The opinion of the court was delivered by: Wexler, District Judge
Plaintiff Lawrence I. Friedmann brings this action against defendants Raymour Furniture Co., Inc. ("Raymour") and Raymour supervisor Lucy Goldstein ("Goldstein") for discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq.; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. Defendant Raymour moves to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Plaintiff opposes the motion.
For purposes of this decision, the relevant background can be summarized as follows: Plaintiff was employed by Raymour as a sales associate from in or about October 2005 until his termination on June 18, 2011. Complaint ¶¶ 11, 38. Plaintiff claims that from January 2006 until late 2010 he met all sales quotas imposed by Raymour and excelled in his sales numbers compared to other employees. Id. ¶ 12. Plaintiff had surgery for sciatica in May 2002 and suffered flare ups in or about May 2008 and March 2010. Id. ¶¶ 13-17. Although the May 2008 flare up did not hinder plaintiff's employment, the March 2010 flare up affected his ability to meet required sales numbers and required him to seek medical treatment and therapy. Id. ¶¶ 15, 18, 19. In or about February 2011, Goldstein asked plaintiff his age and when he planned to retire. Id. ¶ 27. Plaintiff, who was born in 1941, did not divulge his age, but stated that he planned to retire in approximately five years. Id. Thereafter, Goldstein and others employees and managers began addressing plaintiff as "old man" and made other derogatory comments regarding his age. Id. ¶¶ 27, 28; see, e.g., id. ¶¶ 35-36, 38. In or about April 2011, plaintiff was put on a "performance plan," and in or about May 2011, he was placed on a "coaching plan." Id. ¶¶ 22, 32. Plaintiff alleges that he complained to his superiors about age and disability discrimination, but "nothing changed." Id. ¶ 31. He was terminated on June 18, 2011. Id. ¶ 38.
On October 21, 2011, approximately four months after his termination, plaintiff filed a charge of discrimination with the EEOC. The EEOC issued plaintiff a right to sue letter on December 19, 2011, and he commenced this action on March 15, 2012 -- almost nine months after his termination.
Raymour contends that plaintiff's claims are time-barred, in that plaintiff contractually agreed to a six-month limitations period for filing "claims or lawsuits" against Raymour relating to his employment but failed to file this action until almost nine months after his termination. In this respect, before plaintiff began employment with Raymour, he completed, signed, and dated an "Application for Employment," which, in relevant part, provided:
Applicant's Statement -- READ CAREFULLY BEFORE SIGNING -- IF YOU ARE HIRED, THE FOLLOWING BECOMES PART OF YOUR OFFICIAL EMPLOYMENT RECORD AND PERSONNEL FILE. . . .
I agree that any claim or lawsuit relating to my service with Raymour & Flanigan Furniture must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.
Declaration of Tara Eyer Daub, Esq. in Support of Raymour & Flanigan's Motion to Dismiss, Exh. B.
Raymour maintains that the contractual six-month limitations period is enforceable and bars this action because plaintiff did not file this action within six months of his termination. In support, Raymour argues that contractual agreements shortening applicable limitations periods on federal and state employment-related claims are enforceable, citing, among other cases, Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, 572 F.3d 76, 81 (2d Cir. 2009) (ERISA claims), and Schiavone Constr. Co. v. City of New York, 594 N.Y.S.2d 27, 28 (1st Dep't 1993) (New York claims).
On the other hand, plaintiff maintains that "standard-form, non-negotiated clauses in employment applications, just like the one at issue here, cannot deprive plaintiffs of their right to file employment discrimination lawsuits within the statutory limitations periods." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Complaint ("Pl.'s Mem."), at 6. There is no dispute that plaintiff filed this action within the applicable statutory limitations periods for ADA, ADEA, and NYSHRL claims. More particularly, plaintiff cites cases for the proposition that a contractual agreement shortening the limitations period on "federal claims" must specifically refer to such federal claims and clearly express the intent to shorten the limitations period in which a party may bring an action based on a federal claim. See Vega v. Federal Express Corp., No. 09 Civ. 07637, 2011 WL 4494751, at *5 n.4 (S.D.N.Y. Sept. 29, 2011); VanGo Transport Co. v. New York City Bd. of Educ., 53 F. Supp. 2d 278, 283-84 (E.D.N.Y. 1999). Notably, however, plaintiff acknowledges that Vega holds that, under New York law, an agreement shortening the time period in which to bring an action will be upheld if it is clearly set forth, reasonable, and voluntarily agreed upon. See Vega, 2011 WL 4494751, at *5 (concluding that New York and numerous other jurisdictions have upheld enforceability of six-month contractual limitations provisions in employment discrimination cases, and holding plaintiff's NYSHRL claims time-barred by six-month contractual limitations clause in plaintiff's employment application).
Upon consideration, the Court agrees with plaintiff that the provision at issue here does not bar plaintiff's ADA and ADEA claims because it does not specifically refer to federal claims, and it does not clearly express an intent to shorten the limitations period in which plaintiff can bring an action on such federal claims. See id. at *5 n.4; Van-Go Transport Co., 53 F. Supp. 2d at 283-84. Given the administrative exhaustion requirements and prescribed regulatory filing periods applicable to federal employment discrimination claims (including ADA and ADEA claims), the absence of specific references and clearly expressed intent to shorten the limitations period on such claims militates against enforceability.
The Court disagrees with Raymour that Burke is controlling. Burke involved claims under ERISA, which does not prescribe a limitations period for actions under 29 U.S.C. § 1132. Burke, 572 F.3d at 78. As such, the Second Circuit observed, the applicable limitations period is that specified in the "most nearly analogous state limitations statute." Id. (citing Miles v. N.Y. State Teamsters Conference Pension & Ret. Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir. 1983)). Upon concluding that New York's six-year statute of limitations for contract actions is the most analogous to § 1132 ...