Stabbing Justified “Equitable Tolling” of 90-Day EEOC Deadline in Discrimination Case, Court Holds

A recent decision, Barney v. H.E.L.P. Homeless Service Corporation, 2020 WL 1699984 (SDNY April 8, 2020), illustrates the “extraordinary circumstances” justifying a delay in filing a federal discrimination lawsuit under Title VII of the Civil Rights Act of 1964 on the grounds of “equitable tolling.”

Plaintiff asserted claims of sexual orientation-based discrimination and retaliation, and received a Notice of Right to Sue from the EEOC on March 6, 2019. He did not file this lawsuit until June 25, 2019, 21 days after the 90-day period expired.

Ordinarily, an employment discrimination suit brought under Title VII must be filed within 90 days of a plaintiff’s receipt of a “right to sue” letter from the EEOC. 42 U.S.C. § 2000e-5. This deadline is “analogous to a statute of limitations” and “strictly enforced,” such that it ordinarily may not be “extended by even one day.”

While “[a] plaintiff’s failure to file a claim within the time limits set by Title VII … will ordinarily preclude [him] from pursuing that claim in federal court, and can warrant dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6)”, that failure may be excused under the doctrine of “equitable tolling.”

Such tolling “may be warranted where (i) a party has acted with reasonable diligence during the time period [he] seeks to have tolled, and (ii) the party has proved that the circumstances are so extraordinary that the doctrine should apply.” A plaintiff must also show that the alleged extraordinary circumstances caused them to miss the original filing deadline.

Here, plaintiff asserted various reasons for not filing his complaint on time – including his difficulty in securing counsel and depression and anxiety – but the court held that “the only extraordinary circumstance that Plaintiff raises in his opposing papers is the stabbing attack he suffered, and his recovery from that attack.”

That, held the court, was sufficient:

The Court finds that Plaintiff has met his burden of showing that he is entitled to equitable tolling from May 27, 2019 — the date of the stabbing — until June 19, 2019, the date Plaintiff’s laptop and phone were returned to him. There can be no question that suffering a stabbing attack that resulted in ten days’ hospitalization is a “rare and exceptional circumstance” that warrants equitable tolling. See Harper, 648 F.3d at 135-37 (affirming that petitioner’s assault and subsequent hospitalization, which included being confined to bed and being heavily medicated, constituted extraordinary circumstances).

*5 Moreover, Plaintiff has provided a “particularized description” of how the stabbing, hospitalization, and subsequent recovery affected his ability to pursue his rights. See Boos, 201 F.3d at 185. Plaintiff has explained that while he was hospitalized, he was both under the influence of a powerful opioid that impacted his ability to function and on a breathing machine. (Compl. ¶ 39). Furthermore, upon Plaintiff’s release from the hospital, he faced both medical and technological barriers to filing this lawsuit. Plaintiff was physically impaired, with the use of only one hand; still under the influence of OxyContin; and generally still in recovery from a traumatic experience. (Id. at ¶¶ 45, 47-48). Plaintiff was also unable to reenter his home until June 10, 2019, and did not have access to his phone or laptop until June 19, 2019. (Id. at ¶¶ 48-50). The Complaint makes abundantly clear the reasons why Plaintiff was unable to file his lawsuit between May 27, 2019, and June 19, 2019. There is also no question that Plaintiff was reasonably diligent once the extraordinary circumstances had abated. See Zerilli-Edelglass, 333 F.3d at 80-81 (citation omitted). Indeed, Plaintiff attempted to engage a law firm’s services the day after he regained possession of his phone. (Id. at ¶ 50). The Court therefore finds that Plaintiff has demonstrated that equitable tolling is warranted under these circumstances.

The court rejected defendant’s arguments in response, specifically declining to impose a higher standard for equitable tolling, and finding that plaintiff’s speaking with and contacting several attorneys did “not evince such an attitude of neglect that the Court should ignore the extraordinary circumstances that caused Plaintiff to miss the filing deadline.”

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