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JANNEH v. RUNYON

July 27, 1996

DOUDOU JANNEH, Plaintiff, -v.- MARVIN RUNYON, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, UNITED STATES POSTAL SERVICE, THOMAS JENKINS, BINGHAMTON POSTMASTER, BINGHAMTON U.S. POSTAL SERVICE, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 Defendants now move for Summary Judgment on plaintiff's claims under Tide VII.

 A. Facts:

 Plaintiff Doudou Janneh was employed by the United States Postal Service on two occasions. He was first hired as a casual (temporary) employee on April 9, 1988 and worked in the Binghamton post office until October 5, 1988. He worked again as a casual employee in the Binghamton post office from December 3, 1988 until December 23, 1988 when his assignment concluded. Plaintiff apparently contacted an Equal Employment Opportunity ("EEO") counselor on four occasions regarding incidents of discrimination that allegedly occurred in relation to this employment.

 When claims of discrimination are alleged against a federal employer, federal law requires that the complainant contact an EEO counselor within forty-five days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). Plaintiff apparently complied with this federal regulation when he filed the first three of his EEO claims in a timely manner. On October 14, 1988, after the conclusion of his first casual employment period, plaintiff contacted an EEO counselor alleging that on several occasions he had been discriminated against on the basis of his race, color, and national origin by his co-workers and by a supervisor, most recently on October 3, 1988. (Vrooman Decl., P 8.) Plaintiff also contacted an EEO counselor on October 31, 1988, alleging similar claims of discrimination and harassment by his supervisor and co-workers. (Vrooman Decl., P 9.) On April 26, 1989, plaintiff again contacted an EEO counselor and alleged that discrimination based upon race, color, and national origin had occurred when he was denied reemployment as a casual employee on April 9, 1989. (Vrooman Decl., P 10.)

 Plaintiff's fourth and final contact with the EEO counselor is related to plaintiff's claim in this action. This fourth EEO contact, however, did not take place within the requisite forty-five days of the alleged discriminatory act. Plaintiff contacted an EEO counselor on August 29, 1989, alleging claims similar to his earlier (and apparently previously resolved) claims of discrimination based on a denial of reemployment as a casual employee. (Vrooman Decl. P 11.) This contact was untimely, however, as the alleged discrimination occurred in January, 1989, May 23, 1993, May 1, 1994, and in June, 1994. As a result, the Postal Service issued a final agency decision dismissing the claim since Mr. Janneh failed to contact the EEO counselor within the applicable time limit of any of the alleged acts of discrimination. Plaintiff appealed this decision to the Office of Federal Operations of the Equal Employment Opportunity Commission ("EEOC"). Concluding that plaintiff's claims were untimely, the EEOC affirmed the Postal Service's final agency decision and advised plaintiff of his right to file a civil action.

 Plaintiff initiated the instant action by filing a complaint on December 11, 1995. On March 1, 1996, plaintiff served copies of a Summons and Amended Complaint upon Marvin Runyon, Jr., Postmaster General, Thomas Jenkins, Postmaster of Binghamton, NY, and upon the United States Attorney for the Northern District of New York. In his Amended Complaint, plaintiff alleges that he was discriminated against on the basis of race, color, and national origin in violation of 42 U.S.C. § 2000e-16. *fn1" Plaintiff alleges his civil rights were violated when he was denied reemployment with the Postal Service as a casual employee. Plaintiff also alleges that Postmaster Jenkins was negligent in failing to preclude these allegedly discriminatory actions. Plaintiff seeks lost wages in the amount of $ 100,000; projected lost wages in the amount of $ 250,000; compensatory and punitive damages in the amount of $ 500,000; and an additional $ 250,000 for his mental anguish, extreme emotional distress, pain and suffering.

 Defendants move for dismissal of the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6), or in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. First, defendants argue that plaintiff's discrimination claim is time-barred for failure to initiate his administrative remedies in a timely manner. Defendants further contend that plaintiff has failed to allege, and can not prove, any basis for tolling of this limitation. Second, defendants argue that plaintiff's negligence claim against the Postal Service and its officials must be dismissed as it arises out of the same factual predicate as his discrimination claim, and is, therefore, preempted by Title VII. Defendants argue that plaintiff's failure to name the proper party for such claims and to file an administrative tort claim are additional grounds upon which plaintiff's tort claim should be dismissed. Finally, defendants argue that plaintiff's claims for punitive damages should be dismissed as such damages are unavailable as a remedy in a discrimination action against the federal government.

 Plaintiff opposes defendant's motion, but in his opposition papers he conclusorily argues only that the assertions contained in defendant's moving papers are predicated upon erroneous facts and conclusions of law. Nowhere, however, does plaintiff address or explain which of defendants factual claims or legal conclusions are infected with error.

 II. DISCUSSION

 As an initial matter, this Court must decide if defendant's motion is to be treated as one for summary judgment, pursuant to Rule 56, or a motion to dismiss, pursuant to Rule 12(b)(1) and (6). As stated in Fed. R. Civ. P. 12(b), a motion shall be treated as one for summary judgment and treated according to Rule 56 when matters outside the pleadings are presented to and not excluded by the court in a motion asserting the 12(b)(6) defense. *fn2" As both plaintiff and defendant have submitted affidavits in conjunction with their motion papers and as this Court has considered such material, defendant's motion shall be treated as one for summary judgment.

 A. The Standard for Summary Judgment

 Under Rule 56, summary judgment provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried. Wright, Miller, & Kane, Federal Practice and Procedure, Civil 2d section 2712, p. 569. Under Fed. R. Civ. P. 56(e), summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the ...


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