Foster v. nfrastructure Technologies, LLC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JESSICA C. FOSTER,

Plaintiff,

21-CV-36-LJV

v. DECISION & ORDER

ZONES /E. NFASTRUCTURE

TECHNOLOGIES, INC.,

Defendant.

On January 8, 2021, the pro se plaintiff, Jessica C. Foster, commenced this

action, asserting claims under the Americans with Disabilities Act of 1990 (“ADA”) and

the New York State Human Rights Law (“NYSHRL”).1 Docket Item 1. On July 30,

2021, the defendant, nfrastructure Technologies, LLC2 (“nfrastructure”), moved to

dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), Docket

Item 11; on August 25, 2021, Foster responded, Docket Item 16; and on September 7,

2021, nfrastructure replied, Docket Item 19. Foster also has asked this Court to excuse

her for filing her response two days late, Docket Item 18; to grant her access to

1 A portion of Foster’s complaint was partially cut off, see Docket Item 1 at 5, and

the Court directed her to refile so that all the factual allegations on page 5 of her

complaint were included, see Docket Item 3. On March 24, 2021, Foster therefore filed

a more legible amended complaint. Docket Item 5.

2 The defendant was incorrectly named as Zones/E. Nfastructure Technologies.

Its correct name is nfrastructure Technologies, LLC. See Docket Item 12 at 5. The

Clerk of the Court shall correct the case caption accordingly.

CM/ECF so that she may file documents with the Court electronically, Docket Item 17;

and to appoint counsel for her, Docket Item 21.

For the following reasons, Foster’s motion to accept her late-filed response is

granted, but nfrastructure’s motion to dismiss will be granted unless Foster supplements

her amended complaint to demonstrate that her ADA claims are not time barred.

Foster’s motions for CM/ECF access and appointment of counsel are denied without

prejudice.

FACTUAL BACKGROUND

Foster was hired by nfrastructure on November 7, 2017.3 Docket Item 5 at ¶ 4.

In December 2017, Foster first told her manager, Jason Franco, that she had a

disability. Id. at ¶ 21.4 Nearly a year later, in November 2018, Foster asked for

reasonable accommodations, id. at ¶ 22; as a result, nfrastructure “reduced [her] to a

part-time schedule of 30 hours per week” and gave her “Thursdays off for [o]utpatient

[t]herapy,” id. at ¶ 23. But those accommodations proved to be ineffective. Id. at ¶ 24.

In January 2019, Foster sought additional reasonable accommodations. Id. at

¶ 19. She asked Kristen Strangler, apparently a supervisor, whether she could “perform

. . . off the phone work,” such as “emails, voicemails, [and] tickets.” Id. Strangler

3 On a motion to dismiss, the Court “accept[s] all factual allegations as true and

draw[s] all reasonable inferences in favor of the plaintiff.” Trustees of Upstate N.Y.

Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016) (citing City of

Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir.

2014)).

4 The amended complaint contains duplicative paragraph numbers 16 through

21. See Docket Item 5 at 5-6. All citations are to the first set of paragraph numbers on

page 5 of the amended complaint.

denied the request, stating that such accommodations would cause “undue hardship”

on the company. Id. But three other employees were allowed to perform the work that

Foster had requested as an accommodation. Id.

In June 2019, Foster asked Franco and someone named “Cara”5 about “the

status of [her] raise” and “was informed that [she] did not qualify [for a raise] due to [her]

absences” from work. Id. Later, she learned that those absences were days that she

took under the Family and Medical Leave Act (“FMLA”) as a reasonable

accommodation in November 2018. 6 Id.

On November 4, 2019, nfrastructure terminated Foster while she was “on . . .

medical leave.” Id. Foster’s doctor had requested that Foster’s “short term disability . . .

be extended to January 2020” so she could “complete her [i]ntensive [o]utpatient

[p]rogram,” but nfrastructure denied the request, “stating that [Foster] was not a

qualified individual with a disability.” Id.

5 Foster does not provide Cara’s full name or position. Docket Item 5 at ¶ 19.

The Court assumes that Cara was another manager or supervisor.

6 In her amended complaint, Foster alleges that in June 2019 she did not qualify

for a raise due to her FMLA absences taken as a reasonable accommodation in

November 2019, Docket Item 5 at ¶ 19; of course, that is impossible since November

2019 is five months after June 2019 and since Foster also alleges that nfrastructure

terminated her employment on November 4, 2019, id. at ¶¶ 7, 19. It appears that

November “2019” is a typographical error, and that the correct date is November 2018,

the time when nfrastructure granted Foster Thursdays off and a reduced schedule as a

reasonable accommodation, see id. at ¶¶ 22-23. “Allowing for an honest mistake in the

pleadings is within the court's discretion . . . .” Soto v. Wright, 2013 WL 474291, at *1

n.1, (S.D.N.Y. Feb. 1, 2013); see also Balestriere PLLC v. CMA Trading, Inc., 2014 WL

929813, at *13 n.15 (S.D.N.Y. Mar. 7, 2014) (correcting pro se plaintiff's references to a

June 28, 2010 delivery to be a June 28, 2011 delivery, in accordance with the timing of

other events alleged). And so the Court deems that mistake to be corrected.

Foster then filed an Equal Employment Opportunity Commission (“EEOC”)

charge, and the EEOC issued a “right-to-sue” letter and notice.7 Id. at 8-9. The notice

instructed Foster that any lawsuit she may wish to file “under federal law . . . 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. at 9 (bold emphasis, capitalization, and underlining in

original). The letter was dated September 24, 2020, id. at 8, but Foster did not receive it

until a few days later. In her amended complaint, Foster alleges that she received it on

September 27 or 28, 2020. Id. at ¶¶ 12, 18. But in an unsigned affirmation attached to

her response to the motion to dismiss, Foster states “that to the best of [her]

knowledge[, the letter] was not received . . . September 27-28, 20[20], but weeks later

due to a delay in mail delivery to [her] residence in rural South Carolina as a result of

the COVID-19 pandemic.” Docket Item 16 at 32.

LEGAL STANDARD

To survive a motion to dismiss, a complaint must include sufficient factual matter,

accepted as true, “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a

7 On a motion to dismiss, the Court may consider any written documents that are

attached to a complaint, incorporated by reference, or integral to it. Sira v. Morton, 380

F.3d 57, 67 (2d Cir. 2004). Here, the EEOC right-to-sue letter and notice are all three.

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. “Although the statute of limitations is ordinarily an affirmative

defense that must be raised in the answer, a statute of limitations defense may be

decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.”

Conn. Gen. Life Ins. Co. v. BioHealth Labs., Inc., 988 F.3d 127, 131-32 (2d Cir. 2021)

(quoting Thea v. Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015)).

DISCUSSION

I. MOTION FOR EXCUSABLE NEGLECT

Before addressing the motion to dismiss, this Court must consider Foster’s

motion under Federal Rule of Civil Procedure 6(b)(1)(B) to excuse the late filing of her

response because of excusable neglect, Docket Item 18. More specifically, Foster asks

this Court to excuse her for filing her response to the motion to dismiss two days late,

see Docket Items 15 and 16, and to consider her response in deciding the motion to

dismiss. Docket Item 18. The defendant opposes this request and asks this Court to

deem its motion to dismiss unopposed. See Docket Item 19 at 7-9.

Under Rule 6(b)(1)(B), a “court may, for good cause, extend the time” for a party

to act if the party failed to act due to “excusable neglect.” “‘[E]xcusable neglect’ under

Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused

by circumstances beyond the control of” the party seeking relief. Pioneer Inv. Servs.

Co. v. Brunswick Assocs., 507 U.S. 380, 392 (1993). “Rather, it may encompass delays

‘caused by inadvertence, mistake, or carelessness,’ at least when the delay was not

long, there is no bad faith, there is no prejudice to the opposing party, and [the]

movant's excuse has some merit.” LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d

Cir. 1995) (citations omitted).

There is indeed good cause to grant Foster’s motion to consider her late-filed

response. First, the delay was not long: Foster was merely two days late. See Docket

Items 15 and 16. Second, there is no reason to believe that the delay was the result of

any bad faith. Third, nfrastructure was not prejudiced and submitted a reply a short time

later—on September 7, 2021. See Docket Item 19.

Fourth, and perhaps most significantly, Foster offers an excuse with some merit:

due to her rural residence and “current financial status,” it is “very difficult [for Foster] to

access any mailing services.” Docket Item 18 at 2. And this Court previously

acknowledged Foster’s financial status when it granted her motion to proceed in forma

pauperis (that is, as a person who should have the prepayment of the ordinary filing fee

waived because she cannot afford it). See Docket Item 3.

The defendant argues that Foster’s motion should be denied because she failed

to explain why she could not and did not reach out to nfrastructure about an extension

before the deadline. Docket Item 19 at 8-9. At best, nfrastructure’s argument suggests

that Foster was careless when she failed to ask for an extension. What is more, Foster

is proceeding pro se and may not be aware of customs or practices that are second

nature to attorneys.

In any event, this Court may excuse even those delays that are careless. See

LoSacco, 71 F.3d at 93. Foster’s motion is therefore granted, and her response to

nfrastructure’s motion to dismiss is deemed timely.

II. MOTION TO DISMISS

The Court now turns to nfrastructure’s motion to dismiss, Docket Item 11. The

defendant argues, among other things,8 that Foster’s ADA claims must be dismissed

because they are time barred. Based on the current record, this Court agrees.

ADA claims must be filed in federal court within 90 days of the claimant’s receipt

of a right-to-sue-letter from the EEOC. See 42 U.S.C. § 12117(a) (incorporating the

limitations period set forth in 42 U.S.C. § 2000e-5(f)(1)). The 90-day period is

measured in calendar, not business, days. Carpenter v. City of New York, 2011 WL

2118599, at *2 (W.D.N.Y. May 25, 2011). And the deadline is strict. See Manley v.

New York City Police Dept., 2005 WL 2664220, at *3-5 (E.D.N.Y. Oct. 19, 2005)

(dismissing pro se plaintiff’s claims as untimely where plaintiff filed complaint 91 days

after receiving the right-to-sue letter); see also Hughes v. Elmira Coll., 584 F. Supp. 2d

588, 590 (W.D.N.Y. 2008) (same). In fact, “[i]n the absence of a recognized equitable

consideration, the court cannot extend the limitations period by even one day.” Johnson

v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984). And equitable

tolling is appropriate only in “rare and exceptional circumstances in which a party is

prevented in some extraordinary way from exercising [her] rights.” Zerilli–Edelglass v.

New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (alterations, citations, and

internal quotation marks omitted).

8 Because it appears that Foster’s claims are time barred, this Court declines to

reach nfrastructure’s remaining arguments for dismissal at this time. If Foster

supplements her amended complaint, the defendant may move to dismiss again and

raise any arguments addressed in its previous motion.

“The equitable considerations that have been recognized as justifying tolling the

limitations period have been applied sparingly.” Nearhood v. Tops Mkts., Inc., 76 F.

Supp. 2d 304, 306 (W.D.N.Y. 1999). “[T]he Supreme Court has recognized only four

situations justifying equitable tolling of Title VII's time limits: (1) where a claimant

receives inadequate notice of the right to sue; (2) where circumstances justify tolling

while a claimant's motion for appointment of counsel is pending; (3) where the court has

led a plaintiff to believe she has done everything required of her; or (4) where affirmative

conduct by the defendant has lulled the plaintiff into inaction.” Coffey v. Donahoe, 2013

WL 3244788, at *5 (W.D.N.Y. June 26, 2013) (citing Baldwin Cnty. Welcome Ctr. v.

Brown, 466 U.S. 147, 151 (1984)).

In her amended complaint, Foster pleaded that she received the right-to-sue

letter on September 27 or 28, 2020. Docket Item 5 at ¶¶ 12, 18. But in her response to

nfrastructure’s motion to dismiss, Foster says that she is not sure when she received

the letter. She now asserts that she “may have received the [right-to-sue] letter on or

about September 27-28, 2020,” but she also “believes it was much later due to mail

delivery delays.” Docket Item 16 at 14.

When a right-to-sue letter’s receipt date is unknown, courts generally presume

that the letter was received three days after it was mailed. Sherlock v. Montefiore Med.

Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996). Likewise, unless there is a reason to think

otherwise, courts presume that the EEOC mailed the right-to-sue letter on the date

shown on the letter. See id. Here, using the date of the right-to-sue letter—that is,

September 24, 2020, see Docket Item 5 at 8—and presuming that Foster received it

three days later on September 27, 2020, her suit filed on January 8, 2021, is untimely9

because it was filed on the 103rd day after the right-to-sue letter was received.

The three-day presumption is not absolute. Indeed, it may be rebutted by “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 [the claimant] by mail.” Tiberio v. Allergy Asthma Immunology of

Rochester, 664 F.3d 35, 37 (2d Cir. 2011) (quoting Sherlock, 84 F.3d at 526). But

unsworn statements styled as a motion and memorandum of law are inadmissible and

insufficient to rebut to rebut the three-day presumption. Hughes, 584 F. Supp. 2d 588

at 590 (collecting cases). And mere confusion and doubt about the date a claimant

received a right-to-sue letter are insufficient as well. See Colon v. Sabic Innovative

Plastics US, LLC, 2017 WL 3503681, at *4 (N.D.N.Y. Aug. 15, 2017) (plaintiff’s inability

to recall when she received right-to-sue letter was insufficient to rebut the three-day

presumption); Edwards v. Onondaga Cmty. Coll., 2015 WL 7283187, *4 (N.D.N.Y. Nov.

16, 2015) (evidence showing plaintiff’s “own lack of recollection” or a “mere denial of

receipt” insufficient to overcome three-day presumption) (quoting Sherlock, 84 F.3d at

526). Therefore, even crediting Foster’s unsworn statement that she “may have

received [the letter] on . . . September 27-28, 2020,” but “believes it was much later,”

Docket Item 16 at 14,10 her uncertainty about when she received the letter fails to rebut

the three-day presumption and make her complaint timely.

9 The complaint also is untimely if the Court uses September 28, 2020, the latest

date noted in Foster’s amended complaint, see Docket Item 5 at ¶ 18.

10 Foster also attaches an affirmation to her response to the motion to dismiss,

repeating her assertion that the letter was received weeks later. Docket Item 16 at 32.

Foster argues that even if she received the right to sue letter on

September 27-28, 2020, the Court should deem her complaint timely because “she

thought she had 90 business days,” not calendar days to file her complaint, which would

have made her complaint timely if filed by January 29, 2021. Docket Item 16 at 15. But

such an excuse is insufficient to merit equitable tolling.11 Manley, 2005 WL 2664220, at

*4. “A decision to simply act upon the assumption that a longer period of limitations

applied, without obtaining clarification of the rule,” is nothing more than “a ‘garden

variety claim of excusable neglect’ which the Supreme Court has held insufficient to

merit equitable tolling.” Id. (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95-96

(1990)); see also Bethlemie v. New York City Health & Hosp. Corp., 2001 WL 863424,

at *3 (S.D.N.Y. July 31, 2001) (equitable tolling not merited when pro se plaintiff thought

90-day period excluded weekends because “the mere fact that [plaintiff] may have

inferred as much . . . does not excuse his failure to comply with the actual requirements

of the statute.”).

Although the affirmation includes a declaration “under penalty of perjury . . . that the

foregoing is true and correct,” Foster did not sign the affirmation. Id.

11 Foster argues that this Court should consider that she “was without legal

advice” and that this led to the confusion on the 90-day deadline. Docket Item 16 at 8.

But the lack of the assistance of counsel does not warrant equitably tolling the deadline.

See Richardson v. Suffolk Bus Corp., 2010 WL 2606266, at *6 (E.D.N.Y. June 22,

2010). Where a party is proceeding pro se, the Court must “read [the pro se plaintiff’s]

papers liberally” and “interpret them to raise the strongest arguments that they suggest.”

Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1998). But “the fact that a litigant is

proceeding pro se does not exempt [her] from compliance with the relevant rules of

procedural and substantive law.” Manley, 2005 WL 2664220, at *1 (alterations and

internal quotation marks omitted).

Even construing Foster’s papers liberally, there are no extraordinary facts that

would justify equitable tolling here.12 Nevertheless, in light of Foster’s pro se status, the

Court grants her leave to supplement her amended complaint to demonstrate that

equitable tolling applies to her ADA claims. See Porat v. Lincoln Towers Cmty. Ass’n,

464 F.3d 274, 276 (2d Cir. 2006) (“Without doubt, this circuit strongly favors liberal grant

of an opportunity to replead after dismissal of a complaint under Rule 12(b)(6).”).

III. STATE LAW CLAIMS

Foster also asserts claims under the NYSHRL and asks this Court to exercise

supplemental jurisdiction over her state law claims. Docket Item 5 at 2. A “district

court[ ] may decline to exercise supplemental jurisdiction over a claim” if “the district

court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3). “Once a district court's discretion is triggered under § 1367(c)(3), it

balances the traditional ‘values of judicial economy, convenience, fairness, and

comity[ ]’ in deciding whether to exercise jurisdiction.” Kolari v. N.Y.-Presbyterian

Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 450 (1988)). And “in the usual case in which all federal-law claims are

eliminated before trial, the balance of factors will point toward declining to exercise

12 Foster asserts that her “[s]evere [d]epression/[p]anic [d]isorder . . .

incapacitates her[] from time to time” and “unduly prejudiced her from focusing on

preparing her [c]omplaint.” Docket Item 16 at 7-8. But aside from this vague and

conclusory statement, Foster does not connect her illness to the delay in filing her

complaint. And vague and conclusory statements “without a particularized description

of how [a] condition adversely affected [a plaintiff’s] capacity to function generally or in

relationship to the pursuit of her rights, is manifestly insufficient to justify any further

inquiry into tolling.” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000); see also

Richardson, 2010 WL 2606266, at *5 (collecting cases).

jurisdiction over the remaining state-law claims.” Id. (alterations omitted) (quoting

Cohill, 484 U.S. at 350 n.7). For that reason, if Foster does not file a second amended

complaint or supplemental submission to demonstrate that equitable tolling applies to

her ADA claims, the Court will decline to exercise jurisdiction over Foster’s NYSHRL

claims, and her NYSHRL claims will be dismissed without prejudice.

IV. MOTION FOR CM/ECF ACCESS

Foster asks this Court to grant her permission for electronic case filing through

the Court’s system (“CM/ECF”). Docket Item 17. The Local Rules of Civil Procedure

incorporate by reference the Court’s CM/ECF Administrative Procedures Guide (“the

Guide”), which in turn provides the requirements and procedures for electronic filing.

See W.D.N.Y. Local Rule 5.1(a). The Guide allows the Court, in its discretion, to “grant

a pro se litigant who demonstrates a willingness and capability to file documents

electronically, permission to register to do so.” W.D.N.Y. Administrative Procedures

Guide for Electronic Filing, Administrative Procedures.

Here, Foster affirms that “[g]aining access to CM/ECF will guarantee that [her]

documents are filed on time.” Docket Item 17 at 2. But Foster has not demonstrated

that she has the necessary technical and equipment requirements for e-filing. Nor does

she affirm that she has reviewed the requirements for e-filing and agrees to follow those

requirements. The Court therefore declines to exercise its discretion to permit Foster to

file her documents electronically and denies her motion without prejudice. To the extent

that Foster requires additional time to file documents due to her rural location and

transportation difficulties, Foster may ask the Court to extend her deadlines.

V. MOTION TO APPOINT COUNSEL

Foster also asks this Court to appoint her counsel. Docket Item 21. In deciding

whether to appoint counsel, courts first assess the indigent plaintiff's likelihood of

success on the merits of her claim. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d

Cir. 1986). If the claim meets this threshold requirement, courts consider a number of

other factors, including “the nature of the factual issues the claim presents[,] . . . the

plaintiff’s apparent ability to present the case[,] . . . whether appointment of counsel

would lead to a quicker and more just result by sharpening the issues and shaping

examination[,] . . . [and the plaintiff’s] efforts to obtain counsel.” Id.

This action was commenced only recently. The defendant has not yet answered

the allegations in the amended complaint, so the only facts upon which this Court may

base its decision as to whether this lawsuit is of substance are Foster’s bare allegations.

At this stage, the Court lacks sufficient information to consider the factors stated in

Hodge. Foster’s request for appointment of counsel therefore is denied without

prejudice as premature.

CONCLUSION

For the reasons stated above, Foster’s motion for late filing of her response,

Docket Item 18, is GRANTED. Foster’s motions for CM/ECF access, Docket Item 17,

and appointment of counsel, Docket Item 21, are DENIED without prejudice. The

defendant’s motion to dismiss, Docket Item 11, will be granted unless within 60 days of

the date of this order, Foster supplements her amended complaint by filing a second

amended complaint or submission to demonstrate that equitable tolling applies to her

ADA claims. If Foster needs additional time to file her submission, she may request

extensions of time as needed. No later than 30 days after any submission to

supplement the amended complaint is filed, nfrastructure may answer, move against, or

otherwise respond. If Foster does not supplement her amended complaint or ask for an

extension of time within 60 days, Foster’s ADA claims will be dismissed with prejudice;

her NYSHRL claims will be dismissed without prejudice; and the Clerk of the Court shall

close the case without further order.

SO ORDERED.

Dated: February 18, 2022

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE