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April 7, 2003


The opinion of the court was delivered by: Robert L. Carter, United States District Judge


Plaintiff, Larry Rice, began this action by filing suit against defendants, Scudder Kemper Investments, Inc., Illinova Generating Co., Continental Energy Services, Inc., Wartsila Diesel, Donald J. Ennen, John S. Weisse, Eyob Easwaran, and Michael O'Neill, claiming unlawful race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C § 2000-e et. seq., age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., as amended, and race, national origin, and age discrimination in violation of Article 15 of the Executive Law of the State of New York ("Human Rights Law"). In addition, plaintiff filed a state claim for breach of contract. In an opinion dated January 24, 2003, the court dismissed the complaint with regard to Wartsila, Ennen, and Weisse for failure to timely serve process. The remaining defendants move to dismiss the complaint pursuant to Rule 12(b)(6), F.R.Civ.P., for failure to state a claim.


The relevant facts construed in the light most favorable to plaintiff are as follows. Plaintiff is a white male citizen of the United States. (Pl.'s Compl. ¶ 15.) In an employment agreement with Jamaica Energy Partners ("JEP") dated January 31, 1996, plaintiff agreed to become JEP's General Manager and Chief Executive Officer, commencing March 1, 1996. (Pl.'s Compl. ¶ 31.)

After three years of employment with JEP, plaintiff was fired on January 12, 1999. (Pl.'s Compl. ¶ 36.) The alleged reason for plaintiff's termination was plaintiff's refusal to refrain from making public comments about JEP's sole customer, Jamaica Public Service Co. Ltd. ("JPSCo"). (Pl.'s Compl. ¶ 40.) Plaintiff was replaced by Carlton Stephen, a black Jamaican at least 10 years younger than plaintiff. (Pl.'s Compl. ¶ 57.)

In accord with the provisions in plaintiff's contract with JEP (see LaRocca Aff. Ex. A.), plaintiff and JEP arbitrated their dispute. In the course of arbitration, defendant produced on September 27, 2000, a letter dated January 21, 1999, which stated the following:

JEP's owners are committed to a fundamental redirection of the company punctuated by a renewed and reinvigorated cooperation with [JPSCo]. To this end, JEP has hired Carlton Stephen as its General Manager and Chief Executive Officer. Mr. Stephen will commence his duties February 1, 1999. He brings to his new position a work history rich in multinational business experience and corporate management. As a lifelong Jamaican citizen, Carlton Stephen will provide a local perspective perhaps too long absent from JEP's top management considerations.
(See LaRocca Aff. Ex. I.)

As a result of this document, plaintiff and his lawyer determined they had a discrimination suit and filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on April 6, 2001. (Pl.'s Compl. ¶¶ 57, 4.) On May 4, 2001, plaintiff received a Notice of Right to Sue but was also notified that the EEOC could not investigate the complaint because it was not filed within 300 days of the alleged discriminatory act. (LaRocca Aff. Ex. 8.)


A motion pursuant to Rule 12(b)(6), F.R.Civ.P., requires the court to construe all factual allegations made in the complaint as true and to draw all reasonable inferences in favor of plaintiff in determining whether the complaint alleges any set of facts which would entitle plaintiff to relief. See Caiola v. Citibank, N.A., 295 F.3d 312, 321 (2d Cir. 2002). In short, the court's function is not to evaluate the strength of the pleadings but rather to determine their legal sufficiency. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).

Even though pro se litigants are entitled to leniency with regard to their pleadings, plaintiff's Title VII and ADEA claims are insufficient with regard to both the corporate and individual defendants. As an initial matter, only employers are subject to liability under Title VII and the ADEA, necessitating dismissal of all federal claims against the individual defendants, Easwaran and O'Neill.*fn1 See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Glozman v. Retail, Wholesale & Chain Store Food Employees Union, Local 338, 204 F. Supp.2d 615, 627 n. 6 (S.D.N.Y. 2002) (Carter, J.). Furthermore, plaintiff failed to file his claim with the EEOC within 300 days of the discriminatory act as required by 42 U.S.C. § 2000e-5 (b). See Butts v. City of New York Dep't of Hous., Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). Since this 300 day requirement operates as a statute of limitations, it is subject to the traditional tolling mechanisms, equitable tolling, waiver, and estoppel, as well as the doctrine of continuing violations, each of which will be discussed in turn. See Figueroa v. City of New York, 198 F. Supp.2d 555, 562-63 (S.D.N.Y. 2002) (Scheindlin, J.).

Equitable tolling applies in circumstances so extraordinary that "it would have been impossible for a reasonably prudent person to learn that his discharge was discriminatory." Miller v. IT & T Corp., 755 F.2d 20, 24 (2d Cir. 1985). Plaintiff claims that the statute of limitations was tolled until September 27, 2000, when defendants' letter dated January 21, 1999 was produced during the arbitration. While the letter defendants produced for the arbitration may have strengthened plaintiff's case of discrimination, plaintiff knew the identity and relevant characteristics of his replacement and furthermore believed his termination was unwarranted at the time it occurred. (See Pl.'s Compl. ¶¶ 55, 57.) The circumstances of his termination, of course, do not point ineluctably towards discrimination based on age, race, or national origin, but it cannot be said that an individual represented by a reasonably competent attorney, as plaintiff was until late 2001, would have found it impossible to conceive of the causes of action in question.

Plaintiff also argues that the arbitration clause in the contract was a direct or, in the alternative, indirect form of waiver of the defense of statute of limitations by defendants. This argument is not supported by either plaintiff's employment contract or the relevant case law. Plaintiff's contract does create an arbitration remedy but it does not make this the exclusive remedy between the parties, nor did the parties specifically and unambiguously contract away their statutory rights, as to effect a direct waiver of a statute of limitations defense.*fn2 In addition, it is well settled that the choice to invoke a contractually created right to arbitrate a dispute does not toll the statute of limitations for either Title VII or the ADEA. See Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (equitable tolling does not apply where party asserts an independent claim based on a contract right); Martinez v. St. John's Hospital, No. 89 Civ. 3348, 1989 WL 160223, at *1 (S.D.N.Y. Dec. 29, 1989) (Griesa, J.) ("the existence of an arbitration proceeding is not deemed to be a sufficient ground for tolling") (citations omitted).

Estoppel requires that plaintiff know of his cause of action and fails to file a timely claim due to his reasonable reliance on defendants' misrepresentations with regard to the statute of limitations. See Strachova v. Metropolitan Museum of Art, No. 98 Civ. 8505, 1999 WL 566305, at *6 (S.D.N.Y. Aug. 3, 1999) (Patterson, J.). As plaintiff alleges he was not aware of his cause of action, a claim of estoppel is similarly unsuccessful. See Coleman v. Board of Education, No. 96 Civ. 4293, 2002 WL 63555, at *6 (S.D.N.Y. Jan. 16, 2002) (Daniels, J.). Accepting for the moment plaintiff was aware of his cause of action, it is neither pled nor suggested ...

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