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February 12, 1997

JESSIE SHORT, Plaintiff, against DILLION, READ & CO. INC., Defendant.

The opinion of the court was delivered by: JOHNSON


 JOHNSON, District Judge:


 The Plaintiff, Jessie Short, brings this action against her former employer, Dillon, Read & Co. Inc., pursuant to Title VII of the Civil Rights Act of 1964, alleging race and sex discrimination in conditions of employment, termination and failure to promote. The Defendant moves to dismiss the Plaintiff's complaint for failure to state a claim and lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(6). The Defendant claims that the Plaintiff has failed to exhaust her administrative remedies, has failed to establish a prima facie case of discrimination, and that the complaint is time-barred. The Defendant's motion to dismiss is granted.


 The Plaintiff, a Black female, was employed as a data entry and keypunch operator with the Defendant for approximately nine years. The Plaintiff alleges that she was subjected to unjustly harsh performance critiques and workplace rules of conduct that did not apply to personnel of other races. She alleges that she was ultimately fired March 12, 1993, without warning, due to the racial bias of her immediate supervisors. Ms. Short alleges that the only reason for termination given to her by her supervisor was that she displayed a lack of respect for authority. In addition to claiming that the Plaintiff was fired for insubordination, the Defendant also alleges that the Plaintiff had a history of being absent and untimely.

 The Plaintiff filed a complaint with the New York State Division of Human Rights, which found no probable cause to believe that the Defendant had discriminated against the Plaintiff. She then filed a complaint with the Equal Employment Opportunity Commission's New York District Office ("EEOC"), which supported the finding of the Division of Human Rights. In both of these complaints, the Plaintiff claims only race discrimination, and not sex discrimination or failure to promote.


 There is some question as to whether the Plaintiff filed her complaint in this court within ninety days of receiving the determination from the EEOC as required by 42 U.S.C. § 2000e-5(f)(1). See Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1996). The Plaintiff did not receive the EEOC determination in the mail. She went to the EEOC District Office for New York and personally retrieved the notice on August 22, 1996. It appears that the Plaintiff was notified that she had certified mail waiting at the Post Office, but she did not respond to the Postal notification. After the Post Office sent several notices to the Plaintiff, the letter was returned to the EEOC.

 The letter is dated June 12, 1996 and the envelope is post-marked June 13, 1996. The Plaintiff is presumed to have received the letter within three days of its mailing, or on June 17, 1996, June 16 being a Sunday. See Fed. R. Civ. Pro 6(e). The Plaintiff was therefore required to file suit in this Court by September 16, 1996, and she filed September 18, 1996, two days past this deadline.

 The Court of Appeals for this Circuit, however, has upheld a ruling that a certified letter is not "received" until a party is actually notified at her home mailing address that certified mail is available for pick-up. O'Neal v. Marine Midland Bank, 848 F. Supp. 413, 419 (W.D.N.Y. 1994), aff'd, 60 F.3d 812 (2d Cir. 1995). The letter is only presumed to have reached Ms. Short's Post Office within three days, but it is possible that Ms. Short did not receive the pick-up notice until several days later. If she received the pick-up notice on June 20, then the Plaintiff's complaint is timely.

 Resolution of this particular issue would require a hearing to resolve when and if the Plaintiff received notice that she had certified mail available for pick-up, and why the Plaintiff failed to retrieve the letter from the Post Office, but instead ventured to the EEOC Office to personally retrieve her determination. See O'Neal, 848 F. Supp. at 421-22 (issue of fact as to date of receipt of certified mail requires hearing where insufficient facts on record to make determination). This is unnecessary, however, in light of the fact that the Defendant raises other grounds on which the complaint can be dismissed.

 The particular facts of this case warrant dismissing the complaint on its lack of merit, rather than delaying this matter any further to determine whether the Plaintiff's complaint was timely filed. This Court will therefore presume that the Plaintiff did indeed file within the statutory time limit. See, e.g., Williams ...

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