Gardner v. Honest Weight Food Co-Op., Inc.

• Decision Date: 02 May 2000
• Docket Number: No. 1:99-CV-1607.,1:99-CV-1607.
• Citation: 96 F.Supp.2d 154
• Parties: Leslie GARDNER, Plaintiff, v. The HONEST WEIGHT FOOD COOPERATIVE, INC.; William Zeitlow; Maryanne Winslow; and Michael Toye, Defendants.
• Court: U.S. District Court — Northern District of New York

96 F.Supp.2d 154

Leslie GARDNER, Plaintiff, v. The HONEST WEIGHT FOOD COOPERATIVE, INC.; William Zeitlow; Maryanne Winslow; and Michael Toye, Defendants.

No. 1:99-CV-1607.

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

May 2, 2000.

DeGraff, Foy, Holt-Harris & Kunz, LLP, Albany, NY, for plaintiff, Melody A. Mackenzie, of counsel.

Hite & Casey, P.C., Albany, NY, for defendant Honest Weight Food Cooperative, Inc., Meredith H. Savitt, of counsel.

Lefkowitz & Keefe, P.C., Albany, NY, for defendants William Zeitlow, Maryanne Winslow, and Michael Toye, Gary A. Lefkowitz, of counsel.

MEMORANDUM-DECISION & ORDER

McAVOY, District Judge.

I. Background

Plaintiff brings the instant action alleging, inter alia, that Defendants Honest Weight Food Cooperative, Inc. ("HWFC") and William Zeitlow ("Zeitlow"), Maryanne Winslow ("Winslow") and Michael Toye ("Toye") (collectively "Defendants") unlawfully discriminated against her on the basis of her Jewish ethnicity, religion and gender, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Plaintiff also asserts numerous pendent state law claims against Defendants for employment-related discrimination in violation of N.Y.EXEC.LAW § 296 et seq. and for slander and defamation. See generally Amended Compl. at ¶¶ 116-219.

Defendants HWFC and Zeitlow, Winslow and Toye separately move to dismiss the federal causes of action and state-based defamation claim pursuant to FED. R.Civ.P. 12(b)(1), (6).¹ Defendants also move the Court to decline supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c), over Plaintiff's state-based causes of action under N.Y.EXEC.LAW § 296 et seq. The Court assumes familiarity with its two prior decisions in this matter, which detail the procedural and factual background surrounding the instant dispute. See Gardner v. The Honest Weight Food Coop., 99-CV-1607 (N.D.N.Y. Mar. 30, 2000) (denial of Defendant's motion for sanctions); Gardner v. The Honest Weight Food Coop., 99-CV-1607 (N.D.N.Y. Mar. 2, 2000) (denial of Defendants' motions to dismiss).

I. Discussion

A. Conversion to Summary Judgment

In the present motion, both parties submitted materials, e.g., affidavits and other documentary evidence, outside the pleadings.² Plaintiff was on notice from Defendants' motions that dismissal of her Title VII claims was sought based on Plaintiff's failure to timely file her federal complaint within the ninety day filing requirement. In connection with Defendants' motions, both parties submitted sworn affidavits. See, e.g., Affidavit of Elizabeth Cadle, Director of the Buffalo Local Office of the EEOC ("Cadle Aff.") (Docket No. 41); Affidavit of Earl Moyer ("Moyer Aff.") (Docket No. 45 at Ex. A); Affidavit of Leslie Gardner ("Gardner Aff.") (Docket No. 46). Accordingly, both parties were provided "sufficient notice that summary judgment was possible and ample opportunity to submit supporting affidavits and evidence." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998), cert. denied, 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). Because both parties had a full and fair opportunity to present and, in fact, have presented, materials pertinent to a Rule 56 motion, the Court will treat Defendants' pending motions pursuant to Rule 56. See FED. R.CIV.P. 12(b); Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir.1990) (stating that the relevant inquiry in deciding whether to convert a motion to dismiss into a motion for summary judgment is "whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.") (internal quotations omitted); M.J.M. Exhibitors, Inc. v. Stern, 770 F.2d 288, 295 (2d Cir.1985) ("A party cannot complain of lack of a reasonable opportunity to present all material relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, counter-affidavits, depositions, etc. in support of and in opposition to a motion to dismiss. Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted.") (citations omitted), cert. denied, 475 U.S. 1015, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986); Mate v. New York State Dep't of Labor, 1998 WL 770554, at *1 (S.D.N.Y. Nov.2, 1998) ("In view of the fact that both parties have submitted material outside the pleadings, and [the Court] hav[ing] considered the submission of the non-moving plaintiff, it is permissible to treat [defendant's] motion at least in part as a motion for summary judgment."); Casamento v. New York Stock Exch., Inc., 1995 WL 373494, at *1 (S.D.N.Y. June 22, 1995). In deciding the instant motions, the Court will apply the well-settled standards applicable to motions for summary judgment that have been set forth in prior decisions by this Court. See Dyke v. McCleave, 79 F.Supp.2d 98, 102-03 (N.D.N.Y.2000); Frink Am., Inc. v. Champion Road Mach. Ltd., 62 F.Supp.2d 679, 681-82 (N.D.N.Y.1999); Emma v. Schenectady City Sch. Dist., 28 F.Supp.2d 711, 717-18 (N.D.N.Y.1998), aff'd, 199 F.3d 1322 (1999) (Table). However, because Defendants' arguments with respect to Plaintiff's defamation claim challenge, in large part, the sufficiency of the allegations set forth in the Amended Complaint, see Def. HWFC Mem. of Law at 11-14, the Court will treat that portion of Defendants' motions to dismiss as ones pursuant to FED.R.CIV.P. 12(b)(6). See, e.q., Finley v. Illinois Dep't of Pub. Aid, 1998 WL 26156, at *2-*3 (N.D.Ill. Jan.12, 1998).

B. Timeliness of Plaintiff's Title VII Claims

Defendants argue that Plaintiff's federal causes of action under Title VII (First, Second, Third, Fifth, and Sixth Causes of Action in the Amended Complaint) should be dismissed because Plaintiff failed to timely commence the instant action within ninety days of receipt of her Right-To-Sue letter as required under 42 U.S.C. § 2000e-5(f)(1).

"In order to be timely, a claim under Title VII ... must be filed within 90 days of the claimant's receipt of a right-to-sue letter." Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir.1996); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam). Thus, the ninety day requirement functions as a statutory precondition to bringing suit in federal court. See 42 U.S.C. § 2000e-5(f)(1); Rasmussen v. Sigma Corp. of Am., 27 F.Supp.2d 388, 391 (E.D.N.Y.1998). The requirement is "treated like a statute of limitations," Rasmussen, 27 F.Supp.2d at 391, and "[f]ailure to comply with this time requirement will result in dismissal of the complaint." Banks v. Metro-North Commuter R.R., 1998 WL 312237, at *3 (S.D.N.Y. June 12, 1998) (quotations omitted); see also Williams v. Manhattan East Suite Hotels, 1999 WL 212690, at *2 (S.D.N.Y. Apr.12, 1999). The ninety day period begins to run from the date the claimant receives the Right-To-Sue letter "at the address supplied to the EEOC by the claimant."³ Espinoza, 754 F.2d at 1249; see also Rasmussen, 27 F.Supp.2d at 392-93; Casamento, 1995 WL 373494, at *2. "While the 90-day rule is not a jurisdictional predicate, in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day." Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (internal quotation omitted); see also Crawford-Mulley v. Corning, Inc., 77 F.Supp.2d 366, 368 (W.D.N.Y.1999) (citations omitted); Rasmussen, 27 F.Supp.2d at 393; Connell v. J.P. Morgan Inv. Management, Inc., 1994 WL 132148, at *2 (S.D.N.Y. Apr.12, 1994).

A presumption exists that an EEOC notice is received "three days after its mailing" and that "a notice provided by a government agency has been mailed on the date shown on the notice." Sherlock, 84 F.3d at 525-26 (citing Baldwin County, 466 U.S. at 148 and n. 1, 104 S.Ct. 1723); see also FED.R.CIV.P. 6(e) (West 2000) ("Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period."). This presumption, however, may be rebutted by sworn testimony or other admissible evidence from which it could reasonably be inferred that it took longer than three days for the letter to reach the claimant by mail. See Sherlock, 84 F.3d at 526; see also Williams, 1999 WL 212690, at *2 ("Ordinarily, the 90-day filing period commences when the plaintiff would be expected to receive the right-to-sue letter, and there is a presumption that a [right-to-sue] letter properly mailed is not only received by the addressee, but also that it is received in the due course of the mails.") (internal quotations omitted and brackets in original).

In the present case, Plaintiff's Right-To-Sue letter is dated June 30, 1999.⁴ See Amended Compl. at Ex. C. It is the practice of the EEOC to date-stamp the Right-To-Sue letter on the date of issuance and mail the letter to the claimant on that same date. See Cadle Aff. at ¶ 3. Thus, a Right-To-Sue letter dated June 30, 1999 was presumably mailed on June 30, 1999. See id.; Sherlock, 84 F.3d at 526. Allowing for a three-day mailing presumption, Plaintiff should have received her Right-To-Sue letter on Saturday, July 3, 1999, a regular mail day. In such a scenario, Plaintiff was, therefore, required to file her federal complaint no later than Friday, October 1, 1999, ninety days later. The Right-To-Sue letter issued to Plaintiff clearly stated that she must file her federal lawsuit within ninety days of receiving the notice to avoid losing her right to sue based on her EEOC...