ADA Disability Discrimination Claim Properly Dismissed as Filed Beyond the 90-Day EEOC Notice

From Perez v. Mason Tenders District Council, 17-3896 (2d Circuit Nov. 21, 2018) (Summary Order):

Perez concedes in her opening brief, as she did before the district court, that her
complaint was filed outside the 90-day window she had from receiving the EEOC’s rightto-sue
letter to bring her claim. Nevertheless, she maintains that the limitations period
should be tolled because of her attorney’s neglect. Perez had hired an attorney to negotiate
a salary raise with Mason Tenders. As part of their agreement, Perez claims that she, rather
than her attorney, was responsible for filing any complaint in federal court if the negotiation
was unsuccessful, and her attorney was to keep her apprised of his status by telephone. But,
when the salary negotiation eventually failed, the attorney ignored Perez’s request, and sent
her a letter rather than call her on the telephone. As a result, Perez discovered she would
need to file a complaint two days before her 90-day window expired.

As the district court found, however, Perez was neither reasonably diligent nor
impeded by an extraordinary circumstance in pursuing her ADA claim. The record does
not suggest Perez had actively pressed her claim or that her attorney’s alleged mistake,
using the mail rather the telephone to communicate, was more than “garden variety”
neglect. Indeed, Perez knew she was responsible for filing her claim on time and, even
when she received the letter, Perez still had two days to do so. We thus find that the district
court did not abuse its discretion in declining to equitably toll Perez’s limitations period.

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