Cost v. Idearc Media Sales
Filing
41
OPINION AND ORDER: The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. The defendant's motion to dismiss the Amended Complaint is granted. The Clerk is directed to enter judgment dismissing the Amended Complaint. The Clerk is also directed to close all pending motions and to close this case. (Signed by Judge John G. Koeltl on 10/1/2012) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
CURTIS COST,
Plaintiff,
- against -
10 Civ. 4066 (JGK)
SUPER MEDIA,
OPINION AND ORDER
Defendant.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff Curtis Cost, proceeding pro se, brings this
action against the defendant Super Media under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (“Title
VII”); the New York State Human Rights Law, N.Y. Exec. Law
§ 296; and the New York City Human Rights Law, N.Y.C. Admin.
Code § 8-107.
The plaintiff’s claims derive from his
termination in 2007, which he claims was motivated by racial
discrimination and retaliation for his previous complaints
regarding his treatment by the defendant.
The defendant now
moves to dismiss the plaintiff’s claims as untimely, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The
defendant also moves to dismiss the Amended Complaint because it
is barred by orders of a Bankruptcy Court.
For the reasons
explained below, while the claims are not time barred, they are
barred by Bankruptcy Court orders.
1
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
2
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken.
See Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Taylor v. Vt.
Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002).
II.
The following facts are undisputed unless otherwise noted.
The plaintiff began working for Verizon in January 2005 in
the Superpages.com division.
¶ 2.
Amended Complaint (“Am. Compl.”)
On April 17, 2007, the plaintiff received a letter dated
April 12, 2007, informing him that he had been terminated
effective March 19, 2007, “for sales fraud/violating the
Company’s Code of Business Conduct.”
Am. Compl. ¶ 18.
The
plaintiff alleges that the defendant subjected him to
continuous, racially-based harassment that culminated in his
termination without just cause.
Am. Compl. ¶ 20.
In January
2008 the plaintiff filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”).
Am. Compl. 3.
Verizon was the predecessor entity to Idearc Media Sales –
East Co. (“Idearc”).
Am. Compl. ¶ 2 n.1.
3
At the time of the
plaintiff’s termination, Idearc was the plaintiff’s employer.
Id.
On March 31, 2009, while the plaintiff was awaiting the
ruling of the EEOC, Idearc filed a voluntary petition of
reorganization under chapter 11 of the Bankruptcy Code.
Idearc, 423 B.R. 138, 147 (Bankr. N.D. Tex. 2009).
In re
On December
22, 2009, the Bankruptcy Court issued an Order (the
“Confirmation Order”) confirming Idearc’s First Amended Joint
Plan of Reorganization (the “Plan”).
See Confirmation Order, In
re Idearc, No. 09 31828 (Bankr. N.D. Tex. Dec. 22, 2009), ECF
No. 1639; Aron Aff. Ex. E.
The Confirmation Order and Plan
provided for the discharge and release of all “claims” against
Idearc:
...upon the occurrence of the Effective Date [December
31, 2009], 1 the Debtors shall be discharged from all
Claims and causes of action to the fullest extent
permitted by section 1141 of the Bankruptcy Code, and
all holders of Claims against Idearc Interests shall
be precluded from asserting against the Debtors, their
assets, any property dealt with under the Plan, or the
Reorganized Debtors, any further or other claim or
cause of action based upon any act or omission,
transaction, event, thing, or other activity of any
kind or nature that occurred or came into existence
prior to the Effective Date [December 31, 2009].
1
The Effective Date was confirmed as December 31, 2009, in a subsequent order
of the Bankruptcy Court. See Notice of Occurrence of Effective Date, In re
Idearc, No. 09 31828 (Bankr. N.D. Tex. Dec. 22, 2009), ECF No. 1675; Aron
Aff. Ex. F.
4
Confirmation Order at 30; Aron Aff. Ex. E., at 30.
Defendant
Super Media is the post-bankruptcy name of Idearc.
See Order
Sustaining Debtor’s Objection to Proof of Claim Number 1572
Filed by Curtis Cost (“Proof of Claim Denial”), In re Idearc,
No. 09 31828 (Bankr. N.D. Tex. Feb. 10, 2010), ECF No. 1800;
Aron Aff. Ex. H.
On August 7, 2009, prior to December 31, 2009, the
Effective Date of the Confirmation Order and Plan, the plaintiff
filed a Proof of Claim form with the Bankruptcy Court for
$500,000 on the basis of his wrongful termination.
Ex. G.
Aron Aff.
On January 4, 2010, after the Effective Date, the EEOC
issued its ruling in which it determined that it was unable to
conclude that a violation had occurred and issued a right-to-sue
letter to the plaintiff.
Aron Aff. Ex. C.
On January 8, 2010, 2
the plaintiff received the EEOC’s right-to-sue letter, which
stated that the plaintiff‘s lawsuit, if he wishes to bring one,
“must be filed WITHIN 90 DAYS of your receipt of this notice; or
your right-to-sue based on this charge will be lost.”
Aron Aff.
Ex. C (emphasis in original).
2
By letter dated January 7, 2010, the plaintiff’s lawyer sent the right-tosue letter to the plaintiff. See Berenbaum Letter of January 7, 2010, Aron
Aff. Ex. C. The plaintiff states that he received the right-to-sue letter on
January 8, 2010. Am. Compl. 4.
5
On February 9, 2010, the Bankruptcy Court, sustaining
Idearc/Super Media’s objections to Cost’s proof of claim,
“disallowed and expunged” his claim in its entirety.
of Claim Denial; Aron Aff. Ex. H.
See Proof
The court ordered that
“Curtis Cost shall receive no distribution from the Reorganized
Debtors’ estates on account of [his] Proof of Claim....”
See
Proof of Claim Denial; Aron Aff. Ex. H.
On April 7, 2010, the plaintiff filed an in forma pauperis
(“IFP”) application and complaint with the Pro Se Office of this
Court.
On May 14, 2010, Chief Judge Preska signed the
plaintiff’s IFP application and authorized the plaintiff to
proceed IFP.
Thereafter, on May 17, 2010, the plaintiff’s
complaint was docketed with the Court.
The plaintiff
subsequently filed an Amended Complaint dated November 21, 2011.
The defendant now moves to dismiss the Amended Complaint.
6
III.
The first issue is whether the plaintiff’s Title VII claim
is time-barred.
In order to be timely, an action pursuant to
Title VII must be commenced within ninety days after the
claimant’s receipt of a right-to-sue letter from the EEOC.
Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35,
37 (2d Cir. 2011) (citing 42 U.S.C. § 2000e-5(f)(1)).
Rule 3 of
the Federal Rules of Civil Procedure provides that “[a] civil
action is commenced by filing a complaint with the court.”
R. Civ. P. 3.
Fed.
However, “where, as here, a plaintiff is
proceeding pro se, numerous courts have held that simultaneous
delivery of both a request to proceed IFP and a complaint with
the court tolls the 90-day statute of limitations period in
discrimination cases.”
Ocasio v. Fashion Inst. of Tech., 86 F.
Supp. 2d 371, 375 (S.D.N.Y. 2000) (citing Janneh v. Regency
Hotel, Binghamton, 879 F. Supp. 5, 6 (N.D.N.Y. 1995) (“The 90day period is tolled when the plaintiff files his in forma
pauperis application and remains tolled while the application is
pending.”)); Stephenson v. CNA Fin. Corp., 777 F. Supp. 596,
598-99 (N.D. Ill. 1991) (same)).
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In this case the plaintiff received his right-to-sue letter
on January 8, 2010.
The plaintiff filed his IFP application and
complaint with the Pro Se Office on April 7, 2010, one day shy
of the 90-day deadline.
The plaintiff’s delivery of his IFP
request and complaint “tolled the 90-day statute of limitations
before the 90 days had run.”
Ocasio, 86 F. Supp. 2d at 375.
Thus, the subsequent decision to grant the plaintiff's IFP
application and accept his original complaint for filing
occurred within the statute of limitations period.
See id.
Moreover, a pro se plaintiff’s complaint is considered
filed as of the date it is received by the Pro Se Office.
See
Toliver v. Cnty. Of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988)
(per curiam) (“where [IFP] relief is granted, the action should
be treated as timely, provided the complaint was received by the
clerk’s office prior to the expiration of the limitations
period.”); see also Wilson v. N.Y.C. Police Dep’t, No. 09 Civ.
2632, 2011 WL 1215031, at *14 n.9 (S.D.N.Y. Feb. 4, 2011);
Jackson v. N.Y. State Dep’t of Labor, 709 F. Supp. 2d 218, 228
n.5 (S.D.N.Y. 2010) (“Where a pro se plaintiff submits her
complaint to the Pro Se Office, and the complaint is not filed
until a later date, ‘the date that [the plaintiff] filed his
complaint with the Pro Se Office . . . is the relevant date for
8
purposes of determining whether [her] claims are time-barred.’”)
(citation omitted).
Here, the plaintiff submitted his complaint
to the Pro Se Office on April 7, 2010, within the 90-day
statutory period.
Accordingly, the plaintiff’s Title VII claim
is not time barred.
IV.
The plaintiff’s claims under the New York State Human
Rights Law and New York City Human Rights Law are similarly not
time-barred.
The statute of limitations for a violation of the
New York State Human Rights Law and New York City Human Rights
Law is three years.
See Akhtab v. BCBG Max Azria Group Inc.,
No. 11 Civ. 4567, 2011 WL 4888799, at *1 (S.D.N.Y. Oct. 13,
2011) (citing N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code § 8–
502(d)).
In this case, the plaintiff alleges that the
defendant’s discriminatory practices and harassment culminated
in his termination on April 17, 2007.
The defendant therefore
had until April 17, 2010 to file his claims.
Because “a pro se
plaintiff’s complaint is ordinarily considered filed as of the
date it is received by the Pro Se Office,” Wilson, 2011 WL
1215031, at *14 n.9, and because the plaintiff filed his
9
complaint with the Pro Se Office on April 7, 2010, the claims
were timely filed.
Therefore, the New York state law claims are
not time barred. 3
V.
The final issue is whether the Bankruptcy Court
Confirmation Order and Plan and its order disallowing the
plaintiff’s claim eliminated the plaintiff’s claims against
Idearc and its successor Super Media.
“Under Section 1141 of the Bankruptcy Code, a [B]ankruptcy
[C]ourt’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,
3
The plaintiff also argues that the statute of limitations was tolled while
his claims were pending with the EEOC. Numerous courts have held that the
three-year statute of limitations “is tolled during the period in which a
complaint is filed . . . with the EEOC.” Lee v. Overseas Shipholding Group,
Inc., 00 Civ. 9682, 2001 WL 849747, at *8 (S.D.N.Y. July 30, 2001) (citing
Martinez Tolentino v. Buffalo State College, 715 N.Y.S.2d 554, 555 (App. Div.
2000); see also Wilson v. N.Y.C. Police Dept., No. 09 Civ. 2632, 2011 WL
1215735, *4 (S.D.N.Y. Mar. 25, 2011); Ritterband v. Hempstead Union Free Sch.
Dist., 06 Civ. 6628, 2008 WL 3887605, at *9 n.9 (E.D.N.Y. Aug. 20, 2008);
Siddiqi v. N.Y.C. Health & Hosp. Corp., 572 F. Supp. 2d 353, 373 (S.D.N.Y.
2008) (“The statute of limitations is tolled during the period in which a
complaint is filed with the EEOC.”). In any event, it is plain that even
without tolling the claims are not time barred.
10
the claim is disallowed, or the plan is accepted by the holder
of the claim.”
Holmes v. Air Line Pilots Ass’n, Int’l, 745 F.
Supp. 2d 176, 195-96 (E.D.N.Y. 2010) (citing 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 reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured.”
11 U.S.C. §§ 101(5)(A), (12); see also Holmes, 745 F. Supp. 2d
at 195-96.
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.
See Holmes, 745 F. Supp. 2d at 195-97; Carter v. Safety-Kleen
Corp., No. 06 Civ. 12947, 2007 WL 1180581, at *4-5 (S.D.N.Y. Mar.
14, 2007).
The Confirmation Order provided that Idearc/Super Media
“shall be discharged from all Claims and causes of action to the
fullest extent permitted by section 1141 of the Bankruptcy Code,
and all holders of Claims and Idearc Interests shall be
precluded from asserting against the . . . Reorganized Debtors,
any . . . claim or cause of action based upon any act or
omission, transaction, event, thing, or other activity of any
11
kind or nature that occurred or came into existence prior to the
Effective Date.”
30.
Confirmation Order at 30; Aron Aff. Ex. E., at
Thus, the Confirmation Order discharged and released all
debts and claims that existed before December 31, 2009, the
Effective Date of the Plan. See Holmes, 745 F. Supp. 2d at 19598; Carter, 2007 WL 1180581, at *4-5.
Accordingly, the applicability of the Confirmation Order
and the Plan to the plaintiff’s claims against Idearc/Super
Media depends on whether the plaintiff’s claims arose prior to
December 31, 2009.
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.
“Moreover, when determining whether a claim arises before or
after the date of the Bankruptcy Plan’s confirmation, courts
must look to the relevant non-bankruptcy law that serves as the
basis for the claim, namely, employment discrimination
law . . . .”
Holmes, 745 F. Supp. 2d at 196.
In employment
discrimination cases, a claim is deemed to arise “on the date
the employee learns of the employer’s discriminatory conduct.”
Id. (citing Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d
Cir. 2000)).
Because the plaintiff admits that he was
12
terminated in April 2007, and bases his claims solely on
discrimination that occurred during his employment from 2005 to
2007, his claims necessarily arose prior to the Effective Date,
December 31, 2009.
Any argument by the plaintiff that the EEOC right-to-sue
letter gave him 90 days to bring suit, regardless of the Plan
and Confirmation Order, is unavailing.
“[W]hether § 1141(d)
discharges an employment discrimination claim hinges on when the
alleged misconduct occurred, not when the EEOC issued the rightto-sue letter.”
Carter, 2007 WL 1180581, at *4 (citing
O’Loghlin v. Cnty. of Orange, 229 F.3d 871, 874-75 (9th Cir.
2000); McSherry v. TWA, Inc., 81 F.3d 739, 741 (8th Cir. 1996)).
The alleged discrimination took place between 2005 and 2007,
long before the Effective Date of the Plan and Confirmation
Order.
The EEOC right-to-sue letter could not resuscitate
claims that had already been discharged by the Bankruptcy Court.
Because the date of the issuance of a right-to-sue letter is
irrelevant to the application of § 1141(d), the plaintiff’s
Title VII claim has been discharged under the Bankruptcy Code.
Similarly, because the plaintiff’s claims under New York state
law arose prior to the Confirmation Order, those claims were
13
also discharged under the Bankruptcy Code.
The defendant’s
motion to dismiss the plaintiff’s claims is therefore granted.
In addition, although the plaintiff’s claims would be
discharged by the Confirmation Order and the Plan, “regardless
of whether ...the claim is disallowed,” 11 U.S.C. §
1141(d)(1)(A) (emphasis added), the fact that the plaintiff’s
proof of claim was rejected by the Bankruptcy Court provides
another reason that his claims are now barred in this Court.
The Bankruptcy Court ordered that the plaintiff’s claim
should be “disallowed and expunged in its entirety,” and that
“Curtis Cost shall receive no distribution from the Reorganized
Debtors’ estates on account of [his] Proof of Claim . . . ,”
Proof of Claim Denial; Aron Aff. Ex. H.
The Bankruptcy Court
order sustaining the defendant’s objections and expunging the
plaintiff’s proof of claim was a final judgment on the merits by
a court of competent jurisdiction, and is a predicate for res
judicata.
Moore v. Wiz, No. 02 Civ. 5021, 2008 WL 2357406, at
*1 (E.D.N.Y. June 4, 2008); see also EDP Med. Computer Sys. v.
United States, 480 F.3d 621, 625 (2d Cir. 2007) (allowance of an
uncontested proof of claim constitutes a final judgment as is a
predicate for res judicata.
As a consequence of the Bankruptcy
14
Court order, the plaintiff cannot relitigate the issue in this
Court.
See Moore, 2008 WL 2357406, at *1.
CONCLUSION
The Court has considered all of the arguments raised by the
parties.
To the extent not specifically addressed above, the
arguments are either moot or without merit. The defendant's
motion to dismiss the Amended Complaint is granted.
The Clerk
is directed to enter judgment dismissing the Amended Complaint.
The Clerk is also directed to close all pending motions and to
close this case.
SO ORDERED.
Dated:
New York, New York
October I, 2012
Judge
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