Louis Paul Toscano v. at&tcorporate Headquarters

CLD-214 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2438
___________
LOUIS PAUL TOSCANO,
Appellant
v.
AT&T CORPORATE HEADQUARTERS
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 05-cv-03539)
District Judge: Honorable Garrett E. Brown, Jr.
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 30, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Opinion filed: June 17, 2008)
_________
OPINION
_________
PER CURIAM
This is an appeal from the district court’s dismissal of Louis Paul Toscano’s
amended complaint filed against AT&T. Because the appeal presents “no substantial
question,” we will summarily affirm the judgment of the district court under Third Circuit

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In November 2007, Toscano filed a motion to appoint counsel in this case. We1
stayed the briefing schedule pending our ruling on the motion to appoint counsel.
L.A.R. 27.4 and I.O.P. 10.6.
I.
In Feburary 2005, Toscano filed a charge of discrimination against AT&T with the
Equal Employment Opportunity Commission (“EEOC”). The EEOC deemed the charge
untimely filed and dismissed it in March 2005. In June 2005, Toscano filed a complaint
against AT&T in the Superior Court of New Jersey asserting several claims arising out of
his termination by AT&T and his subsequent placement on AT&T’s long-term disability
plan. Specifically, Toscano alleged that AT&T discriminated against him on the basis of
a disability and violated his rights under the Americans With Disabilities Act, 42 U.S.C. §
12101 et seq. (“ADA”), by declaring him totally disabled and placing him on its long-
term disability benefits plan. In July 2005, AT&T removed the case to the district court.
In October 2006, AT&T filed a motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) or, in the alternative, for summary judgment arguing that
Toscano’s claims were time-barred. On March 8, 2007, the district court granted the
motion for judgment on the pleadings and dismissed Toscano’s claims. Toscano filed a
timely appeal. We will now summarily affirm the district court’s order and deny1
Toscano’s motion.
II.

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We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise2
plenary review of the dismissal of a complaint under Federal Rule of Civil Procedure
12(c). See Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002); see also Green v. Fund
Asset Mgmt., 245 F.3d 214, 220 (3d Cir. 2001).
As the district court fully and properly explained, Toscano’s complaint failed to
state a claim because it is time-barred. Prior to filing an action for employment2
discrimination under the ADA, an employee must file a timely charge of discrimination
with the EEOC. See 42 U.S.C. 12117(a); see also Robinson v. Dalton, 107 F.3d 1018,
1022 (3d Cir. 1997). In a deferral state, such as New Jersey, the employee has 300 days
from the date of the alleged unlawful employment practice in which to file. See 42
U.S.C. § 2000e-5(e)(1). Here, Toscano’s discrimination charges against AT&T stem
from events occurring in 1992, but Toscano’s claim with the EEOC was filed in February
2005—well after the time had passed for timely filing. There is further no evident basis
for equitable tolling following the limitations period.
III.
Accordingly, we will summarily affirm the order of the district court dismissing
Toscano’s complaint. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. We also deny Toscano’s
motion for appointment of counsel.

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