16‐3390‐cv
Perez v. Harbor Freight Tools
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 20th day of June, two thousand seventeen.
PRESENT: RALPH K. WINTER,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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JOSE PEREZ,
Plaintiff‐Appellant,
16‐3390‐cv
v.
HARBOR FREIGHT TOOLS,
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT: JASON ENGELSTEIN (Leonard Zack, on the
brief), Leonard Zack & Associates, New York,
New York.
FOR DEFENDANT‐APPELLEE: MATTHEW J. MEHNERT, Lamb & Barnosky,
LLP, Melville, New York.
Appeal from the United States District Court for the Eastern District of
New York (Spatt, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Jose Perez appeals from the judgment of the district
court entered September 9, 2016, dismissing his complaint against defendant‐appellee
Harbor Freight Tools for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. The district court explained its reasoning in a memorandum of decision
and order filed September 9, 2016. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
Perez was employed by Harbor Freight Tools from June 25, 2012 until his
dismissal on December 18, 2012. On September 10, 2015, Perez filed a charge of
discrimination against Harbor Freight Tools with the United States Equal Employment
Opportunity Commission (the ʺEEOCʺ). On September 11, 2015, the EEOC issued Perez
a right to sue letter and, on October 19, 2015, Perez commenced this action. On
February 12, 2016, Harbor Freight Tools moved to dismiss the complaint as time‐barred.
The district court converted Harbor Freight Toolsʹ motion to dismiss to a motion for
summary judgment and, finding that the claims were time‐barred, granted the
converted motion for summary judgment dismissing the complaint.
We review the district courtʹs grant of summary judgment de novo. Garcia
v. Hartford Police Depʹt, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary
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judgment must be granted if ʺthere is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). We review the
district courtʹs application of the relevant statute of limitations de novo, see Somoza v.
N.Y.C. Depʹt of Educ., 538 F.3d 106, 112 (2d Cir. 2008), and its decision to deny equitable
tolling for abuse of discretion, Koch v. Christieʹs Intʹl, PLC, 699 F.3d 141, 157 (2d Cir.
2012).
Under Title VII, a plaintiff in New York State must file an employment
discrimination charge with the EEOC within 300 days after an ʺalleged unlawful
employment practice occurred.ʺ See 42 U.S.C. § 2000e‐5(e)(1); accord Butts v. City of N.Y.
Depʹt of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citing 42 U.S.C. § 2000e‐
5(e)), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102‐166,
105 Stat. 1072. The filing requirement, however, is not absolute and is subject to
equitable tolling. See Zerilli‐Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir.
2003). ʺ[E]quitable tolling is only appropriate in rare and exceptional circumstances, in
which a party is prevented in some extraordinary way from exercising his rights.ʺ Id.
(internal quotation marks, citations, and alterations omitted). To determine whether
equitable tolling is appropriate, a court considers ʺwhether the person seeking
application of the equitable tolling doctrine (1) has ʹacted with reasonable diligence
during the time period she seeks to have tolled,ʹ and (2) has proved that the
circumstances are so extraordinary that the doctrine should apply.ʺ Id. at 80‐81 (quoting
Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)).
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Perez filed his complaint with the EEOC on September 10, 2015 ‐‐ almost
three years after his December 18, 2012 discharge. Therefore, as he acknowledges in his
brief on appeal, Perez did not comply with the 300‐day statutory period for filing.
Perez asserts, however, that equitable tolling is warranted because (1) in November
2012 he was told by an EEOC investigator that he had three years (rather than 300 days)
in which to file a charge with the EEOC, and (2) he ʺwas confined to his bed for long
portions of 2013 to 2016.ʺ Appellantʹs Br. at 9. The district court properly granted
summary judgment in favor of defendants rejecting these arguments as a matter of law.
First, even assuming that incorrect advice from an EEOC representative as
to the timing requirements could be a basis for equitable estoppel, see Johnson v. Al Tech
Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (recognizing that erroneous advice
from an EEOC official may be a justification for equitable tolling, if ʺsubstantiatedʺ), the
district court did not err in concluding that Perezʹs conclusory assertions about what an
EEOC representative purportedly told him were insufficient to defeat summary
judgment. Perezʹs affidavit does not identify the EEOC representative with whom he
spoke, nor does he provide any details regarding the meeting, such as, for example, the
personʹs title, nor does he provide any corroborating documentation, such as a handout
or any written advice. Cf. DeMatteis v. Eastman Kodak Co., 520 F.2d 409, 410 (2d Cir.
1975) (finding equitable tolling doctrine applicable where the Commissioner of the
EEOC admitted that the EEOC sent the plaintiff an erroneous right to sue letter). Nor
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did Perez offer any evidence below that he acted with ʺreasonable diligenceʺ during the
nearly three‐year delay, or that the circumstances were ʺextraordinary.ʺ
Second, Perezʹs argument that equitable tolling is appropriate because he
was largely incapacitated ʺfor long portions of 2013 to 2016,ʺ see Appellantʹs Br. at 9, is
belied by the record. As defendants showed in their papers below, there is undisputed
evidence that in 2013 Perez commenced a defamation suit in state court against his
former coworkers and was deposed twice in 2014 as part of that suit. Further, there is
undisputed evidence that Perez took eight trips to Spain between May and November
2014. On this record, no reasonable factfinder could have concluded that Perez was so
incapacitated he could not have filed suit in a timely manner. Accordingly, based on
the facts construed in Perezʹs favor, the district court did not abuse its discretion in
denying equitable tolling.
We have considered Perezʹs remaining arguments and conclude they are
without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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