this enterprise, according to Skeete, IVF set up a series of companies to mislead insurers, and misrepresented to the Internal Revenue Service the status of full and part time employees. (Id. at PP21-22).
Skeete states that she refused to participate in IVF's illegal activities and that IVF "used the power of the corporation and the assets derived therefrom to coerce other employees to participate in their racketeering enterprise and also coerced them to harass plaintiff and further used the illegally obtained profits to directly coerce and ultimately to harass and ruin Plaintiff." (Id. at P23). Moreover, Skeete asserts that as a result of the criminal enterprise her "business professional reputation was severely injured. Plaintiff has suffered financial injury over more than 1 1/2 years and irreparable harm to her business development . . .." (Id. at P25).
The defendants first move to dismiss Skeete's Title VII claims as time-barred. Title VII suits must be commenced not more than 90 days after receipt of the Right To Sue Letter. See 42 U.S.C. § 2000e-5(f)(1); see also Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). "Although not a jurisdictional predicate, the failure to comply with the statutory filing period warrants a dismissal in the absence of a recognized equitable consideration." Smith v. Local Union 28 Sheet Metal Workers, 877 F. Supp. 165, 172 (S.D.N.Y. 1995), aff'd., 100 F.3d 943 (2d Cir. 1996); see also Holmes v. NBC/GE, 914 F. Supp. 1040, 1042 (S.D.N.Y. 1996).
The Right To Sue Letter states that it was mailed to Skeete at a post office box address on August 13, 1996. The defendants argue, relying on Federal Rule of Civil Procedure 6(e)
, that Skeete should be deemed to have received the Right To Sue Letter on August 16, 1996, and, therefore, the filing of her complaint with the Pro Se Clerk on November 21, 1996, 97 days after her deemed receipt of the Right To Sue Letter, was untimely.
Based on Rule 6(e) courts have presumed that a plaintiff received her Right To Sue Letter within three days of its mailing by the EEOC. See Holmes, 914 F. Supp. at 1042-43 (collecting cases); Smith, 877 F. Supp. at 172; see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984). However, this presumption does not apply when the parties have submitted evidence to show when the plaintiff actually received the Right To Sue Letter. See Holmes, 914 F. Supp. at 1043-44. Moreover, it may be that an unexplained failure to visit a post office box for a long period of time may be so unreasonable as to bar suit. See Sousa v. National Labor Relations Board, 817 F.2d 10, 11 (2d Cir. 1987).
Skeete states that she only received the Right To Sue Letter on August 24, 1996. (Skeete Aff. at P3(a)). Receipt of the Right To Sue Letter on August 24, 1996 would mean that Skeete's suit was filed within 90 days of her receipt of the Right To Sue Letter. However, the defendants argue that Skeete's delay in retrieving the Right To Sue Letter was unreasonable. They point to evidence that notice to pick up the Right To Sue Letter was given to Skeete by the post office on both August 16, 1996 and August 23, 1996. The facts remain unclear on this motion. The papers do not indicate whether the plaintiff received the first notice from the post office and, if she did, why she did not retrieve the Right To Sue Letter at that time. On a motion to dismiss, this Court cannot determine when in fact Skeete received the Right To Sue Letter, and whether any delay in her receipt was unreasonable. See Holmes, 914 F. Supp. at 1043-44; see also Sousa, 817 F.2d at 11. Thus, the defendants' motion to dismiss Skeete's Title VII claims as untimely is denied.
The defendants also argue that the Court lacks subject matter jurisdiction over Skeete's Title VII sex discrimination claim. In Title VII cases, the district court has jurisdiction only over those claims either included in the EEOC Charge or that are "reasonably related" to the allegations in the plaintiff's EEOC complaint. See Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993); Walsh v. National Westminster Bancorp., Inc., 921 F. Supp. 168, 171 (S.D.N.Y. 1995). In deciding whether claims are reasonably related, the relevant inquiry is whether the EEOC could reasonably be expected to have investigated Skeete's sex discrimination claim based on the allegations contained in her Charge. See Walsh, 921 F. Supp. at 172; Clements v. St. Vincent's Hospital and Medical Center or New York, 919 F. Supp. 161, 163 (S.D.N.Y. 1996). In her Charge, Skeete complained only of racial discrimination, not sex discrimination.
Skeete argues that her sex discrimination claim was reasonably related to the allegations in her first EEOC Charge, because she stated in the affidavit attached to that Charge that out of 175 people employed by IVF there were only 8 black women. However, in that same affidavit, Skeete stated that she was passed over for the position she sought in favor of another applicant because he was white. Nowhere in the affidavit does Skeete allege that she was not selected because she was a woman. Moreover, on the EEOC Charge itself, Skeete stated that she was discriminated against because of her race and checked the box indicating that she had been discriminated on that basis. That Charge does not present any allegations of discrimination on the basis of sex, nor did Skeete check the sex discrimination box.
The EEOC, based on the information provided by Skeete, could not have been expected to investigate whether she was discriminated against based on her sex, because Skeete only alleged in her Charge that she had been discriminated against because of her race. Such a claim of discrimination, because it asserts a different type of discrimination than was alleged in the Charge, cannot be considered reasonably related to the allegations in Skeete's Charge. See Narvarte v. Chase Manhattan Bank, N.A., 969 F. Supp. 10, 1997 U.S. Dist. LEXIS 9652, 1997 WL 379705 *2-*3 (S.D.N.Y. 1997) (claims for discrimination on the basis of color, religion and national origin not related to a claim of racial discrimination); Walsh, 921 F. Supp. at 172 (sex discrimination claim not reasonably related to claim of retaliation); Clements, 919 F. Supp. at 163 (sex claim not reasonably related to race claim); Fitch v. R.J. Reynolds Tobacco, 678 F. Supp. 1046, 1048-49 (S.D.N.Y. 1987) (retaliation claim not reasonably related to race claim). Therefore, Skeete's Title VII claim asserting that she was discriminated against on the basis of her sex is dismissed.
The defendants also move to dismiss Skeete's intentional infliction of emotional distress claim as time barred. It is well established that the statute of limitations for such a claim is one year. See Drury v. Tucker, 210 A.D.2d 891, 892, 621 N.Y.S.2d 822, 823 (4th Dep't 1994); Campbell v. Chabot, 189 A.D.2d 746, 747, 592 N.Y.S.2d 423, 424 (2d Dep't 1993). In seeking to dismiss this claim the defendants assert that "although plaintiff does not specifically allege when the acts constituting this intentional tort were committed, it is undisputed that such acts could have occurred no later than April 14, 1995, the last date of plaintiff's employment." (Defendants Memorandum of Law at 6).
However, on the record before the Court on this motion to dismiss, it cannot be determined when the last act constituting the intentional tort occurred. The Court cannot determine whether it is in fact undisputed that the last act occurred no later than the date of Skeete's termination. Moreover, the affidavit the defendants submit, in support of their assertion as to when Skeete's termination occurred, is not properly part of the record on a pre-answer motion to dismiss. Therefore, the defendants' motion to dismiss Skeete's intentional infliction of emotional distress claim is denied without prejudice to renewal.
Finally, the defendants move to dismiss Skeete's RICO claim for lack of standing. "To invoke RICO's civil remedies, a plaintiff must have been 'injured in his business or property by reason of a violation of section 1962.'" Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1344 (2d Cir. 1994)(citing 18 U.S.C. § 1964(c)); see also In re American Express Co. Shareholder Litigation, 39 F.3d 395, 399 (2d Cir. 1994). In her complaint, Skeete alleges that she was injured as a result of her refusal to participate in the alleged RICO enterprise. Skeete also alleges that her business and professional reputation was severely injured and that she therefore suffered financial injury.
To state an injury sufficient to confer standing under RICO, the plaintiff must have been injured by the predicate acts that are essential for a RICO violation. See O'Malley v. O'Neill, 887 F.2d 1557, 1561 (11th Cir. 1989), cert. denied, 496 U.S. 926 (1990) (citing Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985)); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir. 1989). In this case, the predicate acts Skeete alleges involve defrauding insurance companies and misleading the Internal Revenue Service. Plainly Skeete is not alleging that she was injured by these predicate acts. Instead, Skeete alleges that she was injured for refusing to participate in the RICO violations. However, such an injury was not the result of the predicate acts and therefore is not sufficient to confer standing. See Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 24 (2d Cir. 1990); O'Malley, 887 F.2d at 1561; Burdick, 865 F.2d at 529. Thus, Skeete's RICO claim is dismissed.
The defendants' motion to dismiss Skeete's Title VII claims as untimely is denied. The defendants' motion to dismiss Skeete's sex discrimination claim is granted. The defendants' motion to dismiss Skeete's intentional infliction of emotional distress claim is denied without prejudice to renewal. The defendants' motion to dismiss Skeete's RICO claim for lack of standing is granted.
Dated: New York, New York
July 25, 1997
John G. Koeltl
United States District Judge