19-3642 Edo v. Antika Pizzeria Astoria, 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 16th day of June, two thousand twenty-one.

PRESENT: Guido Calabresi, Steven J. Menashi, Circuit Judges, Denise Cote, * District Judge. ____________________________________________

BILLY EDO, Plaintiff-Appellant,

v. No. 19-3642

ANTIKA PIZZERIA ASTORIA, INC., Defendant-Appellee. † _________________________________________________________________________________

*Judge Denise Cote of the United States District Court for the Southern District of New York, sitting by designation. † The Clerk of Court is directed to amend the caption as set forth above. For Plaintiff-Appellant: Billy Edo, pro se, New York, NY.

For Defendant-Appellee: No Appearance.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Matsumoto, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Appellant Billy Edo, proceeding pro se, sued his former employer, Antika

Pizzeria Astoria, Inc. (“Antika”), under Title VII of the Civil Rights Act of 1964

(“Title VII”) and the Age Discrimination in Employment Act (“ADEA”) alleging

discrimination on the basis of age, race, and sex; a hostile work environment; and

retaliation. Edo’s complaint, however, was untimely as to all claims. We therefore

affirm the district court’s judgment in favor of Antika. See Edo v. Antika Pizzeria

Astoria, Inc., No. 15-CV-5605,

(E.D.N.Y. Sept. 23, 2019). We

assume the parties’ familiarity with the underlying facts, procedural history, and

arguments on appeal.

“Before an individual may bring a Title VII suit in federal court, the claims

forming the basis of such a suit must first be presented in a complaint to the EEOC

2 or the equivalent state agency.” Williams v. N.Y.C. Hous. Auth.,

(2d

Cir. 2006) (citing 42 U.S.C. § 2000e-5). The same rule applies to ADEA suits. See

(d). “In order to be timely, a claim under Title VII or the ADEA must

be filed within 90 days of the claimant’s receipt of a right-to-sue letter.” Sherlock v.

Montefiore Med. Ctr.,

(2d Cir. 1996); see

(e); 42 U.S.C.

§ 2000e-5(f)(1). In this case, Edo filed his complaint 114 days after receiving his

right-to-sue letter from the EEOC, 24 days after the statutory deadline.

“While the 90-day rule is not a jurisdictional predicate, in the absence of a

recognized equitable consideration, the court cannot extend the limitations period

by even one day.” Johnson v. Al Tech Specialties Steel Corp.,

(2d Cir.

1984) (internal quotation marks omitted). In the proceedings below, Edo argued

that the district court should excuse his untimely filing because his paranoid

schizophrenia and related conditions of anxiety and depression entitled him to

equitable tolling. Edo,

, at *6. The district court denied his request.

Id. at *7. We review that decision for abuse of discretion. See Zerilli-Edelglass v.

N.Y.C. Transit Auth.,

(2d Cir. 2003).

“[E]quitable tolling is only appropriate in rare and exceptional

circumstances in which a party is prevented in some extraordinary way from

3 exercising his rights.”

(internal quotation marks, alterations, and citations

omitted). Although we have recognized that tolling “is generally considered

appropriate ... where a plaintiff’s medical condition or mental impairment

prevented her from proceeding in a timely fashion,”

“[o]ur caselaw has made

clear ... that mental illness does not toll a filing deadline per se; determining

whether equitable tolling is warranted in a given situation is a highly case-specific

inquiry,” Bolarinwa v. Williams,

(2d Cir. 2010) (internal quotation

marks omitted).

Here, the record reflects that Edo was hospitalized for psychiatric treatment

approximately two months before he received the right-to-sue letter. The record

does not indicate that Edo was hospitalized during the 90-day limitations period.

Moreover, although Edo submitted evidence that he received outpatient

psychiatric treatment during and after the limitations period, the record is silent

as to the extent of Edo’s impairment during that period, and he does not explain

how his condition changed between the limitations period and the date he filed

his complaint. Furthermore, Edo claims that he suffered from the same medical

condition at the time of his firing, which, if true, means that he filed his EEOC

charge while suffering from his illnesses. Thus, while the record indicates that Edo

4 suffers from a serious medical condition, it does not suggest that his condition

“prevented” him from filing this lawsuit within 90 days of receiving his right-to-

sue letter. Zerilli-Edelglass,

. Therefore, the district court did not abuse

its discretion in denying Edo’s request for equitable tolling. And having denied

that request, the district court correctly entered judgment in Antika’s favor. See

Sherlock,

; Johnson,

.

Edo also challenges an order issued by the magistrate judge in the

proceedings below requiring Edo to pay $295 for translation and interpretation

services that were ordered for a deposition for which he failed to appear. Finding

no abuse of discretion, we affirm that order. See SEC v. Razmilovic,

(2d Cir. 2013).

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court. 1

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 We also DENY all of Edo’s pending motions before our court.

5