The opinion of the court was delivered by: COTE
DENISE COTE, District Judge:
On October 2, 1995, plaintiffs brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-16(a). Plaintiffs allege that, while working for the National Park Service of the Department of the Interior at the Statue of Liberty National Monument ("Statue of Liberty"), they were discriminated against based on their race. Defendant now brings this motion to dismiss, or, in the alternative for partial summary judgment, arguing that two of the defendants, William Pauling ("Pauling") and Anthony Washington ("Washington"), failed to exhaust their administrative remedies prior to filing suit. Plaintiffs have cross-moved for partial summary judgment striking defendant's affirmative defense of failure to exhaust administrative remedies. For the reasons set forth below, the motions are granted in part and denied in part.
Unless otherwise noted, the following facts are undisputed or as stated by the plaintiffs. Anthony Washington, who is a thirty-two year old African-American male, was employed at the Statue of Liberty from September 23, 1990, to February 19, 1993. From 1991, Washington was a ranger. Washington alleges that he was subjected to discrimination on the basis of his race beginning some time in 1992, after a new person became Acting Chief Ranger. The new acting chief favored a group of all-white rangers known as the "Golden Boys" in assignments and training. Washington felt ignored by the acting chief, was given undesirable postings, and was falsely accused of theft. On one occasion Washington saw a noose hanging in the ranger office, and subsequently a black CPR doll was hanging in the noose. According to Washington, he contacted Nancy Rivera, one of the EEO counselors that worked at the Statue of Liberty, several times to complain about these acts of discrimination.
In February 1993, Washington was informed that he was being terminated for "budget reasons." In February, Washington contacted EEO counselor Rivera, who attempted to resolve the problem but was unsuccessful. Washington was also given a written statement of his Rights and Responsibilities for Processing Complaints of Discrimination. On March 9, 1993, Washington was given a Notice of Final Interview, which informed him that he was required to file his complaint with the Washington, D.C. office within 15 days. That same day, according to Washington, Rivera informed Washington that she would file for him a formal complaint with the Department of Interior Office for Equal Opportunity, and that she did so.
Rivera denies that she sent Washington's complaint to the Washington, D.C. office. She testified that it was her understanding that Washington was going to file the complaint with the Washington, D.C. office and that Washington told her that he had done so.
Washington contends that after he received no response to his complaint, he called the EEO office in Washington, D.C. several times. Because the EEO office could not find Washington's complaint, he was asked to send a copy, which he did on May 19, 1993. On September 30, 1993, Washington's complaint was rejected as untimely by the EEO office in Washington, D.C. The rejection letter notes that Washington's Notice of Final Interview was dated March 9, 1993, his complaint form was dated February 9, 1993, and the description of his allegations was dated March 2, 1993. The letter goes on to detail all of Washington's allegations, and then explains that they are time barred. In an underscored paragraph, the letter incorrectly identifies the date of Washington's complaint as June 3, 1993, and then informs Washington of his appeal rights. Washington did not appeal this decision because he was "discouraged" and did not think he could win an appeal.
In November 1993, after Washington was discharged, he was listed on a certificate of candidates eligible for the position of permanent park ranger at the Statue of Liberty. Washington was not selected for this position. Washington contends that the candidate who was selected, who was Caucasian, had a lower rating score than Washington.
Pauling, who is an African-American male, worked as a utility systems repair operator at the Statue of Liberty between June 1990 and November 3, 1993. Pauling alleges that he was discriminated against based on his race. He claims that after a new supervisor was installed, he was not given work orders or overtime, was ignored and was falsely accused of wrongdoing.
On November 3, 1993, during the cleanup of an oil spill in the waters around Liberty Island, Pauling was verbally assaulted by his supervisor, David Bosakowski. After this argument, Pauling left the Statue of Liberty and never returned to his job. Pauling submitted a workers' compensation claim, asserting that hostility at his job and other job-related stress resulted in a disabling nervous disorder. The Park Service denied this claim. On August 5, 1995, the Park Service terminated Pauling for failing to return to work.
Pauling contends that it was difficult for him to make complaints to the EEO counselors since he was stationed at the Statue of Liberty, and was instructed that regulations prevented employees from going to the personnel department on Ellis Island during work hours without the permission of a supervisor. On the occasions Pauling requested permission, it was denied. Pauling acknowledges that he knew he could call or write to the EEO officer on Ellis Island, but he did not. Moreover, Pauling stated in his deposition that he knew another EEO officer "floated between" Liberty and Ellis Islands.
Nevertheless, Pauling claims that on four occasions he communicated with Barry Moreno, an EEO counselor whose office was on Ellis Island, about problems he was having at work. First, in late 1992 or early 1993, Pauling went to see Moreno, and told him that he wanted to discuss "Dave." David Bosakowski was the supervisor with whom Pauling was having difficulty. Pauling's meeting with Moreno was interrupted, and neither Pauling nor Moreno followed up on this conversation.
Second, Moreno (but not Pauling) recalls a meeting in approximately April 1993, in which Pauling expressed his concern about racial discrimination to which he was being subjected by the acting Buildings and Utilities supervisor, Joe Codispoti. After a joint meeting with Moreno, Pauling and Codispoti reached an agreement that they would try to get along with each other. Pauling told Moreno that he was not going to file a formal complaint, but hinted that if the situation did not improve, Pauling would come back to Moreno. Pauling never approached Moreno again about this situation.
Third, on July 14, 1993, Pauling sent Moreno a copy of a handwritten letter Pauling had written to the Acting Chief of Maintenance responding to her denial of his request that he be allowed to meet with the Assistant Superintendent. The letter does not indicate on its face the reason Pauling wanted to speak with the Assistant Superintendent, and does not request that Moreno do anything. Moreno and Pauling never contacted each other about this letter.
On March 28, 1994, Pauling's attorney sent a letter to the National Park Service detailing the racial discrimination to which Pauling claims he was subjected. In response, the Park Service informed Pauling that he was required to pursue the counselling procedure before filing a formal complaint. Pauling engaged in the counselling process with Moreno on June 1, 1994. Pauling received a Notice of Final Interview on July 9, 1994. On July 13, 1994, Pauling filed a formal complaint alleging race discrimination. The Park Service responded on January 13, 1995, by requesting an explanation for the delay between November 3, 1993 and March 28, 1994. By letter dated February 10, 1995, Pauling's attorney responded. The Park Service had not acted on Pauling's complaint by October 2, 1995, when this action was filed.
Pauling acknowledges that he knew that he had to speak with a counsellor in order to complain about race discrimination. Pauling states, however, that he was not aware that such contact had to be initiated within forty-five days of the discriminatory incident.
Moreno indicates that from 1988 until 1995, an informational poster was hung on employee bulletin boards at Ellis and Liberty Islands. The poster contained pictures of the EEO counsellors at the Statue of Liberty, as well as their phone numbers. The bottom of the poster contains the legend, "employee(s) or applicant(s) for employment should contact one of the above individuals within 30 calendar days of the alleged discriminatory action(s) or event." On Liberty Island that poster was in the dispatch area of the main entrance to the administration building. This is also the location of other employee notices. The posters were also displayed on Ellis Island in the ranger office and in the museum building where other employee notices were posted.
Defendant has moved either to dismiss or for partial summary judgment. Because resolving the issues of whether Washington and Pauling exhausted their administrative remedies requires this Court to look beyond the pleadings to the affidavits, deposition testimony, and documentary evidence provided by the parties, this motion is appropriately viewed as for partial summary judgment rather than as a motion to dismiss.
Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. In making this judgment, the burden is on the moving party, and all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has asserted facts which demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed. R. Civ. P.; accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). Thus, in determining whether to grant summary judgment, this Court must (1) determine whether a genuine factual dispute exists based on evidence in the record, and (2) determine, based on the substantive law at issue, whether the fact in dispute is material.
Title VII's Administrative Requirements
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, provides that all federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Title VII is the exclusive remedy available to federal employees for race discrimination. Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996). Title VII requires a litigant to "exhaust available administrative remedies in a timely fashion." Id. See also Brown v. General Servs. Admin., 425 U.S. 820, 832, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). ...