The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Carol F. C. Paladino ("Paladino"), is a former letter carrier of the United States Postal Service ("USPS" or "Postal Service"). Paladino brings this action against defendant John E. Potter, Postmaster General, pursuant to Title VII, 42 U.S.C. § 2000e, et. seq. ("Title VII"), alleging that she was discriminated against on the basis of sex (female) and disability (pregnancy) when she was terminated from her employment on December 2, 2005, after having been charged with various alleged violations of Postal Service policy. Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. Specifically, defendant argues that plaintiff has failed to timely exhaust her administrative remedies by contacting an Equal Employment Opportunity Counselor regarding the alleged discriminatory conduct within the requisite 45-day period from the discriminatory act. For the reasons that follow, defendant's motion for summary judgment is granted.
Paladino was assigned to the Huntington Station, New York branch of the United States Postal Service as a letter carrier on December 7, 1995, and was employed in that capacity until her termination on December 2, 2005. (Compl. ¶ 9.) In or around August 2003, plaintiff notified her immediate supervisors that she was pregnant. (Id. ¶ 15.) Plaintiff claims that, as a result of her pregnancy, her supervisors commenced a pattern of discriminatory conduct designed to harass, intimidate, and humiliate her. (Id. ¶ 16.) Plaintiff claims that, immediately upon the announcement of her pregnancy, her supervisors subjected her to micro-supervision and differential treatment. (Id. ¶ 17.) Plaintiff asserts that, on or about October 1, 2003, she advised her supervisors that as a result of her pregnancy she wished to be transferred to available "inside work." (Id. ¶ 32.) Further, plaintiff claims that, upon being transferred to inside work, she was denied full-time shifts, refused alterations to her work reporting times, eavesdropped upon, and subjected to different conditions of employment including being required to report each time she left the floor to use the bathroom and being prevented from using the telephones for personal business. (Id. ¶ 22(a), (d), (e), (f), (g).) In March of 2004, plaintiff gave birth. (Id. ¶ 23.) Plaintiff returned to work on December 20, 2004. (Id. ¶ 26.) Plaintiff claims that thereafter she was subjected to additional discriminatory acts of harassment by her supervisors. (Id. ¶ 27.)
Plaintiff asserts that she filed complaints with the USPS and the Equal Employment Opportunity Commission ("EEOC") as a result of these acts. (Id. ¶ 27.) Plaintiff further claims that, after filing these complaints, she was subjected to "microsupervision" and was suspended from duty in violation of USPS regulations. (Id. ¶ 28.)
B. Facts Pertaining to Exhaustion of Administrative Remedies*fn1
On December 2, 2005, plaintiff was terminated from her employment after being charged with various violations of Postal Service policy. (Def.'s 56.1 Statement ¶ 2.) On March 28, 2006, plaintiff initiated EEO counseling by mailing a pre-complaint counseling request to the United States Post Service's EEO office. (Id. ¶ 3.) In explaining the delay in filing for pre-complaint counseling, plaintiff states that she immediately reached out to various individuals and departments of the USPS EEO office seeking the appropriate forms. (Paladino Aff. ¶ 3.) Plaintiff claims that she was advised on various occasions that the individuals responsible for such matters in the Long Island region were unavailable for a variety of reasons. (Id.) Additionally, plaintiff asserts that she made several attempts to contact the EEO dispute resolution individuals at the USPS by leaving phone messages and requests for forms. (Id. ¶ 5.) Plaintiff claims that the forms were not forwarded until early March 2006. (Id.)
On July 17, 2006, plaintiff filed a formal complaint with the USPS EEO office alleging that she was discriminated against on the basis of race/national origin (Hispanic), sex (female), and disability (pregnancy), as well as alleging she was retaliated against for prior EEO activity. (Def.'s 56.1 Statement ¶ 4.) Plaintiff filed this complaint after receiving a series of disciplinary actions, the last of which was given on December 2, 2005, when she was terminated. (Id.) On August 4, 2006, the USPS EEO office dismissed the EEO complaint because plaintiff failed to comply with the applicable forty-five (45) day time limit for contacting an EEO counselor after the last alleged discriminatory incident. (Stipulation and Order, Partial Dismissal of Claims, Exh. A.) Further, there was no request for an extension of the time limit. (Id.) On November 2, 2006, plaintiff commenced this action by filing a summons and Complaint. (Def.'s 56.1 Statement ¶ 9.) On September 7, 2007, by stipulation of all parties, plaintiff's allegations in the complaint of violations of the Americans with Disabilities Act ("ADA") and New York State Human Rights law ("NYSHRL") were dismissed with prejudice. (Def.'s 56.1 Statement ¶ 11.) The only remaining allegation in this action is plaintiff's claim that, pursuant to Title VII, she was discriminated against on the basis of sex (female) and disability (pregnancy) when plaintiff was terminated from her employment on December 2, 2005 after having been charged with various alleged violations of USPS policy.
Plaintiff filed a complaint in this action on November 2, 2006. On September 7, 2007, the parties stipulated that the ADA and NYSHRL claims would be dismissed with prejudice. On September 14, 2007, defendants moved to dismiss, or, in the alternative, for summary judgment on the Title VII claims. Oral argument was held on November 9, 2007. Both parties agreed at oral argument that defendant's motion - which was made under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment - should be treated as one for summary judgment.*fn2
II. LEGAL STANDARD FOR SUMMARY JUDGEMENT UNDER RULE 56
The standards for summary judgment are well-settled. Pursuant to Fed. R. Civ. P. 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50 (internal citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" will not defeat a properly supported motion for summary judgment. Id. at 247. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984). ...