15-2029
Haygood v. ACM Medical Laboratory, 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, at 40 Foley Square, in the City of New York, on
the 14th day of March, two thousand sixteen.

Present:       ROBERT A. KATZMANN,
                    Chief Judge,
               AMALYA L. KEARSE,
                    Circuit Judge,
               GREGORY H. WOODS,
                    District Judge.*
 
 
HAROLD L. HAYGOOD,

       Plaintiff-Appellant,

               -v-                                  No. 15-2029

ACM MEDICAL LABORATORY, INC.,
and DAWN CRUZ, Homebound Services
Supervisor, individually,

       Defendants-Appellees.**

 
 
For Plaintiff-Appellant:                            Ryan C. Woodworth, Rochester, NY.
                                                       
*
   The Honorable Gregory H. Woods, of the United States District Court for the Southern District
of New York, sitting by designation.
**
    The Clerk of the Court is respectfully directed to amend the caption to conform to the above.


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For Defendants-Appellees:                             Daniel J. Moore, Harris Beach PLLC,
                                                      Pittsford, NY.

       Appeal from the United States District Court for the Western District of New York
(Telesca, S.J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

        Harold Haygood alleges that he was subject to racial discrimination, a hostile work

environment, and unlawful retaliation by his supervisor, Dawn Cruz, during the two years he was

employed by ACM Medical Laboratory, Inc. (“ACM”). Haygood, acting pro se, filed two

substantially identical charges of discrimination on the same date, one with the Equal

Employment Opportunity Commission (“EEOC”) and one with the New York State Division of

Human Rights (the “Division”). The EEOC did not find any violations of anti-discrimination

laws and sent Haygood a dismissal notice on January 30, 2014. The Division, which held a fact-

finding conference to investigate the allegations, also dismissed Haygood’s complaint. Haygood

appealed the Division’s determination to the EEOC, which issued a second dismissal notice on

May 20. Both EEOC dismissal notices informed Haygood that he had 90 days to file suit or his

right to sue based on those claims would be lost.

       On August 13, 2014, Haygood filed a complaint against ACM and Cruz, alleging

violations of 42 U.S.C. §1981, Title VII of the Civil Rights Act of 1964, and the New York State

Human Rights Law. His complaint was filed within 90 days of receiving the EEOC’s second

dismissal notice, but more than 90 days after he received the first. The defendants jointly moved

to dismiss for lack of jurisdiction. The United States District Court for the Western District of

New York (Telesca, S.J.) granted the motion and dismissed all of Haygood’s claims. It

determined that Haygood’s Title VII claims were untimely and denied him equitable tolling. The




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court also concluded that Haygood’s § 1981 claims were collaterally estopped because he had a

full and fair opportunity to litigate before the Division. Haygood now appeals on both grounds.

       We find that the district court did not err in granting the defendants’ motion to dismiss, as

Haygood’s complaint was filed well after the expiration of the 90-day deadline from his first

dismissal notice. We also conclude that the district court did not abuse its discretion in

determining that Haygood had not met the “extraordinary” burden to invoke equitable tolling.

See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“[A] litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.”). As a unanimous Supreme Court

recently “reaffirm[ed],” “the second prong of the equitable tolling test is met only where the

circumstances that caused a litigant’s delay are both extraordinary and beyond its control.”

Menominee Indian Tribe of Wisc. v. U.S., 136 S. Ct. 750, 756 (2016); see also Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (tolling should be “applied sparingly”).

       Although there is no indication here that Haygood sought two dismissal notices in a

deliberate attempt to get around the statutory time limits, see, e.g., Soso Liang Lo v. Pan

American World Airways, Inc., 787 F.2d 827 (2d Cir. 1986) (per curiam), the deadline stated in

the first notice was controlling. Because Haygood’s filing was indisputably untimely and he has

not shown any “extraordinary circumstances” warranting equitable tolling, we affirm the district

court’s judgment dismissing the Title VII claims.

       We have examined the remainder of Haygood’s arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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