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United States District Court, S.D. New York

May 4, 2005.

NORMA CHERRY, Plaintiff,
JOHN E. POTTER, Postmaster General, United States Postal Service Defendant.

The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

Plaintiff, who is proceeding pro se, filed the instant Complaint on February 25, 2004, alleging that her employer, the United States Postal Service, discriminated against her because of her sex and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. Defendant brings the instant motion for summary judgment, arguing that the Complaint must be dismissed because defendant's claims are time-barred, and, in the alternative, plaintiff's allegations that she was not given opportunity for "housekeeping" overtime work, and her transfer to another location within the post office do not constitute an adverse employment action. As elaborated below, since no specific facts have been presented to show that there is a genuine issue for trial, Fed.R.Civ.P. 56(e), defendant's motion is granted.

I. Facts

  Norma Cherry is a 59-year old African-American woman who has worked for the Postal Service since August, 1984. In 1998, Plaintiff was working at the Postal Service's Morgan Processing and Distribution Center ("Morgan") in Manhattan in the Lenox Hill unit, or "pay location 872." Plaintiff first worked as a Letter Sorting Machine operator until that type of machine was abolished. After that, she worked as an unassigned clerk in the Lenox Hill unit on another type of machine known as a Delivery Bar Code Sorter ("DCBS") and also manually boxed mail. In early 1998, Cherry submitted a "bid" to work as a DCBS operator in the Lenox Hill unit. Cherry's bid was successful, and she began work as an operator in March, 1998. Cherry's Complaint arises out of two discrete incidents later in 1998, one concerning opportunities for "housekeeping" overtime, and the second concerning her reassignment to the Times Square unit. The complaints concern the conduct of Cherry's supervisor, an African-American woman.

  The Issue of Housekeeping Overtime

  An African-American woman named Laura Jones (now deceased) supervised Cherry in the Lenox Hill unit from around 1993 through 2000, with the exception of the several months in 1998 when Cherry worked in the Times Square unit. Beginning around the end of 1996 or the middle of 1997, Jones gave Cherry approximately one to two hours of "housekeeping" overtime work around the DBCS machines every day after her work ended.

  In March of 1998, an argument between Cherry and Jones precipitated a meeting among Cherry, Jones, Jones's supervisor, and the shop steward for the union. Cherry alleges that shortly after the meeting, Jones removed her from the daily housekeeping overtime that she had been doing and gave the housekeeping overtime to a man named Andre Beauchomp instead of to her. In her deposition, Cherry testified that it was at this time that she formed the belief that Jones was discriminating against her. Despite this incident, Cherry was often able to find other overtime work in the Lenox Hill unit or in other unites.

  The Reassignment to the Times Square Unit

  In June of 1998 Cherry was reassigned to the Times Square unit, located down the hall from the Lenox Hill unit, as a DCBS operator — substantially the same job as she had had in the Lenox Hill unit. Cherry contends that she first learned about the transfer in April of 1998 from Jones. Cherry testified that when she asked Jones the reason for the transfer, Jones said, "Well, Cherry, I told you before that I wanted a man." Declaration of Mara E. Trager, dated December 21, 2004 ("Trager Decl.") ¶ 1, Ex. O (Transcript of Deposition of Norma Cherry), (hereinafter "Plaintiff Tr."), pp. 88-90. Cherry stated that no one witnessed or could have overheard the conversation. Id. pp. 98-100.

  Plaintiff filed the instant Complaint on February 25, 2004, and now defendant moves to have it dismissed on summary judgment.

  II. Discussion

  Summary judgment is warranted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine issue" of "material fact" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although all facts and inferences therefrom are to be construed in favor of the party opposing the motion, see Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 498 (2d Cir. 2001), the non-moving party must raise more than just a "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen, 273 F.3d at 499. "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

  Here, defendant provides evidence that plaintiff's allegations are time-barred for failure timely to report them to an EEO officer, and that her alleged denial of overtime opportunities does not constitute an adverse employment action. Plaintiff has submitted no evidence to contradict this evidence and has not shown that there are any genuine issues of material fact with respect to these issues. I have searched the record, and finding the evidence of untimeliness uncontroverted, grant summary judgment to defendant on that ground.

  A. Timeliness of Plaintiff's EEO Complaint

  When a federal employee seeks to lodge a complaint against her employer, the employee must contact an EEO counselor within 45 days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). Failure properly to exhaust this administrative remedy bars a civil action for discrimination. See Brown v. Gen. Servs. Admin., 425 U.S. 829, 832-33 (1976); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996).

  Plaintiff alleges in her Complaint and in her deposition testimony that she was discriminated against in March of 1998 when Jones stopped giving her housekeeping overtime assignments, and in June of 1998 when she was reassigned to the Times Square unit. Plaintiff did not contact an EEO counselor until October 28, 1998, well over 45 days after these events. (Ahmed Aff. ¶ 3; Ahmed Aff. Ex. A). Plaintiff's claims are therefore time-barred.

  B. Equitable Tolling of the Exhaustion Requirement

  There is also no evidence in the record to the effect that plaintiff's failure to contact an EEO counselor within the 45-day period should be excused. The grounds for extension are set forth at 29 C.F.R. § 1614.105(a)(2), which provides:

The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or Commission.
29 C.F.R. § 1614.105(a)(2). The Supreme Court has also permitted equitable tolling of the timeliness requirements in circumstances "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complaint has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."

  Irwin v. Veterans Admin., 498 U.S. 89, 96 (1990).

  Plaintiff has shown no ground to excuse her tardiness. Plaintiff was aware of the time limits because she previously had filed an EEO complaint, in 1993, and admitted in her deposition that she was aware of the complaint procedure. There is no evidence that plaintiff did not know that the discriminatory incident had not occurred. All of the incidents she complained of were directed toward her, and there were no circumstances outside of her control that prevented her from lodging a complaint with the EEO counselor. Thus, none of the regulatory exceptions applies.

  The doctrine of equitable estoppel elucidated by the Supreme Court also does not apply in this case, as there is no evidence in the record indicating that plaintiff filed a defective pleading or that defendant acted in any way to induce plaintiff to delay seeking EEO counseling. See Judge v. Henderson, 172 F. Supp. 2d 410, 414 (S.D.N.Y. 2001). Finally, this is also not a case where equitable tolling is appropriate. Equitable tolling is available "only when the plaintiff's failure to meet a deadline is the result of someone else's error." German v. Pena, 88 F. Supp. 2d 216, 219-22 (S.D.N.Y. 2000). The burden of demonstrating that equitable tolling applies lies with the plaintiff. Judge, 172 F. Supp. 2d at 414. Plaintiff has not met that burden; there is no evidence that plaintiff's failure to exhaust the requisite administrative procedure in a timely fashion was the result of someone else's error. Furthermore, the fact that Cherry first tried to resolve her complaint internally by sending a letter to management does not toll the 45-day requirement. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). There is no evidence that any internal investigation by the Post Office "caused time to lapse and led [Plaintiff] to delay filing with the EEOC." Vernon v. Port Authority of New York and New Jersey, 154 F.Supp.2d 844, 852 (S.D.N.Y. 2001).

  I note that plaintiff's EEO complaint was not rejected on the basis of untimeliness, but was in fact reviewed by the EEO counselor. Government agencies "do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint." Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001) (citations omitted). Furthermore, the burden rests on plaintiff to show waiver by the government, and plaintiff, who has not addressed the issue of waiver in any of her arguments or documents, has not met this burden.*fn1 Id. All of plaintiff's claims except for the one made with regard to the January 1996 incident are dismissed. III. Conclusion

  I have reviewed the record before me, and find that there are no genuine issues of material fact. The instant Complaint is time-barred, and Summary judgment is granted to defendant. The complaint is dismissed, and the Clerk is ordered to enter judgment accordingly.


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