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
MEMORANDUM & ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
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.
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.
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
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
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
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
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