Summary
In Littlejohn, plaintiff's claims were time-barred for failure to contact an EEO counselor within the forty-five-day period, a requirement with which Laudadio complied.
Summary of this case from Laudadio v. JohannsOpinion
01-CV-2772 (JG)
June 19, 2003
KENNETH W. RICHARDSON, Law Offices of Kenneth W. Richardson, New York, New York, for Plaintiff ROSLYNN R. MAUSKOPF, Elliot M. Schachner, Brooklyn, New York
MEMORANDUM AND ORDER
Amber Littlejohn brought this action against the United States Postal Service (the "Postal Service"), her former employer, pursuant to,inter alia, Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 791 et seq. The defendant has moved 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, based upon Littlejohn's failure to follow the necessary administrative procedures before filing her claim. For the reasons stated below, the motion is granted and the case is dismissed.
BACKGROUND
Littlejohn, an African-American, transgendered female who suffers from a bad back, began working for the Postal Service in 1985. On September 28, 1998, Littlejohn's supervisor notified her that the Postal Service intended to terminate her employment because she had filed numerous false claims related to alleged on-the-job injuries. Although Littlejohn contested her termination through the Postal Service's grievance process, the Postal Service followed through with its decision to fire her. Littlejohn's last day on the job was January 29, 1999.
On February 3, 2000, Littlejohn made an appointment with the Equal Employment Opportunity ("EEO") Office of the Postal Service, and an EEO counselor was assigned to handle her claim. After meeting with the counselor, Littlejohn filed a formal EEO complaint on March 31, 2000, alleging that the Postal Service had discriminated against her on the basis of her race, sex, transgendered status, and disability. On June 7, 2000, the EEO Compliance and Appeals Office dismissed her complaint for failing to contact an EEO counselor within 45 days from the date when the alleged discrimination occurred. See 29 C.F.R. § 1614.105(a)(1).
On July 11, 2000, before administrative review of her EEO claim became final, Littlejohn filed a complaint in this district. On December 20, 2000, I dismissed that complaint without prejudice in order to permit her to exhaust her administrative remedies. On February 9, 2001, the EEO office issued Littlejohn a "right to sue" letter, and she filed a new complaint on May 3, 2001.
Littlejohn claims that her termination from the Postal Service was based on her race, sex, transgendered status, and disability, and that she was sexually harassed by her supervisors, which ultimately led to her firing. In addition to her Title VII and Rehabilitation Act claims, she alleged violations of 42 U.S.C. § 1981 and 1983, the Equal Protection Clause of the Fourteenth Amendment, the New York State Executive Law § 296 et seq., and the New York City Administrative Code § 8-101 et seq. During oral argument on the Postal Service's motion, it asserted — and Littlejohn's counsel agreed — that Title VII and the Rehabilitation Act preempt Littlejohn's other claims. See Brown v. General Servs. Admin., 425 U.S. 820, 829 (1976); Rivera v. Heymajnu, 157 F.3d 101, 105 (2d Cir. 1998). Thus, these two statutes provide the sole basis for her job discrimination claims.
The Postal Service contends that Littlejohn is procedurally barred from bringing her claims because she failed to contact an EEO officer within 45 days of the discriminatory acts on which her claims are based. In opposition to the motion, Littlejohn asserts that she tried to file an EEO complaint in 1997, but she withdrew it under duress. She also includes, as an exhibit to her affidavit, a 1996 document referencing a 1995 worker's compensation claim.
DISCUSSION
A. Conversion of otion to Dismiss to Motion for Summary Judgment
Rule 12(b)(6) of the Federal Rules of Civil Procedure states that "[i]f, on a motion . . . to dismiss . . . matters outside the pleading are presented to and not excluded by the court the motion shall be treated as one for summary judgment [as long as the parties are given notice and an opportunity to be heard]." See also Baber v. Runyon, No. 97-CV-4798, 1998 WL 912065, at *1 (S.D.N.Y. Dec. 30, 1998). A court should not convert a motion to dismiss to a motion for summary judgment unless the non-moving party has sufficient notice and opportunity to "meet facts outside the pleadings." In re G. A. Books. Inc., 770 F.2d 288, 295 (2d Or. 1985). Here, the Postal Service notified Littlejohn that it was also moving for summary judgment, and both parties reference materials beyond the scope of the pleadings by submitting affidavits and exhibits. I therefore deem it appropriate to consider the motion as a motion for summary judgment.
A party is entitled to summary judgment under Fed.R.Civ.P. 56(c) "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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." Substantive law identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party," id, and "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met its burden of showing that there is no dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'"Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
B. Title VII and the Rehabilitation Act of 1973
Title VII provides that employees shall be free from any discrimination based on race, color, religion, sex, or national origin. The Rehabilitation Act guarantees that individuals with disabilities achieve equal opportunity, inclusion, and integration into the workforce. An aggrieved federal employee who brings claims under Title VII and the Rehabilitation Act "must initiate contact with a[n] [EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory." See 29 C.F.R. § 1614.105(a)(1). If "a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred." Butts v. N.Y.C. Dep't of Housing Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); see Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000) (dismissing Rehabilitation Act claims for failing to meet the 45-day requirement);Parola v. IRS, No. 98-CV-7179, 1999 WL 1215557, at *5 (E.D.N.Y. Dec. 15, 1999) (dismissing Title VII claims for failing to meet the 45-day requirement). Littlejohn did not satisfy this requirement because she waited until February 3, 2000, to initiate contact with an EEO counselor. Her last day on the job was January 29, 1999, more than a year before she filed her claim.
Littlejohn half-heartedly claims that she met the deadline because she filed a complaint in 1997, but then was forced to withdraw it. This argument fails for several reasons. First, the Postal Service submitted an affidavit from its EEO officer declaring that Littlejohn did not file such a complaint. Puslal Service records do show that Littlejohn filed a complaint in 1995, but that complaint did not allege actionable discrimination. Rather, it set forth Littlejohn's problems with her supervisor related to the length of her lunch breaks, and Littlejohn withdrew the complaint on December 6, 1995. Second, the document included with Littlejohn's affidavit is from 1996 and merely indicates that she filed a worker's compensation claim. It provides no support for her allegation that she filed (and withdrew) a 1997 EEO claim alleging harassment and discrimination. Third, even assuming Littlejohn filed and withdrew a sexual harassment claim in 1997, the withdrawal of an EEO complaint must be considered as a waiver of any underlying discrimination claims. Dalessandro v. Monk, 864 F.2d 6, 8 (2d Cir. 1988). Finally, even if Littlejohn had filed such a complaint, and even if her withdrawal of it did not constitute a waiver of claims asserted, there is no justification for Littlejohn's failure to initiate contact with an EEO counselor within 45 days of her last day at work. The pressures that allegedly prevented Littlejohn from timely pursuing her claims while she was on the job were indisputably gone no later than that date. When pressed at oral argument for a reason justifying Littlejohn's failure to initiate contact with an EEO counselor within 45 days of her leaving the job, Littlejohn's attorney could provide none. See Zcrilli-Edelglass v. NT.C. Transit Auth., No. 01 Civ. 7641, slip op. at 9-10 (2d Cir. June 17, 2003) (noting that the EEO Commission's regulatory deadlines are subject to equitable tolling, but only in rare circumstances).
Littlejohn also contends that summary judgment is inappropriate because more discovery is needed. In order to defeat a motion for summary judgment, Littlejohn must present, in affidavit form, specific reasons for her inability to oppose the motion. See Fed.R.Civ.P. 56(f). "[A] party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing (1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Miller v. Wolpoff Abramson. L.L.P., 321 F.3d 292, 303 (2d Cir. 2003) (internal quotes omitted). A party's failure to file an affidavit in opposition to summary judgment acts as "sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) (summary judgment must be granted if the adverse party does not provide specific information demonstrating that there is a genuine issue for trial).
Littlejohn did not file a Rule 56(f) affidavit; rather, she opposes summary judgment and seeks more discovery in the hope that "it would reveal an environment so hostile as to give defendant constructive notice of what took place and render redundant the 45 day requirement" PL's Mem. in Opp'n to the Def/s Mot. to Dismiss at 6. This argument misapprehends the purpose of the 45-day requirement. The purpose of administrative complaints is not to put the employer on notice of its own misconduct, but rather to provide the appropriate administrative entities the opportunity to investigate and resolve those complaints informally without resorting to the courts. Miller v. Int'l Telephone and Telegraph Corp., 755 F.2d 20, 26 (2d Cir. 1985); Stewart v. I.N.S., 762 F.2d 193, 198 (2d Cir. 1985).
CONCLUSION
For the reasons stated above, the Postal Service's motion is granted. The Clerk is directed to close the case.
So Ordered.