The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District
Pro se plaintiff James Wong brought this action alleging
violations of Title VII, against his former employer, Health
First Inc. (Dkt. No. 1: Compl.) Presently before the Court is
Health First's motion to dismiss the complaint under Rule 12(b)
of the Federal Rules of Civil Procedure, as time barred. (Dkt.
For the reasons set forth below, Health First's motion to
dismiss (Dkt. No. 4) should be GRANTED.
On or about May 7, 2004, James Wong filed a complaint with the
Equal Employment Opportunity Commission ("EEOC") alleging that
Health First discriminated against him because of his national
origin and retaliated against him in violation of Title VII.
(Dkt. No. 1: Compl. Att. 1: EEOC Charge.) Wong, who is Asian, alleged that Health First
"[d]eliberately created an Asian Team" of sales representatives
and demanded the team "produce more numbers and work longer hours
while the other team [did] not have to." (Dkt. No. 1: Compl. Att.
1: Wong EEOC Charge ¶¶ A-B.)
On August 5, 2004, the EEOC issued a Dismissal and Notice of
Rights Letter ("Right to Sue Letter"). (Dkt. No. 6: Hutner Aff.
Ex. B: EEOC Right to Sue Letter.) The Right to Sue Letter stated,
This will be the only notice of dismissal and of your
right to sue that we will send you. You may file a
lawsuit against the respondent(s) under federal law
based on this charge in federal or state court. Your
lawsuit must be filed WITHIN 90 DAYS of your
receipt of this Notice; or your right to sue based
on this charge will be lost.
(Id., emphasis in original.)
Wong requested the EEOC reconsider the dismissal, and on
September 21, 2004, the EEOC declined Wong's request, notifying
We have received your request for a "Substantial
Weight Review" of your charge file. . . . [W]e do not
review our own determinations; these are carefully
reviewed before issuance and the agency has no legal
obligation to re-open cases. If you disagree with
our determination, you have the right to file suit in
Federal court within 90 days of your receipt of it.
If a party presents us with new information which
would cause us to reverse the determination we have
made, we will promptly consider such action. You have
not provided any such information or indicated that
our conclusion was contrary to fact or law. We regret
that we cannot assist you in this matter and remind
you that, if you do not file suit within the
statutory period, your right to sue will be lost.
(Dkt. No. 1: Compl. Att. 2: 9/21/04 EEOC Letter, emphasis added.) Wong's Present Federal Action
Ninety days later, on December 20, 2004, Wong filed suit in
federal court against Health First based on the same allegation
he had filed with the EEOC, i.e., that Health First violated
Title VII by discriminating against him on the basis of his race
and retaliated against him. (Dkt. No. 1: Compl. p. 1 & ¶¶ 4, 7.)
In the complaint, Wong indicated that he received the EEOC
right-to-sue letter on September 21, 2004. (Compl. ¶ 12.)
Although the complaint form directed him to "[a]ttach a copy of
the Right to Sue Letter from the [EEOC] to this complaint"
(Compl. ¶ 12 "Note"), he attached the EEOC's September 21, 2004
denial of his request for reconsideration (Compl. Att. 2: 9/21/04
EEOC Letter).*fn1 In opposition to Health First's motion to
dismiss, Wong asserted that he never received the EEOC Right to
Sue Letter. (Dkt No. 10: 7/5/05 Wong Aff. ¶ 3(VII).)
I. THE STANDARD GOVERNING A MOTION TO DISMISS*fn2 A district court should deny a Rule 12(b)(6) motion to dismiss
"`unless it appears to a certainty that a plaintiff can prove no
set of facts entitling him to relief.'" IUE AFL-CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quoting
Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities
Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied,
513 U.S. 822, 115 S. Ct. 86 (1994).*fn3 A court must accept as
true the facts alleged in the complaint and draw all reasonable
inferences in favor of the nonmoving party here, the plaintiff.
Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).*fn4
A motion to dismiss challenges only the face of the pleading.
Thus, in deciding a motion to dismiss, "the Court must limit its
analysis to the four corners of the complaint." Vassilatos v.
Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5
(S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin,
922 F.2d 152, 154-55 (2d Cir. 1991)).*fn5 The Court, however, may
consider documents attached to the complaint as an exhibit or incorporated
in the complaint by reference. E.g., Chambers v. Timer
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Because this
standard has been misinterpreted on occasion, we reiterate here
that a plaintiff's reliance on the terms and effect of a
document in drafting the complaint is a necessary prerequisite to
the court's consideration of the document on a dismissal motion;
mere notice or possession is not enough."); Yak v. Bank
Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130
(2d Cir. 2001) (citing Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied,
503 U.S. 960, 1125 S. Ct. 1561 (1992)); Rothman v. Gregor,
220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we
have deemed a complaint to include any written instrument
attached to it as an exhibit or any statements or documents
incorporated in it by reference. . . ."); see also, e.g.,
Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994);
Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d
The Court's role in deciding a motion to dismiss "`is merely to
assess the legal feasibility of the complaint, not to assay the
weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994
WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord,
e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31
(S.D.N.Y. 1997) (Kaplan, D.J. & Peck, M.J.). "`[T]he issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.'"
Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer
v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)). A
Rule 12(b)(6) motion will be granted "`only if it is clear that
no relief could be granted under ...