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 ...