Gilbert v. North American Airlines et al

Filing 17

ORDER granting 15 Motion to Dismiss: For the reasons stated in the enclosed Memorandum and Order, defendants motion to dismiss is granted in its entirety. Plaintiffs Complaint is dismissed with prejudice. The Clerk of Court is respectfully requested to enter judgment accordingly and to close this case. Ordered by Judge Kiyo A. Matsumoto on 3/26/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JOHN Q. GILBERT,
Plaintiff,
MEMORANDUM & ORDER
12-CV-523 (KAM)(JMA)

-againstNORTH AMERICAN AIRLINES,
MARTIN WAX, LORRAINE DIMARCO,
and ERIC CHANG,
Defendants.
----------------------------------X

MATSUMOTO, United States District Judge:
On February 3, 2012, John Gilbert (“plaintiff”)
commenced this action against North American Airlines
(“NAA”); Martin Wax, NAA’s Vice President of Technical
Operations; Lorraine Dimarco, NAA’s Director of
Maintenance; and Eric Chang, NAA’s Director of Human
Resources (collectively, “defendants”), pursuant to the Age
Discrimination and Employment Act (“ADEA”), 29 U.S.C. §
621.

Plaintiff alleges that the defendants engaged in a

pattern of purposeful harassment and discrimination,
resulting in a hostile environment and the discriminatory
termination of plaintiff’s employment due to his age.

(See

generally ECF No. 1, Complaint filed 2/3/12 (“Compl.”).)
Defendants now move to dismiss plaintiff’s claims pursuant
to Federal Rule of Civil Procedure 12(b)(6).

(See

generally ECF No. 13, Defendants’ Memorandum of Law in
1

Support of their Motion to Dismiss under Fed. R. Civ. P.
12(b)(6) filed 7/19/13 (“Defs.’ Mem.”).)

For the reasons

set forth below, defendants’ motion to dismiss is granted,
and plaintiff’s claim is dismissed in its entirety.
BACKGROUND
The following facts are taken from the
plaintiff’s Complaint, which the court must assume to be
true for the purpose of resolving defendants’ Motion to
Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
generally Compl.)

(See

Additionally, where indicated, the

complaint’s factual allegations are supplemented by facts
and information drawn from documents external to the
Complaint, upon which plaintiff explicitly relies upon
within the Complaint or are in the purview of judicial
notice. 1

These external documents have been provided to the

court as attachments to the defendants’ motion to dismiss.

1

“[M]atters judicially noticed by the District Court are not
considered matters outside the pleadings.” Staehr v. Hartford
Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008); Kramer
v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)(“[C]ourts
routinely take judicial notice of documents filed in other
courts, again not for the truth of the matters asserted in the
other litigation, but rather to establish the fact of such
litigation and related filings.”); Arista Records, Inc. v. Dalaba
Color Copy Ctr., Inc., No. 05–CV–3634, 2007 WL 749737, at *4 n. 1
(E.D.N.Y. Mar. 7, 2007). The court may consider additional
documents, at the motion to dismiss stage, along with the
complaint, when the court determines the documents are integral
to the complaint. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
(internal citation and quotation omitted).

2

(See generally ECF No. 13, Defs.’ Mem.; see also ECF No.
16, Certification of Ivan R. Novich in support of
Defendants’ Motion to Dismiss under Fed. R. Civ. P.
12(b)(6) filed 7/22/13 (“Novich. Cert.”); ECF No. 14,
Defendants’ Reply Memorandum filed 7/19/13 (“Defs.’
Reply”).)
I. Parties
Plaintiff is a former Manager of Maintenance
Control at NAA.

(Compl. ¶ 10.)

Plaintiff previously

worked for Pan American Airlines for 24 years as a
technician, controller, and relief duty manager in the
technical operations center.

(Id. ¶ 40.)

Thereafter, in

August 2005, after thirteen years, plaintiff retired from
his position at Northwest Airlines and subsequently began
working at NAA.

(Id. ¶¶ 8, 38.) Throughout his career,

plaintiff developed managerial expertise, overseeing
aircraft maintenance operations at Newark Airport and
Philadelphia Airport.

(Id. ¶ 11.)

Defendant NAA is a corporation duly incorporated
in the State of New York and does regular business at John
F. Kennedy Airport.

(Id. ¶ 4.)

At all relevant times,

Martin Wax, Lorraine DiMarco, and Eric Chang were
managerial employees of NAA and acted under the direction,
policies, practices, and customs of NAA.

3

(Id. ¶¶ 5-7.)

II. Complaint Allegations
Plaintiff became Manager of Maintenance Control
at NAA sometime after August 2005, after he left his
position at Northwest Airlines.

(Id. ¶¶ 8-10.)

The

Director of Maintenance at NAA, Michael Jacoby, recruited
him for the position.

(Id. ¶ 10.)

While at NAA, plaintiff was responsible for
providing technical oversight for aircrafts at both foreign
and domestic stations.

(Id. ¶ 12-13.)

His role also

involved overseeing both maintenance controllers and flight
technicians.

(Id. ¶¶ 12-13.)

During his time as Manager

of Maintenance Control, plaintiff alleges NAA showed a
concerted effort to undermine his efforts to manage the
Maintenance Controls Operation.

(Id. ¶ 36.)

This included

giving some of plaintiff’s job responsibilities to other
managers at NAA.

(Id. ¶ 26.)

Plaintiff alleges that under

his leadership, he helped improve his department at NAA.
(Id. ¶ 15.)

Specifically, plaintiff assisted the

maintenance control operations department in passing two
internal audits conducted by the Department of Defense.
(Id. ¶ 15.)

Plaintiff alleges that despite his successes

and experience, the defendants rejected his ideas about how
to improve the airline.

(Id. ¶ 17.)

Plaintiff ultimately began to complain to the

4

defendants about their discussions regarding his
suggestions for improving operations, and alleges this is
when defendants’ retaliation and harassment began.
20.)

(Id. ¶

Sometime in 2007, plaintiff contends defendant Martin

Wax yelled at plaintiff for not giving an employee a low
job performance rating.

(Id. ¶¶ 21-22.)

Sometime

thereafter, plaintiff applied for the position of Senior
Manager of Maintenance Control, only to receive a
disciplinary Performance Improvement Plan letter instead.
(Id. ¶ 25.)

He alleges this letter was written to provide

a reason for plaintiff’s job application rejection.
25.)

(Id. ¶

Plaintiff then received a memo from upper management

notifying him that management was relocating him to the
engineering department on August 1, 2011, and that
plaintiff had to assume the position of “manager
engineering troubleshooters,” a position the defendants
never posted.

(Id. ¶ 35.)

Plaintiff alleges he was

unjustifiably removed “without due process” from his
position of Manager of Maintenance Control, a position that
was being eliminated, and was told his newly acquired
position would “be a better fit for his talents,” although
it would be easier for the defendants to terminate him
without cause or difficulty from the new position of
“manager engineering troubleshooters.”

5

(Id. ¶¶ 34-35.)

Additionally, plaintiff contends that he was undermined,
harassed, and retaliated against and that hiring a less
experienced candidate for Manager of Maintenance Control
would be less expensive for the defendants because he “is
now at retirement age.”

(Id. ¶ 36.)

On February 3, 2012, plaintiff filed the instant
action, alleging that defendants violated the ADEA, 29
U.S.C. § 621. (See generally Compl.)

Specifically,

plaintiff alleges that defendants “creat[ed] a course of
harassment and a hostile work environment based on his
age.” (Id. ¶ 43.) 2
III. NAA’s Bankruptcy & Bankruptcy Restructuring Agreement
On February 5, 2012, Global Aviation Holdings,
Inc. (“Debtors”), NAA’s parent company, filed a voluntary
Chapter 11 petition in the United States Bankruptcy Court
for the Eastern District of New York (“the Bankruptcy
Court”), identifying NAA as a debtor.
Cert. filed 7/22/13, Ex. 2.)

(ECF No. 16, Novich

On February 14, 2012,

defendants served plaintiff, through his attorney Andrew
Schatkin, Esq., with notice of NAA’s bankruptcy.
2

(Id., Ex.

Under the ADEA, the protected class includes individuals who
are at least 40 years of age. 29 U.S.C. § 631(a). Plaintiff
does not allege his age or that he fell within the protected
class during the relevant events. However, plaintiff’s work
history consists of 13 years with Northwest Airlines, 4 years
with Pan American Airlines, and 6 years with NAA, amounting to 43
years of work experience. (Id. ¶ 40.)

6

3.)

On June 15, 2012, the Bankruptcy Court ordered a July

30, 2012 cutoff date (the “Bar Date”) for potential
claimants to assert their claims against the debtors that
arose prior to the debtors’ filing of their Chapter 11
petitions on February 5, 2012.

(Id., Ex. 4, at 1.)

The

Bankruptcy Court articulated the following “consequences of
failure to file a proof of claim by the bar date”:
Any holder of a claim that is not
excepted from the requirements of this
order. . . and that fails to timely
file
a
proof
of
claim
in
the
appropriate form, will be barred from
asserting its claim against the debtors
and their chapter 11 estate, voting on
any plan of reorganization filed in
this case, and participating in any
distribution in the debtors’ chapter 11
case on account of that claim.

(Id., Ex. 4, Ex. 1, at 6.)
Additionally, the Bankruptcy Court ordered this
Bar Date to apply to “all types of claims against the
Debtors that arose prior to the Bankruptcy Filing,
including secured claims, unsecured priority claims . . .
and unsecured nonpriority claims,” and provided
instructions on how to file a proof of claim 3 in Bankruptcy
Court.

(Id., Ex. 4, at 1-2.)

The Order also directed the

3

“A proof of claim is a written statement setting forth a
creditor's claim.” Fed. R. Bankr. P. 3001.

7

Debtors to serve notice on all creditors and other known
claim holders listed in the schedules, and to publish
notice of the Bar Date in the New York Times twenty-eight
days prior to the Bar Date.

(Id., Ex. 4, at 5-6.)

The

notice was published on October 23, 2012 in the New York
Times.

(Id., Ex. 4, at 6; Bankr. Docket No. 12-40783, ECF.

No. 692, Confirmation of the Joint Plan of Reorganization
of Global Aviation Holdings and its Debtor Affiliates
Pursuant to Chapter 11 of the Bankruptcy Code filed
10/24/12 (“Not. of Pub.”).) 4
On December 10, 2012, pursuant to Chapter 11 of
the Bankruptcy Code, the Bankruptcy Court issued an order
confirming the debtors’ First Amended Joint Plan of
Reorganization of Global Aviation Holdings Inc., and its
Debtor Affiliates pursuant to Chapter 11 of the Bankruptcy
Code (“the Reorganization Plan”).
Cert. filed 7/22/13, Ex. 5.)

(ECF No. 16, Novich

The Reorganization Plan

4

Defendants filed “Schedules of Assets and Liabilities for
Global Aviation Holdings Inc.” on March 21, 2012, providing the
Bankruptcy Court with a summary of its secured and unsecured
creditors. (Bankr. Docket No. 12-40783, ECF No. 257, Schedules
of Assets and Liabilities for Global Aviation Holdings Inc. filed
3/21/12.) Plaintiff was not listed in this schedule. (Id.)
However, in addition to providing notice by publication,
defendants sent notice of their Chapter 11 bankruptcy on February
13, 2012 to plaintiff and his counsel. (Bankr. Docket No. 1240783, ECF. No. 87, Supplemental Affidavit of Service of “Notice
of Chapter 11 Bankruptcy Case, Meeting of Creditors & Deadlines”
filed 2/14/12.) Plaintiff did not file a claim.

8

provides for the discharge and release of all “Claims” 5
against NAA under its “Discharge of Claims and Termination
of Interests” clause:
Pursuant to section 1141(d) of the
Bankruptcy
Code,
and
except
as
otherwise specifically provided in the
Plan or in any contract, instrument or
other agreement or document created
pursuant
to
the
Plan,
the
distributions, rights, and treatments
that are provided in the Plan shall be
in complete satisfaction, discharge,
and
release,
effective
as
of
the
Effective Date . . . .

(Id., Ex. 5, at Exhibit A, p. 42 ¶ F.)

The foregoing

provision concludes that “the Confirmation Order shall be a
judicial determination of the discharge of all Claims and
Interests subject to the Effective Date.”

(Id., Ex. 5 at

Ex. A, First Amended Joint Plan of Reorganization
(“Reorganization Plan”), at 42 ¶ F.)
The Reorganization Plan and Confirmation Order
discharge all claims against NAA’s parent company Global
Aviation Holdings Inc., with a broad injunction against the
assertion of discharged claims, permanently enjoining “all
entities who have held, hold, or may hold Claims or
5

“Claims” are defined in the Plan as having the meaning set
forth in Section 101(5) of the Bankruptcy Code, which defines a
“claim” as a “right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured.” 11 U.S.C. § 101(5)(A)(2006); (ECF No.
16, Reorganization Plan at ¶ 21).

9

Interests,” from and after the effective date, from, inter
alia, “commencing or continuing in any manner any action or
other proceeding of any kind on account of or in connection
with or with respect to any such claims or interests.”
(Reorganization Plan at 42-43 ¶ G.)

On February 13, 2013,

the Bankruptcy Court issued notice of the effective date
for the Reorganization Plan, in which the court stated “the
Plan and its provisions are binding on . . . any holder of
a Claim against, or Interest in, the Debtors.” (Bankr.
Docket No. 12-40783, ECF No. 915, Notice of Occurrence of
the Effective Date of the First Amended Joint Plan of
Reorganization filed 2/13/13 (“Not. Of Eff.”).)
On June 5, 2013, defendants served plaintiff with
the instant motion to dismiss.

(See generally ECF No. 15,

Notice of Mot. to Dismiss dated 6/5/13; Defs.’ Mem.)
Plaintiff opposed the motion.

(ECF No. 12, Plaintiff’s

Opposition dated 7/5/13 (“Pl.’s Opp.”).)

Defendants

subsequently filed a Reply Memorandum of Law in further
support of their Motion to Dismiss under Fed. R. Civ. P.
12(b) (ECF No. 14, Defs.’ Reply.)
Plaintiff argues his claim should proceed,
despite the defendants’ Reorganization Plan, Confirmation
and Effective Date.

(Pl.’s Opp. at 14.)

Specifically,

plaintiff asks this court to disregard the notice he

10

received of the NAA’s bankruptcy proceeding for two
reasons.

(Id. at 13.)

First, plaintiff claims he “did not

understand any notice that was sent to him and that it
involved his claim.”

(Id.)

Second, plaintiff’s attorney

allegedly has no recollection of any notice from the
Bankruptcy Court arriving at his office.

(Id.)

In short,

plaintiff maintains “that if any notice was provided to
him, either he did not receive it or did not understand
it.”

(Id. at 14.)
LEGAL STANDARDS

I. Rule 12(b)(6), Rule 8(a) and the Plausibility Standard
Under Federal Rule of Civil Procedure 12(b)(6), a
party’s complaint survives a motion to dismiss when it
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).)

This

standard is met “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

If the factual allegations “raise a right to relief above
the speculative level,” a court should not dismiss a
complaint for failure to state a claim.
at 555.

Twombly, 550 U.S.

Federal Rule of Civil Procedure 8(a)(2) requires a

11

pleading to contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).

While Rule 8 “does not require

‘detailed factual allegations’[,] it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
The court’s function “is merely to assess the legal
feasibility of the complaint, not to assay the weight of
the evidence which might be offered in support thereof.”
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co.
of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quoting Geisler
v. Petrocelli, 616 F. 2d 636, 639 (2d Cir. 1980)).

“[T]he

issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claims.”

Todd v. Exxon Corp., 275 F.3d 191,

198 (2d Cir. 2001) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
In deciding a Rule 12(b)(6) motion to dismiss,
the court “must accept as true all allegations in the
complaint and draw all reasonable inferences in favor of
the non-moving party.”

Vietnam Ass’n for Victims of Agent

Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.
2008)(citation and internal quotation marks omitted); see
also Star v. Song BMG Music Entm’t, 592 F.3d 314, 321 (2d

12

Cir. 2010).

But, “[c]onclusory allegations or legal

conclusions masquerading as factual conclusions will not
suffice to defeat a motion to dismiss.”

Achtman v. Kirby,

McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006)
(citation and internal quotation marks omitted).

To assess

whether a complaint states a plausible claim for relief,
the Supreme Court has suggested a “two-pronged approach.”
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010)
(quoting Iqbal, 556 U.S. at 679.)

First, a court should

begin “by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption
of truth.”

Iqbal, 556 U.S. at 679.

“While legal

conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”

Id.

Second,

“[w]hen there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”

Id.

The plausibility of an entitlement to relief
determination, the second prong in Hayden’s “two-pronged
approach,” is a “context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense.”

Id.

A claim is plausible “when the

plaintiff pleads factual content that allows the court to
draw reasonable inferences that the defendant is liable for

13

the misconduct alleged.”

Id. at 678.

Plaintiff’s

“[f]actual allegations must be enough to raise a right to
relief above the speculative level” when the court rests on
the assumption the complaint’s allegations are true.

Id.

The plausibility standard does demand more than a “sheer
possibility that the defendant had acted unlawfully,” but
it does not require a showing of a “probability” of
misconduct.

Id.

Yet, a well-pleaded complaint may survive a
motion to dismiss even where it “strikes a savvy judge that
actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.”

Twombly, 550 U.S.

at 556 (citation and internal quotation marks omitted).
This is because the court’s function is “not to weigh the
evidence that might be presented at trial but merely to
determine whether the complaint itself is legally
sufficient.”

Goldman v. Belden, 754 F.2d 1059, 1067 (2d

Cir. 1985).
When reviewing a motion to dismiss, “the court
limits its considerations to: (1) the factual allegations
in the complaint; (2) documents attached to the complaint
as exhibits or incorporated in it by reference; (3) matters
of which judicial notice may be taken; and (4) documents
that are ‘integral’ to the complaint.”

14

Davis v. NYC Dep’t

of Educ., No. 10-CV-3812, 2012 WL 139255, at *3 (E.D.N.Y.
Jan. 18, 2012); Corbett v. eHome Credit Corp., No. 10-CV26, 2010 WL 1687704, at *2 (E.D.N.Y. Apr. 27, 2010)); Brass
v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993);
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002)(noting that “even where a document is not
incorporated by reference, the court may nevertheless
consider it where the complaint ‘relies heavily upon its
terms and effect,’ which renders the document ‘integral’ to
the complaint”).
DISCUSSION
I.

Defendants’ Reorganization Plan
As a threshold matter, defendants argue that

plaintiff’s age discrimination claim pursuant to the ADEA,
29 U.S.C. §§ 621, was discharged by the issuance of a
Chapter 11 Reorganization Plan in Bankruptcy Court. 6
(Defs.’ Mem. at 2.)

In response, plaintiff argues that due

6

Other courts have granted motions to dismiss due to the res
judicata effect of a Bankruptcy Court’s Order, which is a final
judgment on the merits. Cost v. Super Media, 482, B.R. 857, 862
(2012). However, in the instant action, the court need not
address a res judicata argument, as plaintiff moved under Fed. R.
Civ. P. 12(b)(6), and this court finds that defendants’
Reorganization Plan bars plaintiff’s claims against NAA. See
Holmes v. Air Line Pilots Ass'n, Int'l, 745 F. Supp. 2d 176, 195
(E.D.N.Y. 2010); see also Tadic v. Stolt-Nielsen S.A., No. 01-CV6814, 2005 WL 946567 at *1 (E.D.N.Y. Apr. 18, 2005) (“[T]he court
finds that the claims are discharged under Section 1141.
Therefore, the Complaint does not state a cause of action for
which relief can be granted and must be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6).”).

15

to the defendants’ failure to properly notify the plaintiff
of their action in Bankruptcy Court and subsequent
Reorganization Plan, his instant action should not be
deemed discharged and barred.

(Pl.’s Opp. at 12.)

The defendants’ Reorganization Plan includes a
“Discharge of Claims and Termination of Interests” clause
(“Discharge Clause”), providing that “all entities who have
held, hold, or may hold claims or interests that have been
. . . discharged . . . from and after the effective date,
from . . . commencing or continuing in any manner any
action or other proceeding or any kind on account of or in
connection with or with respect to any such claims or
interests . . . .”

(ECF No. 16, Novich Cert., Ex. 5, at

Exhibit A, at 42-43 ¶ G.)

This discharge of claims is

pursuant to Section 1141(d) of the Bankruptcy Code.
Ex. 5, at Exhibit A, p. 42 ¶ F.)

(Id.,

Under Section 1141 of the

Bankruptcy Code, a bankruptcy court’s confirmation of a
reorganization plan discharges the debtor from any debt
that arose before the date of the confirmation, regardless
of whether proof of the debt is filed, the claim is
disallowed, or the plan is accepted by the holder of the
claim.

11 U.S.C. § 1141(d)(1)(A).

“A ‘debt’ is defined to

mean ‘liability on a claim,’” and “a ‘claim’ is defined to
include any ‘right to payment, whether or not such right is

16

reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured.’” In re Worldcom,
Inc., 546 F.3d 211, 216 (2d Cir. 2008) (quoting 11 U.S.C.
§§ 105(A)(5) and (12)); see also Cost v. Super Media, 482
B.R. 857, 861 (S.D.N.Y. 2012) (same); Carter v. SafetyKleen Corp., No. 06 CV 12947, 2007 WL 1180581, at *2
(S.D.N.Y. Mar. 14, 2007) (same).
Thus, the Reorganization Plan covers all debts
and claims that existed before the effective date of the
Reorganization Plan, including employment discrimination
claims.

Super Media, 482 B.R. at 861 (citing Holmes, 747

F. Supp. 2d 176, 196 (E.D.N.Y. 2010)); 11 U.S.C. §
1141(d)(1)(A).

Accordingly, whether plaintiff’s claim is

barred due to the defendants’ subsequent Reorganization
Plan rests on the court’s determination of whether the
plaintiff’s claim arose prior to the February 13, 2013
effective date of defendants’ Chapter 11 Reorganization
Plan.

(Not. of Eff.)
Generally, a claim arises, for the purposes of

discharge in bankruptcy cases, at the “time of the events
giving rise to the claim, not at the time the plaintiff is
first able to file suit on the claim.”

Carter, 2007 WL

1180581, at *4-5 (internal quotation marks and citation

17

omitted).

Additionally, “the time a claim arises is

determined under relevant non-bankruptcy law.” In re
Manville Forest Products Corp., 209 F.3d 125, 128 (2d Cir.
2000).

Specifically, in employment discrimination cases, a

claim is deemed to arise “on the date the employee learns
of the employer’s discriminatory conduct.”

Super Media,

482 B.R. at 862 (quoting Flaherty v. Metromail Corp., 235
F.3d 133, 137 (2d Cir. 2000)); see also Bates v. Long
Island R.R. Co., 997 F.2d 1028, 1037 (2d Cir. 1993) (“Under
federal law, a claim accrues when the plaintiff knows or
has reason to know of the injury that is the basis of the
action.”).
Here, plaintiff’s claims against defendants arose
before the effective date of defendants’ Chapter 11
Reorganization Plan in the Bankruptcy Court on February 13,
2013. (Not. of Eff.; Novich Cert., Ex. 2.)

Plaintiff filed

his complaint on February 3, 2012, two days prior to
defendants’ filing for reorganization.

Additionally,

plaintiff’s complaint alleges defendants engaged in
discriminatory conduct towards him on and before August 23,
2011. (Compl. ¶ 38.)

As such, plaintiff’s claims occurred

prior to the February 13, 2013 effective date.
Accordingly, defendants’ Reorganization Plan’s
Discharge Clause and the injunction provisions set forth in

18

Sections 1141(d) and 524(a) of the Bankruptcy Code barred,
terminated, discharged and enjoined plaintiff’s claims
arising out of the alleged discriminatory conduct of NAA on
or before August 23, 2011.

Plaintiff may not here litigate

claims against NAA because they were discharged through the
confirmation of the Reorganization Plan.

See 11 U.S.C. §§

524(a), 1141(d); see, e.g., Super Media, 482 B.R. at 861
(“Employment discrimination claims that arise before the
effective date of the confirmation of a reorganization plan
under § 1141 are discharged by the effectuation of the
plan.”); Holmes, 747 F. Supp. 2d at 196 (finding the
defendant’s bankruptcy action barred the plaintiff’s
employment discrimination claim, as defendant’s
reorganization plan under Section 1141 discharged any
employment discrimination claims that arose prior to the
effective date of the reorganization plan and confirmation
order); Carter, 2007 WL 1180581, at *1 (defendant’s Chapter
11 bankruptcy proceeding and the plain language of Section
1141 of the Bankruptcy Code required the court to discharge
plaintiff’s Title VII claim); Kresmery v. Serv. Am. Corp.,
227 B.R. 10, 16 (D. Conn. 1998) (“[T]he Court finds that
the defendant's liability for the plaintiff's ADA claim,
which arose postpetition but preconfirmation, was
discharged by the confirmation of the defendant's

19

reorganization plan under Chapter 11 of the Bankruptcy Code
. . . .”).

Therefore, both the plain language of 11 U.S.C.

§ 1141(d) and the defendant’s Reorganization Plan require
the dismissal of plaintiff’s claims against NAA.
II.

Plaintiff’s Notice of Defendants’ Chapter 11
Bankruptcy Proceedings
Plaintiff alleges defendants’ Reorganization Plan

should not bar his claims because (1) plaintiff did not
understand that the notice he received of NAA’s proceeding
in Bankruptcy Court involved his claims in the instant
action and (2) his attorney does not recall receiving
notice. (Pl.’s Opp. at 13.)

Plaintiff contends that he

should be excused from the Proof of Claim deadline to file
as a creditor in a bankruptcy proceeding.

(Id.)

Plaintiff, however, conflates the issues in this
case.

In certain circumstances, a bankruptcy court will

accept the filing of untimely Proof of Claims, but there is
no evidence that plaintiff sought such an extension.

See

In re Enron Corp., 419 F.3d 115, 122 (2d Cir. 2005)(noting
that a bankruptcy court may consider “all relevant
circumstances surrounding the party's omission” when
considering whether to permit the untimely filing of a
Proof of Claim); see also Pioneer Inv. Services Co. v.
Brunswick Associates Ltd. P'ship, 507 U.S. 380, 381

20

(1993)).

Moreover, even if defendant provided insufficient

notice of its bankruptcy proceeding to plaintiff, the
Reorganization Plan, Confirmation and Order of an Effective
Date in the defendants’ bankruptcy proceeding would bar
plaintiff’s claims.

Had the Bankruptcy Court permitted

plaintiff to file an untimely Proof of Claim, this would
only result in the opportunity to file a Proof of Claim in
bankruptcy court, and would not allow plaintiff to proceed
with his action against defendants in district court.

See

Carter, 2007 WL 1180581, at *15 (holding that because
plaintiff’s claims occurred before the defendant’s
bankruptcy reorganization plan and were therefore
discharged, plaintiff needed to “pursue his claim before
the Bankruptcy referee or not at all”).

Plaintiff cites no

authority for his position that the district court has
authority to override a failure by a creditor to file a
timely claim after the confirmation of a reorganization
plan. 7

7 The Bankruptcy Court retains continuing jurisdiction over its
prior orders. See Travelers Indem. Co. v. Bailey, 557 U.S. 137,
151 (2009) (“The answer here is easy: as the Second Circuit
recognized, and respondents do not dispute, the Bankruptcy Court
plainly had jurisdiction to interpret and enforce its own prior
orders.”); see also In re Old CarCo LLC, 09 CIV. 8875 CM, 2010 WL
9461648 at *9 (S.D.N.Y. July 2, 2010) aff'd, In re Old Carco LLC,
438 F. App'x 30 (2d Cir. 2011)(“[I]t is difficult for this Court
to imagine how the Bankruptcy Court's interpretation of its own
prior orders, both of which were integral to, and issued in due
course of, a chapter 11 proceeding, could be interpreted ex post

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Moreover, even if plaintiff could properly seek
an extension of time to file a claim in the district court,
which he cannot, plaintiff fails to rebut the “presumption
of receipt.”

In re AMR Corp., 492 B.R. 660, 664 (Bankr.

S.D.N.Y. 2013).

“[F]ederal courts in New York . . . hold

quite uniformly that an affidavit of non-receipt is
insufficient to rebut the presumption of receipt [of
notice] created by proof of mailing.”

In re Malandra, 206

B.R. 667, 673 (Bankr. E.D.N.Y. 1997).

While it is possible

to rebut the presumption of receipt, a party must allege
more than “mere denials” of receipt of notice, and allege
insufficient notice “in combination with evidence of
standardized procedures for processing mail.”

In re

Robinson, 228 B.R. 75, 82 (Bankr. E.D.N.Y. 1998).

Here,

plaintiff does not provide an affidavit of non-receipt or
even a “mere denial” of sufficient notice.

Instead,

plaintiff asserts that he “did not understand any notice
that was sent to him,” and that his attorney “has no
recollection of any notice . . . sent to his office.”
(Pl.’s Opp. at 13.)

These assertions fall far short of an

affidavit supported by sufficient evidence that neither the

facto as anything other than related to the Bankruptcy itself.”).

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plaintiff nor his attorney received any notice. 8

As such,

plaintiff does not sufficiently establish how defendant NAA
failed to adequately provide him with notice of its
bankruptcy court proceeding, and his claims against NAA
must be dismissed.
III.

Plaintiff’s Claims against Individual Defendants
In addition to the discharge of plaintiff’s

claims against NAA, plaintiff’s claims against defendants
Martin Wax, Lorraine Dimarco, and Eric Chang are barred.
The defendant’s Reorganization Plan enjoins the plaintiff
from continuing his action against any “released parties,”
which includes employees of NAA. (Novich Cert., Ex. 5 at
Exhibit A, p. 11, ¶ 135, p. 42, ¶ G).
Plaintiff’s claims against the individual
defendants are also barred under the ADEA.
it unlawful for “an employer . . .

The ADEA makes

to fail or refuse to

hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual's age.”

8

29 U.S.C. §

The court notes that defendants have provided proof of service
on plaintiff’s attorney of the “Notice of Chapter 11 Bankruptcy
Case” (Novich Cert., Ex. 3). In addition, defendant NAA provided
notice in the New York Times by publication on October 23, 2012,
notifying the public of a hearing to consider defendants’
Reorganization Plan. (Bankr. Docket No. 12-40783, ECF. No. 692,
Not. of Pub.)

23

623(a)(1)(1994).

An employer is “a person engaged in an

industry affecting commerce who has twenty or more
employees for each working day . . . [and] any agent of
such a person.”

Id. § 630(b).

The mention of “agent” in

the ADEA “was merely intended to create respondeat superior
liability against employers for the acts of their agents.”
Thorpe v. Piedmont Airlines, Inc., 926 F. Supp. 2d 453, 462
(N.D.N.Y. 2013)(quoting Leykis v. NYP Holdings, Inc., 899
F. Supp. 986, 990 (E.D.N.Y. 1995)).

Courts have held that

under the ADEA, an employer is the proper party defendant.
Leykis 899 F. Supp. at 990 (“employers are liable for the
actions and policies of their employees”).

The ADEA does

not confer liability on agents and they cannot be
“independently and individually liable for [the employer’s]
discriminatory actions and policies.”

Id.

Accordingly,

given that plaintiff’s claims against NAA are discharged by
the effectuation of the Reorganization Plan, plaintiff
cannot sue Martin Wax, Lorraine DiMarco, or Eric Chang in
their individual capacities under the ADEA.

Therefore,

plaintiff’s claims against the individual defendants are
likewise dismissed.

CONCLUSION
For the reasons stated above, defendants’ motion

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to dismiss is granted in its entirety.

Plaintiff’s

Complaint is dismissed with prejudice.

The Clerk of Court

is respectfully requested to enter judgment accordingly and
to close this case.

SO

ORDERED.

Dated: March 26, 2014
Brooklyn, New York

________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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