                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2008

Toscano v. AT&T Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2438




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Recommended Citation
"Toscano v. AT&T Corp" (2008). 2008 Decisions. Paper 1013.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1013


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CLD-214                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-2438
                                      ___________

                               LOUIS PAUL TOSCANO,
                                                           Appellant

                                            v.

                       AT&T CORPORATE HEADQUARTERS
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 05-cv-03539)
                    District Judge: Honorable Garrett E. Brown, Jr.
                     ____________________________________

                        Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     May 30, 2008
               Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                             (Opinion filed: June 17, 2008)
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      This is an appeal from the district court’s dismissal of Louis Paul Toscano’s

amended complaint filed against AT&T. Because the appeal presents “no substantial

question,” we will summarily affirm the judgment of the district court under Third Circuit
L.A.R. 27.4 and I.O.P. 10.6.

                                            I.

       In Feburary 2005, Toscano filed a charge of discrimination against AT&T with the

Equal Employment Opportunity Commission (“EEOC”). The EEOC deemed the charge

untimely filed and dismissed it in March 2005. In June 2005, Toscano filed a complaint

against AT&T in the Superior Court of New Jersey asserting several claims arising out of

his termination by AT&T and his subsequent placement on AT&T’s long-term disability

plan. Specifically, Toscano alleged that AT&T discriminated against him on the basis of

a disability and violated his rights under the Americans With Disabilities Act, 42 U.S.C. §

12101 et seq. (“ADA”), by declaring him totally disabled and placing him on its long-

term disability benefits plan. In July 2005, AT&T removed the case to the district court.

In October 2006, AT&T filed a motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) or, in the alternative, for summary judgment arguing that

Toscano’s claims were time-barred. On March 8, 2007, the district court granted the

motion for judgment on the pleadings and dismissed Toscano’s claims. Toscano filed a

timely appeal.1 We will now summarily affirm the district court’s order and deny

Toscano’s motion.




                                            II.



       1
         In November 2007, Toscano filed a motion to appoint counsel in this case. We
stayed the briefing schedule pending our ruling on the motion to appoint counsel.
       As the district court fully and properly explained, Toscano’s complaint failed to

state a claim because it is time-barred.2 Prior to filing an action for employment

discrimination under the ADA, an employee must file a timely charge of discrimination

with the EEOC. See 42 U.S.C. 12117(a); see also Robinson v. Dalton, 107 F.3d 1018,

1022 (3d Cir. 1997). In a deferral state, such as New Jersey, the employee has 300 days

from the date of the alleged unlawful employment practice in which to file. See 42

U.S.C. § 2000e-5(e)(1). Here, Toscano’s discrimination charges against AT&T stem

from events occurring in 1992, but Toscano’s claim with the EEOC was filed in February

2005—well after the time had passed for timely filing. There is further no evident basis

for equitable tolling following the limitations period.

                                             III.

       Accordingly, we will summarily affirm the order of the district court dismissing

Toscano’s complaint. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. We also deny Toscano’s

motion for appointment of counsel.




       2
         We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise
plenary review of the dismissal of a complaint under Federal Rule of Civil Procedure
12(c). See Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002); see also Green v. Fund
Asset Mgmt., 245 F.3d 214, 220 (3d Cir. 2001).
