The opinion of the court was delivered by: Denise Cote, District Judge
MEMORANDUM OPINION AND ORDER
Defendant moves to dismiss this action for failure to state a claim. For reasons stated below, this motion is treated as a motion for summary judgment and denied.
Plaintiff pro se Thurman Wall claims that defendant Town Sports International ("Town Sports"), his former employer, discriminated against him on the basis of his race and color in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Following the termination of his employment, Hall filed a charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC dismissed the charge, sent a letter dated August 27, 2004 explaining its decision, and issued a Dismissal and Notice of Suit Rights dated August 30, 2004. The Notice instructed Wall that any lawsuit based on the charge "must be filed within 90 days of your receipt of this Notice."
Wall filed a complaint against Town Sports with this Court's Pro Se Office on December 23, 2004. The Court (Mukasey, C.J.) sua sponte dismissed the complaint and directed Wall to submit an amended complaint providing more detail regarding the factual basis for his allegation of discrimination. The Court's order, dated March 21, 2005, required Wall to submit the amended complaint within 60 days. The Amended Complaint was filed May 18, 2005. In both complaints, Wall gives his address as P.O. Box 25285 in Newark, New Jersey.
Town Sports moved under Fed. R. Civ. P. 12(b)(6) to dismiss the Amended Complaint for failure to commence the action within 90 days of receipt of the EEOC's right-to-sue letter. In opposition, Wall submitted an affidavit declaring that the right-to-sue letter had seen sent to the wrong address. He attached to his affidavit a photocopy of an envelope sent from the EEOC and a copy of the August 27 letter. Both documents bear a stamp that reads "Received Sep 7 2004 EEOC-NYDO-CRTIU" and the envelope is also marked "Return to Sender[,] Not Deliverable as Addressed --Unable To Forward." Both documents are addressed to Wall at Box 25825 in Newark, New Jersey. The Notice, a copy of which was appended to the Amended Complaint (but not to Wall's Opposition to this Motion), is also addressed to Box 25825. These documents reflect a transposition error affecting the third and fourth digits of Wall's box number.
Fed. R. Civ. P. 12(b) provides that if, on a motion to dismiss for failure to state a claim, "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Indeed, it is error for a district court to "consider affidavits and exhibits submitted by [a party] or rel[y] on factual allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to dismiss." Friedl v. New York, 210 F.3d 79, 83-84 (2d Cir. 2000). Wall has submitted a sworn statement and documentary evidence in support of his opposition to Town Sports's motion. Because Wall's supplemental materials are considered in this opinion, the motion to dismiss must be converted to a motion for summary judgment.*fn1
"Summary judgment is appropriate if the evidence offered, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sira v Morton, 380 F.3d 57, 68 (2d Cir. 2004). For the purposes of this motion, there is a single material fact:
the date on which Hall received the Notice of Suit Rights from the EEOC. If there is any genuine issue as to this fact, therefore, summary judgment is not appropriate.
Town Sports invokes the presumptions that a notice provided by a Government agency is mailed on the date shown on the notice, and that mailed materials are received three days after mailing, to suggest that Wall received his Notice of Suit Rights on September 2, 2004. See Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525-26 (2d Cir. 1996). But Wall submitted a sworn statement that he did not receive his right-to-sue letter until September 30. This alone is sufficient to rebut the presumption regarding date of receipt, see Sherlock, 84 F.3d at 526, and Wall further strengthens his case with documentary evidence that at least some mail sent to him by the EECO was returned as undeliverable.*fn2 It is entirely possible that it might take a government agency two weeks from the receipt of returned mail to correct its mistake and resend the document. If this is true, then Wall might not have received initial notice of his right to sue (assuming 3 days mailing time) until September 4, and a suit filed on December 23 would have been timely. Whether this happened, however, is a question of fact and not of law.
In their submissions on defendant Town Sport's motion to dismiss, the parties have submitted and discussed matter outside the pleadings. Because this material is not excluded, the motion is addressed as a motion for summary judgment. And because this material creates a genuine issue of fact, summary ...