Opinion
No. 04 Civ. 558 (TPG).
August 22, 2005
OPINION
Plaintiff Stephanie McGugan, appearing pro se, brings this employment discrimination action against defendant Automatic Data Processing ("ADP"). Defendant now moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the complaint is time-barred.
Defendant's motion raises the issue of whether McGugan filed a charge of discrimination with the EEOC within 300 days of the allegedly unlawful act as required by law. Both sides have submitted correspondence between McGugan and the EEOC on this issue
Defendant's motion to dismiss the complaint is granted.
FACTS
The facts below are drawn from McGugan's complaint and the submitted correspondence. The court is entitled to rely on this correspondence without converting the motion into a motion for summary judgment because plaintiff had knowledge of the correspondence and relied upon it in bringing this suit. See Chambers v. Time-Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).McGugan is an African-American woman who was employed by ADP until her employment was terminated on November 2, 2002. She claims that from 1998 until November 2002, ADP failed to promote her because of her race and retaliated against her complaints by terminating her employment. McGugan's complaint is prepared on a form provided by the Pro Se Clerk's office of this court. Paragraphs 9 and 10 of the form deal with the issue of prior resort to an administrative agency.
9. It is my best recollection that I filed a charge with the New York State Division of Human Rights or the New York City Commission on Human Rights regarding defendant's alleged discriminatory conduct on: [handwritten] 11/03/02 at NJ EEOC (my case was dispatched to NYC EEOC).
10. It is my best recollection that I filed a charge with the Equal Employment Opportunity Commission regarding defendant's alleged discriminatory conduct on: [handwritten] 11/03/02.
As stated in paragraphs 9 and 10 of her complaint, McGugan claims to have filed a charge of discrimination with the Newark Area Office of the EEOC on November 3, 2002. McGugan attempts to support this claim in two affirmations which she submitted in response to the defense motion. In the first of the affirmations, McGugan states:
3. Attached as Exhibit A is a true and exact copy of a letter that will confirm that I did in fact file a complaint within 300 days of my last day of employment.
4. Also included in Exhibit A is a true and exact copy of [a] Charge of Discrimination that I, Stephanie J. McGugan, the Plaintiff, filed with the Equal Employment Opportunity Commission ("EEOC") which bears a date of November 8, 2002.
5. Also included in Exhibit A is a true and exact copy of a letter received from the EEOC indicating that Stephanie J. McGugan, the plaintiff, did in fact file a Charge of Discrimination against ADP with the New Jersey Office of the Equal Employment Opportunity Commission.
Exhibit A is a letter to McGugan from the Newark Area Office of the EEOC dated November 8, 2002. The letter began: "This letter is in reply to your inquiry regarding the filing of a potential charge of discrimination with this office". The letter proceeded to describe how the EEOC enforces certain federal laws prohibiting employment discrimination, and then stated
The EEOC is authorized to accept, investigate and attempt to conciliate charges alleging such discrimination as long as they are filed with this agency in a timely manner, usually within 180-300 days of the alleged harm.
Finally, the letter advised that the "information you completed" would be transferred to the New York District Office of the EEOC.
Contrary to McGugan's assertions, the November 8 letter, which is the entire Exhibit A, did not include any charge of discrimination, nor did it indicate that McGugan had filed such a charge. Although the letter referred to an "inquiry regarding the filing of a potential charge of discrimination" and also to "the information you completed," neither McGugan's inquiry nor the information she completed constituted the filing of a charge of discrimination. Indeed, McGugan has not submitted to the court any copy of a charge of discrimination filed in November 2002.
There is other correspondence that refutes McGugan's claim. An employee in the New York District Office of the EEOC wrote McGugan on November 29, 2002, and stated
The EEOC New York Office is in receipt of your questionnaire. I have documents that need to be submitted to us before we can formally docket any charge of discrimination.
The questionnaire referred to had apparently been filled out by McGugan when she visited the Newark EEOC office in early November 2002. It further appears that it is this questionnaire which was described in the November 8 letter as "the information you completed." McGugan argues that the November 29 letter confirmed that her charge of discrimination was timely filed at the New Jersey office, but it did not. Although the language of the letter could be more precise, it is sufficiently advised McGugan that certain documents remained to be completed and submitted to the EEOC before the EEOC could docket a charge of discrimination.
The next item of correspondence in the record is a letter to McGugan from the New York District Office of the EEOC dated May 22, 2003, which read:
Dear Mrs. McGugan:
The EEOC is in receipt of your general questionnaire. Please be informed that a general questionnaire does not constitute in filling a charge. I have enclosed the appropriate documents for you to submit along with your allegations. Please attach your allegations to the Charge of Discrimination Form 5. Also, please be aware that your allegations that will be set forth in the Charge of Discrimination must be notarized.
If you have any questions please do not hesitate to call me at the number listed above.
Sincerely, Arlean Nieto
It is not clear if the May 22 letter referred to the same questionnaire as the November 29 letter. In any event, the May 22 letter clearly informed plaintiff that no charge of discrimination had yet been filed and that, before such filing could occur, plaintiff must fill out and submit additional documents to the EEOC.
McGugan did file a charge of discrimination with the New York District Office of the EEOC on September 11, 2003. That charge of discrimination bore the number 160-2003-02376. The court infers that this number reflects a filing in 2003, not in 2002. Attached to that charge of discrimination is a four-page addendum in which plaintiff provided detailed allegations of the same racial discrimination as found in the complaint now before this court.
Finally, on September 17, 2003, the New York District Office of the EEOC issued a Dismissal and Notice of Right informing McGugan that "the documentary evidence provided does not substantiate your allegations of race discrimination and retaliation." There was also a Notice of Right to Sue. This document bore the same 2003 case number as the charge of discrimination filed in September 2003. There was no reference to a 2002 charge.
McGugan asked the EEOC to reconsider its decision in a letter dated December 1, 2003. By letter dated December 16, 2003 the EEOC informed McGugan that the EEOC would not reconsider her charge against ADP.
On December 12, 2003 McGugan submitted this complaint to the Pro Se Clerk's office of the Southern District of New York, and the complaint was subsequently filed on January 23, 2004.
DISCUSSION
In a deferral state such as New York, a plaintiff must file an administrative charge of discrimination under Title VII within 300 days of the allegedly unlawful employment act. 42 U.S.C. § 2000e-5(e)(1); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). Failure to file a timely charge with the EEOC usually requires dismissal of the plaintiff's suit by the district court. However, a plaintiff's failure to file a timely charge with the EEOC does not necessarily deprive the court of jurisdiction. Rather, timely filing is "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Haghpassand v. Reuters Consulting Group, 03 Civ. 5686 (LBS), 2004 WL 594576, at *4 (S.D.N.Y. Mar. 25, 2004),quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Equitable tolling is only applied in cases where plaintiff has acted diligently, but has been "prevented in some extraordinary way from exercising his rights." Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80 (2d Cir. 2003).
In this case, McGugan's last day of employment by ADP was November 2, 2002. The 300-day period commencing on November 3, 2002 ended on August 31, 2003. However, August 31 was a Sunday and September 1 was Labor Day. Thus, plaintiff had until September 2, 2003 to file a charge of discrimination with the EEOC.
ADP's position is that McGugan did not file a charge of discrimination with the EEOC until September 11, 2003, and that the charge was therefore untimely. McGugan claims to have filed a charge of discrimination on November 3 or 8, 2002, but she has produced no such charge. Moreover, despite plaintiff's argument to the contrary, the November 8 and November 29 EEOC letters do not confirm that plaintiff filed a charge at that time. Therefore, the court finds that McGugan did not file an EEOC charge of discrimination until September 11, 2003, more than 300 days after the termination of her employment.
McGugan argues that her completion of an EEOC questionnaire at some point prior to November 8, 2002 should be regarded as a timely filing of a charge of discrimination. However, the argument that a questionnaire is equivalent to a charge of discrimination has been repeatedly rejected, and is unavailing here. See Haghpassand, 2004 WL 594576, at *5; see also Walker v. New York City Transit Authority, 99 Civ. 3337 (DC), 2001 WL 1098022, at *6 (S.D.N.Y. Sept. 19, 2001).
McGugan also argues that the 300-day deadline should be equitably tolled because the EEOC led her to believe that she had filed a charge of discrimination in early November 2002. McGugan relies primarily on the language of the November 8 letter, particularly the opening sentence: "This letter is in reply to your inquiry regarding the filing of a potential charge of discrimination with this office." The November 8 letter also states that "The information you completed will be transferred to the New York District Office," and McGugan argues that she interpreted the word "information" to refer to her charge of discrimination.
In any event, the EEOC letter November 29, 2002 informed McGugan that it was "in receipt of your questionnaire" and that it required additional documents before it could "formally docket any charge of discrimination." Finally, in the letter dated May 22, 2003, McGugan was again advised that although the EEOC was in receipt of her general questionnaire, "a general questionnaire does not constitute in filing a charge." That letter even supplied plaintiff with the forms needed for filing a charge of discrimination.
Even accepting the poor wording of the November 8 letter, the later correspondence shows that the EEOC advised plaintiff that she had not filed a charge of discrimination well before the expiration of the 300-day period. At the latest, plaintiff should have known from the May 22 letter that she had not filed a charge of discrimination. At that point, plaintiff still had at least three months to file a charge of discrimination before the 300-day period expired. The court therefore finds that the circumstances behind plaintiff's delayed filing are not so extraordinary as to justify tolling the 300-day period for the filing of a charge of discrimination.
CONCLUSION
Defendant's motion is granted. The complaint is dismissed as time-barred.
SO ORDERED.