    11-5383
    Friedman v. Swiss Re Am. Holding Corp.


                           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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING TO 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 25th day of February, two thousand thirteen.

    PRESENT:
                Peter W. Hall,
                Debra Ann Livingston,
                Christopher F. Droney,
                       Circuit Judges.
    _____________________________________

    Gene Friedman,

                               Plaintiff-Appellant,

                      v.                                            11-5383

    Swiss Re America Holding Corporation,

                      Defendant-Appellee.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                          Gene Friedman, pro se, Stamford, CT.

    FOR DEFENDANT-APPELLEE:                           Susanne Kantor (Greg A. Riolo, on the
                                                      brief), Jackson Lewis LLP, White Plains,
                                                      NY.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Briccetti, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED IN PART and the case is

REMANDED.

       Plaintiff-Appellant Gene Friedman, pro se, appeals the judgment of the district court

dismissing his complaint alleging unlawful employment discrimination on the basis of his

religion and age, pursuant to, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C.

§§ 621-34 ("ADEA"), as untimely filed.1 We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

       This Court reviews de novo a district court's dismissal pursuant to Fed. R. Civ. P.

12(b)(6), "accepting all factual claims in the complaint as true, and drawing all reasonable

inferences in the plaintiff’s favor." Tiberio v. Allergy Asthma Immunology of Rochester, 664

F.3d 35, 36 (2d Cir. 2011) (per curiam) (internal quotation marks omitted). Under Rule 12(b)(6),

dismissal is proper for pleadings that fail to state a claim upon which relief can be granted.

       In order to pursue successfully a Title VII or ADEA claim in federal court, a plaintiff

must file his federal complaint within 90 days of receipt of his right-to-sue notice from the Equal

Employment Opportunity Commission (“EEOC”). See 42 U.S.C. § 2000e-5(f)(1) (governing

Title VII claims); 29 U.S.C. § 626(e) (governing ADEA claims). There is a presumption that a


       1
           This decision does not pertain to that portion of the district court’s order dismissing,
pursuant to Fed. R. Civ. P. 12(b)(1), Friedman’s state law discrimination claims, which Friedman
has not challenged on appeal.

                                                 2
notice provided by a government agency was mailed on the date shown on the notice. See

Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996) (citing Baldwin Cnty.

Welcome Ctr. v. Brown, 466 U.S. 147, 148 & n.1 (1984)). There is a further presumption that a

mailed document is received three days after its mailing. See id. at 525. However, the initial

presumption is not dispositive "[i]f a claimant presents sworn testimony or other admissible

evidence from which it could reasonably be inferred either that the notice was mailed later than

its typewritten date or that it took longer than three days to reach her by mail." Id. at 526

(emphasis added).

       In the present case, it was error to dismiss Friedman’s complaint as untimely. As an

initial matter, the district court should have accepted as true the statement in Friedman’s

complaint that he actually received his EEOC right-to-sue notice on December 13, 2010 (as

opposed to December 10, 2010, which was the presumed date of receipt following the December

7, 2010 issuance of that notice). This statement, appearing in the complaint that Friedman

“declare[d] under penalty of perjury [to be] true and correct,” is sufficient to rebut the three-day

presumption. See id.2 Thus, based on his having received the EEOC’s right-to-sue letter on

December 13, 2010, Friedman was required to file his complaint within 90 days thereafter, or by

Monday, March 14, 2011.

       While it is undisputed that Friedman’s complaint was filed in the district court on March

15, 2011, one day past the deadline, the district court also erred by not considering, and


       2
           It is understandable that the district court did not rely on the statement in Friedman’s
complaint about the date of his actual receipt of the right-to-sue letter, as Friedman did not raise
this or point this out in his opposition to the motion to dismiss. ECF No. 15. However, the
Defendant did point out Friedman’s statement in its brief in support of the motion to dismiss, as
well as in its reply brief to Friedman’s opposition. ECF No. 11, at 9; ECF No. 16, at 5.

                                                  3
accepting as true, Friedman’s affidavit filed in opposition to the Defendant’s motion to dismiss,

in which Friedman attested that he had attempted to file his complaint on Friday, March 11,

2011, but was turned away by a clerk who informed him she was unable to assist him because

she did not know how to handle the filing of a pro se complaint. Friedman also attested that the

clerk eventually offered to stamp the back of the first page of his complaint with a “received”

office stamp showing that he had been there on March 11, and then advised him to come back

"the following week" to file the complaint when her supervisor would be present. Importantly,

Friedman's version of the events was corroborated when the Defendant submitted to the district

court a copy of the back of the first page of Friedman's complaint, which bore the district court's

March 11 "received" date stamp, albeit crossed out.

       Thus, accepting these factual statements as true, as we must, the timeliness of Friedman's

complaint depends on whether, as a matter of law, he should be credited for his unsuccessful

attempt to file his complaint on March 11. In these particular circumstances, we hold that he

should. This Court has held that when a pro se applicant submits a complaint, it "should be

treated as timely, provided the complaint was received by the clerk's office prior to the expiration

of the limitations period," even if it was not filed until a date beyond the limitations period.

Toliver v. Cnty. of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (per curiam). Here, as in Toliver,

Friedman should not be penalized for the delay caused by the clerk's office – namely, its refusal

to accept his complaint for filing on March 11, which preceded the expiration of the 90-day

filing deadline. Accordingly, Friedman’s Title VII and ADEA claims should be treated as

timely, and to that extent his complaint should be reinstated.




                                                  4
       We have considered all of Friedman’s and the Defendant’s remaining arguments and find

them to be without merit. Accordingly, we VACATE the district court’s judgment in part

insofar as it dismisses Friedman’s Title VII and ADEA claims, and we REMAND for further

proceedings.


                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




                                             5
