The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Plaintiff Stephanie McGugan, appearing pro se, brings this
employment discrimination action against defendant Automatic Data
Processing ("ADP"). Defendant now moves to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the
complaint is time-barred.
Defendant's motion raises the issue of whether McGugan filed a
charge of discrimination with the EEOC within 300 days of the
allegedly unlawful act as required by law. Both sides have
submitted correspondence between McGugan and the EEOC on this
Defendant's motion to dismiss the complaint is granted. FACTS
The facts below are drawn from McGugan's complaint and the
submitted correspondence. The court is entitled to rely on this
correspondence without converting the motion into a motion for
summary judgment because plaintiff had knowledge of the
correspondence and relied upon it in bringing this suit. See
Chambers v. Time-Warner, Inc., 282 F.3d 147, 152 (2d Cir.
McGugan is an African-American woman who was employed by ADP
until her employment was terminated on November 2, 2002. She
claims that from 1998 until November 2002, ADP failed to promote
her because of her race and retaliated against her complaints by
terminating her employment. McGugan's complaint is prepared on a
form provided by the Pro Se Clerk's office of this court.
Paragraphs 9 and 10 of the form deal with the issue of prior
resort to an administrative agency.
9. It is my best recollection that I filed a charge
with the New York State Division of Human Rights or
the New York City Commission on Human Rights
regarding defendant's alleged discriminatory conduct
on: [handwritten] 11/03/02 at NJ EEOC (my case was
dispatched to NYC EEOC).
10. It is my best recollection that I filed a charge
with the Equal Employment Opportunity Commission
regarding defendant's alleged discriminatory conduct
on: [handwritten] 11/03/02. As stated in paragraphs 9 and 10 of her complaint, McGugan
claims to have filed a charge of discrimination with the Newark
Area Office of the EEOC on November 3, 2002. McGugan attempts to
support this claim in two affirmations which she submitted in
response to the defense motion. In the first of the affirmations,
3. Attached as Exhibit A is a true and exact copy of
a letter that will confirm that I did in fact file a
complaint within 300 days of my last day of
4. Also included in Exhibit A is a true and exact
copy of [a] Charge of Discrimination that I,
Stephanie J. McGugan, the Plaintiff, filed with the
Equal Employment Opportunity Commission ("EEOC")
which bears a date of November 8, 2002.
5. Also included in Exhibit A is a true and exact
copy of a letter received from the EEOC indicating
that Stephanie J. McGugan, the plaintiff, did in fact
file a Charge of Discrimination against ADP with the
New Jersey Office of the Equal Employment Opportunity
Exhibit A is a letter to McGugan from the Newark Area Office of
the EEOC dated November 8, 2002. The letter began: "This letter
is in reply to your inquiry regarding the filing of a potential
charge of discrimination with this office". The letter proceeded
to describe how the EEOC enforces certain federal laws
prohibiting employment discrimination, and then stated
The EEOC is authorized to accept, investigate and attempt to conciliate charges alleging such
discrimination as long as they are filed with this
agency in a timely manner, usually within 180-300
days of the alleged harm.
Finally, the letter advised that the "information you completed"
would be transferred to the New York District Office of the EEOC.
Contrary to McGugan's assertions, the November 8 letter, which
is the entire Exhibit A, did not include any charge of
discrimination, nor did it indicate that McGugan had filed such a
charge. Although the letter referred to an "inquiry regarding the
filing of a potential charge of discrimination" and also to "the
information you completed," neither McGugan's inquiry nor the
information she completed constituted the filing of a charge of
discrimination. Indeed, McGugan has not submitted to the court
any copy of a charge of discrimination filed in November 2002.
There is other correspondence that refutes McGugan's claim. An
employee in the New York District Office of the EEOC wrote
McGugan on November 29, 2002, and stated
The EEOC New York Office is in receipt of your
questionnaire. I have documents that need to be
submitted to us before we can formally docket any
charge of discrimination.
The questionnaire referred to had apparently been filled out by
McGugan when she visited the Newark EEOC office in early November 2002. It
further appears that it is this questionnaire which was described
in the November 8 letter as "the information you completed."
McGugan argues that the November 29 letter confirmed that her
charge of discrimination was timely filed at the New Jersey
office, but it did not. Although the language of the letter could
be more precise, it is sufficiently advised McGugan that certain
documents remained to be completed and submitted to the EEOC
before the EEOC could docket a charge of discrimination.
The next item of correspondence in the record is a letter to
McGugan from the New York District Office of the EEOC dated May
22, 2003, which read:
Dear Mrs. McGugan:
The EEOC is in receipt of your general questionnaire.
Please be informed that a general questionnaire does
not constitute in filling a charge. I have enclosed
the appropriate documents for you to submit along
with your allegations. Please attach your allegations
to the Charge of Discrimination Form 5. Also,
please be aware that your allegations that will be
set forth in the Charge of Discrimination must be
If you have any questions please do not hesitate to
call me at the number listed above.
Arlean Nieto It is not clear if the May 22 letter referred to the same
questionnaire as the November 29 letter. In any event, the May 22
letter clearly informed plaintiff that no charge of
discrimination had yet been filed and that, before such filing
could occur, plaintiff must fill out and submit additional
documents to the EEOC.
McGugan did file a charge of discrimination with the New York
District Office of the EEOC on September 11, 2003. That charge of
discrimination bore the number 160-2003-02376. The court infers
that this number reflects a filing in 2003, not in 2002. Attached
to that charge of discrimination is a four-page addendum in which
plaintiff provided detailed ...