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Appeals court upholds time bar ruling in nurse's bias claim

Appeals court upholds time bar ruling in nurse's bias claim

NEW YORK—A former nurse can't pursue her discrimination suit against a Rochester, N.Y.-based health care center because her complaint was filed three days late, the 2nd U.S. Circuit Court of Appeals ruled.

Lorrie Tiberio was fired from her job as an infusion nurse at Allergy Asthma Immunology of Rochester P.C. in May 2010 amid allegations that she illegally accessed her co-workers' medical charts and ordered false prescriptions, according to court documents. Following her termination, Ms. Tiberio filed a complaint with the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission, claiming that she was really fired because a sudden flare-up of symptoms connected to her multiple sclerosis forced her to leave work early.

The EEOC issued Ms. Tiberio a notice of her right to sue AAIR on Nov. 24, but exactly when she received it is disputed and a core issue in the case, the appellate court said in its decision Tuesday.

In May, a Rochester federal district judge rejected her discrimination lawsuit—filed Feb. 28, 2011—because it was submitted 93 days after receiving the EEOC's notice, three days past the federal 90-day limitation period.

Copies of the notice were sent to Ms. Tiberio and her attorney, as well as to AAIR. According to court documents, Ms. Tiberio's attorney received her copy on Nov. 29. However, because Ms. Tiberio could not prove when she had received her copy, the district court concluded that it had arrived on Nov. 27, three days after it was mailed.

On appeal, Ms. Tiberio argued that the date on which her attorney received the right-to-sue letter should control the limitations inquiry, thereby extending her deadline to Feb. 28, 2011.

In unanimous ruling, the three-judge appellate panel upheld the district court's ruling and clarified that the 90-day limitation period for bringing an employment discrimination claim “begins to run when a right-to-sue letter is first received either by the claimant or by the claimant's counsel, whichever is earlier,” according to court documents.