United States District Court, S.D. New York
May 3, 2005.
LISA FERRER, Plaintiff,
JOHN E. POTTER, POSTMASTER GENERAL, Defendant.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
OPINION AND ORDER
Plaintiff Lisa Ferrer brings this pro se Rehabilitation Act
action against the United States Postal Service ("USPS") claiming
that she was harassed by a co-worker and her supervisor and
transferred to another station. (Dkt. No. 6: 2d Am. Compl. ¶
8.)*fn1 The parties consented to decision in this action by
a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 14.)
Presently before the Court is defendant USPS's summary judgment
motion. For the reasons stated below, the motion (Dkt. No. 23) is
Lisa Ferrer has worked for the USPS since 1987, and began
working at the Hillside Station in the Bronx in February 2003,
where she worked for a total of six or seven weeks. (Dkt. No. 23:
Trager Aff. Ex. B: Ferrer Dep. at 5, 55, 89, 112.) According to
Ferrer, while at this facility, tensions mounted between her and
a co-worker, Nadine Robinson. (Ferrer Dep. at 78-79, 112-14,
116-18, 124-25, 131, 148-50, 160-61, 173, 215, 225; see also
Dunston Aff. Ex. A: USPS Form 2564-A, Ferrer "Information for
Pre-Complaint Counseling.") Their supervisor, Nilza Mercado,
requested that Ferrer, rather than Robinson, be "detailed"
(i.e., temporarily transferred) to another station. (Ferrer
Dep. at 121, 140, 173-74.) Ferrer agreed to be "detailed" to the
Baychester Station in the Bronx, but she understood that it would
be temporary. (Ferrer Dep. at 140, 174-75, 182, 214-15; Trager
Aff. Ex. C.) Ferrer had the same favorable schedule at Baychester
as she had had at Hillside. (Ferrer Dep. a 175.)
At some point after Ferrer transferred to the Baychester
Station, she contends that Mercado told her that she needed to
permanently "bid out" of the Hillside station (as opposed to the
temporary transfer to Baychester), because Robinson had
seniority. (Ferrer Dep. at 182-83, 207-08, 219, 224-25, 283,
285-86.) Ferrer succeeded in a bid to work at the Westchester
Station, but never reported for duty there because she "wasn't
ready due to what was going on, me having my case in court."
(Ferrer Dep. at 5, 211, 251, 257.) Ferrer has been on "stress
leave" without pay since March 2003. (Ferrer Dep. at 5.) Procedural History
On March 26, 2003, Ferrer submitted an informal complaint to
the USPS's EEO office, stating that she was detailed to the
Baychester station "based on false accusations made by [Ferrer's]
coworker Nadine Robinson." (Dunston Aff. Ex. A: USPS Form
2564-A.) On June 11, 2003, Ferrer received a June 9, 2003 USPS
letter authorizing her to file a formal EEO complaint. (Dunston
Aff. Ex. B: 6/9/03 EEO Letter; see also Ferrer Dep. at
258-59.)*fn2 The letter stated:
As your allegations were not resolved [at the
mediation], if you still believe you have been
discriminated against on the basis on (unspecified)
you have the right to file a formal EEO complaint. Enclosed are two forms for your signature and date. . . .
You have the right to file a formal EEO complaint
within fifteen (15) calendar days upon receipt of
(Dunston Aff. Ex. B: 6/9/03 USPS EEO Letter.) Ferrer failed to
file a formal EEO complaint until July 2, 2003, twenty-one days
after June 11, the date she received the letter. (Dunston Aff. ¶
4 & Ex. D: Ferrer EEO Complaint.) Ferrer explained at her
deposition that because her father had died and she was having
financial problems arranging for his burial, "[s]o it kind of
distracted [her] from the case, you know, [she] totally forgot
about the 15-day deadline." (Ferrer Dep. at 260; see also Dkt.
No. 17: 11/1/04 Conf. Tr. at 5-6.) On July 22, 2003, the USPS EEO
office dismissed Ferrer's complaint on the ground that Ferrer
received the notice letter on June 11, 2003 but did not file her
EEO complaint until July 2, 2003, beyond the applicable 15-day
filing period. (Dunston Aff. Ex. E: EEO Dismissal of Complaint.)
The EEO also dismissed Ferrer's complaint on the merits because
Ferrer "did not link [the] complaint to any of the above-listed
types of discrimination prohibited by law [i.e., Title VII,
ADEA, Rehabilitation Act or Equal Pay Act]. Accordingly, we also
dismiss your complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim." (Dunston Aff. Ex. E: EEO Dismissal.)
Ferrer asserts in her Second Amended Complaint that Mercado and
Mercado's supervisor, Mrs. Jackson, told Ferrer her that she was
not capable of being a "window clerk" and that Ferrer "discovered
in [her] medical records that it was noted that [she has] serious
head problems and precaution should be taken." (2d Am. Compl. ¶
8; see also Ferrer Dep. at 192-96, 234-35.)*fn3 Ferrer had no proof that supervisor Mercado saw her medical
records, but she assumed Mercado had access to them. (Ferrer Dep.
at 265-66.) Ferrer also claims that Robinson and Mercado
"conspired" against her "to make [her] look incompetent." (Ferrer
Dep. at 112, 116-18, 124, 199, 240.) Ferrer explained that when
Mercado told her the job was too much responsibility for her,
since Mercado did not specify what was wrong with her job
performance, Mercado must have meant that Ferrer "cannot mentally
handle the job." (Ferrer Dep. at 192-96.) Ferrer admitted,
however, that she did not "have a psychological disability during
the time that [she was] at Hillside Station." (Ferrer Dep. at
I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION
CASES*fn4 Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S. Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ.,
224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S. Ct. 53 (2003);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d
The burden of showing that no genuine factual dispute exists
rests on the party seeking summary judgment here, defendant.
See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144,
157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.
1994). The movant may discharge this burden by demonstrating to the Court
that there is an absence of evidence to support the non-moving
party's case on an issue on which the non-movant has the burden
of proof. See, e.g., Celotex Corp. v. Catrett,
477 U.S. at 323, 106 S. Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must
do "more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356
(1986). Instead, the non-moving party must "set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; see
also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41
(at summary judgment, "[t]he time has come . . . `to put up or
shut up'") (citation omitted).
In evaluating the record to determine whether there is a
genuine issue as to any material fact, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor." Anderson v. Liberty Lobby, Inc.,
477 U.S. at 255, 106 S. Ct. at 2513.*fn5 The Court draws all
inferences in favor of the non-moving party only after
determining that such inferences are reasonable, considering all
the evidence presented. See, e.g., Apex Oil Co. v.
DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied,
484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary
judgment is sought, there is any evidence in the record from any
source from which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is improper." Chambers v.
TRM Copy Ctrs. Corp., 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not
to resolve contested issues of fact, but rather is to determine
whether there exists any disputed issue of material fact. See,
e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs,
834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins.
Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied,
480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality,
the substantive law determines which facts are critical and which
facts are irrelevant. See, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While
"disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment[,] [f]actual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248, 106 S. Ct. at 2510 (citation omitted);
see also, e.g., Knight v. United States Fire Ins. Co.,
804 F.2d at 11-12.
When a case turns on the intent of one party, as employment
discrimination claims often do, a "trial court must be cautious
about granting summary judgment." Gallo v. Prudential
Residential Servs., Ltd. P'Ship, 22 F.3d at 1224.*fn6
Because the employer rarely leaves direct evidence of its
discriminatory intent, the Court must carefully comb the
available evidence in search of circumstantial proof to undercut the employer's explanations for
its actions. E.g., Gallo v. Prudential Residential Srvs.,
Ltd. P'Ship, 22 F.3d at 1224. "[S]ummary judgment may not be
granted simply because the court believes that the plaintiff will
be unable to meet his or her burden of persuasion at trial. There
must either be a lack of evidence in support of the plaintiff's
position or the evidence must be so overwhelmingly tilted in one
direction that any contrary finding would constitute clear
error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir.
1998) (citations omitted). Nonetheless, when an employer provides
convincing evidence to explain its conduct and the plaintiff's
argument consists of purely conclusory allegations of
discrimination, the Court may conclude that no material issue of
fact exists and it may grant summary judgment to the employer.
E.g., Budde v. H&K Distrib. Co., No. 99-9449, 216 F.3d 1071
(table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v.
Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997);
Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.
1995). In other words, to defeat summary judgment, "the
plaintiff's admissible evidence must show circumstances that
would be sufficient to permit a rational finder of fact to infer
that the defendant's employment decision was more likely than not
based in whole or in part on discrimination." Stern v.
Trustees of Columbia Univ., 131 F.3d at 312; see, e.g.,
Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000);
Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on
summary judgment is "whether the evidence, taken as a whole,
supports a sufficient rational inference of discrimination. To
get to the jury, it is not enough . . . to disbelieve the
employer; the factfinder must also believe the plaintiff's
explanation of intentional discrimination.") (internal quotations
& alterations omitted); Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not
simply `some' evidence, but `sufficient evidence to support a rational finding that the
legitimate, nondiscriminatory reasons proffered by the employer
were false, and that more likely than not [discrimination] was
the real reason for the discharge'").*fn7 Indeed, the Second
Circuit "went out of [its] way to remind district courts that the
`impression that summary judgment is unavailable to defendants in
discrimination cases is unsupportable.'" Weinstock v. Columbia
Univ., 224 F.3d at 41.
II. THE USPS IS GRANTED SUMMARY JUDGMENT ON FERRER'S
REHABILITATION ACT CLAIM BECAUSE FERRER FAILED TO TIMELY
ADMINISTRATIVELY EXHAUST SUCH CLAIM
"Exhaustion of administrative remedies requires that a federal
employee comply with the EEOC regulations governing the
Rehabilitation Act." Warren v. Runyon, 97 Civ. 4085, 1998 WL
241932 at *2 (S.D.N.Y. May 14, 1998); see, e.g., Bruce v.
United States Dep't of Justice, 314 F.3d 71 (2d Cir. 2002);
Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001); Pauling
v. Secretary of Dep't of Interior, 160 F.3d 133, 133-34 (2d
Cir. 1998); Downey v. Runyon, 160 F.3d 139, 145 (2d Cir.
1998) ("Prior to bringing suit under the Rehabilitation Act . . .
[plaintiff] was obliged to exhaust the administrative remedies at
his disposal."); Jenkins v. Potter, 271 F. Supp. 2d 557, 562
(S.D.N.Y. 2003) ("Prior to bringing suit in federal district
court under Title VII and the Rehabilitation Act, a federal
employee is required to exhaust all of the administrative
remedies at her disposal in a timely fashion.") (citing Pauling
and Downey); Fontanez v. Thompson, 00 Civ. 2090, 2003 WL
1964052 at *8 (S.D.N.Y. Apr. 24, 2003) ("Under Title VII, the
Rehabilitation Act, and the ADEA, employees must exhaust all administrative remedies in a timely fashion
before filing suit in federal court."); Baber v. Runyon, 97
Civ. 4798, 1998 WL 912065 at *3 (S.D.N.Y. Dec. 30, 1998) ("A
federal employee seeking redress under the Rehabilitation Act
also must exhaust administrative remedies. . . . Employees of the
Postal Service are covered under the statute. Section 501
incorporates the remedies under Title VII. A plaintiff seeking
redress under the Rehabilitation Act must therefore comply with
the exhaustion requirements under Title VII. . . .") (citations
Under the relevant regulations, a postal employee who believes
that he or she has been discriminated against must contact an EEO
counselor within 45 days of the date of the alleged
discriminatory incident or personnel action.
29 C.F.R. § 1614.105(a)(1); see generally 29 C.F.R. § 1614.101 et seq; see
also, e.g., Bruce v. United States Dep't of Justice,
314 F.3d at 74; Belgrave v. Pena, 254 F.3d at 386; Torres v.
U.S. Dep't of Veteran Affairs, 02 Civ. 9601, 2004 WL 691237 at
*3-4 (S.D.N.Y. Mar. 31, 2004); Fontanez v. Thompson, 2003 WL
1964052 at *8; Costanzo v. United States Postal Serv., 00
Civ. 5044, 2003 WL 1701998 at *4 (S.D.N.Y. Mar. 31, 2003);
Baber v. Runyon, 1998 WL 912065 at *2; Warren v. Runyon,
1998 WL 241932 at *2.
If counseling is not successful, the counselor is required to
inform the aggrieved employee that he or she has a right to file
a formal EEO complaint. 29 C.F.R. § 1614.105(d); see, e.g.,
Torres v. U.S. Dep't of Veteran Affairs, 2004 WL 691237 at
*4. The employee's receipt of this notice triggers a 15-day
period within which to file a formal EEO complaint.
29 C.F.R. § 1614.106(b); see, e.g., Montesano v. Principi, No.
01-6149, 47 Fed. Appx. 608, 609, 2002 WL 31260044 at *1 (2d Cir.
Oct. 9, 2002); Belgrave v. Pena, 254 F.3d at 386; Torres v.
U.S. Dep't of Veteran Affairs, 2004 WL 691237 at *4; Fontanez
v. Thompson, 2003 WL 1964052 at *8 n. 7; Costanzo v. United States Postal Serv., 2003 WL 1701998 at
*4; Moore v. Potter, 217 F. Supp. 2d 364, 370 (E.D.N.Y.
2002); Baber v. Runyon, 1998 WL 912065 at *3; Chalom v.
Perkins, 1998 WL 851610 at *3; Warren v. Runyon, 1998 WL
241932 at *2. Failure to comply with these time limits is grounds
for the EEO office to dismiss the complaint without a hearing.
29 C.F.R. § 1614.107(a)(2).
Compliance with these deadlines "`is a condition of the waiver
of sovereign immunity and thus must be strictly construed.'"
Costanzo v. United States Postal Serv., 2003 WL 1701998 at *5
(quoting Irwin v. Department of Veteran Affairs, 498 U.S. 89,
94, 111 S. Ct. 453, 456 (1990)); see also, e.g., Moore v.
Potter, 217 F. Supp. 2d at 369 ("A federal employee's failure
to exhaust administrative remedies or failure to abide by the
prescribed time provisions does not trigger the waiver of
sovereign immunity and a district court is deprived of subject
matter jurisdiction to decide that employee's case."); Chalom
v. Perkins, 97 Civ. 9505, 1998 WL 851610 at *2-3 (S.D.N.Y. Dec.
9, 1998) ("The Supreme Court has held that waivers of sovereign
immunity, and their limiting conditions, must be strictly
construed. If . . . the conditions under which the government has
agreed to waive that immunity have not been met, federal subject
matter jurisdiction does not exist. Thus, a claimant may not sue
the federal government without complying with all statutory and
regulatory prerequisites. . . . If a federal employee does not
exhaust her administrative remedies, or does not do so in a
timely fashion, then sovereign immunity has not been waived, and
a federal court is deprived of subject matter jurisdiction to
hear that employee's claim.") (citations omitted); Warren v.
Runyon, 1998 WL 241932 at *2. However, "[i]t is defendants'
burden to prove that plaintiff did not timely exhaust her
administrative remedies." Costanzo v. United States Postal
Serv., 2003 WL 1701998 at *5; see also, e.g., Simmons v. Heyman, 97 Civ. 0434,
2000 WL 520664 at *3 (S.D.N.Y. May 1, 2000); German v. Pena,
88 F. Supp. 2d 216, 220 (S.D.N.Y. 2000).
The administrative record reveals, and Ferrer admitted at her
deposition, that she received the EEO Office's June 9, 2003
15-day notice letter on June 11, 2003, but did not file her
formal EEO complaint until July 2, 2003, twenty-one days later.
(See page 3 & n. 2 above.) As such, as the USPS EEO Office
found (see page 4 above) her administrative complaint was
untimely, which would preclude this Court from hearing her
federal claim (see cases cited at pages 10-11 above).
Ferrer's opposition papers raise two arguments about why her
EEO complaint was not untimely. First, she now claims that she
does not really remember when she got the June 9, 2003 letter and
that defendant USPS has not proved that she received it on June
11, 2003. (See Dkt. No. 25: Ferrer SJ Opp. at 1-2; see also
Dkt. No. 28: Ferrer 4/12/05 Submission at 2-4.) The USPS
submitted a postal carrier's statement that he delivered the
letter on June 11, 2003. (See page 3 n. 2 above.) More
importantly, Ferrer admitted before the USPS EEO Office and in
her deposition in this case that she received the letter on June
11, 2003 (see page 3 & n. 2 above). Ferrer knew the importance
of this question before her deposition, both from the EEO
Dismissal and the November 1, 2004 conference with the Court
(see pages 3-4 above), yet she unequivocally testified at her
deposition to receipt on June 11, 2003. Her vague allegations to
the contrary now cannot be used to create an issue of fact to
avoid summary judgment. "It is black letter law that affidavits
which contradict prior deposition testimony are disregarded on a
summary judgment motion." Johns-Davila v. City of New York,
99 Civ. 1885, 2000 WL 1725418 at *8 & n. 23 (S.D.N.Y. Nov. 20,
2000) (Peck, M.J.) (citing cases). In any event, all Ferrer now
says is that she does not recall when she received the June 9 letter. Even if the USPS
could not directly prove receipt on June 11, which it has done,
it would be entitled to a presumption that the letter was
received by Ferrer within three days of its June 9 mailing,
i.e., by June 12, 2003. See, e.g., Sherlock v.
Montifiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996)
("Normally it is assumed that a mailed document is received three
days after its mailing."); Toriola v. New York City Transit
Auth., 02 Civ. 5902, 2005 WL 550973 at *6 (S.D.N.Y. Mar. 9,
2005) ("Normally, it is `assumed that a mailed document is
received three days after its mailing,' which, in the situation
of the government providing notice to a party, is presumed to be
the date shown on the notice.") (quoting Sherlock); Francis
v. Elmsford Sch. Dist., 04 Civ. 2687, 2005 WL 151924 at *3
(S.D.N.Y. Jan. 25, 2005) ("As for the actual receipt of a letter,
in this Circuit, `there is a rebuttable presumption that a mailed
document is received three days after its mailing.'");
Culbertson v. Charosa Found. Corp., No. 03-CV-3742, 2004 WL
2370686 at *2 (E.D.N.Y. Oct. 18, 2004) ("[I]t is presumed that a
mailed document is received three days after its mailing.");
Moore v. Potter, 217 F. Supp. 2d at 372 ("With no evidence to
the contrary, the Court assumes that the plaintiff received the
[March 17] decision by Monday, March 20, 2000."); Chalom v.
Perkins, 1998 WL 851610 at *3.
Second, construing her papers liberally, Ferrer argues that the
time limit for her to have filed her EEO complaint should be
subject to equitable tolling because her father's death caused
her psychological problems that prevented her from timely filing
her EEO complaint. (Dkt. No. 25: Ferrer S.J. Opp. at 1-2; see
also page 4 above.)
The administrative EEO time-limits are subject to equitable
tolling. See, e.g., Bruce v. United States Dep't of
Justice, 314 F.3d at 74; Torres v. U.S. Dep't of Veteran
Affairs, 2004 WL 691237 a *4; Jenkins v. Potter, 271 F. Supp. 2d at 563;
Moore v. Potter, 217 F. Supp. 2d a 373; Avillan v.
Potter, 01 Civ. 1648, 2002 WL 252479 at *3 (S.D.N.Y. Feb. 21,
2002); Chalom v. Perkins, 1998 WL 851610 at *5-6.
"Equitable tolling has been applied `only sparingly' in private
suits and a `no more favorable tolling doctrine may be employed
against the Government." Jenkins v. Potter,
271 F. Supp. 2d at 563 (quoting Irwin v. Department of Veteran Affairs,
498 U.S. at 95, 111 S. Ct. at 457); see also, e.g., Haghpassand
v. Reuters America Inc., No. 04-2463, 120 Fed. Appx. 859, 862,
2005 WL 195092 at *2 (2d Cir. Jan. 28, 2005) ("[E]quitable
tolling is permissible, but only `in rare and exceptional
circumstances, in which a party is prevented in some
extraordinary way from exercising his rights.'"); Gibson v.
New York City Police Dep't, No. 98-7947, 201 F.3d 431 (table),
1999 WL 1070102 at *1 (2d Cir. Nov. 18, 1999) ("[E]quitable
relief is extended sparingly."); Moore v. Potter,
217 F. Supp. 2d at 373 ("courts have permitted such [equitable] tolling
`only sparingly'"); Chalom v. Perkins, 1998 WL 851610 at *5.
The requirements for equitable tolling have been described in
various ways in different cases, but it invariably comes down to
whether plaintiff was diligent and whether the defendant somehow
misled the plaintiff. See, e.g., Harrison v. Potter,
323 F. Supp. 2d 593, 601 (S.D.N.Y. 2004) ("In deciding whether to
toll a time period for filing, courts seek to balance the
necessity of adhering to statutory procedural requirements with
equitable considerations of dismissing claims on technicalities.
This Court is guided by some general factors to be considered in
these circumstances, namely, whether the plaintiff believes she
has complied with the requirements, whether there is evidence of
any affirmative misconduct on the part of the defendant, and whether the plaintiff received sufficient notice.");
Avillan v. Potter, 2002 WL 252479 at *3 ("Equity will not
actually lift the procedural bar, however, unless the plaintiff
shows that he (1) was unaware of or unable to meet his procedural
obligations (2) because of affirmative misconduct on the part of
the defendant."); Chalom v. Perkins, 1998 WL 851610 at *5
("Equitable tolling is not available when it is the fault of the
claimant for failing to exercise due diligence in meeting the
"`The burden of demonstrating the appropriateness of equitable
tolling . . . lies with the plaintiff,' and courts are `less
forgiving in receiving late filings where the claimant failed to
exercise due diligence in pursuing his legal rights.'" Avillan
v. Potter, 2002 WL 252479 at *3 (citations omitted); see
also, e.g., Chapman v. ChoiceCare Long Island Term
Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002) ("[T]he burden
of proving that tolling is appropriate rests on the plaintiff.");
Lewis v. Connecticut Dep't of Corr., 355 F. Supp. 2d 607, 616
n. 5 (D. Conn. 2005) ("Though defendants initially bear the
burden of establishing the affirmative defense of failure to
exhaust administrative remedies, once established, the burden
shifts to plaintiff to provide facts sufficient to counter the
affirmative defense, for instance, facts showing equitable
tolling . . ."); Lloyd v. Bear Stearns & Co., 99 Civ. 3323,
2004 WL 2848536 at *10 (S.D.N.Y. Dec. 9, 2004) ("The plaintiff
bears the burden of `demonstrating the appropriateness of
equitable tolling.'") (citing Boos v. Runyon, 201 F.3d 178,
185 (2d Cir. 2000)); Fields v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 301 F. Supp. 2d 259, 263 (S.D.N.Y. 2004) (same). Here, Ferrer does not claim that she was misinformed by the
USPS as to the fifteen day deadline or that any USPS action
caused her to miss the fifteen day deadline to file her formal
EEO complaint. Rather, she claims that she was "distracted" by
her father's death and "totally forgot about the 15-day
deadline." (Ferrer Dep. at 260, quoted at page 3 above.) That
alone is not sufficient for equitable tolling. See, e.g.,
South v. Saab Cars, 28 F.3d 9, 12 (2d Cir. 1994) ("[A]
plaintiff's failure to act diligently is not a reason to invoke
equitable tolling."); Boos v. Runyon, 201 F.3d at 185
(Plaintiff's "conclusory and vague claim, without a
particularized description of how her [mental] condition
adversely affected her capacity to function generally or in
relationship to the pursuit of her rights, is manifestly
insufficient to justify any further inquiry into tolling.");
Jenkins v. Potter, 271 F. Supp. 2d at 564 (union
representative's "wife's terminal illness" not sufficiently
"extraordinary" circumstance to justify equitable tolling);
Moore v. Potter, 217 F. Supp. 2d at 373 ("Equitable tolling
is not available when it is the fault of the claimant for failing
to exercise due diligence in meeting the filing deadlines.");
Chalom v. Perkins, 1998 WL 851610 at *5-6 ("Even if
[plaintiff] did offer proof of the mental grief she alludes to,
it would not reach the high standard that this circuit has
applied.") (citing cases); Brundin v. United States, 95 Civ.
2689, 1996 WL 22370 at *5 (S.D.N.Y. Jan. 19, 1996) ("Although the
plaintiff does supply an excuse for the delay the unexpected
death of her father this reason alone does not warrant
equitable tolling."). The Court finds that Ferrer has not met her high burden of
showing that this is an extraordinary case where equitable
tolling should be applied against the government. Rather, it is
Ferrer's own lack of diligence that caused her to fail to meet
the fifteen day filing deadline.*fn8
The USPS is granted summary judgment dismissing Ferrer's
For the reasons stated above, defendant USPS's summary judgment
motion (Dkt. No. 23) is granted. The Clerk of Court is to enter
judgment for defendant dismissing Ferrer's complaint.