The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Shawna Harrington commenced this action asserting claims of workplace sexual harassment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq. ("Title VII"), § 296 of the Executive Law of the State of New York ("§ 296"), and 42 U.S.C. § 1983 ("§ 1983"). Defendant moves to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Plaintiff opposes the motion. For the reasons that follow, the motion is granted in part and denied in part.
Defendant argues that Plaintiff's Complaint fails to state a claim upon which relief can be granted under Title VII because Plaintiff was not an employee of the United States but, rather, was an independent contractor. Furthermore, Defendant argues that, assuming Plaintiff was an employee, her Title VII claim is time barred because she did not request counseling within 45 days of the last date of the purported harassment as required by 29 C.F.R. § 1614.105(a)(1). Defendant also argues that Title VII is the exclusive remedy for employment discrimination by the federal government, and, therefore, the Court lacks subject matter jurisdiction over the § 296 and § 1983 claims. Lastly, Defendant argues that Plaintiff fails to state a claim upon which relief can be granted under § 1983 because the United States does not act under color of state law.
Plaintiff "concurs with the dismissal of the § 1983 claim due to the absence of a 'state actor,'" Plf. Mem. L. p. 3, but argues that she was an employee of the United States Postal Service such that she has viable employment discrimination claims under Title VII and § 296. She further argues that she is entitled to equitable tolling on her Title VII claim.
a. § 1983 Claim - Color of State Law
Based on Plaintiff's concession that she has no viable § 1983 claim because there is no state action, the § 1983 claim is dismissed. See Dunn v. Secretary of U.S., 2006 WL 1510097, at *9 (N.D.N.Y. May 26, 2006)("Plaintiff fails to state a claim under 42 U.S.C. § 1983 because neither the United States nor its employees act under the color of state law.").
b. Preclusion of § 1983 and § 296 Claims
The § 1983 and the § 296 claims must also be dismissed because Title VII is the exclusive remedy for sexual harassment employment discrimination claims in federal employment. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (holding Title VII to be the "exclusive judicial remedy for claims of discrimination in federal employment"); Luckett v. Bure, 290 F.3d 493, 497 ("Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., is the exclusive remedy for discrimination by the federal government on the basis of race, religion, sex or national origin."); Rivera v. Heyman, 157 F.3d 101, 104-05 (2d Cir. 1998) (Employee's claims under Human Rights Laws of State and City of New York barred because Title VII provided the sole remedy for federal employees asserting employment discrimination claims).*fn1 Accordingly, the § 1983 and the § 296 claims are dismissed for this reason.
Turning to the Title VII claim, the threshold question is whether Plaintiff was an employee of the United States Postal Service within the meaning of Title VII. Title VII defines an employee as "an individual employed by an employer." 42 U.S.C. § 2000e(f).
In applying this somewhat "circular" definition, we use a two-part test. First, the plaintiff must show she was hired by the putative employer. To prove that she was hired, she must establish that she received remuneration in some form for her work. This remuneration need not be a salary, but must consist of "substantial benefits not merely incidental to the activity performed." ...