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JOHN v. POTTER

January 23, 2004.

IRENE ST. JOHN, Plaintiffs, -against- JOHN E. POTTER, U.S. POSTMASTER GENERAL, Defendants


The opinion of the court was delivered by: ARTHUR SPATT, District Judge

ORDER

Irene St. John ("St. John" or the "plaintiff"), proceeding pro se, commenced this action seeking a review of the damages awarded to her by the Equal Employment Opportunity Commission (the "EEOC") against the defendant John E. Potter, U.S. Postmaster General ("Postal Service" or the "defendant"). Presently before the Court is a motion to dismiss, or in the alternative, for summary judgment on behalf of the Page 2 defendant.

  I. BACKGROUND

  Despite the Court's granting two extensions of time to the plaintiff, totaling almost four months, so that she may file her opposition to the defendant's motion, this motion remains unopposed. The Court cannot rule on the issues presented without considering material not contained in the complaint. Therefore, the Court will consider the instant motion as one for summary judgment under Rule 56. See Leonard F. V. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (citing Fed.R.Civ.P. 12(b) ("[if] matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.")).

  The facts set forth in the defendant's Rule 56.1 statement are deemed admitted when no opposition has been filed. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001). Because the plaintiff has failed to oppose the motion for summary judgment, the Postal Service's Rule 56.1 statement is taken as true for the purposes of this motion. The defendant's Rule 56.1 statement recites the following facts:

  On or about September 23, 1994, St. John filed a formal EEO Complaint for Discrimination alleging gender (female) and disability (shoulder injury and stress) discrimination and retaliation. In particular, the plaintiff alleged sexual harassment Page 3 arising out of a physical examination conducted by a Postal Service contract physician, and retaliation for filing a prior EEO Complaint of Discrimination against a supervisor in 1992.

  After a hearing, by decision dated February 23, 1996, an EEOC Administrative Judge found liability on the part of the Postal Service. On April 25, 1996, the Postal Service issued a Final Agency Decision ("FAD") which found no discrimination. However, by order dated April 25, 1996, the EEOC Office of Federal Operations ("OFO"), overturned the April 25, 1996 FAD and ordered the Postal Service to determine an amount representing compensatory damages. On July 30, 1999, the Postal Service issued a FAD finding that St. John was entitled to $6,100 in compensatory damages.

  Thereafter, the Postal Service issued check number 0100093047 in the amount of $6,100.00 payable to Irene St. John. On August 28, 1999, prior to cashing the check, St. John sought review before the OFO of the amount the Agency had awarded her in its July 30, 1999 FAD. However, on September 8, 1999, before the OFO rendered its decision, St. John cashed check number 0100093047 without any reservation of rights.

  On January 29, 2002, the OFO issued a decision finding that St. John was entitled to an additional $17,000 in compensatory damages. The defendant subsequently issued check number 0101026641 in the amount of $17,000 payable to Page 4 Irene St. John. The plaintiff cashed this check on or about February 8, 2002 without objection or reservation of rights.

  On June 12, 2002, the OFO denied St. John's request that it reconsider its January 29, 2002 decision. In its denial, the OFO advised the plaintiff of her right to file a civil action in United States District Court pursuant to 42 U.S.C. § 2000e-16 and 29 C.F.R. § 1614.407 and 1614.408.

  On or about October 24, 2002, St. John commenced this action, proceeding pro se, pursuant to Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. § 2e to 2000e-17, alleging the same conduct for which she sought recovery in her September 23, 1994 EEO Complaint of Discrimination, namely sexual harassment and retaliation for engaging in Title VII protected activity. In this action, the plaintiff seeks $350,000 in damages.

  On or about February 28, 2003, the defendant served and filed his answer denying that he is liable for the conduct and damages alleged in the plaintiff's complaint. At the initial conference of this action held on June 12, 2003 before United States Magistrate Judge Michael L. Orenstein, the plaintiff stated in substance that she believed that the damages awarded by the EEOC were insufficient to compensate her for the harm the Postal Service caused here, and that she brought this action to obtain additional compensation.

  The Postal service moves to dismiss this action pursuant to Rules 12(b)(1), Page 5 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P") or, in the alternative, pursuant to Rule 56 of the Fed.R.Civ.P. on the grounds that: (1) this Court lacks subject matter jurisdiction to selectively review only the remedy rendered by the EEOC; and (2) the defendant has fully ...


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