Full opinion text
ORDER GERSHON, United States District Judge. In a sixty-five page report and recommendation (“R & R”) dated January 19, 2006, Magistrate Judge Viktor V. Pohorel-sky recommends that judgment be granted in favor of defendants. Specifically, Judge Pohorelsky recommends that the plaintiffs motion for partial summary judgment be denied; that the defendants’ motion for summary judgment dismissing the complaint be granted; that the plaintiffs motion to strike portions of the record be denied in part and dismissed as moot in part; and that the defendants’ motion to strike portions of the record be granted in part and denied in part. The pro se plaintiff has filed objections, which have been reviewed de novo pursuant to Rule 72(b) of the Federal Rules of Civil Procedure. To begin with, plaintiff claims that Judge Po-horelsky did not rule on his motion for summary judgment and that the motions to strike were not within his referral jurisdiction. Both claims are clearly incorrect. Judge Pohorelsky’s R & R exhaustively examines each of the claims raised by the plaintiff. For example, in an impeccable and detailed analysis, which plaintiff does not refute, he concludes that many of the claims are either time-barred or that the court has no jurisdiction over them. The court adopts Judge Pohorelsky’s analyses and conclusions at to these issues. The court also adopts Judge Pohorelsky’s conclusion that the federal enclave doctrine bars plaintiffs state law claims of discrimination and breach of implied contract. Plaintiffs argument that the R & R, in this respect, rests on Judge Pohorelsky’s “personal opinion” (Objections at p. 27) is simply wrong. Judge Pohorelsky’s conclusion that Brookhaven National Laboratories is a federal enclave and that plaintiffs claims are barred is fully supported by the law and the indisputable facts. See Schiappa, Sr. v. Brookhaven Science Associates, LLC, 403 F.Supp.2d 230, 236-38 (E.D.N.Y.2005). With respect to whether summary judgment is appropriate on plaintiffs remaining Title VII and ADEA claims and state discrimination claim, Judge Pohorelsky has generously read plaintiffs claims, accurately described the applicable law and applied it with care and sensitivity to plaintiffs’ pro se status (even though plaintiff is law-trained). Judge Pohorelsky’s conclusions that plaintiff has either failed to establish an inference of discrimination sufficient to make a prima facie case or that no reasonable juror could conclude, on the basis of all of the facts, that he was discriminated against, or retaliated against, on the basis of his race, color, national origin or age are fully supported and plaintiffs objections are without merit. Judge Pohorelsky addressed all of the underlying factual issues, including whether plaintiff had provided sufficient evidence of proper comparators. Plaintiffs complaints about the R & R either mischaracterize the R & R or are simply not supported in the evidence. Finally, the R & R correctly rejects plaintiffs claims under ERISA and state claims of breach of the covenant of fair dealing and fraud. In sum, the R & R is adopted in its entirety and the Clerk of Court is directed to enter judgment for the defendants dismissing .this action. SO ORDERED. REPORT AND RECOMMENDATION VIKTOR V. POHORELSKY, United States Magistrate Judge. Both the plaintiff Dr. Muthu Sundaram and the defendants — Brookhaven National Laboratory, Associated Universities, Inc., Dr. Leon Petrakis and Meyer Steinberg— have made motions for summary judgment in this employment discrimination case. As an adjunct to these motions, the plaintiff and the defendants have each moved to strike a portion of the record submitted by the other in support of their respective positions on the motions. These motions have been referred to me by Judge Ger-shon for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). As detailed below, I recommend that (1) the plaintiffs motion for summary judgment be denied, (2) the defendant’s motion for summary judgment be granted, (3) the plaintiffs motion to strike portions of the record be denied in part and dismissed in part as moot, and (4) the defendants’ motion to strike portions of the record be granted in part and denied in part. I. FACTS The following facts are not in dispute unless otherwise indicated. Dr. Sundar-am’s claims here arise from his extended employment as a research scientist at the Brookhaven National Laboratory, a research laboratory owned by the United States Department of Energy (“DOE”) and operated by Associated Universities, Inc. under a contract with DOE. Def. LR 56.1 Stmt ¶ 5. When the plaintiffs employment commenced on September 1,1981, he was placed on the Scientific Staff in a tenure track position where he served for seven years under a series of term appointments ranging in duration from one to two years. Id. ¶¶ 36^41. In 1988, after he failed to receive tenure, the plaintiff was placed on the Professional Staff, id. ¶ 47, where he continued his employment for three more years until September 30, 1991 under a variety of arrangements. Id. ¶¶ 48, 51, 54, 63, 64, 74, 80, 84, 94, 101, 103, 106. The last arrangement was a term appointment for a period of one year running from October 1, 1990 through September 30,1991. Id. ¶¶ 106,108. Throughout his ten years at Brookha-ven, the plaintiff worked as a coal chemist in the Department of Applied Science (“DAS”). Id. ¶¶ 3, 36-37, 50. Funding for the work done by that department, as well as for most of the laboratory’s operations, came primarily from the DOE in the form of grants for specific research programs authorized by the DOE. Id. ¶¶ 21-28. In the late 1980’s, government funding for research at the laboratory declined significantly, such that the Process Science Group of the DAS, the group to which the plaintiff was assigned during most of his employment at the laboratory, experienced a decline in its budget from $2.2 million in 1986 to $660,000 in 1990. Id. ¶¶56, 58. The Chairman of the DAS at that time, Dr. Petrakis, reorganized the department in early 1990 and reassigned the plaintiff to the Applied Physics Division headed by Dr. Kelvin Lynn. Id. ¶¶ 56, 64. Although the plaintiff disputes whether lack of funding was the real reason his employment was ultimately terminated, he does not dispute that funding for his new position in the Applied Physics Division was in short supply. Sundaram Dep. 190; Sundaram Dep. Exs. 19, 20. Thus in mid-May 1990, the plaintiff received a four and one-half month appointment on the understanding that the plaintiffs employment would terminate on September 30, 1990 unless sufficient full-time funding support for him was provided by DOE. Def. LR 56.1 Stmt ¶ 80; Sundaram Dep. Ex. 20 (found in Def. Appx Vol. I, Ex. B). When no such support materialized, Petrakis advised the plaintiff in late September 1990 that his employment would terminate at the agreed upon date. Def. LR 56.1 Stmt ¶¶ 92-94. Shortly before termination, however, the plaintiffs former supervisor, Meyer Stein-berg, proposed that the plaintiff be reassigned to work under him on the Mild Gasification program to which the plaintiff had been assigned for much of his career. Id. ¶ 95. That proposal was accepted by the laboratory and funding for his position was obtained by canceling a technician’s position on the program. Id. ¶¶ 99-101, 111. The plaintiff thus received a final one-year appointment from October 1, 1990 through September 30, 1991. Id. ¶ 106. At the conclusion of that appointment, the plaintiffs employment at the laboratory ended when funding for the Mild Gasification program was terminated by the DOE. Id. ¶¶ 119-120, 135. As a result of that loss of funding the entire Process Science Group to which the plaintiff had been assigned was dissolved. Id. ¶ 136. The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on April 21, 1992. Holland Aff. ¶ 1; Sundaram Dep. Ex. 29. On January 27, 1994, the EEOC mailed a Notice of Right to Sue to the plaintiff. Holland Aff. ¶ 5. The plaintiff then commenced the instant action on May 12, 1994. He thereafter filed a Verified Amended Complaint in October 1994 and a Verified Second Amended Complaint (hereinafter the “complaint”) in January 1995. ' The plaintiffs complaint states ten claims for relief, a number of which have been withdrawn by stipulation. In the claims that remain, broadly stated, plaintiff alleges that the defendants discriminated against him on the basis of race, color, national origin and age in making various employment decisions, including his termination, in violation of section 1981 (42 U.S.C. § 1981), Title VII (42 U.S.C. §§ 2000e et seq.), the Age Discrimination in Employment Act (29 U.S.C. §§ 621 et seq.) (hereinafter the “ADEA”), and state law (N.Y. Exec. Law § 297; N.Y. Civ R. Law § 40-c). He further claims that the defendants retaliated against him in violation of Title VII. The plaintiff also asserts an ERISA claim (29 U.S.C. § 1140) and state common law claims for breach of an implied contract, breach of the covenant of good faith and fair dealing, and intentional tort. Finally, the complaint also asserts that false and fraudulent misrepresentations were made to the plaintiff which may be construed as a common law fraud claim. II. DEFENDANTS’ SUMMARY JUDGMENT MOTION The defendants’ motion for summary judgment attacks the plaintiffs’ claims on a variety of fronts, including the statutes of limitations, the absence of jurisdiction for certain claims, and the legal and factual insufficiency of most of the claims. Those lines of argument necessary for a determination of the defendants’ motion are considered below. A. SUMMARY JUDGMENT STANDARDS A motion for summary judgment will be granted when there is no material issue of fact to be decided and the undisputed facts warrant judgment for the moving party as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Institute for Shipboard Educ. v. Cigna Worldwide Inc. Co., 22 F.3d 414, 418 (2nd Cir.1994). If a reasonable jury could return a verdict for the non-movant, then a material issue of fact remains in contention and the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The materiality of the facts is determined by the substantive law governing the claims. Id. at 248, 106 S.Ct. 2505. The burden of proving that no material issue of fact remains in dispute rests on the movant. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Once a motion has been made, however, the non-moving party must set forth specific factual allegations to avoid summary judgment. Kurisoo v. Providence and Worcester R.R. Co., 68 F.3d 591, 594 (2nd Cir.1995); Fahle v. Braslow, 913 F.Supp. 145, 149 (E.D.N.Y.1996), aff'd, 111 F.3d 123 (2nd Cir.1997) (citations omitted). Conclusory, ipse dixit assertions will not defeat a summary judgment motion. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2nd Cir.1990). Although the non-moving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment, Rule 56(c) and (e) provide that the non-moving party cannot rest on the pleadings but must set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions on file showing there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (1986); United States v. Rem, 38 F.3d 634 (2nd Cir.1994). Any ambiguities and all inferences must be drawn in favor of the nonmovant. Institute for Shipboard Educ. v. Cigna Worldwide Ins. Co., 22 F.3d 414, 418 (2nd Cir.1994); Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2nd Cir.1990). District courts should be particularly wary of granting judgment in employment discrimination cases because direct evidence of the defendant’s discriminatory intent is rare. Gallo v. Prudential Residential Services Ltd. Partnership, 22 F.3d 1219, 1224 (2nd Cir. 1994). However, the purposes of summary judgment — avoiding protracted and expensive litigation — apply no less to discrimination cases than to other kinds of trials, Johnson v. New York City Bd. of Educ., 2000 WL 1739308, at *1 (E.D.N.Y. Oct.10, 2000) (citing Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2nd Cir.1996)), and summary judgment is not necessarily precluded even when intent is at issue. Taylor v. Polygram Records, 1999 WL 124456, at *7 (S.D.N.Y. Mar.8, 1999). B. LIMITATIONS PERIODS A number of different periods of limitation apply to the various claims in this action, including limitations on the times when claims may be asserted before the EEOC and when actions may be brought in federal court. The various periods are considered separately below. 1. Title VII and the ADEA (a) Filing Charges with the EEOC Under both Title VII and the ADEA, a plaintiff must file a charge of discrimination with the EEOC within 180 days after the claim accrued, or within 300 days after the claim accrued if he has filed a charge with a state agency that has authority to investigate such claims. See 42 U.S.C. § 2000e-5(e)(l); 29 U.S.C. §§ 626(d)(1), 633(b); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2nd Cir.1998). The plaintiff filed his charge of discrimination with the. EEOC on April 21, 1992. Although there is no evidence that the plaintiff filed a charge of discrimination with any state agency in connection with his claims in this action, the parties and the EEOC investigator who was assigned to the plaintiffs complaint have all assumed that the 300-day limitation period applies, and the court therefore adopts that period for its analysis. Accordingly, claims of discrimination under Title VII and the ADEA that accrued more than 300 days before April 21, 1992 — i.e., before June 26,1991 — are barred. In view of the above limitations period, a number of the plaintiffs Title VII and ADEA claims are barred because they accrued before June 26,1991. These include the claims based on the following events: (1) the denial of a continuing appointment for the 1989 fiscal year (Complaint ¶ 8(b)); (2) the plaintiffs demotion to Research Assistant in 1988 (Complaint ¶ 9(a)); (3) the failure to promote the plaintiff in 1990 (Complaint ¶ 9(b)); (4) the plaintiffs demotion to technician for the 1991 fiscal year which commenced on October 1, 1990 (Complaint ¶ 9(c)); (5) any failures to give the plaintiff raises in pay prior to June 26, 1991 (Complaint ¶¶ 12, 22); (6) any failures to give the plaintiff promotions prior to June 26, 1991 (Complaint ¶ 12); (7) the reduction in the plaintiffs pay in January 1990 (Complaint ¶ 20(a)); (8) the failure to assign the plaintiff to the PETC-2 research program for the 1991 fiscal year (Complaint ¶ 20(b)); (9) the denial to the plaintiff of the opportunity to seek research funds on May 14, 1990 (Complaint ¶ 21(b)); (10) the removal of the plaintiff as principal investigator of the METC-3 program in November 1990 (Complaint ¶ 23(a)); and (11) any failure to pay a salary equivalent to similarly situated white persons prior to June 26,1991 (Complaint ¶ 28). (b) The Continuing Violation Doctrine In an effort to save those claims from extinguishment, the plaintiff argues that the continuing violation doctrine preserves the claims that accrued before June 26, 1991. The continuing violation doctrine “extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination.” Kulkami v. City University of New York, No. 01 CV 3019(DLC), 2001 WL 1415200, at * 3 (S.D.N.Y. Nov.13, 2001) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2nd Cir.1998)). Under the continuing violation exception, if a plaintiff has filed a charge of discrimination “that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2nd Cir.1993), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994). To take advantage of the continuing violation exception, however, a plaintiff must clearly assert that theory of timeliness both in his EEOC charge and in his complaint. See Fitzgerald v. Henderson, 251 F.3d 345, 360 (2nd Cir.2001); Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2nd Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). In general, the continuing violation exception is looked upon unfavorably by the courts of this circuit. Brown v. Time, Inc., 1997 WL 231143, at * 3 (S.D.N.Y. May 7, 1997) (citing Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1415 (S.D.N.Y.1989)). The exception usually applies only in those cases involving specific discriminatory policies or mechanisms, such as discriminatory seniority lists or employment tests. E.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2nd Cir.1992); Kulkarni, 2001 WL 1415200, at * 3 (citations omitted). Thus, the exception does not apply to discrete, completed employment actions such as transfers, failures to promote, demotions, or inadequate wages. See, e.g., Griffin v. New York City Off-Track Betting Corp., 2002 WL 252758, at * 2 (S.D.N.Y. Feb.20, 2002) (citing Lightfoot, 110 F.3d at 907; Crosland v. City of New York, 140 F.Supp.2d 300, 308 (S.D.N.Y.2001)); Malarkey v. Texaco, 559 F.Supp. 117,121 (S.D.N.Y.1982), aff'd, 704 F.2d 674 (2nd Cir.1983) (per curiam). It “would subvert the underlying purpose of the time limit, which is to ensure expedition in the filing and handling of claims of discrimination,” to apply the continuing violation exception . in cases where a plaintiff is on notice of alleged discriminatory acts. Govia v. Century 21, Inc., 140 F.Supp.2d 323, 325 (S.D.N.Y.2001). A hostile work environment claim is also treated essentially as a continuing violation. Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134 (2nd Cir.2003) (citing National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 2074, 153 L.Ed.2d 106 (2002). Thus, “[a] claim of hostile work environment is timely so long as one act contributing to the claim occurred within the statutory period; if it did, ‘the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.’ ” Patterson v. County of Oneida, 375 F.3d 206, 220 (2nd Cir.2004) (quoting Morgan, 536 U.S. at 117, 122 S.Ct. 2061). Hostile work environment claims typically require proof “that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of plaintiffs work environment.” Payne v. New York City Transit Authority, 349 F.Supp.2d 619, 624 (E.D.N.Y.2004) (citing Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2nd Cir.2003))). A hostile work environment claim does not, however, resuscitate time-barred claims based on discrete acts such as terminations, failures to promote, refusals to transfer and the like. See Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2nd Cir.2004) and Elmenayer, 318 F.3d at 134 (both citing Morgan, 536 U.S. at 114, 122 S.Ct. 2061). Applying these principles, the court concludes that the continuing violation doctrine does not preserve the plaintiffs Title VII and ADEA claims arising from employment actions occurring before June 26, 1991. First, the continuing violation doctrine was not pleaded in the plaintiffs charge of discrimination filed with the EEOC, and the EEOC investigator who reviewed the plaintiffs charge did not regard it as stating such a theory. Holland Aff. ¶ 2. Nor is the theory clearly articulated in the plaintiffs second amended complaint. The 22-page, single-spaced complaint contains three isolated sentences in which the plaintiff alleges that he was “informed” and “believes” that BNL maintained a “pattern and practice” of discrimination against minorities in general, and against Asian Indians in particular. The allegations are conclusory and the complaint states no specific facts to support the existence of any such pattern and practice. Moreover, the plaintiff has neither pleaded, nor demonstrated, that any of the actions about which he complains were undertaken in pursuance of a discriminatory seniority policy or employment test. Rather, the actions were discrete events to which the continuing violation doctrine does not apply: failures to obtain promotions and pay raises, demotions and reductions in pay, and failures to obtain certain assignments. They occurred at different times, and the decisions were made by different persons. The plaintiff was on notice of the decisions, and any discriminatory animus that may have attended them, at the times when the decisions were made. Aside from the plaintiffs allegation that the decisions were motivated by discrimination, the plaintiff has not demonstrated that they were related or were the product of some overarching policy of discrimination against Asian Indians. Accordingly, putting aside the hostile work environment claim which is addressed separately below, the court concludes that there is no evidence to support the application of the continuing violation doctrine in this action. (c) Filing Complaints in Court A second statute of limitations applies to Title VII and ADEA claims. Before a plaintiff may assert such claims in a lawsuit, the plaintiff must receive a notice, commonly known as a right-to-sue letter, from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149, 104 S.Ct. 1723, 80 L.Ed.2d 196 (U.S.1984). Thereafter, the plaintiff has 90 days within which to institute a legal action. Id. The 90-day period is measured from the time when the plaintiff receives the right-to-sue letter. Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525 (2nd Cir.1996). In the absence of contrary evidence, there is a presumption that the plaintiff received the letter three days after it was mailed, and that the date of the letter is the date of mailing. Id. at 525-26 (citing Baldwin County Welcome Center v. Brown, 466 U.S. at 148 & n. 1). The defendants contend that the plaintiff failed to file this action within the 90-day period and that accordingly his Title VII and ADEA claims are time-barred. The facts concerning mailing and receipt are not in dispute. On January 14, 1994, the plaintiff telephoned Peter Holland, the EEOC investigator who was handling his complaint, to inquire about obtaining a right-to-sue letter. Holland Aff., ¶¶ 1, 4. He followed the telephone call with a memorandum which the EEOC received on January 25, 1994. Id. ¶ 4; Sundaram Dep. Ex. 31. On January 27, 1994, the EEOC sent a Notice of Right to Sue letter by certified mail to the plaintiff at his residence. Holland Aff. ¶ 5. According to records of the United States Postal Service, an attempt to deliver the certified letter was made on January 31,1994. Salerno Aff., ¶ 9. As delivery could not be completed, a notice was left in the plaintiffs mailbox that day advising him that he could pick up the article at the post office. Id. ¶ 10. When the plaintiff did not pick the item up within five days, a second delivery was attempted on February 7, 1994. Id. ¶ 11. Because the delivery again could not be made, a second notice was left which specifically identified the item to be delivered as a “letter” and the sender as the “EEO.” Id. ¶¶ 11-12 & Ex. A. The plaintiff eventually retrieved the letter on February 15, 1994. Id. ¶ 14 & Ex. A. The plaintiff filed this action on May 12, 1994, more than 90 days after delivery of the right-to-sue letter was attempted on January 31 and February 7, 1994, but less than 90 days after the letter was actually retrieved by the plaintiff. The circumstances thus present starkly the question whether the letter is deemed to have been received by the plaintiff when he received notice of delivery, as the defendants contend, in which case his Title VII and ADEA claims are time-barred; or when he actually received the letter, as the plaintiff contends, in which case those claims are timely. In Sousa v. N.L.R.B. the Second Circuit used the date of actual receipt to calculate the statutory period where a notice of certified mail was placed in the plaintiffs post office box on September 5 but he did not retrieve the letter until September 10. 817 F.2d 10, 10-11 (2nd Cir.1987). The court expressly premised its decision, however, on the determination that “[a] 5-day delay, which included a weekend, is not an unreasonable time for Sousa to have failed to visit the box.” Id. at 11. The court further observed that an “unexplained failure to visit a post office box for a long period of time might result in a different conclusion,” and pointedly rejected a Third Circuit decision which held that delivery of two notices of certified mail to a plaintiff did not trigger the statute of limitations. This led the court in O’Neal v. Marine Midland Bank, N.A, 848 F.Supp. 413 (W.D.N.Y.1994), to conclude that “when a claimant cannot offer a reasonable explanation for her failure to check her mailbox or pick up certified mail for an extended amount of time the 90-day statute of limitations clock should begin to run on a date before actual receipt of the right-to-sue notice.” Id. at 419. Other circuits have taken conflicting approaches. In Watts-Means v. Prince George’s Family Crisis Ctn, 7 F.3d 40, 41-42 (4th Cir.1993), the Fourth Circuit held that delivery of the notice to pick up certified mail triggered the running of the period when the plaintiff waited five days before picking up the mail. The Sixth Circuit has held that the right-to-sue letter is deemed received five days after it is mailed, absent proof to the contrary, and that delivery of a notice to pick up certified mail constitutes constructive receipt of the letter. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557-58 (6th Cir.2000); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 & n. 7 (6th Cir.1986). The Tenth Circuit, on the other hand, has chosen the date when the plaintiff actually picked up the certified mail, rather than the date of delivery of the notice, as the triggering date for the commencement of the 90-day limitations period. Jackson v. Continental Cargo-Denver, 183 F.3d 1186, 1189-90 (10th Cir.1999). The court there also recognized, however, that an earlier date might apply if a plaintiff knew or had reason to know that the certified mail was a right-to-sue letter but delayed picking it up in order to manipulate the limitations period. Id. at 1190 n. 1. Finally, the Seventh Circuit has adopted the rule “that when the EEOC sends a right-to-sue letter by certified mail, the 90-day limitations period presumptively begins to run on the day the plaintiff actually received the letter, so long as she picks it up within the time that the Post Office’s notice gives her before it will be returned to the sender.” Houston v. Sidley & Austin, 185 F.3d 837, 839 (7th Cir.1999). The Seventh Circuit’s rule appears to be the most sensible for the circumstances presented here. It has the benefit of establishing a bright line, thus avoiding inquiry and litigation concerning a plaintiffs knowledge of the contents of the letter and motivation for delaying receipt, as well as uncertainty about whether delays in picking up the letter were unreasonable. Thus, in the present case, since the plaintiff picked up the letter within the time specified by the Postal Service (albeit the last day before return), the statutory period should commence on that date. Because he commenced this action within 90 days after that date, it is timely. 2. Section 1981 Determining the limitations periods applicable to the plaintiffs claims under section 1981 requires an examination of section 1981 as it was interpreted by the Supreme Court prior to 1991, and a statutory amendment in 1991 that expanded the scope of section 1981. The issue also entails analysis of a statute enacted in 1990 that enlarged the statute of limitations for some federal actions. Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white persons.” 42 U.S.C. § 1981(a). Prior to the amendment of section 1981 enacted on November 21, 1991, the Supreme Court had determined that the statute was not “a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.” Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 (1989). Thus, section 1981 did not apply to any conduct by an employer that occurred after the employment relationship had been established, and could not be used to redress a whole host of discriminatory treatment including discriminatory working conditions, id. at 177, 109 S.Ct. 2363; racial harassment, id. at 178-79, 109 S.Ct. 2363; retaliation, Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 692-93 (2nd Cir.1998); and termination, Patterson v. Intercoast Mgmt. of Hartford, Inc., 918 F.2d 12, 14 (2nd Cir.1990), cert. denied, 500 U.S. 906, 111 S.Ct. 1686, 114 L.Ed.2d 81 (1991). The amendment of section 1981 that occurred in November 1991 expanded the scope of protection offered by the statute by redefining the phrase “make and enforce contracts” to include “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). Thus, after November 21, 1991, discriminatory conduct previously excluded from coverage by Patterson v. McLean Credit Union became actionable under section 1981. Section 1981 was not given retroactive effect, however. Rivers v. Roadway Exp., Inc., 511 U.S. 298, 303, 114 S.Ct. 1510, 1514-15, 128 L.Ed.2d 274 (1994). As a result, the expanded definition of “make and enforce contracts” does not apply to conduct occurring before November 21, 1991. Id. at 313, 114 S.Ct. at 1519-20. The above discussion concerning the scope of coverage of section 1981 is significant to the determination of the applicable statute of limitations because of the impact of another recent federal enactment on the statute of limitations for section 1981 actions. Like many federal statutes, section 1981 does not contain a statute of limitations. As a result, the Supreme Court had directed that federal courts should look to analogous state law to supply the statute of limitations for section 1981 actions. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 1839, 158 L.Ed.2d 645 (2004) (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987)). Thus, in New York a three-year statute of limitations was held to be applicable to section 1981 actions. Butts v. New York City Dep’t of Housing, 990 F.2d 1397, 1412 (2nd Cir.1993). In 1990, however, Congress enacted a “catchall” statute of limitations provision prescribing a four-year limitations period for all civil actions “arising under an Act of Congress enacted after the date of the enactment” of the catchall provision. 28 U.S.C. § 1658(a) (emphasis added). The Supreme Court recently held in R.R. Donnelley & Sons Co., 541 U.S. at 382, 124 S.Ct. at 1845, that this four-year limitations period applies to actions under section 1981 “if the plaintiffs claim against the defendant was made possible by” the 1991 amendment to that section. Thus, claims based on conduct occurring after November 21, 1991 which could not have been brought under section 1981 prior to that date because of the decision in Patterson v. McLean Credit Union are subjeet to the four-year limitations period prescribed in 28 U.S.C. § 1658(a). Because the Court’s decision in R.R. Donnelley & Sons Co. did not disturb its prior decisions in Goodman v. Lukens Steel Co. and Patterson v. McLean Credit Union, however, claims arising under section 1981 prior to November 21, 1991 remain subject to the three-year statute of limitations. See R.R. Donnelley & Sons Co., 541 U.S. at 382, 124 S.Ct. at 1845 (holding “leaves in place the ‘borrowed’ limitations periods for preexisting causes of action.”) (emphasis added) The net result of the above analysis of the statutes and Supreme Court decisions concerning the limitations periods applicable the plaintiffs claims under section 1981 here is that the three-year statute of limitations is applicable to all claims arising from conduct and events that occurred prior to November 21, 1991. Since this action was filed on May 12,1994, all claims under section 1981 arising from conduct that occurred before May 12, 1991 are barred. These include the claims based on the following events: (1) the denial of a continuing appointment for the 1989 fiscal year (Complaint ¶ 8(b)); (2) the plaintiffs demotion to Research Assistant in 1988 (Complaint ¶ 9(a)); (3) the failure to promote the plaintiff in 1990 (Complaint ¶ 9(b)); (4) the plaintiffs demotion to technician for the 1991 fiscal year which commenced on October 1, 1990 (Complaint ¶ 9(c)); (5) any failures to give the plaintiff raises in pay prior to May 12, 1991 (Complaint ¶¶ 12, 22); (6) any failures to give the plaintiff promotions prior to May 12, 1991 (Complaint ¶ 12); (7) the reduction in the plaintiffs pay in January 1990 (Complaint ¶ 20(a)); (8) the failure to assign the plaintiff to the PETC-2 research program for the 1991 fiscal year (Complaint ¶ 20(b)); (9) the denial to the plaintiff of the opportunity to seek research funds on May 14, 1990 (Complaint ¶ 21(b)); (10) the removal of the plaintiff as principal investigator of the METC-3 program in November 1990 (Complaint ¶ 23(a)); and (11) any failure to pay a salary equivalent to similarly situated white persons prior to May 12,1991 (Complaint ¶ 28). 3. State Human Rights Law The statute of limitations applicable to the state Human Rights Law, N.Y. Exec. Law § 297, is three years. Murphy v. Amer. Home Prod. Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983); N.Y.C.P.L.R. § 214(2). The statute is tolled, however, during the pendency of any complaint that is filed with the NYDHR. Penman v. Pan American World Airways, Inc., 69 N.Y.2d 989, 990-91, 517 N.Y.S.2d 719, 719, 510 N.E.2d 803 (1987). Because complaints filed with the EEOC are deemed constructively to be cross-filed with the NYDHR, the statute is also tolled during the pendency of a claim filed with the EEOC. E.g., Lee v. Overseas Shipholding Group, Inc., No. 00 Civ. 9682(DLC), 2001 WL 849747, *8 (S.D.N.Y. July 30, 2001); Martinez-Tolentino v. Buffalo State College, 277 A.D.2d 899, 899, 715 N.Y.S.2d 554, 555 (4th Dept.2000). Applying the above principles to the claims in this case, the instant action was filed on May 12, 1994 and the three-year statute of limitations thus makes claims based on events occurring after May 12, 1991 timely. Because of the tolling provisions of New York law, however, the period between April 21, 1992 (when the plaintiff filed his complaint with the EEOC) and January 27, 1994 (when the EEOC terminated its proceedings with the issuance of a right to sue letter)—a total of 646 days—is excluded. The effective date of the statute of limitation is thus backdated 646 days from May 12, 1991, which yields a new effective date of August 4, 1989. Claims under the Human Rights Law based on events occurring after August 4, 1989 are therefore timely, and those preceding that date are barred. The claims that are barred are those based on the following events: (1) the denial of a continuing appointment for the 1989 fiscal year (Complaint ¶ 8(b)); (2) the plaintiffs demotion to Research Assistant in 1988 (Complaint ¶ 9(a)); (3) any failure to pay a salary equivalent to similarly situated white persons prior to August 4, 1989. 4. Intentional Infliction of Emotional Distress The statute of limitations for claims of intentional infliction of emotional distress is one year. Rosado v. City of New York, 713 F.Supp. 124, 125 (S.D.N.Y.1989) (citing Jemison v. Crichlow, 139 A.D.2d 332, 531 N.Y.S.2d 919 (2nd Dep’t 1988), aff'd, 73 N.Y.2d 868, 537 N.Y.S.2d 487, 534 N.E.2d 325 (N.Y.1989) (applying N.Y. C.P.L.R. § 215(3))). Thus, any claims here for intentional infliction of emotional distress arising prior to May 12, 1993 are barred. Since all of the events upon which the plaintiffs claims are premised here predate May 12, 1993, any claim for this tort is barred. 5. ERISA Claim: Denial of Severance Benefits Under section 413(2) of ERISA, the statute of limitations for the plaintiffs ERISA claim based on the defendants’ denial of severance pay is three years. See Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2nd Cir.2001); 29 U.S.C. § 1113(2). The defendants argue that the plaintiffs claim is barred because it was first made in the second amended complaint, which was filed in January 1995, more than three years after his employment ended and his claim for severance benefits was denied. The argument overlooks Rule 15 of the Federal Rules of Civil Procedure which provides, in part, An amendment of a pleading relates back to the date of the original pleading when (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.... Fed.R.Civ.P. 15(c)(2). In his original complaint, filed on May 12, 1994, the plaintiff alleged that he was denied severance pay. Thus the ERISA claim made in the second amended complaint is based on “the conduct, transaction, or occurrence set forth” in the original complaint, and relates back to May 12, 1994, which was less than three years after severance benefits were denied. Accordingly, the claim is not barred by the statute of limitations. 6.Tortious Interference with Contract Under New York law, claims for tortious interference with contract and prospective contractual relations are subject to a three-year statute of limitations. See, e.g., Legion of Christ, Inc. v. Rita Cohen Realty Services, Ltd., 1 A.D.3d 572, 572, 767 N.Y.S.2d 632, 632 (2nd Dep’t 2003); Vanderminden v. Vanderminden, 226 A.D.2d 1037, 1043, 641 N.Y.S.2d 732, 738 (3rd Dep’t 1996); N.Y. C.P.L.R. § 214[4], The plaintiffs tortious interference claims here, by his own admission, stem from alleged conduct occurring in September of 1990, more than three years before the initial complaint was filed. See Sundaram Dep. 633-38. The claims are therefore barred. C. JURISDICTION 1. Title VII and the ADEA The defendants contend that the court may not exercise jurisdiction to decide the plaintiffs claims of harassment, retaliation, and failure to rehire insofar as they are made under Title VII and the ADEA because the plaintiff failed to include those claims in the complaint he filed with the EEOC. “Exhaustion of administrative remedies through the EEOC is ‘an essential element’ of the Title VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in federal court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2nd Cir.2001) (citing Francis v. City of New York, 235 F.3d 763, 768 (2nd Cir.2000)). “Thus, a district court only has jurisdiction to hear such claims where they were either included in an EEOC charge or are based on conduct subsequent to the charge which is ‘reasonably related’ to that alleged in the EEOC charge.” Sussle v. Sirina Protection Systems Corp., 269 F.Supp.2d 285, 314 (S.D.N.Y.2003) (citing Butts v. N.Y. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2nd Cir.1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2nd Cir.1998)). Adherence to this jurisdictional prerequisite is essential to preserve the purpose of filing an EEOC charge, “which is to encourage settlement of discrimination claims through conciliation and voluntary compliance.” Butts, 990 F.2d at 1401. That purpose would be defeated if a plaintiff could bring claims in a lawsuit which had not been presented to, and investigated by, the EEOC. Id. In Butts, which remains the leading exposition of the law in this Circuit concerning the issue, the court carefully categorized the three situations in which claims are deemed “reasonably related” to claims made in an EEOC complaint such that they may be brought in a subsequent lawsuit even though they were not included in the EEOC complaint. The first situation involves claims “where the conduct complained of would fall within the ‘scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’” Id. at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2nd Cir.1978)). This category of “reasonably related” claims is an allowance for loose pleading in recognition of the fact that EEOC complaints are often prepared, not by lawyers, but by employees unschooled in the nuances of the terminology found on the forms used for filing such complaints. Butts, 990 F.2d at 1402; see, e.g., Sharabura v. Taylor, No. 03 CV 1866(JG), 2003 WL 22170601, at *2-3 (E.D.N.Y. Sept.16, 2003). The second category of “reasonably related” claims are those alleging retaliation against an employee for filing an EEOC charge. Here the requirement of filing an EEOC charge is relaxed because of the close connection of the retaliatory act to the initial charge of discrimination and to the filing of the charge itself. Butts, 990 F.2d at 1402. Such claims of retaliation must, however, be based on conduct that occurred subsequent to the filing of the EEOC charge. See, e.g., Sussle v. Sirina Protection Systems Corp., 269 F.Supp.2d 285, 314-15 (S.D.N.Y.2003); Manessis v. New York City Dept. of Transp., No. 02 Civ. 359, 2003 WL 289969, *12 (S.D.N.Y. Feb. 10, 2003). Finally, the third category of “reasonably related” claims are claims where the plaintiff alleges further incidents of discrimination carried out in precisely the same manner as those alleged in the EEOC charge. Butts, 990 F.2d at 1402-O3. The relaxation of the filing requirement for these claims is in recognition of the probable futility of a further effort by the EEOC to conciliate such a claim when a previous charge alleging the exact same method of discrimination could not be resolved through conciliation. Id. The above principles compel the conclusion that the court has no jurisdiction over the plaintiffs harassment claim under the ADEA. Any such harassment would have to be based on workplace conduct that predated the plaintiffs termination, yet there is no mention of harassment because of the plaintiffs age in his EEOC charge which was filed long after he was terminated. Similarly, there is no jurisdiction for most of the plaintiffs harassment claims under Title VII. The only statements in the plaintiffs EEOC charge that may be construed as harassment are found in ¶ 8 in which the plaintiff alleges that defendants Petrakis and Hen-dry made insulting remarks to the plaintiff concerning his ethnicity and applied oppressive policies against him along with Steinberg, Lynn and Manowitz. Thus, except to the extent that the plaintiff presses harassment claims based on such insulting comments and oppressive policies relating to his ethnic origin, all Title VII harassment claims should be dismissed. The plaintiffs failure to rehire claims under Title VII and the ADEA suffer a similar fate. Those claims relate to alleged applications made by the plaintiff for positions at BNL after he was terminated. By his own admission in his Local Civil Rule 56.1 statement, some of those applications were made before he filed his EEOC charge; others were made after he filed the charge. See PI. LR 56.1 Counter-Stmt Appx ¶¶ 26.16.1, 26.17.1, 26.17.2, 26.17.3, 26.17.4, 26.17.5. Yet there is no mention in his EEOC charge of any discriminatory failure to rehire him. Thus, any claims for failure to rehire that arose prior to the charge are clearly barred because they were not included in the charge. Butts, 990 F.2d at 1401; accord, Miller v. International Tel. and Tel. Corp., 755 F.2d 20, 25-26 (2nd Cir.)(no jurisdiction over failure to rehire claim when not made in EEOC charge), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122, reh’g denied, 474 U.S. 1015, 106 S.Ct. 552, 88 L.Ed.2d 479 (1985). Any claims for failure to rehire that arose after the EEOC charge are also barred as they cannot be found to reasonably relate to the claims made in the EEOC charge. The EEOC charge complains only of pre-termination discriminatory conduct. There is no mention of any failures to rehire occurring before the EEOC charge was made, or of any other post-termination discriminatory conduct by the defendants for that matter. Rather since the EEOC charge only made allegations of discrimination occurring up to the point of termination, and did not allege post-termination discrimination of any kind, alleged failures to rehire would not fall within the “scope of the EEOC investigation which [could] reasonably be expected to grow out of the charge of discrimination.” Butts, 990 F.2d at 1402. Finally, the retaliation claims are also barred to the extent they relate to any conduct occurring up to the point when the EEOC charge was filed on April 21, 1992. There is no mention in the EEOC charge of retaliation because of protected activity, and there are no facts alleged in the charge that could reasonably be construed to make any such claims. On the other hand, however, to the .extent that the plaintiff can establish a retaliatory motive for any conduct by the defendants that occurred after he filed his charge, the plaintiff would have a cognizable claim for retaliation because it would be deemed “reasonably related” to the claims in the charge under the second prong of the Butts analysis above. Here, the only discrimination alleged to have occurred after the filing of the EEOC charge concerns an alleged failure to rehire the plaintiff for a position to which he applied. Thus, the court would have jurisdiction,, on a retaliation theory, over the failure to rehire claim that arose after the EEOC charge was filed. To sum up, with respect to the plaintiffs claims of harassment, retaliation, and failure to rehire made under Title VII and the ADEA, the court has jurisdiction to hear only the plaintiffs claim of harassment on the basis of ethnic origin and the claim of retaliation for failure to rehire after April 21, 1992. All other claims for harassment, failure to rehire, and retaliation under Title VII and the ADEA should be dismissed for lack of jurisdiction. 2. The Federal Enclave Doctrine The defendants contend that because the Brookhaven National Laboratory is a federal enclave the state antidiscrimination statutes upon which his state law claims of discrimination rest do not apply to the defendants. The argument has merit. The United States Constitution provides Congress with exclusive jurisdiction over property “purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, magazines, Arsenals, dock-Yards and other needful Buildings.” ' U.S. Const, art. I, § 8, cl. 17. “It is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides ‘clear and unambiguous’ authorization for such regulation.” Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180, 108 S.Ct. 1704, 1709, 100 L.Ed.2d 158 (1988) (citing EPA v. State Water Resources Control Board, 426 U.S. 200, 211, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Hancock v. Train, 426 U.S. 167, 178-179, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976); Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943)). Thus, “a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.” Goodyear Atomic Corp., 486 U.S. at 181, 108 S.Ct. 1704 (citing Hancock, 426 U.S. at 168-79, 96 S.Ct. 2006). Under the federal enclave doctrine, a state loses the right to legislate with respect to activities occurring in the enclave unless it reserved its right to do so when it consented to the purchase of the property by the United States. Paul v. United States, 371 U.S. 245, 268, 83 S.Ct. 426, 440, 9 L.Ed.2d 292 (1963). Thus, although state laws in effect when jurisdiction is transferred to the United States remain in force, subsequently enacted state laws have no application. Celli v. Shoell, 995 F.Supp. 1337, 1341 (D.Utah 1998) (citing Paul v. United States, 371 U.S. at 268, 83 S.Ct. 426; James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99-100, 60 S.Ct. 431, 84 L.Ed. 596 (1940)); Stokes v. Adair, 265 F.2d 662, 665 (4th Cir.), cert. denied, 361 U.S. 816, 80 S.Ct. 56, 4 L.Ed.2d 62 (1959). The doctrine has been applied uniformly to bar the application of state law, including state discrimination statutes, with respect to activities conducted by private employers on federal enclaves. See, e.g., Kelly v. Lockheed Martin Services Group, 25 F.Supp.2d 1, 4-5 (D.P.R.1998) (territory discrimination laws inapplicable to private contractor at federal enclave); Miller v. Wackenhut Services, Inc., 808 F.Supp. 697, 699-700 (W.D.Mo. 1992) (state discrimination laws inapplicable to private employee); Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976) (state environmental laws inapplicable to federal enclave). Similarly, state common law claims that were not recognized at the time of jurisdictional transfer may not be pressed with respect to activities on federal enclaves. See Celli v. Shoell, 995 F.Supp. at 1342-46. There is no dispute that Brookha-ven National Laboratory is a federal enclave to which the doctrine applies. The United States purchased the property from the State of New York under a Deed of Cession of Jurisdiction dated July 17, 1933 signed by the Governor of New York, Herbert H. Lehman, and authorized by law enacted by the state legislature. See Deed of Cession, July 17, 1933, Goldman Aff. Ex. C. The Deed granted jurisdiction over the property to the United States with one condition, specifically, that the State of New York shall retain a concurrent jurisdiction with the United States on and over the property and premises so conveyed, so far as that all civil and criminal process, which may issue under the laws or authority of the State of New York, may be executed thereon in the same way and manner as if such jurisdiction had not been ceded Id. at 5. There is also no dispute that the Laboratory performs a federal function. During the period in question here, it was funded almost entirely by grants from the Department of Energy for research programs specifically authorized by that Department. It follows then that state laws enacted after 1933 and state common law claims first recognized after 1933 do not apply to the work of the Laboratory. Neither the New York Human Rights Law nor the New York Civil Rights Law under which the plaintiff presses his discrimination claims here were in effect at that time. Similarly, New York did not recognize claims for breach of contracts of employment implied from employee handbooks or tort claims for unlawful discharge until well after 1933. See, e.g., Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982) (handbook claim first recognized); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) (rejecting existence of tort claims for abusive’or wrongful discharge). The plaintiff nevertheless argues that the doctrine does not apply here because the Deed of Cession made by the State of New York reserves to the state certain concurrent jurisdiction over the property conveyed. The express terms of the scope of concurrent jurisdiction is extremely limited, however, to the state’s right to serve civil and criminal process on the property. Deed of Cession, Goldman Aff. Ex. C, at 5. It does not provide the state with jurisdiction to regulate, by legislation or otherwise, the activities on the enclave. Similar reservations of rights, which are quite common in grants made by states to the United States, see James v. Dravo Contracting Co., 302 U.S. 134, 146, 58 S.Ct. 208, 82 L.Ed. 155 (1937) (reservations of this sort were common and were made in order to prevent the granted places from becoming a sanctuary for fugitives from justice), have never been held to bar application of the federal enclave doctrine. See, e.g., Celli v. Shoell, 995 F.Supp. at 1341—1342; Wackenhut Services, Inc., 808 F.Supp. at 699-700; see also Paul v. United States, 371 U.S. at 265, n. 31, 83 S.Ct. 426. The plaintiff also argues that the defense was not pleaded by the defendants and that he therefore has not had an opportunity to conduct discovery to meet it. This argument would have merit if the plaintiff had suggested discovery that he wished to conduct to counter the defense. See Fed.R.Civ.P. 56(f). Nor does the court see any fruitful area of discovery that would bear on the facts required to decide whether the Laboratory is a federal enclave, namely that the property was ceded to the United States by the State of New York and that it is used for federal functions. Those facts are essentially unassailable. Accordingly, the court sees no basis for denying judgment to permit further discovery on the issue, and recommends that the plaintiffs state law discrimination claims, as well as his breach of implied contract claims, be dismissed. 3. New York Civil Rights Law § kO-c Even if the federal enclave doctrine did not apply, the plaintiffs claims for violations of section 40-c of the New York Civil Rights Law must be dismissed because he failed to, give the necessary notice to the Attorney General of New York before making those claims. Section 40-d of the New York Civil Rights Law provides a private right of action to any person who suffers a violation of section 40-c, but further provides, “[a]t or before the commencement of any action under this section, notice thereof shall be served upon the attorney general.” N.Y. Civ. Rights Law § 40-d. New York courts have consistently held that notice to the attorney general is an essential prerequisite to actions for violations of section 40-c. See, e.g., Giaimo & Vreeburg v. Smith, 192 A.D.2d 41, 45-46, 599 N.Y.S.2d 841, 844 (2nd Dep’t 1993); Silver v. Equitable Life Assur. Soc. of U.S., 168 A.D.2d 367, 368, 563 N.Y.S.2d 78, 80 (1st Dep’t 1990); accord Shepard v. Frontier Communications Services, Inc., 92 F.Supp.2d 279, 287 (S.D.N.Y.2000); Harvey v. NYRAC, Inc., 813 F.Supp. 206, 212 (E.D.N.Y.1993). Accordingly, the plaintiffs claims for violations of section 40-c of the New York Civil Rights Law should be dismissed. D. FACTUAL AND LEGAL INSUFFICIENCY Putting aside the claims that are time-barred or for which there is no jurisdiction, the claims that remain are (1) the plaintiffs claims of discrimination and retaliation under Title VII, the ADEA, and section 1981, (2) an ERISA claim for denial of severance benefits, and, if deemed to be pleaded, (3) a common law fraud claim. 1. The Claims of Discrimination Before addressing the legal considerations that underlie an analysis of the summary judgment motion, a chronological statement of the various claims of discrimination which will be reviewed for factual sufficiency is useful. As noted above, a number of the events upon which the plaintiffs claims of discrimination rest occurred outside the statute of limitations or were not raised in his EEOC complaint. The events that remain under consideration are those that occurred on or after May 21, 1991 (for claims under § 1981) and on or after June 26, 1991 (for claims under Title VII and the ADEA). The claims that are not time-barred or jurisdic-tionally barred are those based on the following events: the denial of a tuition reimbursement in August 1991 on the basis of the plaintiffs race, color, national origin or age; the termination of the plaintiff in September 1991 on the basis of his race, color, national origin or age; the harassment of the plaintiff on various occasions prior to September 30, 1991 on the basis of his national origin; and the failure to rehire the plaintiff after September 30, 1991 on the basis of his race, color or national origin. a) Legal Considerations Whether brought under Title VII or section 1981, plaintiffs claims of discrimination are analyzed under the familiar burden-shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2nd Cir.2005) (ADEA and Title VII); Mandell v. County of Suffolk, 316 F.3d 368, 377 (2nd Cir.2003) (Title VII); McLee v. Chrysler Corp., 109 F.3d 130, 134-35 (2nd Cir.1997) (Title VII and § 1981); Potenza v. City of New York Dept. of Transp., No. 00 Civ. 707, 2001 WL 1267172, at *9 (S.D.N.Y. Oct. 23, 2001). First, the plaintiff must offer evidence to establish a prima facie case of discrimination. This burden is often met by a demonstration that the plaintiff (1) belonged to a protected class, (2) was performing his duties satisfactorily, (3) suffered an adverse employment action, and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of the plaintiffs membership in the protected class. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2nd Cir.1995). Plaintiffs burden at this stage is de minimis. Quaratino v. Tiffany & Co., 71 F.3d at 65. Once the plaintiff proves his prima facie case, there is a “presumption that the employer unlawfully discriminated against the employee.” Scaria v. Rubin, 117 F.3d 652 (2nd Cir.1997) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). The defendant is then required to articulate a legitimate and nondiscriminatory explanation for its conduct. Id. at 654. This burden is meant primarily to compel the defendant to speak rather than “simply [remain] silent while the plaintiff founders on the difficulty of proving discriminatory intent.” Fisher v. Vassar College, 114 F.3d 1332, 1337 (2nd Cir.1997). Accordingly, the burden is light. Quinones v. R.H. Macy & Co., Inc., 1999 WL 167692, at *4 (E.D.N.Y.Feb.16, 1999). It is satisfied by defendant’s mere production of some evidence that its conduct was motivated by legitimate and nondiscriminatory reasons; in other words, there is no burden of proof on defendant to persuade the trier of fact of that reason’s truth. St. Mary’s Honor Center, 509 U.S. at 507, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2nd Cir.1998). If the defendant meets this burden of production, the presumption of discrimination created by the plaintiffs prima facie case is rebutted and “simply drops out of the picture.” Id. at 502, 113 S.Ct. 2742. It does not follow, however, that the plaintiffs Title VII claim is thus defeated. Rather, the defendant’s offer of a legitimate reason triggers the next and final phase of the McDonnell-Douglas scheme, where the plaintiff must show that the defendant’s proffered reasons are a pretextual “mask for unlawful discrimination.” Fisher, 114 F.3d at 1337 n. 5. In so doing, the plain