Summary
The United States Court of Appeals for the Second Circuit affirmed the dismissal on the pleadings of Vivian Pena’s employment discrimination claims against the federal government. The court held that claims under Title VII and the Rehabilitation Act were barred by Pena’s failure to timely contact an Equal Employment Opportunity Commission counselor, and it deemed her other claims abandoned or meritless.
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Practice areas
Questions Presented
- Whether Pena abandoned her claims under the Whistleblower Protection Act, 42 U.S.C. § 1981, and the New York State Human Rights Law by failing to address them in her appellate brief.
- Whether the district court properly dismissed Pena's Title VII and Rehabilitation Act claims for failure to comply with the 45-day Equal Employment Opportunity Commission counseling requirement.
- Whether equitable tolling excused Pena's failure to contact an Equal Employment Opportunity Commission counselor within 45 days.
Holdings
- Pena abandoned her claims under the Whistleblower Protection Act, 42 U.S.C. § 1981, and the New York State Human Rights Law by failing to discuss them in her appellate submission.
- A federal employee alleging discrimination under Title VII or the Rehabilitation Act must contact an Equal Employment Opportunity Commission counselor within 45 days of the alleged discriminatory act or the effective date of the personnel action.
- Equitable tolling was not warranted because Pena failed to show extraordinary circumstances that prevented her from timely contacting an Equal Employment Opportunity Commission counselor.
Key quotations
“We review a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) de novo.”
“We therefore agree with the district court that equitable tolling is not warranted in this case.”
Factual background
Pena alleged employment discrimination arising from her termination. Her amended complaint stated that she was notified of her termination approximately ten months before she first contacted an Equal Employment Opportunity Commission counselor in December 2002. She did not demonstrate extraordinary circumstances that prevented timely contact with the counselor or impaired her ability to pursue her rights.
Procedural history
The district court, Hellerstein, J., dismissed Pena's claims on the pleadings. On appeal, the Second Circuit held that Pena abandoned several claims by failing to address them in her appellate brief and affirmed dismissal of her Title VII and Rehabilitation Act claims because she failed to timely contact an Equal Employment Opportunity Commission counselor and did not establish grounds for equitable tolling.