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February 5, 1990


The opinion of the court was delivered by: Griesa, District Judge.


Plaintiff Brian Maher brings this action under Title VII of the Civil Rights Act of 1964, alleging sexual discrimination by his former employer, the United States Postal Service. Defendants in this action are the Postal Service, the United States Postmaster General and Maher's former supervisor, Aileen Wynne. Defendants move under Fed.R.Civ.P. 12(b)(1) and (6) to dismiss for lack of subject matter jurisdiction or failure to state a claim upon which relief can be granted. In the alternative, defendants move for summary judgment under Fed.R. Civ.P. 56(b).

The motion of the Postmaster General is denied, and the case will go to trial as to that defendant, except for one claim as later described. The motions of the Postal Service and Wynne are granted, and the case is dismissed as against them.


Maher began working as a letter carrier for the Postal Service on July 2, 1977. He remained at the Nanuet, New York post office until he was terminated on July 18, 1983.

On August 21, 1981 Zaher filed an Equal Employment Opportunity complaint with the Postal Service alleging that Wynne harassed him by saying that he was crazy and needed psychiatric treatment. The Service cancelled that complaint on November 9, 1981 on the ground that it did not come within the purview of EEO regulations. Maher did not challenge this disposition.

On February 2, 1982 Maher and ten other employees made an EEO complaint to the Service, charging that, "In the past year Mrs. Wynne has openly discriminated against the male employees in this office," and, "All Mrs. Wynne's disciplinary actions at present, have been directed toward male not female employees." The record before the court does not show what action, if any, was taken on this complaint.

On February 18, 1982 Wynne denied Maher a pay raise.

On February 22, 1983 Maher and others filed a "Report of Hazard, Unsafe Condition or Practice" with the Postal Service Regional Safety Officer. In essence, the complaint stated that letter carriers were more vulnerable to accidents because Wynne did not give them enough time to make their rounds. Again, the record before the court does not show how this was disposed of.

On April 11, 1983 Maher injured himself while on the job. A doctor prescribed medication and home bed-rest. On May 3 the doctor told Maher that he could return to work in 5 days. Only 2 days later, postal officials observed Maher giving racquetball lessons at a local park. One official ordered him to return to work the following day. Maher did so. He was paid during the period of his absence.

Wynne became postmaster of the Nanuet post office in early June of 1983. On June 16 she issued a Notice of Removal to Maher, discharging him effective July 18, 1983 for "Attempting and Obtaining Continuation of Pay Under False Pretenses" in connection with the April injury and May racquetball incident.

On July 3, 1983 Maher filed an EEO complaint with the Postal Service, alleging that Wynne terminated him in reprisal for his filing the February 2 EEO claim against her. He also claimed that a former Nanuet postmaster, John Mattinson, was involved with Wynne in having Maher terminated, in reprisal for Maher's safety hazard complaint.

On December 23, 1983 the Postal Service issued Maher a Notice of Proposed Disposition of the July 1983 complaint, informing him that the Service had found his allegations to be unsupported by the facts. The notice stated that if he was dissatisfied with the proposal, he could request a final decision from the Service without a hearing or request a hearing by a complaints examiner appointed by the Equal Employment Opportunity Commission ("EEOC"). If such a hearing were held, the examiner would submit his findings to the Postal Service for issuance of its final decision. The notice further advised that if Maher failed to notify the Postal Service of his wishes, the Service might adopt the proposed disposition as its final decision, after which he could either appeal to the EEOC or file a civil action in federal court within 30 days. Finally, the notice advised him that he could file a civil action within 180 days from the date of filing his complaint on July 3, 1983 if no final decision had been issued.

By letter of January 9, 1984, slightly over 180 days after the filing of the complaint, Maher requested a hearing before the EEOC complaints examiner. Maher was notified that a hearing would be held February 19, 1985 and that his claim could be cancelled for failure to prosecute if he did not appear. Maher did not attend the hearing. On February 22, 1985 the examiner recommended that the Postal Service cancel the complaint for failure to prosecute, which was done. On April 30, 1985 the Postal Service notified Maher of this action and advised that he had a right to appeal this disposition to the EEOC.

Maher appealed by letter of May 10, 1985, stating that he did not appear at his hearing because a new job and various personal problems made it impossible for him to find the time. He also stated that he no longer lived at the address furnished to the Postal Service to which notices were sent. As a consequence, he received his mail only when he was able to stop by his old residence and pick it up. However, Maher did not deny receipt of the notice prior to the scheduled hearing date.

On December 16, 1985 the EEOC affirmed the cancellation for failure to prosecute. The EEOC sent a copy of its decision to Maher along with a "Statement of Appellant's Rights" which advised that the decision was final and that Maher had a right to file a civil action in federal district court within 30 days.

Maher then commenced the present action. He sued pro se. The pro se clerk's office received Maher's complaint in early January 1986, 23 days after the time of the EEOC decision. However, it was not filed with the Clerk of the Court until some time after the 30-day period expired.

This court ruled that the suit was timely brought but dismissed the case for lack of subject matter jurisdiction, since Maher had failed to name the Postmaster General as a defendant. The judgment was vacated on appeal, and the case was remanded so that Maher could amend his complaint. Maher, no longer proceeding pro se, filed ...

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