2nd Circuit Fails to Bail Out Pro Se Plaintiff's ADA/Title VII Claim With Equitable Tolling
by Michael Fox
When the pro se plaintiff had maintained in the district court that her only contact with the EEOC within the 300 day time for filing a charge, her initial letter, was an inquiry, not a charge, her appointed appellate counsel's plea that it be considered as a charge was too late. Also the court failed to apply equitable tolling given that she had not diligently followed the EEOC's direction that a charge within 300 days was required. Zerilli-Edelglass v. New York City Transit Authority (2nd Cir. July 7, 2003) [pdf]. Even if she had overcome those hurdles, her complaint was mailed on the 89th day after her receipt of her 90 day right to sue letter and was not received by the court until the 92nd day. Like the court below, having found her initial charge untimely, the court did not even address her argument that the 90 days should also be equitably tolled.
In reviewing the decision by the district court the 2nd Circuit applied an abuse of discretion standard, but qualified it with the following footnote: 6 We are mindful that in South v. Saab Cars USA, Inc., 28 F.3d 9 (2d Cir. 1994), we indicated that the standard of review was de novo. That holding was inconsistent with the cases cited in the text. Accordingly, we have circulated a draft of this opinion to all active members of the Court prior to its publication. No active judge sought en banc consideration of the case. I also note that the original opinion was released on June 17, and the opinion of July 7 was for errata. Whether the footnote is as unusual as it seems to me, or is related to the errata, I will leave to the appellate folks like Howard Bashman and his readers at How Appealing.