08-6258-cv, 09-1030-cv
Rich v. Associated Brands, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28 th day of May, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROGER J. MINER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 MICHAEL N. RICH JR.,
14
15 Plaintiff-Appellant,
16
17 -v.- 08-6258-cv,
18 09-1030-cv
19 ASSOCIATED BRANDS, INC.,
20
21 Defendant-Appellee.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 APPEARING FOR APPELLANT: Laura J. Tyson and Vanessa L.
25 Brochin (Jon Romberg, on the
26 brief), Seton Hall University
27 School of Law, Center for Social
28 Justice, Newark, NJ.
29
30 APPEARING FOR APPELLEE: Joshua Feinstein (Adam W. Perry
1 and Benjamin K. Ahlstrom, on the
2 brief), Hodgson Russ LLP,
3 Buffalo, NY.
4
5 Appeals from a judgment and an order of the United
6 States District Court for the Western District of New York
7 (Skretny, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED IN PART, VACATED IN PART, and REMANDED for further
12 proceedings.
13
14 Plaintiff-appellant Michael N. Rich, Jr., appeals from
15 a judgment and an order of the United States District Court
16 for the Western District of New York (Skretny, J.). The
17 district court granted the motion to dismiss filed by
18 defendant-appellee Associated Brands, Inc. and denied Rich’s
19 motion for reconsideration of that dismissal. We assume the
20 parties’ familiarity with the underlying facts, the
21 procedural history, and the issues presented for review.
22
23 The district court dismissed Rich’s claims as time-
24 barred, observing that the alleged discrimination occurred
25 between July 1, 2002 and July 9, 2004, and emphasizing that
26 “the last possible discriminatory act occurred on July 9,
27 2004, the day [Rich] was terminated.” Following de novo
28 review, see Woods v. Rondout Valley Cent. Sch. Dist. Bd. of
29 Educ., 466 F.3d 232, 235 (2d Cir. 2006), we conclude that
30 Rich's claims based on the alleged acts of discrimination
31 that culminated in his July 9, 2004 termination were
32 properly dismissed. 1 On one hand, if a contract exists,
33 that contract includes a release and waiver provision
1
Rich’s pro se complaint indicates that this action
was brought pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112
et seq. (the “ADA”); and the New York State Human Rights
Law, N.Y. Exec. Law §§ 290 et seq. (“NYSHRL”). Even
assuming that Rich did not forfeit any Title VII claims, his
claims do not sound in Title VII which protects against
discrimination based on an “individual’s race, color,
religion, sex, or national origin,” but not disability. See
42 U.S.C. § 2000e-2.
1 precluding Rich from raising these claims. On the other
2 hand, if no contract exists, these claims are time-barred
3 and are not saved by equitable estoppel.
4
5 Rich alleges that he timely filed a charge with the
6 United States Equal Employment Opportunity Commission (the
7 “EEOC”) in August 2004; but (i) there is no documentary
8 evidence in the record to support Rich’s bare allegation; 2
9 (ii) Rich admitted that the EEOC failed to locate any record
10 of such a charge; and (iii) even if Rich filed such a
11 charge, he admitted that he called the EEOC to “inform[]
12 them that all appears OK[], because Associated Brands is
13 paying for our health insurance and other items,” thereby
14 effectively withdrawing any such charge. This allegation
15 therefore is implausible. See Ashcroft v. Iqbal, 129 S. Ct.
16 1937, 1949 (2009) (“To survive a motion to dismiss, a
17 complaint must contain sufficient factual matter, accepted
18 as true, to ‘state a claim to relief that is plausible on
19 its face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
20 544, 570 (2007))).
21
22 Rich’s claims based on the alleged 2004 discrimination
23 therefore are time-barred unless saved by the doctrine of
24 equitable estoppel. See Kosakow v. New Rochelle Radiology
25 Assocs., 274 F.3d 706, 725 (2d Cir. 2001) (“The doctrine of
26 equitable estoppel is properly invoked where the enforcement
27 of the rights of one party would work an injustice upon the
28 other party due to the latter’s justifiable reliance upon
29 the former's words or conduct.”). Equitable “estoppel
30 arises if (i) the defendant made a definite
31 misrepresentation of fact, and had reason to believe that
32 the plaintiff would rely on it; and (ii) the plaintiff
33 reasonably relied on that misrepresentation to his
34 detriment.” Kavowras v. The New York Times Co., 328 F.3d
2
The only related document in the record is an August
26, 2004 letter addressed to Rich from the State of New York
Department of Labor noting that Rich had filed for
unemployment insurance and scheduling an orientation for him
to attend. The letter includes Rich’s handwritten notation:
“Dir. Civil Rights, US Dept Labor, 200 Constitution Ave,
Washington, DC 20210, cc: EEOC Fountain Plaza, Buffalo.”
Assuming that Rich sent a copy of this letter to the EEOC,
that action falls far short of filing the requisite EEOC
charge.
1 50, 56 (2d Cir. 2003) (internal quotation marks omitted).
2 Accepting as true that in an August 2004 telephone
3 conversation, John Mandabach assured Rich that he would
4 receive the health insurance coverage, benefits, and
5 consulting agreement that constituted the separation
6 agreement as understood by Rich, we conclude that Rich did
7 not reasonably rely on Mandabach’s oral assurance. 3 Rich
8 has conceded that even after Mandabach’s alleged August oral
9 assurance, he continued to seek a written version of the
10 separation agreement containing the terms Rich demanded.
11 These requests demonstrate an absence of reliance.
12 Moreover, Associated Brands’s refusal to provide such a
13 document demonstrates that any such reliance was
14 unreasonable. 4 Accordingly, we affirm the dismissal of
15 Rich’s claims based on the alleged 2004 acts of
16 discrimination. These claims either were released under the
17 purported contract or are time-barred in the absence of such
18 a contract.
19
20 However, we largely vacate the dismissal of Rich’s
3
We also conclude that Rich did not reasonably rely on
Mandabach’s alleged oral assurance given at the July 6, 2004
meeting. After that meeting, Rich reviewed and rejected two
iterations of the separation agreement provided by
Associated Brands, both of which contained content contrary
to Mandabach’s alleged July oral assurance. We further
conclude that Rich did not reasonably rely on Associated
Brands’s inaction following Rich’s response to the final
written version of the separation agreement provided by
Associated Brands, in which Rich stated that if his
modifications did “not comport with your understanding of
our Agreement you must notify me within 3 days of this
memo.” Rich’s response also required Associated Brands to
undertake certain affirmative actions within that same
three-day window, and there is no indication that Associated
Brands undertook any such actions.
4
Any state law claim of promissory estoppel also fails
for lack of reasonable reliance. See Reprosystem, B.V. v.
SCM Corp., 727 F.2d 257, 264 (2d Cir. 1984) (explaining that
under New York law, a promissory estoppel claim requires the
complainant to allege, inter alia, “a reasonable and
foreseeable reliance by the party to whom the promise is
made”).
1 remaining claims. Construed liberally, Rich's complaint
2 states a claim for the discriminatory failure to hire him in
3 2007, after he informed Associated Brands personnel that he
4 “would consider any jobs” that he was capable of performing
5 within his “limitations.” 5 The district court determined
6 that all of Rich’s claims were untimely, reasoning that “the
7 last possible discriminatory act occurred on July 9, 2004,
8 the day [Rich] was terminated.” This reasoning indicates
9 that the district court did not consider any claim arising
10 out of Associated Brands’s actions in 2007. Accordingly, we
11 vacate the district court’s dismissal of Rich’s claim of
12 discriminatory failure to hire in 2007 and remand to the
13 district court to consider this claim in the first instance.
14
15 Associated Brands contends that remand is unnecessary
16 because Rich’s claim is untimely under Delaware State
17 College v. Ricks, 449 U.S. 250 (1980). Such reliance is
18 misplaced. Ricks and its progeny require “explicit notice”
19 of the future consequences of a discriminatory act on the
20 date of the act. Id. at 258 (“[T]he only alleged
21 discrimination occurred--and the filing limitations periods
22 therefore commenced--at the time the tenure decision was
23 made and communicated to Ricks. That is so even though one
24 of the effects of the denial of tenure--the eventual loss of
25 a teaching position--did not occur until later.”); see also
26 Smith v. United Parcel Serv. of Am., 65 F.3d 266, 268 (2d
27 Cir. 1995) (“[T]he limitation period begins to run on the
5
On appeal, Rich construes his complaint as asserting
two additional claims arising out of Associated Brands’s
2007 conduct. First, Rich argues that Associated Brands,
driven by discrimination, breached the contract. This claim
is implausible because it is undisputed that Associated
Brands provided health insurance coverage from the date of
Rich’s termination in July 2004 through August 2007, a
three-year interval in which Rich’s disability existed and
was known to Associated Brands. Second, Rich argues that
Associated Brands, driven by retaliatory animus, breached
the contract. This claim is implausible because Rich failed
to allege that he undertook any action--such as complaining
about discrimination to Associated Brands personnel or
threatening to file a discrimination lawsuit--after summer
2004 that would have prompted Associated Brands to retaliate
against Rich in 2007, after providing health insurance
coverage for three years.
1 date when the employee receives a definite notice of the
2 termination. Moreover, for the notice to be effective, it
3 must be made apparent to the employee that the notice states
4 the official position of the employer.” (internal quotation
5 marks and citation omitted)). The record indicates that at
6 the time of his termination, Rich did not receive definite
7 notice that the official position of Associated Brands was
8 that Rich would not be rehired at any time in the future.
9 Moreover, Rich timely filed an EEOC charge in September
10 2007--within 300 days of the failure to hire in August 2007
11 --and timely commenced this lawsuit in September 2008--
12 within 90 days of receiving his June 27, 2008 right-to-sue
13 letter. It may well be that Associated Brands has a
14 legitimate, non-discriminatory reason for allegedly failing
15 to hire Rich in 2007 or that the purported contract bears on
16 this claim; but we vacate the dismissal of the claim
17 alleging discriminatory failure to hire in 2007, and remand
18 for further consideration of these issues.
19
20 Construed liberally, Rich’s complaint also states a
21 claim under New York state law for breach of contract. The
22 district court may have implicitly declined to exercise its
23 supplemental jurisdiction to consider this claim in light of
24 its dismissal of all federal law claims, but as set forth
25 above, we are remanding this case for consideration of a
26 federal law claim. Accordingly, we vacate the dismissal of
27 Rich's state law breach of contract claim and remand for
28 further consideration of this claim and the possibility of
29 diversity jurisdiction.
30
31 We hereby AFFIRM the district court’s dismissal of
32 Rich’s claims based on the alleged acts of discrimination
33 that culminated in his July 9, 2004 termination. However,
34 we hereby VACATE and REMAND for further consideration of
35 Rich’s ADA and NYSHRL claim based on the discriminatory
36 failure to hire Rich in 2007 and the state law claim of
37 breach of contract.
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41