“Equitable Tolling” Does Not Save Time-Barred Discrimination Claims

In Frederick v. JetBlue Airways Corp., No. 16-1373-CV, 2016 WL 6885714 (2d Cir. Nov. 22, 2016) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s employment discrimination claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA) as being time-barred – i.e., filed in court after the passing of the 90-day deadline following dismissal by the Equal Employment Opportunity Commission (EEOC).

The court specifically found that plaintiff’s claims were not subject to “equitable tolling”, which if applicable would have permitted her claims to proceed notwithstanding the delay.

From the decision:

We agree with the District Court that Frederick’s Title VII and ADEA claims were untimely because her complaint was filed after the 90–day deadline following her first dismissal notice from the [EEOC]. We also conclude that the District Court did not abuse its discretion when it determined that Frederick failed to show any extraordinary circumstances warranting equitable tolling. As an initial matter, Frederick failed to show that she satisfied the first prong of the equitable tolling test, namely, that she acted with reasonable diligence during the time period she seeks to have tolled. Nor did she satisfy the second prong, requiring that she prove[ ] that the circumstances are so extraordinary that the doctrine should apply. As the Supreme Court recently reaffirm[ed], the second prong of the equitable tolling test is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control. We reject Frederick’s argument that the lack of a mailing date in the first dismissal notice caused her to reasonably misunderstand that the 90–day deadline applied to that first dismissal notice. The first dismissal notice, which Frederick indisputably received, clearly stated that her lawsuit must be filed within 90 days of … receipt of this notice. In any event, the first dismissal notice was enclosed with a dated letter from the EEOC, thereby giving Frederick sufficient notice of the mailing date. (Emphasis added.)

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