of the statute of limitations and that, in any event, equitable tolling is not justified in this case.
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 no basis to toll the statute of limitations on any subsequent filings because New York Supreme Court is not "the wrong court."
First, although Williams claims that he filed an action for discriminatory employment practices against Related in New York Supreme Court on May 23, 1991, he has failed to come forward with any evidence that even raises an issue of fact as to whether he commenced any action against Related in state court. At the time Williams claims to have instituted that state court Title VII action against Related, the New York Civil Practice Rules and Regulations provided that a civil action was "commenced . . . by service of a summons." N.Y. Civ. Prac. L. & R. § 304 (McKinney 1990). Mere filing of a summons or complaint does not constitute an action pending against the defendant. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 234, 448 N.E.2d 86 (1983); Potter v. Potter, 104 Misc. 2d 930, 430 N.Y.S.2d 201, 204 (1980). Since Williams has not shown, or even alleged, that he served a summons on defendant on or before August 19, 1991, there is no state civil action to serve as the predicate on which this Court could base an equitable tolling.
Indeed, on the facts presented by Williams, no rational jury could find that Williams even filed a Title VII claim with the Clerk of the New York Supreme Court. As the state court record shows, none of the documents filed in New York Supreme Court in connection with a dispute with Related had the effect of commencing a Title VII action. Plaintiff's state court filings include (1) an Affidavit in Support of Application to Commence Action as a Poor Person of Jerrell Williams dated May 23, 1991, (2) a Poor Person's Order dated June 24, 1991 allowing Williams to obtain an index number without having to pay the customary charge of $ 170, (3) an application for an index number dated June 27, 1991, (4) a copy of Williams's charge filed with the EEOC and the NYSDHR, and (5) the NYSDHR Determination and Order After Investigation. See Williams Dec. Aff. Ex. A.
None of these documents in the official state court file constitutes a complaint,
nor did Williams take any other action which put Related on notice that Williams was instituting an action against it until he filed his Complaint in this action in the office of the pro se clerk of this Court on December 12, 1991, almost four months after the ninety day statute of limitations had expired.
Moreover, even assuming, arguendo, that Williams did commence a Title VII action in New York Supreme Court, no basis for equitable tolling exists. Since the New York state courts have concurrent jurisdiction over Title VII claims, Yellow Freight Systems v. Donnelly, 494 U.S. 820, 108 L. Ed. 2d 834, 110 S. Ct. 1566 (1990), this case, if one was filed, was pending and was not brought in the wrong court. No other basis for equitable tolling has been set forth. Plaintiff admits receiving the EEOC right-to-sue letter on May 20, 1991, and thus cannot even colorably claim that he had not received notice of his right to sue. See, e.g., Coles v. Penny, 174 U.S. App. D.C. 277, 531 F.2d 609 (D.C. Cir. 1976).
Nor is this a case where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, see Harris v. Walgreen's Distribution Center, 456 F.2d 588, 591 (6th Cir. 1972); or where the Court has led the plaintiff to believe that he has done everything required of him, see Carlile v. South Routt School District RE 3-J, 652 F.2d 981 (10th Cir. 1981); or where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. See Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 3 L. Ed. 2d 770, 79 S. Ct. 760 (1959); Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 24 (2nd Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985).
Finally, this is not a case where the plaintiff brought a timely action in "a state court having jurisdiction" that was dismissed for the technical mistake of improper venue. See Burnett v. New York Central R.R. Co., supra, 380 U.S. 424, 434-35 (1965). It follows that to permit equitable tolling on facts such as these would not be consistent with the view expressed in Burnett that tolling only be granted where a plaintiff has for some reason been prevented from asserting his rights. Burnett, 380 U.S. at 429.
For the reasons stated above, defendant's motion for summary judgment shall be and hereby is granted. The Clerk of the Court is directed to enter judgment accordingly and to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
September 27, 1993
John E. Sprizzo
United States District Judge