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WILLIAMS v. RELATED MGMT. CORP.

September 27, 1993

JERRELL WILLIAMS, Plaintiff,
v.
RELATED MANAGEMENT CORP., Defendant.



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Defendant Related Management Corp. ("Related") brings this motion for summary judgment pursuant to Fed. R. Civ. P. 56 based on Williams's failure to commence this action before the expiration of the statute of limitations. For the reasons that follow, defendant's motion is granted.

 BACKGROUND

 From on or about August 10, 1986 to on or about March 4, 1987, plaintiff Jerrell Williams ("Williams") was employed by defendant Related as a maintenance superintendent. See Title VII EEOC Charge, Affirmation of Kenneth J. McCulloch dated October 2, 1992 ("McCulloch Aff."), Ex. A. On October 20, 1987, Williams filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR") and the federal Equal Employment Opportunity Commission ("EEOC") against Related, claiming unlawful, discriminatory employment practices because of his race and color. Id. On March 22, 1991, the NYSDHR found that Williams had abandoned the complaint and dismissed Williams's charge for "administrative convenience" because it had been unable to contact him by telephone or by mail. See id. Ex. B.

 Thereafter, on May 20, 1991, Williams received from the EEOC a right-to-sue notice, in which the EEOC stated that it had dismissed Williams's claim for failure to respond. See McCulloch Aff. Ex. C. The notice did not identify the forum in which Williams might sue, but it did advise him that he "must do so within 90 days" or that right would be lost. Id.

 On May 23, 1991, Williams applied in the Supreme Court of the State of New York, County of New York, for a Poor Person's Order to enable him to obtain a state court index number without having to pay the customary charge of $ 170. See Affirmation of Jerrell Williams dated December 14, 1992 ("Williams Dec. Aff.") Ex. A at 4-5. On June 24, 1991, New York Supreme Court Justice William P. McCooe granted Williams's application. Id. at 2-3. Williams thereafter obtained index number 42716 in the New York Supreme Court on June 27, 1991. Id. at 12.

 Williams claims that he filed the EEOC right-to-sue notice in the state court proceeding. Affirmation of Jerrell Williams filed July 15, 1992 ("Williams July Aff.") P 2. A review of the record obtained from the state court shows, however, that no right-to-sue notice was filed in the New York Supreme Court. See Williams Dec. Aff. Ex. A. Moreover, although the New York Supreme Court file under that number apparently contains a copy of Williams's charge filed with the NYSDHR and the EEOC and the NYSDHR Determination and Order After Investigation, id. at 6-10, the state court file does not contain a Title VII complaint, nor has Williams alleged service of a summons or complaint on defendant.

 Some time after May 23, 1991, Williams consulted an attorney who informed him that he "had filed this action in the wrong court." Williams Dec. Aff. at 1. Over six months after receiving the right-to-sue notice, on December 12, 1991, Williams filed a Complaint in the office of the pro se clerk in the United States District Court for the Southern District of New York, *fn1" claiming that he was terminated in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII").

 On April 28, 1992, defendant moved to dismiss Williams's Complaint pursuant to Fed. R. Civ. P. 12(b) on the ground that Williams had failed to file his Complaint within ninety days after receiving his right-to-sue notice from the EEOC. The Court denied defendant's motion to dismiss without prejudice because of Williams's allegation that he had commenced an action against Related in New York Supreme Court on May 23, 1991 that justified an equitable tolling of the statute of limitations. See Williams July Aff. P 2. The state court record has since been fully explored, and defendant now moves for summary judgment pursuant to Fed. R. Civ. P. 56 on the grounds that Williams cannot show that he commenced any Title VII action against Related before the expiration of the statute of limitations and that, in any event, equitable tolling is not justified in this case.

 DISCUSSION

 Summary judgment may be granted only where "there is no genuine issue as to any material fact" and a party is "entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, this Court is not to weigh evidence and make credibility findings, but rather to determine whether or not there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). As the Supreme Court stated in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), however, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. Summary judgment on the basis of the expiration of a statute of limitations is thus appropriate where the plaintiff fails to show the existence of any genuine issue of fact relating to the statute of limitations defense.

 Title VII provides that within ninety (90) days after the issuance of a right-to-sue notice, "a civil action may be brought against the respondent." 42 U.S.C. § 2000e-5(f)(1). Williams received his right-to-sue notice on May 20, 1991. Williams July Aff. P 1. Therefore, in order to preserve his right to bring suit against his employer, Williams must have commenced suit by August 18, 1991.

 Williams argues that he did commence an action before that date, to wit on May 23, 1993, in New York Supreme Court and that his filing in "the wrong court," id. P 3, on May 23, 1993 should have effected an equitable tolling. This argument fails as a matter of law because no rational jury could find that Williams commenced a Title VII action against Related in New York Supreme Court on May 23, 1991 or at any time during the ninety day period and because, even if he had filed such an action, there is ...


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