Opinion
05 Civ. 6490 (KMW) (KNF).
September 26, 2007
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Earl C. Randall ("Randall"), proceeding pro se, brings this action against Postmaster General John Potter, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"), alleging unequal terms and conditions of employment and retaliation, based on his race, sex, national origin and color. Before the Court is the defendant's motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, on the grounds that the plaintiff failed to: (a) comply with Title VII's procedural requirements; (b) comply with United States Equal Employment Opportunity Commission ("EEOC") regulations governing settlement agreements; and (c) establish a prima facie case of discrimination and retaliation. The motion is addressed below.
II. BACKGROUND
Randall is an African-American United States Postal Service employee. Due to a work-related injury, Randall has not worked since July 2005. On May 8, 2003, Randall filed a complaint with the United States Postal Service Equal Employment Opportunity Office ("EEO"), under case number 1A-0004-03 (complaint "0004") alleging discrimination in connection with: (a) his placement in off-duty status for four hours on October 17, 2002, for refusing to remove his headphones while performing his assigned tasks; and (b) a warning letter, issued on October 22, 2002, for failing to observe safety rules and regulations. On February 6, 2004, EEO issued a notice of final decision, pursuant to 29 C.F.R. § 1614.110(b), after determining that Randall had failed to establish: (i) his claim of discrimination, because he did not show that employees similarly situated to him received preferential treatment from his employer; and (ii) his claim of retaliation because he failed to show a causal connection between his prior EEO activity and the conduct about which he was then complaining. EEO also found that Randall's employer had offered legitimate nondiscriminatory reasons for the actions it took and no evidence existed that suggested the employer's reasons were pretextual. EEO informed Randall that he had 90 calendar days from the receipt of its final decision to file a civil action or, alternatively, 30 calendar days from the receipt of its final decision to file an appeal with EEOC.
On October 16, 2003, Randall contacted EEO in connection with alleged misconduct he attributed to his supervisor and the operations manager at the facility where he was employed. EEO assigned case number 1A-104-0002-04 (complaint "0002") to this complaint. After an initial interview with EEO, conducted on November 13, 2003, EEO issued a Dispute Resolution Specialists's Inquiry Report ("inquiry report"), dated December 22, 2003, indicating that Randall alleged he was discriminated against and subjected to harassment due to his race, sex and national origin when, inter alia, he was: (a) barred from working overtime; (b) not provided with gloves to perform his work; (c) sent to an isolated area to perform his work assignment; and (d) spoken to in a "nasty tone" when directed to resume his work assignment. The inquiry report also indicates Randall reported he was the victim of retaliation prompted by EEO filings he had made previously. The EEO inquiry report mentions that Randall was provided with Postal Service forms 2579, Notice of Right to File an Individual Complaint, and 2565, EEO Complaint of Discrimination in the Postal Service, and was reminded of his right to file a formal complaint of discrimination 15 calendar days from December 13, 2003, the date Randall received notice of his right to file an Individual Complaint.
On December 19, 2003, Randall filed a complaint with EEO, alleging discrimination based on race, color, national origin, sex and retaliation. More specifically, Randall alleged that he was: (a) not allowed to work overtime on October 11, 2003; (b) not allowed to work where he wanted, unlike other employees; (c) harassed by management; and (d) removed from the premises for failing to follow instructions, while other employees were not.
On February 18, 2004, Randall received a Partial Acceptance/Dismissal ("PAD") letter from EEO, in connection with complaint 0002. EEO accepted for investigation only Randall's allegation that he was denied overtime opportunities in October 2003. Randall's other allegations, concerning the failure to provide him gloves or an accommodation and his removal from the premises, were dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), because Randall failed to provide the dates on which the alleged incidents occurred. Randall was informed, through the PAD, about his right to appeal from the PAD determination and to file a civil action.
On October 13, 2004, EEO issued a Notice of Final Decision ("FAD") regarding Randall's complaint 0002, affirming the PAD because Randall failed to object to the PAD determination within the prescribed time. The FAD explained that, with respect to EEO's denial of Randall's overtime claim, Randall had failed to show: (i) "employees in a different protected group were treated more favorably than [he];" and (ii) "a nexus between the immediate prior protected activity, [Randall's prior EEO complaints], and the cited alleged discriminatory actions." Moreover, EEO found that Randall's employer provided a legitimate, nondiscriminatory reason for denying him overtime, namely, a modified work assignment, accepted by Randall in September 2003, which stipulated that he would perform forty hours of work weekly. The FAD informed Randall that he had a right to file a civil action within 90 calendar days of his receipt of the FAD or, alternatively, an appeal with EEOC within 30 calendar days of his receipt of the FAD.
On November 17, 2004, Randall appealed from the FAD concerning his complaint 0002 to EEOC. On February 28, 2005, EEOC dismissed Randall's appeal as untimely because it was not filed within 30 calendar days from his receipt of the FAD and Randall offered no justification for obtaining an extension of the applicable time limit for filing his appeal. EEOC's dismissal of appeal letter notified Randall about his right to seek reconsideration of EEOC's decision and his right to file a civil action within 90 calendar days from his receipt of the EEOC's decision. Randall filed the instant complaint with the court on May 31, 2005.
III. DISCUSSION
Summary Judgment
Fed.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.' An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). When considering a motion for summary judgment "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citations omitted).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). Once the moving party has satisfied its burden, the non-moving party must come forth with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. "Summary judgment in favor of the party with the burden of persuasion, however, is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Hunt v. Cromartie, 526 U.S. 541, 553, 119 S. Ct. 1545, 1552 (1999).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis in the original). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id., at 256, 106 S. Ct at 2514. "The moving party is 'entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
Where, as here, a litigant appears before the court pro se, that litigant's submissions should be read liberally and interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citation omitted). However, this does not mean that the pro se litigant is released from the typical requirements of summary judgment. A "bald assertion" made by the pro se litigant that is not supported by evidence will not be sufficient to overcome a motion for summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).
Title VII Exhaustion
The defendant contends Randall failed to exhaust his administrative remedies by failing to: (i) appeal from the FAD to EEOC timely; and (ii) commence this action within 90 days of his receipt of the FAD. He contends further that Randall's untimely appeal to EEOC does not cure the untimeliness of filing the instant action.
"Before bringing a Title VII action in the district court, an aggrieved employee is required to exhaust his administrative remedies." Fernandez v. Chertoff, 471 F.3d 45, 54 (2d Cir. 2006). Title VII imposes various time requirements on the complainant which are "analogous to a statute of limitations." See McPherson v. New York City Dept. of Educ., 457 F.3d 211, 214 (2d Cir. 2006) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 [2d Cir. 1996]). "Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded."Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S. Ct. 1723, 1726 (1984).
It is undisputed that Randall received the FAD on October 14, 2004, and that he appealed from the FAD to EEOC on November 17, 2004, two days after the prescribed 30-day period for filing an appeal expired, and that EEOC dismissed his appeal pursuant to 29 C.F.R. § 1614.403(c). It is also undisputed that Randall did not file a civil action within 90 calendar days from receiving the FAD. EEOC did not reach the merits of Randall's appeal from the FAD because Randall failed to comply with the time requirements imposed by Title VII and the applicable regulation. Although EEOC notified Randall about his civil action rights, as required by 29 C.F.R. § 1614.405(a), when it dismissed his appeal, and Randall filed the instant action within 90 days of receiving EEOC's final decision on his appeal, as required by 29 C.F.R. § 1614.407(c), he failed to exhaust his administrative remedies either by: (a) appealing to EEOC timely; or (b) commencing a civil action timely, pursuant to Title VII's procedural requirements. See Jenkins v. Potter, 271 F. Supp. 2d 557, 563 (S.D.N.Y. 2003). Therefore, Randall's action is barred.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defendant's motion for summary judgment be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).