Vogt

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHATAURA VOGT,

Plaintiff, REPORT AND

RECOMMENDATION

v.

25-cv-3383 (GRB) (LGD)

SECURITY USA, INC. and JOHN ANDREW

MCCABE,

Defendants.

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LEE G. DUNST, Magistrate Judge:

Defendants Security USA, Inc. (“Security USA”) and John Andrew McCabe (“McCabe”)

(collectively, “Defendants”) filed a Motion to Dismiss (the “Motion”) Plaintiff Shataura Vogt’s

(“Plaintiff”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In the Complaint,

pro se Plaintiff asserts claims for discrimination under (1) Title VII of the Civil Rights Act of

1964 (“Title VII”); 42 U.S.C. § 2000e et seq., (2) the New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law § 296; and (3) the New York City Human Rights Law

(“NYCHRL”), N.Y.C. Admin. Code § 8-107. On September 15, 2025, District Judge Gary R.

Brown referred all pretrial dispositive motions to the undersigned for a Report and

Recommendation. See Electronic Order, dated September 15, 2025.

For the reasons below, the Court recommends that Plaintiff’s Complaint be dismissed

without prejudice in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the Complaint, Mr. McCabe—Plaintiff’s co-worker at Security USA—

made “inappropriate contact” with her, sent her “unwanted texts,” and engaged in “stalking

behavior” from June to October 2024.1 See ECF No. 1 at 4-5. Plaintiff alleges that she reported

McCabe’s behavior “to supervisors and HR multiple times between July and October” of 2024,

but that Security USA failed to act. See id. at 5. She alleges that McCabe’s behavior was

gender-based and racial in tone and Security USA’s failure to address her complaints was in part

due to her race. See id. Plaintiff claims that she worked in fear of McCabe, exacerbated by her

depression and an unrelated domestic violence dispute. See id.; see also ECF No. 14 at 5-6.

Prior to the instant lawsuit, Plaintiff filed a Complaint with the United States Equal

Employment Opportunity Commission (“EEOC”). See ECF No. 1 at 9. On March 13, 2025,

Plaintiff received a Notice of Right to Sue Letter from the EEOC informing her that the EEOC

was “terminating its processing of [her] charge.” Id. Furthermore, the letter explained, in bold,

that Plaintiff must file a lawsuit against Defendants in federal or state court “WITHIN 90 DAYS

of [her] receipt of this notice,” or June 11, 2025. See id. Otherwise, she would lose her right to

sue. See id.

Plaintiff alleges that she relied on conflicting information from an EEOC investigator,

Silvia Deng-Batista, who allegedly stated in a phone call with Plaintiff that she could file her

lawsuit up to June 13, 2025. See ECF No. 37 at 1, 6. Accordingly, Plaintiff commenced this

action pro se on June 13, 2025, ninety-two days after she received the Right to Sue Letter. See

ECF No. 1 at 1.2 Defendants moved to dismiss the Complaint on April 24, 2026. See ECF No.

36.

1 These facts are taken from Plaintiff’s Complaint, and documents filed in opposition of the Motion

that Plaintiff relied upon when bringing the suit. The facts of the Complaint are assumed to be true for the purposes

of this Motion. See In re Lehman Bros. Securities and Erisa Litigation, 799 F. Supp. 2d 258, 272 (“In deciding a

motion to dismiss, court ordinarily accepts as true all well pleaded factual allegations . . .”).

2 Plaintiff originally sought to amend her complaint but later withdrew her request on April 17,

2026. See ECF No. 35.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atl. Corp

v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff has a plausible claim when they plead

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Court must “[construe] the complaint

liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable

inferences in the plaintiff’s favor.” Khan v. Equifax Information Services, LLC, No. 18-CV-

6367, 2019 WL 2492762 at *1 (E.D.N.Y. June 14, 2019) (internal citations omitted).

Pro se pleadings are generally held “to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)). However, pro se plaintiffs are not exempted from the burden of pleading

facts sufficient to state a claim. See Lewis v. City of New York, 762 F. Supp. 3d 290, 300-01

(S.D.N.Y. 2025) (holding that “even pro se plaintiffs cannot withstand a motion to dismiss unless

their pleadings contain factual allegations sufficient to raise a ‘right to relief’ above the

speculative level’”). Thus, “a formulaic recitation of the elements of a cause of action will

not . . . suffice as a viable complaint there are allegations asserted that are “devoid of further

factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

III. DISCUSSION

A. Plaintiff’s Title VII Claims Should Be Dismissed

1. Plaintiff’s Claims are Untimely

Pursuant to 42 U.S.C. § 2000e-5(f)(1), a claimant has 90 days after receiving a Right to

Sue Letter from the EEOC to file a Title VII claim. See 42 U.S.C. § 2000e-5(f)(1); Sherlock v.

Montefiore Medical Center, 84 F.3d 522, 525 (2d. Cir. 1996). Courts are disinclined to extend

the statute of limitations, even by a single day, absent exceptional circumstances. See Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 152 (1984); Bolarinwa v. Williams, 593 F.3d

226, 231 (2d. Cir. 2010).

Here, Plaintiff received a Right to Sue letter from the EEOC on March 13, 2025. See

ECF No. 1 at 9; ECF No. 37 at 15. Plaintiff filed her claim on June 13, 2025, ninety-two days

after the reception of the letter. See ECF No. 1 at 1. Thus, Plaintiff’s claims are time-barred, as

she filed her claims two days past the deadline. See Sherlock v. Montefiore Medical Center, 84

F.3d 522, 525 (2d. Cir. 1996).

2. Plaintiff’s Untimeliness Cannot Be Equitably Tolled

Plaintiff requests that the Court toll the 90-day filing deadline and excuse the

untimeliness of her lawsuit. See ECF No. 14 at 1–2. Plaintiff cites various equitable

considerations, including her reliance on purportedly conflicting information from an EEOC

investigator regarding the proper filing deadline, Plaintiff’s depression, and emotional distress

from an unrelated domestic dispute. See id.

In the Second Circuit, “[t]he filing requirement . . . is not absolute and is subject to

equitable tolling.” Sauveur v. Federation of Organization, 1999 WL 2994449, at *3 (E.D.N.Y.

July 19, 2019) (quoting Perez v. Harbor Freight Tools, 698 F. App’x 627, 628 (2d. Cir. 2017)).

“As a general matter, a litigant seeking equitable tolling must establish two elements: ‘(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing.’” Williams, 593 F.3d 226 at 231 (quoting Lawrence v. Florida,

549 U.S. 327, 336 (2007)). However, “Title VII time limitations must be strictly construed,” and

therefore, “this Court’s power to toll the limitations period is not absolute.” Smith v. Henderson,

137 F. Supp. 2d 313, 317 (S.D.N.Y. 2001); see also Irwin v Department of Veterans Affairs, 498

U.S. 89, 94–96 (1990) (declining to equitably toll the limitations period for what was “at best a

garden variety claim of excusable neglect”). Equitable tolling should be applied “only in the rare

and exceptional circumstances, in which a party is prevented in some extraordinary way from

exercising his rights.” Baroor v. N.Y.C. Dep’t of Educ., 362 Fed. Appx. 157, 159 (2d. Cir. 2010)

(quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d. Cir. 2003)); see also

Farrell v. Smithtown Union Free Sch. Dist., No. 20-CV-0450, 2022 WL 687124, at *6 (E.D.N.Y.

Jan. 12, 2022) (citing Bertin v. United States, 478 F.3d 489, 494 n.3 (2d. Cir. 2007) (quoting

Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (declining to toll the limitations period where

the plaintiff failed to allege how the defendant prevented the plaintiff from exercising his rights

or that he was diligently pursuing them in the first place)). Such circumstances with regards to

42 U.S.C. § 2000e-5(f)(1) occur “only when: (1) the complainant was not adequately informed

of the ninety-day limitation by the EEOC; (2) a motion for appointment for counsel is pending;

or (3) the complainant was led to believe that all prerequisites were satisfied.” Henderson, 137

F. Supp. 2d at 318.

Here, the issue turns on whether Plaintiff was adequately informed of the 90-day

limitation. Plaintiff asserts that the limitations period should be equitably tolled because she

detrimentally relied on conflicting deadline information from EEOC investigator Silvia Deng-

Batista. See ECF No. 37 at 1. Ms. Deng-Batista allegedly informed Plaintiff that June 13, 2025,

rather than June 11, 2025, was the last day she could file her claim. See id. Plaintiff claims that

her reliance on the mistaken information caused her delay in filing until June 13, 2025. See id.

Where a plaintiff relies on conflicting information regarding filing deadlines, “[t]he Second

Circuit has held that equitable tolling is appropriate only when the government deliberately

misled the plaintiff to rely to his detriment.” Henderson, 137 F. Supp. 2d 313 at 318.

There is no allegation that Deng-Batista’s alleged misstatements were deliberate.

Plaintiff has not provided transcripts of her calls, nor any other evidence suggesting that Ms.

Deng-Batista had intentionally provided Plaintiff with an incorrect filing deadline. See generally

ECF No. 37. Plaintiff’s Right to Sue Letter from the EEOC also stated in bold: “your lawsuit

must be filed WITHIN 90 days of your receipt of this notice.” ECF No. 1 at 9. Even if Plaintiff

received conflicted information from Ms. Deng-Batista, Plaintiff had clear written instructions

informing her of the 90-day filing deadline. See Henderson, 137 F. Supp. 2d 313 at 318–19

(refusing to toll the limitations period where the plaintiff untimely filed after relying on deadline

misinformation by an EEOC official because she received a letter explicitly mandating a 90-day

window); Spira v. Ethical Culture Sch., 888 F. Supp. 601, 602 (S.D.N.Y. 1995) (declining to toll

the limitations period where an EEOC official erroneously told the plaintiff that the 90-day

period was counted through business days rather than calendar days). Because Plaintiff received

clear written instructions regarding her deadline to file this lawsuit, she was adequately informed

of the mandatory time frame in which to bring the lawsuit.

Plaintiff also asserts that her depression and emotional distress—caused in part by an

unrelated domestic dispute—prevented her from timely filing this lawsuit. See ECF No. 37 at 1,

6. Plaintiff’s argument is unavailing. “A plaintiff seeking to toll the statute of limitations on

equitable grounds such as illness bears the burden to show that the limitations period should be

extended.” Braham v. State Ins. Fund, No. 97-CV-7121, 1999 WL 14011, at *3 (S.D.N.Y. Jan.

14, 1999); see also Rhodes v. Senkowski, 82 F. Supp. 2d 160, 169 (S.D.N.Y. 2000) (declining to

extend the limitations period because of the “mere fact that [the plaintiff] suffered with physical

and mental ailments). Plaintiff must connect how the claimed mental or emotional ailments

adversely affected her ability to pursue her rights diligently. See Boos v. Runyon, 201 F.3d 178,

184–85 (2d. Cir. 2000). In Boos, the Court rejected a Title VII action tolling argument where a

plaintiff only proffered vague descriptions of suffering from “paranoia, panic attacks, and

depression,” which amounted to conclusory allegations that those ailments affected her ability to

seek counsel. Likewise, Plaintiff summarily alleges that she received mental-health treatment for

depression and was also under emotional distress (caused by an unrelated domestic dispute) but

does not connect either allegation to her inability to timely file. See generally ECF Nos. 1, 37.

Accordingly, the undersigned finds that Plaintiff has not sufficiently alleged extraordinary

circumstances warranting an equitable tolling of the limitations period.

IV. CONCLUSION

For the above reasons, the undersigned recommends that Plaintiff’s Title VII, NYSHRL,

and NYCHRL claims be dismissed without prejudice.3

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14)

days from service of this Report and Recommendation to file written objections. See also FED.

3 See Ighile v. Kingsboro ATC, No. 08-CV-450, 2012 WL 12860130, at *3 (E.D.N.Y. Sept. 10, 2012)

(declining to exercise supplemental jurisdiction over NYCHRL claims as the District Court has the discretion to do

so if it has already dismissed all federal claims pursuant to 28 U.S.C. § 1367(c)(3), noting that “in the usual case in

which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to

exercise jurisdiction over the remaining state-law claims” (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 n.7 (1988))).

R. CIV. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time

for filing objections must be directed to Judge Brown. FAILURE TO FILE TIMELY OBJECTIONS

SHALL CONSTITUTE A WAIVER OF THOSE OBJECTIONS BOTH IN THE DISTRICT COURT AND ON LATER

APPEAL TO THE UNITED STATES COURT OF APPEALS. See Thomas v. Arn, 474 U.S. 140, 154–55

(1985); Frydman v. Experian Info. Sols., Inc., 743 F. App’x 486, 487 (2d Cir. 2018); McConnell

v. ABC-Amega, Inc., 338 F. App’x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3d

566, 569 (2d Cir. 1995).

SO ORDERED:

Dated: Central Islip, New York

July 15, 2026 /s/ Lee G. Dunst__

LEE G. DUNST

United States Magistrate Judge