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WONG v. HEALTH FIRST INC.

July 19, 2005.

JAMES WONG, Plaintiff,
v.
HEALTH FIRST INC., Defendant.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Deborah A. Batts, United States District Judge:

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. No. 4.)

  For the reasons set forth below, Health First's motion to dismiss (Dkt. No. 4) should be GRANTED.

  FACTS

  Wong's EEOC Proceedings

  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, in part:
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 him that:
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).)

  ANALYSIS

  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 Cir. 1993).

  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 ...


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