Opinion
Civil Action No. 06-CV-05349.
September 5, 2007
HADLEY PERKINS ROELTGEN, ESQUIRE, On behalf of Plaintiff.
MICHAEL J. OSSIP, ESQUIRE and SARAH ELISE PONTOSKI, ESQUIRE, On behalf of Defendant.
ORDER
NOW, this 31st day of August, 2007, upon consideration of Defendant Merck Co., Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint, which motion was filed on January 30, 2007; upon consideration of the Answer in Opposition to Dismiss Plaintiff's Second Amended Complaint filed by Defendant Merck Co., which answer was filed on March 2, 2007 by plaintiff; upon consideration of the Reply Brief of Defendant Merck Co., Inc. in Further Support of Its Motion to Dismiss Plaintiff's Second Amended Complaint or Strike Certain Allegations in the Second Amended Complaint, which reply was filed on March 16, 2007; upon consideration of the Sur-Reply in Opposition to Motion to Dismiss Plaintiff's Second Amended Complaint Filed by Defendant Merck Co., which sur-reply was filed on March 23, 2007 by plaintiff; upon consideration of plaintiff's Second Amended Complaint, filed on December 6, 2006; and for the reasons expressed in the accompanying Memorandum, IT IS ORDERED that Defendant Merck Co., Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint is denied.
IT IS FURTHER ORDERED that defendant shall have until September 20, 2007 to file an answer to plaintiff's Second Amended Complaint.
MEMORANDUM
This matter is before the court on a motion to dismiss plaintiff's Second Amended Complaint. Specifically, on January 30, 2007, defendant filed Defendant Merck Co., Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint. In response, on March 2, 2007, plaintiff filed his Answer in Opposition to Dismiss Plaintiff's Second Amended Complaint filed by Defendant Merck Co. On March 16, 2007, defendant filed a reply titled Reply Brief of Defendant Merck Co., Inc. in Further Support of Its Motion to Dismiss Plaintiff's Second Amended Complaint or Strike Certain Allegations in the Second Amended Complaint. Plaintiff filed a sur-reply, on March 23, 2007, titled Sur-Reply in Opposition to Motion to Dismiss Plaintiff's Second Amended Complaint Filed by Defendant Merck Co.
Contrary to the assertion in the title of defendant's reply brief, defendant's motion to dismiss did not contain any request to strike any portion of plaintiff's Second Amended Complaint. The defendant's memorandum in support of its motion to dismiss and defendant's proposed order also failed to request any such relief. Moreover, defendant did not cite authority governing the standard of review on a motion to strike. Because defendant failed to raise this issue before it filed its reply brief, I consider the issue improperly raised. Therefore, I do not consider defendant's request to strike any portion of plaintiff's Second Amended Complaint.
Moreover, were I to consider defendant's request on the merits, I would be unable to grant the relief that defendant seeks. Specifically, a request to strike a portion of a pleading — made pursuant to Federal Rule of Civil Procedure 12(f) — must state what particular prejudice the movant would suffer if the allegation were not stricken. McAndrews Law Offices v. School District of Philadelphia, 2007 U.S.Dist. LEXIS 9888, *9 (February 9, 2007) (Green, J.). Further, motions to strike should only be sparingly granted. Johnson v. Anhorn, 334 F.Supp.2d 802, 809 (E.D.Pa. 2004) (Brody, J.) (internal quotations omitted).
Defendant has not articulated any particularized prejudice that it would suffer, were plaintiff's allegations to remain in his Second Amended Complaint. Therefore, were I to consider the merits of defendant's request to strike, I would deny the request.
For the reasons expressed below, I agree with plaintiff and deny, in its entirety, defendant's motion to dismiss plaintiff's Second Amended Complaint.
JURISDICTION
Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.
VENUE
Venue is proper in the United States District Court for the Eastern District of Pennsylvania because the defendant resides within this judicial district and because a substantial number of the events and omissions giving rise plaintiffs' claims allegedly occurred within this district, West Point, Montgomery County, Pennsylvania. See 28 U.S.C. §§ 118, 1391(b).SECOND AMENDED COMPLAINT
Plaintiff's Second Amended Complaint contains one count and alleges two causes of action. The first cause of action is for violations of the Civil Rights Act of 1866. 42 U.S.C. § 1981. The second cause of action is for violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-e17.
A brief summary of the factual allegations in plaintiff's Second Amended Complaint are as follows. Plaintiff is African American, and he commenced employment at defendant Merck on November 13, 1989. During plaintiff's course of employment, defendant subjected plaintiff to a "continuous and pervasive pattern and practice of racial discrimination . . ." that was hostile to African-American employees. The portion of plaintiff's Second Amended Complaint with which defendant takes issue is set forth in the following footnote.
In paragraph 9 of plaintiff's Second Amended Complaint, he avers that his experiences included:
a. In 1997, while working in Department 101, Washington received inadequate training and was not permitted to apply two months of work in the department towards the six months of training required for advancement. White employees were allowed to apply that time towards advancement.
b. In December 1998, during a six month training program in Department 292, Washington again received inadequate training. He spent three of the six months in question working as a granulator, not as a trainee, but he was only paid as a trainee. This pay discrepancy was in direct violation of seniority rules.
c. In January 1999, Washington discovered a noose, constructed like those used in lynchings, hanging from the ceiling in Building 69. The man responsible for this overt act of racial discrimination, Ken Gouak, was suspended rather than being terminated. Washington was required to seek therapy as a result of the shock of encountering the noose.
d. Effective on or about April 1, 1999, Departments 292 and 294 were restructured and employees were evaluated for placement into jobs. The effect of this "restructuring" was the segregation of jobs by race. Black employees were assigned "bull work" in "Glenn rooms," while the White employees were assigned coating or "glatt" jobs, were less physically demanding and paid more than the jobs given to the Black employees. Moreover, Black employees were encouraged to apply for "glatt" jobs because they were represented to be the "future" granulating. Within a few months after the re-structuring [sic], however, Black "glatt" employees were left to do janitorial work.
e. In August 2000, Washington was disciplined for returning too slowly from the restroom. Whites were not disciplined for similar behavior.
f. While working as a filler trainer in Department 115, Washington was denied credit for time spent training other employees. Rather, Carol Iannetta, a White Female, was falsely credited with the training time.
g. On September 10, 2002, Washington was approved to leave two hours early. When he began to leave, his supervisor, Raymond Fitch, blocked his exit, screamed at him, and repeatedly threatened to fire him. Fitch was upset because Washington's relief person, Jeff Houser, was late. The next day, rather than disciplining Houser, Fitch issued Washington a verbal warning for absenteeism. Merck upheld the discipline, despite the fact that Washington had received approval for his departure.
h. On more than one occasion, Washington was threatened with indefinite suspension unless he agreed to abandon certain grievances that he filed throughout the course of his employment at Merck.
i. On or about May 16, 1997, five cars parked in a parking lot at Merck's West Point facility were defaced with white pieces of paper that advertised a Ku Klux Klan meeting to address the topic of "ethnic cleansing at Merck." Two of the five cars were owned by black employees. Merck Human Resources told LaRhonda Sallad to 'keep [her] mouth shut' about this incident.
PROCEDURAL HISTORY
The procedural history leading up to plaintiff's filing of his Second Amended Complaint is as follows. On December 1, 1998, plaintiff filed his Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"). The Charge levied the following allegations: In the "Date Discrimination Took Place" section of the Charge, plaintiff asserted that the discrimination is a "continuing action" and that the dates of the discrimination were from November 20, 1997 until the latest discrimination October 23, 1998.In the section of the Charge which allows a complainant to assert specific allegations, plaintiff asserted the following: In late June 1996, plaintiff filed an internal formal grievance with Merck against the Production Head of Compressing, manager Marty Kuhn. Mr. Kuhn alleged denied plaintiff adequate training and excessively disciplined plaintiff because of plaintiff's race. The Charge also alleged that Merck took no remedial action.
In and around the middle of November of 1997, Mr. Kuhn suspended plaintiff for three days without pay for "allegedly violating the work rules." After the suspension in late November 1997, plaintiff transferred from the Compressing Department to the Lab Services Department. Plaintiff's job transfer resulted in a pay cut. Then in the early part of May 1998, plaintiff transferred to the Granulation Department. In or about late September 1998, Mr. Kuhn transferred to the Granulation Department.
On or about October 23, 1998, Mr. Kuhn intimidated and harassed plaintiff by "brush[ing] up against [him] in the presence of [his] immediate supervisor, Denise Powell." Plaintiff reported the October 23 incident to Jose Garcia in the Human Resources Department, but Merck did not take remedial action. Plaintiff also alleged in his Charge that Merck's actions and omissions created an intolerable working atmosphere.
Plaintiff and other employees, who were members of a minority, filed suit in the United States District Court for the Eastern District of Pennsylvania on January 27, 1999. That action is civil action number 99-00143. The suit alleged that Merck created a hostile working environment for African-American employees in violation of Title VII and § 1981. In particular, the Complaint alleges that plaintiff Washington was improperly suspended for three days in 1997 and alleges the October 23, 1998 harassment episode. On March 19, 1999, plaintiff received his right-to-sue letter from the EEOC.
Complaint at paragraph 41.
Then on September 12, 2000, the plaintiffs in civil action 99-00143 filed their Amended Complaint. The Amended Complaint alleged that Merck created and perpetuated the hostile working environment claim and claim pursuant to § 1981. Additionally, the Amended Complaint contained the same Washington-specific allegations.
Amended Complaint at paragraph 44.
Plaintiffs moved for class certification, but class certification was denied on April 2, 2002. Plaintiffs were then placed on a discovery time line which ended on October 15, 2006. After discovery concluded, on November 9, 2006, the court ordered that plaintiff Washington's claims be severed from the case and that plaintiff file a second amended complaint, which would commence a separate action.
Pursuant to the November 9, 2006 Order, on December 6, 2006, plaintiff filed his Second Amended Complaint.
STANDARD OF REVIEW
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted". A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).Ordinarily, a court's review of a motion to dismiss is limited to the contents of the complaint, including any attached exhibits. See Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). However, evidence beyond a complaint which the court may consider in deciding a 12(b)(6) motion to dismiss includes public records (including court files, orders, records and letters of official actions or decisions of government agencies and administrative bodies), documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, n. 1 and n. 2 (3d Cir. 1995).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2). That rule requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, ___ U.S. at ___, 127 S.Ct. at 1964, 167 L.Ed.2d at 940.
Additionally, in determining the sufficiency of a complaint, the court must accept as true all well-pled factual allegations and draw all reasonable inferences therefrom in the light most favorable to the non-moving party. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Nevertheless, a court need not credit "bald assertions" or "legal conclusions" when deciding a motion to dismiss. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-1430 (3d Cir. 1997).
In considering whether the complaint survives a motion to dismiss, both the District Court and the Court of Appeals review whether it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, ___ U.S. at ___, 127 S.Ct. at 1969, 167 L.Ed.2d at 944 (quoting Car Carriers, Inc. v. Ford Motor Company, 745 F.2d 1101, 1106 (7th Cir. 1984) (emphasis in original).
DISCUSSION
Defendant moves to dismiss plaintiff's claims in his Second Amended Complaint. Defendant argues that plaintiff's Title VII claim should be dismissed because plaintiff failed to exhaust his administrative remedies. More specifically, defendant asserts that plaintiff's allegations are not in his Charge and that seven of those nine allegations are discrete acts which require that each be asserted in a Charge. The other two allegations (the noose incident and the Ku Klux Klan ("KKK") fliers) were not included in the Charge and are untimely. The defendant also asserts that the doctrine of laches bars plaintiff's claims and that plaintiff violated the "spirit" of the November 9, 2006 Order because plaintiff exceeded the scope of a proper amendment.
In addition, defendant also argues that plaintiff's claims are barred by the statute of limitations and do not relate back to the filing of the original Complaint because they do not meet the requirement of Fed.R.Civ.P. 15(c) for relation back.
Plaintiff responds that he is not pursuing a discrete acts claim. Instead of a discrete acts claim, plaintiff asserts that he is pursuing a hostile work-environment claim, which does not require the filing or amending of an EEOC Charge provided that the claims are part and parcel of the same claim. Plaintiff also asserts the doctrine of laches does not bar his claims because he has been diligently pursuing his claims in this seven-year litigation.
Further, plaintiff argues that he has not violated the spirit of the November 9, 2006 Order because he has not changed his claims — a hostile work-environment claim and § 1981 claim. Moreover, plaintiff argues that his amendments relate back because they are part of the same claims but are only additional factual allegations.
Exhaustion of Administrative Remedies
In Pennsylvania, Title VII claims brought pursuant 42 U.S.C. § 2000e require the filing of a charge of discrimination with the EEOC within 300 days of the unlawful employment practice or else plaintiff's claims may be barred. Colgan v. Fisher Scientific Company, 935 F.2d 1407, 1414 (3d Cir. 1991). Additionally, "[d]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106, 122 (2002). Moreover, "[e]ach discriminatory act starts a new clock for filing charges alleging that act." Id.
In contrast to a discrete-acts claim, "[a] hostile work environment claim is comprised of a series of separate acts that collectively constitute one 'unlawful employment practice.'"Morgan, 536 U.S. at 117, 122 S.Ct. at 2074, 153 L.Ed. at 124 (quoting 42 U.S.C. §§ 2000e- 5(e)(1)). Further, a hostile work-environment claim requires only that "an act contributing to the claim occur within the filing period" and "the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id.
The United States Court of Appeals for the Third Circuit has stated that Morgan, supra, established the following "non-exhaustive list of discrete acts for which the limitations period runs from the act: termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, [and] wrongful termination."O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).
Although it may be a temptation for a plaintiff to try to characterize discrete acts as a hostile work-environment claim if the statute of limitations has elapsed for a discrete-acts claim, a plaintiff cannot aggregate individual discrete acts to establish a claim for a hostile working environment. O'Connor, 440 F.3d at 129 n. 6.
In this case, plaintiff's Second Amended Complaint sets forth a hostile-work-environment claim. Indeed, any discrete-acts claim that plaintiff may have had has been waived by his assertion in his response to defendant's motion that he is not pursuing a discrete acts claim. See Answer in Opposition to Motion to Dismiss Plaintiff's Second Amended Complaint Filed by Defendant Merck Co. at page 8.
Reviewing the Charge, which is relied on by plaintiff in paragraph 2 of his Second Amended Complaint, I find that plaintiff did claim that plaintiff did assert that defendant created an "intolerable" or hostile working environment. Additionally, plaintiff stated that the conduct was continuing.
Thus, because plaintiff is not required to amend his Charge or to file additional charges to maintain an action for each "separate act that collectively constitute one 'unlawful employment practice'", I find that plaintiff has exhausted his administrative remedies for his hostile work-environment claim.Morgan, 536 U.S. at 117, 122 S.Ct. at 2074, 153 L.Ed. at 124 (quoting 42 U.S.C. § 2000e-5(e)(1)).
I note that plaintiff's Second Amended Complaint appears to allege a number of discrete acts, which he is not separately pursuing. Nevertheless, the fact that plaintiff has asserted some allegations that he cannot pursue does not entitle defendant to dismissal of plaintiff's pursuable claim. Indeed, notice pleading is designed to give a defendant "notice" of plaintiff's claim. Fed.R.Civ.P. 7.
Moreover, as I discussed in footnote 1 above, I refuse to strike these allegations because defendant has not articulated how it is prejudiced by these allegations.
The Doctrine of Laches and the November 9, 2006 Order
Regarding the doctrine of laches, a defendant may assert the doctrine of laches to bar a plaintiff's hostile work-environment claim. Morgan, 536 U.S. at 121, 122 S.Ct. at 2077, 153 L.Ed. at 127. The United States Supreme Court has held that a plaintiff may not have timely filed a Charge with the EEOC for a hostile work-environment if the defendant establishes a "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Morgan, 536 U.S. at 122, 122 S.Ct. at 2077, 153 L.Ed. at 127. The logical corollary is that doctrine of laches would apply to a hostile work-environment claim that is not timely asserted to the courts after the EEOC Charge.Defendant cannot successfully assert the doctrine of laches before me in this case. Plaintiff has assiduously pursued his hostile work-environment claim. It may be true that plaintiff's Second Amended Complaint is not a model of pleading. Indeed, as noted in footnote 5 above, it seems that plaintiff has attempted intermingle allegations of time-barred discrete acts with allegations actionable separate acts, which give rise to a hostile work-environment claim. Nevertheless, defendant has been on notice of, and defending against, a hostile work-environment claim since plaintiff filed his Charge and when plaintiff along with other individuals filed a civil action in 1999.
For the reasons articulated above, I conclude that plaintiff's claim for a hostile work-environment has been administratively exhausted and the doctrine of laches does not apply to plaintiff's hostile work-environment claim.
After reviewing the November 9, 2006 Order there is no support for defendant's argument that plaintiff "abused the spirit" of the Order. The November 9, 2006 Order provides in pertinent part:
it further appearing that the parties have stipulated, which stipulation has been approved by the court, that:
a. The individual cases of plaintiffs Daniel Curbison, Roger Moore and Mark Washington are severed from one another and from the other cases of the plaintiffs in this action.
* * *
it further appearing that pursuant to Federal Rule of Civil Procedure 42(b), courts may decide to treat separate and distinct claims separately, IT IS HEREBY ORDERED that:
* * *
3. The individual cases of plaintiffs Daniel Curbison, Roger Moore and Mark Washington shall be trifurcated and counsel for each of the plaintiffs shall submit for filing, within thirty days fo the date of this order, three new amended complaints, one for each of the three plaintiffs. Counsel shall submit to the clerk of court filing fees for the amended complaints of Curbison, Moore and Washington. The amended complaints shall be assigned three new, separate, civil action numbers and assigned at random to other judges of this court.
Having reviewed the November 9, 2006 Order, I cannot conclude that plaintiff violated its spirit. The Order's "spirit" clearly envisions plaintiff filing a "new amended complaint". Because the plain language of the Order, provides plaintiff with the opportunity to file a new complaint, I do not agree with defendant that the additional allegations that plaintiff makes in support of his original hostile working-environment claim and § 1981 claim are in violation of the Order.
Statute of Limitations
Regarding defendant's statute of limitations argument, for the reasons articulated below, I agree with plaintiff and deny defendant's motion to dismiss.
Rule 15(c) of the Federal Rules of Civil Procedure governs the relation back of amendments to the original filing. An amendment relates back to the date of the original pleading when an "amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading. . . ." Fed.R.Civ.P. 15(c)(1)(B).
Hostile Work-Environment Claim
A hostile work-environment claim, which is composed of more than one act by the employer, constitutes one unlawful employment practice. Morgan, 536 U.S. at 117, 122 S.Ct. at 2074, 153 L.Ed. at 124 (quoting 42 U.S.C. §§ 2000e- 5(e)(1)). As stated above, plaintiff has been pursuing the same hostile work-environment claim although he has alleged additional acts.
Plaintiff's hostile work-environment claim in his original Complaint was not barred by the statute of limitations. "[A] plaintiff must file a complaint in federal court within ninety (90) days of receiving his Right-to-Sue Letter from the EEOC, or that plaintiff's claims are time barred." 42 U.S.C. § 2000e-5(f)(1).
The original Complaint was filed on January 27, 1999. Plaintiff received his Right-To-Sue Letter on March 17, 1999. The commencement of plaintiff's action was not beyond the 90-day statute of limitations. Indeed, plaintiff filed his action prematurely. Nevertheless, defendant has not moved for relief based on a premature filing, so any such desired relief is deemed waived.
Section 1981 Claim
The applicable text of 42 U.S.C. § 1981 is as follows.
(a) Statement of equal rights. All persons within the jurisdiction of the United States shall have the same right in every State and Terittory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined. For purposes of this section, the term "make and enfore contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.42 U.S.C. § 1981.
Prior to 1991, 42 U.S.C. § 1981 did not provide legal redress to parties for conduct that occurred after a contract was formed.Jones v. R.R. Donnelley Sons Co., 541 U.S. 369, 372, 124 S.Ct. 1836 ___, 158 L.Ed.2d 645, (1987). In 1991, Congress added the following language: "[f]or purposes of this section, the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C. § 1981(b); Anderson v.Wachovia Mortgage Corporation, 2007 U.S.Dist. LEXIS 51833, *14 n 11 (Del. July 18, 2007).
Claims that arise or fall from the pre-amendment language in § 1981 are subject to a 2-year statute of limitations. Boyer v. Johnson Matthey, Inc., 2005 WL 35893, *2 (E.D.Pa. Jan. 6, 2005) (Surrick, J.). In contrast, claims that arise from post-1991-amendment language are subject to a four-year statute of limitations.
The analysis of whether a hostile work-environment claims exists is the same under Title VII or § 1981. A plaintiff must allege facts that if true would establish the following: (1) plaintiff suffered intentional discrimination because of his race; (2) the discrimination was regular and pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would have detrimentally affected a reasonable person in his position who is in the same protected class; and (5) there is a basis for employer liability. Boyer, 2005 WL at *12.
In this case, as discussed above, plaintiff has asserted a hostile work-environment claim only. Although plaintiff's Second Amended Complaint sets forth additional factual allegations (some of which are discrete acts and are non-actionable) plaintiff has steadfastly pursued the same claim for the same alleged discriminatory employment practice. Therefore, Rule 15(c) would permit relation back to the date of the original complaint because the discriminatory allegations are part and parcel of the same discriminatory employment practice.
Defendant has not argued that, at the time of the filing of the original Complaint, plaintiff's action was barred by the statute of limitations. Therefore, I do need to rule on the issue. Thus, I cannot conclude from the documents on which I can rely in determining a motion to dismiss, that plaintiff's hostile work-environment claim brought pursuant to § 1981 is barred by the statute of limitations.
Were I to rule on that issue, I would conclude that the hostile work-environment claim alleged in the original complaint is not time-barred because the claim is subject to the four-year statute of limitations. The four-year statute of limitations applies because plaintiff has allege that the defendant's actions occurred after his employment with Merck, rather during the formation of the contract. Moreover, plaintiff has not alleged any conduct that occurred four years prior to the filing of the original Complaint, on January 27, 1999.
I make no determination, at this time, on whether defendant may be able to move for summary judgment on this ground at the close of discovery.
Accordingly, I deny defendant's motion to dismiss plaintiff's § 1981 claim.
CONCLUSION
Therefore, for all the foregoing reasons, I deny Defendant Merck Co., Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint