     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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 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
