The opinion of the court was delivered by: Feuerstein, District Judge
On June 22, 2005, pro se plaintiff Michael A.R. Jordan (plaintiff) commenced this employment discrimination action against John E. Potter, Postmaster General, U.S. Postal Agency (defendant) alleging, inter alia, violations of the Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112-12117 (amended by the Civil Rights Act of 1991, Pub. L. No. 102-166). Defendant now moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings.*fn1 For the reasons set forth herein, defendant's motion is granted in part and denied in part.
At all relevant times, plaintiff was employed by the United States Postal Service (USPS) as a city carrier at the Soundview Post Office in Bronx County, New York. (See Declaration of AUSA Diane Leonardo Beckmann [Beckmann Decl.], Exhibits [Ex.] B and C). Plaintiff alleges that on November 25, 1991, he fell from a second story patio down a flight of stairs, as a result of which he sustained back and shoulder injuries and post traumatic stress. (Complaint [Compl.], ¶ 8; Exhibits at pp. 16 and 23). According to plaintiff, he has been continuously harassed "by management" since the accident and was told that he was "taking up a slot than an able body [sic] carrier can fill who performs at 100%." (Id.). In addition, plaintiff alleges that "management" tried to remove him from "the services" by lying at his arbitration hearing. (Id.). Plaintiff further alleges that management approved him for sick leave, then claimed that he never called in seeking sick leave. (Id.). According to plaintiff, he was also refused advancement and was told that as long as he is disabled on the job, he cannot apply for any position of advancement. (Id.).
B. Administrative Proceedings
On March 24, 2005, plaintiff sought EEO counseling by filing a request for an appointment with a Dispute Resolution Specialist (DRS). (Beckmann Decl., Ex. B). In the "Information for Pre-Complaint Counseling" form that he completed in preparation for the EEO counseling, plaintiff indicated that on March 2, 2005, as he returned to the Soundview station from an arbitration hearing, he was approached by Ralph R. Colon (Colon), an assistant manager of customer services, who he was "official[ly]" meeting for the first time, and told to get out of the station. (Id.). Plaintiff further indicated that prior to that date, in May 2004, he had a confrontation with Mr. Rosario, postmaster at the Cornell Station, because Ms. Felix, the manager, did not want him starting and ending his tour out of uniform. (Id.). According to plaintiff, that incident was "where the harrasment [sic] started again." (Id.). Plaintiff indicated that the resolution he sought was to "be treated in a professional manner [and] not be single [sic] out by management at all levels. To be treated like any other employee at [his] station." (Id.).
On April 4, 2005, plaintiff filed a written complaint with Mitchell Sturman, Manager of the EEO Office of the USPS, alleging (1) that his manager, Mr. Bermudez, told him that he wanted plaintiff out of the Soundview station due to his handicap because he needed a carrier who could perform at one hundred percent and that as long as plaintiff had a handicap, he was not eligible for any position of advancement; (2) that on October 26, 2002 Ms. Lewis, one of plaintiff's supervisors, "with full knowledge of [his] medical restrictions, gave [him] a direct order to lift a 65 lb express package for delivery even though [he] told her [he] could not;" (3) that Ms. Lewis subsequently hid his medical documentation; (4) that Roberto Medina (Medina), another of plaintiff's supervisors, lied about not receiving a call from him on March 19, 2005 reporting in sick and stating that he was not going to be in to work until March 23, 2005, and reported him Absent Without Leave (AWOL); and (5) that Medina also lied on March 2, 2005 about giving him permission to attend an arbitration hearing with the postal vehicle assigned to him. (Compl., Exhibit at p. 25).
By letter date April 29, 2005, the EEO summarized the claims for which plaintiff sought EEO counseling as follows: (1) that on March 2, 2005, the Manager (Colon) told him to get out of the station; (2) that on March 2, 2005, the Manager did not identify himself before giving plaintiff a direct order; (3) that on March 18, 2005, plaintiff received a pre-disciplinary interview for unauthorized use of a postal vehicle; and (4) that on March 22, 2005, plaintiff received an AWOL. (Beckmann Dec., Ex. C). The EEO Office advised plaintiff that with respect to plaintiff's requested resolution, Medina no longer worked at the station and the other officials advised that they would continue to treat plaintiff with dignity, mutual respect and professionalism and, thus, plaintiff's requested resolution was honored. (Id.). Plaintiff was advised of his right to file a formal EEO complaint. (Id.).
On May 5, 2005, plaintiff filed a formal EEO complaint against Colon, Bermudez and Medina, alleging discrimination based upon his disability and retaliation. (See Compl., Exhibit [Ex.] A; Beckmann Decl., Ex. D). In the EEO complaint, plaintiff alleged (1) that on March 2, 2005, his manager (Bermudez) lied during the arbitration hearing to have him removed from the USPS, causing him undue stress; (2) that on that same date, his manager (Colon) did not identify himself when he gave plaintiff a direct order to get out of the station; and (3) that on March 22, 2005, plaintiff was charged as AWOL by Medina and Colon, even though Medina previously approved his sick leave request. (Id.).
By decision dated May 16, 2006, the EEO dismissed plaintiff's first claim on the grounds that plaintiff did not raise that claim during counseling, as required by 29 C.F.R. § 1614.107(a)(2), and that the Office of EEO has no jurisdiction over the arbitration process and, thus, plaintiff failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). (Compl., Ex. A). The EEO dismissed plaintiff's second claim on the ground that he was not aggrieved by the conduct alleged therein and, thus, he failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). (Id.). The EEO dismissed plaintiff's third claim as moot pursuant to 29 C.F.R. § 1614.107(a)(5), since the file revealed that that claim had been resolved.
On June 22, 2005, plaintiff commenced this employment discrimination action against John E. Potter, Postmaster General, U.S. Postal Agency (defendant) purportedly pursuant to the Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112-12117 (amended by the Civil Rights Act of 1991, Pub. L. No. 102-166)*fn2 , alleging failure to promote, failure to accommodate, and unequal terms and condition of employment due to his disability; retaliation; harassment; and that his medical restrictions were violated. With respect to his retaliation claims, plaintiff claims to have engaged in EEO activity on April 21, 1997 and November 4, 1997. (Beckmann Decl., Ex. B).
Defendant now moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for ...