Opinion
01 Civ. 1648 (SHS)
February 19, 2002
OPINION ORDER
Plaintiff Anibal Avillan brings this employment discrimination actionpro se against John E. Potter, the Postmaster of the United States Postal Service (the "USPS") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The Postmaster now moves pursuant to Fed.R.Civ.P. 56 for summary judgment in his favor dismissing the amended complaint for Avillan's failure to exhaust administrative remedies in a timely manner. As set forth below, plaintiff has failed to exhaust his administrative remedies and the Postmaster's motion must be granted.
BACKGROUND
On April 19, 1999, Avillan, a USPS custodial laborer, sought counseling from a USPS equal employment opportunity ("EEO") counselor, claiming that the USPS had delayed hiring him in retaliation for his complaining that they had discriminated against him during the hiring process. (Olmo Decl. Ex. A.)
Because the USPS and Avillan could not resolve the matter informally, on June 21, 1999, the EEO counselor advised Avillan that he had the right to pursue his allegations by filing a formal complaint with the USPS. (Olmo Decl. Ex. B.) Avillan received and signed a written notice that explained that right and advised him that such a complaint must be either postmarked or received by the USPS within fifteen calendar days. (Olmo Decl. Ex. B.)
Avillan avers that he mailed a formal complaint to the USPS on July 1, 1999, well before the fifteen day deadline of July 6. (Olmo Decl. Ex. C; Pl.'s Opp. ¶¶ 8-9; Pl.'s Sur Opp. at 2.) It is undisputed, however, that the complaint was not postmarked until July 10, and that the USPS did not receive it until July 12. (Olmo Decl. Ex. C; Pl.'s Opp. Ex. E.) Avillan states that the July 10 postmark reflects the second time he mailed the complaint; the first time, he says, the stamp fell off "for some unknown reasons" and the complaint was returned to him on July 10 for insufficient postage. (Pl.'s Opp. ¶ 9; Pl.'s Sur Opp. at 2.)
On November 4, 1999, the USPS dismissed Avillan's formal complaint as untimely. (Olmo Decl. Ex. D.) On appeal to the EEOC, that agency affirmed the USPS's decision to dismiss the complaint. (Olmo Decl. Ex. E.) Avillan's subsequent request for reconsideration (Olmo Decl. Ex. F), in which he claimed that postage had fallen off the complaint, was also denied (Olmo Decl. Ex. G). In that final denial, the EEOC informed Avillan that he had the right to file a civil action in federal district court. (Olmo Decl. Ex. G.)
The amended complaint in this action consists of a form questionnaire supplied to Avillan by this district's pro se office. Avillan has checked "failure to hire," "termination of employment," "failure to promote," "unequal terms and conditions of employment," retaliation," and "other acts." (Am. Compl. ¶ 4.) Avillan alleges that this conduct was undertaken by the USPS because of his race (Hispanic), national origin (Puerto Rico), and age (57). (Am. Compl. ¶ 7.)
DISCUSSION
The Postmaster moves for summary judgment in his favor on the ground that Avillan has failed to timely exhaust his administrative remedies. Summary judgment will be granted "only when the moving party demonstrates 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.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). In determining whether a genuine dispute remains as to a material fact, the court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
"Under Title VII, a litigant must exhaust available administrative remedies in a timely fashion." Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996). Timely exhaustion of administrative remedies requires that a federal employee comply with the applicable EEOC regulations, which set forth specific exhaustion requirements for federal employees. See Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001); Dillard v. Runyon, 928 F. Supp. 1316, 1323 (S.D.N.Y. 1996), aff'd, 108 F.3d 1369 (2d Cir. 1997). EEOC regulations provide that a federal employee who believes that he has been the victim of race or national origin discrimination — as Avillan does — must first consult an EEO counselor in order to try to resolve the matter informally. See 29 C.F.R. § 1614.105(a)(1). Within thirty days of the employee having initiated counseling, the counselor must conduct a "final interview" and if the employee and the counselor have not been able to resolve the situation, inform the employee in writing of his right to file a formal discrimination complaint with the agency. See 29 C.F.R. § 1614.105(d). That complaint must be filed within 15 days of receipt of the notice required by § 1614.105(d)." 29 C.F.R. § 1614.106(b); Belgrave, 254 F.3d at 386. A complaint "shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period." 29 C.F.R. § 1614.604(b). If the complaint is timely filed, then the agency has 180 days in which to investigate, see 29 C.F.R. § 1614.108(e), after which the employee may then either appeal the agency's decision to the EEOC or file a federal suit, see 29 C.F.R. § 1614.407(a)-(b). This regulatory scheme provides "an opportunity for the resolution of discrimination complaints by means of conciliation, conference, and persuasion." Wrenn v. Secretary. Dept. of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990) (quotation marks omitted).
The ADEA and its regulations contain slightly different exhaustion requirements. Pursuant to the ADEA, a federal employee such as Avillan who believes that he has been discriminated against on the basis of his age may either proceed through the EEOC administrative process described above or, after giving thirty days' notice to the EEOC, proceed directly to federal court. See Stevens v. Department of Treasury, 500 U.S. 1, 5-6 (1991); see also Wrenn, 918 F.2d at 1078; 29 U.S.C. § 633a(b)-(d); 29 C.F.R. § 1614.201(a). However, if an aggrieved employee chooses the administrative process, he becomes obliged to timely exhaust administrative remedies before he may pursue an ADEA claim in federal court. See Baber v. Runyon, No. 97 Civ. 4798, 1998 WL 912065, at *3 (S.D.N.Y. Dec. 30, 1998) (citing Wrenn, 918 F.2d at 1078); Tsai v. Helfer, 940 F. Supp. 597, 601 (S.D.N.Y. 1996); see also Belgrave, 254 F.3d at 386. In this case, because Avillan chose to pursue the administrative avenue of redress, the question of whether he timely exhausted his ADEA claims is the same question as whether he timely exhausted his Title VII claims. See Belgrave, 254 F.3d at 386.
Avillan does not dispute that on June 21, 1999, he received and signed a written notice informing him of his right to file a formal complaint.See 29 C.F.R. § 1614.105(d). He then had 15 calendar days — until Tuesday, July 6 — to either have the complaint postmarked or deliver it to the agency. See 29 C.F.R. § 614.604(b). However, as Avillan concedes, the complaint was not postmarked until July 10, and the USPS did not receive it until July 12. Avillan's administrative complaint was thus untimely, and unless he has come forward with facts which indicate that equity should relieve him of his default, his Title VII and ADEA claims must be dismissed pursuant to Fed.R.Civ.P. 56. See Belgrave, 254 F.3d at 386; Alston v. Heyman, No. 98 Civ. 3640, 1999 WL 4903, at *3 (S.D.N.Y. Jan. 5, 1999); Tillet v. Carlin, 637 F. Supp. 245 (D. Conn. 1985).
The timing and exhaustion requirements of Title VII and the ADEA are subject to equitable tolling and equitable estoppel. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982); Briones, 101 at 290;Braham v. State Ins. Fund, No. 97 Civ. 7121, 1999 WL 14011, at *2 (S.D.N.Y. Jan. 14, 1999.) Equitable tolling applies in situations "where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin, 498 U.S. at 96;Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 61 (2d Cir. 1986) (equitable tolling is "invoked in cases where the plaintiff is ignorant of his cause of action because of the defendant's fraudulent concealment"). Equitable estoppel applies when a plaintiff knew of the existence of his cause of action, but the defendant's conduct caused him to bring his suit in a defective manner. See Dillman, 784 F.2d at 61; Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996) (citingIrwin, 498 U.S. at 96). "The burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff," Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000), and courts are "less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights,". Irwin, 498 U.S. at 96; see also Elgendy v. City of New York, No. 99 Civ. 5196, 2000 WL 1119080, at *3 (S.D.N.Y. Aug. 7, 2000) (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per curiam)).
For instance, equity may step in where the employer misrepresents the length of an applicable limitations period or in some other way "lull[s] the plaintiff into believing that it was not necessary for him to commence litigation." Dillman, 784 F.2d at 61. Equity will not actually lift the procedural bar, however, unless the plaintiff shows that he (1) was unaware of or unable to meet his procedural obligations (2) because of affirmative misconduct on the part of the defendant. See Martin v. Reno, No. 96 Civ. 7646, 1999 WL 527932, at *8 (S.D.N.Y. July 22, 1999),aff'd, No. 01-6048, 2001 WL 1412802 (2d Cir. Nov. 8, 2001); see also Long v. Frank, 22 F.3d 54, 59 (2d Cir. 1994) (plaintiff must show reliance on affirmative misconduct); Alston, 1999 WL 4903, at *4 ("Plaintiff is not entitled to an equitable tolling of the 15-day period of limitations because there is no evidence of any misconduct by defendant.").
Avillan does not deny that he was aware of the July 6 deadline and has made no showing that his default occurred because of anyone else's affirmative misconduct. According to him, the default occurred because postage fell off the complaint "for some unknown reasons." (Pl.'s Opp. ¶ 9.) Nor has Avillan shown that, when the post office returned the complaint to him on July 10, he took any steps to apprise the USPS of the situation apart from allegedly re-stamping and re-mailing the envelope. Because this is not the type of situation in which equitable tolling or estoppel applies, the Court must enforce Avillan's failure to timely exhaust his administrative remedies against him.
In a sur-reply, Avillan informed the Court that on September 5, 2001, a "Final Agency Decision" was issued (it is not clear who issued it) that rescinds the USPS's November 4, 1999, dismissal of his formal complaint and accepts the complaint as Case No. 4A-1 00-0130-00. (Pl.'s Sur Opp. at 2 (Jan. 29, 2002).) Avillan provides no documentary support for this assertion. Moreover, it appears that Case No. 4A-100-0130-00 is an entirely different administrative complaint which Avillan initiated on June 26, 2000, and which alleges that the USPS retaliated against him for filing the formal complaint to the USPS on July 10, 1999 that ultimately led to this litigation. (Am. Compl. Attachs., "Information for Precomplaint Counseling," dated June 26, 2000.) Nonetheless, even if it is true that someone in the Government now believes that Avillan's July 1999 formal complaint to the USPS was timely filed, the Court still concludes that summary judgment is appropriate because Avillan has not yet exhausted his administrative remedies pursuant to that supposedly timely, reinstated complaint.