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United States Court of Appeals,Second Circuit.

Patricia CASTAGNA, Nick Sarracco, Plaintiffs–Appellants, v. Bill LUCENO, Majestic Kitchens, Inc., Defendants–Appellees.

Docket No. 13–0796–CV.

Decided: March 05, 2014

Before LIVINGSTON, LOHIER, Circuit Judges, and STEIN, District Judge. * E. Christopher Murray, Ruskin Moscou Faltischek, P.C., Uniondale, N.Y., for Plaintiffs–Appellants. Costantino Fragale, Mamaroneck, N.Y., for Defendants–Appellees (on submission).

Patricia Castagna, a former employee of Majestic Kitchens, Inc., appeals from an order of the United States District Court for the Southern District of New York (Cathy Seibel, Judge ) dismissing Castagna's state-law tort claims as time-barred. Castagna contends that the statute of limitations applicable to her tort claims against both Majestic and her former boss, Bill Luceno, was tolled by her filing of a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”).

Our Court has not previously determined whether filing an EEOC charge tolls the statute of limitations for state tort claims arising from the same nucleus of facts as underlie the EEOC charge. We now join the U.S. Courts of Appeals for the Seventh and Ninth Circuits in holding as a matter of federal law that filing an EEOC charge does not toll the limitations period for state-law tort claims, even if those claims arise out of the same factual circumstances as the discrimination alleged in the EEOC charge. We accordingly affirm the district court's dismissal of Castagna's tort claims.1

I. Background

Castagna worked as an accountant, and later as a receptionist, at Majestic Kitchens, Inc. in Mamaroneck, New York from April 1, 2005 until she resigned on July 9, 2008. Bill Luceno, majority owner of Majestic, supervised Castagna in both roles.

Castagna alleges that during her tenure Luceno regularly subjected women to an “abusive ․ work environment characterized by lewd, racial and sexual comments and innuendos, profanity, offensive physical contact and other inappropriate behavior.” Luceno allegedly yelled at female employees, including Castagna, “in a manner that appalled virtually all of the other employees,” and some of Majestic's customers as well. Male employees, Castagna claims, “were not subjected to the same treatment or public abuse.”

On July 9, 2008, with the receptionist's desk understaffed, Luceno asked Castagna to cut short her lunch in order that she could “cover[ ] the front desk telephone.” According to Castagna's complaint, when Castagna asked for compensatory time in exchange, Luceno “blew up,” “scream[ing]” and “swearing,” and “shoved” Castagna's computer monitor at her. Fearing “for her personal and physical safety,” Castagna promptly resigned from Majestic. Soon thereafter, she filed a police report over “what Luceno had done to her that day.”

Approximately 31/212 months later, Castagna filed a charge of discrimination with the EEOC, alleging, as relevant here, employment discrimination because of her sex. Castagna's charge described Luceno's shoving of the computer monitor, among other episodes. After receiving a right-to-sue letter from the EEOC on August 14, 2009, see 42 U.S.C. § 2000e–5(f)(1), Castagna commenced this action by filing a complaint in federal district court on November 9, 2009.

The complaint alleges, inter alia, that Luceno and Majestic subjected Castagna to a hostile work environment and constructively discharged her, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., and that defendants are liable for the torts of intentional infliction of emotional distress (“IIED”), assault, and battery, in violation of New York law. The IIED claim is based on Luceno's ongoing course of harassment, and the assault and battery claims are premised specifically on the incident involving the computer monitor.

On defendants' motion, the district court dismissed the three New York tort claims as barred by the applicable one-year New York state statute of limitations, N.Y. C.P.L.R. § 215(3). It rejected Castagna's argument that the statute of limitations for the state-law claims, which arose from the same set of facts as her discrimination claims, was tolled by her EEOC filing.

II. Analysis

Castagna does not dispute that absent tolling of the statute of limitations, her New York tort claims—filed more than one year after her last date of employment—were untimely. See N.Y. C.P.L .R. § 215(3); Goldner v. Sullivan, Gough, Skipworth, Summers & Smith, 105 A.D.2d 1149, 482 N.Y.S.2d 606 (App.Div.1984). The only question is whether, as a matter of either federal or New York law, those claims were tolled by her filing of an EEOC charge. We review de novo a district court's grant of a motion to dismiss, including “legal conclusions” concerning the court's “interpretation and application of a statute of limitations.” See City of Pontiac Gen. Emps.' Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir.2011). We now consider Castagna's arguments in turn.

A. Federal Tolling

Castagna principally contends that, were the statute of limitations for state tort claims not tolled pending the EEOC's consideration of a charge of discrimination, to preserve her claims, a litigant would be forced first to bring a tort case in state court “and later bring a federal, discrimination related claim in federal court ․ with an identical set of facts,” thereby “thwart[ing] ․ the judicial efficiency encouraged by the grant of supplemental jurisdiction ․ in 28 U.S.C. § 1367” (quoting Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F.Supp. 450 (S.D.N.Y.1997)). Such a state of affairs, the argument continues, would also “substantially undermine” one of the central “purposes of Title VII, which affords the EEOC the opportunity to ․ facilitate dispute resolution prior to the commencement of litigation” (quoting Brown v. Bronx Cross Cnty. Med. Grp., 834 F.Supp. 105, 111 (S.D.N.Y.1993) (citing 42 U.S.C. § 2000e–5(b))). In short, Castagna's position is that judicial efficiency mandates tolling of the relevant statutes of limitations for state tort claims once a charge of discrimination is filed with the EEOC.

The Seventh and Ninth Circuits—the only two federal courts of appeals that appear to have considered the issue—have rejected similar arguments regarding tolling of state tort claims. See Juarez v. Ameritech Mobile Commc'ns, Inc., 957 F.2d 317,323 (7th Cir.1992); Arnold v. United States, 816 F.2d 1306, 1313 (9th Cir .1987). So, too, have the “vast majority” of district court decisions in this circuit. See Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F.Supp.2d 98,122 & n. 19 (S.D.N.Y.2009) (collecting cases).

The U.S. Supreme Court's decision in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), supports the determinations of those courts. Johnson held that the filing of a charge of discrimination with the EEOC does not toll “the period of limitation applicable to an action based on the same facts, instituted under 42 U.S.C. § 1981.” See id. at 455.2 The Supreme Court acknowledged that without tolling, once a discrimination charge was lodged with the EEOC, a “civil rights complainant who values his § 1981 claim” would often be “press[ed] ․ into court before the EEOC has completed its administrative proceeding.” Id. at 465. Nonetheless, the Court determined that there was no tolling of the statute because Title VII and section 1981 were two separate statutes providing for different remedies. As Justice Blackmun wrote for the majority, “Congress clearly ․ retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII.” See id. at 466. And “[t]he fact that [a claimant's] slumber may have been induced by faith in the adequacy of [the] Title VII remedy is of little relevance” to tolling “inasmuch as the two remedies are truly independent.” See id.

Castagna attempts to distinguish Johnson on the ground that that action involved exclusively federal causes of action—specifically Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She argues that, unlike Johnson, to preserve all of her claims she “would have had to bring a separate state court action first and then a federal court action” once her Title VII claim had ripened.3 Castagna's argument that her dilemma differs in kind from Johnson's is unavailing. First, as the Ninth Circuit has recognized, although EEOC proceedings “often are beneficial” in resolving workplace disputes, Johnson “held, nonetheless, that Congress did not intend for these proceedings to delay independent avenues of redress.” See Arnold, 816 F.2d at 1313. Second, as in Johnson, a plaintiff who in the future finds herself in Castagna's situation “may ask [a] court to stay proceedings” in the initial action “until the [EEOC's] administrative efforts ․ have been completed.” See Johnson, 421 U.S. at 465. Although such a stay procedure is “perhaps not a highly satisfactory” response to Castagna's plight, “the fundamental answer to [her] argument lies in the fact” that she always had “an unfettered right” to pursue her tort claims. See id. at 466. Notably, Castagna does not urge that she could not have brought those claims within the applicable statute of limitations. She simply failed to do so.

Moreover, contrary to Castagna's impermissibly narrow reading of Johnson, the Court's reasoning against tolling encompassed more than the federal statute there at issue, 42 U.S.C. § 1981:

Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief. The legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.

Id. at 459 (alteration and quotation marks omitted) (emphasis added). For that reason, following Johnson, the Seventh Circuit rejected an employee's argument that the “Illinois statute of limitations” applicable to an invasion of privacy claim “was tolled by [an employee's] timely filing of a discrimination charge with the [EEOC].” See Juarez, 957 F.2d at 322. The Ninth Circuit similarly concluded that “federal policy [did not] mandate equitable tolling” of the California statute of limitations applicable to “common law tort claims” arising from the same facts as an employee's Title VII claim during the time that an EEOC charge was pending. See Arnold, 816 F.2d at 1308, 1313.

In short, there is no basis for concluding that Congress intended that a civil rights claimant should be entitled to delay filing any state tort claims during the EEOC's consideration of a charge of discrimination. We therefore join the Seventh and Ninth Circuits in holding as a matter of federal law that filing an EEOC charge does not toll the time for filing state tort claims, including those that arise out of the same nucleus of facts alleged in the charge of discrimination filed with the EEOC.

B. New York Tolling

Castagna also contends that New York law mandates tolling of the time in which to file her state tort claims, again because of the pendency of her EEOC charge. None of the state-law tolling arguments that Castagna now presses on appeal were presented to the district court. We therefore consider those arguments forfeited. See, e.g., Katel Ltd. Liab. Co. v. AT & T Corp., 607 F.3d 60, 68 (2d Cir.2010). We accordingly need not—and do not—decide whether, pursuant to New York law, there may be some ground for tolling of state tort claims during the pendency of an EEOC charge.

III. Conclusion

Because Congress did not intend for the filing of a charge of discrimination with the EEOC to toll the statute of limitations applicable to state tort claims, we now join the Seventh and Ninth Circuits in concluding that lodging a charge of discrimination with the EEOC does not toll those state claims. For that reason, and because Castagna did not preserve for appeal any argument in favor of state-law tolling, we affirm the district court's order dismissing Castagna's tort claims as time-barred.

SIDNEY H. STEIN, District Judge:

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