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GUICE-MILLS v. BROWN

May 2, 1995

CONSTANCE GUICE-MILLS, Plaintiff, - v - JESSE BROWN, SECRETARY OF VETERANS AFFAIRS, Defendant.


The opinion of the court was delivered by: HAROLD BAER, JR.

 HAROLD BAER, JR., United States District Judge:

 Plaintiff Constance Guice-Mills was a nurse at the Montrose, N.Y., hospital of the United States Department of Veterans Affairs (the "VA"). She retired on disability in April or May of 1986. Plaintiff complains of discrimination with respect to race, color, gender, handicap and age, as well as retaliation for prior complaints. Am. Compl. P 9. The Amended Complaint contains particular allegations only regarding the retaliation claim. Plaintiff alleges that the VA violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Her age discrimination claim arises under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). The handicap claim must be countenanced if at all under the Rehabilitation Act 1973, 29 U.S.C. § 701 et seq. (Rehabilitation Act), since the Americans With Disabilities Act, 42 U.S.C. § 12100 et seq., ("ADA") does not apply to the United States as an employer. See 42 U.S.C. § 12111(5)(B)(i) (excluding the United States from definition of "employer" for purposes of Title I of the ADA); Schafer v. Wadman, 1992 U.S. Dist. LEXIS 17538, 92 Civ. 2989, 1992 WL 350750, *3 (S.D.N.Y. Nov. 17, 1992) (dismissing ADA claim against United States).

 Plaintiff alleges four discriminatory actions: the VA's failure to hire her, the termination of her employment, the failure to promote her, and reprisal. While the Amended Complaint contains no details concerning the allegedly discriminatory termination of her employment and failure to promote her, these claims appear to relate to plaintiff's earlier employment with the VA, which ended in 1986 when plaintiff's application for a disability retirement was approved. See Guice-Mills v. Derwinski, 772 F. Supp. 188, 196 (S.D.N.Y. 1991) (discussing facts leading up to plaintiff's unsuccessful lawsuit under Rehabilitation Act), aff'd, 967 F.2d 794 (2d Cir. 1992), motion to file cert. petition out-of-time denied, 113 S. Ct. 1234 (1993).

 With respect to the retaliation claim, plaintiff alleges that the chief personnel officer for the Montrose hospital stated on or about June 1, 1992, "that he would not rehire me because I would file another EEO complaint." Am. Compl. P9; page 3A. The plaintiff states that she learned of this statement in early December, 1992 while reviewing her occupational counselor's file, which allegedly contained an entry noting the statement. Id., Ex. 6 at 2.

 The defendant moved to dismiss the Amended Complaint for failure to state a claim. Argument was heard on March 16, 1995. The VA contends inter alia that the plaintiff failed to exhaust her administrative remedies in a timely manner. For the reasons discussed below, the defendant's motion must be granted.

 DISCUSSION

 A. Standard for Rule 12(b)(6) Motions

 In determining the sufficiency of a pro se complaint, it is axiomatic that the court must construe it liberally, applying less stringent standards than when counsel prepared the pleading. Hughes v. Rowe, 449 U.S. 5, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980). When considering any motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992).

 
The issue [on a motion to dismiss] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.

 Scheuer, 416 U.S. at 236. Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991).

 B. Exhaustion of Administrative Remedies

 Suits against federal agencies under Title VII, the ADEA, and the Rehabilitation Act are governed by regulations promulgated by the United States Equal Employment Opportunity Commission ("EEOC"), the current version of which are set forth at 29 C.F.R. §§ 1614.101 et seq. (1993). *fn1" These regulations establish a comprehensive system to resolve discrimination claims administratively. This administrative mechanism serves two vital purposes: (1) "giving the administrative agency the opportunity to investigate, mediate and take remedial action," Stewart v. INS, 762 F.2d 193, 198 (2d Cir. 1985); and (2) "encouraging settlement of discrimination disputes ...


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