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Kosto v. Potter

September 9, 2010

ROSE MARIE KOSTO, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Cathy Bissoon U.S. Magistrate Judge

Magistrate Judge Cathy Bissoon*fn1

MEMORANDUM ORDER

I. MEMORANDUM

Pending before the Court is Defendant's Motion for Judgment on the Pleadings (Doc. 15). For the reasons that follow, Defendant's motion will be granted.

BACKGROUND

The facts underlying Defendant's motion are largely undisputed and, indeed, Plaintiff, Rose Marie Kosto, concedes that "[t]he Defendant, The United States Postal Service, has asserted an accurate outline of the relevant facts at issue and has attached the necessary documents." Pl.'s Resp. (Doc. 17) at 2. The undersigned provides the following background, therefore, for context.

Plaintiff filed this action under the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. § 621 et seq., alleging age-based harassment and retaliation for engaging in protected activity. Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on or around March 20, 2007. Def.'s Br. (Doc. 16) at 1. On August 28, 2007, the EEOC issued a Final Agency Decision, ruling against Plaintiff on all of her claims. Id.

Plaintiff then retained an attorney, Bernard J. Rabik to represent her on appeal before the EEOC. Id. On May 12, 2009, the EEOC affirmed its decision and informed Plaintiff in writing of her right to file a civil action in federal court within "ninety (90) calendar days from the date that [she] receive[d] [that] decision." Def.'s Exh. A. Assuming five days for mailing, the parties do not dispute that Plaintiff had until August 17, 2009, to file a complaint in federal court.

On August 12, 2009, however, Mr. Rabik sent a letter to the EEOC requesting that the limitations period for filing a lawsuit be extended by 30 days, or until September 15, 2009. Def.'s Exh. B. Mr. Rabik cited no authority for such a request. Def.'s Exh. B. It is undisputed that the EEOC never granted or otherwise responded to this request. Def.'s Br. at 2. Sometime thereafter, Plaintiff hired Erik Yurkovich, who currently represents her, and through him filed a complaint with this Court on September 15, 2009. Id. at 3.

Defendant has moved for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), on the ground that Plaintiff's complaint is time-barred as it was filed outside of the 90-day limitation period set forth in 29 U.S.C. § 626(e). Doc. 15. Plaintiff, by her response, asks that the Court equitably toll the 90-day filing period because Plaintiff "reasonably believed" that she had until September 15, 2009, to file a complaint. Pl.'s Resp. (Doc. 17) at 3.

STANDARD

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings."

Fed. R. Civ. P. 12(c). The Court of Appeals for the Third Circuit has held that in order to succeed on a motion for judgment on the pleadings the movant must clearly establish that "no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d. 289, 290-91 (3d Cir. 1988)). In reviewing a Rule 12(c) motion, the Court "must view the facts ...


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