The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Keisha Seals ("plaintiff" or "Seals"), former employee of the United States Postal Service ("USPS"), brings this action against defendants John E. Potter, Postmaster General of USPS ("Potter"); David Dubar ("Dubar") and Kevin Stehle ("Stehle"), USPS managers; and John Does 1--10 (collectively "defendants"). Plaintiff alleges that defendants subjected her to a hostile work environment, race discrimination, and retaliation in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1981a. Plaintiff also brings two pendent state law claims.
Defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) and/or for summary judgment pursuant to Rule 56. Plaintiff opposes the motion. Oral argument was heard on May 13, 2011, in Utica, New York. Decision was reserved.
On March 16, 2009, Seals began working as a "casual" custodial employee at a USPS facility in Syracuse, New York.*fn1 She was assigned to the evening shift and was the only African-American female working in the maintenance department at that time. In April 2009 she filed a complaint with USPS supervisors after a co-worker stated, "black people are lazy." Plaintiff claims this co-worker's mother, who also worked for USPS, threatened retaliation for her complaint.
Seals allegedly faced racial discrimination and an increasingly hostile work environment after filing the complaint. Specifically, she claims Dubar and Stehle-who are both white-scrutinized her work performance more closely than they scrutinized other employees, fishing for reasons to "write her up." Plaintiff also alleges she was denied vacation time while white employees were permitted days off, her shifts were changed to accommodate white employees, racist comments and jokes were made in her presence, and her duties were increased in an effort to force her to quit. Plaintiff maintains that she reported this treatment to USPS supervisors but the situation was not remedied.
In October 2009 a USPS facility in Watertown, New York, was closed, thereby displacing several "career" USPS employees. On November 13, 2009, plaintiff's employment was terminated. While defendants claim plaintiff's position was filled by a displaced Watertown employee, Seals maintains a white "new hire" replaced her. Plaintiff further alleges that prior to her termination Dubar and Stehle advised they would "get rid of her," lied about the existence of three open casual custodial positions*fn2 , and declared any open positions would be filled with their "own people." Defendants assert that plaintiff was offered, but declined, a custodial position on the overnight shift.
Seals called the National Equal Employment Opportunity Investigative Services Office ("NEEOISO")*fn3 on November 18, 2009, to complain of discrimination. She was informed by an "automated operator" that her initial contact with NEEOISO was complete and that a specialist would contact her. On November 23, 2009, plaintiff received an EEO request for counseling packet in the mail. Plaintiff claims she immediately completed the packet and mailed it back to NEEOISO the following day. Nonetheless, plaintiff received a "failure to pursue" letter on December 11, 2009, indicating that her EEO case was being closed due to her failure to timely complete and return the counseling packet.
Seals called NEEOISO for a second time on December 14, 2009, and another packet was mailed. She received this second packet on December 18, 2009. A letter accompanying the packet instructed plaintiff to fill out and return it within ten days. Plaintiff then called NEEOISO a third time and left a message advising that she received the second packet but pointing out that she had already submitted a completed counseling packet. Plaintiff admits she did not complete and return the second packet within ten days. Defendants assert that NEEOISO mailed Seals another failure to pursue letter on January 4, 2010. Plaintiff denies ever receiving a second failure to pursue letter.
In June 2010 plaintiff's attorney mailed the completed second packet to NEEOISO on her behalf. NEEOISO received this packet on June 21, 2010, and deemed the postmarked date-June 17, 2010-as the date of initial contact. Plaintiff had an initial counseling session with an EEO specialist on July 1, 2010. She elected to participate in alternative dispute resolution and, on August 23, 2010, engaged in an unsuccessful mediation session. Plaintiff was issued an EEO "Notice of Right to File Individual Complaint" on September 7, 2010, and she filed a formal written complaint of discrimination with USPS on September 14, 2010. On October 5, 2010, USPS dismissed the complaint, claiming she did not request EEO counseling within forty-five days of the alleged discrimination. This letter also indicated that plaintiff had the right appeal the decision to the Equal Employment Opportunity Commission ("EEOC") or file a civil action in federal court within ninety days. She filed this civil action on December 22, 2010.
A. Conversion of the Motion
A motion to dismiss may be converted into one for summary judgment if the nonmoving party has "sufficient notice" and an opportunity to respond to the motion for summary judgment. Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995). To determine if notice is sufficient, "[t]he essential inquiry is whether the [non-movant] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by ...