13‐0796‐cv
Castagna v. Luceno
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
(Submitted: December 4, 2013 Decided: March 5, 2014)
Docket No. 13‐0796‐cv
PATRICIA CASTAGNA, NICK SARRACCO,
Plaintiffs‐Appellants,
— v. —
BILL LUCENO, MAJESTIC KITCHENS, INC.,
Defendants‐Appellees.
Before: LIVINGSTON, LOHIER, Circuit Judges, and STEIN, District Judge.*
Patricia Castagna appeals from an order of the United States
District Court for the Southern District of New York (Cathy Seibel,
Judge) dismissing Castagna’s state‐law tort claims as time‐barred. We
join the Seventh and Ninth Circuits in holding as a matter of federal
law that filing a charge of discrimination with the U.S. Equal
Employment Opportunity Commission (“EEOC”) does not toll the
limitations period for state‐law tort claims, even for those claims arising
out of the same factual circumstances as the discrimination alleged in
*
The Honorable Sidney H. Stein, United States District Judge for
the Southern District of New York, sitting by designation.
the EEOC charge. We accordingly AFFIRM the district court’s
dismissal of Castagna’s tort claims.
E. CHRISTOPHER MURRAY, Ruskin Moscou
Faltischek, P.C., Uniondale, N.Y., for Plaintiffs‐
Appellants
COSTANTINO FRAGALE, Mamaroneck, N.Y., for
Defendants‐Appellees (on submission).
SIDNEY H. STEIN, District Judge:
Patricia Castagna, a former employee of Majestic Kitchens, Inc.,
appeals from an order of the United States District Court for the
Southern District of New York (Cathy Seibel, Judge) dismissing
Castagna’s state‐law tort claims as time‐barred. Castagna contends that
the statute of limitations applicable to her tort claims against both
Majestic and her former boss, Bill Luceno, was tolled by her filing of a
charge of discrimination with the U.S. Equal Employment Opportunity
Commission (“EEOC”).
Our Court has not previously determined whether filing an
EEOC charge tolls the statute of limitations for state tort claims arising
from the same nucleus of facts as underlie the EEOC charge. We now
join the U.S. Courts of Appeals for the Seventh and Ninth Circuits in
holding as a matter of federal law that filing an EEOC charge does not
toll the limitations period for state‐law tort claims, even if those claims
arise out of the same factual circumstances as the discrimination
2
alleged in the EEOC charge. We accordingly affirm the district court’s
dismissal of Castagna’s tort claims.1
I. BACKGROUND
Castagna worked as an accountant, and later as a receptionist, at
Majestic Kitchens, Inc. in Mamaroneck, New York from April 1, 2005
until she resigned on July 9, 2008. Bill Luceno, majority owner of
Majestic, supervised Castagna in both roles.
Castagna alleges that during her tenure Luceno regularly
subjected women to an “abusive . . . work environment characterized
by lewd, racial and sexual comments and innuendos, profanity,
offensive physical contact and other inappropriate behavior.” Luceno
allegedly yelled at female employees, including Castagna, “in a manner
that appalled virtually all of the other employees,” and some of
Majestic’s customers as well. Male employees, Castagna claims, “were
not subjected to the same treatment or public abuse.”
On July 9, 2008, with the receptionist’s desk understaffed,
Luceno asked Castagna to cut short her lunch in order that she could
“cover[] the front desk telephone.” According to Castagna’s complaint,
when Castagna asked for compensatory time in exchange, Luceno
“blew up,” “scream[ing]” and “swearing,” and “shoved” Castagna’s
computer monitor at her. Fearing “for her personal and physical
1
We address Castagna’s remaining arguments on appeal, as well
Sarracco’s arguments, in a summary order filed concurrently with this
opinion.
3
safety,” Castagna promptly resigned from Majestic. Soon thereafter, she
filed a police report over “what Luceno had done to her that day.”
Approximately 3 ½ months later, Castagna filed a charge of
discrimination with the EEOC, alleging, as relevant here, employment
discrimination because of her sex. Castagna’s charge described
Luceno’s shoving of the computer monitor, among other episodes.
After receiving a right‐to‐sue letter from the EEOC on August 14, 2009,
see 42 U.S.C. § 2000e‐5(f)(1), Castagna commenced this action by filing a
complaint in federal district court on November 9, 2009.
The complaint alleges, inter alia, that Luceno and Majestic
subjected Castagna to a hostile work environment and constructively
discharged her, in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. and the New York State Human Rights Law,
N.Y. Exec. Law § 290 et seq., and that defendants are liable for the torts
of intentional infliction of emotional distress (“IIED”), assault, and
battery, in violation of New York law. The IIED claim is based on
Luceno’s ongoing course of harassment, and the assault and battery
claims are premised specifically on the incident involving the computer
monitor.
On defendants’ motion, the district court dismissed the three
New York tort claims as barred by the applicable one‐year New York
state statute of limitations, N.Y. C.P.L.R. § 215(3). It rejected Castagna’s
argument that the statute of limitations for the state‐law claims, which
arose from the same set of facts as her discrimination claims, was tolled
by her EEOC filing.
4
II. ANALYSIS
Castagna does not dispute that absent tolling of the statute of
limitations, her New York tort claims — filed more than one year after
her last date of employment — were untimely. See N.Y. C.P.L.R.
§ 215(3); Goldner v. Sullivan, Gough, Skipworth, Summers & Smith, 482
N.Y.S.2d 606 (App. Div. 1984). The only question is whether, as a
matter of either federal or New York law, those claims were tolled by
her filing of an EEOC charge. We review de novo a district court’s grant
of a motion to dismiss, including “legal conclusions” concerning the
court’s “interpretation and application of a statute of limitations.” See
City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d
Cir. 2011). We now consider Castagna’s arguments in turn.
A. Federal Tolling
Castagna principally contends that, were the statute of
limitations for state tort claims not tolled pending the EEOC’s
consideration of a charge of discrimination, to preserve her claims, a
litigant would be forced first to bring a tort case in state court “and later
bring a federal, discrimination related claim in federal court . . . with an
identical set of facts,” thereby “thwart[ing] . . . the judicial efficiency
encouraged by the grant of supplemental jurisdiction . . . in 28 U.S.C.
§ 1367” (quoting Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F.
Supp. 450 (S.D.N.Y. 1997)). Such a state of affairs, the argument
continues, would also “substantially undermine” one of the central
“purposes of Title VII, which affords the EEOC the opportunity to . . .
facilitate dispute resolution prior to the commencement of litigation”
5
(quoting Brown v. Bronx Cross Cnty. Med. Grp., 834 F. Supp. 105, 111
(S.D.N.Y. 1993) (citing 42 U.S.C. § 2000e‐5(b))). In short, Castagna’s
position is that judicial efficiency mandates tolling of the relevant
statutes of limitations for state tort claims once a charge of
discrimination is filed with the EEOC.
The Seventh and Ninth Circuits — the only two federal courts of
appeals that appear to have considered the issue — have rejected
similar arguments regarding tolling of state tort claims. See Juarez v.
Ameritech Mobile Commc’ns, Inc., 957 F.2d 317, 323 (7th Cir. 1992); Arnold
v. United States, 816 F.2d 1306, 1313 (9th Cir. 1987). So, too, have the
“vast majority” of district court decisions in this circuit. See Kolesnikow
v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 122 & n.19 (S.D.N.Y.
2009) (collecting cases).
The U.S. Supreme Court’s decision in Johnson v. Railway Express
Agency, Inc., 421 U.S. 454 (1975), supports the determinations of those
courts. Johnson held that the filing of a charge of discrimination with the
EEOC does not toll “the period of limitation applicable to an action
based on the same facts, instituted under 42 U.S.C. § 1981.” See id. at
455.2 The Supreme Court acknowledged that without tolling, once a
discrimination charge was lodged with the EEOC, a “civil rights
complainant who values his § 1981 claim” would often be
“press[ed] . . . into court before the EEOC has completed its
2
Because 42 U.S.C. § 1981 does not contain a specific statute of
limitations, “the controlling period would ordinarily be the most
appropriate one provided by state law.” Id. at 462.
6
administrative proceeding.” Id. at 465. Nonetheless, the Court
determined that there was no tolling of the statute because Title VII and
section 1981 were two separate statutes providing for different
remedies. As Justice Blackmun wrote for the majority, “Congress
clearly . . . retained § 1981 as a remedy against private employment
discrimination separate from and independent of the more elaborate
and time‐consuming procedures of Title VII.” See id. at 466. And “[t]he
fact that [a claimant’s] slumber may have been induced by faith in the
adequacy of [the] Title VII remedy is of little relevance” to tolling
“inasmuch as the two remedies are truly independent.” See id.
Castagna attempts to distinguish Johnson on the ground that that
action involved exclusively federal causes of action — specifically Title
VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She argues that,
unlike Johnson, to preserve all of her claims she “would have had to
bring a separate state court action first and then a federal court action”
once her Title VII claim had ripened.3 Castagna’s argument that her
dilemma differs in kind from Johnson’s is unavailing. First, as the Ninth
Circuit has recognized, although EEOC proceedings “often are
beneficial” in resolving workplace disputes, Johnson “held, nonetheless,
that Congress did not intend for these proceedings to delay
independent avenues of redress.” See Arnold, 816 F.2d at 1313. Second,
3
Castagna is incorrect in assuming that she was able to file a
Title VII action only in federal court. See Yellow Freight Sys., Inc. v.
Donnelly, 494 U.S. 820, 821 (1990) (holding that “Congress did not divest
the state courts of their concurrent authority to adjudicate” Title VII
claims).
7
as in Johnson, a plaintiff who in the future finds herself in Castagna’s
situation “may ask [a] court to stay proceedings” in the initial action
“until the [EEOC’s] administrative efforts . . . have been completed.” See
Johnson, 421 U.S. at 465. Although such a stay procedure is “perhaps not
a highly satisfactory” response to Castagna’s plight, “the fundamental
answer to [her] argument lies in the fact” that she always had “an
unfettered right” to pursue her tort claims. See id. at 466. Notably,
Castagna does not urge that she could not have brought those claims
within the applicable statute of limitations. She simply failed to do so.
Moreover, contrary to Castagna’s impermissibly narrow reading
of Johnson, the Court’s reasoning against tolling encompassed more than
the federal statute there at issue, 42 U.S.C. § 1981:
Despite Title VII’s range and its design as a
comprehensive solution for the problem of invidious
discrimination in employment, the aggrieved individual
clearly is not deprived of other remedies he possesses and
is not limited to Title VII in his search for relief. The
legislative history of Title VII manifests a congressional
intent to allow an individual to pursue independently his
rights under both Title VII and other applicable state and
federal statutes.
Id. at 459 (alteration and quotation marks omitted) (emphasis added).
For that reason, following Johnson, the Seventh Circuit rejected an
employee’s argument that the “Illinois statute of limitations” applicable
to an invasion of privacy claim “was tolled by [an employee’s] timely
filing of a discrimination charge with the [EEOC].” See Juarez, 957 F.2d
at 322. The Ninth Circuit similarly concluded that “federal policy [did
not] mandate equitable tolling” of the California statute of limitations
8
applicable to “common law tort claims” arising from the same facts as
an employee’s Title VII claim during the time that an EEOC charge was
pending. See Arnold, 816 F.2d at 1308, 1313.
In short, there is no basis for concluding that Congress intended
that a civil rights claimant should be entitled to delay filing any state
tort claims during the EEOC’s consideration of a charge of
discrimination. We therefore join the Seventh and Ninth Circuits in
holding as a matter of federal law that filing an EEOC charge does not
toll the time for filing state tort claims, including those that arise out of
the same nucleus of facts alleged in the charge of discrimination filed
with the EEOC.
B. New York Tolling
Castagna also contends that New York law mandates tolling of
the time in which to file her state tort claims, again because of the
pendency of her EEOC charge. None of the state‐law tolling arguments
that Castagna now presses on appeal were presented to the district
court. We therefore consider those arguments forfeited. See, e.g., Katel
Ltd. Liab. Co. v. AT & T Corp., 607 F.3d 60, 68 (2d Cir. 2010). We
accordingly need not — and do not — decide whether, pursuant to New
York law, there may be some ground for tolling of state tort claims
during the pendency of an EEOC charge.
III. CONCLUSION
Because Congress did not intend for the filing of a charge of
discrimination with the EEOC to toll the statute of limitations applicable
9
to state tort claims, we now join the Seventh and Ninth Circuits in
concluding that lodging a charge of discrimination with the EEOC does
not toll those state claims. For that reason, and because Castagna did
not preserve for appeal any argument in favor of state‐law tolling, we
affirm the district court’s order dismissing Castagna’s tort claims as
time‐barred.
10