The opinion of the court was delivered by: Siragusa, J.
This case is before the Court on defendant's motion to dismiss plaintiff's complaint. Defendant contends that plaintiff's cause of action for age discrimination in employment is barred by the applicable statute of limitations, and in response, plaintiff argues that the time period for commencing an action should be tolled or delayed as a matter of fairness. For the reasons stated below, defendant's motion is denied.
On February 1, 2007, plaintiff filed an amended complaint setting forth one cause of action for unlawful termination based upon her age. In that regard, the Court accepts as true all the well-pleaded allegations in the amended complaint and draws inferences from those allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994).
Plaintiff was born on November 3, 1949. She was employed by defendant from February 23, 1998, as a special education teacher for pre-school children. As such, she performed her duties satisfactorily until June 2003, when she was informed that her position was being eliminated because of budget cuts.
Subsequently, in the fall of 2003, defendant hired plaintiff as a substitute for another special education teacher who was on leave for health reasons. Plaintiff's part-time employment ended on November 3, 2003 when the regular teacher returned.
Although plaintiff, on several occasions, indicated to defendant that she would like to be considered for any new openings, she was informed, that "'[t]here would be no further hiring for the foreseeable future'." (Am. Compl. ¶ 11.) Thereafter, on January 2, 2004, "the defendant hired two younger workers as pre-school education workers . . . in the exact same positions in which the Plaintiff worked prior to being terminated." (Am. Compl. ¶ 12.)
On October 21, 2004, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") regarding her termination with the defendant in June of 2003. Even though her termination claim had accrued more than three hundred days prior to her EEOC filing, plaintiff contends that she should receive the benefit of an equitable tolling of the limitation period to January 2, 2004, since it was only on that date that she has reasonable notice that she had suffered discrimination.
As the Second Circuit has made clear, when adjudicating a motion to dismiss under Federal Rule of Civil Procedure 12, the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 810, 127 L.Ed. 2d 114 (1994); McEvoy v. Spencer, 124 F.3d 92, 95 (2d Cir. 1997); Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). The court may not dismiss a complaint unless "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Hoover v. Ronwin, 466 U.S. 558, 587, 104 S.Ct. 1989, 2005, 80 L.Ed. 2d 590 (1984) (Stevens, J., dissenting); see also Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The cause of action here is brought under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621, et seq. ADEA provides in pertinent part as follows:
(a) Employer practices. It shall be unlawful for an employer--(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age..
29 U.S.C. § 623(a)(1) (1998). The only issue involved in this motion is whether the complaint was timely filed. The governing ...