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CLOWARD v. COLUMBIA UNIV.

March 23, 1995

RICHARD CLOWARD, Plaintiff, against COLUMBIA UNIVERSITY and RONALD A. FELDMAN, Defendants.


The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 BACKGROUND

 In this action, plaintiff, a sixty-seven year old full professor at the Columbia University School of Social Work ("CUSSW"), alleges that defendant Columbia University and individual defendant Ronald A. Feldman, Dean of CUSSW, has discriminated and continues to discriminate against him because of his age. More precisely, plaintiff alleges that Columbia and Dean Feldman, since at least the academic year of 1986-87, have offered and continue to offer lower salaries and lower salary increases to older, more experienced faculty members at CUSSW, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq; Complaint PP 16-17.

 On April 4, 1991, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") alleging age discrimination in compensation. On June 30, 1992, the EEOC issued its Determination dismissing plaintiff's claim and finding no basis to conclude that defendants had discriminated against plaintiff. *fn1" With respect to the relevant statute of limitations, the "right to sue" letter stated:

 
A lawsuit under the ADEA ordinarily must be filed within two years of the date of discrimination alleged in the charge. On November 21, 1991, the ADEA was amended to eliminate the two year limit. An ADEA lawsuit may now be filed any time from 60 days after a charge is filed until 90 days after the receipt of notice that EEOC has completed action on the charge. Because it is not clear whether this amendment applies to instances of alleged discrimination occurring before November 21, 1991, if Charging Party decides to sue, a lawsuit should be brought within two years of the date of the alleged discrimination and within 90 days of receipt of this letter, whichever is earlier, in order to assure the right to sue.

 EEOC Determination, attached as Exhibit B to Affidavit of Mark Goldstein. Plaintiff commenced this action on January 19 1994.

 Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff filed his action more than 90 days after receiving the EEOC determination. We note that the parties have submitted affidavits and other evidence to the Court to be considered on the motion to dismiss. Such materials lie outside the four corners of the pleadings; accordingly, the court must either exclude the additional materials from our consideration and decide the motion based solely upon the complaint, or convert the motion to one for summary judgment under Fed. R. Civ. P. 56, see Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988); Carter v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1971); see generally 5 C. Wright & A. Miller, Federal Practice and Procedure, P 1366 (1990 & Supp. 1992) (discussing the circumstances in which a court may convert a motion to dismiss into a motion for summary judgment). The Court has determined to consider materials which the parties have submitted; therefore, we elect to convert this motion to dismiss into a motion for summary judgment, and interpret the expanded record accordingly.

 DISCUSSION

 This motion presents two fundamental issues. First, we must determine whether the 90 day limitations period set forth in ยง 626(e) of the ADEA, as amended by the Civil Rights Act of 1991 on November 21, 1991, applies to actions in which the allegedly discriminatory acts occurred prior to November 21, 1991 but the plaintiff's EEOC determination was received and the subsequent complaint was filed in federal court after November 21, 1991. If the 90 limitations period does apply to the instant action, then we must analyze whether plaintiff's allegation that the discrimination is ongoing tolls the new limitations period. We address these issues in turn.

 Applicable Statute of Limitations

 At the time this motion was filed, the Second Circuit had not addressed the first critical question, namely, whether the 90 day limitations period should apply in these circumstances (i.e., where plaintiff's claim accrued prior to enactment of the Civil Rights Act of 1991 but the complaint was filed in federal court post-enactment). On March 8, 1995, the Second Circuit issued its decision in Vernon v. Cassadaga Valley Central School District, 1995 WL 97473 (2d Cir. 1995). After discussing the majority of cases cited by the parties on the instant motion, Judge Miner concluded:

 
We agree with those cases that hold that the limitations period enacted in the 1991 Act should apply to claims filed after its enactment, including those in which the cause of action accrued beforehand. The reasoning in those cases is more persuasive, and their conclusions are bolstered by previous decisions of this court as well as by the Supreme ...

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