Summary
finding material issue of fact as to when the plaintiff received right to sue letter based upon sworn statement which was supported by documentary evidence
Summary of this case from Troise v. SUNY Cortland NYOpinion
No. 05 CIV. 3045 (DEC).
January 31, 2006
MEMORANDUM OPINION AND ORDER
Defendant moves to dismiss this action for failure to state a claim. For reasons stated below, this motion is treated as a motion for summary judgment and denied.
BACKGROUND
Plaintiff pro se Thurman Wall claims that defendant Town Sports International ("Town Sports"), his former employer, discriminated against him on the basis of his race and color in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Following the termination of his employment, Hall filed a charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC dismissed the charge, sent a letter dated August 27, 2004 explaining its decision, and issued a Dismissal and Notice of Suit Rights dated August 30, 2004. The Notice instructed Wall that any lawsuit based on the charge "must be filed within 90 days of your receipt of this Notice."
Wall filed a complaint against Town Sports with this Court's Pro Se Office on December 23, 2004. The Court (Mukasey, C.J.) sua sponte dismissed the complaint and directed Wall to submit an amended complaint providing more detail regarding the factual basis for his allegation of discrimination. The Court's order, dated March 21, 2005, required Wall to submit the amended complaint within 60 days. The Amended Complaint was filed May 18, 2005. In both complaints, Wall gives his address as P.O. Box 25285 in Newark, New Jersey.
Town Sports moved under Fed.R.Civ.P. 12 (b) (6) to dismiss the Amended Complaint for failure to commence the action within 90 days of receipt of the EEOC's right-to-sue letter. In opposition, Wall submitted an affidavit declaring that the right-to-sue letter had seen sent to the wrong address. He attached to his affidavit a photocopy of an envelope sent from the EEOC and a copy of the August 27 letter. Both documents bear a stamp that reads "Received Sep 7, 2004 EEOC-NYDO-CRTIU" and the envelope is also marked "Return to Sender[,] Not Deliverable as Addressed — Unable To Forward." Both documents are addressed to Wall at Box 25825 in Newark, New Jersey. The Notice, a copy of which was appended to the Amended Complaint (but not to Wall's Opposition to this Motion), is also addressed to Box 25825. These documents reflect a transposition error affecting the third and fourth digits of Wall's box number.
DISCUSSION
Fed.R.Civ.P. 12 (b) provides that if, on a motion to dismiss for failure to state a claim, "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Indeed, it is error for a district court to "consider affidavits and exhibits submitted by [a party] or rel[y] on factual allegations contained in legal briefs or memoranda in ruling on a 12 (b) (6) motion to dismiss." Friedl v. New York, 210 F.3d 79, 83-84 (2d Cir. 2000). Wall has submitted a sworn statement and documentary evidence in support of his opposition to Town Sports's motion. Because Wall's supplemental materials are considered in this opinion, the motion to dismiss must be converted to a motion for summary judgment.
A district court must ordinarily give notice to the parties before converting a motion to dismiss to a motion for summary judgment. See, e.g., Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991). "A party is deemed to have notice that a motion may be converted . . . if that party should reasonably have recognized the possibility that such a conversion would occur."Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004) (citation omitted). Town Sports should have recognized the possibility for conversion when it received Wall's opposition. Having itself commented on Wall's affidavit and documentary evidence in its reply, Town Sports cannot claim to have been "taken by surprise and deprived of reasonable opportunity to meet facts outside the pleadings." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (citation omitted). In any event, Town Sports is not prejudiced by the conversion, as nothing in this Opinion precludes Town Hall from seeking discovery on this issue and making a further motion for summary judgment at a later date. See Sira, 380 F.3d at 68.
"Summary judgment is appropriate if the evidence offered, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004). For the purposes of this motion, there is a single material fact: the date on which Hall received the Notice of Suit Rights from the EEOC. If there is any genuine issue as to this fact, therefore, summary judgment is not appropriate.
Town Sports invokes the presumptions that a notice provided by a Government agency is mailed on the date shown on the notice, and that mailed materials are received three days after mailing, to suggest that Wall received his Notice of Suit Rights on September 2, 2004. See Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525-26 (2d Cir. 1996). But Wall submitted a sworn statement that he did not receive his right-to-sue letter until September 30. This alone is sufficient to rebut the presumption regarding date of receipt, see Sherlock, 84 F.3d at 526, and Wall further strengthens his case with documentary evidence that at least some mail sent to him by the EECO was returned as undeliverable. It is entirely possible that it might take a government agency two weeks from the receipt of returned mail to correct its mistake and resend the document. If this is true, then Wall might not have received initial notice of his right to sue (assuming 3 days mailing time) until September 4, and a suit filed on December 23 would have been timely. Whether this happened, however, is a question of fact and not of law.
Wall's evidence pertains to the receipt of the August 27 letter. He submits no direct evidence that the Notice of Suit Rights, sent August 30, was also misdirected and returned to the EEOC. But the facts that some mail sent to that address was undeliverable and that the Notice was sent to that address together suggest that the Notice may also have been returned as undeliverable.
CONCLUSION
In their submissions on defendant Town Sports's motion to dismiss, the parties have submitted and discussed matter outside the pleadings. Because this material is not excluded, the motion is addressed as a motion for summary judgment. And because this material creates a genuine issue of fact, summary judgment is inappropriate. Town Sports's motion for summary judgment is denied.SO ORDERED.