The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge
Pro se plaintiff Johnny Johnson ("Johnson") filed a complaint on June 1, 2000,*fn1 later amended on December 29, 2000, against The Trustees of Columbia University in the City of New York ("Columbia") alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Johnson claims that Columbia did not interview or hire him for the position of Training Manager because of his race and age.
On May 8, 2002, Columbia filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and failure to state a cause of action. For the reasons which follow, I respectfully recommend that defendant's motion to dismiss be DENIED.
Johnson is an African American male born in 1938. See Plaintiff's Amended Complaint ("Amd. Compl.") at 3. According to Johnson, on or around December 28, 1998,*fn2 he responded to an advertisement in the New York Times and applied for the position of "Training Manager" at Columbia. See Plaintiff's Notice of Motion for an Order Denying Defendant's Motion to Dismiss ("Pl. Notice") at Exh. A; Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Pl. Opp.") at 1. In his letter to Columbia, Johnson stated that he worked as a training specialist for the Department of the Navy for more than fifteen years, and that he was qualified to fill the position of Training Manager. Pl. Notice at Exh. A. Johnson claims his application included a resume detailing his work experience and degrees earned. Id. at Exh. B; Pl. Opp. at 2. Primarily, he alleges, "I applied for an open position at Columbia University and was rejected even though I have many years experience teaching in a University setting. I feel that I was rejected because of my race and age in violation of Title VII laws." Amd. Compl. at 3.
Johnson's amended complaint asserts that in November 1998, he filed a charge with the New York State Division of Human Rights or the New York City Commission on Human Rights, id. at 4, but that date is inconsistent with the December 28, 1998 date on which he alleges he wrote his letter of application to Columbia. Although Johnson claims he is not sure what date he filed a charge with the Equal Employment Opportunity Commission ("EEOC"), id., he attached a copy of a Charge of Discrimination filed with the EEOC, dated February 21, 2000. Johnson also attached a Right to Sue letter from the EEOC dated February 29, 2000, which informed him of the 90-day period within which he could commence litigation. Id.; Pl. Notice at Exh. D.
Johnson filed the instant action with the Pro Se Office on June 1, 2000, alleging discrimination based on his race and age. On October 23, 2000, the Honorable Michael B. Mukasey ordered plaintiff to amend his complaint because the original complaint merely alleged discrimination and "fail[ed] to identify discriminatory conduct or circumstances giving rise to an inference of discrimination." On December 29, 2000, Johnson filed an amended complaint with the Court, alleging race and age discrimination under Title VII and the ADEA. Id. at 4. This case was reassigned to the Honorable Whitman Knapp on February 21, 2001, and was referred to the undersigned on April 13, 2001. On May 8, 2002, Columbia filed the instant motion.
Columbia argues that plaintiff's claims must be dismissed as untimely. See Defendant's Memorandum of Law in Support of Columbia University's Motion to Dismiss ("Def. Mem.") at 4. Columbia claims that Johnson has not demonstrated that the Court has jurisdiction because he did not prove he properly exhausted the administrative filing prerequisites. Id. Specifically, Columbia maintains that Johnson offers no evidence that he filed his EEOC charge within 300 days of the alleged discriminatory act, or within 90 days of receipt of the Right to Sue letter. Id. Columbia also contends that Johnson's complaint neither is clear nor suffices to put Columbia on notice of the claim, as required by Rule 8(a). Reply Memorandum of Law in Further Support of Columbia's Motion to Dismiss ("Def. Reply") at 3, 5.
In support of the motion, Columbia submitted the affidavit of Donna Rey ("Rey"), Assistant Vice President of Human Resources in the Organizational Services of Columbia. Rey claims that her office could not locate any advertisements for "Training Manager" in their records, and that no application from Johnson was found on file. See Affidavit of Rey ("Rey Aff.") at ¶ 4. The only similar postings were for the positions of "Manager (training programs)" and "Manager (training/professional development)," but Columbia cannot determine whether either position was advertised in the New York Times during the relevant time period. Id. at ¶ 5, Exhs. A and B. Those job postings were dated July 19, 1999, and August 16, 1999, respectively. Id. at Exhs. A and B.
Columbia also submitted an affidavit from Galene Kessin ("Kessin"), Assistant Vice President of Human Resources for the Health Sciences Division of Columbia, who stated that her office had no record of any advertisement placed in the New York Times in or around August 1999, for the position of Training Manager. See Affidavit of Kessin ("Kessin Aff.") at ¶¶ 2-3. She did not, however, inquire about advertisements prior to that time period. That office has no information regarding any application by Johnson in or around August 1999, and their policy is to destroy unsolicited resumes after six months. Id. at ¶¶ 4-5.
In opposition to the motion, Johnson submitted a copy of an advertisement for a Training Manager position at Columbia University. Pl. Notice at Exh. A. The copy does not indicate any date on which it was published, nor in what publication it appeared. He attached a letter of application dated December 28, 1998, and his list of qualifications. Johnson also attached an EEOC form dated February 22, 2000, in which he listed January 10, 1999, as the date he applied. Id. at Exh. ...