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finding poor treatment by supervisors was not a materially adverse employment action because plaintiff could not demonstrate an attendant negative result
Summary of this case from [REDACTED] v. Citizen Watch Co. of Am., Inc.Opinion
99 Civ. 10749 (BSJ)
November 29, 2000
Order and Opinion
INTRODUCTION
Pro se Plaintiff, Jacqueline Fridia ("Fridia"), brings the instant action against Defendant William J. Henderson, Postmaster General of the United States Postal Service, pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., alleging that she was discriminated against based on race, sex and national origin while employed by the United States Postal Service from 1994 through 1995. Presently before this Court is Defendant's motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(c) for failure to state a claim upon which relief may be granted. In the alternative, Defendant contends that certain claims must be dismissed because plaintiff failed to properly exhaust her administrative remedies.
Fridia opposes Defendant's motion. Although her opposition papers basically reassert the allegations set forth in her Complaint, this Court construes them as contentions that she states viable claims and had properly exhausted her administrative remedies before filing the instant action. Having carefully considered the motion, this Court finds that Plaintiff's causes of action do not set forth a claim upon which relief my be granted. Accordingly, for the reasons set forth below, Defendant's motion to dismiss is granted.
FACTS
Events leading up to Fridia's EEO Complaint
Fridia, an African-American female, was hired as a Part Time Flexible letter carrier by the New York Post Office at the Greenwich Village Station, 201 Varick Street, in April, 1994. Complaint ("Compl.") ¶ 5. Approximately one year later, on April 13, 1995, the Postal Service issued Fridia a Notice of Removal which stated that she would be removed from duty on May 19, 1995 for various work violations. See Declaration of Michael M. Krauss ("Krauss Dec.") Ex. B; Plaintiff's Memorandum of Law ("Pl. Mem.") Ex. 20 at 1. That same day, Fridia contacted the office of Equal Employment Opportunity ("EEO") regarding allegations of employment discrimination. See Krauss Dec. Ex. C; Pl. Mem. Ex. 19, 20 at 1.
Specifically, the Notice of Removal charges Fridia with the following: (1) "failure to place third class mail inside the mail receptacles at 49 Grove Street:" (2) "failure to lock the mail boxes at 7-9 Carmine Street;" (3) "failure to deliver mail to Our Lady of Pompei, 25 Carmine Street;" and (4) "violating Section 661.3.f of the Standards of Conduct." Declaration of Michael M. Krauss ("Krauss Dec.") Ex. B at 1-2. In addition, the Notice of Removal stated that elements of her past record were considered in taking the action, including a February 9, 1995 issuance of a seven day suspension for an absence without leave, and a December 12, 1994 Letter of Warning for an absence without leave. Id.
An EEO counselor conducted an interview with Fridia on May 12, 1995. Krauss Dec. Ex. C; Pl. Mem. Ex. 20 at 1. During the interview, Fridia told the EEO counselor that she felt discriminated against based on her sex when she was issued her Notice of Removal by Supervisor Michael Nowicki, and requested that she be transferred to another station in another state. Pl. Mem. Ex. 20 at 1; Krauss Dec. Ex. C at 2. Thereafter, the EEO counselor conducted interviews with Fridia's supervisors who denied that the Notice of Removal was for discriminatory reasons, but rather was based on irregularities in Fridia's work performance. Krauss Dec. Ex. C at 2; Pl. Mem. Ex. 20 at 1.
Fridia's EEO Complaint
Following the EEO counselor's inquiry into her allegations, on August 2, 1995, Fridia filed a formal complaint with the EEOC. Krauss Dec. Ex. D. Fridia's EEO complaint contended that her direct supervisor, Susan Hom-Goodridge ("Hom-Goodridge") discriminated against her on the basis of her color when Hom-Goodridge treated her poorly and assigned her excessive work. Krauss Dec. Ex. D. Specifically, Fridia alleged: (1) that on November 4, 1994, she was assigned to do a "very heavy" route, and when she asked Hom-Goodridge for assistance, she was told that she did not "need any help because you will not be here for the weekend in a very nasty way;" (2) that when she shared a heavy route with another carrier she "end[ed] up with most of the route and the other person [got] a little bit of the route . . . [a]nd the other person [was] of a different race than [her];" (3) that Hom-Goodridge spoke to her "in a very nasty way everyday;" (4) that in May, 1995, she was assigned to do a route that had approximately "two days worth of mail" because the previous day, a male Latino carrier had brought back his undelivered mail; (5) that in the week of April 14, 1995, she "got stuck with peck collection" for two consecutive weeks even though "the supervisors are suppose [sic] to rotate all subs for doing late peck collection;" (6) that "nothing was done" when she complained to the shop steward and Sylvester Black, the post master at 34th street head quarters; and (7) that "the supervisors didn't like the fact that I was writing letters to Mr. Black." Krauss Dec. Ex. D at 1-2.
In addition to color, Fridia checked off the box for retaliation in the "type of discrimination alleged" on her EEO complaint. Krauss Dec. Ex. D. The box for sexual discrimination was not checked, id., even though that was her original basis for the alleged discrimination. Krauss Dec. Ex. C.
Union Grievance
On October 5, 1995, an arbitrator ruled on a union grievance that had been filed on Fridia's behalf contesting her removal on May 19, 1995. See Krauss Dec. Ex. E. Although stating that he found Fridia guilty of the charges set forth in her Notice of Removal and that the Postal Service had just cause to discipline her, the arbitrator ruled that the penalty of termination was too severe. Id. at 2. Accordingly, he reinstated Fridia on a "last chance basis" without back pay or benefits. Id. In addition, the arbitrator placed her on probation for eighteen months, during which time any infraction of Postal rules or regulations by Fridia would lead to a reinstatement of the termination. Id. However, by the time of this October 5, 1995 ruling, Fridia had relocated to North Carolina, and declined her reinstatement. Krauss Dec. Ex. F.
Fridia's EEO Affidavit
By letter dated March 14, 1997, the Postal Service notified Fridia that her August 2, 1995 EEO complaint had been accepted for investigation. Krauss Dec. Ex. G at 1. The letter stated that the issue for investigation was "[w]hether [she] was discriminated against on the basis of her sex when on April 13, 1995, she was issued a Notice of Removal effective May 19, 1995."Id. In addition, the letter stated that if Fridia disagreed with the issue for investigation, she had to object, in writing, within fifteen calender days. Id. If no objection was made within fifteen days, the defined issue would remain unchanged. Id. This Court has seen nothing in the record that suggests that Fridia objected to the issue for investigation.
On March 28, 1997, the Postal Service sent Fridia a letter requesting information regarding her EEO complaint and attached an affidavit for Fridia to execute. Krauss Dec. Ex. H. Fridia executed the affidavit on April 7, 1997. Her affidavit reasserted some of the allegations contained in her August 2, 1995 EEO complaint and set forth a few new allegations. See Krauss Dec. Ex. I. In particular, Fridia contended: (1) that Hom-Goodridge constantly assigned her a heavy route which required two carriers, and then "would always give the other letter carrier a small portion of the route;" (2) that, on one Saturday, Hom-Goodridge assigned her to a route in which a "male letter carrier had brought back 8 bags of mail from the day before," told her to "finish putting up all Saturday's mail and 8 bags that was [sic] not delivered Friday," assigned the male carrier to a light route and looked at her and smiled; (3) that, on another occasion, Hom-Goodridge assigned her to a route with a male carrier and gave her "most of the route, " and when she completed her portion and returned to the station, was ordered by Hom-Goodridge, "in a very nasty and hateful voice," to complete the male carrier's portion of the route; (4) that Hom-Goodridge denied her request for leave with pay for a day of work that she missed because of car trouble, stating that the two sets of paperwork that Fridia had turned in as proof of her car problems were "not good enough;" and (5) that in March, 1995, she did not get paid for a week of work that she missed due to the hospitalization of her daughter, even though she called in, because her "paperwork was not good enough." Krauss Dec. Ex. I at 1-2; 4. The Postal Service's Decision on Fridia's EEO Complaint
Apparently, the male carrier had mislabeled his relay bags and returned to the station with undelivered mail.
Fridia's affidavit also included her version of the incidents leading to the charges brought against her in the Notice of Removal. She stated: (1) that the reason she did not deliver mail to the church was because the church door was locked, and being that this was the first time she had that route, she did not know that she had to ring a bell to get in to the church; (2) that she locked the mailboxes that she was accused of leaving open, that other carriers had keys to those mailboxes and as she was leaving the building on the day in question, another letter carrier was delivering a package and may have opened the mailboxes; and (3) that she did not throw coupons into the garbage, but as directed by a sign in the building, placed them on a shelf near the mailboxes because the mailboxes were too small and there was no room for the coupons and "someone that lived in the building put all of the coupons in the trash and called the post office." Krauss Dec. Ex. I at 2.
By letter dated November 17, 1997, the Postal Service notified Fridia that her EEO complaint investigation had been completed and provided her with a copy of the investigative file. Krauss Dec. Ex. J. Thereafter, on April 22, 1999, the Postal Service issued its final decision on Fridia's EEO complaint. Krauss Dec. Ex. K. The Postal Service found that Fridia failed to provide any persuasive evidence that Title VII was violated, and thus concluded that she had not been discriminated against when she was issued her Notice of Removal. Id. at 3.
Noting the charges which led up to Fridia's Notice of Removal, her overall unsatisfactory performance during her thirteen month tenure, including a letter of warning, a seven day suspension and at least five prior performance problems, and the arbitrator's finding that the agency had just cause to discipline her, the Postal Service held that any inference of discrimination was dispelled and the burden shifted to her to prove that there must be an ultimate finding of discrimination. Krauss Dec. Ex. K at 2. Whereas Fridia "failed to show that [she was] satisfying the normal requirements of the job, or that under nearly identical circumstances, [she was] treated less favorably than a similarly performing employee outside her protected group . . . [and that she] did not show that [she was] discharged and replaced by someone in a different class," the Postal Service closed her complaint with a finding of no discrimination. Id. at 3.
The Instant Complaint
On May 17, 1999, Fridia, acting pro se, filed the instant action in the United States District Court for the Eastern District of North Carolina, seeking back pay. See Compl. ¶ 12. The Complaint alleges that Fridia was discriminated against on the basis of race, sex and national origin by supervisors Hom-Goodridge and Nowicki and station manager Goldenberg (collectively "management"). Id. ¶¶ 4, 6, 8. This Court construes the Complaint to allege that management discriminated against Fridia in three ways. See Compl. ¶ 9.
On October 18, 1999, the United States District Court for the Eastern District of North Carolina granted Defendant's motion to transfer venue to the Southern District of New York. See October 18, 1999 Order (United States District Court for the Eastern District of North Carolina) attached as Krauss Dec. Ex. M.
First, Fridia contends that management discriminated against her when it denied requests for leave with pay: (1) on January 28, 1995, where management designated Fridia absent without leave when she took a day off after having worked ten hours a day for ten consecutive days; (2) on February 23, 1995, when she missed a day of work because of car problems even though she called in and had given management papers documenting her troubles; and (3) in March, 1995, when management declared her absent without leave after she missed four days of work due to the hospitalization of her daughter although she called in on the first day and had given management signed paperwork from the doctors upon her return. Id.
The Complaint states that management forged Fridia's request for leave with pay by changing the dates on her form. It also notes that management said she was paid for that week, but Fridia insists she was not. Compl. ¶ 9. In subsequent papers to this Court, Fridia's states that on December 22, 1995 she received a check for $292.75 this was refund for terminal leave. Mr. Novowicki and Ms. Goodridge states that 40 hours for annual leave was granted on 3-13-95. If the annual leave was granted I would not have 68.40 leave refunded to me."
Second, Fridia alleges that her supervisor, Hom-Goodridge, regularly mistreated her. Indeed, the Complaint sets forth that from January through May, 1995 Hom-Goodridge "treated and talked to [her] very nasty." Fridia states that she complained about this, but nothing was ever done. Id.
Finally, Fridia asserts that Hom-Goodridge discriminated against her by assigning her an excessive amount of work including: (1) in April, 1995, when she was placed on "peck collection more than anyone;" (2) on May 9, 1995, when Hom-Goodridge assigned her to a route in which the previous day's carrier, a male white, had returned to the station with undelivered mail, required her to deliver both days' mail, placed the male white carrier on another route and then laughed at Fridia; and (3) on another occasion when she was assigned to do a route with another male white she was given "most of the route," and after finishing her share was ordered to deliver a portion of the mail that the male white did not deliver because he had mislabeled his relay bags and returned to the station with undelivered mail. Id.
Fridia also alleged that for "four to five months I complained to management how the supervisors was treating me. They failed to respond to my complaints. I was discriminated against by supervisors. Management still says bad things about me after I left working for the Postal Service, got refused for jobs in N.C. because management saying negative things." Compl. ¶ 4.
Since courts construe pro se litigants' claims liberally, this Court finds that Fridia's claims also encompass the allegations set forth in her February 20, 2000 and August 7, 2000 papers opposing Defendant's motion to dismiss which assert: (1) that Hom-Goodridge always assigned her to do routes with problems; (2) that Hom-Goodridge constantly assigned Fridia to routes which required two carriers, would give her most of the route and would give the other carrier the smaller portion; (3) that on December 1, 1994, Hom-Goodridge "believed hearsay information" about Fridia and docked her one hour of pay; (4) that in late December, 1994, her previously approved leave for December 27, 1994 through December 28, 1994 was withdrawn; (5) that on July 11, 1995, the Postal service rescinded her Veteran Preference; (6) that, on a Saturday, Hom-Goodridge assigned her to a route in which a male carrier had brought back eight bags of undelivered mail from Friday, told her to deliver both Saturday's mail and the undelivered mail from Friday, assigned the male carrier to a light route and looked at her and smiled; (7) that for "four to five months" she complained to the shop steward and then to Sylvester Black, post master at New York City head quarters, about how her supervisors were treating her and they failed to respond; and (8) that management continued to say negative things about her after she left the job which contributed to her inability to secure work in North Carolina. Pl. Mem. at 1-4.
This Court notes that Fridia's complaint and other subsequent pleadings do not allege discrimination based on her "Notice of Removal." Nor did she specifically plead the following assertions in this action, although they previously appeared in either her EEO complaint or her EEO affidavit: (1) that Hom-Goodridge constantly assigned Fridia to heavy routes which required two carriers, would give her most of the route while the other carrier, who was of a different race, would get the smaller portion; (2) that on November 4, 1994, Fridia, after asking Hom-Goodridge for assistance with a "very heavy" route, was told that she did not "need any help" because she was not working that weekend; (3) that in May, 1995, she was assigned to do a route that had approximately "two days worth of mail" because the previous day, a male Latino carrier had brought back his undelivered mail; (4) that her supervisors were upset with her for writing to Black.
DISCUSSION
On February 14, 2000, Defendant moved to dismiss the Complaint pursuant to Rule 12(c) on grounds it fails to state a claim upon which relief may be granted. See Memorandum of Law of Defendant William J. Henderson in Support of His Motion to Dismiss Plaintiff's Complaint ("Def. Mem."). Federal Rules of Civil Procedure 12(c) provides: "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). Where, as here, "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(c).
The standards that are employed for granting or dismissing a complaint for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(c) are the same as they are under a Rule 12(b)(6) motion to dismiss for failure to state a claim.See Ad-Hoc Comm. of the Baruch Black Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). In both motions, a court must accept as true the well-pleaded factual allegations in the complaint, and draw all reasonable inferences in favor of the complaintant. Hendrickson v. United States Attorney General, 1994 WL 23069 at *1 (S.D.N.Y. 1994) (citing California Motor Transp. v. Trucking Unlimited, 404 U.S. 508, 515 (1972). In addition, a court may only consider the factual allegations in the complaint, documents attached thereto as exhibits or incorporated in it by reference, "matters of which judicial notice may be taken" or "documents either in plaintiff['s] possession or of which plaintiff had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). Finally, a court should grant a Rule 12(c) motion only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"Hendrickson, 1994 WL 23069 at *1 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))
All of the documents referenced herein are either Fridia Exhibits or were official documents served on Fridia prior to this lawsuit.
Title VII is the exclusive remedy available to federal employees for allegations of discrimination on the basis of race, sex or national origin. See Brown v. General Services Admin., 425 U.S. 820, 832 (1976); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996). In this case, under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), Plaintiff bears the initial burden of establishing, by a preponderance of evidence, aprima facie case of discrimination. Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). In order to set forth a prima facie case, the complaintant must demonstrate: (1) that she was in a protected group; (2) that she was performing her duties satisfactorily; (3) that she suffered an adverse employment action; and (4) that the adverse action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in the protected class. Tarshis v.Riese Organization, 211 F.3d 30, 36 (2d Cir. 2000).
Title VII states, in pertinent part, that "[i]t shall be unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a) (1)
The burden to establish a prima facie case is minimal and once accomplished, it creates the presumption that the employer unlawfully discriminated against the employee. Bickerstaff, 196 F.3d at 446. To rebut this presumption, the employer must articulate a legitimate, non-discriminatory reason for its action. Id. (citing Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998)).
Defendant argues that Fridia "failed to allege two essential elements of a prima facie case of employment discrimination under Title VII: (i) that she suffered an adverse employment action; and (ii) that the adverse action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in the protected class. Def. Mem at 8-9.
It is clear that Fridia has satisfied the first element of a prima facie case as she is an African-American female, and thus, is part of a protected group. Given that defendant provided significant evidence that Fridia was not performing her duties in a manner satisfactory to her employer, it is less clear that Fridia has satisfied the second element of the test. However, since Defendant does not dispute that Fridia has met her burden under this element, this Court will assume that the second element has been satisfied.
First, Defendant argues that the conduct complained of by Fridia does not amount to an "adverse employment action" as required under Title VII to sustain this action. Def. Mem at 9-12. He contends that the assignment of excessive work, the denials of requests for leave with pay and Hom-Goodridge's "nasty" treatment of Fridia do not constitute an "adverse employment action." Id. Relying on Torres v. Pisano, 116 F.3d 625, 639-40 (2d Cir.), cert. denied, 522 U.S. 997 (1997), Defendant asserts that, to establish an "adverse employment action," Fridia must demonstrate "a materially adverse change in the terms and conditions of [her] employment." Def. Mem at 10. Defendant states that Fridia has not met this burden because she did not "allege that she was assigned more menial responsibilities than other Part Time Flexible letter carriers [and did not] allege that she was placed in a situation with limited opportunities for growth or advancement." Id.
It is well settled that a plaintiff may demonstrate an "adverse employment action" by showing a "materially adverse change in the terms and conditions of employment." Richardson v. New York State Department of Correctional Service, 180 F.3d 426, 446 (2d Cir. 1999) (quoting Torres, 116 F.3d at 640, cert. denied, 522 U.S. 997 (1997)). Although the contours of what comprises a materially adverse change in the terms and conditions of employment may be imprecise, courts have set forth the following list of factors to help determine whether an employment action is materially adverse: "[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."Davis v. City University of New York, 1996 WL 243256 at *8 (S.D.N.Y. 1996) (quoting Monica v. New York City Off-Track Betting Corp., 1995 WL 117879 at *4 (S.D.N.Y. 1995)); See also De la Cruz v. New York City Human Resources Admin. Dep't of Soc.Serv., 82 F.3d 16, 21 (2d Cir. 1996) (stating that a materially adverse change is not limited to "pecuniary emoluments," but may include diminution of duties motivated by discrimination) (quoting Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d Cir. 1980)).
It is clear that "[a] materially adverse change is one that `has an attendant negative result, a deprivation of a position or an opportunity.'" Davis, 1996 WL 243256 at *8 (citations omitted). However, not every unpleasant matter creates a cause of action, including insubstantial changes in an employee's work conditions. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (quoting Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)). Thus, the change must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Davis, 1996 WL 243256 at *8 (quoting Monica, 1995 WL 117879 at *4). "`Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse.'" Wanamaker, 108 F.3d at 466 (quoting Welsh, 14 F.3d at 86).
This Court finds that Fridia's allegations of excessive work, denials of requests for leave with pay and Hom-Goodridge's general treatment of Fridia, without more, do not amount to "adverse employment actions" because they are not materially adverse changes in the terms, conditions or privileges of her employment. See Monica, 1995 WL 117879 at *4. Indeed, Fridia's complaints cannot be construed as a termination of employment, a demotion, a material loss of benefits, significantly diminished responsibilities, a deprivation of a position or opportunity, or anything else that would demonstrate a material adverse change in her employment. See Davis, 1996 WL 243256 at *8. Nor can Fridia demonstrate that any of these allegations had an attendant negative result. See id. In addition, Hom-Goodridge's "nasty" statements to Fridia did not "sufficiently affect the conditions of [her] employment to implicate Title VII." See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993). Accordingly, this Court finds that Fridia's complaints simply do not rise to the level that would constitute a materially adverse change and thus holds that she has not suffered an adverse employment action. See Davis, 1996 WL 243256 at *8.
Morever, although her burden was minimal, this Court finds that Fridia's allegations likewise do not satisfy the fourth element of a prima facie case, i.e. that the adverse action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in a protected class. Indeed, Fridia does not allege that she was assigned more work, denied paid leave or treated in a "nasty" way as a result of discrimination as required under the fourth element. Pollis v New York School for Social Research, 132 F.3d 115, 124 (2d Cir. 1997). She does not assert any facts surrounding Hom-Goodridge's actions — — assigning her routes with problems, placing her on "peck collection more than anymore," withdrawing previously approved leave, and designating her as absent without leave — — which give rise to an inference that this conduct was the product of illegal discrimination. Although she asserts that Hom-Goodridge spoke "nastily" to her, she does not allege that any of these comments were discriminatory in nature. See Harris, 510 U.S. at 21. In fact, she does not contend that anyone at the post office said anything concerning her race, sex, or national origin. Nor does she demonstrate that similarly situated employees who did not share her protected characteristics were treated preferentially.See Shumway v. United Parcel Service, 118 F.3d 60, 63 (2d Cir. 1997).
Fridia's best argument for an inference of discrimination lies in her various allegations that she was forced to work more in order to make up for the failings of other carriers. In a few cases the other carrier was a male white, a male Latino or a male of unidentified race. At most, Fridia demonstrated only three or four instances of such occurrences over the course of more than a year that she worked for the Postal Service. This Court finds that three or four instances of such conduct in a period of over a year, without anything else that gives the appearance of discrimination, is insufficient to satisfy this element. In sum, there is nothing before this Court that suggests that the treatment of which Fridia complains was the result of her status as an African-American woman. Pollis, 132 F.3d at 124.
Although Fridia's instant action does not allege discrimination as a result of her "Notice of Removal" or retaliation, had she pled them, they would have failed. First, although dismissal, or in this case, a Notice of Removal, is the ultimate "adverse employment action" and thus Fridia would have satisfied the "adverse employment action" element of a prima facie case, Fridia would not have been able to establish that the adverse action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in a protected class. Indeed, she has not set forth anything from which this Court could possibly deduce that the motivation for her "Notice of Removal" was illegal discrimination. Second, the only retaliation arguments that this Court can construe is that management issued her "Notice of Removal" as a result of her complaints to the shop steward and the New York City post master. In order to establish a prima facie case for retaliation, a plaintiff must demonstrate that: (1) the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998). Fridia does not set forth anything to establish that there was a causal connection between her complaints and her "Notice of Removal." Therefore, her claim for retaliation must fail as well.
As Defendant correctly points out, "Title VII prohibits discrimination; it is not a shield against harsh treatment at the work place." Shabat v. Blue Cross Blue Shield of the Rochester Area, 925 F. Supp. 977, 984 (W.D.N.Y. 1996) (Citations omitted). The purpose of Title VII is to eliminate discrimination in the workplace. See Oscar Mayer Co. v. Evans, 441 U.S. 750, 756 (1979). Here, there is no evidence that Defendant illegally discriminated against Fridia. Accordingly, this Court grants Defendant's motion to dismiss.
As a final matter, Fridia alleges that management continued to say negative things about her after she left the job which prevented her from attaining work in North Carolina. Although Defendant did not address this issue in his papers, these allegations could be construed as a due process claim. It is well established that a governmentally imposed stigma which restricts an individual's ability to obtain employment may violate that person's liberty. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980); see also Esposito v. Metro-North Commuter R. Co., 856 F. Supp. 799, 803 (S.D.N.Y. 1994) (stating that terminated government employees have a "constitutionally-protected liberty interest in `avoiding `stigma or other disability' that forecloses other employment opportunities.'") (citations omitted). In order to demonstrate this deprivation of liberty interest, however, the former employee must establish that her employer published arguably false, stigmatizing information in connection with her termination. Esposito, 856 F. Supp. at 803-04. In addition, she must prove that she has been precluded from other employment opportunities because of the stigma imposed by her former employer. Id. at 804 (citation omitted).
Fridia's vagues allegations do not satisfy a prima facie case for a due process claim. First, Fridia has not satisfied the publication requirement of the stigmatization test. Indeed, she has pled nothing that demonstrates that the Postal service "published" any stigmatizing information. See Melendez v. Reed, 1995 WL 505578 *4 (S.D.N.Y. 1995). Failure to do so is fatal to her claim. See id. In addition, Fridia has not established the necessary element of stigmatization. She has not set forth anything that shows that the postal service called into question her good name, reputation, honor, or integrity as required under the law. See Quinn, 613 F.2d at 446 (citations omitted).
Exhaustion of Remedies
Although this Court has already dismissed all of Fridia's Title VII claims under Rule 12(c), some of them would also merit dismissal for failure to exhaust administrative remedies. Specifically, her claims concerning managements's refusal to grant her requests for paid leave and any claims predating March 1995 are barred by statute.
Under Title VII, a litigant is required to timely exhaust available administrative remedies before filing an action in federal court. Briones, 101 F.3d at 289. Timely exhaustion of administrative remedies requires that a federal employee comply with applicable EEOC regulations. 29 C.F.R. § 1614 (1995); Dillard v. Runyon, 928 F. Supp. 1316, 1323 (S.D.N Y 1996). Fridia failed to comply with these regulations and thus her claims are barred. First, Fridia failed to allege her denials of leaves with pay in her EEO complaint even though the conduct occurred well before she filed her complaint. It is without question that a district court only has jurisdiction over those claims that are "`included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge.'" Wilson v.Fairchild Republic Co., 143 F.3d 733, 739 (2d Cir. 1998) (quotingButts v. City of New York, 990 F.2d 1397, 1401 (2d Cir. 1993)). Since Fridia's claims arose before she filed her EEO complaint and because this Court finds that they are not reasonably related to her EEO complaint, these claims are barred. See id.
Procedural requirements for gaining access to the federal courts must be strictly construed as they serve substantial policy considerations, and thus should not to be disregarded by courts out of sympathy for litigants. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1994); Dillard, 928 F. Supp. at 1323.
There are three circumstances where claims not alleged in the EEO complaint may be considered to be reasonably related to the EEO complaint: (1) where the conduct complained of would fall within the "`scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination;'" (2) where the employee alleges retaliation by an employer against the employee for filing an EEOC complaint; and (3) where the employee asserts additional discrimination carried out in the same manner as alleged in the EEOC complaint. Butts v. City of New York, 990 F.2d 1397, 1402-03 (2d Cir. 1993) (citations omitted). This Court finds that none of these are applicable here.
In addition, Fridia did not consult a counselor at the agency's EEO office within 45 days of the pre-March 1995 alleged discriminatory acts as required under the statute. See 29 C.F.R. § 1614.105 (a)(1); Dillard, 928 F. Supp. at 1323. Failure to bring a claim within the 45 day time period usually precludes the claimant from pursuing a discrimination claim in federal court.See Briones, 101 F.3d at 290. Although this statutory requirement is subject to waiver, estoppel and equitable tolling, see id., Fridia has not provided any reason for this Court do so. See Dillard, 928 F. Supp. at 1325. Accordingly, these claims are likewise barred.
CONCLUSION
For the reasons set forth above, the defendants' motion to dismiss plaintiff's action is GRANTED. The Clerk of the Court is directed to close this case.