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April 15, 2003


The opinion of the court was delivered by: John T. Elfvin, Senior District Judge.


Childers filed a pro se complaint against defendants August 17, 2001 asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq.,*fn2 stemming from an allegedly discriminatory dismissal based on her race, sex and disability. Childers subsequently obtained counsel. On September 9, 2002 defendants filed a motion to dismiss that sought the alternative relief of summary judgment.*fn3 On October 15, 2002 Childers moved to amend the Complaint. This Court heard oral argument on these motions January 31, 2003. For the reasons set forth below, plaintiff's motion to serve and file an amended complaint will be granted and defendants' motion for dismissal will be denied without prejudice.

Childers was employed by the United States Postal Service ("the Post Office") as a Distribution/Window Clerk. She worked for the Post Office from December 5, 1987 until she was dismissed on July 10, 2000 pursuant to a Notice Of Separation-Disability dated June 8, 2000 — stemming from her disability leave that had started August 21, 1998.*fn4 Childers contacted an Equal Employment Opportunity ("EEO") counselor January 19, 2001 and filed an EEO Complaint with the Post Office on February 23, 2001 alleging discrimination on the basis of race/color, sex and disability. The Post Office dismissed Childers's administrative complaint April 17, 2001*fn5 for failing to timely contact an EEO counselor within the 45-day time limit prescribed for Title VII and Rehabilitation Act claims. Indeed, Childers concedes such failure. Childers appealed to the Equal Employment Opportunity Commission's ("EEOC") Office of Federal Operations ("OFO"), which affirmed the agency's decision. The OFO issued Childers a right-to-sue letter August 17, 2001.

Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn6

With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.*fn7 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.

Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255).*fn8 Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.*fn9 Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars ***." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir. 2001).

Defendants' motion seeks dismissal on the ground that Childers failed to exhaust her administrative remedies*fn10 because she did not "initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1) (hereinafter "Timeliness Requirement"); Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000) (applying section 1614.105(a)(1) to Rehabilitation Act claim); Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998) (applying section 1614.105(a)(1) to Title VII and Rehabilitation Act claims). Plaintiff's termination was effective July 10, 2000. Childers contacted an EEO Counselor on January 19, 2001 — more than 45 days after the allegedly discriminatory personnel action. The Timeliness Requirement, however, is not jurisdictional; rather, it "is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel, and equitable tolling." Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996).*fn11 Although Childers does not claim waiver or estoppel, she does claim that tolling is applicable. The burden is on Childers to demonstrate the appropriateness of tolling in the factual context of this case. Cf. Boos, at 185.

This Court declines to address equitable tolling*fn12 at this time because there is a question of fact whether Childers may claim statutory tolling, which also provides exceptions to the Timeliness Requirement. See Pauling v. Sec. of the Dep't of the Interior, 160 F.3d 133, 134-135 (2d Cir. 1998) (construing 29 C.F.R. § 1614.105(a)(2)).*fn13 Section 1614.105(a)(2) provides that:

"The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows [1] that he or she was not notified of the time limits and was not otherwise aware of them, [2] that he or she did not know and reasonably should not have been [sic] known that the discriminatory matter or personnel action occurred, [3] that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or [4] for other reasons considered sufficient by the agency or the Commission." 29 C.F.R. § 1614.105(a)(2) (hereinafter "Statutory Tolling").
The plaintiff in Pauling argued that he had not been aware of the Timeliness Requirement and was thus excused therefrom under the first exception set forth in section 1614.105(a)(2). Id. at 134.*fn14 The defendant in Pauling responded that plaintiff had constructive knowledge of the Timeliness Requirement because posters referring to the Timeliness Requirement were posted at plaintiff's workplace. Id. at 134-135. The district court in Pauling declined to address whether plaintiff had constructive notice, but granted summary judgment on the ground that it would be unreasonable to extend the filing deadline for five months. Id. at 135.*fn15 The Court of Appeals held that there was a genuine issue of material fact concerning whether Pauling had access to the parts of the building in which the EEO posters were located. Id. at 136. Pauling also held that a plaintiff's "awareness of his obligation to initiate contact with an EEO counselor does not preclude the extension of time under § 1614.105(a)(2)."*fn16

Pauling, however, is distinguishable to the extent that Childers had access to the EEO Posters at her workplace.*fn17 The Court of Appeals found that there was a genuine issue of material fact whether Pauling had access to the areas where the EEO posters were located. Id. at 137. There is no such issue of fact here. Childers does not refute that she had access to the areas where the EEO posters were located and that such posters plainly reference the Timeliness Requirement. See Decl. of Michael McMann,*fn18 at 1-2 (stating that EEO Poster 72 was at all times during plaintiff's employment located in three areas to which Childers had access — viz., employee bulletin board in the hallway outside the cafeteria, in the workroom and in the customer lobby at the main office window). EEO Poster 72, to which Childers does not dispute having had access, reads: "If pursuing an EEO complaint, you must contact an EEO counselor within 45 days of the act(s) giving rise to your claim in order to preserve your rights under federal law."

Nonetheless, it is not clear that Childers may be deemed to have constructive knowledge of something posted at her workplace inasmuch as Childers was absent from work due to disability from August 21, 1998 until July 7, 2000 when she unsuccessfully attempted to return to work. Cf. Pauling, at 137. Accordingly, defendants' motion will be denied.*fn19

Inasmuch as defendants' motion will be denied, it would not be futile to permit Childers to file an amended complaint. See Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that, under FRCvP 15(a), leave to amend should be freely given absent, inter alia, undue delay, bad faith, dilatory motive on the part of the movant, undue prejudice to the opposing party, futility of the amendment, etc.). This Court finds it appropriate to allow plaintiff to file an amended complaint.

Finally, defendants raised some concerns about Childer's unsigned Affidavit. Plaintiff's counsel subsequently mailed this Court an unpaginated signature page — although the fax line indicates "5 of 6." In any event, the last page of the Affidavit is page 7. Accordingly, there is some discrepancy between the Affidavit pagination and what purports to be the signature page that was inadvertently omitted. Indeed, the Notary's acknowledgment indicates that the document is six pages — despite the fact that the document is seven pages, not including the omitted signature page. Moreover, plaintiff's counsel merely sent this Court a copy in camera. Consequently, the need for an affidavit of record has not been rectified. Accordingly, with respect to any future motions, plaintiff's counsel shall file a new Affidavit that is signed by Childers and properly notarized.*fn20

Accordingly, it is hereby ORDERED that plaintiff's motion to file an amended complaint is granted, that plaintiff shall file an Amended Complaint with the Clerk of this Court within 30 days of the date of this Order, that the unsigned Affidavit of Teresa Childers dated October 9, 2002 shall be stricken ...

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