The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Pro se Plaintiff Rohani Ramnauth ("Ramnauth") brings this Title VII action, 42 U.S.C. §§ 2000e, et seq., alleging that her former employer, the United States Postal Service ("USPS"), discriminated against her on the basis of her race and gender by denying her request for reassignment back to her former position in Brooklyn, which she vacated in order to voluntarily transfer to a position in Florida. Ramnauth filed the action on March 25, 2005, and USPS moved for summary judgment on March 1, 2007. For the reasons discussed below, the Court grants the summary judgment motion in its entirety, and dismisses the action.*fn1
Rohani Ramnauth was born in Guyana, South America, and considers her race and nationality to be Indian. From January 1994 to November 2003, she was employed by USPS as a "Level 6 Administrative Clerk" at the Brooklyn Vehicle Maintenance Facility ("the Brooklyn VMF"). Ramnauth requested a transfer to another USPS facility in Florida to be closer to her ailing father. In November 2003, the transfer was granted and Ramnauth began working as a "Window Clerk" in Florida. Ramnauth immediately regretted her decision to transfer, and requested to be transferred back to her Brooklyn VMF post after just one day of work in Florida.*fn3
Ramnauth understood that if she transferred out of her position, she would lose her seniority, but she claims that personnel at the Brooklyn VMF reassured her that she could be "reassigned back to [her] position within thirty days of reassignment." (Ramnauth Dep. 190.) In mid-November 2003, however, Ramnauth was informed that she could not return to her position at the Brooklyn VMF because her job no longer existed. It had been designated an "incumbent only" position and the position reverted (i.e., terminated) when Ramnauth transferred to Florida. All other positions in the Triboro area were being "withheld," meaning they were was reserved for local employees whose positions had been eliminated.
Nine months later, in September 2004, Ramnauth contacted a USPS Equal Employment Opportunity ("EEO") counselor and filed a complaint alleging discrimination in connection with the transfer denial. On November 27, 2004, the USPS EEO dismissed her complaint as untimely. Ramnauth then filed this action on March 25, 2005,*fn4 seeking backpay and reinstatement. She filed an Amended Complaint on April 13, 2005. USPS now moves for summary judgment on the grounds that Ramnauth failed to exhaust administrative remedies; she cannot establish a prima facie case of discrimination; and she cannot rebut USPS's nondiscriminatory rationale for its actions. Ramnauth responded with a three-page "Affidavit" opposing the motion, but submitted no other evidence or materials from which to demonstrate genuine issues of fact.
I. Subject-Matter Jurisdiction
As an initial matter, USPS contends that the Amended Complaint must be dismissed because Ramnauth failed to timely exhaust her administrative remedies. The Court agrees.
Prior to bringing a Title VII action, "a federal government employee must timely exhaust all administrative remedies at [her] disposal." Belgrave v. Pena, 254 F. 3d 384, 386 (2d Cir. 2001) (citation omitted). Pursuant to 29 C.F.R. § 1614.105(a)(1), a federal employee must contact an EEO counselor within 45 days of the alleged discriminatory action, or within 45 days of the effective date of personnel action. If this requirement is not met, and equitable tolling is inapplicable, then the action must be dismissed, as Judge Mukasey explained:
If a claimant has not met the filing requirements, either directly or with the aid of equitable tolling, there is no waiver of sovereign immunity, and accordingly, no subject matter jurisdiction. Put differently, the government has not consented to be sued by a federal employee who has neither met with her EEO counselor within 45 days of the alleged discriminatory act, nor satisfactorily explained her failure to do so. Accordingly, defendant's motion here properly is characterized as one pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject-matter jurisdiction.
Dillard v. Runyon, 928 F. Supp. 1316, 1325 (S.D.N.Y. 1996).
Ramnauth concedes that she did not contact an EEO counselor until August 2004, approximately nine months after she was denied transfer back to the Brooklyn VMF.*fn5 She also concedes that in December 2003, she signed a document entitled "EEO Complaint Procedures" (Feldman Decl. Ex. 23), which advises that all discrimination charges must be made within 45 days.*fn6
Furthermore, there is no evidence in the record to warrant equitable tolling, which is only available in very limited circumstances.*fn7 See Dillard, 928 F. Supp. at 1325 ("Put simply, equitable tolling may be available when the plaintiff's failure to meet a deadline is someone else's fault."). In her opposition Affidavit, Ramnauth seems to explain that she did not file a complaint within the 45-day limit because she ...