Carmichael v. Morrison Management Specialists et al

Filing 22

-CLERK TO FOLLOW UP- ORDER granting the defendants' converted motions for summary judgment with respect to plaintiff's ADA claims. Because all federal-question claims are eliminated, the Court declines to exercise supplemental jurisdiction over plaintiff's NYSHRL claims. The Clerk of Court shall enter judgment for defendants accordingly and will close the case. Signed by Hon. Richard J. Arcara on 3/26/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARRYL L. CARMICHAEL
Plaintiff,
v.

DECISION AND ORDER
13-CV-00692-A

MORRISON MANAGEMENT
SPECIALISTS and ERIE COUNTY
MEDICAL CENTER
Defendants.

This disability-discrimination case is brought by the plaintiff, Darryl L.
Carmichael, against the defendants, Morrison Management Specialists
(“Morrison”), and Erie County Medical Center (“ECMC”), under the Americans
with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA") and New York
State Human Rights Law, N.Y. Exec. Law §§ 290-297 (“NYSHRL”). Plaintiff
Carmichael alleges he was asked impermissible medical questions, and that he
was discharged from employment based upon a disability.
Defendants Morrison and ECMC filed motions pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure to dismiss plaintiff Carmichael’s ADA claims
on statute of limitations grounds. The Court entered an Order pursuant to Rules
12(d) and 56(f)(3), Dkt. No. 16, converting the motions to dismiss to motions for
summary judgment. The action is now before the Court to determine whether
material issues of fact preclude entry of judgment in favor of defendants on their

statute of limitations defenses to plaintiff’s ADA claims. For the reasons that
follow, the Court enters summary judgment against plaintiff on his ADA claims,
and declines to exercise supplemental jurisdiction over his NYSHRL claim.
BACKGROUND
In April of 2010, plaintiff Carmichael filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) claiming defendants
Morrison and ECMC violated the ADA and NYSHRL. He alleged defendants
subjected him to impermissible medical questions (the “First Charge”), and
discharged him because of a disability after six hours of employment (the
“Second Charge”). Dkt. No. 1.
On May 11, 2011, the EEOC mailed plaintiff Carmichael a letter captioned
as a Final Determination (the “EEOC Letter”) dismissing the Second Charge that
alleged his wrongful discharge, and informing plaintiff of a 90-day deadline to
bring suit. Dkt. No. 1, pp. 8-10. The EEOC referred the First Charge to the
Department of Justice (“DOJ”). Dkt. No. 1, p. 17.
On April 30, 2011, DOJ mailed plaintiff a letter with the heading “NOTICE
OF RIGHT TO SUE WITHIN 90 DAYS,” declining to pursue the First Charge
alleging impermissible questions (the "DOJ Letter"), and informing plaintiff of a
90-day window to bring suit. Dkt. No. 1, p. 17. However, the DOJ Letter was
returned unopened by plaintiff, and “unclaimed.” Dkt. No. 1, p. 26.

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On February 5, 2013, plaintiff Carmichael obtained copies of
documentation relating to both the EEOC Letter and the DOJ Letter from his
former employer and delivered copies of that documentation to his attorney. Dkt.
No. 1, p. 14; Dkt. No. 18, ¶ 3. That documentation included detailed and
accurate references to the DOJ Letter. Dkt. No. 1, p. 14; Dkt. No. 18, ¶ 3; Dkt.
No. 18-1, p. 1. Plaintiff’s attorney wrote plaintiff a letter dated the same date, and
described to plaintiff the substance of the EEOC Letter and the DOJ Letter (the
“Attorney Letter”). Dkt. No. 1, p. 14. The Attorney Letter advised plaintiff that his
90-day deadline to file suit would have expired, if plaintiff received the DOJ Letter
when it was mailed to his residence.
Plaintiff Carmichael filed the Complaint in this action pro se, on July 1,
2013, 145 days after the date of the Attorney Letter. See Dkt. No. 1. When
defendants Morrison and ECMC responded to the Complaint by filing motions to
dismiss plaintiff’s ADA claims, Dkt. Nos. 12, 13, plaintiff’s attorney appeared on
plaintiff’s behalf to respond. Dkt. No. 18-1.
DISCUSSION
The Summary Judgment Standard. Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see Fed. R. Civ. P. 56(c). While the right to trial by jury is a
cherished right, summary judgment:
. . . is properly regarded not as a disfavored procedural
shortcut, but rather . . . must be construed with due regard
not only for the rights of persons asserting claims and
defenses that are adequately based in fact to have those
claims and defenses tried to a jury, but also for the rights
of persons opposing such claims and defenses to
demonstrate . . . , prior to trial, that the claims and
defenses have no factual basis.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A dispute regarding a
material fact is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Once the moving party has met its burden of
“demonstrating the absence of a genuine issue of material fact, the nonmoving
party must come forward with enough evidence to support a jury verdict in its
favor, and the motion will not be defeated merely upon a metaphysical doubt
concerning the facts, or on the basis of conjecture or surmise.” Bryant v. Maffuci,
923 F.2d 979, 982 (2d Cir. 1991) (quotations and internal citations omitted).
The ADA Claims Process. A disability-discrimination claimant must
exhaust administrative remedies with the EEOC before filing ADA claims in
district court. See 42 U.S.C. § 2000e-5(e),(f); D'Lima v. Cuba Mem'l Hosp., Inc.,
833 F. Supp. 2d 383, 388 (W.D.N.Y. 2011). The administrative process begins
when the claimant files a charge of discrimination with the EEOC. 42 U.S.C. §

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2000e-5(b). The EEOC investigates the charges. 42 U.S.C. § 2000e-5(b). If the
charges do not have merit, the EEOC may dismiss them and give the claimant
notice of a 90-day deadline to sue in district court. See id. § 2000e-5(f). If the
charges have merit, the EEOC will attempt to reach a conciliation agreement with
the respondent. Id. If conciliation fails, the EEOC may sue on the claimant’s
behalf, or decline to do so and issue the notice of right to sue. Id.; 29 C.F.R. §
1601.28(b)(1).
The EEOC must refer all claims that have not been dismissed to the
Attorney General if the respondent is a “government, government agency, or
political subdivision.” 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(d). The
Attorney General will consider whether to sue on the claimant’s behalf. 42 U.S.C.
§ 2000e-5(f)(1). If the Attorney General decides not to sue, it is the Attorney
General’s responsibility to notify the claimant of the 90-day deadline to sue in
district court. 29 C.F.R. § 1601.28(d).
The notice of the right to sue, whether issued by the EEOC or the DOJ (on
behalf of the Attorney General), almost invariably takes the form of a right to sue
letter. See, e.g., Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d
35, 36 (2d Cir. 2011); Coffey v. Donahoe, No.12-CV-138-A, 2013 WL 3244788,
*1 (W.D.N.Y. June 26, 2013). The notice must include: (1) authorization to the
claimant “to bring a civil action under title VII, the ADA, or GINA”; (2) advice to
the claimant on instituting the civil action, where appropriate; (3) “[a] copy of the
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charge”; and (4) “[t]he Commision’s decision, determination, or dismissal, as
appropriate.” 29 C.F.R. § 1601.28(e).
The 90-Day Statute of Limitations. A claimant must file an ADA lawsuit
within 90 days of his or his attorney’s receipt of the right to sue letter. 42 U.S.C.
§§ 2000e-5(f)(1), 12117(a) (2012); Tiberio, 664 F.3d at 38 (2d Cir. 2011). “The
90-day period is strictly enforced and cannot be extended by even one day.”
Hughes v. Elmira Coll., 584 F. Supp. 2d 588, 589 (W.D.N.Y. 2008) (internal
citations and quotations omitted). Equitable tolling of the 90-day statute of
limitations is only available in “rare and exceptional circumstances”. See Coffey,
2013 WL 3244788, at *5.
If a claimant does not receive a right to sue letter, the 90-day period begins
when the claimant receives actual notice that the administrative complaint was
dismissed. See Loftin v. New York State Dep't of Mental Health, 80 F. App'x 717,
718 (2d Cir. 2003); Hilton v. Bedford Paving, LLC, No. 08-CV-6552 CJS, 2011
WL 3957269, at *9 (W.D.N.Y. Sept. 7, 2011). Actual notice may be verbal or
written. See Williams v. Chertoff, No. 06-CV-3847 (NGG)(LB), 2008 WL
2001897, at *5 (E.D.N.Y. May 8, 2008) (verbal notice); Beggan v. New York
Times, No. 91 Civ. 8343 (LJF), 1992 WL 111090, at *1 (S.D.N.Y. May 6, 1992)
(verbal notice); see also Loftin, 80 F. App’x at 718 (written notice).
The EEOC Letter and the DOJ Letter. Plaintiff’s original charges with the
EEOC stated: “Respondent subjected me to impermissible medical questions
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prohibited by The Americans with Disabilities Act, as amended. I believe that I
was discharged because of my disability in willful violation of The Americans with
Disabilities Act, as amended.” Dkt. No. 1, at p. 7. Apparently, the EEOC
construed this as alleging two charges, the First Charge relating to impermissible
medical questions, and the Second Charge relating to the employment discharge.
Dkt. No. 1, p. 7, pp. 8-26. However, the EEOC only assigned one “charge
number” to the allegations. Dkt. No. 1, p. 7 (charge number of 525-2010-00460).
On May 11, 2012, the EEOC sent plaintiff a letter — the EEOC Letter—
appearing to dismiss the Second Charge and notifying plaintiff of a 90-day time
limit to bring suit. Dkt. No. 1 at p. 9. However, the EEOC Letter also stated that
there was merit to the First Charge, and “invit[ed] Respondents to join with it in
an effort toward a just resolution of this matter.” Dkt. No. 1, at p. 9. It may have
been confusing whether the EEOC dismissed one, both, or none of the plaintiff’s
claims.
Defendant Morrison Management Specialists asserts that the EEOC Letter
was a right to sue notice. See Dkt. No. 21, at p. 4. However, plaintiff’s counsel
was confused as to whether the EEOC Letter was actually a notice of the right to
sue. See Dkt. No. 1, at 20 (“It is my understanding that this is not a Right to Sue
Letter that I have traditionally seen with respect to EEOC.”). Not only did the
EEOC Letter inexplicably bifurcate the Plaintiff’s claims, it did not conform to the
requirements of 29 C.F.R. § 1601.28(e). It did not authorize the claimant to bring
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an action under the ADA, but merely stated “Charging Party may only pursue the
issue dismissed at this time by filing suit . . . within 90 days.” Dkt. No. 1, at 9.
Moreover, it did not offer plaintiff advice on bringing the action, nor did it include a
copy of the charge. Dkt. No. 1, at 9. Finally, it sent mixed signals by stating
“violations have occurred” and requesting conciliation under the ADA. Dkt. No. 1,
at p. 9 (emphasis added).
The Department of Justice apparently became involved in the case some
time after the May 11, 2011 EEOC Letter was sent when the EEOC referred the
case to the Attorney General, ostensibly because Erie County Medical Center is a
government agency and conciliation efforts had failed. See Dkt. No. 1, pp. 2425. The record does not show whether the referral included both the First Charge
and the Second Charge.
In any event, on April 30, 2012, the DOJ mailed plaintiff the DOJ Letter
declining to pursue the case and informing him of the 90-day window to bring suit.
Dkt. No. 1, pp. 17-18, 26; see Dkt. No. 18, ¶ 3. The DOJ Letter had a heading
“NOTICE OF RIGHT TO SUE WITHIN 90 DAYS”. Dkt. No. 1 at p. 17. Unlike
the EEOC Letter, the DOJ Letter clearly satisfied the regulatory requirements of a
right to sue notice. In emphasized language, it informed plaintiff of his specific
cause of action under the ADA. Dkt. No. 1 at p. 17. It suggested he contact an
attorney, or that he could request to have one appointed. Id. Unfortunately, the

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DOJ Letter was returned without having been delivered as “unclaimed.” Dkt. No.
1, p. 26.
Plaintiff claims that he did not receive the DOJ Letter when it was mailed
and had no knowledge of it at the time. The Court takes him at his word.
Plaintiff Had Actual Notice on or about February 5, 2013
That His Administrative Charges Had Been Dismissed.
On February 5, 2013, plaintiff’s attorney wrote plaintiff with actual notice
that plaintiff’s charges were dismissed in the DOJ Letter, stating:
[I]t seems that on or about May 11, 2011 you were sent a
final determination by John E. Thompson, Jr. stating that
this was a final determination . . . but did not include a
Right to Sue Letter. Later, the U.S. Department of Justice
made a determination that they were not going to go
forward with the case and sent you . . . a Right to Sue
letter . . . . to the 132 Spring Street Address. Please note
that therefore if you did in fact live at that address it seems
that the EEOC has complied with their obligation to send
you a Right to Sue Letter.
Dkt. No. 1, p. 14. The letter informed plaintiff that the DOJ Letter existed. It
informed plaintiff that “it seem[ed] the EEOC had complied with their obligation to
send . . . a Right to Sue Letter.” Dkt. No. 1, at 14.
Plaintiff Carmichael submitted an affidavit in response to the Court’s Rule
56(f)(3) order stating as follows:
5.

This action was filed more than 90 days after plaintiff
Carmichael received the February 5, 2013 letter from [his
attorney] Mr. Wyssling.

RESPONSE: Yes.
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Dkt. No. 18, p. 2. The response confirms plaintiff received the Attorney Letter
notifying him of the issuance of the DOJ Letter well more than 90 days before he
filed this action. Plaintiff also responded:
6.

Plaintiff Carmichael was informed by the February 5, 2013
letter from Mr. Wyssling that plaintiff was required to file any
ADA action in court based upon the allegations against
defendant Morrison and defendant ECMC plaintiff had
presented to the EEOC within 90 days.

RESPONSE: Yes.
Dkt. No. 18, p. 2. The response confirms plaintiff was notified of the 90-day
deadline to file suit more than 90 days before he filed this action in July, 2013.
Moreover, the record certainly demonstrates that plaintiff Carmichael’s
counsel, who represented plaintiff through the lengthy administrative
proceedings, was well aware on February 5, 2013 that plaintiff’s time to file suit
may have commenced, if not run already. Viewing all the facts in the light most
favorable to plaintiff, the Court finds that the 90-day statutory period for bringing
ADA claims commenced no later than February 5, 2013, the date of the Attorney
Letter. By at least that date, plaintiff’s attorney had actual notice that plaintiff’s
administrative claims had been dismissed sufficient to trigger the statutory 90-day
period for plaintiff to commence this action.
In his response to the Court’s Rule 56(f)(3) order, plaintiff Carmichael
stated: “. . . I did not have knowledge prior to April 2, 2013 that I was required to
file documentation.” Dkt. No. 18, p. 2. He makes this particular statement in the
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context of his attorney’s efforts to determine the status of the lengthy
administrative proceedings in November of 2011, and follows it with a statement
that: “[o]n February 5, 2013 I went to my employer and received copies of the
letter from the Justice Department stating that they had issued a Right to Sue
Letter with respect to this matter.” Id. Under all the circumstances, no
reasonable jury could find plaintiff unaware on February 5, 2013 of the existence
of the DOJ Letter.
The Court does not address, because it need not, whether the statutory
limitations period may have commenced earlier. Unfortunately for plaintiff, he did
not commence this action until July 1, 2013, 145 days after the February 5, 2013
Attorney Letter establishing beyond dispute that he had notice of termination of
the administrative claim proceedings and the existence of a 90-day deadline to
commence suit.
Plaintiff Carmichael requests the Court toll the statute of limitations for
equitable reasons because he “used due diligence in an attempt to receive a
Right to Sue letter and acknowledgment of the status of his case.” Dkt. No. 18-1,
p. 2. However, plaintiff points only to his attorney’s efforts after the February 5,
2013 Attorney Letter to persuade the Department of Justice to re-issue the right
to sue letter. Those efforts show he knew the letter had issued and do not
explain why he neglected to file the action sooner. Equitable tolling is available
only in truly extraordinary circumstances when a plaintiff has been prevented from
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commencing federal suit. Zerlli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74,
80 (2d Cir. 2003). Neither negligence nor confusion are alone sufficient to invoke
equitable tolling of a statute of limitations. See e.g., Gov't Employees Ins. Co. v.
U.S., No. 13 Civ. 4063, 2014 WL 582164, at *2 (E.D.N.Y. Feb.14, 2014) (citing
cases). Because plaintiff has not come forward with facts sufficient to warrant
equitable tolling, see Dkt. No. 18, p. 2, ¶ 9, the Court finds his ADA claims against
each defendant are time barred. The ADA claims are therefore dismissed.
Although the Court is dismissing plaintiff Carmichael’s ADA federalquestion claims, the Court may have supplemental jurisdiction over non-federal
law claims under the NYSHRL if they are “so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). In these
circumstances, the Court may, at its discretion, nonetheless “decline to exercise
supplemental jurisdiction.” 28 U.S.C. § 1367(c)(3).
The Supreme Court has held that, when considering whether to exercise
supplemental jurisdiction, the Court should balance traditional “values of judicial
economy, convenience, fairness, and comity,” Carnegie Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988). As a general rule, “when the federal claims are
dismissed the ‘state claims should be dismissed as well,” In re Merrill Lynch Ltd.
P ‘ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (quoting United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966)). The traditional considerations usually “point
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toward declining jurisdiction over the remaining state-law claims.” In re Merrill
Lynch, 154 F.3d at 61 (quoting Cohill, 484 U.S. at 350 n. 7). The Court finds in
this case that it should, in the interests of economy and fairness, decline to
exercise supplemental jurisdiction over plaintiff’s NYSHRL claims. Those claims
are therefore dismissed on jurisdictional grounds.
CONCLUSION
For the foregoing reasons, the converted motions for summary judgment
pursuant to Fed. R. Civ. P. 56(a) of defendants Morrison Management Specialists
and Erie County Medical Center are granted with respect to plaintiff Darryl L.
Carmichael’s ADA claims. Because all federal-question claims are eliminated,
the Court declines to exercise supplemental jurisdiction over plaintiff Carmichael’s
NYSHRL claims . The Clerk shall enter judgment for defendants accordingly.
IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: March 26, 2014

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