United States District Court, N.D. New York
January 9, 2004.
JULIA GIORDANO, Plaintiff
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.
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.
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
"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. § 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
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
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
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.").
For the foregoing reasons, Plaintiff's Complaint must be dismissed for
failure to exhaust administrative remedies.
IT IS SO ORDERED.
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