17-3896
Perez v. Mason Tenders District Council


                                  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
ASUMMARY 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 21st day of November, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR.,
         PIERRE N. LEVAL,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges.
________________________________________________

XIOMARA PEREZ,

                                          Plaintiff-Appellant,

                     v.                                                            No. 17-3896-cv

MASON TENDERS DISTRICT COUNCIL TRUST
FUNDS,

                                          Defendant-Appellee.

____________________________________________

FOR PLAINTIFF-APPELLANT:                                         Xiomara Perez, pro se, New York, NY.

FOR DEFENDANT-APPELLEE:                                          Joseph C. O’Keefe, Proskauer Rose LLP,
                                                                 Newark, NJ.
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      Appeal from a November 3, 2017, judgment of the United States District Court for
the Southern District of New York (Engelmayer, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

      Xiomara Perez, proceeding pro se, appeals the district court’s judgment dismissing
her employment discrimination claim under the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12111 et seq., against Mason Tenders District Council Trust Funds (“Mason
Tenders”) as untimely.

       On appeal, Perez raises two issues: (1) whether her attorney’s neglect entitles her to
equitable tolling; and (2) whether evidence and arguments raised for the first time in
Perez’s reply brief may overcome her concession in her trial court filings and opening brief
that her complaint was untimely. For its part, Mason Tenders has moved to strike the
portions of Perez’s reply that rely on new evidence to make new arguments. We assume
the parties’ familiarity with the underlying facts and the procedural history of the case. For
the reasons that follow, we affirm the district court’s decision.

                                              I.

        We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de
novo, “construing the complaint liberally, accepting all factual allegations in the complaint
as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts
to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), and “allow[] the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings
filed by pro se litigants must be construed liberally and “held to less stringent standards
than formal pleadings drafted by lawyers.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d
185, 191 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
“We review a district court’s decision to deny equitable tolling for abuse of discretion.”
Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 81 (2d Cir. 2003).

                                              II.

        To file a timely claim under the ADA, a plaintiff must file a complaint “in federal
district court within 90 days of the [plaintiff’s] receipt of a right-to-sue letter from the


                                              2
[Equal Employment Opportunity Commission]” (“EEOC”). Tiberio v. Allergy Asthma
Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011). The 90-day period may be tolled,
however, where a plaintiff (1) has “acted with reasonable diligence during the time period
she seeks to have tolled, and (2) has proved that” extraordinary circumstances kept her
from filing on time. Zerilli-Edelglass, 333 F.3d at 80-81 (internal quotation marks omitted).
Although attorney misconduct may constitute an extraordinary circumstance, the
misconduct must be more significant than “garden variety . . . neglect.” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990).

       Perez concedes in her opening brief, as she did before the district court, that her
complaint was filed outside the 90-day window she had from receiving the EEOC’s right-
to-sue letter to bring her claim. Nevertheless, she maintains that the limitations period
should be tolled because of her attorney’s neglect. Perez had hired an attorney to negotiate
a salary raise with Mason Tenders. As part of their agreement, Perez claims that she, rather
than her attorney, was responsible for filing any complaint in federal court if the negotiation
was unsuccessful, and her attorney was to keep her apprised of his status by telephone. But,
when the salary negotiation eventually failed, the attorney ignored Perez’s request, and sent
her a letter rather than call her on the telephone. As a result, Perez discovered she would
need to file a complaint two days before her 90-day window expired.

       As the district court found, however, Perez was neither reasonably diligent nor
impeded by an extraordinary circumstance in pursuing her ADA claim. The record does
not suggest Perez had actively pressed her claim or that her attorney’s alleged mistake,
using the mail rather the telephone to communicate, was more than “garden variety”
neglect. Indeed, Perez knew she was responsible for filing her claim on time and, even
when she received the letter, Perez still had two days to do so. We thus find that the district
court did not abuse its discretion in declining to equitably toll Perez’s limitations period.

                                                     III.

        For the first time in reply, Perez disputes the date on which she received the EEOC
letter claiming in contradiction of her assertions in her complain and in her initial brief in
this court, that in reality she received the letter later than she had earlier stated.1

      “Although we may exercise discretion to consider waived arguments where
necessary to avoid a manifest injustice,” we ordinarily decline to do so “where those
arguments were available to the parties below and they proffer no reason for their failure

1
    Perez conceded in her complaint, and before a magistrate judge, that her complaint was untimely.

                                                      3
to raise the arguments below.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133
(2d Cir. 2008) (internal quotation marks and alterations omitted). And we consider
evidence outside the district court record only under “extraordinary circumstances.” Int’l
Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975); accord Keepers, Inc. v.
City of Milford, 807 F.3d 24, 29 n.14 (2d Cir. 2015), cert. denied, 137 S. Ct. 277 (2016).
“This is true whether the record is merely ambiguous or is affirmatively deficient with
respect to any papers or orders of any kind.” Edelstein, 526 F.2d at 45. Because Perez has
not proffered a compelling reason her newly asserted evidence and arguments were
unavailable while she was before the district court, she has not met the burden described
above. We thus decline to consider her newly presented argument and evidence for the first
time on appeal.2

                                                      IV.

      We have considered Perez’s remaining 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 of Court




2
 Because we do not consider the portions of Perez’s reply to which Mason Tenders objects, we deny Mason
Tender’s motion to strike as moot. Dkt. No. 66.

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