Boykin v. KeyCorp

05-2158-cv

Boykin v. KeyCorp

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2006

(Argued: May 3, 2007 Decided: March 27, 2008)

Docket No. 05-2158-cv

____________________________________________

YVETTE BOYKIN,

Plaintiff-Appellant,

–v.–

KEYCORP and its Subsidiary,

KEY BANK NATIONAL ASSOCIATION,

doing business as KEYBANK,

Defendants-Appellees,

STATE OF NEW YORK DIVISION OF HUMAN RIGHTS and

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants.

____________________________________________

Before: WINTER, CALABRESI and SOTOMAYOR, Circuit Judges.

____________________________________________

Appellant Yvette Boykin challenges the judgment of the United States District Court for

the Western District of New York dismissing all of her claims under the Fair Housing Act, 42

U.S.C. § 3601 et seq. (“FHA”), as untimely and, in the alternative, dismissing her FHA disparate

treatment claim as insufficiently pleaded. We hold that the district court erred in dismissing

Boykin’s claims as untimely because it considered Boykin’s administrative proceeding no longer

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“pending,” and the two-year filing period no longer tolled, as of the date of a case-closed letter

that Boykin received from the New York State Division of Human Rights, rather than the final

letter that she received from the United States Department of Housing and Urban Development

regional office notifying her that investigation of her complaint was complete. We also hold that

Boykin’s disparate treatment claim satisfied the pleading standard of Federal Rule of Civil

Procedure 8(a). We therefore VACATE the judgment of the district court and REMAND the

case for further proceedings.

Judge Winter concurs in a separate opinion.

SANFORD I. WEISBURST (Jeffrey A. Conciatori,

William B. Adams, on the brief), Quinn Emanuel

Urquhart Oliver & Hedges, LLP, New York, New

York, for plaintiff-appellant.

CHRISTOPHER J. HARRIGAN (Laurence B.

Oppenheimer, on the brief), Hiscock & Barclay,

LLP, Buffalo, New York, for defendants-appellees.

SOTOMAYOR, Circuit Judge:

Plaintiff-appellant Yvette Boykin sued defendants-appellees KeyCorp and Key Bank

National Association (collectively, “KeyBank”) for violations of a number of federal and state

statutes, including the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), after KeyBank

denied her application for a home equity loan. Boykin appeals the judgment of the United States

District Court for the Western District of New York (Skretny, J.) dismissing all of her FHA

claims as untimely and, in the alternative, dismissing her FHA disparate treatment claim as

insufficiently pleaded. We conclude that Boykin’s claims were timely because her administrative

proceeding remained pending before the United States Department of Housing and Urban

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Development (“HUD”), and the two-year period for filing a complaint was tolled, until the date

of HUD’s final letter informing Boykin that it had terminated the proceeding, rather than the

earlier date of the New York State Division of Human Rights (“NYDHR”) case-closed letter.

We conclude that Boykin’s disparate treatment claim satisfied the pleading standard of Federal

Rule of Civil Procedure 8(a) and should not have been dismissed as insufficiently pleaded. We

therefore VACATE the district court’s dismissal of Boykin’s claims and REMAND her case for

further proceedings.

BACKGROUND

The following facts are presented in Boykin’s complaint or in documents that, although

not attached to the complaint, are integral to it. See Holowecki v. Fed. Express Corp., 440 F.3d

558, 565-66 (2d Cir. 2006), aff’d, 552 U.S. — , 128 S. Ct. 1147 (2008). In reviewing a motion to

dismiss, we accept the allegations in the complaint as true. Hill v. City of New York, 45 F.3d

653, 657 (2d Cir. 1995).

Boykin, an African-American woman who resides in Georgia, owns and lets a

multifamily house in a minority-concentrated neighborhood in Buffalo, New York. On August 1,

2001, she applied in person for a non-owner-occupied home equity loan on her Buffalo property

at a Buffalo branch of KeyBank. The loan officer with whom she met told her that her loan

application had been conditionally approved based on her credit report. Later that day, however,

the loan officer telephoned Boykin to inform her that her application had been denied because

she did not live in New York State. The loan officer stated that he had been unaware of

KeyBank’s policy against making loans to out-of-state applicants. He did not offer Boykin any

alternative means of obtaining financing through KeyBank. On August 16, 2001, Boykin

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received a form denial from KeyBank stating that her loan had been denied because she was “out

of [the] servicing area.”

On August 8, 2001,1 Boykin filed a complaint with HUD, in which she alleged that

KeyBank had discriminated against her on the basis of race, sex, and the location of the property

“in a minority concentrated neighborhood.” On September 27, 2001, Boykin received a letter

from the HUD regional director for New York (the “referral letter”) informing her that her

complaint had been referred for investigation to the regional director of NYDHR in Buffalo

pursuant to 42 U.S.C. § 3610(f), which allows HUD to delegate investigation of complaints to

state and local agencies that have been certified by the Secretary of HUD.2 The letter stated that

“[u]nless otherwise notified, [NYDHR] will be responsible for all processing action on this

complaint,” and directed Boykin to refer all correspondence and inquiries to NYDHR. The letter

also stated that Boykin had two years in which to file a civil action after the alleged

1

Boykin signed and dated her complaint August 8, 2001, and the district court deemed

this to be the date on which Boykin’s administrative proceedings commenced “pending” before

HUD. Boykin v. KeyCorp, No. 03-cv-944S, 2005 WL 711891, at *4 (W.D.N.Y. Mar. 28, 2005).

However, the HUD referral letter and a copy of Boykin’s administrative complaint indicate

September 27, 2001 as the applicable filing date. Because we hold that Boykin’s administrative

proceeding was pending until February 26, 2002, Boykin’s complaint in the district court is

timely regardless of whether her administrative proceeding commenced on August 8 or

September 27, 2001.

2

This provision of the FHA provides that “[w]henever a complaint alleges a

discriminatory housing practice” within the jurisdiction of a certified state or local public agency,

“the Secretary shall refer such complaint to that certified agency before taking any action with

respect to such complaint.” 42 U.S.C. § 3610(f)(1). The Secretary may certify a state or local

public agency to receive referrals of FHA complaints only after determining that “(i) the

substantive rights protected by such agency in the jurisdiction with respect to which certification

is to be made; (ii) the procedures followed by such agency; (iii) the remedies available to such

agency; and (iv) the availability of judicial review of such agency’s action[] are substantially

equivalent to those created by and under this subchapter.” Id. § 3610(f)(3)(A).

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discriminatory practice occurred, and that “[t]he two year period does not include the time the

complaint is pending before this Department.”

On December 3, 2001, NYDHR sent Boykin a letter styled “Determination and Order

After Investigation” (the “NYDHR case-closed letter”), in which it stated that it had found “NO

PROBABLE CAUSE to believe that [KeyBank] has engaged in or is engaging in the unlawful

discriminatory practice complained of.” The letter explained that “[t]he investigation did not

reveal any evidence” to support Boykin’s allegations and that her “application for a home equity

loan was rejected for legitimate non-discriminatory business reasons.” Further, the letter

mentioned that documentation showed that KeyBank has “also denied loan applications from

Caucasian applicants at a higher rate than for minority applicants.” After stating that “[t]he

complaint is therefore ordered dismissed and the file is closed,” the NYDHR case-closed letter

informed Boykin that she had the right to appeal NYDHR’s determination in New York State

Supreme Court within sixty days. It also warned her that if she pursued judicial review of the

agency’s disposition of her complaint and received an adverse determination, she could “lose . . .

her right to proceed subsequently in federal court.” The NYDHR case-closed letter said nothing

about the two-year limitations period for filing a civil action in federal district court.

On February 26, 2002, Boykin received a letter from the HUD regional director for New

York (the “final letter”) stating that it “ha[d] received notification that processing of [Boykin’s]

complaint is complete and . . . the subject complaint has been closed by [NYDHR].” Therefore,

the final letter said, “[t]he complaint filed with the HUD Office of Fair Housing and Equal

Opportunity has been closed based on this information.” The final letter further informed Boykin

that she might be able to appeal the NYDHR determination under state or local law. It also

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reiterated that she had two years in which to file a civil action, and that “[t]he computation of this

two-year period does not include the time during which this administrative proceeding was

pending.”

On December 19, 2003, Boykin filed suit pro se in the United States District Court for the

Western District of New York against KeyBank, HUD and NYDHR asserting claims under the

FHA; the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982; Title VI of the Civil Rights Act of

1964, 42 U.S.C. § 2000d et seq.; and the Equal Credit Opportunity Act, 15 U.S.C. § 1691.

Boykin stated that, as an African-American woman, KeyBank treated her “differently

from similarly situated loan applicants not in the protected classes, despite her qualifications for

the loan[,] because of her race, sex and the location of the property in a predominantly African

American neighborhood.” Compl. ¶ 11. She stated that “[u]pon information and belief, persons

who were not members of the protected classes received loans and were more favorably treated

in the loan application process than [she] with regard to the same or similar types of properties.”

Id. She alleged further that KeyBank’s reliance on its policy against loaning to out-of-state

applicants was pretextual because (1) upon information and belief, the policy was not the true

reason for the denial, and (2) KeyBank did not counsel her regarding other options that non-

minority loan applicants received. Id. ¶ 12. Finally, Boykin alleged that she was “disparately

impacted” by KeyBank’s policy because “it was not uniformly applied” and because “[KeyBank]

utilizes a formula, criterion, rationale, standard of acceptance or business policy of reviewing

loan applications” that disproportionately denied loan applications by minority applicants or

residents of minority-concentrated neighborhoods. Id. ¶ 13.

On March 28, 2005, the district court granted KeyBank’s motion to dismiss Boykin’s

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claims. Boykin v. KeyCorp, No. 03-cv-944S, 2005 WL 711891 (W.D.N.Y. Mar. 28, 2005). The

court concluded that all of Boykin’s FHA claims were untimely because the two-year limitation

period for filing a claim was only tolled while an administrative proceeding was pending, and the

court considered Boykin’s proceeding closed upon issuance of the NYDHR case-closed letter.

Id. at *4. The court explained that “once HUD referred Plaintiff’s claim to the NYDHR, it could

take no further action on the complaint, . . . [and therefore] Plaintiff’s Complaint was no longer

pending after the NYDHR made its determination.” Id. In the alternative, the district court held

that Boykin’s FHA disparate treatment claim was insufficiently pleaded. Id.3 The district court

also dismissed Boykin’s claims against KeyBank under other statutes, id. at *5-7, and all of her

claims against HUD and NYDHR, id. at *7-11.

Boykin, still proceeding pro se, filed a notice of appeal in this Court on April 25, 2005,

appealing only from the district court’s dismissal of her FHA claims against KeyBank.4 In an

order dated November 29, 2005, a prior panel of this Court directed the appointment of counsel

to represent Boykin and brief the issues of the timeliness and appropriate pleading standard for

her FHA claims.

Following oral argument before this panel, we directed HUD to submit a letter brief

describing its past and present practice of issuing final letters formally closing referred

3

The court noted, however, that Boykin’s disparate impact claim, if timely, would have

stated a claim upon which relief could be granted. Boykin, 2005 WL 711891, at *4 n.6. Whether

Boykin’s disparate impact claim was sufficiently pleaded is not before us because KeyBank did

not cross-appeal this aspect of the district court’s decision. We express no opinion on the

pleading requirements for an FHA disparate impact claim.

4

Because Boykin appeals only the dismissal of her FHA claims against KeyBank, we do

not address her claims under other statutes or against other defendants.

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complaints. HUD informed us that the issuance of final letters varies by region. Letter from

Kim Kendrick, Assistant Sec’y for Fair Hous. and Equal Opportunity, U.S. Dep’t of Hous. &

Urban Dev. (June 6, 2007), at 1 (“HUD Letter”). HUD has ten regional offices, and each Fair

Housing and Equal Opportunity Act Region Director “determines the practice in that region

regarding the issuance of a separate HUD letter.” Id. Four of the ten HUD regional offices,

including the office that is responsible for New York, issue a final letter for every case in their

region.5 Id. Although the HUD Letter stated that a final letter confirms the certified agency’s

closure “as a ministerial matter,” id., it also explained that the purpose of this final letter is “to

advise complainants of their right to file a private civil action pursuant to 42 U.S.C. [§] 3613.”

Id. Finally, the HUD Letter stated that “[a]s a matter of practice, HUD regards the letter

emanating from the [state or local] agency as ending the administrative proceeding.” Id.

DISCUSSION

I. Timeliness of Boykin’s Complaint

The district court’s timeliness determination was a matter of statutory interpretation,

which we review de novo. See Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006). The FHA

provides that an “aggrieved person” has two years from the occurrence or termination of an

alleged discriminatory practice in which to commence a civil action. 42 U.S.C. § 3613(a)(1)(A).

However, “[t]he computation of such 2-year period shall not include any time during which an

5

The four regional offices that issue final letters cover the following states: New York

and New Jersey (New York City region); Delaware, Maryland, Pennsylvania, Virginia, West

Virginia and the District of Columbia (Philadelphia region); Iowa, Kansas, Missouri and

Nebraska (Kansas City region); and Arizona, California, Hawaii and Nevada (San Francisco

region). See Attachment to HUD Letter. We note that the HUD regional offices responsible for

the other two states within this Court’s jurisdiction, Connecticut and Vermont, do not issue final

letters. Id.

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administrative proceeding under this subchapter was pending with respect to a complaint or

charge under this subchapter based upon such discriminatory housing practice.” Id.

§ 3613(a)(1)(B). When, as in this case, a complaint has been filed with HUD and referred to a

certified state or local agency for investigation, the statute’s reference to “an administrative

proceeding” is ambiguous: it is unclear whether the phrase refers to the proceeding before HUD,

the proceeding before the certified agency, or both. The ambiguity was exacerbated in this case

because Boykin received two letters, one from NYDHR and one from the HUD regional office,

each notifying her that her complaint was terminated after investigation.

Had HUD issued a regulation addressing when “an administrative proceeding under this

subchapter” is no longer “pending” for the purposes of calculating the two-year filing limitation,

we would defer to the interpretation in that regulation under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), so long as it was not “arbitrary,

capricious, or manifestly contrary to the statute,” id.; see also Meyer v. Holley, 537 U.S. 280,

287-88 (2003) (indicating that Chevron deference is appropriate for FHA regulations

promulgated by HUD); United States v. Mead Corp., 533 U.S. 218, 227-31 (2001) (explaining

when agency interpretation is entitled to Chevron deference). But HUD has not issued a rule or

regulation on this question. Our only guidance from HUD comes from the letter it has submitted

explaining how it handles the termination of referred complaints “[a]s a matter of practice.”

HUD considers the administrative proceeding terminated on the date of a certified agency case-

closed letter, even for those cases in which a HUD regional office has issued a final letter to the

complainant notifying her that investigation of her complaint is complete. It is this narrow

category of practice—determining that a proceeding is no longer “pending” before HUD as of the

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date of the certified agency case-closed letter, in cases where HUD has sent to the complainant a

final letter disposing of the proceeding—that we consider here. We express no opinion about

cases in which a complainant, for whatever reason, does not receive a final letter, even when the

HUD regional office for that jurisdiction generally issues such letters.

We consider the informal, unpublished “practice” described in the HUD Letter under the

framework for a more limited standard of deference described in Skidmore v. Swift & Co., 323

U.S. 134 (1944). See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (holding that

agency interpretations “in opinion letters . . .[,] policy statements, agency manuals, and

enforcement guidelines, all of which lack the force of law” are entitled only to Skidmore

deference). Under Skidmore, the weight we accord an agency interpretation depends upon “the

thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors which give it power to persuade.” Skidmore, 323

U.S. at 140; see also De La Mota v. U.S. Dep’t of Educ., 412 F.3d 71, 80 (2d Cir. 2005) (“[T]he

weight accorded to [agency] interpretations [under Skidmore] depends on their ‘thoroughness,’

‘validity,’ ‘consistency,’ and ‘power to persuade.’” (quoting Skidmore, 323 U.S. at 140)).

Evaluating the Skidmore factors here, we do not find persuasive HUD’s interpretation of

when a proceeding is no longer “pending” in this situation where a regional office sends a final

closure letter. As an initial matter, we note that HUD’s own characterization of this

interpretation as “a matter of practice” does not suggest that it was thoroughly considered. Nor

can we conclude, on the record before us, that HUD’s practice is validly reasoned. We have

explained that the “validity” inquiry looks to whether an agency interpretation is “well-reasoned,

substantiated, and logical.” De La Mota, 412 F.3d at 80. HUD offers no explanation of the

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considerations or reasoning underlying its practice, except perhaps its conclusory statement that

final letters are issued “as a ministerial matter.” See Detsel v. Sullivan, 895 F.2d 58, 65 (2d Cir.

1990) (declining to accord Skidmore deference when, among other reasons, the agency “has

failed to produce any evidence indicating the rationale for [its] interpretation”). Further, HUD’s

practice appears to rest on an implicit assumption, not substantiated by the statute, that the

proceeding before HUD is necessarily coterminous with the proceeding before the certified

agency. Yet the text of the statute indicates that, under certain circumstances, there may be

proceedings pending before HUD even after a certified agency has terminated its investigation.

The FHA provides that “[e]xcept with the consent of such certified agency, the Secretary . . .

shall take no further action with respect to [a referred] complaint” unless one of three conditions

is met: (1) the certified agency has not commenced proceedings within thirty days of referral; (2)

the certified agency, having commenced proceedings within thirty days, has not conducted them

with “reasonable promptness”; or (3) the Secretary determines that the agency no longer qualifies

for such certification. 42 U.S.C. § 3610(f)(2).

The district court held that because none of these three conditions existed, HUD could not

take further action on Boykin’s complaint, and termination of the NYDHR investigation meant

that Boykin’s proceeding was no longer “pending.” See Boykin, 2005 WL 711891, at *4.

However, the district court’s conclusion ignored the prefatory clause that introduces these three

conditions and makes clear that they apply only when HUD has not obtained consent of the

certified agency to take further action. See 42 U.S.C. § 3610(f)(2) (stating that, “[e]xcept with

the consent of such certified agency,” HUD “shall take no further action” on a referred complaint

unless one of the three conditions described above is met). Indeed, an agency regulation

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explicitly provides that HUD may “reactivate” a referred complaint when the state agency

“consents or requests the reactivation.” 24 C.F.R. § 103.110.6 HUD’s authority, under certain

circumstances, to take further action on a referred complaint suggests that a final letter from the

HUD regional office and the certified agency case-closed letter are not necessarily redundant. In

other words, because HUD may take further action on a referred complaint, with or without

agency consent, a complainant such as Boykin who receives a final letter from the HUD regional

office after a certified agency case-closed letter cannot assume—as HUD’s practice would have

her do—that the proceeding pending before HUD necessarily terminated when the certified

agency closed its investigation and that the final letter is purely ministerial.7

6

KeyBank counters that even consensual reactivation was not an option for HUD in this

case. It relies for this proposition on a 2004 Memorandum of Understanding between HUD and

NYDHR that lays out the terms of the referral process. Memorandum of Understanding, dated

March 10, 2004, between the HUD and NYDHR (“MOU”). The MOU specifies four

circumstances under which HUD may seek NYDHR’s consent to reactivate a complaint: (1) if

the respondent is a federal, state or local agency; (2) if the respondent has property outside the

state agency’s jurisdiction; (3) if the case is “systemic”; or (4) if handling the case would cause

the state agency a conflict of interest. MOU at 8-9. KeyBank contends that none of those

circumstances existed in this case. As an initial matter, we note that HUD and NYDHR executed

the MOU after closing their investigations of Boykin’s complaint. But even assuming that it

would be proper to consider the MOU, KeyBank’s position is unpersuasive. HUD could have

determined, after referring Boykin’s complaint to NYDHR, that KeyBank had property beyond

NYDHR’s reach, that the complaint presented a “systemic” issue, or that NYDHR would face a

conflict of interest in investigating Boykin’s claims. Only with the benefit of hindsight is it clear

that HUD did not decide to seek consensual reactivation on any of these grounds. In addition,

the MOU does not suggest that the four circumstances under which HUD may seek consensual

reactivation are exhaustive; it simply states that “[t]he following situations are bases for

reactivation under this paragraph.” Id. at 8. In sum, the terms of the MOU, along with the three

statutory conditions under which HUD may take further action on a referred complaint without

agency consent, suggest that HUD retained the option to reactivate its own investigation even

after NYDHR’s case-closed letter.

7

Judge Winter’s confidence that “HUD’s ‘closing’ of a case that has been referred to a

local certified agency is [a] legal non-event” is perplexing in light of the fact that, under certain

circumstances, HUD may take further action with respect to a referred complaint even after the

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As for consistency, HUD’s practice conflicts with the suggestion, manifest in the

correspondence between HUD’s regional office and Boykin, that there is a distinction between

the proceeding before HUD and that before the certified agency.8 For example, HUD’s referral

letter to Boykin notified her that her complaint had been referred to NYDHR and stated that the

two-year time limit for filing a civil action in district court “does not include the time the

complaint is pending before this Department” (emphasis added). However, after notifying

Boykin that her complaint had been referred to NYDHR, the letter described NYDHR as “the

agency,” and not the “Department.” The referral letter thus suggested that the time period was

tolled while proceedings were pending before HUD, as distinguished from while they were

simply pending before NYDHR. The final letter stated that HUD “has received notification that

processing of the subject complaint is complete and that the subject complaint has been closed by

the [state] agency. The complaint filed with the HUD Office of Fair Housing and Equal

Opportunity has been closed based on this information.” With regard to the filing limitation for

Boykin’s claims, it also stated that “[t]he computation of this two-year period does not include

the time during which this administrative proceeding was pending” (emphasis added). Although

the final letter did not define “this administrative proceeding,” the fact that the phrase appeared

in a letter from the HUD regional office directly suggested that it referred to the proceeding

before HUD. Moreover, the NYDHR case-closed letter did not address the two-year filing

certified agency has terminated its investigation.

8

The record before us includes only correspondence from the HUD regional office for

New York. We express no opinion about HUD’s practice or the content of its correspondence

with complainants in other jurisdictions, including those regional offices that do not issue final

letters.

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limitation, only the HUD letters did, thus reinforcing the inference that “this administrative

proceeding” referred specifically to the HUD proceeding. The referral letter and the final letter,

read together, suggest that whether a proceeding was pending before HUD was not necessarily

the same as whether one was pending before NYDHR. HUD’s practice of considering the

proceeding terminated when the certified agency closed its investigation, even though the

complainant received a final letter from the HUD regional office, runs directly contrary to this

suggestion.

Finally, because this practice potentially misleads complainants about the date on which

their two-year filing limitation is no longer tolled, it may present additional problems in light of

HUD’s notice obligations.9 HUD’s own regulations require it to provide adequate notice to

complainants of their right to file a private civil action under 42 U.S.C. § 3613 and the time

limitations on such filing. See 24 C.F.R. § 103.100 (requiring notice to complainant of referral

of the complaint, of his or her right to commence a civil action under § 3613 within two years,

and “that the computation of this two-year period excludes any time during which a proceeding is

pending under this part”). The legislative history of the FHA emphasizes the importance of

HUD’s notice obligation. See H.R. Rep. No. 100-711, at 33 (1988), as reprinted in 1988

U.S.C.C.A.N. 2173, 2194 (“These notice requirements underscore the roles to be played by HUD

9

Further, it appears that a complainant has no way of knowing in advance whether he or

she will receive a final letter from the HUD regional office. As stated above, our opinion

addresses only those cases in which a complainant does receive a final letter from the HUD

regional office for New York. Nonetheless, HUD may wish to address more comprehensively

the ambiguity regarding when a claim that has been referred to a certified agency is no longer

“pending” for the purposes of the two-year limitations period, either by issuing a regulation or by

clarifying and standardizing the correspondence that all of its regional offices send to

complainants.

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in the administrative process. Both the aggrieved person and the respondent may rely on HUD

for information and advice, although either or both may engage their own counsel to assist and

represent them.”); cf. Peterson v. Ins. Co. of N. Am., 40 F.3d 26, 31 (2d Cir. 1994) (holding that

even if the Equal Employment Opportunity Commission is not required to notify claimant about

applicable limitations period, “once [it] undertakes to provide such information, it must do so

with greater clarity than is shown on this record”).

For all of these reasons, we find unreasonable HUD’s practice of determining that the

administrative proceeding was no longer pending as of the date of the certified agency case-

closed letter when, as in this case, a HUD regional office has sent a subsequent, final letter. We

hold that when a complainant receives a final letter from a HUD regional office, stating that

HUD has closed its investigation based on notification that the certified agency to which the

complaint was referred has closed its investigation, we will consider the administrative

proceeding to have been “pending,” and the filing limitation tolled, until the date of the final

letter.10

10

We do not agree with Judge Winter that this case could be decided more easily on

equitable tolling grounds. First, although Judge Winter assumes that the FHA is subject to

equitable tolling, this Court has never so held. To decide the question would require more

analysis than simply establishing, as Judge Winter’s opinion does, that Congress knew of the

doctrine. See Acierno v. Barnhart, 475 F.3d 77, 81 (2d Cir. 2007) (“In order to read an implied

equitable tolling provision into a statute that contains no such express provision, we must

determine whether equitable tolling is consistent with Congress’ intent in enacting the statutory

scheme.” (internal quotation marks and alterations omitted)). Second, the Supreme Court and the

Second Circuit have cautioned that “[e]quitable tolling is a rare remedy to be applied in unusual

circumstances, not a cure-all for an entirely common state of affairs.” Wallace v. Kato, 127 S.

Ct. 1091, 1100 (2007); see also Zerilli-Edelglass v. N. Y. City Transit Auth., 333 F.3d 74, 80 (2d

Cir. 2003) (“[E]quitable tolling is only appropriate in rare and exceptional circumstances in

which a party is prevented in some extraordinary way from exercising his rights.” (internal

quotation marks, citations, and alterations omitted)). Judge Winter’s rationale for equitably

tolling the limitations period—that the HUD final letter could reasonably be read to suggest that

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In the present case, Boykin’s administrative proceeding was “pending” from August 8,

2001, the date of her administrative complaint, until February 26, 2002, the date of the final

letter. The two-year filing limitation was tolled during this time. Boykin’s FHA claims, filed

with the district court on December 19, 2003, were therefore within the applicable limitation

period and should not have been dismissed as untimely.

II. Sufficiency of the Pleadings

The district court held in the alternative that even if Boykin’s claims were timely, her

disparate treatment claim should be dismissed as insufficiently pleaded. Boykin, 2005 WL

711891, at *4. It found, citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), that a plaintiff

claiming disparate treatment under the FHA need “only allege facts sufficient to state a claim,”

not facts sufficient to establish a prima facie case. Boykin, 2005 WL 711891, at *3. The district

court concluded, however, that Boykin’s complaint was deficient even under this standard. Id. at

*4. Although the district court stated that it was dismissing Boykin’s complaint for failure to

state a claim, ostensibly under Federal Rule of Civil Procedure 12(b)(6), it appears to have

dismissed based on the alleged insufficiency of Boykin’s pleadings under Rule 8(a). Id. We

review a district court’s dismissal for failure to comply with Rule 8(a) for abuse of discretion.

See Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (applying abuse of discretion standard

when claim was dismissed under Rule 12(b)(6) because the reason for dismissal was failure to

the limitations clock begins to tick as of the date of that letter—would hold true at least for every

individual who received a final letter from HUD’s regional New York office. But to permit

equitable tolling for this entire class of individuals would threaten to extend the doctrine beyond

its limitation to “rare and exceptional circumstances.” Moreover, the very existence of such a

class suggests a broader ambiguity in the statutory and regulatory framework regarding the

administration of referred FHA complaints. For these reasons, we think it is better to address this

ambiguity directly rather than through the equitable tolling doctrine.

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satisfy Rule 8’s pleading standard); see also Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)

(reviewing dismissal for failure to comply with Rule 8(a) for abuse of discretion).

a. The Pleading Standard under Rule 8(a)

As an initial matter, we agree with the district court that Swierkiewicz does not require

Boykin to plead facts sufficient to establish a prima facie disparate treatment claim.

Swierkiewicz held that a plaintiff asserting disparate treatment claims under Title VII and the Age

Discrimination in Employment Act (“ADEA”) need not allege “specific facts establishing a

prima facie case of discrimination” under McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 508. The Court explained that

the McDonnell Douglas burden-shifting framework “is an evidentiary standard, not a pleading

requirement,” id. at 510, and that to require more than Rule 8(a)’s “simplified notice pleading

standard” would unjustifiedly impose a heightened pleading requirement on the plaintiff, id. at

512-13. Applying this standard, the Court held that Swierkiewicz had “easily satisfie[d] the

requirements of Rule 8(a) because [his complaint] gives respondent fair notice of the basis for

[his] claims.” Id. at 514. The Court noted that Swierkiewicz had:

alleged that he had been terminated on account of his national origin in violation of

Title VII and on account of his age in violation of the ADEA. His complaint detailed

the events leading to his termination, provided relevant dates, and included the ages

and nationalities of at least some of the relevant persons involved with his

termination. These allegations give respondent fair notice of what petitioner’s claims

are and the grounds upon which they rest.

Id. (citations omitted).

Like the Title VII and ADEA employment discrimination claims in Swierkiewicz, FHA

disparate treatment claims like Boykin’s are analyzed using the McDonnell Douglas burden-

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shifting framework. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). We have stated that

“[t]he Swierkiewicz holding applies with equal force to any claim . . . that the McDonnell

Douglas framework covers.” Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006)

(per curiam); see also Lindsay v. Yates, 498 F.3d 434, 439-40 (6th Cir. 2007) (applying

Swierkiewicz to an FHA complaint); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1062 (9th Cir.

2004) (same). Boykin’s complaint need only satisfy Rule 8(a)’s standard of a “short and plain

statement of the claim showing that [she] is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the appropriate standard for assessing the sufficiency of pleadings under Rule

8(a) is the source of some uncertainty in light of the Supreme Court’s decision in Bell Atlantic

Corp. v. Twombly, 127 S. Ct. 1955 (2007). See Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007).

Twombly upheld the dismissal of a claim under section 1 of the Sherman Act, 15 U.S.C. § 1,

because the complaint did not plead “enough facts to state a claim to relief that is plausible on its

face.” Twombly, 127 S. Ct. at 1974. Although much of the Court’s language addressed the

pleading standard for a section 1 claim and the burdens of antitrust litigation specifically, see id.

at 1966-67, the Court’s reasoning suggested “that it intended to make some alteration in the

regime of pure notice pleading,” Iqbal, 490 F.3d at 155. For example, the Court stated that Rule

8(a) requires factual allegations sufficient “to raise a right to relief above the speculative level.”

Twombly, 127 S. Ct. at 1965. It explicitly rejected the longstanding maxim that “‘a complaint

should not be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Id.

at 1968-69 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Yet the Court also affirmed

the vitality of Swierkiewicz, which applied a notice pleading standard, and explained that its

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decision did not “require heightened fact pleading of specifics.” Id. at 1973-74.

After considering these and several other mixed signals in Twombly, this Court concluded

in Iqbal that the Supreme Court “is not requiring a universal standard of heightened fact

pleading, but is instead requiring a flexible ‘plausibility standard,’ which obliges a pleader to

amplify a claim with some factual allegations in those contexts where such amplification is

needed to render the claim plausible.” Iqbal, 490 F.3d at 157-58. We agree with the Iqbal

panel’s conclusion that Twombly focused on the plausibility of the complainant’s claim for relief,

although Iqbal does not offer much guidance to plaintiffs regarding when factual “amplification

[is] needed to render [a] claim plausible.” Id. at 158.

We need not locate the outer bounds of Twombly’s new standard for assessing pleadings

under Rule 8(a) here, because no amplification was necessary in this case. After Twombly, the

Supreme Court issued another decision addressing the sufficiency of a pleading under Rule 8(a),

but this time specifically for a complaint filed pro se. See Erickson v. Pardus, 127 S. Ct. 2197

(2007) (per curiam). The Court reversed the Tenth Circuit’s dismissal of a prisoner’s Eighth

Amendment claim, holding that the court of appeals had “depart[ed] from the liberal pleading

standards” of Rule 8(a). Id. at 2200. The Court reiterated that “[s]pecific facts are not

necessary,” and that the complainant “need only ‘give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.’” Id. (quoting Twombly, 127 S. Ct. at 1964

(internal quotation marks omitted) (alteration in original)). But Erickson also emphasized that

the court of appeals’ departure from Rule 8(a)’s liberal pleading standard was particularly

unwarranted because the complainant was pro se: “A document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must be held to less stringent

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standards than formal pleadings drafted by lawyers.” Id. (internal quotation marks and citations

omitted). We review the sufficiency of Boykin’s pleadings mindful of this duty to construe more

liberally her pro se complaint.

b. Assessing Boykin’s Complaint

Boykin alleges disparate treatment under the provision of the FHA that makes it unlawful

“for any person or other entity whose business includes engaging in residential real estate-related

transactions to discriminate against any person in making available such a transaction, or in the

terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial

status, or national origin.” 42 U.S.C. § 3605(a). The district court held that Boykin’s complaint

was insufficiently pleaded, stating:

While Plaintiff generally alleges that KeyBank discriminated against her based on her

race and sex, the Complaint contains no specific facts supporting her claims. The

only specific acts alleged in the Complaint are that KeyBank denied Plaintiff’s loan

and failed to offer her other loan products. There are no factual allegations

whatsoever that connect KeyBank’s denial of Plaintiff’s loan to a discriminatory

motive or racial animus. In fact, each of Plaintiff’s claims of racial discrimination

is premised “upon information and belief.”

Boykin, 2005 WL 711891, at *4 (internal citations omitted). The court summed up its analysis

by stating that “[i]t is not enough for Plaintiff to simply state that she is a black woman who was

denied a loan.” Id. The district court’s analysis of the sufficiency of Boykin’s complaint errs for

at least three reasons.

First, Boykin’s complaint was sufficient to give KeyBank fair notice of her claim and the

grounds upon which it rests. See Twombly, 127 S. Ct. at 1964; Swierkiewicz, 534 U.S. at 512.

Boykin alleged that (1) she was an African-American woman, Compl. ¶ 2, who, on August 1,

2001, sought a loan from KeyBank for property in a predominantly African-American

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neighborhood, id. ¶¶ 6, 11; (2) she satisfied all of KeyBank’s credit requirements and KeyBank

conditionally approved the loan that day, id. ¶ 6, 9; (3) later the same day, KeyBank denied the

loan, ostensibly on the basis of a policy against loaning to out-of-state applicants of which the

loan officer said he had previously been unaware, id. ¶¶ 7, 8; (4) the true reason for the denial

was her race, her sex and the racial makeup of the neighborhood in which the property was

located, id. ¶¶ 11; (5) similarly situated loan applicants who were not in the protected classes

received loans and were treated more favorably throughout the loan application process, id.; and

(6) KeyBank relied on its policy as a pretext for discrimination, as evidenced in part by the fact

that KeyBank did not offer Boykin the counseling and guidance it offers to other, non-minority

loan applicants after denying their loans, id. ¶ 12. In short, Boykin identified the particular

events giving rise to her claim and alleged that she was treated less favorably than other loan

applicants because of her race, her gender and location of her property, just as the complaint in

Swierkiewicz provided the date and circumstances of the plaintiff’s termination and alleged that

employees of other nationalities were treated differently than the plaintiff.11

Second, the district court improperly faulted Boykin for pleading facts alleged “upon

information and belief.” KeyBank defends the district court’s reasoning by stating that the

complaint “contains not one specific assertion or instance of preferential treatment by KeyBank

employees toward non-minority or male customers.” Yet both Twombly and Erickson explicitly

11

Similarly, the pro se complaint in Erickson simply stated that the prison doctor’s

decision to withhold the petitioner’s hepatitis C medication “was ‘endangering [his] life,’” that

the medication “was withheld ‘shortly after’ petitioner had commenced a treatment program that

would take one year, that he was ‘still in need of treatment for this disease,’ and that the prison

officials were in the meantime refusing to provide treatment.” Erickson, 127 S. Ct. at 2200

(alteration in original).

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disavow that Rule 8(a) requires any plaintiff—let alone a pro se plaintiff—to plead “specific

facts.” Twombly, 127 S. Ct. at 1973-74; Erickson, 127 S. Ct. at 2200. Moreover, as Boykin

correctly observes, the names and records, if any, of persons who were not members of the

protected classes and were more favorably treated in the loan application process is information

particularly within KeyBank’s knowledge and control. Pleading on the basis of information and

belief is generally appropriate under such circumstances. See 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1224 (3d ed. 2004) (“Pleading on information and belief

is a desirable and essential expedient when matters that are necessary to complete the statement

of a claim are not within the knowledge of the plaintiff . . . .”). Indeed, even in the context of

Federal Rule of Civil Procedure 9’s more stringent pleading requirements for pleading “special

matters,” we have held that “allegations may be based on information and belief when facts are

peculiarly within the opposing party’s knowledge.” IUE AFL-CIO Pension Fund v. Herrmann, 9

F.3d 1049, 1057 (2d Cir. 1993) (internal quotation marks omitted).

Third, Boykin is correct that she did not need to allege discriminatory animus for her

disparate treatment claim to be sufficiently pleaded. There is no heightened pleading

requirement for civil rights complaints alleging racial animus, see Phillip v. Univ. of Rochester,

316 F.3d 291, 298-99 (2d Cir. 2003), and this Court has found such claims sufficiently pleaded

when the complaint stated simply that plaintiffs “are African-Americans, describe[d] defendants’

actions in detail, and allege[d] that defendants selected [plaintiffs] for maltreatment ‘solely

because of their color.’” Id. at 298. We have upheld the vitality of this principle since Twombly.

See Iqbal, 490 F.3d at 174-75. Here, it is sufficient that Boykin’s complaint states that she “is an

African American female,” describes KeyBank’s actions with respect to her loan application and

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alleges that she “was treated differently from similarly situated loan applicants . . . because of her

race, sex, and the location of the property in a predominantly African-American neighborhood.”

In sum, Boykin’s allegations, taken as true, indicate the possibility of discrimination and

thus present a plausible claim of disparate treatment. The complaint gives KeyBank notice of

Boykin’s claim and the grounds upon which it rests that is sufficient to satisfy Rule 8(a). We

emphasize that we are expressing no opinion regarding the merits of Boykin’s claim. And that is

precisely the point: even after Twombly, dismissal of a pro se claim as insufficiently pleaded is

appropriate only in the most unsustainable of cases. The merits of a claim like Boykin’s, which

on its face presents a plausible allegation of disparate treatment, should be tested on summary

judgment.12

CONCLUSION

For the foregoing reasons, the judgment of the district court that Boykin’s FHA claims

were untimely and that Boykin’s disparate treatment claim was insufficiently pleaded is

VACATED, and the case is REMANDED for further proceedings consistent with this opinion.

12

We note, however, that the Federal Rules of Civil Procedure provide several additional

checks on the pleading of facts. See Fed. R. Civ. P. 11(b)(3) (requiring “allegations and other

factual contentions [to] have evidentiary support or . . . [be] likely to have evidentiary support

after a reasonable opportunity for further investigation or discovery”); id. 12(e) (allowing a party

to “move for a more definite statement” when “a pleading to which a responsive pleading is

permitted is so vague or ambiguous that a party cannot reasonably be required to frame a

responsive pleading”).

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Boykin v. KeyCorp, No. 05-2158-cv

WINTER, Circuit Judge, concurring,

Respectfully, I concur in the result.

1 In my view, the holding that the two-year limitations period

2 in this matter resumed on the date of HUD’s “final letter” is

3 unsupportable as law or policy and quite unnecessary.

4 “Final letters” are legal non-events. They have no role in

5 the language of the underlying statute or regulations. At the

6 administrative level, sending “final letters” is not a uniform

7 practice of local HUD offices. Some HUD offices, including those

8 in Connecticut and Vermont, two states with local certified

9 agencies that are governed by the decisions of this court, do not

10 send any such letters. Some HUD offices, other than that of New

11 York, do send letters of some kind, but we have no idea what

12 their content is. The practice of the New York HUD office (and

13 any other HUD offices) of sending such letters can change at any

14 time, as can the content of any letters it (or others) sends.

15 My colleagues give the “final letter” stature as reflecting

16 HUD’s “closing” of a case. However, unlike the local certified

17 agency’s closing of a HUD complaint, a formal act with legal

18 significance, see N.Y. COMP . CODES R. & REGS . tit. 9, § 465.5

19 (2008); Memorandum of Understanding Between The Department of

20 Housing and Urban Development and the New York State Division of

21 Human Rights §§ IV.G.2, VII.F.6, HUD’s “closing” of a case that

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1 has been referred to a local certified agency is another legal

2 non-event. We know that there are no communications to

3 complainants reflecting a HUD “closing” in many states, such as

4 Connecticut and Vermont, and whether any particular date of

5 “closing” can be determined in such states is unknown. “Final

6 letters” and “closings” by HUD are thus acts that may or may not

7 have concrete manifestations and are often indeterminable.

8 Because a “final letter” and a local HUD “closing” are not

9 regularized events, they may bear no relationship to decisions at

10 a higher level of HUD to pursue or not to pursue a case.1

11 Rather, the “closing” is a local bureaucratic act that, on this

12 record, may be no more than moving records to some sort of

13 archive at times that may have more to do with available storage

14 space than with any residual power of HUD to act on a case. I

15 doubt that any court would hold that such a “closing” bars the

16 exercise of HUD’s residual powers. See Note 1, supra.

17 As a result, designating the sending or receipt of the New

18 York “final letter”/“closing” as resuming the limitations period

19 is inappropriate at both a legal and a pragmatic level. First,

20 the two-year limitations period is the creation of Congress, and

21 the triggering (or re-triggering) events must be determined by an

22 examination of congressional intent. If anything can be said

23 with assurance about the role of New York HUD’s “final

24 letters”/“closings,” it is that these acts cannot possibly have

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1 been intended by Congress as the triggering events. “Final

2 letters”/“closings” have no role, much less a regular one, under

3 the statute or relevant regulations; they are simply bureaucratic

4 acts that may or may not occur.

5 Second, designating the “final letter”/“closing” as a

6 trigger is improvident at a pragmatic level. Limitations periods

7 may work well when a determinable act, such as an act creating

8 liability, triggers the limitations period. E.g., Stuart v. Am.

9 Cyanamid Co., 158 F.3d 622, 627-28 (2d Cir. 1998) (discussing a

10 Nebraska statute of repose forbidding product liability suits

11 brought more than ten years after the product that allegedly

12 caused injury was delivered to the end consumer). They also work

13 well where an indeterminable act, such as learning of the act

14 creating liability, triggers the limitations period but a maximum

15 outside period is imposed. E.g., 28 U.S.C. § 1658 (allowing

16 securities fraud claims to be brought either within two years of

17 the discovery of the facts constituting the violation or no later

18 than five years after the violation); Rosato v. Mascardo, 844

19 A.2d 893, 897 (Conn. App. Ct. 2004) (noting that Connecticut

20 requires medical malpractice plaintiffs to bring an action either

21 within two years of discovering their injury or within three

22 years of the act giving rise to liability -- whichever is

23 earlier). Under such rules, courts and parties have some

24 tolerable notice of when actions must be brought.

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1 With this decision, great uncertainty will now prevail in

2 Connecticut and Vermont, where no HUD “final letters” indicating

3 “closings” are sent. My colleagues offer no rationale to guide

4 plaintiffs in those states in determining the final date by which

5 they must bring suit. In fact, their opinion might support a

6 holding that the limitations period never resumes in those

7 states.

8 Similar problems may arise even in New York if a “final

9 letter” is sent but not received. Moreover, the New York HUD

10 office may decide to stop sending “final letters,” leaving New

11 York plaintiffs reading the present opinion to believe that they

12 can await a “final letter.” If so, we may have to choose between

13 holding that the limitations periods for such plaintiffs never

14 resumed, i.e., were endless, or that such plaintiffs are out of

15 luck because of unknown bureaucratic decisions.

16 These uncertainties and complexities are entirely avoidable

17 because we can easily hold Ms. Boykin’s complaint to be timely on

18 the grounds of equitable tolling. As a general principle,

19 equitable tolling allows a late filing when a plaintiff “has been

20 pursuing his rights diligently and . . . some extraordinary

21 circumstance stood in his way.” Torres v. Barnhart, 417 F.3d

22 276, 278 (2d Cir. 2005) (internal quotation marks omitted). Ms.

23 Boykin’s situation is as compelling as other cases in which we

24 have applied equitable tolling. See Zerilli-Edelglass v. New

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1 York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)

2 (providing examples such as a plaintiff filing a timely but

3 defective pleading, a defendant misleading the plaintiff

4 regarding the existence of his cause of action, and a plaintiff

5 unable to file on time due to a medical condition or mental

6 impairment).

7 The principles underlying the doctrine are therefore more

8 than sufficient to support Ms. Boykin’s argument that the

9 limitations period should be equitably tolled. As she stated in

10 her pro se memorandum of law in the district court, Ms. Boykin

11 believed that the “final letter” issued by HUD indicated that the

12 limitations period resumed with that letter and relied on that

13 statement. That belief and reliance was entirely justifiable.

14 The “final letter” can certainly be viewed as indicating

15 that the two-year period resumed with that letter. There is an

16 ambiguity as to the referent of the words “agency’s decision” --

17 the state agency or HUD -- and the term “administrative

18 proceeding” certainly can be read in the context in which it was

19 used as referring to the proceeding before HUD. The letter

20 therefore created a situation easily as compelling as a disabling

21 medical condition and warranting the application of equitable

22 tolling.

23 Moreover, a decision grounded in equitable tolling would

24 have several advantages. First, equitable tolling was a

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1 longstanding, well-known doctrine when Congress passed the

2 relevant legislation. Congress can be presumed to have known of

3 it. Disposing of the present matter on equitable tolling grounds

4 does not, therefore, conflict with Congress’ intent. Second, it

5 would avoid all the uncertainties and complexities created by

6 using the “final letter”/“closing” as the triggering date. Other

7 circuits have held that a misleading agency letter can lead to

8 equitable tolling even when the agency is not a party. See e.g.,

9 Anderson v. Unisys Corp., 47 F.3d 302, 306-07 (8th Cir. 1995)

10 (“[E]quitable tolling is premised on the plaintiff’s excusable

11 neglect, which may or may not be attributable to the defendant

12 . . . . [W]hen an administrative agency misleads a complainant,

13 particularly one who is without the benefit of counsel, equitable

14 tolling may be justified.”). This approach seems particularly

15 appropriate in view of HUD’s regulations requiring it to inform

16 complainants of their rights. See 24 C.F.R. § 103.100 (requiring

17 HUD to inform individuals whose complaints have been referred to

18 a certified state agency of their rights under the statute of

19 limitations).2

20 For the reasons stated above, I believe that equitable

21 tolling would be a better rationale for our decision. I

22 therefore concur in the result.

23

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FOOTNOTES

1 1. HUD’s residual power to act after a local certified agency’s

final action is not subject to any effective time limit. The

statute provides that when HUD takes further action on a

complaint it has previously referred to a certified state agency,

it “shall” complete its investigation within 100 days of

commencing further action. 42 U.S.C. § 3610(a)(1)(B)(iv).

However, HUD may extend its investigation if it is

“impracticable” to complete it within the 100 day period. Id.

The term “impracticable” has been interpreted so liberally that

there is no effective time limitation on the exercise of HUD’s

residual powers. See Baumgardner v. Sec’y, United States Dep’t

of Hous. & Urban Dev., 960 F.2d 572, 578 (6th Cir. 1992).

2. There is dicta in our circuit suggesting that it is

“questionable” whether equitable tolling applies where the agency

involved is not the defendant. Vernon v. Cassadaga Valley Cent.

Sch. Dist., 49 F.3d 886, 891 (2d Cir. 1995). However, the

grounds for the decision in Vernon were that the agency letter

was clear and the plaintiff had not shown reliance on it. Id.

In Long v. Frank, 22 F.3d 54, 59 (2d Cir. 1994), we stated

that a confusing EEOC letter did not amount to “affirmative

misconduct” in denying equitable tolling for a claim against the

EEOC. However, the decision did not impose a general requirement

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of affirmative misconduct by a defendant. Rather, Long held that

“Long [did] not demonstrate[] . . . reli[ance].” Id. Also, a

requirement of affirmative misconduct by a defendant or an agency

would not square with our more general jurisprudence on equitable

tolling, which, as noted above, allows the application of tolling

against blameless defendants. Cf. Zerilli-Edelglass, 333 F.3d at

80.

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