    09-0069-cv
    Johnson v. St. Barnabas Nursing Home



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 5th day of March, two thousand ten.

    PRESENT:
                ROBERT A. KATZMANN,
                GERARD E. LYNCH,
                            Circuit Judges,
                DENNY CHIN,*
                            District Judge.
    _______________________________________________

    Felicia Pickett Johnson,

                          Plaintiff-Appellant,

                   v.
                                                                 09-0069-cv
    St. Barnabas Nursing Home,

                          Defendant-Appellee,

    Ronald Granger,

                      Defendant.
    _______________________________________

    FOR PLAINTIFF-APPELLANT:                     Felicia Pickett Johnson, pro se, New York, N.Y.


               *
                  The Honorable Denny Chin, of the United States District Court for the Southern
        District of New York, sitting by designation.
FOR DEFENDANT-APPELLEE:                        William D. Buckley, Garbarini & Scher, P.C., New
                                               York, N.Y.


          Appeal from the United States District Court for the Southern District of New York

(Marrero, J.).

          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of said District Court be and hereby is AFFIRMED.

          Appellant Felicia Pickett Johnson, pro se, appeals from the district court’s judgment

granting the defendants’ motion for judgment on the pleadings and dismissing her employment

discrimination complaint as time-barred. We assume the parties’ familiarity with the facts,

proceedings below, and specification of issues on appeal.

          This Court reviews a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) de

novo. See Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 792 (2d Cir. 1999).

The same standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.

Civ. P. 12(c) motions for judgment on the pleadings. Sheppard v. Beerman, 18 F.3d 147, 150

(2d Cir. 1994). Thus, “a court must accept the allegations contained in the complaint as true, and

draw all reasonable inferences in favor of the non-movant,” and deny the motion “unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Id. Furthermore, 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, 547

(2007).

          Under Title VII and the Americans with Disabilities Act, a claim must be filed in federal

court within 90 days of the plaintiff’s receipt of a right-to-sue letter from the Equal Employment


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Opportunity Commission (“EEOC”). See 42 U.S.C. § 2000e-5(f)(1) (Title VII action must be

brought within ninety days of notification of right to sue); id. § 12117(a) (adopting Title VII

limitations period for the ADA). Absent sufficient evidence to the contrary, it is presumed that a

plaintiff received his or her right to sue letter three days after its mailing. See Sherlock v.

Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996).

        Here, Johnson’s unsupported allegation that she received her EEOC right-to-sue letter on

November 14, 2007, was not sufficient to rebut the applicable three-day presumption of receipt.

See Sherlock, 84 F.3d at 526 (“[W]e would not regard the presence of a self-serving date-of-

receipt notation . . . as evidence rebutting the presumption that the letter was received three days

after its typewritten date, unless the claimant also presented an affidavit or other admissible

evidence of receipt on the noted date.”). Accordingly, it is assumed that Johnson received the

October 31, 2007 right-to-sue letter on November 3, 2007, requiring her to file her complaint on

or before February 1, 2008. Her February 7, 2008 complaint was thus untimely.

        We have considered all of Johnson’s other arguments on appeal and have found them to

be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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