Summary
dismissing ADEA and ADA claims where plaintiff asserted only Title VII claim in his EEOC charge
Summary of this case from POZO v. J J HOTEL COMPANY, L.L.C.Opinion
05 Civ. 9677 (LAK) (KNF).
November 30, 2006
REPORT AND RECOMMENDATION
Plaintiff Mohammed Hassan ("Hassan"), proceeding pro se, brings this action against defendants The New York City Off Track Betting Corporation ("OTB") and its Law Department, Robert Flusser, Florencio Suarez, and Dely St. Hill (collectively the "defendants"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621- 634 ("ADEA"), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101- 12213 ("ADA"). Before the Court is the defendants' motion, made pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss the plaintiff's complaint, for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The defendants contend that: (a) the the plaintiff's claims are time-barred due to his failure to commence the action within 90 days of receiving a notice of right to sue from the United States Equal Employment Opportunity Commission ("EEOC"); (b) the plaintiff's claims are time-barred due to his failure to file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act(s); (c) the court does not have subject matter jurisdiction over the plaintiff's age and disability claims because they were not presented by the plaintiff to the EEOC for adjudication; and (d) the ADEA is not applicable to the plaintiff because he was not 40 years of age at the time of the alleged discriminatory act(s). The plaintiff opposes the motion.
According to Hassan, he was employed as an accountant by OTB until he resigned in April 2001. He alleges that the defendants retaliated against him after he requested a new work location, in March 1998. The plaintiff made the request because noise and an odor at the location where he was then assigned to work caused him to suffer headaches and other physical pain. The plaintiff asserts that, since his resignation was tendered, the defendants continue to retaliate against him by providing negative references to prospective employers, thus preventing him from obtaining new employment.
Hassan filed a charge of discrimination with the EEOC, alleging retaliation in violation of Title VII. After investigating the charge, the EEOC concluded that the plaintiff had failed to file his charge timely and, furthermore, that no documentary or other evidence existed that supported his charge. Consequently, the charge was dismissed and, in 2003, a notice of the plaintiff's right to commence a lawsuit was issued to him.
When the plaintiff is a pro se litigant, as is the case here, the Court must be mindful that the plaintiff's pleadings "[are to be] held 'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176, (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595). "The Court has the duty to 'read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.'" Dibbs v. Roldan, 356 F. Supp. 2d 340, 348 (S.D.N.Y. 2005) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) [citations omitted]). The Court has done so in the instant case.
Fed.R.Civ.P. 12(b)(1)The defendants contend that the court does not have subject matter jurisdiction over the plaintiff's ADEA and ADA claims because the plaintiff failed to raise any age or disability claims with the EEOC. Before bringing a suit under Title VII, ADEA or ADA, a plaintiff must file a timely charge of discrimination with the EEOC. See Legnani v. Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d Cir. 2001); Stalter v. Bd. of Coop. Educ. Servs. of Rockland County, 235 F. Supp. 2d 323, 332 (S.D.N.Y. 2002) (citing Harris v. City of New York, 186 F.3d 243, 247 [2d. Cir. 1999]). However, filing a timely charge with the EEOC "is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 395 n. 11, 102 S. Ct. 1127, 1132, 1133 n. 11 (1982). See also Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000). Therefore, because failing to comply with the administrative filing requirements of Title VII, ADEA and ADA does not deprive the court of subject matter jurisdiction, the defense asserted by the defendants, pursuant to Fed.R.Civ.P. 12(b)(1), is inapplicable here.
Fed.R.Civ.P. 12(b)(6)A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (quoting Hoover v. Ronwin, 466 U.S. 558, 587, 104 S. Ct. 1989, 2005). In considering the motion, the court must take "the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
A Title VII action must be commenced within 90 days of receiving an EEOC right to sue notice. See 42 U.S.C. §§ 2000e- 5(f)(1). "The Second Circuit has noted that Title VII's time limits are 'analogous to a statute of limitations.'"Fletcher v. Runyon, 980 F. Supp. 720, 721 (S.D.N.Y. 1997) (quoting Briones v. Runyon, 101 F.3d 287, 290 [2d Cir. 1996]). Therefore, the failure to bring suit within the statutory filing period is a ground for dismissing a complaint in the absence of a recognized equitable consideration. See Skeete v. IVF America, Inc., 972 F. Supp. 206, 209 (S.D.N.Y. 1997).
The pleadings indicate that, on January 16, 2003, the EEOC issued a letter explaining to the plaintiff that the evidence he submitted failed to indicate that a Title VII violation had occurred and that his allegations concerning the termination of his employment were filed untimely. Although the date on the plaintiff's right to sue notice submitted with his complaint is obliterated, a copy of the same document, submitted by the defendants, indicates that the EEOC issued the notice on January 22, 2003. Despite the discrepancy between the date the EEOC issued its explanatory letter to Hassan and the date on which it issued the right to sue notice to him, the plaintiff concedes in his complaint that he received his right to sue notice in 2003. The instant complaint was filed on November 16, 2005, more than two years after the right to sue notice was sent to, and likely received by, the plaintiff. The plaintiff's Title VII action was not filed with the court timely.
Although the plaintiff did not assert in his EEOC charge that ADEA and ADA violations had occurred, he did so in the complaint he filed with this court. The Second Circuit Court of Appeals has recognized that "claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are 'reasonably related' to those that were filed with the agency."Legnani, 274 F.3d at 686 (quoting Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 614 [2d Cir. 1999]). A claim is reasonably related to those raised in an EEOC charge of discrimination where: (1) the alleged discriminatory conduct "would fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination;'" (2) the claim is one of "retaliation by an employer against an employee for filing an EEOC charge;" and (3) the plaintiff "alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (quoting Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1402-03 [2d Cir. 1993] [superseded on other grounds]). None of these elements is present in the case at bar. Moreover, even if these elements were present, since the plaintiff filed his Title VII claim with the court untimely, any claim that might reasonably be related to it and, thus, properly be before the court for adjudication in this Title VII action, would also be time-barred.
RECOMMENDATION
For the reasons set forth above, I recommend that the branch of the motion to dismiss that was made pursuant to Fed.R.Civ.P. 12(b)(1) be denied, and that the branch of the motion that was made pursuant to Fed.R.Civ.P. 12(b)(6) be granted.FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).