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McGUGAN v. AUTOMATIC DATA PROCESSING

August 22, 2005.

STEPHANIE J. McGUGAN, Plaintiff,
v.
AUTOMATIC DATA PROCESSING, INC., Defendant.



The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

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 issue

  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. 2002).

  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, McGugan states:
 
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 employment.
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 Commission.
  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 notarized.
If you have any questions please do not hesitate to call me at the number listed above.
  Sincerely, 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 ...


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