Zerilli-Edelglass v. New York City Transit Authority

• Decision Date: 07 July 2003
• Docket Number: Docket No. 01-7641.
• Parties: TERESA ZERILLI-EDELGLASS, <I>Plaintiff-Appellant,</I> v. NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, <I>Defendants-Appellees.</I>
• Court: U.S. Court of Appeals — Second Circuit

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TERESA ZERILLI-EDELGLASS, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants-Appellees.

Docket No. 01-7641.

United States Court of Appeals, Second Circuit.

Argued March 10, 2003.

Decided June 17, 2003.

Errata Filed July 7, 2003.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Nina Gershon, Judge), granting defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. We affirm the District Court's holding that plaintiff failed to file a timely EEOC complaint within 300 days of the allegedly discriminatory act, as required by statute. Plaintiff is barred from arguing that her timely, but unsworn, letter to the EEOC should be treated as a formal EEOC complaint because she admitted in sworn statements before the District Court that the letter was not a formal EEOC complaint. We also hold that equitable tolling of the 300-day filing deadline was not warranted where plaintiff failed diligently to pursue her claim. Affirmed.

RYAN M. PHILP and KEVIN J. DOYLE (Jon Romberg, on the brief), Seton Hall University School of Law Center for Social Justice, Newark, NJ, for Plaintiff-Appellant.

RICHARD SCHOOLMAN, Office of the General Counsel, New York City Transit Authority, Brooklyn, NY, Defendants-Appellees.

Before: MESKILL, CARDAMONE and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Plaintiff Teresa Zerilli-Edelglass appeals from a judgment dismissing her employmentrelated claims entered on April 19, 2001 by the United States District Court for the Eastern District of New York (Nina Gershon, Judge). The District Court granted defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") after it concluded that plaintiff failed to state a claim as a result of her failure to file a formal complaint with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the allegedly discriminatory act, as required by statute. See 42 U.S.C. §§ 2000e-5(e)(1), (f)(1) & 12117(a).¹

The District Court rejected plaintiff's argument that her February 4, 2000 letter to the EEOC was a timely-filed charge.² The Court held that the "[February 4, 2000] letter was not written under oath, as required by the ADA [Americans with Disabilities Act] and Title VII" and that "it [was] clear from the letter that plaintiff was not filing a complaint, but rather was `writing to inquire about the procedures regarding retaliation complaints, namely whether [she was] required to file a formal complaint with the EEOC.'" Zerilli-Edelglass v. New York City Transit Authority, No. 00 Civ. 6393 (NG), at 5 (E.D.N.Y. Apr. 16, 2001) (quoting Letter from Zerilli-Edelglass to EEOC of 2/4/00) (citations omitted). The District Court also rejected plaintiff's argument that equitable tolling of the 300-day limitations period for filing was warranted. Finally, the Court held that Zerilli-Edelglass failed to file a civil complaint within ninety days of receipt of a right-to-sue letter, as required by 42 U.S.C. §§ 2000e-5(f)(1) and 12117(a), see note 4 post, when she mailed the complaint on the eighty-ninth day but it was not received by the Clerk's Office for the Eastern District of New York ("Clerk's Office") until the ninety-sixth day. The Court declined to reach the question of whether the ninety-day deadline should be equitably tolled. Plaintiff renews her arguments on appeal.

I.

The record reveals the following undisputed facts. On October 26, 2000, plaintiff brought an action against defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority ("MaBSTOA"),³ alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., and disability discrimination in violation of Title I of the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. §§ 12112-12117. She also alleged that she was fired in retaliation for her successful litigation in Zerilli v. New York City Transit Authority, 973 F. Supp. 311 (E.D.N.Y. 1997), aff'd as modified, Zerilli v. New York City Transit Authority, 162 F.3d 1149, 2001 WL 642465 (2d Cir. 1998) (unpublished summary order) (leaving the verdict intact but reducing the attorneys' fees by several thousand dollars); Zerilli v. New York City Transit Authority, No. 94 Civ. 5495 (NG), 1998 WL 307019 (E.D.N.Y. May 1, 1998) (entering a modified judgment). Defendants moved to dismiss the complaint as untimely under Rule 12(b)(6) on the grounds that plaintiff neither filed a charge with the EEOC within 300 days of the alleged unlawful employment practices, as required by 42 U.S.C. §§ 2000e-5(e)(1) and 12117(a), nor filed a civil complaint within ninety days of receiving a right-to-sue letter, as required by 42 U.S.C. §§ 2000e-5(f)(1) and 12117(a).

Plaintiff's claims in the instant action arise out of events that took place after her prior successful legal action in Zerilli v. New York City Transit Authority, 973 F. Supp. 311. In that action, after a jury found in plaintiff's favor on her Title VII and state law sex discrimination claims, the District Court entered an order on May 30, 1997 that required the TA to promote plaintiff to the position of Manager, Analytical Support in the Department of Buses. Id. at 318. On June 20, 1997, the TA formally offered plaintiff that position, but plaintiff, who had been absent from her former position since March 8, 1997, did not report for this management position because of an alleged jobrelated illness.

For approximately two years following the TA's employment offer of a managerial position, plaintiff did not return to work; instead she claimed, and ultimately secured, long-term disability benefits as well as Social Security Disability Insurance benefits. The TA sent plaintiff a letter dated May 20, 1999, bearing the caption "Re: INTENT TO TERMINATE NOTIFICATION" which stated, "you are hereby notified that, pursuant to policy under which non-represented MaBSTOA employees with one (1) year cumulative absence or greater are covered, your services will be terminated effective July 20, 1999." J.A. at 21. Plaintiff confirms that she received the letter on May 28, 1999. She also received a letter on July 27, 1999 bearing the caption, "NOTICE OF TERMINATION" which was dated July 20,1999. Under TA policy, an employee may be terminated if she is medically unable to work for one or two years, depending on her union status.

Plaintiff attempted to file a "complaint" with the TA's Equal Employment Opportunity Department ("EEO") on October 10, 1999, but in January 2000, she contacted the EEO and stated that "it has come to my attention that an internal complaint may be unnecessary" and that she wanted the EEO to "put [her] internal complaint on `hold[.]'" J.A. at 53. On February 4, 2000, she wrote a letter to the EEOC requesting information regarding the process for filing a complaint with that agency.

Dorothy Crump, an EEOC investigator, responded to plaintiff's request in a letter dated February 10, 2000, stating that the EEOC had not been able to reach plaintiff by phone because she had an unlisted number and informing plaintiff that she was required by law to file a complaint within 300 days of the allegedly discriminatory act. Plaintiff alleges that she made more than twelve calls to Crump, who did not respond. Eventually plaintiff contacted Crump's supervisor, Rosemary Wilkes, and signed an EEOC "Charge of Discrimination" form on May 19, 2000. In a letter dated January 16, 2001, Wilkes explained that plaintiff's February 4, 2000 letter had been received on February 7, 2000, but that "due to an oversight on our part, it was not processed until or about May, 2000 [sic]."

Plaintiff received a "Dismissal and Notice of Rights" letter (a so-called "right-to-sue letter") from the EEOC on July 18, 2000. Eighty-nine days later, on October 18, 2000, plaintiff mailed the complaint in the instant lawsuit to the Clerk's Office. The Eastern District of New York Pro Se Office received the complaint on October 21, 2000, ninety-two days after plaintiff had received the right-to-sue letter. The complaint was officially filed by the Clerk's Office on October 25, 2000, ninety-six days after plaintiff had received the right-to-sue letter. Plaintiff therefore missed the statutory ninety-day filing deadline. See, e.g., United States v. White, 980 F.2d 836, 845 (2d Cir. 1992) (holding that filing requires delivery of papers into the actual custody of the Clerk of the Court); see also Cooper v. City of Ashland, 871 F.2d 104 (9th Cir. 1989) (same); McIntosh v. Antonino, 71 F.3d 29, 36 (1st Cir. 1995) (same); United States v. Doyle, 854 F.2d 771, 773 (5th Cir. 1988) (same); Torras Herreria y Construcciones, S.A. v. M/V Timur Star, 803 F.2d 215, 216 (6th Cir. 1986) ("Filings reaching the clerk's office after a deadline are untimely, even if mailed before the deadline."); Haney v. Mizell Memorial Hospital, 744 F.2d 1467, 1472 (11th Cir. 1984) (same); Fed. R. Civ. P. 5(e) ("The filing of papers with the court as required by these rules shall be made by filing them with the clerk of [the] court . . . .").

In response to defendants' motion to dismiss, plaintiff argued that the 300-day period should be equitably tolled. Plaintiff argued that equitable tolling should apply because of the EEOC's malfeasance in unduly delaying its response to her February 4, 2000 letter, or alternatively, because plaintiff suffers from a mental impairment. She also argued that the ninety-day period for filing a complaint with the District Court should be equitably tolled.

The District Court held that plaintiff's February 4, 2000 letter to the EEOC was not a formal complaint, as required by 42 U.S.C. § 2000e-5(b),⁴ because it was not a sworn statement and...