    09-0064-cv
    Mazurkiewicz v. New York City Health and Hospitals Corp.



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES
A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A
PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS
THE SUM M ARY O RDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY ACCESSIBLE
W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/).
IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE
CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN
W HICH THE ORDER W AS ENTERED.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 16th day of December, two thousand nine.

    PRESENT:
                WILFRED FEINBERG,
                JOHN M. WALKER, JR.,
                ROBERT A. KATZMANN,
                      Circuit Judges.
    _______________________________________________

    Dariusz Wojciech Mazurkiewicz,

                          Plaintiff-Appellant,

                   v.
                                                                        09-0064-cv
    New York City Health and Hospitals Corp., et al.,

                      Defendants-Appellees.
    _______________________________________

    FOR PLAINTIFF-APPELLANT:                     Dariusz Wojciech Mazurkiewicz, pro se,
                                                 Woodhaven, NY

    FOR DEFENDANTS-APPELLEES:                    Deborah A. Brenner, Senior Counsel, for Michael
                                                 A. Cardozo, Corporation Counsel of the City of
                                                 New York, New York, NY
Appeal from the United States District Court for the Southern District of New York (McMahon,
J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of said District Court be and hereby is AFFIRMED.

       Appellant Dariusz Wojciech Mazurkiewicz appeals from the district court’s judgment

granting the defendants’ motion for judgment on the pleadings and dismissing his employment

discrimination complaint. We assume the parties’ familiarity with the facts, proceedings below,

and specification of issues on appeal.

       We find that the district court should have converted the defendants’ motion for judgment

on the pleadings to a motion for summary judgment, pursuant to Rule 12(d) of the Federal Rules

of Civil Procedure, since a decision on the motion required the district court to consider facts and

arguments that were outside of the pleadings. However, this error was harmless, since the

Appellant was aware of the proposed basis for dismissal, understood how to respond to the

defendants’ arguments, and did, in fact present a full and coherent response. See Reliance Ins.

Co. v. Polyvision Corp., 474 F.3d 54, 57 (2d Cir. 2007). Thus, we analyze this matter under Rule

56.

       This Court reviews an order granting summary judgment de novo and asks whether the

district court properly concluded that there were no genuine issues of material fact and that the

moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson,

L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine issues of

material fact, this Court is “required to resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft,

336 F.3d 128, 137 (2d Cir. 2003) (quotation marks omitted). However, “conclusory statements


                                                 2
or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. State of

New York, 316 F.3d 93, 100 (2d Cir. 2002).

        For a Title VII claim arising in New York to be timely, a plaintiff must file the charge

with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the

allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e); Quinn v. Green Tree

Credit Corp, 159 F.3d 759, 765 (2d Cir. 1998). Title VII’s time limits for filing with the EEOC

are not jurisdictional, but, like statutes of limitations, are subject to “waiver, estoppel, and

equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Equitable

tolling is generally “appropriate only where the defendant has actively misled the plaintiff

respecting the cause of action, or where the plaintiff has in some extraordinary way been

prevented from asserting his rights, or has raised the precise statutory claim in issue but has

mistakenly done so in the wrong forum.” Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109

(2d Cir. 1978).

        It is undisputed that Mazurkiewicz failed to timely file a charge with the EEOC.

Moreover, his claim that he was not adequately informed about the need to do so is not sufficient

to permit equitable tolling. See Smith, 571 F.2d at 111 (“[The plaintiff’s] claim that he had no

knowledge of the EEOC because of appellees’ failure to post notices . . . does not in our view

allege misleading, fraudulent or deceptive conduct by the appellees sufficient to permit tolling

here.”). Thus, the district court properly dismissed Mazurkiewicz’s Title VII claims on the

ground that they were not timely filed with the EEOC.

        An employee may waive claims of discrimination so long as the waiver is made

“knowingly and voluntarily.” See Tung v. Texaco, Inc., 150 F.3d 206, 208 (2d Cir. 1998)



                                                   3
(reviewing waiver of Title VII claims). In making such a determination, this Court has adopted a

“totality of the circumstances” approach, considering factors such as:

          (1) the Plaintiff’s education and business experience; (2) the amount of time Plaintiff
          had possession of or access to the agreement before signing it; (3) the role of the
          Plaintiff in deciding the terms of the agreement; (4) the clarity of the agreement; (5)
          whether the Plaintiff was represented by or consulted with an attorney; and (6)
          whether the consideration given, in exchange for the waiver of claims, exceeds
          employee benefits to which the employee was already entitled by law.

Id. (citing with approval the district court’s reliance on these factors). In addition, in order to

establish the defense of economic duress, a plaintiff must prove that there was “(1) a threat, (2)

which was unlawfully made, and (3) caused involuntary acceptance of contract terms, (4)

because the circumstances permitted no other alternative.” Kamerman v. Steinberg, 891 F.2d

424, 431 (2d Cir. 1989) (citation omitted).

          Mazurkiewicz has failed to establish economic duress as a defense to the waiver of any

claims arising out of his termination because he did not allege the requisite threat. As to the

validity of the waiver generally, the length of time that Mazurkiewicz had to review the

agreement, the clarity of the agreement, and the fact that Mazurkiewicz was assisted by counsel,

all indicate that the waiver was executed knowingly and voluntarily. Thus, the district court

correctly concluded that Mazurkiewicz waived all claims arising out of his February 2005

termination.

          We have considered all of Mazurkiewicz’s remaining arguments and have found them to

be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk

                                                        By:_______________________


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