# Bavier v. Hofstra University

> District Court, E.D. New York · March 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10307717

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307717

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JACQUELINE D. BAVIER,

Plaintiff,
MEMORANDUM & ORDER
-against- 19-CV-0943(JS)(AYS)

HOFSTRA UNIVERSITY; and EVELYN
MILLER-SUBER, Individually,

Defendants.
-----------------------------------X
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).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307717. Public record. Not legal advice.