The opinion of the court was delivered by: McMAHON, District Judge.
DECISION AND ORDER CONVERTING MOTION TO DISMISS TO A MOTION FOR
SUMMARY JUDGMENT AND SOLICITING RESPONSE
Plaintiff Mark Davis sues Metropolis Country Club
("Metropolis") alleging discrimination based on race in violation
of Title VII of the Civil Rights Act of 1964, § 701 et seq., as
amended, 42 U.S.C. § 2000e et seq. Defendant moves to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim
upon which relief can be granted.
Plaintiff Mark Davis was employed by Metropolis as a
greenskeeper beginning on or about May 5, 1990. On or about
September 28, 1995, Davis' employment was terminated.
Davis filed a complaint with the New York State Division of
Human Rights ("NYSDHR") on or about November 30, 1995, in which
he alleged discrimination based on disability and race. The
complaint was also filed with the Equal Employment Opportunity
On May 14, 1998, the NYSDHR issued a Final Investigation Report
and Basis for Determination ("the NYSDHR Order") in which it
concluded that there was no probable cause to support Davis'
allegations of discrimination. The NYSDHR Order advised plaintiff
that he had fifteen (15) days after receipt of the order to
request a review in writing from the EEOC. Plaintiff did request
such a review — but his request was sent on or about June 16,
1998, more than fifteen days after receipt of the Order.
On December 3, 1998, the EEOC issued a Dismissal and Notice of
Rights Letter ("First Right to Sue Letter") which informed
plaintiff that he had ninety (90) days within which to file a
lawsuit under federal law based upon the charge. The First Right
to Sue Letter stated: "[y]our lawsuit must be filed WITHIN 90
DAYS from your receipt of this Notice; otherwise your right to
sue based on this charge will be lost." Plaintiff did not
commence an action within 90 days of the First Right to Sue
Plaintiff alleges that after receiving the December 3, 1998
letter, he called a senior EEOC investigator, Michael Santos, who
told him that he should not institute any legal action until the
investigation had been concluded.
By letter to the EEOC on or about July 5, 2000, nearly two
years after the issuance of the First Right to Sue Letter,
plaintiff wrote: "[T]his is to confirm that Mr. Santos advised me
not to seek legal recourse until he completed his investigation
regarding the above indicated case. At no time did I indicate
that I did not wish to file suit. I provided Mr. Santos with all
information regarding names of witnesses and dates. To date I
have not been informed of the outcome of his investigation.
Please be advised that I do wish to seek legal recourse by filing
suit." (Langs Aff. at Ex. H.)
The EEOC responded to plaintiff's letter by stating that the
matter was closed. It subsequently sent plaintiff another copy of
the First Right to Sue Letter dated December 3, 1998. The EEOC
did not mention any purported administrative error, or state that
a reconsideration of the December 3, 1998 Right to Sue Letter
would be or had been taken.
Approximately 21 months later, by letter dated September 6,
2000, the EEOC sent a letter to both Davis and Metropolis
rescinding its prior determination and stating that the
"Commission hereby rescinds the Notice of Right to Sue
(Dismissal) issued in [this matter] on December 8, 1998[sic],
which was issued in error." (Langs Aff. at Ex. G.)
In a letter dated September 11, 2000, Santos advised plaintiff
that, after a review of the entire file, the EEOC had determined
that no violation occurred, nor was it likely that "additional
information will result in finding a violation." (Langs Aff. at
Ex. L.) The EEOC issued a Second Dismissal and Notice of Rights
Letter dated September 12, 2000 (the "Second Right to Sue
Letter") stating that the EEOC had been "unable to conclude that
the information obtained established violations of the statutes."
(Id.) The letter informed plaintiff that he had 90 days from
receipt of the Notice of Right to Sue in Federal District Court.
The EEOC appears to have remailed it to him on September 27, 2000
due to a mistaken address. (Id. at Ex. M.)
This lawsuit was filed on December ...