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January 14, 2003


The opinion of the court was delivered by: Gerard E. Lynch, United States District Judge:


Plaintiff Jon Earl Moyer brought this pro se complaint in New York State Supreme Court against his former employer IBM Corporation for breach of contract, wrongful discharge, sexual harassment, discrimination on the basis of national origin, and intentional infliction of emotional distress. Defendant removed to federal court, and now moves for dismissal under Fed.R.Civ.P. 12(b)(6) on the grounds that (1) the Court lacks subject-matter jurisdiction over the federal civil rights claims; (2) New York does not recognize the tort of wrongful discharge; and (3) all other claims are time-barred.*fn1 Defendant's motion will be granted in its entirety.


Moyer states that he was hired by IBM in 1987. The parties agree that on July 26, 1996, he was fired for failure "to repay IBM the debt he had incurred on his IBM credit card for personal purchases." (D. Mem. 3.) Moyer does not dispute the stated reason for his dismissal, but alleges that after he had accepted a transfer to IBM's Somers, New York, facility with a promised salary of $70,000, $19,000 more than his then-current salary (Compl. ¶ 6), IBM actually paid him only about $38,000 per year (Compl. ¶ 14, at 8). Moyer alleges that it was because of this underpayment that he was forced to use an IBM credit card for personal expenses. On these facts, he makes a claim of breach of contract and wrongful discharge.

Moyer also claims that while he was employed at IBM, IBM engaged in other conduct (the details of which, to the extent they can be understood, are unnecessary to recite here) that, along with his ultimate dismissal, constituted intentional infliction of emotional distress ("IIED") under New York law, and discrimination on the basis of his national origin (Moyer is of German descent) and sexual harassment in violation of Title VII and the New York State Human Rights Law ("NYHRL").


This Court does not have subject matter of Moyer's claims under Title VII. Title VII requires a plaintiff, prior to filing suit, to present a claim to the Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 2000e-5(f)(1); Butts v. New York Dep't of Housing, Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). Moyer does not allege that he filed an EEOC charge based on the conduct alleged here, or attach to his complaint any evidence of his filing such a charge. Therefore, his Title VII claims must be dismissed.

There is no cause of action under New York law for wrongful discharge from employment. Ingle v. Glamore Motor Sales, Inc., 73 N.Y.2d 183, 188-89 (1989). Therefore, plaintiffs wrongful discharge claim must be dismissed.

All of plaintiffs other claims are time-barred. New York's statute of limitations for IIED is one year. CPLR § 215(3); Gallagher v. Directors Guild of America, Inc., 533 N.Y.S.2d 863, 864-65 (1st Dep't 1988) (noting that the state's appellate courts have uniformly interpreted CPLR § 215 as applying to all intentional torts, including (IIED). Its statute of limitations for complaints under the Human Rights Law, Exec. Law § 296, is three years. CPLR § 214(2); Koerner v. State, 62 N.Y.2d 442, 446 (1984). And its statute of limitations for breach of contract is six years. CPLR § 213. Moyer's causes of action relating to his dismissal from employment accrued on July 26, 1996, the date he was dismissed. His causes of action relating to the conduct of IBM or its employees while he was employed obviously accrued even earlier. He filed this lawsuit on October 1, 2002, more than six years after July 26, 1996.

Moyer argues, in effect, that the statute of limitations should be tolled because he was unable to file his claim until after July 26, 2002. The nature of Moyer's claimed disability is not crystal clear from his papers; it is variously described as involving IBM's conducting "a larger `program' that included controlling me, the lulling of me" (P. Mem. at 2 ¶ 1); IBM's "`programming loads into me or affecting me via frequencies that hit my brain" until "`I was given new programming, August 2002" (Id. ¶ 4); and IBM's conspiring with Hitachi in "programming/tampering with me in the 1995 timeframe and continuing into the 2002 timeframe" (Id. at 3 ¶ 6).

Under New York's CPLR, there is no provision for the tolling of the statute of limitations for reasons such as these. Liberally construing Moyer's papers, as is appropriate where a litigant is appearing pro se, they might read as a request for tolling the statute of limitations for mental incapacity pursuant to CPLR § 208, or for some sort of equitable tolling he would be entitled to because of IBM's alleged active participation in preventing him from filing, see, e.g, Roldan v. Allstate Ins. Co., 544 N.Y.S.2d 359, 367 (2d Dept. 1989) (noting that judge-made tolling provisions, "to a very limited extent," are available where "a claimant is, through absolutely no fault of his own, unable to sue.") Such a request cannot be granted on the facts alleged by Moyer. In a motion for dismissal under Fed.R.Civ.P. 12(b)(6), a Court may consider "matters of which judicial notice may be taken." Brass v. American Film Technologies, 987 F.2d 142, 150 (2d Cir. 1993). Matters of well-established scientific fact are matters of which judicial notice may be taken. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 n. 11 (1993); Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). The Court takes judicial notice of the fact that, whatever state of mind may have prevented Moyer from timely filing this suit, it is not possible for IBM to have induced that state of mind by means of "frequencies that hit [his] brain," "lulling," "programming," or "tampering" with his mind. Therefore, Moyer has made no allegations that would permit the court to toll New York's six-year statute of limitations in breach of contract cases, or the shorter limitations that apply to his other causes of action.


For the reasons stated above, the complaint is dismissed ...

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