CHANDLER v. DEX MEDIA
OPINION. Signed by Judge Noel L. Hillman on 8/17/2016. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
formerly known as
936 RUTH WAY
DOVER, DE 19904
Appearing pro se
THERESA DONAHUE EGLER
OGLETREE DEAKINS NASH SMOAK & STEWART PC
10 MADISON AVENUE
MORRISTOWN, NJ 07960
On behalf of defendant
HILLMAN, District Judge
This is an employment discrimination case alleging
violations of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
previously dismissed plaintiff’s claims because they were timebarred.
(Docket No. 17, 18, 21.)
Because plaintiff was
proceeding pro se, the Court granted her leave, pursuant to
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482
F.3d 247, 251 (3d Cir. 2007), to file an amended complaint. 1
Plaintiff filed an amended complaint, and defendants have moved
again to dismiss plaintiff’s claims.
The Court finds that plaintiff’s amended complaint has not
cured the deficiencies of her original complaint.
As found in
the Court’s prior Opinion, Docket No. 17, plaintiff filed her
charge with the EEOC on April 23, 2014, and she received a rightto-sue letter on January 5, 2015.
Even though plaintiff filed
her complaint within 90 days of the right-to-sue letter, the
alleged discriminatory acts occurred on or before May 12, 2012,
which is beyond the 300-day time period.
that plaintiff’s claims were time-barred.
Thus, the Court found
None of the
allegations in plaintiff’s amended complaint change this outcome.
Moreover, it appears that any new allegations in her amended
complaint that concern ADA violations fail because plaintiff has
not exhausted her administrative remedies.
See Itiowe v. NBC
Universal Inc., 556 F. App'x 126, 128 (3d Cir. 2014) (citing
Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir. 1999))
(“A claim that one has suffered disability discrimination in the
employment context may be brought pursuant to the ADA, but the
The Court reminded plaintiff in the two prior Opinions that she
“must be mindful that she should file an amended complaint only
if she can do so consistent with Federal Civil Procedure Rule
ADA requires that a plaintiff pursue administrative remedies with
the Equal Employment Opportunity Commission before filing a
complaint in federal court.”).
In opposition to defendant’s motion to dismiss, plaintiff
argues that the equitable tolling doctrine should permit her EEOC
claim to be considered timely.
Equitable tolling is appropriate
in Title VII cases where “the defendant has actively misled the
plaintiff; when the plaintiff ‘in some extraordinary way’ was
prevented from asserting her rights; or when the plaintiff timely
asserted her rights in the wrong forum.”
Dicroce v. Norton, 218
F. App'x 171, 173 (3d Cir. 2007) (quoting Seitzinger v. Reading
Hosp. and Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) (internal
District courts are to apply equitable
To support her equitable tolling argument, plaintiff
contends that she made three phone calls to the EEOC but her
calls were never returned.
As a result of the EEOC’s delay,
plaintiff claims that her rights were prejudiced.
The Court does not find several unreturned phone calls to
the EEOC sufficient to demonstrate that the EEOC mislead her.
Further, the circumstances surrounding her efforts to contact the
EEOC do not show that she was prevented in an extraordinary way
from asserting her rights.
Nor has Plaintiff alleged any facts
to suggest she asserted her claims in the wrong forum at the
In short, plaintiff has not demonstrated that the
rarely implicated equitable tolling doctrine should be applied
See, e.g., Jackson v. Homechoice, Inc., 368 F.3d 997, 999
(8th Cir. 2004) (plaintiff was not entitled to equitable tolling
despite having made “numerous calls to the EEOC and was always
told his file was unavailable and the EEOC would get back to him”
because the plaintiff did not show any “misconduct by the EEOC
that warrants equitable tolling”); Robinson v. Dalton, 107 F.3d
1018, 1023 (3d Cir. 1997) (“[W]e hold that one phone conversation
with an EEO counselor does not rise to the level of being
prevented in an ‘extraordinary way’ by the EEOC from asserting
his rights.”); Podobnik v. U.S. Postal Serv., 409 F.3d 584, 592
(3d Cir. 2005) (“[A]ny errant advice Appellant may have received
from an EEOC employee did not rise to the level of an
‘extraordinary’ circumstance justifying tolling of the
limitations period.”); Cross v. New Jersey, Div. of Criminal
Justice, 2012 WL 253181, at *4 (D.N.J. Jan. 26, 2012) (finding
that the “plaintiff's vague allegations that she made repeated
inquiries as to the status of her EEO complaint do not support a
plausible inference that she is entitled to the benefit of
equitable tolling of her Title VII claim . . . and nothing about
her inquiries regarding the internal investigation should have
prevented her from actively pursuing her claim in a timely
Consequently, for the foregoing reasons, and the reasons
expressed in the Court’s prior two Opinions, plaintiff’s amended
complaint must be dismissed.
An appropriate Order will be
Date: August 17, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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