Ong v. Deloitte Consulting LLP

Background

Yani Ong brought claims against Deloitte Consulting LLP for sex, pregnancy, and disability discrimination and retaliation under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Deloitte moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Deloitte argued that Ong’s federal claims were untimely.

Timeliness Issue

Title VII and Americans with Disabilities Act claims must generally be filed in federal court within 90 days after the plaintiff receives a notice of right to sue from the Equal Employment Opportunity Commission. In the Second Circuit, courts generally presume that the notice was mailed on the date printed on it and received three days later, unless the plaintiff provides sworn testimony or other admissible evidence supporting a later mailing or receipt. The 90-day period begins when the notice is first received by either the claimant or the claimant’s lawyer, whichever occurs earlier.

Ong’s notice was dated December 9, 2020, and she filed this case on March 26, 2021. Ong alleged that the notice was first emailed to her through her lawyer on December 29, 2020, even though it carried the earlier date. She submitted emails showing that an Equal Employment Opportunity Commission investigator said on December 14 that the documents were still being processed, sent them to Ong’s lawyer on December 29, and later confirmed that the investigator had not sent them directly to Ong.

Court’s Analysis

The court held that Ong had provided admissible evidence that could overcome the usual mailing-and-receipt presumptions. The evidence supported an inference that the notice was first sent on December 29, 2020, to Ong’s lawyer and was not sent to Ong personally. The court distinguished cases in which plaintiffs had offered only unsupported allegations or speculation about receiving their notices later.

Disposition

The court denied Deloitte’s motion to dismiss the First Amended Complaint. The opinion did not decide whether Ong ultimately proved discrimination or retaliation; it decided only that the federal claims could not be dismissed at this stage as untimely. The Clerk of Court was asked to terminate the pending motion at docket entry 18.