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finding plaintiff's unsupported allegation of the date of receipt of a right-to-sue letter was insufficient "to rebut the applicable three-day presumption of receipt"
Summary of this case from Hampton v. BranchOpinion
No. 09-0069-cv.
March 5, 2010.
Appeal from the United States District Court for the Southern District of New York (Marrero, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.
Felicia Pickett Johnson, New York, N.Y., pro se.
William D. Buckley, Garbarini Scher, P.C., New York, N.Y., for Defendant-Appellee.
SUMMARY ORDER
Appellant Felicia Pickett Johnson, pro se, appeals from the district court's judgment granting the defendants' motion for judgment on the pleadings and dismissing her employment discrimination complaint as time-barred. We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.
This Court reviews a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) de novo. See Hardy v. New York City Health Hosps. Corp., 164 F.3d 789, 792 (2d Cir. 1999). The same standard applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies to Fed.R.Civ.P. 12(c) motions for judgment on the pleadings. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Thus, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant," and deny the motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. Furthermore, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Under Title VII and the Americans with Disabilities Act, a claim must be filed in federal court within 90 days of the plaintiff's receipt of a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). See 42 U.S.C. § 2000e-5(f)(1) (Title VII action must be brought within ninety days of notification of right to sue); id. § 12117(a) (adopting Title VII limitations period for the ADA). Absent sufficient evidence to the contrary, it is presumed that a plaintiff received his or her right to sue letter three days after its mailing. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996).
Here, Johnson's unsupported allegation that she received her EEOC right-to-sue letter on November 14, 2007, was not sufficient to rebut the applicable three-day presumption of receipt. See Sherlock, 84 F.3d at 526 ("[W]e would not regard the presence of a self-serving date-of-receipt notation . . . as evidence rebutting the presumption that the letter was received three days after its typewritten date, unless the claimant also presented an affidavit or other admissible evidence of receipt on the noted date."). Accordingly, it is assumed that Johnson received the October 31, 2007 right-to-sue letter on November 3, 2007, requiring her to file her complaint on or before February 1, 2008. Her February 7, 2008 complaint was thus untimely.
We have considered all of Johnson's other arguments on appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.