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rejecting plaintiff's claims that he was mislead by court clerk into concluding that weekends and holidays did not count because "the right to sue letter received from the EEOC . . . states clearly that any action [plaintiff] wished to pursue in state or federal court had to be commenced within 90 days from receipt of the letter"
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04 Civ. 1697 (KNF).
September 26, 2006
MEMORANDUM ORDER
I. INTRODUCTION
Pro se plaintiff Morgan Stephens ("Stephens") brought the instant action against his former employer, the Salvation Army, and its employees Major Lawrence Shaffer ("Schaffer"), Frankie Hailey ("Hailey") and Gloria Saunders ("Saunders") (collectively "defendants"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Stephens contends that his employment was terminated by the defendants wrongfully, due to his national origin and race, and because of sex discrimination.
The defendants have made a motion to dismiss the plaintiff's complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that: (1) the plaintiff failed to commence the instant action within 90 days of the date upon which he received a Notice of Dismissal and Right to Sue letter from the United States Equal Employment Opportunity Commission ("EEOC"), as he was required to do; and (2) the individually named employee defendants may not be held personally liable for any Title VII violation.
The plaintiff opposes the defendants' motion. Stephens concedes that he filed his complaint with the court 38 days after the 90-day statutory filing period had expired. However, he contends he did so because of incorrect information he received from a clerk employed in the Pro Se Office (" pro se clerk") for this judicial district. Stephens maintains that because he relied, to his detriment, on the misinformation provided to him by the pro se clerk, the Court should apply the doctrine of equitable tolling to this case and find that this action was commenced timely. Moreover, Stephens alleges that equity warrants that the instant motion be denied because the "defendants' [answer to his complaint] was in itself untimely." To facilitate the resolution of the defendants' motion, the Court heard oral argument, in support of and in opposition to the motion, on September 20, 2006.
II. BACKGROUND
On March 28, 2000, the Salvation Army terminated the plaintiff's employment. Thereafter, on April 19, 2000, the plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("SDHR"). Stephens alleged that his dismissal by his former employer was predicated upon his national origin, race and sex, and violated New York Executive Law § 296. On the same day, Stephens also filed a discrimination claim with the EEOC.
SDHR dismissed the plaintiff's discrimination charge. It found that probable cause to believe a discriminatory act had been committed by the defendants did not exist. Adopting SDHR's findings, the EEOC also dismissed the complaint the plaintiff had lodged with it. On October 25, 2003, the plaintiff received notice of the EEOC's dismissal of his complaint and was advised of his right to sue the defendants in either a state or federal court. The writing Stephens received from the EEOC stated, in pertinent part the following:
The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge. . . . You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; or your right to sue based on this charge will be lost. (Emphasis in original document).
One week after receiving the notice of dismissal from the EEOC, Stephens alleges that he called the Pro Se Office for this judicial district "to inquire as [to] how [he] should proceed." On or about October 29, 2003, Stephens maintains that he visited the Pro Se Office and inquired about "the tolling period allowed to file [his] lawsuit." Stephens contends that, during his visit, he was informed by a pro se clerk, whom he described only as a "male, Caucasian in his 20s," that weekends and holidays were excluded from "the tolling period." Therefore, he "inadvertently filed [his] claim late as a result of the mistaken information." Consequently, according to Stephens, when he filed the instant action on March 1, 2004, he believed that his action was commenced timely, because it was filed 80 business-days after he received the right to sue letter from the EEOC. However, the 90-day statutory filing period, noted in the EEOC letter Stephens received, included weekends and holidays. Therefore, the plaintiff's complaint was filed in this court 38 days after the 90-day statutory filing period had expired.
After the action was commenced, the defendants were tardy in answering the plaintiff's complaint. This prompted Stephens to file a motion, in November 2004, for a default judgment. Thereafter, the defendants appeared in the action and requested an opportunity to file an answer to Stephens' complaint. The district judge who was then assigned to this case granted the defendants' application and their answer was filed subsequently. The defendants determined, some time later, to make the instant motion to dismiss the plaintiff's complaint.
III. DISCUSSION
The pleadings of a pro se litigant are to be construed liberally by a court. Those pleadings are to be read "to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation omitted). Accordingly, the Court has applied this standard in reviewing the plaintiff's complaint and the submission he has made in opposition to the defendants' motion to dismiss.
Legal Standard
A court may dismiss an action pursuant Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). In considering the motion, the court must take "as true the facts alleged in the complaint and [draw] all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
However, Fed.R.Civ.P. 12(b) informs that when matters outside the pleadings are presented to a court on a motion to dismiss for failure to state a claim upon which relief may be granted, and not excluded by the court, the subject motion is to be treated as one for summary judgment and disposed of as provided for in Fed.R.Civ.P. 56. In the case at bar, the plaintiff invited the Court to convert the defendants' motion to dismiss to a motion for summary judgment by appending to the affidavit he submitted in opposition to the motion, documents outside the pleadings. The Court has considered these documents to determine to what extent, if any, they support Stephens' request that the Court consider and employ the doctrine of equitable tolling in determining whether to grant the relief the defendants seek through their motion. As a consequence, the defendants' motion will be disposed of in accordance with Fed.R.Civ.P. 56.
Statutory Filing Period
A Title VII action must be commenced within 90 days of the date upon which the plaintiff receives notice from the EEOC that he or she may commence a civil action against the respondent(s) named in the EEOC charge. See 42 U.S.C. § 2000e-5(f)(1). "The Second Circuit has noted that Title VII's time limits are 'analogous to a statute of limitations.'" Fletcher v. Runyon, 980 F. Supp. 720, 721 (S.D.N.Y. 1997) (quoting Briones v. Runyon, 101 F.3d 287, 290 [2d Cir. 1996]). Therefore, the failure to bring suit within the statutory filing period is a ground for dismissing a complaint in the absence of a recognized equitable consideration.See Skeete v. IVF America, Inc., 972 F. Supp. 206, 209 (S.D.N.Y. 1997).
In the instant case, it is undisputed that Stephens received his right to sue letter on October 25, 2003. Thus, Stephens had until January 23, 2004, to commence a Title VII action in state or federal court. The record evidence establishes, beyond peradventure, that Stephens' complaint was not filed until March 1, 2004. That date is 38 days after the 90-day statutory filing period deadline. Accordingly, the Court finds Stephens' action was not commenced timely.
Stephens contends that the doctrine of equitable tolling should be applied by the Court and, once applied, should bar his complaint from being dismissed. As noted above, Stephens alleges that misinformation provided to him by a court employee, concerning the impact that weekends and holidays have on calculating the 90-day statutory filing period, caused him to file his complaint after the filing period expired. For their part, the defendants maintain that the uncorroborated assertion by Stephens, that he received misinformation from an unidentified staff member of the Pro Se Office for this judicial district, regarding the "running of the tolling period," provides no basis for the Court to invoke the doctrine of equitable tolling and rescue an untimely filed complaint from dismissal.
Equitable Tolling
The doctrine of equitable tolling permits a court to deem a filing timely when a litigant can demonstrate to the court that he or she has been pursuing the litigant's rights diligently and that extraordinary circumstances stood in the litigant's way.See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814 (2005). The statutory filing period for a Title VII action is subject to equitable tolling. See Dunn v. Secretary of U.S., No. 00 Civ. 1747, 2006 WL 1510097, at *11 (N.D.N.Y. May 26, 2006) (citing South v. Saab Cars USA, Inc., 28 F.3d 9, 11 [2d Cir. 1994]). "This is because '[f]airness, and not excessive technicality, must guide the consideration of Title VII actions.'" Fields v. Merrill Lynch, Pierce, Fenner Smith, Inc., 301 F. Supp. 2d 259, 262 (S.D.N.Y. 2004) (alteration in original) (quoting Love v. Pullman Co., 404 U.S. 522, 526-27, 92 S. Ct. 616, 619). Although the statutory filing period for a Title VII action is subject to equitable tolling, it must be remembered that the doctrine of equitable tolling should only be applied "in rare and exceptional circumstances, in which a party is 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) (citations omitted).
"When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has 'acted with reasonable diligence during the time period [he] seeks to have tolled,' and (2) has proved that the circumstances are so extraordinary that the doctrine should apply."Zerilli-Edelglass, 333 F.3d at 80-81 (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 [2d Cir. 2002]). For example, the doctrine of equitable tolling has been applied in circumstances where a plaintiff has been lulled into inaction by a state or federal official or agency,see Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. 1985), or by the actions of a court. See Carlile v. South Routt School District RE 3-J, 652 F.2d 981, 986 (10th Cir. 1981). The doctrine of equitable tolling may also be applied when a defendant has engaged in affirmative misconduct that lulled a plaintiff into inaction. See Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207 (9th Cir. 1981).
In the instant case, the plaintiff admits that his complaint was filed after the 90-day statutory filing period set forth in 42 U.S.C. § 2000e-5(f)(1) expired. However, he claims that his failure to file the complaint timely was occasioned by incorrect information provided to him by the unidentified pro se clerk concerning the impact that weekends and holidays would have on the calculation of the statutory 90-day filing period. The Court finds that the factual allegations made by the plaintiff in support of his request that the doctrine of equitable tolling be applied by the Court to save his complaint from dismissal are vague and uncorroborated. Moreover, two documents attached to the plaintiff's complaint undermine his contention that misinformation from a court employee caused him to file his action late: (1) a copy of the right to sue letter received from the EEOC, which states clearly that any action he wished to pursue in state or federal court had to be commenced within 90 days from receipt of the letter; and (2) a copy of Fed.R.Civ.P. 6, which explains, among other things, how weekends and holidays are treated when computing time periods applicable to federal civil litigation. When read together, these documents persuade the Court that the plaintiff had notice of the applicable statutory filing period, as well as the method for computing the 90-day statutory filing period, independent of any "misinformation" that might have been communicated to him by the unidentified pro se clerk.
In addition, the Court finds that nothing in the submissions made by the plaintiff to the court or in the arguments he urged on the Court, during the September 20, 2006 proceeding, establishes that Stephens either acted with reasonable diligence during the time he seeks to have tolled or that extraordinary circumstances are present here that warrant the Court in invoking the doctrine of equitable tolling.
The record before the Court is devoid of any facts that show what, if anything, the plaintiff did to initiate this action in the 38 days that followed the expiration of the statutory filing period or the five months between his October 2003 visit to this judicial district's Pro Se Office and the date in March 2004 when he filed his complaint with the court. Similarly, the record before the Court is barren of facts that show that rare, exceptional or extraordinary circumstances exist, in this case, that require the doctrine of equitable tolling to be employed.See Zerilli-Edelglass, 353 F.3d at 80. As a result, the Court finds that the doctrine of equitable tolling should not be applied in the instant action.
To the extent that the plaintiff contends that: (a) the defendants should not have been allowed to file an answer after he moved for a default judgment and, therefore, he is entitled to the benefit of equitable tolling; or (b) the previously assigned district judge's decision to excuse the defendants' default supports his request that the Court employ the doctrine of equitable tolling, Stephens is wrong. If the plaintiff believed that the previously assigned district judge's determination to permit the defendants to defend against the plaintiff's claims after a default was erroneous, he could have applied to that judicial officer, seasonably, for relief. See Local Civil Rule 6.3 of this court. He failed to do so. Moreover, the determination to permit the defendants to defend against this action is irrelevant to the Court's analysis of the propriety of applying the doctrine of equitable tolling in the circumstance of this case.
Individual Defendants' Liability
Stephens has named as defendants in this Title VII action Shaffer, Hailey and Saunders, supervisory employees of defendant Salvation Army. In this judicial circuit, "individuals are not subject to liability under Title VII." Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (citation omitted); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998). Therefore, even if Stephens' action was not barred by the 90-day statutory filing period found at 42 U.S.C. § 2000e-5(f)(1), his Title VII claim against the individually named employee defendants, all of whom held supervisory positions with the Salvation Army, would have to be dismissed.
During oral argument on the defendants' motion, their counsel made an application to amend the motion to include an additional ground upon which the plaintiff's claims should be dismissed against the individually named employee defendants — namely, that the plaintiff is barred from pursuing a Title VII claim against these defendants because they were not named as respondents in the EEOC and SDHR administrative proceedings. Since the Court finds that these defendants cannot be held liable under Title VII, for the reasons set forth above, it is unnecessary to analyze this newly asserted additional ground upon which the defendants allege they are entitled to relief.
IV. CONCLUSION
For the reasons set forth above, the defendants' motion is granted.SO ORDERED.