08-6258-cv, 09-1030-cv

Rich v. Associated Brands, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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 day of May, two thousand ten. th

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
 Rich’s pro se complaint indicates that this action 1

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 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 time24 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. On one hand, if a contract exists, 1

33 that contract includes a release and waiver provision
 The only related document in the record is an August 2

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 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
 We also conclude that Rich did not reasonably rely on 3

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. 

 Any state law claim of promissory estoppel also fails 4

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 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. Rich 3

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. Accordingly, we affirm the dismissal of 4

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
 On appeal, Rich construes his complaint as asserting 5

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 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.” The district court determined 5

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
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