Frederick v. Jetblue Airways Corporation
ORDER granting 22 Motion to Dismiss for Failure to State a Claim -- For the reasons set forth in the Attached Written Opinion and Order, defendant's motion to dismiss Plaintiff's federal claims is granted and, as the Court declines to e xercise supplemental jurisdiction over Plaintiff's state law claims, those claims are dismissed without prejudice. The Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/31/2016. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ELSA J. FREDERICK,
JETBLUE AIRWAYS CORPORATION,
DORA L. IRIZARRY, U.S. District Judge:
OPINION AND ORDER
Elsa J. Frederick (“Plaintiff”) commenced this action against JetBlue Airways Corporation
(“Defendant” or “JetBlue”) alleging discrimination on the basis of race and age in violation of: (i)
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); (ii) the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”); (iii) “§1981(a) for
Intentional Discrimination in Employment”; (iv) the New York State Human Rights Law
(“NYSHRL”); and (v) the New York City Human Rights Law (“NYCHRL”).
Complaint (“Am. Compl.”) at ¶ 1, Dkt. Entry No. 17. Defendant filed the instant motion to dismiss
the amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure and for failure to state a claim upon which relief may be granted
under Rule 12(b)(6). Memorandum of Law in Support of Defendant’s Motion to Dismiss (“Def.
Mem.”) at 1, Dkt. Entry No. 23.
For the reasons set forth below, Defendant’s motion to dismiss is granted in its entirety.
Plaintiff’s Title VII and ADEA claims are dismissed as untimely, and Plaintiff’s § 1981(a) claim
is dismissed for failure to state a claim. Finally, the Court declines to exercise supplemental
jurisdiction over Plaintiff’s NYSHRL and NYCHRL claims.
Plaintiff’s Employment With Defendant
Plaintiff is an African-American woman of West-Indian origin who was 57 years old at the
time she filed her complaint. Am. Compl. at ¶ 8. In October 2001, Plaintiff began her employment
with Defendant as a customer service agent at Defendant’s John F. Kennedy International Airport
location. Id. at ¶¶ 24-25. In February 2005, Defendant promoted Plaintiff to administrative
supervisor in Defendant’s administrative department. Id. at ¶¶ 25, 27. During the relevant period,
there were five administrative supervisors who worked in the administrative department, including
Plaintiff, who was the only African-American supervisor. Id. at ¶ 27. An individual named Eileen
Faraon (“Faraon”) oversaw Plaintiff and the other four administrative supervisors. Id. at ¶¶ 30,
Sometime in 2012, Faraon instituted a policy that permitted the supervisors to arrive at
work up to 30 minutes late, so long as they made up the time at the end of the workday. Id. at ¶
32. Plaintiff and the other supervisors took advantage of this “grace period” frequently. Id. at ¶
33. Specifically, Plaintiff alleges that another supervisor, Nancy Gamba (“Gamba”), arrived 30
minutes late almost every day. Id. She further claims that supervisor Juan Ruano (“Ruano”)
arrived late “on occasion,” while supervisor Luiz Cruz (“Cruz”) “usually arrived on time,” but
never made up his time on the days he arrived late. Id. at ¶ 34.
On June 17, 2013, Faraon and another JetBlue employee from the human resources
department, Joanne Giuga (“Giuga”), summoned Plaintiff to a meeting to discuss Plaintiff’s
attendance and tardy arrivals. Id. at ¶¶ 43-44. At the meeting, Faraon presented Plaintiff with a
document that catalogued Plaintiff’s arrival times as determined by Plaintiff’s “swipes.” 1 Id. at ¶
Plaintiff does not explain what a “swipe” is or how her “swipes” recorded her arrival times. See generally, Id.
44. Faraon noted that Plaintiff’s “swipes” indicated that she had arrived after her scheduled start
time.2 Id. at ¶ 45. Plaintiff explained that for each late arrival, she had made up the time at the
end of the day, in accordance with the policy. Id. Faraon informed Plaintiff that, “due to the
amount of video Faraon would have to review,” Faraon had not collected the “swipes” indicating
Plaintiff’s departure times.3 Id. at ¶ 49. Faraon and Giuga offered Plaintiff an opportunity to
further review the document listing Plaintiff’s “swipes” and to provide a statement. Id. at ¶ 46.
Plaintiff declined further review of the document, but agreed to provide a statement. Id.
On June 18, 2013, Faraon and another JetBlue employee, Julie Paulino (“Paulino”)
summoned Plaintiff to another meeting at which Faraon suspended Plaintiff without pay pending
a further investigation of her arrival and departure times. Id. at ¶ 50. Faraon told Plaintiff that she
was being suspended for “lying or providing false statements during an investigation,” and
“stealing or misuse of company time.” Id. at ¶ 51. Specifically, Faraon accused Plaintiff of stating
falsely during the June 17, 2013 meeting that Plaintiff had arrived late three times.4 Id. Plaintiff
denies that she made any such statement. Id. On June 28, 2013, Faraon called Plaintiff to notify
her that Defendant had terminated her employment. Id. at ¶ 52.
Plaintiff alleges additional facts that, she claims, suggest an inference of discriminatory
However, based on the context of the amended complaint, the Court gathers that a “swipe” refers to the method by
which JetBlue employees accessed the workplace, presumably by “swiping” an employee identification card. The
Court further infers that the date and time of each “swipe” was electronically recorded, thus indicating the date and
time employees arrived at work.
It is unclear from the Amended Complaint how many times Faraon cited Plaintiff for being late based on her
“swipes” during the June 17, 2013 meeting. Plaintiff suggests that Faraon accused her of three late arrivals, but
Plaintiff does not indicate whether these accusations were based on her “swipes.” Id. at 56. Furthermore, it appears
that Faraon raised these three late arrivals during a different meeting that occurred on June 18, 2013. Id.
Plaintiff does not explain why Faraon would have needed to review “video” to determine Plaintiff’s departure
times, if said times were determined by “swipes.”
Faraon’s accusation that Plaintiff lied about being late three times sheds no light on how many times Plaintiff was
accused of arriving late during the June 17, 2013 meeting. See n.2 above.
intent. For example, Plaintiff states that the other supervisors engaged in similar conduct regarding
the “grace period” policy but were not similarly punished and remained employed by Defendant.
Id. at ¶¶ 47, 53, 62. When Plaintiff advised Faraon that other supervisors had abused the policy,
Faraon purportedly told Plaintiff that she would address the other supervisors at another time. Id.
at ¶¶ 47, 53. Plaintiff states that, prior to June 17, 2013, Fararon never notified Plaintiff of any
tardiness issues. Id. at ¶ 54.
Plaintiff further alleges that, “during meetings” Faraon would discount Plaintiff’s opinions,
but recognize the same opinions when offered by another supervisor. Id. at ¶ 36. Plaintiff also
states that Faraon compared Plaintiff to other female supervisors in a “demeaning and
condescending fashion” and “scrutinized Plaintiff’s performance with greater severity than the
other supervisors….” Id. at ¶¶ 37-38. According to Plaintiff, when she went on vacation for more
than one week, the other supervisors complained to Faraon about the length of Plaintiff’s
vacations. Id. at ¶ 42.
The EEOC Complaint and the Instant Lawsuit
Plaintiff claims that she filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) that she describes as “timely.” Id. at ¶ 6. Plaintiff does not provide the
date she filed her EEOC complaint, nor does she include any information about its contents. See
generally, Id. Plaintiff states that she received a “Notice of Right to Sue” from the EEOC dated
September 12, 2013 (the “September Notice”), but she does not state when she received this
document. Id. at ¶¶ 6-7. Plaintiff attached the September Notice as the sole exhibit to her amended
complaint. See Am. Compl., Ex. A.
The September Notice is titled “Dismissal and Notice of Rights,” and it states, in pertinent
part, that “[b]ased upon its investigation, the EEOC is unable to conclude that the information
obtained establishes violations of the statutes.” Id. It further states that:
This will be the only notice of dismissal and of your right to sue that we will send
you. 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.
Id. (emphasis in original).
The September Notice is addressed to Plaintiff, Plaintiff’s former counsel, Stephen Hans
(“Hans”), and Defendant’s director of employment counsel, Angela Corridan. Id. It states that it
was mailed on September 12, 2014 and contains only one page. Id.
In its motion to dismiss, Defendant asserts Plaintiff received a separate Dismissal and
Notice of Rights letter from the EEOC on or about July 22, 2014 (the “July Notice”). Def. Mem.
at 7. In support of this claim, Defendant’s counsel submitted an affidavit (the “Affidavit”) averring
On or about July 22, 2014, Defendant’s counsel received the July Notice, which is attached
as Exhibit A to the Affidavit. Affidavit at ¶ 5.
On or about April 15, 2015, Defendant’s counsel received copies of EEOC agency records
concerning Plaintiff’s EEOC complaint in response to a Freedom of Information Act
(“FOIA”) request. Id. at ¶ 6.
The EEOC agency records included a letter dated July 18, 2014 from the EEOC to Plaintiff
(the “July 18 Letter”), which is attached as Exhibit B to the Affidavit. Id.
The July Notice is identical to the September Notice, except: (i) the July Notice is undated;
and (ii) the July Notice contains a second page indicating it was mailed to Defendant’s counsel.
July Notice at 1-2. The July 18 Letter informs Plaintiff that her complaint will be dismissed
because the EEOC could not find, based on the evidence submitted, that she was terminated
because of discriminatory animus. July 18 Letter. It further states: “Attached is your Dismissal
and Notice of Rights [the July Notice]. If your client wishes to pursue this matter in federal court,
the lawsuit must be filed within 90 days of your receipt of the Notice.” Id.
The amended complaint does not mention the July Notice at all. See generally, Am. Compl.
However, in her opposition to Defendant’s motion to dismiss, Plaintiff tacitly concedes that she
received the July Notice. See Plaintiff’s Memorandum in Opposition to Defendant’s Motion to
Dismiss (“Pl. Mem.”) at 10, Dkt. Entry No. 26. Plaintiff states that the EEOC “issued” the July
Notice on July 22, 2014, but she gives no indication as to when she received it. Id. The July
Notice is attached as Exhibit C to the Plaintiff’s opposition. Id., Ex. C. Attached as exhibit B to
her opposition is a letter from her former attorney, Hans, dated September 18, 2015 (the “Hans
Letter”), in which Hans informs Plaintiff that she has “three months from the date of the enclosed
[September Notice] to file a lawsuit.” Id., Ex. B. Plaintiff also states in her opposition that Hans
“coordinated with the EEOC to procure” the September Notice. Id. at 10.
On December 11, 2014, Plaintiff filed her original complaint, pro se, which Defendant
moved to dismiss on January 6, 2015. Dkt. Entry Nos. 1, 8. On March 25, 2015, the Court granted
Plaintiff leave to amend her original complaint. Order dated March 25, 2015. On March 30, 2015,
Plaintiff filed the amended complaint with the assistance of counsel, and on April 27, 2015,
Defendant filed the instant motion to dismiss. Dkt. Entry Nos. 17, 22-24.
Legal Standard – Rule 12(b)(6)
Rule 12(b)(6) states that, in lieu of an answer, a defendant may move for dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(B)(6).
To determine whether dismissal pursuant to Rule 12(b)(6) is appropriate, “a court must accept as
true all factual allegations contained in a complaint,” but need not accept “legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For this reason, “threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice” to insulate a claim
against dismissal. Id. Moreover, “to survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “Where the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the complaint . . .
has not shown that the pleader is entitled to relief.” Id. at 679 (internal citations and quotation
Timeliness of Plaintiff’s Title VII and ADEA Claims
Rule 12(b)(6) is the Only Applicable Legal Standard
To pursue a cause of action under Title VII or the ADEA, a plaintiff must file a complaint
within 90 days of receiving a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29
U.S.C. § 626(e); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (“In order to
be timely, a claim under Title VII or the ADEA must be filed within 90 days of the claimant’s
receipt of a right-to-sue letter.”). Defendant argues that Plaintiff’s Title VII and ADEA claims
should be dismissed as untimely because Plaintiff filed her original complaint on December 11,
2014, more than 90 days after she received the July Notice on July 22, 2014. Def. Mem. at 6.
Defendant asserts that the Court may consider its timeliness argument under either Rule 12(b)(1)
or Rule 12(b)(6). Id.
In Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984), the Second
Circuit held that district courts should treat the 90-day rule as a statute of limitations rather than a
jurisdictional prerequisite. Id. (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398
(1982)); see also Richards v. North Shore Long Island, 2011 WL 6102055, at *3 (E.D.N.Y. 2011)
(citing Johnson, 731 F.2d at 146) (“The ninety day time period is not a jurisdictional requirement
for commencement of an action in the district court. Instead, the time limit is in the nature of a
statute of limitations which may be tolled in certain situations.”). A motion to dismiss based on a
statute of limitations defense “is properly treated as a Rule 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted rather than a Rule 12(b)(1) motion to dismiss for
lack of jurisdiction over the subject matter.” Ghartey v. St. John's Queens Hosp., 869 F.2d 160,
162 (2d Cir. 1989) (citing Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir.
1982)); see also Francis v. Blaikie Grp., 372 F. Supp. 2d 741, 743 (S.D.N.Y. 2005) (quoting
Ghartey, 869 F.2d at 162). Accordingly, the Court considers the instant motion to dismiss under
Rule 12(b)(6) only.
Exclusion of Certain Documents and Arguments
Defendant asserts that the Court may consider the Affidavit, as well as the exhibits attached
to the Affidavit, without converting the motion to dismiss into a motion for summary judgment.
Def. Mem. at 6. Plaintiff does not oppose the Court’s consideration of these documents. See
generally, Pl. Mem. In fact, as noted above, Plaintiff attaches the July Notice as an exhibit to her
opposition and refers to the July Notice in her opposition. See Id. at 10; Id., Ex. C.
Rule 12(d) provides that, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” FED. R. CIV. P. 12(b)(d). “As indicated by the word ‘shall,’
the conversion of a Rule 12(b)(6) motion into one for summary judgment under Rule 56 when the
court considers matters outside the pleadings is strictly enforce[d] and mandatory.” Glob. Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) (internal citations and
quotation marks omitted); Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d
192, 202 (2d Cir. 2013) (citing Global, 458 F.3d at 155). The purpose of the conversion
requirement is to ensure that a non-moving party receives notice that a court will consider
extraneous materials. Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[I]t is
for that reason – requiring notice so that the party against whom the motion to dismiss is made
may respond – that Rule 12(b)(6) motions are ordinarily converted into summary judgment
If a district court elects not to convert a 12(b)(6) motion, then as a general rule, its
consideration is limited to “the allegations contained within the four corners of the complaint.”
Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). Consideration of affidavits,
exhibits, or factual assertions contained in legal memoranda is reversible error. Friedl v. City of
New York, 210 F.3d 79, 83 (2d Cir. 2000) (citing Kopec v. Coughlin, 922 F.2d 152, 155 (2d
Cir.1991) (additional citations omitted)). However, the Second Circuit has recognized that district
courts may consider the following materials outside the complaint in deciding a Rule 12(b)(6)
motion: (1) “documents attached to the complaint as an exhibit or incorporated in it by reference”;
(2) “matters of which judicial notice may be taken”; and (3) “documents either in plaintiff[’s]
possession or of which plaintiff had knowledge and relied on in bringing suit.” Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47–48 (2d Cir.1991)).
Here, the parties ask the Court to consider the following materials outside the complaint:
the Affidavit, the July Notice, the July 18 Letter, and the Hans Letter. See Def. Mem at 6; Pl.
Mem. at 10. The Affidavit must be excluded because Friedl flatly prohibits the Court from
considering it without converting the instant motion into one for summary judgment. Friedl, 210
F.3d at 83. Similarly, the Court cannot consider the Hans Letter because, as a represented party,
Plaintiff should have attached it to her amended complaint, not her opposition to the motion to
dismiss. Kpaka v. City Univ. of New York, 2015 WL 4557331, at *1 n.3 (S.D.N.Y. July 28, 2015)
(“Although courts in this Circuit have generally made clear that a plaintiff may not shore up a
deficient complaint through extrinsic documents submitted in opposition to a defendant’s motion
to dismiss, [a] district court deciding a motion to dismiss may consider factual allegations made
by a pro se party in [her] papers opposing the motion.”) (alternations in original) (internal citations
and quotation marks omitted); Holmes v. Fresh Direct, 2015 WL 4885216, at *3 (E.D.N.Y. Aug.
5, 2015) (citing Rosales v. Kikendall, 605 F. App’x 12, 15 (2d Cir.2015) (“[W]here a plaintiff is
proceeding pro se, factual assertions in the plaintiff’s opposition to a motion to dismiss may be
considered and treated as an amendment to the complaint.”).
As for the July Notice and the July 18 Letter, these documents cannot be considered
incorporated into the amended complaint, as Plaintiff never mentioned them in the amended
complaint. See generally, Am. Compl. Similarly, although Plaintiff appears to have been in
possession of these documents, she did not rely on them in bringing the amended complaint. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“[P]laintiff’s reliance on the
terms and effect of a document in drafting the complaint is a necessary prerequisite to the court’s
consideration of the document on a dismissal motion; mere notice or possession is not enough.”)
(emphasis in original). However, courts in this Circuit have routinely taken judicial notice of
EEOC determinations without converting 12(b)(6) motions into summary judgment motions.
Muhammad v. New York City Transit Auth., 450 F. Supp. 2d 198, 204-05 (E.D.N.Y. 2006) (finding
EEOC’s determination of plaintiff’s EEOC charge a matter of “public record, of which this Court
may take judicial notice”); Morris v. David Lerner Associates, 680 F. Supp. 2d 430, 436 (E.D.N.Y.
2010) (quoting Williams v. Thompson, 2004 WL 3178072, at *4 n. 2 (D.Md. June 10, 2004)
(“Courts have recognized that EEOC charges and right-to-sue letters are public documents that
may be considered in a motion to dismiss without converting the action to a motion for summary
judgment.”) (internal quotation marks and additional citations omitted); Sternkopf v. White Plains
Hosp., 2015 WL 5692183, at *4 (S.D.N.Y. Sept. 25, 2015) (citing Daniel v. Long Island Housing
P’ship, Inc., 2009 WL 702209, at *5 n. 4 (E.D.N.Y. Mar. 13, 2009) (finding EEOC right-to-sue
letter subject to judicial notice in deciding 12(b)(6) motion)).
The July Notice and the July 18 Letter are public documents that appear to constitute the
EEOC’s “determination” in this case.
See July Notice (“The EEOC issues the following
determination….”); see also July 18 Letter (notifying Plaintiff of EEOC’s decision to dismiss her
complaint). Moreover, Plaintiff does not dispute the authenticity of the July Notice or the July 18
Letter, nor does she argue that she would be unfairly prejudiced by their consideration without
converting the motion to one for summary judgement. See Sternkopf, 2015 WL 5692183, at *4
(“[B]ecause, Plaintiff does not dispute the authenticity of any of the documents, I will  consider
them.”). Accordingly, the Court takes judicial notice of the July Notice and the July 18 Letter
without converting this motion into one for summary judgement. Having done so, the Court
further takes judicial notice of the fact that the EEOC mailed the July Notice with the July 18
Letter on July 18, 2014. See July 18 Letter (“Attached is your Dismissal and Notice of Rights.”).
Because the law “presume[s] that a plaintiff receives the [right-to-sue] notice three days after it is
mailed,” Plaintiff is deemed to have received the July Notice on July 21, 2014. Rivera v. Emerging
Health Info. Tech., WL 5346097, at *2 (S.D.N.Y. Nov. 7, 2011) (citing Sherlock v. Montefiore
Medical Ctr., 84 F.3d 522, 525 (2d Cir.1996)).
The Merits of Defendant’s Timeliness Argument
In the amended complaint, Plaintiff alleges her lawsuit is timely because she filed her
original complaint within 90 days of receiving the September Notice. Am. Compl. at ¶¶ 6-7.
Defendant argues that Plaintiff’s Title VII and ADEA claims should be dismissed as untimely
because Plaintiff filed her original complaint more than 90 days after she received the July Notice.
Def. Mem. at 6-10. In response, Plaintiff asserts that, under the doctrine of equitable tolling, the
90-day period should run from the date of the September Notice because, (1) the July Notice was
undated and (2) she reasonably relied on her former counsel’s advice that she had three months
from the date of the September Notice to file her lawsuit. Pl. Mem. at 9-12. For the following
reasons, Plaintiff’s equitable tolling argument fails.
The doctrine of equitable tolling “permits courts to extend a statute of limitations on a caseby-case basis to prevent inequity.” Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (citing
Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996) (additional citations omitted). Equitable
tolling applies only in “‘rare and exceptional circumstance[s].’” Martinez v. Superintendent of E.
Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015) (quoting Smith v. McGinnis, 208 F.3d 13, 15 (2d
Cir. 2000) (alteration in original)). To determine whether equitable tolling is available, a court
must decide whether the party attempting to invoke the doctrine “(1) has acted with reasonable
diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances
are so extraordinary that the doctrine should apply.” Zerilli-Edelglass v. New York City Transit
Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (quoting Chapman v. Choicecare Long Island Term
Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002) (quotation marks omitted). “As a unanimous
Supreme Court recently ‘reaffirm[ed],’ ‘the second prong of the equitable tolling test is met only
where the circumstances that caused a litigant’s delay are both extraordinary and beyond its
control.’” Haygood v. ACM Med. Lab., Inc., 2016 WL 944420, at *1 (2d Cir. Mar. 14, 2016)
(summary order)(quoting Menominee Indian Tribe of Wisc. v. United States, 136 S.Ct. 750, 756
(2016)(emphasis in original). The party seeking to extend the limitations period bears the burden
of proving that tolling is appropriate. Chapman, 288 F.3d at 512 (citing Boos v. Runyon, 201 F.3d
178, 185 (2d Cir.2000)).
As a threshold matter, the Court may not consider Plaintiff’s argument that she relied on
the advice of her former attorney. For the reasons discussed above, the Hans letter is excluded
from the Court’s consideration, as are any factual assertions in Plaintiff’s opposition that are based
on the Hans Letter. Thus, Plaintiff may only rely on the lack of a mailing date in the July Notice
and her receipt of the September Notice to demonstrate that she is entitled to equitable tolling.
Plaintiff asserts that the lack of mailing date in the July Notice rendered it ambiguous,
causing her to reasonably misunderstand when the 90-day deadline expired. Pl. Mem. at 11. This
argument strains credulity given the content and formatting of the July Notice, which informed
Plaintiff in no uncertain terms that her “lawsuit must be filed with 90 days of  receipt of this
notice. . . .” July Notice at 1 (emphasis added); see also Rivera v. Emerging Health Info. Tech.,
2011 WL 5346097, at *2 (S.D.N.Y. Nov. 7, 2011) (“The triggering event for the ninety days is the
receipt of the EEOC notice by the plaintiff, not the issuance of it by the EEOC”). Accordingly,
because the mailing date was unnecessary, its absence from the July Notice could not have
rendered the July Notice ambiguous.5
Neither can Plaintiff’s reliance on the September Notice ultimately save Plaintiff’s
untimely claims. In this Circuit, whether a plaintiff is entitled to equitable tolling because she
received successive right-to-sue letters from the EEOC depends on the specific facts of the case.
Even if the mailing date was relevant, the July Notice was enclosed with the July 18 Letter, which was dated July
18, 2014. Thus, Plaintiff did know the mailing date despite its absence from the July Notice.
Brown v. JPMorgan Chase Bank, N.A., 2013 WL 4009795, at *6 (E.D.N.Y. Aug. 5, 2013) (“The
timeliness of an employment discrimination lawsuit is not necessarily determined by the date of
the first notice of right to sue.”). For example, where a plaintiff deliberately procures the second
right-to-sue notice for the sole purpose of avoiding the statute of limitations, the lawsuit will be
barred as untimely. See Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986) (per
curiam). On the other hand, courts have equitably tolled the 90-day deadline where a plaintiff was
understandably confused by successive EEOC right-to-sue letters. See e.g., Brown, 2013 WL
4009795, at *6. This often occurs where the plaintiff has simultaneously filed an identical
complaint with the EEOC and the New York State Division of Human Rights (“NYSDHR”). Id.
(finding equitable tolling appropriate because of “the reasonable confusion caused by the EEOC
and NYSDHR dual filing and review process”); Ghosh v. New York City Dep’t of Health, 413 F.
Supp. 2d 322, 330 (S.D.N.Y. 2006) (holding that plaintiff was entitled to equitable tolling where
“he was, understandably, confused by the dual processing of his case by both agencies”). But see
Haygood, 2016 WL 944420, at *1 (finding that the “district court did not abuse its discretion in
determining that [the plaintiff] had not met the ‘extraordinary’ burden to invoke equitable tolling”
in a case with facts substantially similar to those of Brown and Ghosh).
Here, there is no indication that Plaintiff deliberately sought to avoid the deadline by
procuring the September Notice. However, the fact that Plaintiff did not engage it the type of
“chicanery” found is Lo is insufficient to meet the requirements for equitable tolling. Reyes v. N.
Shore Long Island Jewish Health Sys., 2002 WL 31180961, at *2 (E.D.N.Y. Oct. 2, 2002) (citing
Lo, 787 F.2d at 828)). Unlike Brown and Ghosh, Plaintiff offers no justification, much less a
reasonable one, for why the statutory period should run from the date of the second EEOC rightto-sue letter. She simply states that she “received the [September Notice] and commenced the
instant action within the statutory ninety (90) day period,” without further explanation. Such ipse
dixit does not demonstrate that Plaintiff encountered the type of “rare and exceptional
circumstances” that warrant equitable tolling. Martinez, 806 F.3d at 31.
Of course, the foregoing analysis excludes Plaintiff’s claim that she relied on the advice of
her former attorney regarding the September Notice. However, even if the Court considered this
argument, it would be insufficient to establish that Plaintiff is entitled to equitable tolling. In
Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court reaffirmed the principle “that a garden
variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a
filing deadline, does not warrant equitable tolling.” (internal citations and quotation marks
omitted). Id. at 651-52. Holland further explained, in dicta, that a lawyer’s failure to file a claim
on time, or ignorance of the date on which the limitations period expired, “might suggest simple
negligence.” Id. at 652. On the other hand, a persistent failure to communicate with a client
concerning significant matters could permit a finding of extraordinary circumstances. Id. at 65253.
The case law of the Second Circuit has been consistent with this approach. See Baldayaque
v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (“[A]ttorney error normally will not constitute
 extraordinary circumstances … [but] at some point, an attorney’s behavior may be so outrageous
or so incompetent as to render it extraordinary.”) (emphasis in original). For example, the Circuit
has found extraordinary circumstances lacking in cases where an attorney has simply
misunderstood the statute of limitations under the Anti-Terrorism and Effective Death Penalty Act.
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001); Geraci v. Senkowski, 211 F.3d 6, 9 (2d
Cir. 2000); Baldayaque, 338 F.3d at 152 (describing the errors committed by the attorneys in
Smaldone and Geraci as “simple” and “ordinary”). Similarly, in Keyse v. California Texas Oil
Corp., 590 F.2d 45, 47 (2d Cir. 1978) (per curiam), the court declined to equitably toll the Title
VII limitations period where a plaintiff alleged that she was misadvised by her counsel. 6 However,
in Baldayaque, equitable tolling was appropriate where a lawyer ignored specific instructions to
file a petition under 28 U.S.C. § 2255, conducted no legal research, and never spoke to or met with
his client. Baldayaque, 338 F.3d at 152; see also Dillon v. Conway, 642 F.3d 358, 364 (2d Cir.
2011) (finding extraordinary circumstances where an attorney “affirmatively and knowingly”
misled a client by not filing a §2255 petition before the statutory deadline expired despite
numerous assurances that the petition would be filed timely).
Here, according to Plaintiff, her former attorney, Hans, procured the September Notice
from the EEOC, presumably based on the mistaken belief that a mailing date was required to
determine the statutory deadline. Hans then erroneously advised Plaintiff that she had three
months from the date of the September Notice to file her lawsuit in federal court. Although
certainly deleterious to Plaintiff’s claims, this conduct cannot be reasonably compared to the type
of outrageous or extreme conduct that necessitated equitable tolling in Baldayaque or Dillon.
Hans’ errors are nothing more than “simple” or “ordinary” misunderstandings of law that do not
amount to extraordinary circumstances.
Accordingly, Plaintiff’s claims under Title VII and the ADEA are dismissed as untimely,
Plaintiff’s “§ 1981(a)” Claim
In the third count of the amended complaint (“Count Three”), Plaintiff alleges that
Defendant violated “§ 1981(a) for Intentional Discrimination in Employment.” Am. Compl. at 17.
Plaintiff’s citation to “§ 1981(a)” is confusing, because it is not clear whether she is referring to
The precedential weight of Keyse is limited, as it was decided before the equitable tolling standard discussed above
had been fully developed.
42 U.S.C. § 1981, subsection (a), i.e. § 1981(a), or 42 U.S.C. § 1981a. Plaintiff’s inclusion of
parenthesis around the “a” indicates that she intended to refer to § 1981(a). However, the language
of the amended complaint, particularly Count Three, is lifted verbatim from the text of § 1981a.
For example, on the first page of the amended complaint, Plaintiff alleges that Defendant violated
“§ 1981(a) for Intentional Discrimination in Employment….” Am. Compl. at ¶ 1. Similarly,
Count Three is titled: “Violation of  § 1981(a) for Intentional Discrimination in Employment.”
Id. at 17. This language mirrors that of § 1981a, which is titled: “Damages in cases of intentional
discrimination in employment.” 7 42. U.S.C. § 1981a. Furthermore, under Count Three, Plaintiff
complains that Defendant “engaged in unlawful intentional discrimination prohibited under
section 703, 704, or 717 of the Act [42 U.S.C. 2000e-2, 2000e-3, 2000e-16].” Am. Compl. at ¶
78. Again, this language matches precisely the text of § 1981a, which allows a plaintiff to recover
damages in an action “against a respondent who engaged in unlawful intentional discrimination
… prohibited under section 703, 704, or 717 of the Act [42 U.S.C.A. §§ 2000e-2, 2000e-3, or
2000e-16] ….” 42 U.S.C. § 1981a(a)(1).
Finally, § 1981a permits a plaintiff to recover
compensatory and punitive damages, and Plaintiff seeks compensatory and punitive damages in
Count Three. See Id.; see also Pl Mem. at ¶ 80.
The distinction between § 1981(a) and § 1981a is critical. § 1981 provides a substantive
cause of action that is analyzed under the same standard as claims under Title VII. McLee v.
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citations omitted) (“In order to establish a prima
facie case of discriminatory discharge in violation of Title VII or § 1981, a plaintiff must show (1)
that he belongs to a protected class, (2) that he was performing his duties satisfactorily, (3) that he
was discharged, and (4) that his discharge occurred in circumstances giving rise to an inference of
By contrast, § 1981 is titled: “Equal rights under the law.”
discrimination on the basis of his membership in that class.”); Timothy v. Our Lady of Mercy Med.
Ctr., 2005 WL 3312054, at *4 (S.D.N.Y. Dec. 6, 2005) (“42 U.S.C. § 1981 claims are subject to
the same burden shifting analysis as Title VII claims.”). On the other hand, § 1981a “provides for
no independent cause of action, but merely expands the remedies available to successful litigants
filing claims pursuant to Title VII of the Civil Rights Act of 1964….” Keady v. Nike, Inc., 116 F.
Supp. 2d 428, 436 (S.D.N.Y. 2000) vacated on other grounds, 23 F. App’x 29 (2d Cir. 2001)
(additional citations omitted); Varner v. Illinois State Univ., 150 F.3d 706, 718 (7th Cir.1998)
(“The plain language of 1981a shows that Congress intended to create an additional remedy for
Title VII violations, as opposed to a separate cause of action.”); Bakhit v. Safety Markings, Inc.,
33 F. Supp. 3d 99, 106 (D. Conn. 2014) (dismissing counts “based on section 1981a, … because
the plaintiffs did not bring Title VII claims, and section 1981a only provides additional remedies
to Title VII claimants….”). Thus, if Plaintiff alleged Count Three under § 1981a, it must be
dismissed, because the Court dismissed her Title VII claim as untimely, and § 1981a does not
provide an independent cause of action.
Based on its motion to dismiss, Defendant clearly believed that Plaintiff sought relief under
§ 1981(a), rather than § 1981a. See Def. Mem. at 10 (citing 42 U.S.C. § 1981); Id. at 11 (citing
Timothy, 2005 WL 3312054, at *4). While it was not unreasonable for Defendant to adopt this
view of the amended complaint, the Court does not share it. First, Plaintiff quotes directly and
extensively from the text of § 1981a, which strongly suggests that she intended to employ that
statute, not § 1981(a). Second, Plaintiff seeks compensatory and punitive damages, which are
available under § 1981a based on liability under Title VII, but are not available under § 1981. If
Plaintiff had succeeded on the merits of her Title VII claim, she would have been entitled to benefit
from the damages provision of § 1981a. However, the fact that her Title VII claim was dismissed
does not permit the parties, or the Court, to reinterpret Count Three as arising under a different
Finally, even if Plaintiff intended to bring a substantive claim under § 1981(a), but
mistakenly quoted § 1981a, dismissal still would be appropriate. Significantly, Plaintiff was not
proceeding pro se when she filed the amended complaint.
See McInerney v. Rensselaer
Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007) (citing Bertin v. United States, 478 F.3d 489,
491 (2d Cir.2007) (“The need to draw all inferences in the plaintiff’s favor has heightened
application when the plaintiff is proceeding pro se.”)). If Plaintiff’s counsel intended to bring a
substantive claim of racial discrimination under Count Three, his extensive quotation from § 1981a
was in serious error. See Bloomfield v. Banco Bilbao Vizcaya S.A., 1995 WL 49269, at *1
(S.D.N.Y. Feb. 8, 1995) (sanctioning plaintiff’s counsel $1000 for, among other things, moving to
amend a complaint to assert a separate cause of action under § 1981a).
Accordingly, Count Three is dismissed, with prejudice.
Plaintiff’s NYSHRL and NYCHRL Claims
Under 28 U.S.C. § 1367(c)(3), “a district court ‘may decline to exercise supplemental
jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction.’” Kolari v. New
York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)). A
district court’s discretion is guided by “balanc[ing] the traditional ‘values of judicial economy,
convenience, fairness, and comity.’” Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988)). “[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors … will point toward declining to exercise jurisdiction over the remaining statelaw claims.” Cohill, 484 U.S. at 350 n.7.
Considering the above factors, there is no justifiable reason for the Court to exercise
supplemental jurisdiction over Plaintiff’s remaining state and city law claims, which are dismissed
For the foregoing reasons, Plaintiff’s Title VII and ADEA claims are dismissed as untimely. Plaintiff’s § 1981(a) claim also is dismissed for failure to state a claim, and the Court
declines to exercise supplemental jurisdiction over Plaintiff’s NYSHRL and NYCHRL claims.
Dated: Brooklyn, New York
March 31, 2016
DORA L. IRIZARRY
United States District Judge
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