Gardner v. Honest Weight Food Cooperative, Inc., 96 F. Supp. 2d 154

96 F. Supp. 2d 154

N.D.N.Y.

2000

MEMORANDUM — DECISION & ORDER

McAVOY, District Judge.

I. Background

Plaintiff brings the instant action alleging, inter alia, that Defendants Honest Weight Food Cooperative, Inc. (“HWFC”) and William Zeitlow (“Zeitlow”), Maryanne Winslow (‘Winslow”) and Michael Toye (“Toye”) (collectively “Defendants”) unlawfully discriminated against her on the basis of her Jewish ethnicity, religion and gender, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Plaintiff also asserts numerous pendent state law claims against Defendants for еmployment-related discrimination in violation of N.Y.Exec.Law § 296 et seq. and for slander and defamation. See generally Amended Compl. at ¶¶ 116-219.

Defendants HWFC and Zeitlow, Win-slow and Toye separately move to dismiss the federal causes of action and state-based defamation claim pursuant to Fed.R.Civ.P. 12(b)(1), (6). 1 Defendants also move the Court to decline supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c), over Plaintiffs state-based causes of action under N.Y.Exec.Law § 296 et seq. The Court assumes familiarity with its two prior decisions in this matter, which detail the procedural and factual background surrounding the instant dispute. See Gardner v. The Honest Weight Food Coop., 99-CV-1607 (N.D.N.Y. Mar. 30, 2000) (denial of Defendant’s motion for sanctions); Gardner v. The Honest Weight Food Coop., 99-CV-1607 (N.D.N.Y. Mar. 2, 2000) (denial of Defendants’ motions to dismiss).

I. Discussion

A. Conversion to Summary Judgment

In the present motion, both parties submitted materials, e.g., affidavits and other documentary evidence, outside the pleadings. 2 Plaintiff was on notice from Defen *157 dants’ motions thаt dismissal of her Title VII claims was sought based on Plaintiffs failure to timely file her federal complaint within the ninety day filing requirement. In connection with Defendants’ motions, both parties submitted sworn affidavits. See, e.g., Affidavit of Elizabeth Cadle, Director of the Buffalo Local Office of the EEOC (“Cadle Aff.”) (Docket No. 41); Affidavit of Earl Moyer (“Moyer Aff.”) (Docket No. 45 at Ex. A); Affidavit of Leslie Gardner (“Gardner Aff.”) (Docket Nо. 46). Accordingly, both parties were provided “sufficient notice that summary judgment was possible and ample opportunity to submit supporting affidavits and evidence.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998), cert. denied, 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). Because both parties had a full and fair opportunity to present and, in fact, have presented, materials pertinent to a Rule 56 motion, the Court will treat Defendants’ pending motions pursuant to Rule 56. See Fed.R.Crv.P. 12(b); Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir.1990) (stаting that the relevant inquiry in deciding whether to convert a motion to dismiss into a motion for summary judgment is “whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.”) (internal quotations omitted); M.J.M. Exhibitors, Inc. v. Stern, 770 F.2d 288, 295 (2d Cir.1985) (“A party cannot complain of lack of a reasonable opportunity to present all material relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, counter-affidavits, depositions, etc. in support of and in opposition to a motion to dismiss. Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted.”) (citations omitted), cert. denied, 475 U.S. 1015, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986); Mate v. New York State Dep’t of Labor, 1998 WL 770554, at *1 (S.D.N.Y. Nov.2, 1998) (“In view of the fact that both parties have, submitted material outside the pleadings, and [the Court] havfing] considered the submission of the non-moving plaintiff, it is permissible to treat [defendant’s] motion at least in part аs a motion for summary judgment.”); Casamento v. New York Stock Exch., Inc., 1995 WL 373494, at *1 (S.D.N.Y. June 22, 1995). In deciding the instant motions, the Court will apply the well-settled standards applicable to motions for summary judgment that have been set forth in prior decisions by this Court. See Dyke v. McCleave, 79 F.Supp.2d 98, 102-03 (N.D.N.Y.2000); Frink Am., Inc. v. Champion Road Mach. Ltd., 62 F.Supp.2d 679, 681-82 (N.D.N.Y.1999); Emma v. Schenectady City Sch. Dist., 28 F.Supp.2d 711, 717-18 (N.D.N.Y.1998), aff'd, 199 F.3d 1322 (1999) (Table). However, because Defendants’ arguments with respect to Plaintiffs defamation claim challenge, in large part, the' sufficiency of the allegations set forth in the Amendеd Complaint, see Def. HWFC Mem. of Law at 11-14, the Court will treat that portion of Defendants’ motions to dismiss as ones pursuant to Fed.R.CivP. 12(b)(6). See, e.q., Finley v. Illinois Dep’t of Pub. Aid, 1998 WL 26156, at *2-*3 (N.D.Ill. Jan.12,1998).

B. Timeliness of Plaintiffs Title YII Claims

Defendants argue that'Plaintiffs federal causes' of action under Title VII (First, Second, Third, Fifth, and Sixth Causes of Action in the Amended Complaint) should be dismissed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because Plaintiff failed to timely commence the instant action within ninety days, of receipt of her Righb-To-Sue letter as required under 42 U.S.C. § 2000e-5(f)(1).

*158 “In order to be timely, a claim under Title VII ... must be filed within 90 days of the claimant’s receipt of a right-to-sue letter.” Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir.1996); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam). Thus, the ninety day requirement functions as a statutory precondition to bringing suit in federal court. See 42 U.S.C. § 2000e-5(f)(1); Rasmussen v. Sigma Corp. of Am., 27 F.Supp.2d 388, 391 (E.D.N.Y.1998). The requirement is “treated like a statute of limitations,” Rasmussen, 27 F.Supp.2d at 391, and “[failure to comply with this time requirement will result in dismissal of the complaint.” Banks v. Metro-North Commuter R.R., 1998 WL 312237, at *3 (S.D.N.Y. June 12, 1998) (quotations omitted); see also Williams v. Manhattan East Suite Hotels, 1999 WL 212690, at *2 (S.D.N.Y. Apr.12, 1999). The ninety day рeriod begins to run from the date the claimant receives the Right-To-Sue letter “at the address supplied to the EEOC by the claimant.” 3 Espinoza, 754 F.2d at 1249; see also Rasmussen, 27 F.Supp.2d at 392-93; Casamento, 1995 WL 373494, at *2. “While the 90-day rule is not a jurisdictional predicate, in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.” Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (internal quotation omitted); see also Crawford-Mulley v. Corning, Inc., 77 F.Supp.2d 366, 368 (W.D.N.Y.1999) (citations omitted); Rasmussen, 27 F.Supp.2d at 393; Connell v. J.P. Morgan Inv. Management, Inc., 1994 WL 132148, at *2 (S.D.N.Y. Apr.12, 1994).

A presumption exists that an EEOC notice is received “thrеe days after its mailing” and that “a notice provided by a government agency has been mailed on the date shown on the notice.” Sherlock, 84 F.3d at 525-26 (citing Baldwin County, 466 U.S. at 148 and n. 1, 104 S.Ct. 1723); see also Fed.R.Civ.P. 6(e) (West 2000) (‘Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.”). This presumption, however, may be rebutted by sworn testimony or other admissible evidence from which it could reasonably be inferred that it took longer than three days for the letter to reach the claimant by mail. See Sherlock, 84 F.3d at 526; see also Williams, 1999 WL 212690, at *2 (“Ordinarily, the 90-day filing period commences when the plaintiff would be expected to receive the right-to-sue letter, and there is a presumption that a [right-to-sue] letter properly mailed is not only received by the addressee, but also that it is received in the due course of the mails.”) (internal quotations omitted and brackets in original).

In the present case, Plaintiffs Right-To-Sue letter is dated June 30, 1999. 4 See Amended Compl. at Ex. C. It is the practice of the EEOC to date-stamp the RighU-To-Sue letter on the date of issuance and mail the letter to the claimant on that same date. See Cadle Aff. at ¶ 3. Thus, a Righi>-To-Sue letter dated June 30, 1999 was presumably mailed on June 30, 1999. See id.; Sherlock, 84 F.3d at 526. Allowing for a three-day mailing presumption, Plaintiff should have received her Right-To-Sue letter on Saturday, July *159 3, 1999, a regular mail day. In such a scenario, Plaintiff was, therefore, required to file her federal complaint no later than Friday, October 1, 1999, ninety days later. The Right-To-Sue letter issued to Plaintiff clearly stated that she must file her federal lawsuit within ninety days of receiving the notice to avoid losing her right to sue based on her EEOC charge. See Amended Compl. at Ex. C. The present action, however, was commenced on October 4, 1999, the datе Plaintiff filed her initial federal complaint. See Compl. (Docket No. 1).

To rebut the three-day presumption, Plaintiff submits her own affidavit stating, in pertinent part, that “I am confident that I received my right to sue notification from the EEOC on July 6, 1999 following the July 4, 1999 weekend.” Gardner Aff. at ¶2. If Plaintiff did in fact receive her Righi>-To-Sue notice on July 6, 1999, her federal complaint would have been filed within ninety days of receipt of that notice and, thus, be timely. Plaintiff ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍attempts to substantiate her claim by providing a copy of the mailing envelope, which she alleges bears a June 31, 1999 metered stamp date. See Amended Compl. at Ex. D; Affidavit in Opp’n to Def. Motion for Sanctions, at Ex. E. Plaintiff’s counsel also submitted an affidavit stating that she, too, received the Right-To-Sue letter on July 6,1999.

The sworn affidavit submitted by Plaintiff is sufficient to creаte a genuine issue of fact about whether she received the Right-To-Sue letter on July 6, 1999 and, therefore, adequately rebuts the presumption set forth in Sherlock and Fed.R.Civ.P. 6(e). As the Second Circuit stated in Sherlock:

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 not dispositive.

84 F.3d at 526 (emphasis added).

Other courts have similarly permitted a party to rebut a general presumption of receipt with sworn testimony. See, e.g., Hogarth v. New York City Health and Hosps. Corp., 2000 WL 375242, at *4 (S.D.N.Y. Apr.12, 2000) (“[T]he presumption of delivery can be successfully rebutted with a sworn affidavit giving a detailed description of the mail procedures followed at a company for all inсoming mail supporting the conclusion that the mail was never received.”); Wiggins v. Avco Fin. Servs., 62 F.Supp.2d 90, 99 (D.D.C.1999); Smith v. Local Union 28 Sheet Metal Workers, 877 F.Supp. 165, 172 (S.D.N.Y.1995), aff 'd, 100 F.3d 943 (2d Cir.) (Table), cert. denied, 519 U.S. 832, 117 S.Ct. 101, 136 L.Ed.2d 55 (1996); Vine v. Bowen, 1988 WL 35595, at *1 (N.D.Ill. Apr.8, 1988).

Based on the specific circumstances before the Court, namely, where a Plaintiff unequivocally asserts that she is “confident” that she received her EEOC notice on a certain date, the Court finds there to be a genuine issue of material fact regarding when Plaintiff received her Right-To-Sue notice, which is best left for the jury, rather than this Court, to resolve. Accordingly, Defendants’ motions for summary judgment with respect to Plaintiffs First, Second, Third, Fifth, and Sixth Causes of Action must be denied. 5

C. Section 1981 Claim

In the present case, Plaintiff bases her section 1981 claim on the conditions of her employment rather than because of her termination. Defendants move to dismiss Plaintiffs claim brought pursuant to 42 U.S.C. § 1981 on thе ground that Plaintiff is an at-will employee and, therefore, she *160 lacks an underlying contractual relationship with Defendants iipon which such a claim can be based. Defendants do not, however, address the elements of Plaintiffs section 1981 claim.

Section 1981, provides, in pertinent part, that “[a]ll persons ... shall have the sapie right ... to make and enforce contracts ... as is enjoyed by white citizens....” 42 U.S.C. § 1981(a). “For purposes of protection under [section] 1981, people of Jewish heritage are considered a distinct race.” Gutman v. Tico Ins. Co., 1998 WL 306502, at *3 (E.D.Pa. June 9, 1998) (citations omitted); see also St. Francis College v. Al-Khazraji, 481 U.S. 604, 612, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 968 F.2d 286, 291 (2d Cir.1992); United States v. Somerstein, 959 F.Supp. 592, 595 (E.D.N.Y.1997).

Notwithstanding the parties’ arguments regarding whether Plaintiff is an at-will employee, the Court notes there is considerable dispute within the district courts of this Circuit about whether an at-will employee may bring suit under section 1981. See, e.g., Johnson v. City of New York, 2000 WL 377514, at *2 (S.D.N.Y. Apr.12, 2000) (collecting cases); Mungin v. Macklowe, 2000 WL 325694, at *1-*2 (S.D.N.Y.Mar.28, 2000) (collecting cases); Moorer v. Grumman Aerospace Corp., 964 F.Supp. 665, 675-76 (E.D.N.Y.1997) (at-will employee cannot establish contractual relationship necessary to sustain a section 1981 claim), aff'd, 162 F.3d 1148 (2d Cir.1998) (Unpublished Table Decision). There also appears to be some disagreement among the circuit courts of appeal that have addressed this issue. Compare Fadeyi v. Plаnned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 1048, 1049-52 (5th Cir.1998) (employment at-will may constitute a contractual relationship under section 1981 under Texas law) and Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir.1999) (employment at-will may constitute a contractual relationship under section 1981 under Maryland law) with Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1034-35 (7th Cir.1998) (noting, in dicta, that under Illinois law an employee ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍at-will has no contractual rights to support a claim under section 1981).

Although the Second Circuit has not yet definitively weighed in on this dispute, it appears that the exact issue is currently being considered by that Court. See Lauture v. IBM, 98-CV-4882 (S.D.N.Y. May 25, 1999), appeal docketed, 99-7732 (2d Cir. June 21, 1999). In light of the substantial disagreement among the district courts within this Circuit on this issue, and the fact that the Second Circuit is likely to resolve this dispute in the near future, the Court believes it is wiser at this time to deny , Defendants’ motions for summary judgment on Plaintiffs section 1981 claim (Seventh, Cause of Action) pending that decision. Defendants may, of course, move to dismiss Plaintiffs section. 1981 claim once the Second Circuit issues its decision in Lauture. 6

D. State Law Claims Under N.Y.Exec. Law § 296

Defendants also move to dismiss Plaintiffs Fourth and Seventh Causes of Action alleging retaliation and race discrimination, respectively, under N.Y.Exec.Law § 296. 7 Specifically, Defendants request that the Court decline suрplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3), over Plaintiffs state claims “[i]f the Court dismisses ... plaintiffs féderal claims.” Def. HWFC Mem. of Law at 10.

*161 Because the Court denied Defendants’ motions to dismiss Plaintiffs Title VII claims, see supra, Defendants’ motions to dismiss Plaintiffs state claims under N.Y.Exec.Law § 296 on jurisdictional grounds is denied.

E. Defamation Claim

Plaintiffs Ninth Cause of Action brings a defamation claim based on statements allegedly made by Defendants Zеitlow, Winslow and Toye that included, inter alia, “a campaign to falsely portray the plaintiff as an individual who discriminated against African-Americans,” Amended Compl. at ¶ 208, and inferring that Plaintiff was terminated “due to racially discriminatory conduct.” See id. at ¶210; see, e.g., Rivera v. Greenberg, 243 A.D.2d 697, 663 N.Y.S.2d 628, 629 (2d Dep’t 1997); Scott v. Cooper, 226 A.D.2d 360, 640 N.Y.S.2d 248, 249 (2d Dep’t 1996).

“There are, generally speaking, four elements necessary to establish a prima facie case of slander: (1) an oral defamаtory statement of fact, (2) regarding the plaintiff, (3) published to a third party by the defendant, and (4) injury to the plaintiff.” Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir.1993); see also Mobile Data Shred, Inc. v. United Bank of Switzerland, 2000 WL 351516, at *6 (S.D.N.Y. Apr.5, 2000); Gillespie v. AST Sportswear, Inc., 1998 WL 289681, at *2 (S.D.N.Y. June 4, 1998). To comport with the First Amendment’s guarantee of the right to free speech, a plaintiff alleging defamation must also prove the requisite degree of fault, which depends on the status of the allegеd libeled party. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 346-48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

“In evaluating whether a cause of action for defamation is successfully pleaded, [t]he words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable аnd cannot be made so by a strained or artificial construction.” Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1, *5 (1st Dep’t Dec.14, 1999) (bracket in original). Accordingly, “allegations[ ] premised upon speculation and conjecture,” Buffolino v. Long Island Sav. Bank, FSB, 126 A.D.2d 508, 510 N.Y.S.2d 628, 631 (2d Dep’t 1987), as well as “[l]oose, figurative or hyperbolic statements, even if deprecating the plaintiff,” Dillon, 704 N.Y.S.2d at *5; see also Miss Am. Petite, Inc. v. Fox Broad. Co., 262 A.D.2d 33, 690 N.Y.S.2d 592, 592 (1st Dep’t 1999), do not constitute actionable defamation. “When, however, thе statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a ‘mixed opinion’ and is actionable.” Steinhilber v. Alphonse, 68 N.Y.2d 283, 289-90, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986) (citations omitted); see also Ferris v. Loyal Order of Moose Oneonta Lodge No. 465, 259 A.D.2d 914, 686 N.Y.S.2d 884, 885 (3d Dep’t 1999), leave to appeal dismissed by 94 N.Y.2d 838, 702 N.Y.S.2d 586, 724 N.E.2d 378 (1999) (Table), reargument denied by 94 N.Y.2d 873, 705 N.Y.S.2d 2, 726 N.E.2d 479 (2000).

In seeking to dismiss Plaintiffs defamation claim, Defendants advance the following grounds: (1) the alleged statements made by Zeitlow, Winslow and Toye were not made in the course of their employment at HWFC; (2) the alleged statements were not published to third parties; (3) Plaintiff fails to allege that the statements damaged her reputation; (4) the alleged statements lack the requisite specificity to place Defendants on notice of the bases for Plaintiffs defamation claim; and (5) the alleged statements are barred by the applicable statute of limitations. See Def. HWFC Mem. of Law at 11-14. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Court will address each ground seriatim.

Plaintiff contends that the alleged defamatory statements were made by HWFC employees in the course of their employment. Notwithstanding Defen *162 dants’ conclusory statement to the contrary, the Amended Complaint- alleges that Defendants’ statements were madе during, and in connection with, Plaintiffs employment at HWFC. Under these circumstances, as alleged in the Amended Complaint, Plaintiff sufficiently alleges facts under which HWFC can be liable for tortious statements made by Zeitlow, Winslow and Toye. See Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 546, 528 N.Y.S.2d 8, 523 N.E.2d 284 (1988); Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369, 377, 502 N.Y.S.2d 965, 494 N.E.2d 70 (1986) (“Consonant with risk allocation theories, liability for compensatory damages is properly placed on an innocent employer for slandfer by its agents committed in the course of employment.”) (citations omitted). Second, Plaintiff avers with particularity the alleged statements made by Defendants Zeitlow, Winslow and Toye and to whom such statements were published. See Amended Compl. at ¶ 213(a)-(g). Moreover, contrary to Defendants’ contentions, Plaintiff alleges that the challenged statements were published to third parties, see Amended Compl. at ¶ 213(a)-(g), were false, see id. at ¶¶ 210, 215, and damaged her reputation and caused emotional distress, see id. at ¶¶211, 214, 216, 219. Lastly, the alleged defamatory statements set forth in the Amended Complaint relate to events occurring within one year prior to the filing of the federal complaint. 8 See, e.g., Amended Compl. at ¶ 213(c), (d) (statement made and letters solicited after Plaintiff was terminated in December 1998); ¶ 213(e) (statements made at February 1999 membership meeting); see also Amended. Compl. at Ex. F (HWFC panel decision reinstating Plaintiff). Accordingly, Defendants’ motions to dismiss Plaintiffs defamation claim are denied.

III. Conclusion

For all of the foregoing reasons, Defendants HWFC, William Zeitlow, Maryanne Winslow and Michael Toye’s separate motions to dismiss the Amended Complaint are DENIED.

IT IS SO ORDERED.

Notes

. Although Defendants Zeitlow, Winslow and Toye make a separate motion to dismiss the Amended Complaint, they "expressly adopt and incorporate by reference ... the papers submitted [by HWFC]” in support of HWFC’s motion to dismiss the Amended Complaint. Affidavit of Gary A. Lefkowitz, Esq. at ¶ 3.

. Because Defendants seek to dismiss Plaintiffs federal causes of action for lack of subject matter jurisdiction pursuant to Fed.R.CivP. 12(b)(1), the Court will briefly disсuss the "procedural path for assessing whether [the ninety-day requirement in 42 U.S.C. § 2000e-5(f)(1)] has been satisfied.” Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1249 n. 1 (5th Cir.1985). The requirement that a claimant commence an action within ninety days of receipt of the right-to-sue letter is not treated as a jurisdictional prerequisite, but as a statute of limitations that is subject to tolling and waiver. See id.; Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). Accordingly, motions to dismiss a Title VII complaint for failurе to commence the action within ninety days of receipt of the Right-To-Sue letter should not be phrased in terms of subject matter jurisdiction. See Espinoza, 754 F.2d at 1249 n. 1; Casamento v. New York Stock Exch., Inc., 1995 WL 373494, at *1 n. 1 (S.D.N.Y. June 22, 1995). In the present matter, however, this distinction is not significant as the Court has converted Defendants’ mo *157 tions to ones for summary judgment under Fed.R.Civ.P. 56 and, therefore, properly considered the affidavits and other documentary evidence submitted by the parties.

. The Court notes that the Right-To-Sue letter at issue in the present case was addressed to Plaintiff at her Nassau, New York address. See Amended Compl. at Ex. C.

. On that same day, the EEOC also issued Plaintiff a certificate, pursuant to 29 C.F.R. § 1601.28(a)(2), slating that the EEOC would be "unable to complete its administrative processing of the [Plaintiff's] charge[ ] within 180 days from the filing of the charge.” Amended Compl. at Ex. C.

. Hаving concluded that Plaintiffs sworn affidavit is sufficient to create a factual dispute precluding summary judgment with respect to Plaintiff's Title VII claims, the Court need not conclusively address, for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍purposes of the instant motions. Plaintiff’s arguments regarding: (1) when her attorney received the Right-To-Sue letter and (2) whether the letter was meter stamped June 30th or mistakenly stamped June 31st, 1999.

. Beсause Plaintiffs Title VII and section 1981 claims are based, in part, on the same allegations and events surrounding Plaintiff's employment at HWFC, permitting Plaintiff's section 1981 claim to go forward at this time will not likely create additional discovery burdens on the parties.

. In her Amended Complaint, Plaintiff labels both her section 1981 claim and race discrimination claim under N.Y.Exec.Law § 296 as her Seventh Causes of Action. See Amended Compl. at ¶¶ 173-96.

. In seeking to dismiss Plaintiff’s defamation claim, Defendants argue that two letters written by HWFC employee Janice Eatmon dated May 5, 1998 and September 30, 1998 are "time-barred under the one-year statute of limitations governing defamation claims.” Def. HWFC Mem. of Law at 13 (citing N.Y.C.P.L.R. § 215(3)); see also Julian v. Carroll, 704 N.Y.S.2d 654, 655 (2d Dep't 2000); Spinale v. Guest, 704 N.Y.S.2d 46, 47 (1st Dep’t 2000). These letters, however, are not included as a basis for Plaintiff's defamation claim in the Amended Complaint. See Amended Compl. at ¶ 213(a)-(g).