Chimarev v. Td Waterhouse Investor Services, Inc.

• Decision Date: 04 September 2003
• Docket Number: No. 01 Civ. 7120(VM).,01 Civ. 7120(VM).
• Citation: 280 F.Supp.2d 208
• Parties: Aleksandre I. CHIMAREV, Plaintiff, v. TD WATERHOUSE INVESTOR SERVICES, INC. Defendant.
• Court: U.S. District Court — Southern District of New York

280 F.Supp.2d 208

Aleksandre I. CHIMAREV, Plaintiff, v. TD WATERHOUSE INVESTOR SERVICES, INC. Defendant.

No. 01 Civ. 7120(VM).

United States District Court, S.D. New York.

September 4, 2003.

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Aleksandre I. Chimarev, Brooklyn, NY, Pro se.

Kenneth Kirschner, Kelley, Drye & Warren, LLP, New York City, for Defendant.

DECISION AND AMENDED ORDER

MARRERO, District Judge.

Plaintiff Aleksandre Chimarev ("Chimarev"), proceeding pro se, filed a complaint in New York State Supreme Court, New York County, against his former employer, TD Waterhouse Investor Services, Inc. ("TD Waterhouse"), alleging various claims relating to discrimination in his employment. (See Complaint and Demand for Jury Trial, dated July 23, 2001 ("Complaint") at ¶¶ 4(a)-(j), 5.) TD Waterhouse removed the case to federal court and subsequently moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Chimarev opposed the motion and cross-moved for summary judgment. On July 2003, Magistrate Judge Gabriel Gorenstein issued a Report and Recommendation (the "Report") recommending that TD Waterhouse's motion for summary judgment be granted and that Chimarev's cross-motion for summary judgment be denied. The Report is attached and incorporated herein. On July 24, 2003, Chimarev filed timely objections to the Report. By Order dated July 29, 2003, the Court ruled upon the respective motions and stated that its findings, conclusions and reasoning would be set forth in a separate Decision and Order to be made available to the parties. Accordingly, the Court, having reviewed the record, Chimarev's objections and the analysis and conclusions in the Report de novo, grants TD Waterhouse's motion for summary judgment and denies Chimarev's cross-motion for summary judgment essentially for the reasons articulated in Magistrate Judge Gorenstein's Report.

I. STANDARD OF REVIEW

Magistrate judges are empowered by statute to preside over certain pretrial matters upon referral by a district judge. See 28 U.S.C. § 636(b)(1)(a). The district judge evaluating a magistrate judge's recommendation may adopt those portions of the recommendation, without further review, where no specific objection is made, as long as they are not clearly erroneous. See id.; Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (district courts are not required to conduct "any review at all ... of any issue that is not the subject of an objection.") However, when a party makes "specific, written objections" within ten days after being served with a copy of the magistrate judge's report and recommendation, the district court must undertake de novo review of those contested aspects of the report. 28 U.S.C. § 636(b)(1)(c); see also Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R.Civ.P. 72(b).

In this instance, Magistrate Judge Gorenstein recommends that summary judgment be granted to TD Waterhouse, dismissing the Complaint in its entirety. In light of Chimarev's objections, the Court independently reviews those aspects of the Report to which Chimarev specifically objects and adopts the remainder of the Report, to which no objections have been raised, without further review.

II. DISCUSSION

A. FEDERAL CLAIMS

1. Title VII

Chimarev objects to the Report's dismissal of his claims pursuant to Title VII, 42 U.S.C. § 2000e et seq. ("Title VII"), all of which relate to the alleged discrimination against him by TD Waterhouse in violation of the terms and conditions of his employment. Chimarev contends that because he established a prima facie case of discrimination in the workplace, a presumption of discrimination arises and the burden to articulate a legitimate reason for the challenged employment decision is on TD Waterhouse. Therefore, Chimarev argues that it is proper for him to bring his claims of discrimination and retaliation under Title VII.

Regardless of the potential substantive merit of Chimarev's Title VII claims, however, he is procedurally barred from pursuing any claims under Title VII due to his failure to file a complaint with the Equal Employment Opportunity Commission ("EEOC") or an appropriate state or local administrative agency. It is well settled that "[a] plaintiff may bring an employment discrimination action under Title VII or the ADEA only after filing a timely charge with the EEOC or with a `State or local agency with authority to grant or seek relief from such practice.'" Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83 (2d Cir.2001) (quoting 42 U.S.C. § 2000e-5). Filing with the EEOC or other appropriate administrative agency is a condition precedent to bringing a Title VII claim in this Court: "[E]xhaustion of administrative remedies through the EEOC stands as `an essential element of Title VII's statutory scheme,' ... and one with which defendant's are entitled to insist that plaintiffs comply." Francis v. City of New York, 235 F.3d 763, 767-768 (2d Cir. 2000) (quoting Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir.1993)).

Although Chimarev complained internally about his alleged discriminatory treatment within TD Waterhouse on multiple occasions, he admittedly never brought claims regarding discrimination to either the EEOC or the New York State Division of Human Rights. (Deposition of Aleksandre I. Chimarev ("Chimarev Dep."), dated December 4, 2001, attached as Exh. B to the Reply Affirmation of Jonathan Stoler in Support of Defendant's Motion for Summary Judgment ("Stoler Aff."), dated May 19, 2003, at 19-20.) Chimarev's attempts to "avail himself of justice within the administrative organs of the institution that wronged him," (Plaintiff's Opposition and Counter Motion in Response to Defendant's Motion for Summary Judgment ("Pl.Opp."), dated April 16, 2003, at 7), are insufficient to meet the filing requirements of Title VII; and therefore, his Title VII claims are procedurally barred.

2. Failure to Pay

Chimarev next objects to the Report's findings with regard to his "failure to pay claim" under the Fair Labor Standards Act, 29 U.S.C. § 160, et seq. ("FLSA"). Specifically, Chimarev challenges the Report's conclusion that "TD Waterhouse adduced undisputed evidence that Chimarev was terminated on February 7, 2001," (Report at 16), and he reiterates his assertion that he is owed salary and severance, and that he was not actually terminated until mid-March 2001. (Plaintiff's Objections and Responses to Report and Recommendation ("Pl.Obj."), dated July 24, 2001, at 5.)

Chimarev's failure to pay claim must be dismissed. Although Chimarev claims that he had "no advance notice of termination, no exit interview, no final payment, signatures, etc.," (Id. at 5), Chimarev asserts in his Complaint that he was terminated. (Complaint ¶¶ 4(e), 6(d)). With regard to the date upon which Chimarev's termination became effective, TD Waterhouse has produced documentary and testimonial evidence establishing that Chimarev was terminated by Curtis Langdon ("Langdon"), Vice President of Human Resources at TD Waterhouse, during a meeting on February 7, 2001, and that the termination was intended to be effective immediately. (See email from Langdon to Sharon Alton, dated February 7, 2001, attached as Exh. P to the Stoler Aff.; letter from Pauline Chin to Chimarev, dated March 2, 2001, attached as Exh. S to the Stoler Aff; Affidavit of Langdon, dated February 14, 2003, at ¶ 20.) In fact, in his deposition, Chimarev himself admits that his last day of work was February 7, 2001, and that Langdon informed him that he was terminated verbally on that date. Chimarev complains, however, that his dismissal was not legal because it was "subterfuge" and because he did not receive the proper paperwork until mid-March 2001. (See Chimarev Dep. at 141-142; Pl. Obj. at 5.)

Since Chimarev was an at-will employee, he could be fired at any time without notice, as is specified in a letter offering Chimarev employment at TD Waterhouse ("Offer Letter") from Langdon, dated June 22, 2000: "Your employment with the Company, should you accept this offer, will not be for any specified term and may be terminated at any time, with or without notice, by you or the Company for any reason." (Offer Letter, attached as Exh. C to the Stoler Aff. at 2.) Moreover, where no particular form of termination is required by an employment contract, oral termination is equally as effective in terminating an at-will employee as a written termination letter. (See, e.g., Bargstedt v. Cornell University, 304 A.D.2d 1035, 757 N.Y.S.2d 646, 646 (3rd Dept.2003)) (oral termination of employee immediately effective); Mohawk Agency, Inc. v. American Cas. Co., 227 F.Supp. 745, 749 (N.D.N.Y.1964) (oral termination insufficient because contract required written termination). Chimarev was thereby terminated, orally, on February 7, 2003. Therefore, based on the undisputed evidence in the record, in particular Chimarev's own admission, Chimarev was appropriately paid until the date of his termination on February 7, 2001. Consequently, he has no claim for unpaid salary under FLSA.

Moreover, with regard to Chimarev's claim that he is owed severance, he has failed to provide any evidence that he was contractually entitled to severance pay. Therefore, he has failed to produce sufficient evidence of his entitlement to severance pay to create an issue of material fact to be litigated before a jury.

B. STATE LAW CLAIMS

1. Public Policy

Chimarev next objects to the Report's conclusions with regard to his state law claim for breach of public policy, good faith and fair dealing. Chimarev clarifies that he bases this claim not on his alleged wrongful termination, as the Report...