Demperio v. TSA Stores, Inc.

Filing 18

MEMORANDUM-DECISION and ORDER - That TSA's 12 Motion to Dismiss for Failure to State a Claim is GRANTED and all claims against it are DISMISSED. Signed by Chief Judge Gary L. Sharpe on 4/26/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DEREK DEMPERIO,
Plaintiff,

5:12-cv-40
(GLS/ATB)

v.
TSA STORES, INC., d/b/a
The Sports Authority,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Derek Demperio
Pro Se
5121 Corporal Welch Road
Syracuse, NY 13215
FOR THE DEFENDANT:
Jackson, Lewis Law Firm
One North Broadway
Suite 1502
White Plains, NY 10601

MARY A. SMITH, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Derek Demperio commenced this action against
defendant TSA Stores, Inc., d/b/a The Sports Authority, alleging violations

of the Americans with Disabilities Act,1 Title VII,2 the Fourteenth
Amendment and common-law negligence and breach of contract. (See
Compl., Dkt. No. 1.) Pending is TSA’s motion to dismiss. (See Dkt. No.
12.) For the reasons that follow, the motion is granted.
II. Background3
Demperio filed a verified complaint with the New York State Division
of Human Rights (NYSDHR) against Sports Authority on September 14,
2009. (See Compl. at 10.) After investigating his claims, the NYSDHR
found that no probable cause existed that Sports Authority engaged in
discriminatory practices. (See Dkt. No. 12, Attach. 6.4) This finding was
adopted by the United States Equal Employment Opportunity Commission
(EEOC) in its notification of the right-to-sue dated October 3, 2011. (See
1

See 42 U.S.C. § 12101 et seq.

2

See 42 U.S.C. § 2000e et seq.

3

Unless otherwise noted, the allegations relevant to adjudicating the instant motion
are drawn from Demperio’s Complaint and presented in a light most favorable to him. For a
full recitation of the facts, the court refers the parties to Demperio’s Complaint and the exhibits
attached to TSA’s motion, which discuss the New York State Division of Human Rights
investigation. (See Compl. at 4-14; Dkt. No. 12, Attachs. 3-8.)
4

Though not attached to the Complaint, the court may still consider NYSDHR’s
records in the context of a motion under Fed. R. Civ. P. 12(b)(6) where, as here, the records
are “integral to the complaint.” Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69,
72 (2d Cir. 1995) (internal quotation marks and citation omitted); accord Rothman v. Gregor,
220 F.3d 81, 88 (2d Cir. 2000) (deeming “a complaint to include any written instrument
attached to it as an exhibit or any statements or documents incorporated in it by reference”).

2

Compl. at 17.) On January 9, 2012, Demperio commenced this action
alleging causes of action under both federal and state law, and seeking
injunctive relief and compensatory damages. (See Compl. at 1, 11-15.)

III. Standard of Review
The standard of review under Fed. R. Civ. P. 12 is well established
and will not be repeated here.5 For a full discussion of the standard, the
court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP,
701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
TSA argues that Demperio’s Complaint should be dismissed
because, inter alia, his ADA and Title VII claims are untimely, and his
Fourteenth Amendment claim fails as a matter of law. (See Dkt. No. 11 at
6-11.) Demperio offers no opposition to TSA’s argument with respect to
his Fourteenth Amendment claim,6 but counters that his Complaint was

5

Because Demperio is proceeding pro se, the court will construe his Complaint
liberally. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
6

Because the Equal Protection Clause of the Fourteenth Amendment applies only to
actions by state actors, Demperio’s due process claim against TSA, a private employer, is
dismissed. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009); see also
United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFLCIO, 941 F.2d 1292, 1295-96 (2d Cir. 1991) (stating “a litigant claiming that his constitutional

3

timely. (See Dkt. No. 15.) The court agrees with TSA.
To be timely, claims under the ADA or Title VII must be filed within
ninety days of the “claimant’s receipt of a right-to-sue letter from the
EEOC.” Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35,
37 (2d Cir. 2011) (citing 42 U.S.C. § 2000e-5(f)(1) (discussing the
timeliness of a Title VII action); 42 U.S.C. § 12117(a) (stating that the Title
VII limitations period is also applicable to claims under the ADA)). Absent
proof to the contrary, it is presumed that a right-to-sue letter is mailed on
the date shown on the notice, and “received three days after its mailing.”
Id.; see Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)
(“If a claimant presents sworn testimony or other admissible evidence from
which it could reasonably be inferred either that the notice was mailed later
than its typewritten date or that it took longer than three days to reach [him]
by mail, the initial presumption is not dispositive.”).
Here, the right-to-sue letter was presumptively mailed on October 3,
2011, the date shown on the notice, and received three days later, on
October 6, 2011. (See Compl. at 17); Tiberio, 664 F.3d at 37.

rights have been violated must first establish that the challenged conduct constitutes state
action . . . . [T]he party charged with the [conduct] must be a person who may fairly be said to
be a state actor”) (internal quotation marks and citations omitted).

4

Consequently, the limitations period on Demperio’s ADA and Title VII
claims expired on January 4, 2012, see 42 U.S.C. §§ 2000e-5(f)(1),
12117(a), five days before he filed his Complaint, (see Compl. at 1). While
the mailing and receiving presumptions are not always dispositive, see
Sherlock, 84 F.3d at 526, they are in this case, as Demperio failed to offer
evidence to rebut them.
In order to avoid dismissal, Demperio avers that he did not physically
receive the right-to-sue letter until Sunday October 16, 2011. (See Dkt.
No. 15 ¶ 7.) This was so because his mailing address was different from
his actual residence, and when he checked his mail “mid-week of the week
ending Saturday October 8, 2011[,] the EEOC letter was not included in
the mail [he] picked up that day.” (Id. ¶¶ 6-7.) Based on his interpretation
of the letter, Demperio concluded that he had until January 14, 2012 to file
his suit. (See id. ¶ 8.) However, Demperio’s response discusses only his
knowledge; it is devoid of any evidence from which the court could infer
“either that the notice was mailed later than its typewritten date or that it
took longer than three days to reach [him] by mail.”7 Sherlock, 84 F.3d at

7

Notably, Demperio neither argues for equitable tolling, nor offers a sufficient
justification to warrant it. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151-52 (1984).

5

526. Although Demperio is a pro se litigant, (see Dkt. No. 15 ¶¶ 10-11),
strict adherence to procedural requirements ensures an “evenhanded
administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980). As such, Demperio’s failure to comply with the statute of
limitations, and inability to offer evidence to rebut the three-day receipt
presumption, are fatal to his ADA and Title VII claims.8
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that TSA’s motions to dismiss (Dkt. No. 12) is GRANTED
and all claims against it are DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
April 26, 2012
Albany, New York

8

In light of the court’s decision with respect to Demperio’s federal causes of action, his
remaining claims, which are based solely on New York State law, are dismissed as an
exercise of supplemental jurisdiction is inappropriate in this case. See 28 U.S.C. § 1367(c).

6