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Curtis Cost v. Super Media

October 1, 2012


The opinion of the court was delivered by: John G. Koeltl, District Judge:


The plaintiff Curtis Cost, proceeding pro se, brings this action against the defendant Super Media under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law § 296; and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. The plaintiff's claims derive from his termination in 2007, which he claims was motivated by racial discrimination and retaliation for his previous complaints regarding his treatment by the defendant. The defendant now moves to dismiss the plaintiff's claims as untimely, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The defendant also moves to dismiss the Amended Complaint because it is barred by orders of a Bankruptcy Court. For the reasons explained below, while the claims are not time barred, they are barred by Bankruptcy Court orders.


In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002).


The following facts are undisputed unless otherwise noted. The plaintiff began working for Verizon in January 2005 in the division. Amended Complaint ("Am. Compl.") ¶ 2. On April 17, 2007, the plaintiff received a letter dated April 12, 2007, informing him that he had been terminated effective March 19, 2007, "for sales fraud/violating the Company's Code of Business Conduct." Am. Compl. ¶ 18. The plaintiff alleges that the defendant subjected him to continuous, racially-based harassment that culminated in his termination without just cause. Am. Compl. ¶ 20. In January 2008 the plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Am. Compl. 3.

Verizon was the predecessor entity to Idearc Media Sales -- East Co. ("Idearc"). Am. Compl. ¶ 2 n.1. At the time of the plaintiff's termination, Idearc was the plaintiff's employer. Id. On March 31, 2009, while the plaintiff was awaiting the ruling of the EEOC, Idearc filed a voluntary petition of reorganization under chapter 11 of the Bankruptcy Code. In re Idearc, 423 B.R. 138, 147 (Bankr. N.D. Tex. 2009). On December 22, 2009, the Bankruptcy Court issued an Order (the "Confirmation Order") confirming Idearc's First Amended Joint Plan of Reorganization (the "Plan"). See Confirmation Order, In re Idearc, No. 09 31828 (Bankr. N.D. Tex. Dec. 22, 2009), ECF No. 1639; Aron Aff. Ex. E. The Confirmation Order and Plan provided for the discharge and release of all "claims" against Idearc:

...upon the occurrence of the Effective Date [December 31, 2009],*fn1 the Debtors shall be discharged from all Claims and causes of action to the fullest extent permitted by section 1141 of the Bankruptcy Code, and all holders of Claims against Idearc Interests shall be precluded from asserting against the Debtors, their assets, any property dealt with under the Plan, or the Reorganized Debtors, any further or other claim or cause of action based upon any act or omission, transaction, event, thing, or other activity of any kind or nature that occurred or came into existence prior to the Effective Date [December 31, 2009].

Confirmation Order at 30; Aron Aff. Ex. E., at 30. Defendant Super Media is the post-bankruptcy name of Idearc. See Order Sustaining Debtor's Objection to Proof of Claim Number 1572 Filed by Curtis Cost ("Proof of Claim Denial"), In re Idearc, No. 09 31828 (Bankr. N.D. Tex. Feb. 10, 2010), ECF No. 1800; Aron Aff. Ex. H.

On August 7, 2009, prior to December 31, 2009, the Effective Date of the Confirmation Order and Plan, the plaintiff filed a Proof of Claim form with the Bankruptcy Court for $500,000 on the basis of his wrongful termination. Aron Aff. Ex. G. On January 4, 2010, after the Effective Date, the EEOC issued its ruling in which it determined that it was unable to conclude that a violation had occurred and issued a right-to-sue letter to the plaintiff. Aron Aff. Ex. C. On January 8, 2010,*fn2 the plaintiff received the EEOC's right-to-sue letter, which stated that the plaintiff's lawsuit, if he wishes to bring one, "must be filed WITHIN 90 DAYS of your receipt of this notice; or your right-to-sue based on this charge will be lost." Aron Aff. Ex. C (emphasis in original).

On February 9, 2010, the Bankruptcy Court, sustaining Idearc/Super Media's objections to Cost's proof of claim, "disallowed and expunged" his claim in its entirety. See Proof of Claim Denial; Aron Aff. Ex. H. The court ordered that "Curtis Cost shall receive no distribution from the Reorganized Debtors' estates on account of [his] Proof of Claim...." See Proof of Claim Denial; Aron Aff. Ex. H.

On April 7, 2010, the plaintiff filed an in forma pauperis ("IFP") application and complaint with the Pro Se Office of this Court. On May 14, 2010, Chief Judge Preska signed the plaintiff's IFP application and authorized the plaintiff to proceed IFP. Thereafter, on May 17, 2010, the plaintiff's complaint was docketed with the Court. The plaintiff subsequently filed an ...

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