KATHERINE B. FORREST, District Judge

MEMORANDUM OPINION & ORDER

:

Plaintiff, Welton Goodwin, Jr. ("plaintiff"), brought this action against Solil Management LLC ("Solil"), The Lillian Goldman Family LLC ("Goldman"), Local 32 BJ/SEIU ("Local 32BJ") and Building Service 32BJ Benefit Funds asserting, inter alia, claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of 1967 (the "ADEA"), the Americans with Disabilities Act of 1990 (the "ADA"), the New York State Human Rights Law (the "NYSHRL") and the New York City Human Rights Law (the "NYCHRL").

Defendants Solil and Goldman (the "moving defendants") have moved to dismiss the federal law claims asserted against them for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and have moved to dismiss the state and city law claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

Because the moving defendants answered the second amended complaint (Dkt No. 19), this Court construes its motion to dismiss as one for judgment on the pleadings under Rule 12(c). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Nonetheless, for the reasons set forth below, this Court (1) converts defendants' motion for judgment on the pleadings based on plaintiff's failure to state a claim to a motion for summary judgment and DISMISSES plaintiff's federal employment law claims and (2) grants the motion for judgment on the pleadings based on lack of subject matter jurisdiction and DISMISSES the state and city employment law claims. BACKGROUND

Here, the Court sets forth only those facts relevant to a determination of this motion. Plaintiff alleges that he was discriminated against by the moving defendants on the basis of his race, age and a disability when he was treated differently and terminated from his job as a live-in superintendent of a residential building in New York City. Plaintiff also claims that his former employer, Solil, failed to accommodate his disability, which plaintiff alleges stems from a physical injury to his neck. Defendant Goldman appears to be the owner of the building in which plaintiff worked. (Pl.'s Affirmation in Opp. ¶ A (Dkt No. 44).)

Prior to this lawsuit, plaintiff filed two administrative complaints against Solil asserting claims under the NYSHRL and the ADA with the New York State Division of Human Rights (the "DHR")--each time plaintiff authorized the DHR to accept his complaint on behalf of the Equal Employment Opportunity Commission (the "EEOC") as to the ADA claims. The first complaint was filed on August 22, 2005. (Sanchez Decl. Ex. 1.) In plaintiff's first administrative complaint, he alleged, inter alia, that Solil discriminated against him because it would not hire a handyman to help him perform his duties. (Id.) The DHR found that there was insufficient evidence that plaintiff was discriminated against due to his disability. (Id. Ex. 2.) The EEOC thereafter adopted the DHR's findings with regard to the ADA claim and mailed plaintiff a right-to-sue letter on March 15, 2006. (Id. Ex. 3.)

On March 1, 2007, plaintiff filed a second administrative complaint with the DHR, again asserting, inter alia, that in failing to hire a handyman to assist him, Solil had discriminated against plaintiff on the basis of his physical disability. (Id. Ex. 4.) The DHR found no probable cause for plaintiff's claim as to the state law claim (id. Ex. 5) and the EEOC adopted the DHR's findings as to the ADA claim (id. Ex. 6). The EEOC mailed plaintiff a right-to-sue letter on November 6, 2007. (Id. Ex. 6.)

In his original complaint filed in this action on July 21, 2010, plaintiff states that his claims here are based on the discriminatory conduct asserted in his second administrative action. (Compl. at 4.) DISCUSSION

Defendants Solil and Goldman have moved to dismiss the second amended complaint against them on two bases: (1) that plaintiff's federal employment discrimination claims are untimely and he therefore cannot state a claim upon which relief may be granted and (2) that, because plaintiff chose to file claims with the DHR, this Court lacks subject matter jurisdiction to adjudicate the state and city law claims.

I. Federal Employment Law Claims

A. Conversion to Summary Judgment

As to the first basis, the Court, construing plaintiff's claim as a motion for judgment on the pleadings, converts it to one for summary judgment. "If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (quoting Fed. R. Civ. P. 12(d)). When a motion for judgment on the pleadings is converted to one for summary judgment, a "non-moving party who is proceeding pro se must be advised that all assertions of material fact in the defendants' affidavits and other papers in support of their motion will be taken as true unless the pro se litigant contradicts those factual assertions in one or more affidavits made on personal knowledge containing facts that would be admissible in evidence, or by submitting other materials as provided in Rule 56(e) of the Federal Rules of Civil Procedure." Scheckells v. Goord, 423 F. Supp. 2d 342, 345 (S.D.N.Y. 2006).

Here, the moving defendants have submitted a declaration attaching documents pertinent to plaintiff's administrative complaints. (See Sanchez Decl.) In accordance with Local Civil Rule 12.1, the moving defendants served on plaintiff a Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings, which sufficiently warned plaintiff that this motion could be treated as one for summary judgment and that he must submit evidence countering the facts asserted by defendants, not solely rely on the allegations in his complaint. (See Aff. of Service (Dkt No. 38).) In response to the moving defendants' motion, plaintiff did in fact submit materials outside the pleadings. (See Pl.'s Affirmation in Opp.) Thus, the Court may properly convert the moving defendants' motion for judgment on the pleadings to a motion for summary judgment as to the federal employment law claims.

Summary judgment is appropriate when there is no genuine issue of material fact in dispute. Fed. R. Civ. P. 56. In reviewing a motion for summary judgment, this Court must construe the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in his favor. Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986)).

In reviewing a motion for summary judgment involving a nonmoving, pro se plaintiff, this Court "liberally construe[s] [the] pleadings and briefs submitted by [the] pro se litigant[]," "reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quotation marks omitted). However, even pro se plaintiffs must offer some evidence that would defeat a motion for summary judgment. Saldana v. Local 32B-32J Serv. Emps. Int'l Union, No. 03 Civ. 1853, 2005 U.S. Dist. LEXIS 464, at *4 (S.D.N.Y. 2005) ("Even a pro se plaintiff [] cannot withstand a motion for summary judgment by relying merely on the allegations of a complaint.").

B. Solil

Plaintiff here asserts claims under Title VII, the ADEA and the ADA. Before commencing a lawsuit in federal court under these statutes, a plaintiff must first exhaust his or her administrative remedies--i.e., timely file a charge with the EEOC. See McPherson v. New York City Dep't of Educ., 457 F.3d 211, 213 (2d Cir. 2006) ("Under Title VII and the ADEA, a plaintiff can sue in federal court only after filing timely charges with the EEOC."); Hoffman v. Williamsville Sch. Dist., 443 F. App'x 647, 649 (2d Cir. 2011) ("As with Title VII claims, plaintiffs asserting ADA claims must exhaust all administrative remedies and must file an EEOC charge within 300 days of the alleged discriminatory conduct if they have instituted proceedings with a state or local agency." (citations omitted)) (summary order). In addition, a plaintiff must commence his or her action within ninety days of receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (Title VII and the ADA); 29 U.S.C. § 626(e)(1) (the ADEA).

Plaintiff filed complaints against Solil, asserting, inter alia, claims under the ADA, with the DHR on August 22, 2005, and March 2, 2007, and authorized the DHR to accept the complaints on behalf of the EEOC. (Sanchez Decl. Exs. 1, 2, 4, 5; Pl.'s Affirmation in Opp. ¶ A.) The EEOC mailed plaintiff right-to-sue letters related to his complaints on March 15, 2006, and November 6, 2007. (Sanchez Decl. Exs. 3, 6.) Plaintiff states in his original complaint that this action regards discriminatory conduct alleged in his March 2, 2007, complaint, but that he did not receive a right-to-sue letter from the EEOC. (Compl. at 3-4.)

"Normally it is assumed that a mailed document is received three days after its mailing . . . . And normally it may be assumed, in the absence of challenge, that a notice provided by a government agency has been mailed on the date shown on the notice." Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996). "If a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption is dispositive." Id. However, "[t]he mere denial of receipt does not rebut that presumption." Isaacson v. New York Organ Donor Network, 405 F. App'x 552, 553 (2d Cir. 2011) (summary order) (quoting Meckel v. Cont'l Rest. Co, 758 F.2d 811, 817 (2d Cir. 1985)).

Plaintiff here provides no support to rebut the presumption that he received a right-to-sue letter with regard to his March 2, 2007, complaint on November 9, 2007. This court therefore accepts as an undisputed fact that he did. Accordingly, plaintiff's ADA claim is time barred, as this action was commenced beyond the ninety-day period after he received his right-to-sue letter. Plaintiff's ADA claim is DISMISSED with prejudice.

Plaintiff did not assert claims under Title VII and the ADEA in the March 2, 2007, complaint filed with the EEOC or make mention of any discrimination that could be construed as being race or age-based. (Sanchez Decl. Ex. 4.) Having failed to exhaust administrative remedies with regard to these claims, they are DISMISSED. See e.g., Morales v. City of New York Dep't of Juvenile Justice, No. 10 Civ. 829, 2012 WL 180879, at *3 (S.D.N.Y. Jan. 23, 2012) ("Exhaustion of administrative remedies-by filing an administrative complaint with an entity like the NYSDHR-is a requirement under Title VII, the ADA, and the ADEA, and claims that were not raised in the administrative proceeding, or are not 'reasonably related' to claims that were raised in the administrative proceeding, are barred, and should be dismissed on a motion pursuant to Rule 12 of the Federal Rules of Civil Procedure.") The dismissal is with prejudice because permitting plaintiff to file a new administrative charge would be futile: plaintiff must have filed his administrative complaint within 300 days of the conduct at issue (42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1) (the ADEA)), the 300 days have long passed and the Court sees no reason to toll that period.

C. Goldman

Plaintiff did not name Goldman in his administrative complaint. As a result, his federal employment law claims as to this defendant may be dismissed for two alternative reasons. First, it may be dismissed for failure to exhaust administrative remedies. Second, if Goldman falls within the recognized exception for defendants who were not named in administrative complaints--i.e., a party not named in an administrative action may still be sued in a subsequent, related civil action if they share an "identity of interests" with a party that was named (here, Solil)--then these claims would be time barred for the same reasons that the federal employment discrimination claims against Solil are time barred. Sullivan v. City of New York, No. 08 Civ. 7294, 2011 WL 1239755, at *2 (S.D.N.Y. Mar. 25, 2011) ("A party that was not named in the EEOC charge may not be named in a subsequent civil suit unless there is substantial identity between a party named in the EEOC charged and the newly-named defendant, and the defendant sought to be sued had notice of the EEOC proceeding.") Either way, plaintiff's federal employment claims against Goldman are DISMISSED with prejudice.

II. City and State Employment Law Claims

The Court does not need to convert the motion for judgment on the pleadings as to the city and state law claims to a motion for summary judgment because the moving defendants move against these claims on the basis of lack of subject matter jurisdiction and the Court can therefore look beyond the pleadings even without conversion. See Bldg. and Constr. Trades Council of Buffalo, New York and Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 150 (2d Cir. 2006). See also United States ex rel. Phipps v. Comprehensive Cmty. Dev. Corp, 152 F. Supp. 2d 443, 449 n.2 (S.D.N.Y. 2001) ("Because the Court, in deciding a Rule 12(b)(1) motion, may consider materials outside the pleadings, such as affidavits and documents, it is not necessary to treat the Moving Defendants' Rule 12(c) motion as a motion for summary judgment in order to consider materials outside the pleadings.").

"Where a Rule 12(c) motion asserts that a court lacks subject matter jurisdiction, the motion is governed by the same standard that applies to a Rule 12(b)(1) motion." Xu v. City of New York, No. 08 Civ. 11339, 2010 WL 3060815, at *2 (S.D.N.Y. Aug. 3, 2010). "A party invoking federal jurisdiction must allege in its pleading the facts essential to show jurisdiction[] and must support those facts by competent proof." Phipps, 152 F. Supp. at 449. "The plaintiff has the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence." Id.

Because plaintiff first chose to file a complaint--regarding the same discriminatory conduct alleged here--with the DHR and the complaint was decided on the merits, election-of-remedies provisions in both the NYSHRL and the NYCHRL bar plaintiff from now bringing a lawsuit in federal court. See N.Y. Exec. L. § 297(9); N.Y.C. Admin. Code § 8-502(a). The fact that plaintiff did not name Goldman in his administrative complaint is of no matter--the Court looks at whether "the present claims are based on the same facts as the claims raised in the administrative complaint." Lyman v. City of New York, No. 96 Civ. 2382, 1997 WL 473976, at *4 (S.D.N.Y. Aug. 20, 1997) ("The facts that [a defendant] was not named in the [administrative] complaint and that the complaint before this Court includes factual allegations not included in the [administrative] complaint do not change this result.") Here, they undoubtedly are. (See Compl. at 4; Pl.'s Affirmation in Opp. ¶ B ("Yes the defendants are right. I did file this Complaint with the EEOC, DHR [] and more.") This Court therefore lacks subject matter jurisdiction to adjudicate these claims and they are DISMISSED with prejudice. CONCLUSION

For the foregoing reasons, the moving defendants' motion for judgment on the pleadings as to the federal employment law claims, converted to a motion for summary judgment, and motion for judgment on the pleadings as to the state and city employment law claims, are GRANTED. The Clerk of the Court is directed to terminate the motions at Docket Nos. 36 and 40.

The Clerk of the Court is also directed to terminate defendants Solil Management LLC and The Lillian Goldman Family LLC from this action and mail this decision to Welton Goodwin, 1189 Kingville Road, Gadsen, South Carolina 29052. SO ORDERED. Dated: New York, New York

May 22, 2012

/s/_________

KATHERINE B. FORREST

United States District Judge