Dariusz Wojciech MAZURKIEWICZ, Plaintiff-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORP., et al., Defendants-Appellees, 356 F. App'x 521

SUMMARY ORDER Appellant Dariusz Wojciech Mazur-kiewicz appeals from the district court’s judgment granting the defendants’ motion for judgment on the pleadings and dismissing his employment discrimination complaint. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal. We find that the district court should have converted the defendants’ motion for judgment on the pleadings to a motion for

summary judgment, pursuant to Rule 12(

d) of the Federal Rules of Civil Procedure, since a decision on the motion required the district court to consider facts and arguments that were outside of the pleadings. However, this error was harmless, since the Appellant was aware of the proposed basis for dismissal, understood how to respond to the defendants’ arguments, and did, in fact present a full and coherent response. See Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54, 57 (2d Cir.2007). Thus, we analyze this matter under Rule 56.

This Court reviews an order granting-summary judgment de novo and asks whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, this Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom

summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (quotation marks omitted). However, “conclusory statements or mere allegations [are] not sufficient to defeat a

summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.2002). For a Title VII claim arising in New York to be timely, a plaintiff must file the charge with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir.1998). Title VII’s time limits for filing with the EEOC are not jurisdictional, but, like statutes of limitations, are subject to “waiver, estoppel, and equitable tolling.” Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Equitable tolling is generally “appropriate only where the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights, or has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.” Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.1978). It is undisputed that Mazurkiewicz failed to timely file a charge with the EEOC.

Moreover, his claim that he was not adequately informed about the need to do so is not sufficient to permit equitable tolling. See Smith, 571 F.2d at 111 (“[The plaintiffs] claim that he had no knowledge of the EEOC because of appellees’ failure to post notices ... does not in our view allege misleading, fraudulent or deceptive conduct by the appellees sufficient to permit tolling here.”)- Thus, the district court properly dismissed Mazurkiewiez’s Title VII claims on the ground that they were not timely filed with the EEOC.

An employee may waive claims of discrimination so long as the waiver is made “knowingly and voluntarily.” See Tung v. Texaco, Inc., 150 F.3d 206, 208 (2d Cir.1998) (reviewing waiver of Title VII claims).

In making such a determination, this Court has adopted a “totality of the circumstances” approach, considering factors such as: (1) the Plaintiffs education and business experience; (2) the amount of time Plaintiff had possession of or access to the agreement before signing it; (3) the role of the Plaintiff in deciding the terms of the agreement; (4) the clarity of the agreement; (5) whether the Plaintiff was represented by or consulted with an attorney; and (6) whether the consideration given, in exchange for the waiver of claims, exceeds employee benefits to which the employee was already entitled by law.

Id. (citing with approval the district court’s reliance on these factors). In addition, in order to establish the defense of economic duress, a plaintiff must prove that there was “(1) a threat, (2) which was unlawfully made, and (3) caused involuntary acceptance of contract terms, (4) because the circumstances permitted no other alternative.” Kamerman v. Steinberg, 891 F.2d 424, 431 (2d Cir.1989) (citation omitted). Mazurkiewicz has failed to establish economic duress as a defense to the waiver of any claims arising out of his termination because he did not allege the requisite threat.

As to the validity of the waiver generally, the length of time that Mazurkiewicz had to review the agreement, the clarity of the agreement, and the fact that Mazurkiewicz was assisted by counsel, all indicate that the waiver was executed knowingly and voluntarily. Thus, the district court correctly concluded that Mazurkiewicz waived all claims arising out of his February 2005 termination. We have considered all of Mazur-kiewicz’s remaining arguments and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.