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S Haron L Ee V Incent v. W Al-M Art S Tore 3420

September 4, 2012


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:



Defendant brought a motion to dismiss plaintiff's federal claims on the ground that Plaintiff Sharon Lee Vincent ("Vincent" plaintiff failed to submit her administrative or "plaintiff") brought this action against charge within the requisite 300-day statute defendant Wal-Mart Store 3420 ("Wal- of limitations under Title VII. In particular, Mart" or "defendant") alleging that defendant has submitted the Administration defendant discriminated against her on the Discrimination charge that was dually filed basis of race, gender, national origin, color, with the New York State Division of Human and religion in the creation of unequal terms Rights ("DHR") and the Equal Employment of employment between August 2007 and Opportunity Commission ("EEOC") on December 2007, and her termination in January 22, 2009. Because plaintiff's Title February 2008. Plaintiff also alleges that VII claims relate to alleged discriminatory she was retaliated against for objecting to treatment between August and December discriminatory practices. *fn1 2007 and an alleged unlawful discharge on February 3 or 4, 2008, defendant contends that the administrative charge was filed over 350 days after the last possible In response to the motion, plaintiff alleged for the first time that the January 2009 complaint was not the first A. The Complaint administrative complaint she filed; rather, she asserted that: (1) she had filed the Plaintiff's complaint alleges unequal administrative charge with DHR in treatment during the course of her September 2008; (2) she followed up on that employment at Wal-Mart. She alleges that complaint in October 2008, by telephone the discriminatory acts occurred between with DHR, and told DHR that she would be August 2007 and December 2007. (Compl. out of the country, and learned that her at 3.*fn2 ) Plaintiff's complaint also alleges that complaint was not processed, and was told she was terminated on February 4, 2008. (Id. she had one year to file her complaint; (3) at 5.) According to plaintiff's complaint, she she also was told by DHR to call DHR when filed her complaint with the DHR in January she returned to the United States; and (4) 2008. Presumably, plaintiff meant January when she called DHR in January 2009 and 2009, given that plaintiff's DHR Complaint was told that she would have to file a new Form is dated January 22, 2009, and complaint, she did. plaintiff acknowledges in her opposition to defendant's motion to dismiss that she made The Court determined that an a complaint with DHR in January 2009. evidentiary hearing was necessary on the (Defs.' Ex. A, DHR Complaint Form, July issue of the timeliness of plaintiff's 11, 2011, ECF No. 15-4; Pl.'s Opp. at 9, administrative charge, as well as any basis Aug. 11, 2011, ECF No. 16.) for equitable tolling. For the reasons discussed herein, the Court grants B. The Motion to Dismiss defendant's motion to dismiss in its entirety based upon plaintiff's failure to timely Defendant moved to dismiss plaintiff's exhaust. Specifically, having heard complaint on the ground that her DHR plaintiff's testimony and evaluated her complaint was filed after the requisite 300-credibility in light of the evidence in the day statute of limitations for filing Title VII record, the Court finds that (1) plaintiff did claims. (Def.'s Mem. of Law at 6, July 11, not file any administrative charge with DHR 2011, ECF No. 15-2.) In plaintiff's until January 22, 2009; (2) she was not told opposition to defendant's motion to dismiss, by DHR that she had one year to file her plaintiff contended that she filed, by hand complaint, or misled by DHR or anyone else delivery, a complaint with DHR in regarding the timing requirements for her September 2008. (Pl.'s Opp. at 8.) Plaintiff exhaustion of administrative remedies; and further asserted that she contacted DHR in (3) there is no basis for equitable tolling in October 2008 to inform DHR that she would this case. Plaintiff's testimony regarding the be out of the country, and plaintiff was told purported September 2008 filing of the DHR that her complaint had not been entered for complaint, and alleged conversations with processing, did not have a case number, and DHR prior to the January 22, 2009 were had not been assigned a case worker. (Id. at simply not credible. Accordingly, plaintiff's 8-9.) Plaintiff also claimed that she was told Title VII claims are barred by the 300-day to call DHR when she returned to the United statute of limitations, and the defendant's States. (Id.) Plaintiff also stated that she motion to dismiss those claims is granted.

called DHR in January 2009 and was told and she had no documentation regarding the that she would have to file a new complaint, alleged September 2008 complaint. Plaintiff which she did. (Id. at 9.) could not recall the name of the person who notarized her alleged September 2008

C. The Evidentiary Hearing complaint. Plaintiff acknowledged that the DHR "Determination and Order After

In light of plaintiff's allegation that she Investigation" indicated that her complaint filed a DHR complaint in September 2008, was filed on January 22, 2009. Plaintiff the Court held a conference scheduling an acknowledged that she never appealed the evidentiary hearing on February 27, 2012. DHR's statement that she filed the At that conference, the Court directed complaint on January 22, 2009. Plaintiff plaintiff to submit any documentary also testified that, when she spoke with evidence regarding the alleged September DHR in October 2008, she was informed 2008 DHR complaint two days prior to the that her complaint had not been entered for hearing date. The Court held an evidentiary processing, did not have a case number, and hearing on March 19, 2012. Plaintiff did not was not assigned to an investigator. Plaintiff produce any documentary evidence testified that DHR informed her that there regarding the alleged September 2008 DHR was a "work overload." Plaintiff complaint, or her purported pre-January 22, acknowledged that she made no attempt to 2009 interactions with DHR. determine whether or not the complaint had actually been filed between October 2008 At the hearing, plaintiff testified to and January 2009. Plaintiff also testified substantially the same facts set forth in her that she did not retain a copy of her opposition papers. Plaintiff testified to the purported October 2008 complaint, and following: (1) she hand delivered her could not identify the name or location of complaint with the DHR in September 2008; the person whom she asserted had notarized (2) she spoke with a Serena Chaplin at DHR that complaint. Plaintiff also acknowledged in October 2008 and informed DHR that she that her conversations with DHR regarding a would be going to Guyana until January one-year period to file related to state 2009; (3) Ms. Chaplin told her that it was claims, and that no representations were "okay" and when she returned she should ever made to her regarding the time call again; (4) plaintiff left for Guyana in requirements for federal claims. October 2008 to care for her ailing mother and returned in January 2009; (5) upon her As noted above, plaintiff's complaint return, she called DHR and asked for Ms. states "[i]t is my best recollection that I filed Chaplin, but Ms. Chaplin was not available; a charge with the New York State Division (6) she told DHR that she had a case of Human Rights or the New York City pending, but DHR informed her that Commission on Human Rights regarding "nothing was there"; (7) DHR told her that defendant's alleged discriminatory conduct she had two more weeks to submit a on January 2008." (Compl. at 6.) At the complaint, because "it was one year"; and evidentiary hearing, plaintiff acknowledged (8) plaintiff filled out the paperwork again, that she meant to write January 2009. and sent it to DHR via registered mail.

D. Findings of Fact Regarding Exhaustion

On cross-examination, plaintiff acknowledged that she did not keep a copy The Court has evaluated plaintiff's of the alleged September 2008 complaint, assertions under oath at the hearing that, inter alia, she filed a complaint with DHR in the January 22, 2009 filing (or at any other September 2008, followed up on that time). complaint in October 2008 to learn that it had not been processed, and was informed E. Procedural History that she had one year to file her complaint during the October 2008 phone call. Plaintiff filed her complaint on However, based upon the Court's November 24, 2012. Wal-Mart filed its observations of plaintiff's demeanor and motion to dismiss on July 11, 2011. considering her testimony in light of all the Plaintiff filed her opposition to defendant's evidence, the Court does not find plaintiff's motion on August 11, 2011. Wal-Mart testimony to be credible with respect to any submitted its reply on August 24, 2011. On of the material issues on the timeliness of February 27, 2012, the Court held a her federal claims. In particular, the Court conference and informed the parties that finds that her uncorroborated testimony given plaintiff's allegation regarding a prior regarding a purported filing of the administrative charge, the Court would September 2008 administrative complaint, require an evidentiary hearing on this issue. and conversations about that alleged An evidentiary hearing was held on March complaint with DHR prior to January 22, 19, 2012. The Court has fully considered 2009, regarding such complaint, to be the submissions of the parties. completely lacking in credibility. This assessment by the Court is made not only II. STANDARD OF REVIEW based upon her demeanor during the hearing, including her responses to questions When a Court reviews a motion to on cross-examination, but also by her own dismiss for failure to state a claim for which statements in the complaint which relief can be granted pursuant to Federal completely contradict those assertions. For Rule of Civil Procedure 12(b)(6), it must example, in plaintiff's complaint in this accept the factual allegations set forth in the case, she wrote in "January 2008" on the complaint as true and draw all reasonable standard form as the date she filed a charge inferences in favor of the plaintiff. See with the New York State Division of Human Cleveland v. Caplaw Enters., 448 F.3d 518, Rights or the New York City Commission 521 (2d Cir. 2006). "In order to survive a on Human Rights regarding defendant's motion to dismiss under Rule 12(b)(6), a alleged discriminatory conduct on January complaint must allege a plausible set of facts 2008." (Compl. at 6.) At the evidentiary sufficient 'to raise a right to relief above the hearing, plaintiff acknowledged that she speculative level.'" Operating Local 649 meant to write January 2009. Plaintiff did Annuity Trust Fund v. Smith Barney Fund not provide a credible explanation at the Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) hearing as to why she did not write (quoting Bell Atl. Corp. v. Twombly, 550 "September 2008" if that, in fact, was the U.S. 544, 555 (2007)). This standard does date of her initial administrative complaint. not require "heightened fact pleading of In short, based upon the evidentiary hearing, specifics, but only enough facts to state a the Court finds that plaintiff's only filing of claim to relief that is plausible on its face." an administrative charge was on January 22, Twombly, 550 U.S. at 570. 2009, and she was not misled by DHR or The Supreme Court clarified the anyone else regarding the timing appropriate pleading standard in Ashcroft v. requirements of her federal claims prior to Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 129 2005), cert. denied, 546 U.S. 935 (2005);

S.Ct. 1937 (2009). The Court instructed see also Cortec Indus., Inc. v. Sum Holding district courts to first "identify[ ] pleadings L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he that, because they are no more than district court . . . could have viewed [the conclusions, are not entitled to the documents] on the motion to dismiss assumption of truth." Id. at 1950. Although because there was undisputed notice to "legal conclusions can provide the plaintiffs of their contents and they were framework of a complaint, they must be integral to plaintiffs' claim."); Brodeur v. supported by factual allegations." Id. City of N.Y., No. 04 Civ. 1859(JG), 2005 Second, if a complaint contains "well- U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y. pleaded factual allegations, a court should May 13, 2005) (stating court could consider assume their veracity and then determine documents within the public domain on a whether they plausibly give rise to an Rule 12(b)(6) motion to dismiss). entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads Moreover, where (as in the instant case) factual content that allows the court to draw there is a factual dispute regarding the the reasonable inference that the defendant timing of the filing of the administrative is liable for the misconduct alleged. The charge or the grounds for equitable estoppel, plausibility standard is not akin to a an evidentiary hearing may be held. For 'probability requirement,' but it asks for example, in Sinha v. New York City more than a sheer possibility that a Department of Education, 127 F. App'x defendant has acted unlawfully." Id. at 1949 546, 547 (2d Cir. 2005) (summary order), (internal citations omitted) (quoting and the Second Circuit affirmed the district citing Twombly, 550 U.S. at 556--57). court's conclusion, after an evidentiary hearing, that the employee was not entitled The Court notes that, in adjudicating this to equitable tolling of the 300-day time motion, it is entitled to consider: "(1) facts period for filing an administrative claim. Id. alleged in the complaint and documents at 547 n.1 ("The district court properly attached to it or incorporated in it by resolved the credibility dispute between the reference, (2) documents 'integral' to the two witnesses because Sinha's equitable complaint and relied upon in it, even if not claim, i.e., that the EEOC had misled her attached or incorporated by reference, (3) regarding the filing limitation period, was documents or information contained in wholly unrelated to her legal claim, i.e., that defendant's motion papers if plaintiff has the DOE had terminated her based on her knowledge or possession of the material and race, ethnicity, or national origin.").*fn3 relied on it in framing the complaint, (4) Similarly, district courts within the Second public disclosure documents required by law Circuit have held that, where there is an to be, and that have been, filed with the issue of fact regarding the receipt of an Securities and Exchange Commission, and agency letter which triggers a statutory filing (5) facts of which judicial notice may properly be taken under Rule 201 of the period, the Court may conduct an charge with the EEOC, (2) receive an EEOC evidentiary hearing on that limited issue right-to-sue letter, and (3) file an action prior to any trial on the merits. See, e.g., within 90 days of receipt of that letter." Marino v. Nat'l R.R. Passenger Corp. Collier v. Boymelgreen Developers, No. 06-(AMTRAK), 645 F. Supp. 816, 819 CV-5425 (SJ), 2007 U.S. Dist. LEXIS (S.D.N.Y. 1986); see also Harrison v. N. 36181, at *6 (E.D.N.Y. May 17, 2007) Shore Univ. Hosp., No. 04 Civ. (citing Van Zant v. KLM Royal Dutch 2033(WDW), 2008 WL 656674, at *7 Airlines, 80 F.3d 708, 712 (2d Cir. 1996)). (E.D.N.Y. Mar. 6, 2008) ("Where the date With respect to the timing of the EEOC of receipt of a right to sue letter is disputed, charge, it is well-settled that, prior to filing a the court may hold an evidentiary hearing on claim in federal court pursuant to Title VII, that issue alone");*fn4 O'Neal v. Marine a plaintiff must institute proceedings with a Midland Bank, 848 F. Supp. 413, 423 state or local agency within 300 days of the (W.D.N.Y. 1994) (stating that "this Court, alleged discrimination. See 29 U.S.C. acting as the factfinder, shall weigh the § 626(d); see also Butts v. City of N.Y. Dep't evidence and make a factual determination of Hous. Pres. & Dev., 990 F.2d 1397, 1404 as to whether plaintiff's complaints were (2d Cir. 1993), superseded by statute on filed in a timely fashion."). other grounds as recognized in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998). These statutory filing periods are "analogous to [ ] statute[s] of Defendant argues that plaintiff's Title limitations." Van Zant, 80 F.3d at 712, and, VII claims should be dismissed due to as such, "a failure to timely file a charge acts plaintiff's failure to timely file her as a bar to a plaintiff's action." Butts v. N.Y. administrative charge, and the lack of any City Dep't of Hous. Pres. & Dev., No. 00 grounds for equitable tolling with respect to Civ. 6307(KMK), 2007 U.S. Dist. LEXIS plaintiff's Title VII claims. For the reasons 6534, at *20 (S.D.N.Y. Jan. 29, 2007) set forth below, having conducted an (citing Hill v. Citibank Corp., 312 F. Supp. evidentiary hearing to resolve the factual 2d 464, 472 (S.D.N.Y. 2004)); see also disputes on these issues, the Court agrees McPherson v. N.Y. City Dep't of Educ., 457 with defendant, and plaintiff's Title VII F.3d 211, 213-14 (2d Cir. 2006). The period claims must be dismissed. begins to run for each discrete discriminatory or retaliatory act when each "To maintain a timely action under 42 act occurs. See Nat'l R.R. Passenger Corp. U.S.C. § 2000e-5, a plaintiff must comply v. Morgan, 536 U.S. 101, 114 (2002); Hill, with three requirements: (1) file a timely 312 F. Supp. 2d at 472-73.


unlawful employment practice. Thus, the the "burden of demonstrating the complaint was not timely filed.*fn5

insufficient reason for equitable tolling); The Court has, however, considered a Jenkins v. Potter, 271 F. Supp. 2d 557, 564 potential argument by plaintiff that equitable (S.D.N.Y. 2003) (holding plaintiff's union tolling should apply because she was out of representative's "wife's terminal illness" not the country caring for a sick relative during sufficiently "extraordinary" circumstance to the relevant time period. In particular, the justify equitable tolling); Chalom v. Perkins, Court credits her testimony that she was not No. 97 Civ. 9505(LAP), 1998 WL 851610, in the country for some period of time in late at *6 (S.D.N.Y. Dec. 9, 1998) ("Even if 2008. Nevertheless, the Court does not find [plaintiff] did offer proof of the mental grief that "the circumstances are so extraordinary she alludes to, it would not reach the high that the doctrine should apply." Zerilli-standard that this circuit has applied." (citing Edelglass,333 F.3d at 81. Plaintiff has cases)); Brundin v. United States, No. 95 failed to set forth any facts that would Civ. 2689(WK), 1996 WL 22370, at *5 demonstrate why she could not file the (S.D.N.Y. Jan. 19, 1996) ("Although the administrative charge before she left, or plaintiff does supply an excuse for the delay even mail it while out of the country. Thus, -- the unexpected death of her father -- this her foreign travel does not provide a basis in reason alone does not warrant equitable this case for equitable tolling. See generally tolling."). Irwin v. Dep't of Veterans Affairs, 498 U.S.

89, 96 (1990) (no basis for equitable tolling

Thus, with respect to the equitable where plaintiff's attorney out of the country tolling issue, the Court has evaluated when EEOC notice arrived). plaintiff's claims that she filed a complaint with DHR in September 2008, followed up In sum, plaintiff's administrative on that complaint in October 2008 to learn complaint was not timely filed with DHR that it had not been processed, was informed and there are no grounds for equitable that she had one year to file ...

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