Fourth, after the November 3, 1993 incident between Pauling and his supervisor, Pauling called and left messages for Moreno. Moreno learned from another employee at the Statue of Liberty that Pauling wanted to speak to him concerning a possible EEO complaint. Moreno testified in his deposition that he returned Pauling's calls several times, left messages with Pauling's wife and son, but was unable to reach him.
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). These time limits are prescribed by the Equal Employment Opportunity Commission ("EEOC") by regulation. See 29 C.F.R. §§ 1614.101-1614.607 (1996).
Before filing a formal complaint, an employee who believes he or she has been discriminated against "must consult a Counselor . . . in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a). The employee "must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." Id. § 1614.105(a)(1) (emphasis supplied).
The regulations also provide that the agency shall extend this time limit if (1) the employee shows that he or she was not aware of the time limits; (2) the employee shows that he or she was not aware that the discriminatory action had occurred; or (3) the employee was prevented from complying with the time limits due to circumstances beyond the employee's control. Id. § 1614.105(a)(2).
When the initial counselling session takes place, "Counselors must advise individuals in writing of their rights and responsibilities." Id. § 1614.105(b). Within thirty days of the employee having initiated contact, the counselor must conduct a "final interview," and if the employee and the counselor have not been able to resolve the situation, inform the employee in writing of his or her right to file a discrimination complaint with the agency. Id. § 1614.105(d). This is called the "Notice of Final Interview." The employee has 15 days after the Notice of Final Interview to file a formal complaint with the agency. Id. § 1614.106(a) & (b).
Once a formal complaint is filed, the agency has 180 days to investigate. Id. § 1614.108(e). If the agency does not act on the employee's complaint within 180 days, the employee may bring a civil action in United States District Court. Id. § 1614.408(b). Once the agency issues a final decision, the employee may appeal to the EEOC within 30 days, id. §§ 1614.401(a), 1614.402(a), or file a civil action in United States District Court within 90 days. 42 U.S.C. § 2000e-16(c). See also 29 C.F.R. § 1614.408(a).
The Second Circuit has recently noted that the time limits established by Title VII and the regulation are "analogous to a statute of limitations, and [are], therefore, considered subject to waiver, estoppel, and equitable tolling." Briones, 101 F.3d at 290. See also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94-95, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990).
On September 30, 1993, the agency informed Washington that it had dismissed his complaint as untimely, of his right to appeal or file a civil action, and of the appropriate time limits. Washington took no action and was not joined in this lawsuit as a plaintiff until over two years after the agency's final decision. Because Washington's action was filed more than 90 days after the final agency determination, it is untimely.
Washington advances several arguments against a finding that this action is untimely. First, Washington argues that equitable tolling and equitable estoppel excuse his failure to exhaust administrative remedies. Equitable tolling and estoppel may, in certain circumstances, excuse a failure to follow the timing requirements of Title VII. Irwin, 498 U.S. at 94-95; Briones, 101 F.3d at 290. In Irwin the Supreme Court noted that "courts have typically extended equitable relief only sparingly." This is especially so where the defendant is a department of the United States Government, because suits against the Government involve a waiver of sovereign immunity. Irwin, 498 U.S. at 96.
Noting that government employees are not entitled to more favorable treatment than private employees, the Court listed circumstances in which it had applied equitable tolling in private employment discrimination cases:
We have allowed equitable tolling in situations where the claimant has actively pursued his judical remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.
Irwin, 498 U.S. at 96 (emphasis supplied). See also Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60 (2d Cir. 1986) (employer's conduct must be "extraordinary" to justify applying equitable tolling).
The Supreme Court also stated that "we have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights," and remarked that equitable tolling does not "extend to what is at best a garden variety claim of excusable neglect." Irwin, 498 U.S. at 96. See also South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994) ("a plaintiff's failure to act diligently is not a reason to invoke equitable tolling"). Neither of the circumstances identified in Irwin provides relief to Washington. He did not file a timely though defective pleading and he can point to no trickery by the Government that caused him to delay filing an appeal or lawsuit after receiving the September 30, 1993 letter.
Washington also asserts that equitable estoppel excuses his failure to act in a timely fashion. The Second Circuit has noted that equitable estoppel
"is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay bringing his lawsuit." The doctrine properly may be invoked in a case in which the employer has misrepresented the length of the limitations period or in some other way has "lulled the plaintiff into believing that it was not necessary for him to commence litigation."