Codrington

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

DAVID CONDRINGTON,

Plaintiff,

MEMORANDUM DECISION AND

ORDER

v.

26-cv-3084 (BMC)

RAYMOURS FURNITURE CO., INC.,

Defendant,

COGAN, District Judge.

This is an employment discrimination case arising under the New York State Human

Rights Law (“NYSHRL”) and Title VII of the Civil Rights Act (“Title VII”). After

unsuccessfully seeking relief before the New York State Division of Human Rights

(“NYSDHR”) and Equal Employment Opportunity Commission (“EEOC”), plaintiff filed this

case. Defendant has moved to dismiss all of plaintiff’s claims as time barred. For the reasons

below, the motion is granted in part and denied in part, and the Court dismisses plaintiff’s

NYSHRL claims.

SUMMARY OF COMPLAINT

In 2012, plaintiff began working for defendant as a sales associate. He quickly rose

through the ranks and has held various managerial positions since 2014. During his tenure, he

earned various accolades, including “Top 5 Highest Grossing Store in the Market” and “Store

Manager Champion.”

In 2020, plaintiff says he began experiencing racial discrimination by his direct-line

supervisor. The supervisor began “issuing him numerous negative performance reviews, despite

the fact that [plaintiff’s] store was outperforming other New York stores.” Despite what plaintiff

characterizes as “unwarranted negative performance reviews,” he engaged with the criticism and

performance improvement plans. Nonetheless, toward the end of the year, plaintiff’s supervisor

issued an ultimatum: “transfer out of the Brooklyn market, or face demotion or termination.”

Plaintiff reported this ultimatum up the chain, but received no relief. According to

plaintiff, he continued managing the Brooklyn store and received more unwarranted negative

performance reviews. During this time, plaintiff says he was “continuously met with top-down

discrimination, harassment and obstruction every step of the way.”

Three years later, plaintiff was informed that another supervisor was actively seeking to

demote or transfer him. Among what plaintiff characterizes as “other slanders,” the supervisor

said his “skills were better suited to a number 2 position.”

At that point, plaintiff raised his concerns with defendant’s President, Seth Goldberg.

The supervisors began retaliating against him for doing so, and started “interviewing store

associates in [plaintiff’s] store in order to build a narrative against him so that they could remove

him from his position, pretextually.”

About a week later, the supervisors brought plaintiff before a human resources

representative, where he was informed that he was being demoted and transferred, effective

immediately, because of the following “hotline email” received about him:

Let me start off by saying how grateful I am to be working at Raymour and

Flanigan. It’s a pleasure to work for a company that values employees. With that

being said this past couple of years at G7 are not what I’ve come to expect

working for Raymour and Flanigan. We have a leader who seems to give up

addressing the team saying he will be leaving by the end of the year and don’t

[sic] even try no more then we have another leader that never leaves the office

[sic] seems like a hassle if we ask for help. On top of that we have so much

favoritism going on. Imagine we have employees that have 2nd job at the store.

They have side hussle [sic] that our leaders are part of. Our last regional knew all

of this was going on, but turned a blind eye, and it looks like the same is

happening with the new regional because I don’t see no changes. I am writing

this anonymously because of the repercussions I will face. Every employee are

[sic] scared to say anything. I am doing this because I believe [t]hat you don’t

know how bad it is. Thank you hope this will be a wake up call for the store.

Plaintiff was apparently told that there was “no intention of taking any adverse employment

action . . . until [defendant] received [the] anonymous email.”

According to plaintiff, when he was confronted about the complaint, the document he

was shown lacked the general indicia of a genuine email (e.g., header; graphic; to, from, cc, or

subject lines; etc.). Rather, it was just a block of reprinted text. Plaintiff suggests that the email

was fabricated as a pretextual justification for firing him.

Based on the above, on April 21, 2026, plaintiff filed a summons with the following

notice in Nassau County Supreme Court:

The nature of this action is hostile work environment, discrimination on the basis

of race, violations of the Plaintiff’s Constitutional Rights, violations of the

NYSHRL, violations of the NYCHRL, and infliction of emotional distress.

Defendant removed and now asks the Court to dismiss all of plaintiff’s claims as

time barred. Defendant’s theory is that plaintiff’s claims were brought to court long after

the deadlines created by the NYSDHR determination and EEOC right-to-sue letter.

DISCUSSION

I. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough

facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007), and to “allow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When deciding

a motion to dismiss, the Court must “constru[e] the complaint liberally, accept[] all factual

allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s

favor.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All.

LLC v. City of N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010)).

In employment discrimination cases, “[t]he right to sue letter is a necessary prerequisite

to file suit.” Newsome v. Berman, 24 F. App’x 33, 34 (2d Cir. 2001). Thus, when “a plaintiff

fails to provide a right-to-sue letter . . . and does not allege that plaintiff received or attempted to

procure such letter, courts have dismissed the Title VII claims.”). Davis v. Metro North

Commuter R.R., No. 21-cv-387, 2022 WL 2223018, at *8 (S.D.N.Y. June 21, 2022). This is

because “[o]rdinarily, a Court may not consider materials extraneous to the complaint when

deciding a motion to dismiss.” Massey v. On-Site Manager, Inc., No. 11-cv-2612, 2011 WL

4356380, at *2 (E.D.N.Y. Sept. 16, 2011) (citing Friedl v. City of N.Y., 210 F.3d 79, 83–84 (2d

Cir.2000),.

“The Second Circuit, however, has recognized several exceptions to this rule,” including

“‘documents [that are] incorporated by reference in the complaint,’ [and] documents that are

‘integral to the plaintiff's claim.’” Id. (quoting Halebian v. Berry, 644 F.3d 122, 131 n.7 (2d Cir.

2011), and Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir.1991)). NYSDHR

determinations and EEOC right-to-sue letters are “integral to the complaint and [so] the Court

may consider them in connection with the motion to dismiss.” Bolt v. Planned Parenthood of

Cent. & W. N.Y., 763 F. Supp. 3d 463, 470 n.3 (W.D.N.Y. 2025). This is so even if the plaintiff

“does not allege that [he] filed a complaint against [the defendant] with either NYSDHR or

EEOC,” so long as the defendant “attached a copy of the NYSDHR determination and EEOC

right to sue letter to [the] motion to dismiss.” Id.

Here, as in Bolt, defendant attached copies of the NYSHR determination and EEOC letter

to its motion, and plaintiff does not seriously dispute their accuracy or authenticity. Thus, the

Court may consider them on the present motion.

II. Analysis

A. Title VII

Defendant argues that plaintiff’s federal claims are time barred based on (1) the date of

the EEOC right-to-sue letter,1 and (2) the content of his notice with summons.

i. EEOC Letter

A Title VII suit must commence within “90 days after the plaintiff receives a right-to-sue

letter from the [EEOC].” Duplan v. City of N.Y., 888 F.3d 612, 624 (2d Cir. 2018) (citing 42

U.S.C. § 2000e-5(f)(1)). In New York, a lawsuit may be commenced without a complaint

where, as here, the plaintiff files a summons with notice “stating the nature of the action and the

relief sought[.]” CPLR § 305(b).

“There is a presumption that a notice provided by a government agency was mailed on

the date shown on the notice [and] that a mailed document is received three days after its

mailing.” Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011)

(citating Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)). That presumption

can be rebutted by a plaintiff’s “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.” Sherlock, 84 F.3d at 526.

1 Defendant also proffered electronic records that it received from the EEOC pursuant to a FOIA request which

purport to show plaintiff logging in and viewing the right-to-sue letter on a certain date that, if accurate, might mean

he “received” the notice on a date that would render his complaint time barred. Although the right-to-sue letter itself

is integral to the complaint, see supra, these electronic records are not, and thus the Court cannot consider them in

the present motion.

Here, plaintiff filed his summons with notice on April 20, 2026, so the operative question

is whether that date is within the 90-day deadline under 42 U.S.C. § 2000e-5(f)(1). The EEOC

right-to-sue letter is dated September 19, 2025, so plaintiff is presumed to have received it three

days later, i.e., September 22, 2025. See Tiberio, 664 F.3d at 37. Based on that, plaintiff’s

presumptive deadline to commence his Title VII suit would have been December 21, 2025, and

his notice with summons would have been long afterward.

However, plaintiff avers that he did not receive the EEOC right-to-sue letter until January

21, 2026, when he was sent the letter via email by an EEOC regional director.2 At this juncture,

where the Court must assume the factual truth of plaintiff’s allegations, that is enough to rebut

the mail-based presumption. Accordingly, plaintiff’s deadline to commence his Title VII suit

must be based on when he “actually received the right-to-sue-letter,” Tiberio, 664 F.3d 35, 37

(2d Cir. 2011), and 90 days after January 21, 2026, is April 21, 2026. Plaintiff’s April 20, 2026,

notice and summons fell within the 90-day period prescribed by 42 U.S.C. § 2000e-5(f)(1).

Defendant’s motion to dismiss on this ground is therefore denied.

ii. Content of Notice With Summons

Defendant next argues that, even if plaintiff’s summons with notice was timely, his Title

VII claims are not, because the summons with notice did not cite Title VII or make any reference

to federal employment claims. The Court disagrees.

As noted above, New York law permits a plaintiff to commence a lawsuit without a

complaint, so long as the plaintiff files a proper summons with notice. See CPLR § 305(b).

2 The complaint omits any mention of the EEOC complaint or right-to-sue letter. However, after defendant filed the

EEOC electronic records, see supra n.1, plaintiff filed an affidavit attesting that he received the letter on January 21,

2026, and separately provided his own interpretation of the electronic records. At this juncture, the Court assumes

the truth of plaintiff’s allegation that he received the right-to-sue letter on January 21, 2026. The Court does not

consider or accord any weight to either party’s interpretation of the electronic records, which is a more appropriate

question for a summary judgment motion.

“[W]hen a suit is commenced by a summons with notice, ‘the complaint comes later, and the

general understanding is that this later-served complaint may [] include claims not mentioned in

the initial notice.’” DiFillippo v. Special Metals Corp., 299 F.R.D. 348, 355 (N.D.N.Y. 2014)

(quoting 260 Siegel’s Prac. Rev. 4 (Aug. 2013)); see U.S.E. Prods., Ltd. v. Marvel Enters., 314

F. Supp. 2d 213, 215 (S.D.N.Y. 2004) (“The ‘notice’ portion of a summons with notice is much

less formal than a complaint”). Still, a defendant cannot be “left [] to guess the precise claims

against them.” Roth v. State Univ. of N.Y., 61 A.D.3d 476, 476, 876 N.Y.S.2d 403, 404 (1st

Dep’t 2009) (finding insufficient a notice alleging “violations of federal, New York State, and

New York City human rights laws,” because “numerous potential causes of action may be

brought under these statutes”).

Here, plaintiff’s summons with notice described the nature of the case as, inter alia,

“discrimination on the basis of race” and “violations of [his] Constitutional Rights.” The

document cited the NYSHRL but did not cite Title VII and, according to defendant, his citation

to the former but not the latter means his summons with notice couldn’t have commenced his

Title VII claim. Defendant additionally contends that plaintiff’s reference to “Constitutional

Rights” cannot make up the difference; i.e., this reference cannot be reasonably interpreted to

refer to Title VII.

District courts that have considered the question have held that, for purposes of a federal

statute’s time bar, a plaintiff’s CPLR § 305(b) summons with notice need not cite the federal

statute so long as it sufficiently puts the defendant on notice of claims arising under that federal

statute. See Difillipo, 299 F.R.D. at 355 (notice with summons describing nature of case as

“employment discrimination and retaliation,” without reference to ADA nonetheless sufficient to

avoid ADA time bar); Brehm v. Tompkins Consol. Transit, Inc., No. 12-cv-579, 2013 WL

2898053, at *3 (N.D.N.Y. June 13, 2013) (similar). That makes sense because “federal courts

must not privilege form over substance,” Carey v. Saffold, 536 U.S. 214, 232 (2002), and

“excessive technicality [cannot] guide the consideration of Title VII actions,” Love v. Pullman

Co.,404 U.S. 522, 526-27 (1972).

Accordingly, plaintiff’s CPLR § 305(b) notice with summons was sufficient to put

defendant on notice of his Title VII claims. To be sure, the Court agrees with defendant that

plaintiff’s alleged “violations of [his] Constitutional Rights” did not refer to his Title VII claims.

In fact, this didn’t refer to any federal claim, for that reason, defendant’s removal to this Court

was improper.3 However, that issue is moot because plaintiff’s subsequently filed complaint

expressly alleges Title VII claims, and “a federal court’s jurisdiction depends on what the [post-

removal] complaint says.” Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 30 (2025).

Defendant’s motion to dismiss on this ground is therefore denied.

3 Defendant asserted federal question jurisdiction based on plaintiff alleging “violations of [his] Constitutional

Rights.” That does not satisfy the removal statute because “the Supreme Court [has instructed] to . . . resolve doubts

in favor of remand,” Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 220 (2d Cir. 2013). Defendant apparently

assumed that plaintiff meant the federal constitution, but that assumption was wrong because plaintiff alleged no

state action. See Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (“Because the [U.S.]

Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have

been violated must first establish that the challenged conduct constitutes state action.”). In contrast, “some [New

York] constitutional provisions [] explicitly regulate private conduct.” Brown v. State, 89 N.Y.2d 172, 183, 652

N.Y.S.2d 223, 229 (1996). Thus, plaintiff’s reference to “Constitutional Rights” should have been interpreted as

referring to his New York constitutional rights, and the magistrate judge previously overseeing this case should have

remanded it sua sponte. See Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (recognizing the Court’s

“independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte.”). This does

not mean that the case would never become removable, however, as the Second Circuit has recognized that

sometimes, “removability [cannot always] have been ascertained from the face of [a] summons with notice,” in

which case removability must be “ascertained from the [subsequently filed] complaint.” Whitaker v. Am.

Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001).

B. NYSHRL

Similarly to the federal claims, defendant argues that plaintiffs state claims are time-

barred based on the date of the NYSDHR determination.* “Where a proceeding is brought to

review a determination of the NYSDHR, the applicable statute of limitations is 60 days after

service of the determination.” Matter of Horowitz v. Foster, 180 A.D.3d 783, 784, 120 N.Y.S.3d

49, 51 (2nd Dep’t 2020).

Unlike the EEOC letter, however, whether or not plaintiff actually received the NYSDHR

determination is irrelevant. See Grinan v. Santaella, 89 A.D.2d 866, 866, 453 N.Y.S.2d 242, 243

(2nd Dep’t 1982) (“service by mail [of NYSDHR determination was] complete . . . regardless of

delivery to or receipt by the claimant”); Dudish v. NYSDHR, 15 A.D.3d 823, 824, 790 N.Y.S.2d

565, 566 (3rd Dep’t 2005) (rejecting plaintiff's argument “that the limitations period should be

measured from the date of his receipt of the [NYSDHR] determination”).

Here, the NYSDHR determination is dated July 14, 2025, making his 60-day deadline to

file his state claims September 12, 2025. Plaintiff filed his summons with notice long after that,

and therefore his NYSHRL claims must be dismissed as time barred. Defendant’s motion to

dismiss on this ground is therefore granted.

CONCLUSION

Defendant’s motion to dismiss is granted in part and denied in part.

SO ORDERED.

Brian Wl. Cogan

Dated: Brooklyn, New York U.S.D.J.

August 24, 2026

+ In footnotes, defendant raised the two additional arguments: that the election of remedies doctrine bars plaintiff's

state claims, and that plaintiffs complaint cannot “relate back” to his notice with summons. These warrant no

consideration. See CITGO Petro. Corp. v. Ascot Underwriting Ltd., 158 F.4th 368, 388 (2d Cir. 2025) (“as our

cases instruct, . . . an argument mentioned only in a footnote [is not] adequately raised.” (citation omitted)).