Vollinger v. Merrill Lynch & Co., Inc.

• Decision Date: 09 April 2002
• Docket Number: No. 01 Civ. 3018(CBM).,01 Civ. 3018(CBM).
• Citation: 198 F.Supp.2d 433
• Parties: Elinor VOLLINGER, Plaintiff, v. MERRILL LYNCH & CO., INC., Defendant.
• Court: U.S. District Court — Southern District of New York

198 F.Supp.2d 433

Elinor VOLLINGER, Plaintiff, v. MERRILL LYNCH & CO., INC., Defendant.

No. 01 Civ. 3018(CBM).

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

April 9, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel E. Clifton, Lewis, Greenwald, Clifton & Nikolaidis, P.C., New York City, for Plaintiff.

Martin Edel, Miller & Wrubel P.C., New York City, for Defendant.

MEMORANDUM OPINION AND ORDER

MOTLEY, District Judge.

I. INTRODUCTION

Plaintiff Elinor Vollinger filed this action against her former employer, Merrill Lynch & Co., Inc., in April 2001, alleging discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law (N.Y.SHRL), N.Y. Exec. Law § 290 et seq. In June 2001 Ms. Vollinger filed an amended complaint, dropping the NYSHRL claims, and adding claims under the New York City Human Rights Law (N.Y.CHRL), N.Y.C. Admin. Code § 8-101 et seq.

Now before the court is defendant's motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the plaintiff's claims are barred by relevant statutes of limitation. For the reasons stated in this opinion, defendant's motion will be granted. Plaintiff's ADEA claims will be dismissed with prejudice, and the court will decline to exercise jurisdiction over the pendent NYCHRL claims, dismissing them without prejudice.

II. FACTUAL BACKGROUND

Plaintiff alleges that she was hired by defendant as an executive secretary in its Investment Banking Division in February 1984. Am. Compl. ¶ 6. When plaintiff's supervisor was transferred to another department in May 1991, defendant allegedly began to treat plaintiff differently and significantly worse than younger secretaries in her division, despite the fact that she had a record of outstanding performance appraisals. Id. ¶¶ 7, 8. Specifically, plaintiff alleges that she was not permitted to transfer with her supervisor, despite the fact that it was company policy to transfer secretaries with the managers for whom they worked, and further, that she was not given the same opportunity to transfer to other secretarial positions over the next two years despite the fact that other, younger secretaries were given such opportunities. Id. ¶¶ 9-11. Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) on March 5, 1993. Id. ¶ 15. She was placed on probation on March 24, 1993, and on June 17, 1993, she was discharged. Id. ¶ 16.

III. PROCEDURAL BACKGROUND

The procedural history subsequent to the filing of the EEOC charge on March 5, 1993, determines the outcome of the instant motion. Unless otherwise indicated, the following recitation of the procedural history is undisputed.

On March 5, 1993, plaintiff filed a charge of age discrimination with the EEOC. Am. Compl. ¶ 15; Clifton 8/21/01 Decl. Ex. A. Under the terms of a Worksharing Agreement between the EEOC and the New York State Division of Human Rights ("State Division"), the EEOC operates as an agent of the State Division for purposes of accepting charges of discrimination. Id. Ex. S.

On March 24, 1993, plaintiff was placed on probation by defendant, and on June 17, 1993, she was discharged. Am. Compl. ¶ 16.

Almost one year later, on June 13, 1994, plaintiff filed a second complaint with the State Division against defendant, alleging retaliation for having filed the initial March 5, 1993, age discrimination complaint. Clifton 8/21/01 Decl. Ex. B. Plaintiff alleged in this complaint filed with the State Division that defendant had violated "Article 15 of the New York Executive Law," i.e., the NYSHRL, but plaintiff did not allege violations of the New York City Administrative Code, i.e., the NYCHRL. Id.

On January 29, 1996, the State Division issued two Determinations and Orders in connection with the March 5, 1993, discrimination complaint and the June 13, 1994, retaliation complaint. Id. Exs. C, D. In both cases, the State Division found no probable cause that defendant had discriminated or retaliated against plaintiff. Id.

On February 15, 1996, plaintiff's attorney requested reconsideration of the two Determinations. Id. Ex. E. A copy of that request was served on defendant, and on March 15, 1996, defendant responded to the State Division, opposing the request for reconsideration. Id. Ex. F.

On April 25, 1996, the State Division issued an Order Granting Reopening, stating that "further investigation" was necessary. Id. Ex. G.

On September 20, 1996, the EEOC District Director issued his own Determination in which he wrote, "having examined the [State Division's] findings and the record presented, I conclude that the evidence obtained during the investigation does not establish violations of the statutes." Id. Ex. I. This Determination included a notice of plaintiff's right to sue, informing her that if she wished to bring a lawsuit against defendant, it must be brought "within 2 years of the date of alleged discrimination and within 90 days of receipt of this letter, whichever is earlier, in order to assure the right to sue." Id. (original emphasis).

On October 2, 1996, plaintiff advised the EEOC by letter that the State Division had reopened its investigation and requested that the EEOC's Determination be withdrawn pending completion of the State Division investigation. Id. Ex. J. Plaintiff claims that defendant was served with a copy of the request, and that defendant did not object. 10/11/01 Hearing Tr. at 31.

Almost one year later, on August 14, 1997, the EEOC sent a letter to the parties, advising them that the September 20, 1996, Determination had been "rescind[ed]." Clifton 8/21/01 Decl. Ex. K. The notification states: "Due to an Administrative error A Letter of Determination dated September 20, 1996 was sent to the above mentioned parties. We are rescinding this determination because the matter is pending with the [State Division]." Id. There is no indication that defendant objected to this "rescinding."

On June 24, 1998, the State Division issued two Determinations and Orders After Reopening which found probable cause that defendant had discriminated and retaliated unlawfully against plaintiff. Id. Exs. L, M.

Over two years later, on December 22, 2000, plaintiff wrote to the State Division requesting that the cases be dismissed for administrative convenience. Id. Ex. N. On the same day she wrote to the EEOC requesting a right-to-sue notice. Id. Ex. O.

On January 12, 2001, the EEOC issued another right-to-sue notice, advising plaintiff that she would have to file an ADEA lawsuit within ninety days or her right to sue would be lost. Id. Ex. Q.

On February 15, 2001, the State Division issued a Dismissal of Complaint on the grounds of administrative convenience. Id. Ex. R.

On April 10, 2001 - within ninety days of January 12, 2001 - plaintiff commenced this action, alleging violations of the ADEA and the NYSHRL. On June 25, 2001, she filed an amended complaint, dropping the state law claims and adding claims under the NYCHRL.

Plaintiff concedes that she has been represented by counsel since the filing of her initial EEOC charge in March 1993. See 10/11/01 Hearing Tr. at 27.

Defendant filed the instant motion to dismiss on August 8, 2001, and following briefing by the parties, the court heart oral argument on defendant's motion on October 11, 2001. At that time the court ordered supplemental briefing, which has now been completed.

IV. THE STANDARD FOR A MOTION TO DISMISS

When passing on a motion to dismiss, the court must "assum[e] the truth of all factual allegations contained in the complaint and draw[] all inferences in the plaintiff's favor." Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409 (2d Cir. 2000); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). Normally the court must limit itself "to a consideration of the facts that appear on the face of the complaint." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984). The general rule is that if material outside the pleadings is presented in response to a motion to dismiss, the court "must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material." Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir.2000); see Fed. R.Civ.P. 12(b) ("If ... matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....").

There are some exceptions to this general rule, however. For example, when a defendant is "challenging the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). If a defendant's motion to dismiss is for failure to state a claim, in addition to the pleadings the court can consider any documents attached to the complaint as exhibits or incorporated into the complaint by reference. Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.1996). In such cases, the court may also consider any documents upon which a plaintiff "solely relies" and which are "integral" to its claims. Int'l Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 72 (2d Cir.1995); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir.1991) (holding that documents which plaintiffs had in possession and upon which they relied in bringing suit could be considered by court in ruling on motion to dismiss for failure to state a claim...