The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff pro se Eric Hall ("plaintiff" or "Hall") brought the above-captioned action against his employer, defendant John E. Potter, Postmaster General ("defendant"), alleging the following: employment discrimination on the bases of plaintiff's race, color and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); employment discrimination on the basis of plaintiff's disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (the "Rehabilitation Act");*fn1 and improper retaliation for protected activity in violation of both aforementioned statutes. Plaintiff seeks $211,000,000, an injunctive order, damages, costs and attorney's fees.
Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on the grounds that plaintiff has failed to timely exhaust his administrative remedies. After carefully considering the submissions of both parties and for the reasons set forth herein, defendant's motion is granted in part and denied in part. Specifically, defendant's motion is granted with respect to all claims which arise from allegations not contained in plaintiff's complaint filed with the Equal Employment Opportunity ("EEO") office on September 13, 2004 (the "2004 Complaint"). Defendant's motion is denied with respect to all claims encompassed by the 2004 Complaint.
The Court has taken the facts described below from the parties' affidavits, exhibits and defendant's Local Rule 56.1 Statement of Facts ("Def.'s 56.1").*fn2 In ruling on a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).
1. Allegations of Discrimination in 2000- 2003
On October 14, 2000, plaintiff contacted the EEO office for the United States Postal Service ("Postal Service"), alleging discrimination on the basis of race when his supervisor yelled at him in front of "everyone" and he was prohibited from seeing his shop steward until the end of his shift. (Def.'s 56.1 ¶ 14.) On January 12, 2001, plaintiff and the Postal Service settled the matter such that plaintiff would voluntarily withdraw the associated complaint. (Id. ¶¶ 15-16.) On August 5, 2001, plaintiff contacted the EEO office alleging discrimination on the bases of race, gender and physical disability, as well as retaliation for protected activity, when one of his supervisors touched his face three times and two other supervisors harassed him and removed him from his work area. (Id. ¶ 17.) He subsequently filed an EEO complaint regarding the same on December 6, 2001, which was accepted for investigation on January 29, 2002. (Id. ¶ 19.)
On April 12, 2002, plaintiff filed an EEO complaint alleging discrimination on the bases of race, color, gender and physical disability, as well as retaliation for protected activity, when he received a fourteen-day suspension on December 24, 2001 and a letter of removal on March 29, 2002. (Id. ¶ 22.) On May 16, 2002, this complaint was consolidated with the complaint that he had previously filed on December 6, 2001. (Id. ¶ 21.) On May 27, 2003, plaintiff requested a hearing with an administrative judge, who then issued a Notice of Intent to Issue a Decision Without a Hearing on July 26, 2004. (Id. ¶ 25.) On August 6, 2004, plaintiff's attorney filed a motion in opposition to the Notice of Intent, but then informed the Equal Employment Opportunity Commission ("EEOC") on August 27, 2004 that he had been discharged as plaintiff's attorney and requested that the administrative judge stay his decision on the motion in opposition, as plaintiff wished to withdraw the charges. (Id. ¶¶ 26-27.) On September 10, 2004, plaintiff notified the EEOC of his intention to withdraw the charges. (Id. ¶ 28.) On September 13, 2004, the administrative judge dismissed the consolidated complaints. (Id. ¶ 29.)
On November 4, 2003, plaintiff contacted the EEO office alleging discrimination on the bases of race, gender and disability when a supervisor wore a set of prosthetic red lips in his presence. (Id. ¶ 30.) Plaintiff filed a formal complaint regarding the alleged incident on April 1, 2004, which was dismissed on May 7, 2004 for failure to state a claim. (Id. ¶¶ 31-32.) Plaintiff appealed this dismissal to the EEOC on June 4, 2004, which affirmed it on September 15, 2004. (Id. ¶¶ 33-34.) On October 22, 2004, plaintiff moved for reconsideration of the dismissal, a request which the EEOC denied on November 23, 2004. (Id. ¶¶ 35-36.)
On July 16, 2004, plaintiff contacted the EEO office for the Postal Service alleging discrimination on the bases of race, gender and physical disability, as well as retaliation for prior EEO activity, when he was directed to stand for a time period longer than four hours. (Def.'s 56.1 ¶ 1.) Specifically, plaintiff alleged that his supervisor forced him to stand for four hours and twenty minutes daily for approximately three months, in excess of the four hours daily recommended by his attending physician. (Compl. at 26-27; Amended Compl. at 7.)*fn3 On September 13, 2004, plaintiff filed an EEO complaint based on this same allegation and requested a hearing before an administrative judge on January 19, 2005, retaining Michael J. Schaff ("Schaff") as counsel for representation therein. (Def.'s 56.1 ¶¶ 2-4.) On April 29, 2005, the administrative judge entered summary judgment against plaintiff on his complaint. (Id. ¶ 5.)
On May 24, 2005, the Postal Service issued a Notice of Final Action, which was sent to plaintiff via regular mail and sent to Schaff via certified mail, return receipt requested, at the address of 104-21 68th Drive, #B30, Forest Hills, New York, 11375. (Id. ¶¶ 6-7.)*fn4 The cover letter which accompanied the Notice stated that "it should be further noted that the EEO Commission accepts that, absent a receipt for delivery, delivery is accomplished within five days of mailing. Therefore, time frames should be computed as commencing five days from the date of this letter." (Sturman Decl., Ex. A.) The envelope was returned to the Postal Service's EEO office after Schaff failed to claim the certified mail. (Def.'s 56.1 ¶ 8.) On July 1, 2005, the EEO office mailed a second copy of the Notice of Final Action to Schaff. (Id. ¶ 9.) The cover letter enclosing the Notice of Final Action stated:
On May 24, 2005, this office issued a Notice of Final Action regarding your client Eric Hall's f o rma l comp l a i n t o f discrimination . . . . The Notice was mailed to you via certified mail . . . and subsequently returned to this office endorsed "unclaimed." A copy of the original envelope is attached for your information . . . . It should be further noted that the EEO Commission accepts that, absent a receipt for delivery, delivery is accomplished within ...