The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Bruce C. Webster brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, e-5 ("Title VII"), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112, 12117 ("ADA"), alleging that his supervisors at the United States Postal Service ("USPS") retaliated against him for engaging in protected activity. The USPS has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted.
Webster is an employee of the USPS in New York City. See Webster v. Potter, Appeal No. 0120092796, 2009 WL 3700709, at *1 (E.E.O.C. Oct. 22, 2009) (annexed to Complaint, filed Jan. 28, 2010 (Docket # 1) ("Compl.")) ("EEOC Decision");*fn1 Request to Proceed In Forma Pauperis, filed Jan. 28, 2010 (Docket # 2) ¶ 1. Webster alleges that his supervisors at the USPS retaliated against him: (1) by denying his February 8, 2008 request to change his schedule on February 9 and 11, 2008, so that he could attend an equal employment opportunity grievance hearing and an arbitration hearing; (2) by charging him 3.5 hours "Leave Without Pay" on February 12, 2008, while he was sick with a stomach virus in the medical unit; and (3) because on March 4 and 7, 2008, he was "under constant harassment" from one of his supervisors and his "wages were garnished after [he] received [an] award from [an] arbitration decision . . . ." Compl. ¶¶ 4, 8.
Webster filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on June 1, 2008, regarding the USPS's alleged retaliatory conduct. See Compl. ¶ 10; EEO Complaint of Discrimination in the Postal Service, dated June 1, 2008 (annexed to Compl.). The agency "accepted for investigation" Webster's first two claims but dismissed the third claim "pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that he was not aggrieved and the claim did not rise to the level of actionable harassment." Webster, 2009 WL 3700709, at *1. An Administrative Law Judge ("ALJ") granted summary judgment on the remaining claims in favor of the USPS on March 9, 2009. See id. at *1. On October 22, 2009, the EEOC affirmed the ALJ's decision and issued Webster a "Right to Sue" letter. See id. at *1, 3. This letter states: "You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision." Id. at *3 (emphasis in original).
Webster alleges that he received the "Right to Sue" letter on October 27, 2009. See Compl. ¶ 12. His federal court complaint, submitted to the United States District Court for the Eastern District of New York, is dated January 27, 2010. See Compl. at 5. The complaint was stamped "received" by the Pro Se Office on January 28, 2010. See id. at 1. On May 3, 2010, the Hon. Roslynn R. Mauskopf, United States District Judge for the Eastern District of New York, issued an order transferring the case to this Court. See Order, filed May 3, 2010 (Docket # 7).
In a letter dated July 28, 2010, the Government sought permission to move to dismiss the complaint on statute of limitations grounds. See Endorsed Letter, filed Aug. 4, 2010 (Docket # 15). Webster filed a notice of motion, apparently in response to the Government's proposed motion, to which he attached an affirmation entitled "Affirmation of Bruce C. Webster in Opposition to Defendant's Motion for Dismissal." See Affirmation, dated Aug. 11, 2010 (annexed to Notice of Motion, filed Aug. 12, 2010) (Docket # 18)). The affirmation gave various reasons for Webster's failure to timely file, including mental and medical issues. Id.
On August 18, 2010, the USPS then filed the instant motion to dismiss. See Notice of Motion, filed Aug. 18, 2010 (Docket # 19); Memorandum of Law in Support of Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment, filed Aug. 18, 2010 (Docket # 20) ("Def. Mem."); Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings, filed Aug. 18, 2010 (Docket # 21) ("Pro Se Notice"). The USPS's memorandum of law raised the issue of equitable tolling. See Def. Mem. at 6. On August 27, 2010, Webster countered this motion with his own motion, asking that the Court proceed with the case as scheduled and that it not grant the USPS's motion to dismiss or its motion for summary judgment. See Notice of Motion, filed Aug. 27, 2010 (Docket # 22) ("Pl. Motion"). Webster included an affirmation regarding tolling that was essentially identical to the one that he had filed prior to the motion to dismiss. See Affirmation in Opposition to Motion, dated Aug. 27, 2010 (annexed to Pl. Motion) ("Pl. Aff."). On September 9, 2010, the USPS filed a reply brief in further support of its motion. See Reply in Further Support of Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment, filed Sept. 9, 2010 (Docket # 23).
The USPS has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. The USPS has not adverted to any documents outside the pleadings in support of its motion, which is the normal predicate when a court converts a motion to dismiss to one for summary judgment. See Fed. R. Civ. P. 12(d). But inasmuch as the USPS raised the issue of equitable tolling in its memorandum of law, see Def. Mem. at 4-6, it was appropriate for it to move in the alternative for summary judgment in light of the fact that any claim by plaintiff to equitable tolling would have required plaintiff to submit materials outside the pleadings. See generally Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000) ("The burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff."). The Government provided Webster with a notice pursuant to Local Civil Rule 12.1 that informed him that the motion might be treated as one for summary judgment and that the complaint might be dismissed if he failed to file "sworn affidavits or other papers as required by [Fed. R. Civ. P.] 56(e)." See Pro Se Notice at 1. Given these circumstances, the Court will treat the USPS's motion as one for summary judgment because the USPS explicitly raised the issue of equitable tolling in its moving papers, Webster was informed of his obligation to submit evidence in response to the USPS's motion, and Webster in fact submitted an affirmation in response that addressed the equitable tolling issue. See Groden v. Random House, Inc., 61 F.3d 1045, 1052-53 (2d Cir. 1995) (appropriate to treat motion to dismiss as one for summary judgment as long as plaintiff had "reasonable opportunity to meet facts outside the pleadings") (internal quotation marks and citation omitted).
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A genuine issue of material fact "may reasonably be resolved in favor of either party" and thus should be left to the finder of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
In determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing there is a genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original) (additional citation omitted), and "'may not rely on conclusory allegations or unsubstantiated speculation,'" Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.), cert. denied, 534 U.S. 891 (2001)). In sum, the non-movant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor . . . ." Anderson, 477 U.S. at 256.
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