakenly assuming that a filing on August 25 would be timely. (See id.) Plaintiff also asserts that, during the administrative proceedings, deadlines were not adhered to by either her employer or the EEOC, and she argues that this led her to believe that "the deadlines are not fixed in concrete and flexibility is possible." (Id., ¶¶ 2, 3.) In the second of her submissions (her opposition to Defendant's motion), Plaintiff revisits the first argument described above, stating that she "filed at the point that [she] did" because she "wrestled long and hard with the decision to exercise [her] right to sue." (Pl. Opp., at 2.)
"It is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (collecting authority).
On September 26, 2011, Defendant filed a reply brief in further support of her motion to dismiss. (See Reply Memorandum of Law in Support of Motion To Dismiss the Complaint, dated Sept. 26, 2011 ("Def. Reply") (Dkt. 11).) On October 28, 2011, Defendant also submitted a short letter responding to Plaintiff's Response to the Order To Show Cause. (See Letter to the Court from Brandon H. Cowert, Esq., dated Oct. 28, 2011 ("Def. Resp.") (Dkt. 17 ).) In each, Defendant asserts that Plaintiff has not met the stringent test for equitable tolling. (See generally Def. Reply; Def. Resp.)
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES
A. Rule 12(b)(6)
A case is subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure where the complaint is not legally sufficient to state a claim upon which relief can be granted. See Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991); Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). When considering a motion to dismiss under this Rule, "the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted). Further, the pleadings of a pro se party must be liberally construed in that party's favor and are held to a less stringent standard than the pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 10-11 (1980); see also n.3, supra. This does not, however, "exempt pro se parties from compliance with the relevant rules of procedural and substantive law." Bisson v. Martin Luther King Jr. Health Clinic, No. 07-5416-cv, 2008 WL 4951045, at *1 (2d Cir. Nov. 20, 2008) (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009).
In addition to considering the factual allegations in the complaint, the Court also may consider, on a Rule 12(b)(6) motion, documents attached to the complaint as exhibits or incorporated in it by reference, documents that are "integral" to the complaint, and matters of which judicial notice may be taken. Calcutti v. SBU, Inc., 273 F. Supp. 2d 488, 498 (S.D.N.Y. 2003) (citing Brass v. American Films Technologies, 987 F.2d 142, 150 (2d Cir. 1993); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). The mandate that a pro se plaintiff's complaint be construed liberally also makes it appropriate for the court to consider the factual allegations in the plaintiff's opposition materials to supplement the allegations in the complaint. See Johnson v. Wright, 234 F. Supp. 2d 352, 356 (S.D.N.Y. 2002); Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999).
Where 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. See, e.g., South v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994); Manley v. New York City Police Dep't, No. CV-05-679 (FBLB), 2005 WL 2664220, at * 1 (E.D.N.Y. Oct. 19, 2005). Alternatively, where evidence outside the pleadings is introduced, a motion to dismiss on statute-of-limitations grounds may be converted to a motion for summary judgment, under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 56(d). Rule 56 may be an appropriate vehicle to resolve a statute-of-limitations defense where the parties introduce evidence on the question of whether, for equitable reasons, a limitations period should be tolled. See, e.g., Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (declining to reverse district court's grant of summary judgment to defendant, where plaintiff "failed to meet his Fed. R. Civ. P. 56(e) burden of setting forth specific facts showing that there is a genuine dispute regarding the equities of his failure to comply with the [limitations] rule").
In this case, Defendant provided Plaintiff with the requisite notice that the Court could convert Defendant's Rule 12 motion to a Rule 56 motion, and that the motion would then need to be met with evidence in admissible form. (See Dkt. 9; see also Local Civ. R. 12.1.) Although this Court does not believe that conversion of the motion is necessary, the Court does note that, if the motion were treated as a summary judgment motion, Plaintiff's Complaint would still be subject to dismissal, for essentially the same reasons discussed herein.
B. The Relevant Title VII Statute of Limitations
Title VII provides that, where a claimant wishes to commence a federal lawsuit, he or she must file a complaint in the district court within 90 days of receipt of a right-to-sue notice from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); see also, e.g., Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (citing statute). As a general matter, this time limit is strictly enforced; absent equitable considerations warranting tolling, the Court cannot extend the period "by even one day." Johnson, 731 F.2d at 145, 146, 148 (citation omitted) (affirming dismissal of action filed 97 days after notice); see also Ford v. Consol. Edison Co. of N.Y., Inc., No. 03 Civ. 9587 (PAC), 2006 WL 538116, at *6-7 (S.D.N.Y. Mar. 3, 2006) (dismissing on summary judgment Title VII claim where lawsuit was filed 92 days after plaintiff's attorney received right-to-sue letter); Manley, 2005 WL 2664220, at *2, 5 (dismissing Title VII claim as untimely where lawsuit was filed 91 days after receipt of right-to-sue letter).
Moreover, this strict application of this statute of limitations applies to pro se litigants, as well as to represented parties. See Zerilli-Edelglass v. N.Y.C. Transit Authority, 333 F.3d 74, 78, 81 (2d Cir. 2003) (affirming dismissal of complaint received by Pro Se Office 92 days after plaintiff's receipt of right-to-sue notice); Manley, 2005 WL 2664220, at *3 ("Courts will strictly enforce these deadlines even where the plaintiff is proceeding pro se.") (citations omitted); Toolan v. Board of Educ., No. 02 Civ. 6989 (DC), 2003 WL 22015437, at *2 (S.D.N.Y. Aug. 25, 2003) (compiling cases); Sanchez v. Nat'l Cleaning Co., 11 F. Supp. 2d 453, 455 (S.D.N.Y. 1998) (dismissing on summary judgment pro se plaintiff's complaint as untimely where filed 92 days after receipt of right-to-sue letter); Fletcher v. Runyon, 980 F. Supp. 720, 722 (S.D.N.Y. 1997) (adopting recommendation of magistrate judge that pro se complaint filed 98 days after receipt of right-to-sue letter should be dismissed as untimely).
C. Equitable Tolling
Despite the fact that the Court will generally enforce the 90-day limit on the time for a Title VII claimant to file suit, that limit is not a jurisdictional prerequisite to filing, and thus it is subject to equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982) (noting that, "[b]y holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, [the Court] honor[s] the remedial purpose of the legislation."); Johnson, 731 F.2d at 146 ("The Supreme Court has evinced a policy of treating Title VII time limits not as jurisdictional predicates, but as limitations periods subject to equitable tolling.").
Equitable tolling, however, is only available in "rare and exceptional" circumstances, where the plaintiff, despite diligent effort, is prevented in some extraordinary way from filing in accordance with the statutory requirements. Zerilli-Edelglass, 333 F.3d at 80 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). The types of exceptional circumstances that have been held to justify tolling include where the plaintiff's pleading, though defective, was actually filed within the statutory period, or where the plaintiff was "induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (citations omitted). Courts have also excused untimely filings where an EEOC official or the court itself provided the plaintiff with inaccurate information regarding the filing deadline. See Johnson, 731 F.2d at 146 (noting that a recognized basis for equitable tolling is where plaintiff demonstrates that an EEOC official provided erroneous advice regarding a filing deadline) (citation omitted); South, 28 F.3d at 11 (noting that "[t]he doctrine of equitable tolling has . . . been applied where the court has led the plaintiff to believe that she had done all that was required of her") (citation omitted). Tolling has also been found to be warranted where the plaintiff received inadequate notice of the limitations rule, see South, 28 F.3d at 11-12 (citation omitted), where a motion for the appointment of counsel was pending, see id., at 12 (citation omitted), or where a plaintiff made such "impressive" efforts to comply with legal requirements that he "exemplified" diligence, Dupree v. Urban Homesteading Assistance Board, No 10-CV-1894 (JG) (JO), 2011 WL 1343163, at *4-5 (E.D.N.Y. Apr. 8, 2011).
The Court is "much less forgiving" where the plaintiff has "failed to exercise due diligence in preserving his [or her] legal rights." Irwin, 498 U.S. at 96; see also South, 28 F.3d at 12 (noting that "a plaintiff's failure to act diligently is not a reason to invoke equitable tolling"); Smith v. Henderson, 137 F. Supp. 2d 313, 319 (S.D.N.Y. 2001) ("The plaintiff must act diligently in preserving her legal rights."). Moreover, "[i]n order to establish an 'evenhanded administration of the law,'" the Court may "not . . . disregard the timing requirements simply because [it] may feel sympathy for a particular litigant." Smith v. Henderson, 137 F. Supp. 2d at 317-18 (quoting Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)). Overall, the Court must be mindful that equitable relief is "extended . . . only sparingly." Irwin, 498 U.S. at 96.
II. AVAILABILITY OF EQUITABLE TOLLING IN THIS CASE
In this case, Plaintiff - who, while not an attorney, has emphasized, in her Complaint, that she is a highly educated, supervisory-level employee, experienced in performing sophisticated tasks in order to, inter alia, ensure an agency's regulatory compliance (see Compl. Attachment 1) - has alleged no facts capable of satisfying the high standards for equitable tolling.
First, Plaintiff asserts that, before filing her Complaint, she took time to consider her options because "[f]iling a civil case against your employer is something that one has to think long and hard about." (Pl. Resp., ¶ 1; see also Pl. Opp., at 2 ("I wrestled long and hard with the decision to exercise my right to sue. That is why I filed at the point that I did.").) Taking time to consider the filing of an action, however, even if the prospect of proceeding pro se may seem daunting, cannot substitute for the diligence that the courts require to invoke equitable tolling. See Baldwin, 466 U.S. at 151 (holding that "[o]ne who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence").
Second, Plaintiff contends that, through misunderstanding of the rules, she miscalculated the 90-day period by wrongly assuming it was the equivalent of three months, without actually counting the days on the calendar. (See Pl. Resp., ¶ 1.) If, however, Plaintiff was uncertain as to how to calculate the 90-day period, then she should have sought clarification from a knowledgeable source. See Manley, 2005 WL 2664220, at *2, 4 (plaintiff's contention that the right-to-sue letter was "misleading and confusing," where it failed to specify whether the 90-day period referred to calendar or business days, was insufficient to justify equitable tolling, as plaintiff made the decision "simply [to] act upon the assumption that a longer period of limitations applied, without obtaining clarification of the rule") (citation omitted). In any event, the mere fact that a plaintiff relies on a faulty assumption in making the time calculation cannot suffice to toll the statute. See id.; see also Bethelmie v. N.Y.C. Health and Hospitals Corp., No. 00 CIV. 3707 (FM), 2001 WL 863424, at *3 (S.D.N.Y. July 31, 2001) (rejecting plaintiff's argument for equitable tolling, where plaintiff assumed that, since the EEOC was not open on the weekends, weekend days would not count).
Third, Plaintiff argues that, given the purported failures of Defendant and the EEOC to meet deadlines during the administrative proceedings, she believed any filing deadlines were flexible. (See Pl. Resp., ¶¶ 2-3.) Yet, in the notice provided to her by the EEOC, the rule regarding the 90-day time limit was emphasized, in bold-face type (see Compl. Attachment 2, at 6), and, in the absence of evidence that she was affirmatively misled by Defendant or the EEOC, it was not reasonable for Plaintiff to assume that this was not a real deadline. See Baldwin, 466 U.S. at 151-52 (holding that pro se plaintiff failed to demonstrate basis for tolling where her right-to-sue letter adequately informed her that a complaint would need to be filed within 90 days); see also id., at 151 (distinguishing situation where "affirmative misconduct on the part of a defendant lulled the plaintiff into inaction"); see also Manley, 2005 WL 2664220, at *4 (declining to find the statute of limitations tolled in "the absence of any allegation that the EEOC or any other party misled [plaintiff] into believing that a more generous limitations period applied").
In sum, Plaintiff has not come forward with any explanation for her untimely filing that, under the law, could constitute the type of "extraordinary circumstances" necessary to justify equitable tolling of the applicable statute of limitations. In the absence of such circumstances, I recommend that Plaintiff's Complaint be dismissed, with prejudice, as time-barred.
CONCLUSION
For the foregoing reasons, I recommend that Defendant's motion to dismiss Plaintiff's Complaint (Dkt. 7) be granted and that this case be closed on the docket of the Court.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, United States Courthouse, 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 525, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). If Plaintiff does not have access to cases cited herein that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2 ("Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party."). Dated: New York, New York
December 28, 2011
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies To: The Honorable Jed S. Rakoff, U.S.D.J. Ms. Marilyn Smith
11 Chamin Plaza
Englewood, NJ 07631
(with copies of electronically reported decisions) Brandon H. Cowart, Esq.
Assistant United States Attorney
86 Chambers Street
New York, NY 10007