Fletcher was employed by the United States Postal Service ("USPS" or the "Post Office") as a custodian. He claims that he was discriminated against when his request for vacation leave was denied and a white custodian's leave was granted, and when he received warning letters. (Cplt. P 8 & attachment.)
Fletcher filed a formal complaint of racial discrimination with the USPS's EEO office in October 1995. (Anderson Aff. P 4 & Ex. A.) On August 8, 1996, the USPS EEO office issued a final agency decision dismissing Fletcher's claim. (Anderson Aff. P 6 & Ex. B.) The USPS letter informed Fletcher of his right either to appeal to the EEOC within 30 days or to file a civil action in federal court within 90 days. (Anderson Aff. Ex. B.)
It is undisputed that Fletcher received the USPS's letter on August 12, 1996. (Anderson Aff. P 7 & Ex. C.) Fletcher's complaint was received by the Court's Pro Se Office on November 18, 1996.
I. FLETCHER'S COMPLAINT IS UNTIMELY
An employment discrimination suit against the federal government under Title VII must be filed "within 90 days of receipt of notice of final action taken" by the agency, here, the Post Office. 42 U.S.C. § 2000e-16(c). The Second Circuit has noted that Title VII's time limits are "analogous to a statute of limitations." Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996); accord, e.g., Pauling v. Secretary of Dept. of Interior, 960 F. Supp. 793, 799 (S.D.N.Y. 1997). Indeed, Title VII's time limits, as set out in 42 U.S.C. § 2000e-16(c), are "a condition to the waiver of sovereign immunity and thus must be strictly construed." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94, 111 S. Ct. 453, 456, 112 L. Ed. 2d 435 (1990).
Thus, failure to bring suit within the prescribed time is grounds for dismissal. See, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. at 96, 111 S. Ct. at 458 (affirming dismissal of Title VII suit against government filed after the statutory deadline); Pauling v. Secretary of Dept. of Interior, 960 F. Supp. at 803 (dismissing Title VII action against government for failure to file complaint within 90 days after final agency determination).
Fletcher received notice of the final agency decision on August 12, 1996. Therefore, he had until November 12, 1996 to bring this action.
The law is clear in this Circuit that a complaint is deemed filed for statute of limitations and similar purposes when received by the Court's Pro Se Office. See, e.g., Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988); Stratton v. Chase Manhattan Bank, 1997 U.S. Dist. LEXIS 12191, 97 Civ. 2233, 1997 WL 471715 at *1 (S.D.N.Y. Aug. 18, 1997) (Peck, M.J.); Thomas v. Westchester County Dept. of Corrections, 959 F. Supp. 203, 204 (S.D.N.Y. 1997) (Rakoff, J. & Peck, M.J.); McCray v. Kralik, 1996 U.S. Dist. LEXIS 9474, 96 Civ. 3891, 1996 WL 378273 at *2 (S.D.N.Y. July 1, 1996) (Peck, M.J.). Fletcher's complaint was received by the Pro Se Office on November 18, 1996, 98 days after he received notice of the Post Office's final decision. Fletcher's action, therefore, is untimely and should be dismissed as against all defendants.
II. FLETCHER'S CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ALSO SHOULD BE DISMISSED UNDER TOMPKA v. SEILER
There is a second, and independent, reason why Fletcher's claims against the individual defendants (Mr. Condiles and Mr. Yeserki) should be dismissed. It is black letter law in this Circuit that individual supervisors are not "employers" within the meaning of Title VII. E.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) ("Individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII."); Hernandez v. New York City Law Dept. Corp. Counsel, 1997 U.S. Dist. LEXIS 620, 94 Civ. 9042, 1997 WL 27047 at *7 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton, 1996 U.S. Dist. LEXIS 5560, 91 Civ. 0918, 1996 WL 421449 at *16 (S.D.N.Y. Apr. 24, 1996) (Peck, M.J.), report & rec. adopted by 1996 U.S. Dist. LEXIS 15602, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (citing cases). Thus, Fletcher's claims against the individual defendants should be dismissed for this reason as well.
For the reasons set forth above, I recommend that defendants' motion to dismiss be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Judge Jed S. Rakoff, 500 Pearl Street, Room 750, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
DATED: New York, New York
September 23, 1997
Andrew J. Peck
United States Magistrate Judge