Summary
characterizing a claim of unequal pay as a "discrete, individual wrong"
Summary of this case from Martin v. State University of New YorkOpinion
03-CV-6074 (JBW).
July 22, 2004
MEMORANDUM, JUDGMENT ORDER
I. Introduction
Plaintiff, proceeding pro se, brings this action against his employer, the Postmaster General of the United States, for alleged discriminatory treatment on the basis of plaintiff's disability. Because the plaintiff has failed to comply with the statutory time limits for employment discrimination suits and tolling is not appropriate, the case is dismissed.
II. Facts and Procedural History
Plaintiff, a Postal Service employee, filed a complaint with the Equal Opportunity Office in July 2002. He claimed that he was discriminated against in June 1985 when he was not selected for the position of Electronic Technician, and again in February 1987 when he was not reassigned to the same position. Plaintiff was finally promoted in May 2002, apparently on the basis of his June 1985 eligibility status, after transferring from a postal facility in the Bronx to one in New Jersey.
The complaint alleged discrimination on the basis of plaintiff's race, color, age and disability. In September 2003, the United States Postal Service Equal Employment Opportunity Commission dismissed the complaint as untimely because it was not filed within 45 days of the alleged discriminatory incident. See 29 C.F.R. § 1614.105(a)(2). It declined to consider a request for an extension of the 45-day limit since no such request accompanied the complaint.
Plaintiff brought suit in this court within the 90-day time limit for filing a federal claim. He alleges that, although he was qualified to be elevated to the position of electronic technician in June 1985, he was not promoted until May 2002. He claims he was not promoted for so long because of his status as a disabled Vietnam veteran. He also cites racial discrimination as a potential factor in his non-promotion, although he provides no specific factual allegations in support of such a claim. The complaint alleges violations of Title VII of the Civil Rights Act of 1964 ("Tile VII"), 42 U.S.C. §§ 2000e et seq. and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. Because, however, the ADA is not applicable to federal employees, see 42 U.S.C. § 12111(5)(B), the complaint will be construed to allege a violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. Plaintiff seeks seniority and back pay from June 1985 until May 2002 at his current level of pay.
Defendant moves to dismiss on the ground that the complaint is time-barred because the plaintiff failed to comply with the 45-day limit for seeking Equal Employment Opportunity counseling. Plaintiff opposes the motion to dismiss claiming that he was unaware he was being discriminated against until he transferred to the postal facility in New Jersey, once again made inquiries about a promotion, and was finally promoted to Electronic Technician based on his June 1985 eligibility status. He further claims that plaintiff's failure to promote him constitutes a continuing violation.
III. Law
A. Standard for Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss for "failure to state a claim upon which relief may be granted." A defendant has the burden of proving "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683 (1974).
For the purposes of a motion to dismiss, a court must accept the plaintiff's factual allegations as true, drawing all reasonable inferences in plaintiff's favor. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quotations and citations omitted).
B. Statutory Time Limitations
1. Administrative Review
Federal employees asserting Title VII claims are given 45 days from the date of the alleged discriminatory act in which to consult with a Counselor regarding their complaint. 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.105. If the matter is not resolved after counseling, the employee may then file a formal administrative complaint with the EEOC within 15 days of the counselor's final interview with the employee. 29 C.F.R. §§ 1614.105(d), 1614.106(b).
Federal employees alleging claims of disability discrimination under the Rehabilitation Act are governed by the same administrative procedures and time limitations as those set forth in Title VII. See Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000); Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1998).
Employees must pursue administrative procedures before commencing a lawsuit. Failure to comply with the 45-day counseling period ordinarily precludes an employee from filing a discrimination claim in federal court. See, e.g., Briones v. Runyon, 101 F.3d 287, 289-90 (2d Cir. 1996); Columbo v. United States Postal Serv., 293 F.Supp.2d 219, 222-23 (E.D.N.Y. 2003); Heins v. Potter, 271 F.Supp.2d 545, 552 (S.D.N.Y. 2003).
2. Exceptions
i. Accrual
EEOC regulations provide for an exception to the counseling requirement under certain circumstances:
The agency or the Commission shall extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known [sic] that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.29 C.F.R. § 1614.105(a)(2). These regulations "appear to codify the federal common law of accrual, under which accrual occurs when the plaintiff `knew or had reason to know of the injury serving as the basis for his claim.'" Heins, 271 F.Supp.2d at 552 n. 5 (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)).
ii. Waiver, Estoppel and Equitable Tolling
In addition, "the statutory requirement for filing is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel, and equitable tolling." Briones, 101 F.3d at 290 (citations omitted); 29 C.F.R. § 1614.604(c). "The doctrine of equitable tolling has been applied, inter alia, when the presiding court has led the plaintiff to believe that he has done all that is required, where affirmative misconduct has occurred by the defendant, and where the plaintiff has received inadequate notice." Briones, 101 F.3d at 290 n. 2. Tolling of the limitations period may also be justified in circumstances of severe mental illness. Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000).
"Unlike equitable tolling, which is invoked in cases where the plaintiff is ignorant of his cause of action because of the defendant's fraudulent concealment, equitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay in bringing his lawsuit." Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 49-50 (2d Cir. 1985); see also Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60-61 (2d Cir. 1986). It has been applied "in cases where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation." Cerbone, 768 F.2d at 50.
iii. Continuing Violations
The continuing violation doctrine may operate to delay the commencement of the statute of limitations period in situations in which there is an ongoing discriminatory policy or practice such as discriminatory seniority lists or employment tests. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Discrete, individual wrongs such as non-promotion, unequal pay, job transfer and discontinuance of a particular job assignment do not constitute acts of a continuing nature. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111-12 (2002); Pollis v. New School for Social Research, 132 F.3d 115, 119 (2d Cir. 1997); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997). The mere continuation of employment, without more, also will not render an otherwise time-barred claim timely. Delaware State College v. Ricks, 449 U.S. 250, 257 (1980).
IV. Application of Law to Facts
Plaintiff initially sought EEOC counseling on or about June 21, 2002, seventeen years after the alleged discriminatory failure to promote him to the position of Electronic Technician and more than fifteen years after the alleged discriminatory failure to reassign him to the same position. This far exceeds the 45-day limit for seeking counseling after an alleged discriminatory act.
No circumstances justify making an exception in this case. Plaintiff's claim accrued in June 1985 when he was denied his request for a promotion. He has not alleged any affirmative misconduct on the part of the defendant which would warrant the application of the doctrines of equitable tolling or equitable estoppel. In addition, the failure to promote him is a discrete, individual act and, as such, does not constitute a continuing violation.
V. Conclusion
The motion to dismiss the complaint as time-barred is granted.
SO ORDERED.