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Zheng v. Wong

August 24, 2009


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


Plaintiffs, Wei Hong Zheng ("Zheng"), as administratrix of the estate of Hau Wai Yip ("Yip"), and Kan Mei Chan ("Chan"), sue under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290-301.*fn1 They allege that Yip and Chan -- who worked at a restaurant in the Claridge Hotel Casino Hotel in Atlantic City, New Jersey -- were discriminated against, and ultimately terminated, based on their race, sex and/or national origin; the complaint alleges that defendants Ben T. Wong ("Ben Wong"), The Board Wok, Inc. d.b.a. Wok & Roll ("Board Wok"), York Town Teahouse, Inc. ("York Town"), and Teahouse of New Jersey, Inc. ("Teahouse"), all employed Yip and Chan, and that defendant Foong Ching Wong a.k.a. Jenny Wong ("Jenny Wong") was their manager. In addition, Zheng alleges that defendant Ben Wong wrongfully withheld Yip's share of the profits from a mutual investment.

Now before the Court are two motions to dismiss pursuant to Federal Rule of Civil Procedure 12, one filed by Jenny Wong and the other by the remaining defendants. Taken collectively, the motions advance the following grounds for dismissal:

1. that service of process on the individual defendants (i.e, Ben Wong and Jenny Wong) was defective;

2. that plaintiffs' Title VII claims are barred by the statute of limitations;

3. that plaintiffs failed to administratively exhaust their Title VII claims against Ben Wong, York Town and Teahouse;

4. that Zheng's claims regarding his investment with Ben Wong do not fall within the Court's supplemental jurisdiction.

5. that the individual defendants cannot be held individually liable under Title VII;

6. that Board Wok, a New Jersey corporation, cannot be liable under the NYSHRL, and that, as a result, Jenny Wong cannot be held liable as an aider and abettor under the NYSHRL; and

7. that Chan has failed to allege facts sufficient to make out a claim of sex discrimination.

At oral argument on July 9, 2009, the individual defendants agreed to withdraw their objections to service of process. In addition, the Court addressed defendants' statute of limitations argument and plaintiffs' response, raised in their papers opposing the motions to dismiss, that the limitations period should be equitably tolled. Concluding that the issue could not be resolved based solely on the pleadings, the Court converted the motions to dismiss on timeliness grounds into motions for summary judgment and gave the parties' additional time to submit evidence on that issue. See M&O of July 10, 2009, at 3-4. Plaintiffs responded by averring the factual bases for the claims of equitable tolling; defendants did not respond.

Thus, as matters now stand, defendants' motions fall into three categories: (1) motions for summary judgment based on the statute of limitations, (2) motions to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and (3) motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6). For the following reasons, the motions for summary judgment are denied; the Rule 12(b)(1) and 12(b)(6) motions are granted in part, and denied in part.


Plaintiffs concede that their administrative complaints with the New York State Division of Human Rights ("NYSDHR") were not filed within 300 days of the alleged discrimination, as required by 42 U.S.C. § 2000e-5(e)(1); Chan filed her complaint 364 days after her termination, while Yip filed his 332 days after his termination. They argue, however, that their claims are saved under the doctrine of equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) ("We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.").

Chan avers that the defendants failed to post the required notice of employee rights,*fn2 and that she did not learn of those rights until she spoke to an attorney. See Chan Aff. ¶ 11 ("Discrimination because of race or sex is not illegal in China and I did not know it to be illegal until I spoke to my attorney."); ¶ 13 ("My employer who is required to post the notice of Equal Employment Opportunity rights never did so."). In light of defendants' decision not to respond to plaintiffs' equitable tolling argument, the Court takes these facts as undisputed.

Although the Second Circuit has not directly spoken on the issue, five other circuit courts have held that an employer's failure to comply with the posting requirements set forth in Title VII and other federal anti-discrimination laws is sufficient to warrant equitable tolling. See Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48 (1st Cir. 2005) ("[W]here appellants have asserted that no informational notices were posted and that they had no knowledge of their legal rights until informed by their attorney, they have met the threshold requirements for avoiding dismissal of their Title VII suit."); EEOC v. Kentucky State Police Dep't, 80 F.3d 1086, 1096 (6th Cir. 1996) ("If an employer fails to . . . post[ ] the required ADEA notices, the charge-filing period will not begin to run until the employee either retains an attorney or acquires actual knowledge of his rights under the ADEA." (citation and internal quotation marks omitted)); Unterreiner v. Volkswagen of Am., 8 F.3d 1206, 1209 (7th Cir. 1993) ("Under some circumstances, a company's failure to post a notice of employees' rights under the ADEA may toll the statute of limitations."); Callowhill v. Allen-Sherman-Hoff Co., 832 F.2d 269, 272 (3rd Cir. 1987) ("[A]n employer's neglect to post the notice . . . will toll the running of the period for filing the administrative charges, at least until the aggrieved person seeks out an attorney or acquires actual knowledge of his rights under the [ADEA]." (citation and internal quotation marks omitted)); English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987) ("If an employer violates the posting requirement, the charging period is ...

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