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June 25, 1996


The opinion of the court was delivered by: MUKASEY


 Marguerita Dillard sues Marvin Runyon, Postmaster General of the United States Postal Service ("USPS") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., for race and sex discrimination. Runyon moves to dismiss Dillard's complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), or alternatively, for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Both motions are based on Dillard's failure to exhaust her administrative remedies within the allotted time. Dillard acknowledges that she did not meet all the prerequisites to suit, but contends that the filing deadlines should be tolled based on equitable considerations. Because there is no basis to toll the deadlines, there is no waiver of sovereign immunity and defendant's 12(b)(1) motion must be granted.


 The facts of this case, viewed in the light most favorable to Dillard, are as follows: Dillard began working as a Letter Sorting Machine Operator in the General Post Office in Bronx, New York in 1984. (Dillard Aff. P 1) During 1993 Dillard worked in that position at that location on the night shift, from 11 p.m. to 7 a.m. (Id.)

 On February 20, 1993 Dillard received from her supervisor, Diane Campbell, a Notice of Removal, effective March 26, 1993. (Id. P 2) The Notice stated that Dillard was removed because she was absent without official leave ("AWOL") from February 11 to February 14, 1993. The Notice explained that Dillard's tardiness on April 5, 1989 and August 16, 1990, each of which resulted in a warning letter, were considered in reaching the removal decision. (Id. Ex. A) Finally, the Notice informed Dillard that "if this action is overturned on appeal, back pay will be allowed, unless otherwise specified in the appropriate award or decision, ONLY IF YOU HAVE MADE REASONABLE EFFORTS TO OBTAIN OTHER EMPLOYMENT DURING THE RELEVANT NON-WORK PERIOD. (Id.) (emphasis in original).

 Throughout her employment at USPS, Dillard was a member of the postal employees' union. (Dillard Aff. P 1) When she received the Notice of Removal, Dillard contacted her union representative, Cheryl Banner and, on Banner's advice, contested the removal through the union's grievance process. Dillard neither worked nor received a salary while the grievance proceedings were pending. (Id. P 3) Dillard also sought counseling from the Postal Service Equal Employment Opportunity office ("EEO") in Manhattan and spoke by telephone with Victor Olmo of that office. Olmo mailed Dillard an EEO Precomplaint form, which Dillard completed and returned. Several days later Olmo informed Dillard that she had completed the form incorrectly. Dillard completed and returned another form. (Id. P 4)

 On April 10, 1993, while the union grievance proceedings were pending, Dillard's son Shalimar sustained a skull fracture and concussion. As a result, he was hospitalized for two weeks. Shalimar's injury absorbed a great deal of Dillard's time and attention then and in the following months. (Id. P 7)

 A month later, on May 4, 1993, the union grievance proceedings resulted in a Settlement Agreement under which USPS agreed to modify the removal to a "time-served suspension with no back pay." (Id. Ex. B) In return, Dillard agreed to serve one year of probation, during which unexcused absences could result in removal without further disciplinary proceedings. (Id.) Dillard also agreed not to appeal the removal and settlement to EEO or any other forum. (Id. P 5) Presumably Dillard withdrew her complaint to the EEO, although she has not so stated.

 On May 21, 1993, approximately two-and-a-half weeks after the start of Dillard's probation, Dillard received a notice, entitled "Notice of Removal of Restriction," from Campbell. (Id. P 6 & Ex. C) That notice stated:

By notice of 2/18/93, you were advised that you were being placed on Restriction and further advised that your attendance record would be reviewed every ninety (90) days and if it reflected a substantial improvement, you would be removed from Restriction and notified in writing.
Your name has been removed from the Restriction List because of satisfactory improvement in your attendance. However, you are cautioned that your attendance will be closely watched and should your record of attendance become unsatisfactory, you will again be placed on the Restriction List, and be subject to disciplinary action.

 (Id. Ex. C) Both Campbell and Dillard signed that notice. (Id.)

 Dillard maintains that she understood that Notice of Removal of Restriction to rescind her probation under the May 4 union-negotiated Settlement Agreement, even though it made no explicit reference to that agreement, and to mean that before she "was again subject to termination for unexcused absences [she] would have to be placed on probation and given an opportunity to improve [her] performance." (Id. P 6) Dillard does not say anything about her knowledge (or lack thereof) of the February 18, 1993 notice to which the Removal of Restriction letter explicitly referred.

 In Fall 1993 Dillard caught a respiratory infection, her daughter suffered from a persistent ear infection, and her son continued to endure the effects of his head injuries. (Id. P 7) As a result of these family problems, Dillard was absent from work on several occasions in September and October 1993. (Id.) Dillard repeatedly requested permission from her new supervisor, Christopher Duke, to use her accumulated annual leave to take time off to care for her children. Duke denied Dillard's requests, although she contends that he granted them for other employees. Dillard contends that Duke also refused to accept telephone calls and doctors' notes to excuse her absences, although again she contends that Duke accepted those types of excuses from other employees. Dillard states further that she told Duke about the "level of stress [she] was experiencing" and asked to be switched from the night shift to the day shift. Once again, Duke denied Dillard's request but, according to Dillard, granted like requests for other employees. (Id. P 8)

 On November 6, 1993 Dillard received a Notice of Cancellation of a previously sent Notice of Removal from employment (as opposed to a Notice of Removal of Restriction). The Notice of Cancellation stated:

Reference is made to the Notice of Removal issued to you on 10/22/93. Be advised the above action is hereby cancelled in lieu of the attached letter dated 11/06/93.

 (Id. Ex. D) Attached to the November 6 Notice of Cancellation was another Notice of Removal, dated November 6, 1993. That Notice of Removal stated that Dillard's employment with USPS would terminate on December 10, 1993, because of her unexplained and unauthorized absences. The Notice cited Dillard's absences on 9/25-30, 10/2-7, 10/14-15, 10/18-21, 10/25-11/01, and charged them all to AWOL. (Id.) The decision to remove also was based on Dillard's frequent tardiness and absence in 1989-92. (Id.) Like the Notice of Removal Dillard received in February 1993, the November Notice explained that if the action were overturned on appeal, "back pay will be allowed, unless otherwise specified in the appropriate award or decision, ONLY IF YOU HAVE MADE REASONABLE EFFORTS TO OBTAIN OTHER EMPLOYMENT DURING THE RELEVANT NON-WORK PERIOD. " (Id.) (emphasis in original) The Notice also informed Dillard of her right to file a grievance under the Grievance/Arbitration Procedure of her union's national agreement. (Id.) Both Duke and Dillard signed both November 6 notices -- the Notice of Cancellation and the accompanying Notice of Removal. (Id.)

 Dillard states that she believed that the November 6 Notice of Cancellation cancelled the attached Notice of Removal, and therefore that she would continue to work for USPS. Dillard believed that in part because she did not remember receiving the October 22 Notice to which the Notice of Cancellation explicitly referred. (Id. P 9). Accordingly, she contends, she did not understand, and Duke did not explain, that as of December 10 she was terminated. (Id. P 10) In light of this belief, Dillard took no immediate action regarding the November 6 notice. (Id. P 11)

 On or about December 9, 1993 Duke told Dillard that she was required to attend the Postal Service's Employee Assistance Program ("EAP"). (Dillard Supp. Aff. P 3) He told her that EAP was a program that helped USPS employees cope with problems that interfered with their work. (Id.) Although Dillard was skeptical about the potential value of EAP because she thought that EAP "was mainly for employees with drug- and alcohol-abuse problems," she met with her EAP representative, Fred Kittrell, the day of Duke's recommendation. (Id. PP 3-4) During that conversation, Kittrell told Dillard that EAP "was also designed to help people with personal or family problems which interfered with their work." (Id. P 4) Shortly thereafter, Dillard received EAP counseling from Frederick U. Metcalf, Ph.D. (Id. P 6) Dillard states that because Duke referred her to EAP she believed that she

was to remain employed by the Postal Service while [she] attended EAP because it made no sense to require [her] to attend EAP if [she] was not still an employee. [She] knew of other employees who had been assigned to HAP and afterwards continued to work for the Postal Service.

 (Dillard Aff. P 12)

 The day after Duke referred Dillard to EAP, December 10, 1993, Dillard arrived at the Post Office, but Duke refused to allow her in. He told her that if she had any questions, she should talk to her union representative. Duke did not provide Dillard with any information on EEO complaints or procedures. (Id. P 13)

 Dillard took Duke's advice and talked with her union representative, Cheryl Banner. Banner told Dillard that her only option was to challenge Duke's denial of access to the Post Office through the union's grievance process. Banner did not inform Dillard about her right to contact the EEO or about any other option for recourse. (Id. P 14) Dillard states that at that time she still believed that she was employed by USPS. (Id. P 17) Dillard did invoke the union's grievance process though, to contest Duke's refusal to allow her to work. Dillard did not return to the Bronx Post Office for work any time thereafter.

 Six months later, on June 25, 1994, Dillard's December 1993 removal was reviewed at an arbitration hearing. Frank Giordano, the union's "National Business Agent" represented Dillard at that hearing (id. P 18); Ismael Medina, a "Labor Relations Specialist" represented Duke and USPS; and Joseph S. ...

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