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GIORDANO v. POTTER

United States District Court, N.D. New York


January 9, 2004.

JULIA GIORDANO, Plaintiff
v.
JOHN E. POTTER, POSTMASTER GENERAL and UNITED STATES OF AMERICA, Defendants

The opinion of the court was delivered by: THOMAS McAVOY, District Judge

DECISION and ORDER

Plaintiff commenced the instant action contending that Defendants discriminated against her on account of her gender, age and disability. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12 on the ground that Plaintiff failed to exhaust her administrative remedies.

I. FACTS

  According to the Complaint, Plaintiff was employed by the United States Postal Service in Glens Falls, New York. In September 2001, Plaintiff was involuntarily transferred to the Albany, New York postal facility. Plaintiff was returned to the Glens Falls facility in April 2002. Plaintiff contends that she was transferred to Albany in September 2001 on account of her age, gender and disability. Plaintiff filed a charge of discrimination with the Equal Employment Office on April 24, 2002. Page 2

 II. STANDARD OF REVIEW

  In reviewing the instant motion to dismiss, the Court takes all allegations in the Complaint as true and will not dismiss the Complaint unless Plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003).

 III. DISCUSSION

  "EEOC regulations require an employee suing the federal government under the Rehabilitation Act to exhaust certain administrative remedies before initiating a suit in the district court. Thus, an aggrieved agency employee must first seek EEO counseling within forty-five days of the allegedly discriminatory act." Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000) (citing 29 C.F.R. ยง 1614.105(a)(1)). The question here is when was the forty-five day time limit triggered.

  Plaintiff contends that her claim is timely because she did not know that she was discriminated against until she returned to the Glens Falls facility in August 2002. Specifically, Plaintiff states that she did not realize that she was the only person involuntarily transferred to Albany until she returned to Glens Falls. Plaintiff requested counseling with the EEO office twenty three days after she "found that the other employees that were to be excessed [involuntarily transferred] had not been reassigned." PI. Mem. of Law at 1.

  Based on these facts, the Court finds that Plaintiff failed to exhaust her administrative remedies. A plaintiff is required to commence the administrative procedures within forty-five days of the "date of the alleged discriminatory event, or of the date that he knew or should have known of the discriminatory event." Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996). Stated otherwise, an employment discrimination claim accrues on the Page 3 date that the employee "knows or has reason to know of the injury which is the basis of his action." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994): see Delaware State College v. Ricks, 449 U.S. 250 (1980); Davidson v. America Online. Inc., 337 F.3d 1179, 1187 (10th Cir. 2003) ("A cause of action accrues under the Age Discrimination in Employment Act . . . on the date the employee is notified of an adverse employment decision. Generally, an employee is notified of an adverse employment decision when a particular event or decision is announced by the employer. It is undisputed that the allegedly discriminatory actions by [the defendant] against [e]mployees were the demotions and transfers. As such, [the] [e]mployees' cause of action accrued on the dates [the defendant] notified them of their new assignments."); Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992) (claim accrues on the date the plaintiff receives notice of the alleged discriminatory action). A discrimination claim does not accrue when the employee learns of information that leads her to believe that a prior adverse employment action was unlawful, but when she is aware of the actual injury (that is, the adverse employment action). See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 286 (3d Cir. 2003) ("`[A] claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong.'") (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994)); Davidson, 337 F.3d at 1186-87; Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995) ("A plaintiffs action . . . accrues when he discovers that he has been injured, not when he determines that the injury was unlawful. . . .[The plaintiff's] injury was his termination.").

  Here, the alleged discriminatory act occurred in September 2001. This was a discrete change in employment. Plaintiff was well aware at that time that she was involuntarily transferred. Because September 2001 is the date of the alleged discriminatory Page 4 event and the injury which is the basis of her action, she was under an obligation to conduct a reasonable inquiry into the basis of her transfer. See Oshiver, 38 F.3d at 1385 ("[T]he `polestar' of the discovery rule is not the plaintiffs actual knowledge of injury, but rather whether the knowledge was known, or through the exercise of reasonable diligence, knowable to the plaintiff."). Plaintiff has presented no facts demonstrating why she should not have known of the discriminatory event at that time. Plaintiff does not contend that she undertook any steps to investigate the nature of her transfer until she was returned to Glens Falls in 2002. Plaintiff's failure to mentally connect her transfer with some claimed discrimination until she returned to Glens Falls in August 2002 cannot be attributable to Defendants. There is no basis for concluding that she should not have known of the alleged discriminatory act until August 2002 or that Defendants somehow prevented her filing a charge earlier.

  Because Plaintiff failed to contact the Equal Employment Office within the forty-five days of the allegedly discriminatory act, her claim must be dismissed for failure to state a claim. Briones v. Runvon, 101 F.3d 287, 290 (2d Cir. 1996) ("[F]ailure to bring a claim within the [forty-five] day period . . . preclude[s] a plaintiff from pursuing a discrimination claim in federal court.").

 IV. CONCLUSION

  For the foregoing reasons, Plaintiff's Complaint must be dismissed for failure to exhaust administrative remedies.

  IT IS SO ORDERED.

20040109

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