Employment-Second Circuit Clarifies When The 90-Day Limitations Period For Bringing An Employment Discrimination Suit Begins To Run

In Tiberio v. Allergy Asthma Immunology of Rochester, P.C., Docket No. 11-2576-cv (2nd Cir. 2011), the Court clarified that the 90-day limitations period for filing a suit for employment discrimination begins to run when a right-to-sue letter is first received either by the plaintiff or by the plaintiff’s counsel. In this case the plaintiff, Lorrie A. Tiberio (“Tiberio”), was appealing the judgment of the district court dismissing her disability discrimination claim under the Americans with Disabilities Act (the “ADA”) as untimely. Tiberio was fired from her position with the defendant, the Allergy Asthma Immunology of Rochester, P.C. (“AAIR”), on May 12, 2010, following accusations that she had unlawfully gained access to the medical charts of other employees and had “falsely order[ed] prescriptions.” Tiberio thereafter filed a disability discrimination charge with the New York State Division of the Human Rights and the EEOC, and the latter issued a right-to-sue letter on November 24, 2010. The right-to-sue letter was mailed to Tiberio, with copies to AAIR and to Tiberio’s counsel, Christina Agola. Tiberio commenced this action by filing a complaint in the district court on February 28, 2011, 96 days after the right-to-sue letter was issued.

In analyzing the case, the Court said that, in order to be timely, a claim under the ADA must be filed in federal district court within 90 days of the claimant’s receipt of a right-to-sue letter from the EEOC. There is a presumption that a notice provided by a government agency was mailed on the date shown on the notice. There is a further presumption that a mailed document is received three days after its mailing. The initial presumption is not dispositive, however, if the plaintiff presents 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 her by mail. In this case, the plaintiff’s complaint states that Tiberio actually received the right-to-sue-letter , but does not specify the date of receipt. In the absence of contrary evidence, the Court presumed that Tiberio received the notice on November 27, 2010, three days after the notice was mailed.

On appeal, Tiberio contended that her counsel received the right-to-sue letter on November 29, 2010, that the date on which her attorney received this letter should control the limitations inquiry, and as such (given that the 90th day from that date fell on the weekend) her February 28, 2011 filing was timely. However, the Court disagreed. It concluded that-based on the applicable statute and prior case law- the 90-day limitations period for bring the suit starts with the earlier of the day Tiberio received the letter or the day her counsel received the letter, here November 27, 2010. As such, her suit-filed 93 days later- was not filed timely, and the Court upheld the district court’s conclusion.