Maziarz v. Brennan
Judge Michael A. Ponsor: ORDER entered. The court hereby ADOPTS the Report and Recommendation of Judge Robertson (Dkt. No. 46). Defendants Motion to Dismiss or for Summary Judgment (Dkt. No. 15) is hereby ALLOWED. The clerk is ordered to enter judgment for Defendant. This case may now be closed. It is So Ordered. (Figueroa, Tamara)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MARY A. MAZIARZ,
MEGAN BRENNAN, Postmaster
General of the United States
) C.A. NO. 15-30098-MAP
MEMORANDUM AND ORDER RE:
REPORT AND RECOMMENDATION WITH REGARD TO
DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
(Dkt. Nos. 15 & 46)
September 22, 2016
Plaintiff, a former employee of Defendant United States
Postal Service (“USPS”), contends that she was discriminated
against based upon her age and disability when the USPS
denied her a reasonable accommodation, failed to continue
her pay following an on-the-job injury, and terminated her
Defendant filed a Motion to Dismiss, or alternatively
for Summary Judgment, based upon Plaintiff’s failure to
exhaust her administrative remedies (Dkt. No. 15).
motion was referred to Magistrate Judge Katherine A.
Robertson for a report and recommendation.
heard oral argument and permitted the parties to make
supplemental submissions, treating the motion as one for
On August 3, 2016, Judge Robertson issued her Report
and Recommendation (Dkt. No. 46), laying out the underlying
facts and law in meticulous detail and recommending that
summary judgment enter in favor of Defendant based upon
Plaintiff’s failure to exhaust her administrative remedies.
Plaintiff filed timely objections to the Report and
Recommendation (Dkt. No. 53).
Upon de novo review, the court will adopt the Report
and Recommendation of Judge Robertson and allow Defendant’s
It is not necessary to recapitulate the
Recommendation’s scrupulous analysis in detail.
legal requirement, with which Plaintiff failed to comply,
was that she “‘initiate contact’ with an Equal Employment
Opportunity counselor at [her] agency ‘within 45 days of the
date of the matter alleged to be discriminatory.’” Green v.
Brennan, 136 S. Ct. 1769, 1774 (2016)(quoting 29 C.F.R. §
Even using a timeline that is most
generous to Plaintiff, the record is clear that the 45-day
contact requirement was not met in this case.
Circuit has emphasized that the exhaustion requirement “is
no small matter; it ‘is a condition to the waiver of
sovereign immunity’ and thus ‘must be strictly construed.’”
Vazquez-Rivera v. Figueroa, 759 F.3d 44, 47-48 (1st Cir.
2014)(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 94 (1990)).
As Judge Robertson noted, Plaintiff’s claim for
reasonable accommodation had to be brought to the attention
of an EEO counselor no later than January 20, 2013.
Dkt. No. 46 at 8.)
Plaintiff did not initiate any such
contact until June 7, 2013, far beyond the deadline.
Similarly, to the extent that Plaintiff is pursuing a
claim for wrongful discharge, she was required to make
contact with the counselor no later than 45 days following
December 27, 2012, the date that she was notified that her
employment with the USPS was being terminated.
Even if the
court were to extend this accrual date by 30 days, to take
into consideration the date up to which she remained in pay
status, the 45-day contact requirement was not met.
For the reasons laid out by Judge Robertson, the law
does not recognize any extension of the accrual date for a
claim based upon a pending grievance proceeding.
Even if it
did, Plaintiff’s contact with the EEO counselor fell outside
the 45-day limit.
Moreover, the doctrines of continuing
violation and equitable tolling simply do not, for the
reasons stated in the Report and Recommendation, assist
In conclusion, the applicable authorities leave this
court with no alternative.
While Plaintiff’s sincere sense
of injury comes through vividly in her pro se filings, it
would be false consolation to deny Defendant’s motion when
it is so clear that Plaintiff’s claim lacks factual and
Based upon the foregoing, upon de novo review, the
court hereby ADOPTS the Report and Recommendation of Judge
Robertson (Dkt. No. 46).
Defendant’s Motion to Dismiss or
for Summary Judgment (Dkt. No. 15) is hereby ALLOWED.
clerk is ordered to enter judgment for Defendant.
may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
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