13-440-cv
Grys v. ERIndustrial Sales, Inc.


                               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 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 30th day of January, two thousand fourteen.

PRESENT:
                 JOSÉ A. CABRANES,
                 REENA RAGGI,
                 SUSAN L. CARNEY,
                              Circuit Judges.

_____________________________________

CHRISTINE GRYS,

                 Plaintiff-Appellant,

                          v.                                    No. 13-440-cv

ERINDUSTRIAL SALES, INC., AL FROEBEL,
DAVID FACKELMAN,

            Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                 Christine Grys, pro se, West Seneca,
                                                         NY.


FOR DEFENDANTS-APPELLEES:                                Scott P. Rogoff, Hisckock & Barclay
                                                         LLP, Rochester, NY.


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       Appeal from a December 31, 2012 decision of the United States District Court for the
Western District of New York (William M. Skretny, Chief Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

         Christine Grys, proceeding pro se, appeals from the judgment of the District Court
dismissing her complaint as untimely filed. The complaint alleged, inter alia, employment
discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq. After filing her complaint with the New York State Division of Human Rights in
June 2010, Grys filed charges with the Equal Employment Opportunity Commission (“EEOC”).
By letter dated October 14, 2011, the EEOC sent Grys a Right-to-Sue notice, which she received on
October 20, 2011. According to the clerk’s date-stamp on the face of her complaint, Grys filed her
complaint in the District Court on January 20, 2012.
         In May 2012, Defendant ERIndustrial Sales Inc. (“ERI”) filed a motion for judgment on the
pleadings, pursuant to Federal Rule of Civil Procedure 12(c), seeking dismissal of the complaint as
time-barred because Grys had exceeded the 90-day window for filing her complaint in federal court.
The District Court permitted Grys to file a supplemental affidavit explaining the reason for her delay
in filing the complaint. Grys filed the affidavit, and on January 3, 2013, the District Court entered
judgment dismissing the complaint. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
         We review de novo a district court’s decision to grant judgment on the pleadings pursuant to
Rule 12(c). See Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). We accept the factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. See id.
         In order to successfully pursue a Title VII claim in federal court, a plaintiff must file her
federal complaint within 90 days of receipt of her Right-to-Sue notice from the EEOC. See 42
U.S.C. § 2000e-5(f)(1). The 90-day period is not jurisdictional, however, and it is subject to equitable
tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). Equitable tolling is
appropriate where the plaintiff: (1) “actively pursued judicial remedies but filed a defective pleading
during the specified time period”; (2) “was unaware of his or her cause of action due to misleading
conduct of the defendant”; or (3) suffered from a “medical condition or mental impairment [that]
prevented her from proceeding in a timely fashion.” Zerilli-Edelglass v. New York City Transit Auth.,
333 F.3d 74, 80 (2d Cir. 2003) (internal quotation marks omitted).
         Equitable tolling is also proper where the plaintiff has shown that she: “(1) has acted with
reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the
circumstances are so extraordinary that the doctrine should apply.” Id. at 80-81 (internal quotation
marks omitted). We review a district court’s decision to deny equitable tolling for “abuse of
discretion.” See id. at 80-81. A district court “abused its discretion” if it “based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a

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decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117,
132 (2d Cir. 2008) (internal quotation marks and citations omitted).
        As an initial matter, Grys does not raise any arguments in her brief concerning the timeliness
of her complaint or the District Court’s decision to deny equitable tolling, and thus has abandoned
any such challenges. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418,
428 (2d Cir. 2005) (“[A]rguments not made in an appellant’s opening brief are waived even if the
appellant pursued those arguments in the district court . . . .”); LoSacco v. City of Middletown, 71 F.3d
88, 92-93 (2d Cir. 1995) (explaining that a pro se appellant abandons an issue not raised in his
appellate brief).
        In any event, even if all relevant arguments are deemed preserved for appeal, after having
conducted an independent and de novo review of the record in light of the above principles, we find
that the District Court properly granted the Rule 12(c) motion and dismissed Grys’s complaint as
untimely filed.
        Grys admitted in her complaint that she received her EEOC Right-to-Sue notice on October
20, 2011. She then had 90 days, or until Wednesday, January 18, 2012, to file her federal complaint.
See 42 U.S.C. § 2000e-5(f)(1). Grys’s complaint, however, was not filed until January 20, 2012—92
days after she received her Right-to-Sue notice. Although she stated, in her affidavit filed in
opposition to the Rule 12(c) motion, that she had signed the complaint on January 18, 2012, and
personally delivered it to the Clerk’s Office of the District Court on that date, both the District
Court docket sheet and the date-stamp on the complaint indicate that it was filed on January 20,
2012, two days beyond the limitations period. Grys offers no evidence to corroborate her assertion,
nor any reason to doubt the accuracy of those court records.
        Furthermore, we find no error or “abuse of discretion” in the District Court’s decision to
deny equitable tolling, as Grys’s proffered causes for the delay in filing her complaint do not amount
to “rare and exceptional circumstances, [such that she was] prevented in some extraordinary way
from exercising [her] rights.” Zerilli-Edelglass, 333 F.3d at 80 (internal quotation marks and citations
omitted). Grys’s contentions on appeal, which merely reiterate the factual allegations in her
complaint, do not call into question the propriety of the District Court’s rulings.

                                           CONCLUSION

       We have considered all of Grys’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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