Tiberio v. Allergy Asthma Immunology of Rochester
664 F.3d 35
2d Cir.
2011
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Lorrie A. TIBERIO, Plaintiff-Appellant, v. ALLERGY ASTHMA IMMUNOLOGY OF ROCHESTER, Defendant-Appellee.

Docket No. 11-2576-cv.

United States Court of Appeals, Second Circuit.

Decided: Dec. 20, 2011.

664 F.3d 35

Argued: Dec. 6, 2011.

filed on behalf of taxpayer-client Barton. The 2001 tax return was not charged specifically as a separate count of the indictment, and it was therefore error to include the $3,691 loss attributable to the 2001 tax return in the restitution calculation.

CONCLUSION

The judgment of the District Court is AFFIRMED except with respect to certain aspects of the sentence, as to which the judgment is VACATED and REMANDED for:

  1. resentencing within the range authorized by statute; (2) amendment of the restitution order to:
  2. (a) determine whether the State and the City of New York are victims entitled to restitution (and adjust and apportion the restitution award accordingly);
  3. (b) exclude payments already made by the five taxpayer-clients to the IRS; and
  4. (c) exclude losses associated with a 2001 tax return that did not serve as a basis for any of the 16 counts of conviction. The mandate shall issue forthwith.

Steven E. LaPrade (Christina A. Agola, of counsel), Brighton, NY, for Plaintiff-Appellant Lorrie A. Tiberio.

Paul F. Keneally, Underberg & Kessler LLP, Rochester, NY, for Defendant-Appellee Allergy Asthma Immunology of Rochester.

Before: MINER, CABRANES, and WESLEY, Circuit Judges.

PER CURIAM:

We write to clarify that the 90-day limitations period for bringing an employment discrimination claim begins to run when a right-to-sue letter is first received either by the claimant or by the claimant‘s counsel.

Plaintiff-appellant Lorrie A. Tiberio (“Tiberio“) appeals from a May 27, 2011 judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge), dismissing her disability discrimination claim under the Americans with Disabilities Act (“ADA“), 42 U.S.C. §§ 12101 et seq., as untimely. Concluding that the 90-day limitations period provided by 42 U.S.C. § 2000e-5(f)(1)1 begins to run when a right-to-sue letter issued by the Equal Employment Opportunity Commission (“EEOC” or “Commission“) is first received either by the claimant or by the claimant‘s counsel, we affirm the judgment of the District Court.

BACKGROUND

Tiberio was hired by defendant-appellee Allergy Asthma Immunology of Rochester, P.C. (“AAIR“) as an “RN-Infusion Nurse” on or about June 11, 2007. She was fired from her position 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 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. By Decision and Order dated May 26, 2011, the District Court dismissed Tiberio‘s ADA claim as untimely and declined to exercise supplemental jurisdiction over her remaining state law claim. This appeal followed.

DISCUSSION

The sole issue on appeal is whether the District Court erred in dismissing Tiberio‘s ADA claim as time-barred. We review de novo a district court‘s grant of a motion to dismiss, “accepting all factual claims in the complaint as true, and drawing all reasonable inferences in the plaintiff‘s favor.”

.

A. Presumption of Notice

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. See 42 U.S.C. § 2000e-5(f)(1) (specifying that a Title VII action must be brought within 90 days of the claimant‘s notification of her right to sue); id. § 12117(a) (applying the Title VII limitations period to claims brought under the ADA).2 There is a presumption that a notice provided by a government agency was mailed on the date shown on the notice. See

(citing
). There is a further presumption that a mailed document is received three days after its mailing. See
. The initial presumption is not dispositive, however, “[i]f a claimant 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 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, we presume that Tiberio received the notice on November 27, 2010, three days after the notice was mailed.

B. Notice to Counsel

On appeal, Tiberio principally contends that the date on which her attorney received the right-to-sue letter should control the limitations inquiry. Agola, who represented Tiberio before the EEOC, allegedly received the right-to-sue letter on November 29, 2010. Ninety days from November 29, 2010 was February 27, 2011, a Sunday. Relying on that calculation, Tiberio appeals to the time computation rules set forth in the Federal Rules of Civil Procedure in order to extend the limitations period by an additional day. Pursuant to Rule 6 of the Federal Rules of Civil Procedure, if the last day of the limitations period “is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed.R.Civ.P. 6(a)(1)(C). Tiberio argues that because her filing date—Monday, February 28, 2011—was the “next day” for purposes of Rule 6, her claims are therefore timely.

The trouble with Tiberio‘s calculation of the limitations period is that her starting date is incorrect. It is well established that “notice to an attorney‘s office which is acknowledged by a representative of that office qualifies as notice to the client.”

. But the general principle of constructive notice does not affect, much less vitiate, the operative presumptions regarding the receipt of an EEOC right-to-sue letter by the claimant herself. Indeed, to abandon these presumptions would permit a claimant represented by counsel to gain an extension of time, notwithstanding her own receipt of an EEOC

notice, simply by virtue of a subsequent delivery of the notice to her attorney. That cannot be the law. Accordingly, we now hold that the 90-day limitations period set forth in 42 U.S.C. § 2000e-5(f)(1) begins to run on the date that a right-to-sue letter is first received either by the claimant or by counsel, whichever is earlier. See

(per curiam); cf.
(per curiam) (applying the same rule to actions brought under Title VII);
(per curiam) (same).

None of the authority that Tiberio cites to bolster her position alters this result. While we note the possibility of a different outcome where counsel requests service in lieu of service on the claimant, see

(per curiam), there is no record of such a request in this case. Tiberio‘s reliance on Part 1614 of the Code of Federal Regulations is similarly unavailing, as that provision applies only to federal-sector employment.3 Because Tiberio initiated this action on February 28, 2011—93 days after her presumptive receipt of the right-to-sue letter—the District Court properly held that her claim is time-barred.

CONCLUSION

To summarize:

  1. (1) We hold that the 90-day limitations period set forth in 42 U.S.C. § 2000e-5(f)(1) begins to run on the date that a right-to-sue letter is first received either by the claimant or by the claimant‘s counsel, whichever is earlier.
  2. (2) Because Tiberio initiated this action 93 days after her presumptive receipt of the right-to-sue letter, the District Court properly held that her claim is time-barred.

Accordingly, the order of the District Court is hereby AFFIRMED.

Notes

1
42 U.S.C. § 2000e-5(f)(1) provides, in relevant part: If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge by the person claiming to be aggrieved....
2
42 U.S.C. § 12117(a) provides, in relevant part: The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.
3
29 C.F.R. § 1614.103(b) provides, in relevant part: This part applies to: (1) Military departments as defined in 5 U.S.C. § 102; (2) Executive agencies as defined in 5 U.S.C. § 105; (3) The United States Postal Service, Postal Rate Commission and Tennessee Valley Authority; (4) All units of the judicial branch of the Federal government having positions in the competitive service, except for complaints under the Rehabilitation Act; (5) The National Oceanic and Atmospheric Administration Commissioned Corps; (6) The Government Printing Office; and (7) The Smithsonian Institution.
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