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United States District Court, Western District of New York

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 from the record and that defendants' motion is otherwise denied without prejudice.

*fn2 Defendants contend — and Childers concedes — that her disability claim is governed by the Rehabilitation Act, 29 U.S.C. § 701 et seq., rather than the ADA which is not applicable to federal employees. See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998).

*fn3 Defendants' motion seeks "an order of dismissal pursuant to [Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP")], and for summary judgment pursuant to [FRCvP 56(b)], dismissing the plaintiff's Complaint ***." Defs.' Mot. at 1 (emphasis added). If defendants' motion to dismiss were granted, it would be superfluous to grant summary judgment. Accordingly, this Court deems defendants' motion to dismiss to include an alternative request for summary judgment.

*fn4 Childers alleges that she attempted to return to work July 7, 2000 but that she was denied reasonable accommodation.

*fn5 Defendants' Memorandum of Law erroneously referred to such dismissal as having occurred April 17, 2000. Defs' Mem. of Law, at 4.

*fn6 Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).

*fn7 See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")

*fn8 In employment discrimination cases, district courts must be "especially chary in handing out summary judgment *** because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).

*fn9 See footnote 6.

*fn10 Childers was obligated to exhaust her administrative remedies before bringing suit. Downey, at 145 (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-829 (1976)).

*fn11 See also Bruce v. U.S. Dep't of Justice, 314 F.3d 71, 74 (2d Cir. 2002); Boos, at 181; Downey, at 145-146.

*fn12 See generally Chapman v. Choicecare Long Island Term Dis. Plan, 288 F.3d 506, 511-512 (2d Cir. 2002) (discussing equitable tolling).

*fn13 The text of section 1614.105(a)(2) is prefaced by the statement that "[t]he agency or the Commission shall extend the 45-day limit ***." 29 C.F.R. § 1614.105(a)(2) (emphasis added). Accordingly, this Court must review the decisions by the Post Office and the OFO that Childers's did not timely consult with an EEO Counselor. The parties, however, do not address what standard of review should be applied. Indeed, Pauling conducted a de novo review of the district court's grant of summary judgment, but did not address what deference, if any, the district court should accord administrative findings by the USPS and the OFO regarding a plaintiff's compliance with section 1614.105(a)(2). Accordingly, this Court will review such decisions de novo.

*fn14 The Court of Appeals noted in Pauling that the Timeliness Requirement "bears a feature uncommon to statutes of limitation generally: The aggrieved employee is absolved from complying with the filing period if he can show `that he *** was not notified of the time limits and was not otherwise aware of them.' 29 C.F.R. § 1614[.105](a)(2). In this context, ignorance of the law is a defense of sorts — and government agencies are effectively placed on notice that it is in their institutional interest to notify employees of this limitations period." Id. at 136.

*fn15 See also Pauling v. Secretary of Dep't of Interior, 1997 WL 399839, at *6 (S.D.N.Y. 1997), vacated, 160 F.3d 133 (2d Cir. 1998).

*fn16 Pauling concluded that that plaintiff's "admitted awareness that he was required to bring discrimination complaints to an EEO counselor does not, in any way, indicate that he was aware that he had to do so within 45 days — or, for that matter, within the five months that the court found unreasonable." Id. at 137.

*fn17 Nonetheless, Pauling is too analogous to ignore altogether. Oddly and inexplicably, defendants completely failed to address it — despite plaintiff's heavy reliance on it.

*fn18 Manager of Distribution and Operations at the Buffalo Processing and Distribution Center located at 1200 William Street, Buffalo, N.Y. — the same facility where Childers was employed.

*fn19 Inasmuch as plaintiff's motion to file an amended complaint will be granted, defendants' motion is denied without prejudice to refiling on this issue after an amended complaint is filed. In the event defendants file a motion for summary judgment, it would be helpful for the parties to address what standard of review this Court should apply in reviewing the decisions of the USPS and the OFO.

*fn20 Plaintiff's Memorandum of Law referred to plaintiff as a man several times. It thus appears to have been largely copied from another brief — or poorly proofread. Moreover, page 2 of plaintiff's brief contains a block quote from Pauling that is not attributed to Pauling.

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