Bavier v. Hofstra University

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JACQUELINE D. BAVIER,

Plaintiff,

MEMORANDUM & ORDER

-against- 19-CV-0943(JS)(AYS)

HOFSTRA UNIVERSITY; and EVELYN

MILLER-SUBER, Individually,

Defendants.

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APPEARANCES

For Plaintiff: Jessenia Maldonado, Esq.

Junou Odige, Esq.

The Law Office of Yuriy Moshes, P.C.

517 Brighton Beach Avenue, Second Floor

Brooklyn, New York 11235

For Defendants: Domenique Camacho Moran, Esq.

Farrell Fritz, P.C.

400 RXR Plaza

Uniondale, New York 11556

SEYBERT, District Judge:

On February 15, 2019, Jacqueline D. Bavier (“Plaintiff”)

commenced this action against Hofstra University (“Hofstra”) and

Evelyn Miller-Suber (together with Hofstra, “Defendants”) pursuant

to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101,

et seq. (“ADA”) and the New York State Human Rights Law, New York

State Executive Law § 296, et seq. (“NYSHRL”), following her

termination as an employee with Hofstra. Pending before the Court

is Defendants’ motion for summary judgment. (Mot., ECF No. 35;

Support Memo, ECF No. 35-10; Opp’n, ECF No. 38; Reply, ECF No.

39.) For the following reasons, Defendants’ motion is GRANTED.

BACKGROUND1

Plaintiff worked at Hofstra as a Resident Director from

August 2014 to August 2016, when Hofstra terminated her employment.

On June 15, 2017, Plaintiff filed a verified complaint

against Hofstra with the New York State Division of Human Rights

(“NYSDHR”), alleging unlawful discrimination by Hofstra and

several of its employees (the “Verified Complaint”). (Defs. 56.1

Stmt. ¶ 1; NYSDHR Verified Compl., Ex. P-B.) The NYSDHR forwarded

Plaintiff’s Verified Complaint to the Equal Employment Opportunity

Commission (“EEOC”), and on July 13, 2017, Plaintiff received a

Notice Letter from the EEOC advising her of her federal rights

pursuant to the ADA. (Pl. Counterstmt. ¶ 1; EEOC Notice Ltr., Ex.

1 Unless otherwise indicated, the facts are taken from Defendants’

Local Rule 56.1 Statement (Defendants’ Rule 56.1 Statement of

Material Facts (“Defs. 56.1 Stmt.”), ECF No. 35-9), and Plaintiff’s

Local Rule 56.1 Counterstatement of Material Facts (Plaintiff’s

Counterstatement of Material Facts (“Pl. 56.1 Counterstmt.”), ECF

No. 36). Unless otherwise stated, a standalone citation to a Local

Rule 56.1 Statement or Counterstatement denotes that either the

parties agree or the Court has determined that the underlying

factual allegation is undisputed. Citation to a party’s Local

Rule 56.1 Statement or Counterstatement incorporates by reference

the documentS cited therein.

Defendants’ exhibits, which are attached to the Declaration of

Domenique Moran (see ECF No. 35-1), are identified by letters.

Plaintiff’s exhibits, which are attached to the Declaration of

Jessenia Maldonado (see ECF No. 37), are similarly identified by

letters. For ease of citation and to distinguish the parties’

respective exhibits, the Court will cite to the Defendants’

exhibits as “Ex. D-[X]” and to Plaintiff’s exhibits as “Ex. P-

[X]”.

P-C.) Plaintiff filed her Verified Complaint through her former

counsel at Dell & Dean. (Pl. Counterstmt. ¶ 1.)

In the Verified Complaint, Plaintiff identified her

mailing address as 4101 E. Rancier Avenue, Apt. 1104, Killeen, TX

76543 (the “Rancier Avenue Address”). (Defs. 56.1 Stmt. ¶ 2;

NYSDHR Verified Compl. at 3.) The EEOC addressed its Notice Letter

to Plaintiff at the Rancier Avenue Address. (EEOC Notice Ltr. at

1.) Plaintiff’s former counsel also provided its address to the

NYSDHR, and the EEOC copied Plaintiff’s former counsel on the

Notice Letter. (NYSDHR Verified Compl. at 11; EEOC Notice Ltr. at

2.) However, sometime in August 2017, Plaintiff moved to 1305

Elia Street, Killeen, TX 76541. (Defs. 56.1 Stmt. ¶ 3.) It is

undisputed that Plaintiff never updated her address with the NYSDHR

or the EEOC, although Plaintiff testified that she informed her

former counsel of the move. (Id. ¶ 4; Pl. Counterstmt. ¶ 4.)

On or about December 29, 2017, the NYSDHR dismissed

Plaintiff’s Verified Complaint, finding that there was no probable

cause to believe that Defendants had engaged in the alleged

unlawful discriminatory conduct. (Defs. 56.1 Stmt. ¶ 6.) On

February 22, 2018, the EEOC adopted the findings of the NYSDHR and

dismissed Plaintiff’s charges, advising Plaintiff that she must

file any lawsuit within ninety days of receipt of the dismissal

and right-to-sue letter. (Id. ¶ 7-8.) The dismissal and right-

to-sue letter were mailed to the Rancier Avenue Address that

Plaintiff had provided to the NYSDHR and the EEOC. (Id. ¶ 7).

Because she had moved, however, Plaintiff asserts that she never

received the right-to-sue letter. (Pl. Counterstmt. ¶ 7.) On

March 8, 2018, the right-to-sue letter was returned to the EEOC as

“return to sender, not deliverable as addressed, unable to

forward.” (Id.)

On February 15, 2019, the EEOC wrote to Plaintiff’s

former counsel to acknowledge that Plaintiff never received a copy

of the right-to-sue letter. (Id. ¶ 12.) That same day, Plaintiff

filed the instant action. (Compl., ECF No. 1.) Plaintiff filed

an amended complaint on April 29, 2019. (Am. Compl., ECF No. 14.)

The parties completed discovery, and Defendants filed a

pre-motion conference letter seeking leave to file a motion for

summary judgment. The Court granted Defendants leave, resulting

in the instant motion practice.

DISCUSSION

I. Legal Standard

Summary judgment is appropriate where there is “no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). “Material

facts are those which might affect the outcome of the suit under

the governing law, and a dispute is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,

164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499

F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).

The movant bears the burden of establishing that there are no

genuine issues of material fact in dispute. CILP Assocs., L.P. v.

PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013).

“In moving for summary judgment against a party who will bear the

ultimate burden of proof at trial,” as Plaintiff does here, “the

movant may satisfy this burden by pointing to an absence of

evidence to support an essential element of the nonmoving party’s

claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

On a motion for summary judgment the Court considers the

“pleadings, deposition testimony, answers to interrogatories and

admissions on file, together with any other firsthand information

including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d

147, 156 (2d Cir. 2011). In reviewing the record, “the court is

required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary

judgment is sought.” Sheet Metal Workers’ Nat’l Pension Fund v.

Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL 6449420, at *2

(E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler Corp., 109

F.3d 130, 134 (2d Cir. 1997)).

II. Analysis

A. Plaintiff’s ADA Claim is Untimely

1. Applicable Law

“The ADA prohibits employment discrimination based on

disability, and incorporates the enforcement powers, remedies, and

procedures of Title VII of the Civil Rights Act of 1964.” Brown

v. JPMorgan Chase Bank, N.A., No. 12-CV-0544, 2012 WL 6731610, at

*3 (E.D.N.Y. Nov. 29, 2012) (citing 42 U.S.C. § 12117). “Under

the ADA, a claim must be filed with the EEOC in New York within

300 days of the alleged unlawful employment practice or challenged

discriminatory act.” Id. (citing 42 U.S.C. § 2000e–5(e)(1)); see

also Predun v. Shoreham–Wading River Sch. Dist., 489 F. Supp. 2d

223, 227 (E.D.N.Y. 2007). Moreover, an action raising claims under

the ADA must be filed within ninety days of receiving a right-to-

sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Tiberio

v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d

Cir. 2011); Bamba v. Fenton, 758 F. App’x 8, 10 (2d Cir. 2018)

(same for Title VII). The ninety-day rule “has been strictly

construed by the courts in this circuit.” Williams v. Chertoff,

No. 06-CV-3847, 2008 WL 2001897, at *2 (E.D.N.Y. May 8, 2008)

(citations omitted). Further, “[t]he person claiming to be

aggrieved,” i.e., the plaintiff, “has the responsibility to

provide the [EEOC] with notice of any change in contact information

so that the [EEOC] may communicate with him or her during the

[EEOC]’s consideration of the charge.” 29 C.F.R. § 1601.7; St.

Louis v. Alverno Coll., 744 F.2d 1314, 1316 (7th Cir. 1984) (“Since

1977 people who have filed charges with the EEOC have been required

to notify the Commission of any change of address.”).

Nevertheless, the ninety-day period “is not

jurisdictional but rather is a statute of limitations and thus

subject to equitable tolling.” Williams, 2008 WL 2001897, at *3

(citing Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143,

146 (2d Cir. 1984)). Equitable tolling is only appropriate in

“rare and exceptional circumstances.” Bamba, 758 F. App’x at 10

(quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74,

80 (2d Cir. 2003)). The plaintiff bears the burden of

demonstrating that equitable tolling is appropriate. Id. at 10-

11 (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)).

B. Application

The Court finds that Defendants are entitled to summary

judgment, because Plaintiff failed to timely file this ADA action

within the required ninety-day window. Generally speaking,

Plaintiff is correct that her receipt of the right-to-sue letter

starts the ninety-day clock. Tiberio, 664 F.3d at 37. However,

it is well settled that where the plaintiff “does not receive a

right-to-sue letter due to his or her failure to inform the EEOC

of a change in address and thereafter files an untimely civil

complaint, the complaint must be dismissed.” Williams, 2008 WL

2001897, at *6; Felton v. New York Post, No. 90-CV-2254, 1990 WL

113176, at *2 (S.D.N.Y. Aug. 2, 1990) (“[I]it is well established

that non-receipt of a right-to-sue letter because of a change of

address about which the EEOC was not informed is not an event

beyond a plaintiff’s control.”), aff’d, 930 F.2d 908 (2d Cir.

1991); Banks v. Metro-N. Commuter R.R., No. 97-CV-1601, 1998 WL

312237, at *3 (S.D.N.Y. June 12, 1998) (“If the complainant does

not receive the right-to-sue letter due to a failure to inform the

EEOC of a change in address and thereafter files an untimely civil

complaint, the complaint must be dismissed.”); Gonzalez v. Legends

Hosp., No. 14-CV-6478, 2017 WL 1166344, at *5 (E.D.N.Y. Mar. 27,

2017). Circuit courts throughout the country have arrived at the

same conclusion. See St. Louis v. Alverno College, 744 F.2d 1314,

1316 (7th Cir. 1984); Abraham v. Woods Hole Oceanographic Inst.,

553 F.3d 114, 120–21 (1st Cir. 2009); Lewis v. Conners Steel Co.,

673 F.2d 1240, 1243 (11th Cir. 1982); see also Fields v. Hoerner

Waldorf Corp., No. 80-CV-0079, 1980 WL 4662, at *1 (N.D. Ala. Dec.

1, 1980) (“The plaintiff changed residences repeatedly during this

crucial time period and by his own testimony did nothing to insure

that the EEOC knew his whereabouts. The court is, therefore, of

the opinion that plaintiff’s own delay caused his failure to file

the present complaint within 90 days from receipt of his right-

to-sue letter.”).

Here, it is undisputed that Plaintiff failed to provide

the EEOC with her updated address, resulting in her non-receipt of

the right-to-sue letter. Further, because Plaintiff did not

receive the right-to-sue letter due to her own failure to update

her address with the EEOC, equitable tolling is not warranted here.

Gonzalez, 2017 WL 1166344, at *5 (“[A]s Plaintiff allegedly did

not receive the right-to-sue letter because of his own failure to

update the EEOC, equitable tolling is not warranted here.”);

Williams, 2008 WL 2001897, at *5-7 (where the plaintiff did not

notify EEOC of his change in address, finding equitable tolling

not warranted, and concluding there was no triable issue of fact

regarding the plaintiff’s untimely complaint); Felton v. New York

Post, 1990 WL 113176, at *2 (granting the defendant’s summary

judgment motion where the plaintiff’s failure to notify the EEOC

of his change of address and “prolonged absence” “conclusively

demonstrate[d] that [the plaintiff’s] non-receipt of the [EEOC

right-to-sue] letter was not an event beyond his control”).

Plaintiff’s arguments that this action is timely or that

equitable tolling applies fail to persuade. First, Plaintiff

argues that after she notified her former counsel of the change of

address, “it would have been Plaintiff’s former counsel’s

responsibility to notify the EEOC of a change of address.” (Opp’n

at 6.) Plaintiff cites no authority for her effort to shift the

blame to her former attorneys, which is not surprising, because

“the Second Circuit has refused to apply equitable tolling in cases

of ordinary attorney neglect.” Semper v. New York Methodist Hosp.,

786 F. Supp. 2d 566, 579 (E.D.N.Y. 2011) (citing South v. Saab

Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994)); see also Keyse v.

California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978) (holding

equitable tolling of the filing time is inappropriate where the

plaintiff was represented by counsel during the period in which

she was statutorily required to file charges with the EEOC,

notwithstanding the plaintiff’s allegations that she was given

incorrect information by both an EEOC employee and her own

counsel). Further, the relevant regulation, which has been in

place for more than forty years, explicitly states that it is the

“person claiming to be aggrieved” who “has the responsibility to

provide the [EEOC] with notice of any change in contact

information.” 29 C.F.R. § 1601.7. In fact, on analogous facts,

the First Circuit affirmed a district court decision rejecting the

application of equitable tolling where the plaintiff argued that

he satisfied his obligation to update his address when he provided

his updated address to the state administrative agency handling

his complaint, and the agency failed to forward this updated

address to the EEOC, resulting in his bringing an untimely Title

VII action. Abraham, 553 F.3d at 120–21; see also Ball v. Abbott

Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (holding that

even if a plaintiff notifies the state agency of his or her change

of address, this does not constitute notice to the EEOC).

Similarly, here, the fact that Plaintiff notified her former

attorney of the change of address did not constitute notice to the

EEOC.

Second, Plaintiff points out that the “record is silent

whether Plaintiff’s counsel notified the EEOC of her change of

address,” and thus “Defendants are unable to establish that

Plaintiff’s former counsel failed to inform the EEOC of

[Plaintiff’s] change of address.” (Opp’n at 7.) For reasons

already stated, this fact is immaterial; it was Plaintiff’s

responsibility to update her address with the EEOC. In any event,

Plaintiff bears the burden of demonstrating that equitable tolling

is appropriate. Boos, 201 F.3d at 185. Accordingly, at this

stage, Plaintiff cannot carry her burden that “rare and exceptional

circumstances” warrant application of that doctrine by pointing to

the absence of evidence in the record. See, e.g., Miller v. Int’l

Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985) (placing the

burden of showing “extraordinary” circumstances justifying

equitable tolling of a time bar in an employment discrimination

suit on the employee-plaintiff).2

2 Plaintiff also contends that the EEOC’s failure to serve the

right-to-sue letter on her former counsel justifies the

application of equitable tolling. It is true that equitable

tolling applies to mailing complications where “the EEOC, not

plaintiff, was derelict in its duties.” Semper, 786 F. Supp. 2d

at 578 (quoting Jacobs v. SUNY at Buffalo Sch. of Medicine, 204 F.

Last, the February 15, 2019 letter from the EEOC did not

restart the clock for statute-of-limitations purposes. As

Defendants correctly argue, Plaintiff “cannot claim that [her]

right to sue was revived simply by the issuance of the subsequent

right-to-sue letters issued at [her] request.” Rosquist v. N.Y.

Univ. Med. Ctr., No. 97-CV-8566, 1998 WL 702295, at *6 (S.D.N.Y.

Oct. 7, 1998), aff’d, 199 F.3d 1323 (2d Cir. 1999), cited by Reply

at 2.

Accordingly, Defendants’ motion for summary judgment as

to Plaintiff’s ADA claims is GRANTED.

B. The Court Declines to Exercise Supplemental Jurisdiction

Over Plaintiff’s NYSHRL Claims

Although the Court is dismissing Plaintiff’s ADA

federal-question 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

Supp. 2d 586, 592 (W.D.N.Y. 2002)). But here, the EEOC mailed the

right-to-sue letter to the address Plaintiff provided, and while

it came back undeliverable, it “is unreasonable to expect the EEOC

to pore over its files, and those of state administrative agencies,

in an effort to ascertain which of the addresses contained therein

is correct.” St. Louis v. Alverno Coll., 744 F.2d at 1317-18.

Thus, it cannot be said that the EEOC neglected its obligations

here.

discretion, nonetheless “decline to exercise supplemental

jurisdiction.” 28 U.S.C. § 1367(c)(3).

In deciding whether to exercise supplemental

jurisdiction, a district court should balance the “values of

judicial economy, convenience, fairness, and comity.” Carnegie–

Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). “In general,

where the federal claims are dismissed before trial, the state

claims should be dismissed as well.” Delaney v. Bank of America

Corp., 766 F.3d 163, 170 (2d Cir. 2014). Here, having dismissed

Plaintiff’s federal claims, the Court finds the factors of economy,

convenience, fairness, and comity do not support the exercise of

supplemental jurisdiction over Plaintiff’s NYSHRL claims. See

Carmichael v. Morrison Mgmt. Specialists, No. 13-CV-0692, 2014 WL

1270042, at *6 (W.D.N.Y. Mar. 26, 2014).

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CONCLUSION

For the stated reasons, Defendants’ motion for summary

judgment (ECF No. 35) is GRANTED, with Plaintiff’s ADA claims being

DISMISSED, and her NYSHRL claims being DISMISSED WITHOUT

PREJUDICE. The Clerk of the Court is directed to enter judgment

accordingly and mark this case CLOSED.

SO ORDERED.

/s/_JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: March 24 , 2022

Central Islip, New York