United States District Court, E.D. New York
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
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
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
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
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
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
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)(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 satisfied its obligations to the plaintiff by
complying with the EEOC's order to pay the plaintiff $23,100.00.
A. Standard of Review
In considering whether to convert a motion to dismiss into one for
summary judgment, a court must be satisfied that the parties were not
"taken by surprise and deprived of a reasonable opportunity to meet facts
outside the pleadings." Krijn v. Pogue Simone Real Estate Co.,
896 F.2d 687, 689 (2d Cir.) aff'd, 930 F.2d 910 (2d Cir. 1991). Here, not
only did the defendant include with its motion a "Notice to Pro Se
Litigant Opposing Motion for Summary Judgment," which informed the
plaintiff that failure to oppose the motion may result in a dismissal of
the complaint, but the plaintiff had almost four months to respond to the
When deciding a motion for summary judgment, the Court must view the
evidence in the light most favorable to the non-moving party and must
draw all permissible inferences from the submitted affidavits, exhibits,
interrogatory answers, and depositions in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2548,
2550 (1986); Niagara Mohawk Power Corp. v. Jones
Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11, 106
S.Ct. 1348, 1356 n.11 (1986) (quoting Fed.R.Civ.P. 56(e)).
In addition, the Court must "read the pleadings of a pro se plaintiff
liberally and interpret them `to raise the strongest arguments that they
suggest.' " McPherson v. Coombe, 17 F.3d 276, 280 (2d Cir. 1999) (quoting
Burgos v. Hopkins, 14 F.3d 276, 280 (2d Cir. 1994)). Nevertheless, pro
se status "does not exempt a party from compliance with relevant rules of
procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 92 (2d
Cir. 1983) (citations omitted).
Where, as here, a nonmoving pro se party has failed to submit papers in
opposition to the motion for summary judgment, summary judgment may be
granted only if the undisputed facts "show that the moving party is
entitled to a judgment as a matter of law." Champion v. Artuz, 76 F.3d 483,
486 (2d Cir. 1996). In addition, the Second Circuit has cautioned that a
district court may grant the motion only if the pro se party has received
notice that failure to respond to the motion "will be deemed a default."
Id. As stated above the defendants served a "Notice to Pro Se Litigant
Opposing Motion for Summary Judgment." Also, the Government affixed a copy
of Fed.R.Civ.P. 56 to the Notice.
B. "Civil Action" Pursuant to 42 U.S.C. § 2000e-16(c)
42 U.S.C. § 2000e-16(c) provides that a federal employee who is
the final disposition of his [EEOC] complaint may file a civil action" in
federal district court. See also Timmons v. White, 314 F.3d 1229, 1233
(10th Cir. 2003). A plaintiff bringing a civil action pursuant to
42 U.S.C. § 2000e-16(c) is entitled to a "trial de novo" and is "not
entitled to litigate those portions of an EEOC decision believed to be
wrong, while at the same time binding the government on the issues
resolved in his or her favor." Timmons, 314 F.3d at 1233 (concluding that
a plaintiff is not entitled to bring a de novo civil action under §
2000e-16(c) that is limited only to the issue of remedy); see also
Ritchie v. Henderson, 161 F. Supp.2d 437, 448 (E.D.Pa. 2001) ("When a
plaintiff is challenging some, but not all of the findings of the EEOC,
the appropriate course is a trial de novo, on all of the issues,
including liability."); Gaffney v. Potter, No. 01 Civ. 2889, 2002 WL
1008460, at * 6 (N.D. Ill. May 13, 2002) ("The statute and applicable
regulations do not indicate that the intention was to allow a plaintiff
to have a new trial on only those issues that he or she disagrees.").
Thus, "the plaintiff should not be able to simply pick and choose those
aspects of the agency's decision he or she disagrees with and seek a
second chance on only those issues. Gaffney v. Potter, No. 01 Civ. 2889,
2002 WL 1008460, at *5 (N.D. Ill. May 13, 2002).
Here, the plaintiff is "seeking [a] financial award for personal
injury, damages, back pay, [and] future pay in the amount of
$350,000[.00]," Compl. ¶ 9, but does not request a trial de novo on
liability. This Court will not conduct the fragmented review
of the EEOC decision that the plaintiff is seeking. See Ritchie, 161 F.
Supp.2d at 448 (indicating that the court "will not allow [the] plaintiff
to challenge the portions of the EEOC decision with which he does not
agree while trying to enforce the parts of the decision in his favor").
C. As to St. John's Acceptance of the Prior Awards
In addition, the plaintiff has already accepted payments of $6,100 and
$17,000, reflecting the amounts awarded by the EEOC, without reserving
any rights with regard to either of the checks. The defendant has a right
to expect that payment rendered in full satisfaction of a valid order of
an administrative agency will not be ignored or undone. See State of New
York v. Hendrickson Brothers, Inc., 840 F.2d 1065, 1087 (2d Cir. 1988);
see also Elovich v. Schwrartz, No. 96 Civ. 2318, 1997 WL 452326, at *3
(S.D.N.Y. Aug. 8, 1997). In the unlikely event that she would be entitled
to a trial de novo on all of the issues, the plaintiff has not offered to
return the money she has received and deposited. In addition, the Court
again notes that the plaintiff has filed no opposition to the instant
As such, the Court finds that St. John's acceptance of the checks
serves to satisfy all of the plaintiff's claims against the defendant for
the conduct detailed in her EEO Complaint dated September 23, 1994.
Based on the foregoing, it is hereby
ORDERED, that the defendant's motion for summary judgment is GRANTED;
and it is further
ORDERED, that the complaint is dismissed with prejudice; and it is
ORDERED, that the Clerk of the Court is directed to close the case.
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