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United States District Court, Southern District of New York

April 25, 2003


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.


A. Factual Allegations

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.

B. Procedural History

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.

C. The Motion to Dismiss

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. D. He stated that he received no response to his application and that the "incident"*fn3 occurred in September 1999. Id.


A. Timeliness of Administrative Action

Filing a charge with the EEOC is a statutory prerequisite to a Title VII or ADEA claim. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626 (d)(2). Plaintiffs raising claims under Title VII are required to "exhaust available administrative remedies in a timely fashion." Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996). In states such as New York, which has a local agency with the authority to address charges of employment discrimination, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days. 42 U.S.C. § 2000e-5 (e)(1); see also Hourahan v. Ecuadorian Line, Inc., 1997 WL 2518, at *3 (S.D.N.Y. Jan. 3, 1997); Johnson v. New York City Bd. of Educ., 2000 WL 1739308, at *5 (E.D.N.Y. Oct. 10, 2000) (citing 42 U.S.C. § 2000e-5 (e)). "The running of this limitations period is tolled until the last discriminatory act in furtherance of a continuous practice and policy of discrimination." Id. (citing Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985), cert. denied, 474 U.S. 851 (1985)). In addition, the court may review a claim asserted by a plaintiff even if it was not specifically mentioned in the EEOC charge, so long as the claim "fall[s] within the scope of the EEOC investigation which can be reasonably expected to grow out of a charge of discrimination." Butts v. City of New York Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993); see also Brown v. Coach Stores, 163 F.3d 706, 712 (2d Cir. 1998) (plaintiff was permitted to pursue a disparate impact claim even though her original EEOC charge included only a "failure to promote" claim).

In the instant case, Columbia argues that Johnson's claims are time-barred because he failed to show that he commenced the action in this Court within 90 days of receiving the Right to Sue letter. The Right to Sue letter is dated February 29, 2000, and Johnson's complaint was received by the Pro Se Office on June 1, 2000. Therefore, the Court finds that Johnson brought suit within the requisite 90 days of receiving the letter.

Columbia also argues that Johnson fails to show his charge of discrimination was filed with the EEOC within the required 300 days of the last act of discrimination. In his charge of discrimination, filed with the EEOC on February 24, 2000, Johnson states that the alleged discrimination took place in September 1999, which is within the 300-day period. The EEOC form he filled out prior to filing the charge lists January 10, 1999, as the date of his application and September 1999, as the date of the incident of discrimination. Pl. Notice at Exh. D. His amended complaint, however, lists September 1998, as the date of the alleged discrimination, which is well over 300 days prior to his EEOC filing. Johnson has filed similar suits against other universities for discrimination related to applications he sent by mail.*fn4 The conflicting dates given in this case likely result from the filing of multiple charges and complaints during a relatively short time frame. He specifically alleges that the discriminatory act by this defendant occurred in September 1999. While the conflicts may later raise credibility issues, the Court finds that the allegations by Johnson support the conclusion that his suit is not time-barred.

B. Standard for Dismissal in Employment Discrimination Cases

In deciding a motion to dismiss, the court must accept as true all factual allegations alleged in the complaint, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993), and draw all reasonable inferences in favor of the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). The court's responsibility at this stage is not to test the weight of the evidence, but rather to look at the "feasibility of the complaint." Cooper v. Parksy, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)).

Under the Supreme Court decision of Swierkiewicz v. Sorema, 534 U.S. 506 (2002), a plaintiff is no longer required to plead a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), in his complaint. The Court held that the requirement for pleading a prima facie case is an evidentiary standard not applicable to the pleadings. Id., 534 U.S. at 510. A plaintiff alleging employment discrimination need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Civ. P. 8(a); see also Swierkiewicz, 534 U.S. at 512. A complaint need only "`give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)); see also Aguilar v. New York Convention Ctr. Operating Co., 2002 WL 844397, at *2 (S.D.N.Y. May 2, 2002). "[A] court may dismiss a complaint only if it is clear that no relief could be proved consistent with the allegations." Id. at 514 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

Furthermore, where a plaintiff is pro se, the court should apply "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Moreover, in deciding a motion to dismiss involving a pro se plaintiff, the court can look beyond the "four corners of the complaint" to all the pleadings before the court, including the plaintiff's opposition papers. Pagan v. New York State Div. of Parole, 2002 WL 398682, at *3 (S.D.N.Y. Mar. 13, 2002); Amaker v. Haponik, 2000 WL 343772, at *1 (S.D.N.Y. Mar. 31, 2000); see also Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999).

C. Title VII and the ADEA

Title VII of the Civil Rights Act of 1964 declares it

an unlawful employment practice for an employer . . . to fail or refuse to hire . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1) (West 1994).

The ADEA makes it "unlawful for an employer to fail or refuse to hire . . . or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C.A. § 623(a)(1) (West 2002). An individual is protected under the ADEA if they have reached the age of forty. 29 U.S.C.A. § 631(a). The ADEA is subject to the same interpretation as Title VII because the ADEA was derived verbatim from Title VII. Trans World Airlines Inc. v. Thurston, 469 U.S. 111, 121 (1985); Brennan v. Metropolitan Opera Ass'n Inc., 192 F.3d 316 (2d Cir. 1999).

As an African American born in 1938, Johnson is a member of protected classes under Title VII and the ADEA. A review of the pleadings indicates that Johnson has satisfied the Swierkiewicz standard, which requires plaintiff to provide a short and plain statement giving fair notice to defendant of his claim. Swierkiewicz, 534 U.S. at 512. Johnson represents that he applied for an open position at Columbia and was not selected for an interview or hired, despite his education and experience. Amd. Compl. at 3. He states that he responded to an advertisement for the position of Training Manager at Columbia. See EEOC Charge of Discrimination. Johnson further contends that the selection committee at Columbia (1) knew of his race, age and qualifications, (2) rejected his application and (3) continued to seek others with his qualifications. Pl. Opp. at 2.

According to Columbia, Johnson's subjective belief that defendant had discriminatory reasons for not interviewing him is not adequate to state a cause of action. Def. Reply at 3. Columbia contends that it cannot determine, based on Johnson's allegations, whether it advertised the position of Training Manager. See Rey Aff.; Kessin Aff. According to Columbia, the only similar positions were "Manager (training programs)" and "Manager (training/professional development)," posted in July 1999 and August 1999, respectively. Rey Aff. Furthermore, it has not been able to locate any record of Johnson's application. Id.; Kessin Aff. Columbia argues that Johnson's allegations are not sufficiently clear, and do not put it on notice of the basis of the claim, and, therefore, Johnson does not satisfy the Swierkiewicz standard or Rule 8(a) of the Federal Rules of Civil Procedure.

Although Johnson does not allege that he inquired whether Columbia received his application or that he received a formal rejection, the Court must accept as true all of Johnson's allegations at this stage. Leatherman, 507 U.S. at 164. It is not clear that he will be unable to prove a set of facts entitling him to relief. Securities Investor Protection Corp., 222 F.3d at 68. Moreover, Columbia may clarify Johnson's factual inconsistencies through discovery, and, should the claim lack merit, file a Rule 56 motion for summary judgment.

The Court finds that, on balance, Johnson's allegations furnish sufficient notice to Columbia of his discrimination claims. Accordingly, I respectfully recommend that defendant's motion to dismiss be DENIED.


Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Whitman Knapp, 40 Centre Street, Room 1201, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).

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