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HARRISON v. POTTER

July 2, 2004.

MONIQUE HARRISON, Plaintiff,
v.
JOHN E. POTTER, Postmaster General, and UNITED STATES POSTAL SERVICE, Defendants.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Plaintiff Monique Harrison ("Harrison") brings this action against her former employer, the United States Postal Service (the "USPS") and John E. Potter, the United States Postmaster General, (collectively, the "Defendants") alleging discrimination and retaliation on the basis of gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the corresponding New York State Executive Law § 296; and in violation of the United States Constitution under 42 U.S.C. § 1981, 1983, and 1985. Although the United States Equal Employment Opportunity Commission ("EEOC") found merit to Harrison's sexual harassment claims and awarded her damages, she sought reconsideration of the decision of the EEOC's Office of Field Operations ("OFO") to confine her compensation to the seven-day period for which she was suspended from her employment. In her motion for reconsideration, Harrison sought compensation for the entire span of time that she was sexually harassed. The OFO ruled the request untimely and dismissed the motion for reconsideration. Harrison then filed the instant action asserting her Title VII and constitutional claims.

Defendants move to dismiss Harrison's complaint for lack of subject matter jurisdiction and for failure to state a cause of action for which relief can be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) respectively, or in the alternative, for summary judgment under Rule 56(c). Defendants seek dismissal or summary judgment on the grounds that Harrison's action before this Court is untimely and that her constitutional tort claims should be dismissed because they are preempted by Title VII.

  As discussed in greater detail below, the Court grants the Defendants' motion to dismiss Harrison's complaint under Rule 12(b)(1), or in the alternative, grants the Defendants' motion for summary judgment on the grounds that Harrison has failed to exhaust administrative remedies prior to seeking relief in federal court, and because there no basis to equitably toll the applicable deadlines. In addition, Harrison cannot rely upon 42 U.S.C. § 1981, 1983, and 1985 to pursue her claims of sexual harassment against the federal government. Harrison's complaint is dismissed. I. BACKGROUND*fn1

  A. PROCEDURAL HISTORY

  Harrison, who was employed at the USPS as a machine operator, claims to have been sexually harassed by her supervisor, Freddie Burroughs ("Burroughs"), from 1986 until she retired on disability in 1992. In May 1991, Harrison attended a counseling session with an EEOC counselor regarding the alleged sexual harassment.*fn2 After her session with the EEOC counselor, the USPS suspended Harrison for seven days, citing poor work performance. Harrison claims that Burroughs suspended her not for her work performance, but rather, in retaliation for her EEOC activity. Harrison filed a formal EEOC complaint pro se in January 1992.

  In response to Harrison's complaint, the USPS conducted an investigation of Harrison's claim through its internal agency (the "Agency"). The Agency issued its final decision in January 1993 and found no discrimination. Harrison appealed the Agency's decision to the OFO in June 1993, which affirmed the Agency's findings in September 1993. Harrison filed a timely request for reconsideration with the OFO in October 1993. The OFO granted Harrison's motion for reconsideration, vacated the Agency's decision, and remanded the claim to the Agency for further investigation.

  After completing a supplemental investigation, the Agency informed Harrison that she could pursue her claim in a hearing before an administrative law judge of the EEOC or request the Agency to issue another final decision. In May 1995, Harrison's attorney requested a hearing before the EEOC. The EEOC conducted a hearing in November 1995 and rendered its decision in July 1996 finding that Burroughs had sexually harassed Harrison and that her suspension was in retaliation for her EEO activity. The EEOC recommended various monetary awards and remedial measures.*fn3 On September 10, 1996, Harrison's counsel submitted a supplemental brief to the EEOC requesting additional damages for back pay, front pay and compensatory damages.

  In a second final decision of the Agency issued on September 30, 1996, the Agency disagreed with the EEOC's finding of discrimination and closed the case. Harrison received notice of this decision on October 7, 1996 and timely appealed to the OFO on October 22, 1996. In a decision issued on October 22, 1999, the OFO reversed the final Agency decision and ordered the USPS to compensate Harrison for the period she was suspended.*fn4 The OFO's decision notified Harrison that her options were to either seek reconsideration of the Agency's decision by making such a request within thirty days of receipt of the decision, or initiate a civil action in federal court within ninety days of receipt of the decision. The OFO's decision prominently cautioned that late filings would be dismissed as untimely. The decision further provided for a petition for attorney fees if timely filed within thirty days. The record reflects that Harrison's attorney received the decision on October 28, 1999 and forwarded it to Harrison two days later.*fn5 On November 22, 1999, Harrison's attorney submitted a timely petition for attorney fees.

  In June 2001, Harrison, proceeding with new counsel, filed a request for reconsideration of the October 22, 1999 OFO decision, approximately nineteen months after the filing deadline. In her motion for reconsideration, Harrison sought additional damages beyond the those awarded for the seven-day period for which she was suspended.*fn6 The Agency subsequently filed a motion opposing Harrison's motion for reconsideration on the grounds that it was untimely.

  On May 23, 2003, the OFO, agreeing with the Agency, denied Harrison's request because she had failed to meet the EEOC filing deadline. The OFO specifically rejected Harrison's claim that the deadline should be tolled on the grounds that she encountered difficulties in obtaining documents. Furthermore, the OFO's notice emphasized that the October 22, 1999 decision would remain the EEOC's final decision, and further informed Harrison that there was no further right of administrative appeal. The OFO's May 23, 2003 written decision included a provision informing Harrison of a right to file a civil action in federal district court within ninety days of receipt of the decision. Harrison filed the instant action on August 25, 2003.*fn7 B. THE PARTIES' ARGUMENTS

  In support of their motion, Defendants point out that Harrison filed this action almost four years after receiving the OFO's decision despite the clear statutory and regulatory time limits described in the decision. Accordingly, Defendants argue that Harrison, by not having timely requested reconsideration following the October 22, 1999 OFO decision, and seeking to do so 19 months after the deadline, did not properly exhaust all administrative remedies, and thus, should not have access to federal court to pursue her claim. Defendants contend that to permit Harrison to ignore the initial filing deadlines and file a civil action years later would circumvent the administrative scheme Congress provided.

  With regard to equitable tolling, Defendants argue that Harrison's allegations of administrative difficulties are vague and unsupported. Specifically, Defendants assert that Harrison's continuous, and apparently vigorous, representation by counsel since January 1995 in this matter undermines her request that this Court equitably toll the applicable deadline. Furthermore, Defendants contend that Harrison and her counsel were cognizant of the filing deadlines because Harrison's counsel filed a timely petition for attorney fees in response to the October 22, 1999 OFO decision, as well as a timely appeal to the OFO in October 1996. Finally, Defendants assert that Harrison was personally aware of filing deadlines because she filed a timely request for reconsideration of the OFO's decision in 1993 while appearing pro se.

  Defendants further argue that Harrison's constitutional tort claims should also be dismissed for lack of subject matter jurisdiction. Specifically, Defendants contend that constitutional tort claims, like the ones Harrison asserts here, do not apply to the federal government, and that in any event, should be dismissed because Title VII preempts any further relief for federal employment discrimination.

  In response, Harrison argues that her complaint was timely in response to the May 23, 2003 OFO decision.*fn8 Harrison claims that the OFO did not dismiss her request on procedural grounds and that the decision expressly informed her that she had the right to file a civil action in federal district court within ninety days. In further support of her motion, Harrison asserts that the EEOC, in its July 1996 decision, had found her claims of sexual harassment and discriminatory retaliation to be meritorious. To buttress her request for equitable tolling, Harrison argues that she never received a complete claim file and the USPS failed to retain her file for the required period of time. According to Harrison, these circumstances restricted her ability to file a timely request for reconsideration of the October 1999 EEOC decision.

  In the present action, Harrison seeks compensatory and punitive damages, and attorney fees. Pending before the Court is Defendants' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In the ...


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