The opinion of the court was delivered by: Chin, District Judge.
Before the Court in this Title VII case is the motion of defendant Federal Reserve Bank of New York (the "Bank") for judgment on the pleadings. The Bank contends that the complaint must be dismissed because plaintiffs claims are barred by Title VII's statute of limitations. Although this is a motion for judgment on the pleadings, both sides have relied on matters outside the pleadings and plaintiff has submitted an affidavit (from her lawyer) opposing the motion. Accordingly, pursuant to Fed.R.Civ.P. 12(c), and because both sides have had a reasonable opportunity to submit all "pertinent" material, I treat the motion as a motion for summary judgment. The motion is denied.
A prerequisite to the filing of a federal civil action under Title VII is the timely filing of a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC"). Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999). Where the alleged act of discrimination occurs in a state that has its own anti-discrimination laws and a state agency is empowered to enforce the laws, the charge of discrimination must be filed with the EEOC within 300 days after the date of the alleged unlawful act. 42 U.S.C. § 2000e-5(e); see also 42 U.S.C. § 12117 (ADA incorporating Title VII). The 300-day period starts to run when the claimant receives notice of the allegedly discriminatory act, not when the allegedly discriminatory decision takes effect. Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); DeSalvo v. Metro. Opera Ass'n Inc., No. 96 Civ. 8292(DC), 1997 WL 337517, at *2 (S.D.N.Y. June 19, 1997); see also Miller v. IT & T Corp., 755 F.2d 20, 23 (2d Cir. 1985) (limitations period begins to run "on the date when the employee receives a definite notice of the termination"), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985).
Here, as plaintiff concedes, she was notified on or about August 4, 1999, that "her position was being `downsized' and that she would be terminated as of October 4, 1999." (Smith Aff. ¶ 3 & Ex. 2). Indeed, on or about August 4, 1999, plaintiff received a letter from the Bank's Human Resources representative confirming as follows:
As per our conversation of yesterday, I am
attaching a folder which contains information
concerning your benefits in conjunction with your
separation from this Bank effective October 4,
1999. . . .
(Smith Aff., Ex. 2) (emphasis added). Hence, plaintiff learned on August 4, 1999 (or even the day before) that her position was being "downsized." She therefore had 300 days — until June 29, 2000 — in which to file an EEOC charge. Plaintiff did not, however, formally file an EEOC charge until October 27, 2000, well after the 300-day period had expired. On November 7, 2000, the EEOC rejected the claim on the basis that "it was not filed within the time limit required by law" and issued plaintiff a notice of her right to sue. (Def.Mem., Ex. C).*fn1
First, plaintiff contends that she was deceived by the October 1, 1999 letter into believing that the termination of her employment had been rescinded and that she therefore had no notice of the discriminatory conduct against her until December 1999, when she was declared medically fit to return to work but the Bank had no position for her. No reasonable fact finder, however, could conclude that plaintiff was deceived. The letter reads in part as follows:
This letter confirms that you have elected to
remain on medical leave beyond Monday, October 4,
1999, your originally scheduled termination date.
As explained to you previously, in the event
that you are medically certified as fit to return
to work at some point in the future, you will not
be eligible to receive the separation benefits
which were outlined in your Release of Claims
Agreement. Rather, in accordance with Bank policy,
we would attempt to find an available and suitable
position for you in the Bank. However, if such a
position does not exist, the Bank would terminate
your employment, at which time you may be eligible
to receive limited separation benefits.
If you have chosen instead to terminate your
employment with the Bank in order to receive the
separation package outlined in your Release of
Claims Agreement, you must contact me no later
than 5:00 p.m., Tuesday, October 12, 1999.
(Smith Aff., Ex. 3) (emphasis in original).
The October 1, 1999 letter and the August 4, 1999 letter together make clear that the downsizing of plaintiffs position was not being rescinded. Rather, plaintiff was downsized when she was out on medical leave, with the termination of her employment to take effect on October 4, 1999. When the time came, however, she elected to remain on medical leave beyond the October 4, 1999 termination date. As a consequence, she continued to receive medical benefits but she was not eligible for the separation package outlined in the Release of Claims Agreement. She was also advised that, "in accordance with Bank policy," if she were medically certified fit to return to work in the future, the Bank would try to find her a job but if no suitable position were available, her employment would be terminated then.
Although the October 1, 1999 letter alluded to the fact that plaintiffs employment was not formally terminated at that time, that was only because plaintiff chose to remain on medical leave. The allegedly discriminatory action was the Bank's decision to downsize plaintiff, and the October 1, 1999 letter made clear — and a reasonable fact finder could only find — that the decision to downsize stood. Plaintiff could not have reasonably believed that that decision was ...