09-0069-cv
Johnson v. St. Barnabas Nursing Home
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 5th day of March, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges,
DENNY CHIN,*
District Judge.
_______________________________________________
Felicia Pickett Johnson,
Plaintiff-Appellant,
v.
09-0069-cv
St. Barnabas Nursing Home,
Defendant-Appellee,
Ronald Granger,
Defendant.
_______________________________________
FOR PLAINTIFF-APPELLANT: Felicia Pickett Johnson, pro se, New York, N.Y.
*
The Honorable Denny Chin, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR DEFENDANT-APPELLEE: William D. Buckley, Garbarini & Scher, P.C., New
York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Marrero, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and hereby is AFFIRMED.
Appellant Felicia Pickett Johnson, pro se, appeals from the district court’s judgment
granting the defendants’ motion for judgment on the pleadings and dismissing her employment
discrimination complaint as time-barred. We assume the parties’ familiarity with the facts,
proceedings below, and specification of issues on appeal.
This Court reviews a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) de
novo. See Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 792 (2d Cir. 1999).
The same standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings. Sheppard v. Beerman, 18 F.3d 147, 150
(2d Cir. 1994). Thus, “a court must accept the allegations contained in the complaint as true, and
draw all reasonable inferences in favor of the non-movant,” and deny the motion “unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Id. Furthermore, the complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007).
Under Title VII and the Americans with Disabilities Act, a claim must be filed in federal
court within 90 days of the plaintiff’s receipt of a right-to-sue letter from the Equal Employment
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Opportunity Commission (“EEOC”). See 42 U.S.C. § 2000e-5(f)(1) (Title VII action must be
brought within ninety days of notification of right to sue); id. § 12117(a) (adopting Title VII
limitations period for the ADA). Absent sufficient evidence to the contrary, it is presumed that a
plaintiff received his or her right to sue letter three days after its mailing. See Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996).
Here, Johnson’s unsupported allegation that she received her EEOC right-to-sue letter on
November 14, 2007, was not sufficient to rebut the applicable three-day presumption of receipt.
See Sherlock, 84 F.3d at 526 (“[W]e would not regard the presence of a self-serving date-of-
receipt notation . . . as evidence rebutting the presumption that the letter was received three days
after its typewritten date, unless the claimant also presented an affidavit or other admissible
evidence of receipt on the noted date.”). Accordingly, it is assumed that Johnson received the
October 31, 2007 right-to-sue letter on November 3, 2007, requiring her to file her complaint on
or before February 1, 2008. Her February 7, 2008 complaint was thus untimely.
We have considered all of Johnson’s other arguments on appeal and have found them to
be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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