DiPetto v. U.S. Postal Service

Filing 39

MEMORANDUM AND ORDER granting in part and denying in part 28 Motion to Dismiss. For the foregoing reasons, Defendants' motion to dismiss Plaintiff's Second Amended Complaint is GRANTED IN PART AND DENIED IN PART. Plaintiff's Human Rights Law claims are dismissed, as are his Title VII claims against Defendants Louie and Lim. His Title VII claims against Defendant Potter, as Postmaster General of the United States, may proceed in accordance with the following guidance. Subject to any further direction from Magistrate Judge Arlene R. Lindsay, Plaintiff and the Postal Service shall engage in limited discovery on the issues of (1) whether Plaintiff's failure to follow through with the EEO procedure precludes his claims, and (2) whether Plaintiff's claims are time-barred. The parties shall inform the Court when that discovery is complete, and, at that time, the Court will entertain a request from Defendant Potter for leave to move for summary judgment on either or both of these two issues. So Ordered by Judge Joanna Seybert on 9/14/11. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOHN DIPETTO,
Plaintiff,
-against-

MEMORANDUM AND ORDER
08-CV-4927 (JS) (ARL)

JOHN E. POTTER, Postmaster General of
The United States, CASSANDRA LOUIE, as
Postmaster of Port Washington, New York,
And LAWRENCE LIM,
Defendants.
---------------------------------------X
APPEARANCES:
For Plaintiff: Philip C. Chronakis, Esq.
Alicia M. Wilson, Esq.
Garfunkel Wild, P.C.
111 Great Neck Road
Great Neck, New York 11021
For Defendants: Robert W. Schumacher, Esq.
Assistant U.S. Attorney
Eastern District of New York
610 Federal Plaza
Central Islip, New York 11722
SEYBERT, District Judge:
Plaintiff John DiPetto’s Second Amended Complaint (in
citations,

“SAC”)

asserts

race

and

sexual

orientation

discrimination, retaliation and hostile work environment claims
against Defendants John Potter, as Postmaster General of the
United

States

Lawrence Lim.

(the

“Postal

Service”),

Cassandra

Louie

and

Plaintiff alleges violations of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2999e et seq. (“Title
VII”) and New York State’s Human Rights Law (the “NYSHRL”).
Defendants move to dismiss under Federal Rule of Civil Procedure

12(b)(6); for the following reasons, this motion is GRANTED IN
PART AND DENIED IN PART, and Plaintiff and the Postal Service
are directed to engage in limited discovery in accordance with
this Order.
BACKGROUND
Plaintiff is a Caucasian, heterosexual male.
12.)

(SAC ¶

He is a mail handler at the Port Washington Post Office

(the “Post Office”), where he has received positive performance
evaluations for most of the nearly twenty-four years he has
(Id. ¶¶ 12-13.)

worked there.

Defendant Lim, whom Plaintiff

describes as Asian, is Plaintiff’s direct supervisor.
10, 14.)

(Id. ¶¶

Lim supervises Plaintiff and two other Post Office

employees: Employee A, described by Plaintiff as an AfricanAmerican

male,

and

homosexual male.

Employee

(Id. ¶ 15.)

B,

described

by

Plaintiff

as

a

Defendant Louie is the Postmaster

of the Port Washington Post Office.

(Id. ¶ 10.)

The thrust of Plaintiff’s case is that, for the past
five

years,

Plaintiff

and

Lim

has

subjected

discriminated
him

to

a

and
hostile

retaliated
work

against

environment.

Specifically, Plaintiff alleges that Lim affords Employees A and
B preferential treatment, including by scheduling A and B for
better-paying overtime shifts and requiring Plaintiff, but not A
and B, to work solo shifts in contravention of Postal Service
policy.

(SAC ¶¶ 18-21.)

Plaintiff also claims that Lim allowed
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Employees A and B to take extended breaks during their shifts,
arrive at work late, and take undocumented sick leave without
consequence.
benefits.

Plaintiff, by contrast, was not afforded these

(Id. ¶¶ 24-27, 31, 32.)
Eventually,

Plaintiff

complained

representative about Lim’s behavior.
Lim

treated

Plaintiff

even

worse.

to

his

(Id. ¶ 34.)

union

Thereafter,

Plaintiff’s

allegations

include that Lim falsely accused him of participating in a “work
slowdown”

and

performance.

spread
(Id.

lies

concerning

¶¶ 37, 40.)

Plaintiff’s

job

Plaintiff’s co-workers were

angry and abusive towards Plaintiff in response to these rumors.
(Id. ¶ 41.)
In his opposition to Defendants’ motion to dismiss,
Plaintiff details his efforts to redress his grievances through
administrative
Opportunity

channels.

(“EEO”)

He

twice

complaints

filed

concerning

Equal
Lim’s

Employment
conduct

but

withdrew each of them after he received assurances that Lim’s
behavior would change.1

(Pl. Decl. ¶ 7.)

complaint in March 2008. (Id.)
named

Bonnie

Berlin

told

him

He filed a third EEO

This time, an EEO counselor
that

his

addressed to his union, not the EEO staff.

grievance

should

be

Berlin insisted that

he dismiss his EEO mediation request, and said that she would

1

Plaintiff does not specify who made these promises, but that is
irrelevant to the outcome of this motion.
3

not

conduct

one

in

any

event.

(Id.

¶

10.)

She

pressured

Plaintiff into signing a waiver withdrawing his complaint.
¶ 14.)

Plaintiff signed the waiver on May 21, 2008.

(Id.

(Id. ¶

10.)
Plaintiff,
December 8, 2008.

litigating

pro

se,

filed

this

suit

on

His original Complaint was dismissed without

prejudice and he filed an Amended Complaint on January 20, 2009.
(Docket Entry 7.)

The Court dismissed his Amended Complaint sua

sponte, and the Second Circuit vacated the dismissal by its July
12, 2010 Mandate (the “Mandate”).

Plaintiff thereafter engaged

counsel and filed a Second Amended Complaint on October 19,
2010.

(Docket Entry 22.)

This motion to dismiss followed.
DISCUSSION

Plaintiff’s

Second

Amended

Complaint

asserts

the

following claims: race discrimination, retaliation and hostile
work environment claims under Title VII and race and sexual
orientation

discrimination,

retaliation

environment claims under the NYSHRL.

and

hostile

work

To survive a Rule 12(b)(6)

motion, a plaintiff must plead sufficient factual allegations in
the complaint to “state a claim [for] relief that is plausible
on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007).

The

complaint does not need “detailed factual allegations,” but it
demands

“more

than

labels

and
4

conclusions,

and

a

formulaic

recitation of the elements of a cause of action will not do.”
Id. at 555.

In addition, the facts pleaded in the complaint

“must be enough to raise a right to relief above the speculative
level.”

Id.

Determining whether a plaintiff has met his burden

is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Mills, 572 F.3d 66, 72 (2d Cir. 2009).

Harris v.

On a motion to dismiss,

a plaintiff gets the benefit of all reasonable inferences, see,
e.g., Litwin v. Blackstone Group, L.P.,

634 F.3d 706, 711 n.5

(2d Cir. 2011), but “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949,

173 L. Ed. 2d 868 (2009).
I.

Plaintiff’s New York State Human Rights Law Claims
Plaintiff’s

claims

under

the

New

York

State

Human

Rights Law must be dismissed because Title VII provides the
exclusive

remedy

for

federal

employees

asserting

employment

See Brown v. Gen. Servs. Admin., 425

discrimination claims.

U.S. 820, 835, 96 S. Ct. 1961, 1969, 48 L. Ed. 2d 402 (1976).
Seizing on a footnote in the Mandate, Plaintiff argues that
Title VII preempts only federal employees’ remedies for race,
color,

religion,

sex

or

their

claims

under

state

other

bases.

The

Court

national
laws

origin

prohibiting

acknowledges
5

discrimination,

that

discrimination
the

Mandate

not
on
is

somewhat

contradictory2

argument.

The law is clear that Title VII is the only avenue by

but

otherwise

rejects

Plaintiff’s

which a federal employee may redress workplace discrimination.
See, e.g., Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998);
Annis v. Cnty. of Westchester, 36 F.3d 251, 255 n.4 (2d Cir.
1994).

Relatedly, there is no suggestion that Congress has

waived the Postal Service’s sovereign immunity by consenting to
suits

under

state

laws

prohibiting

sexual

orientation

See Dolan v. U.S. Postal Serv., 546 U.S. 481,

discrimination.

484, 126 S. Ct. 1252, 1256, 163 L. Ed. 2d 1079 (2006) (noting
that the Postal Service enjoys sovereign immunity; Brown, 425
U.S.

at

826

(discussing

Title

VII

claims

against

federal

government in context of sovereign immunity); see also McGuire
v. Potter, No. 06-CV-1745, 2006 WL 2883234, at *2 (D.N.J. Oct. 6,
2006) (rejecting plaintiff’s claim against the Postal Service
for sexual orientation under New Jersey state statute).
II.

Plaintiff’s Title VII Claims
Having

Court

now

turns

dismissed
to

his

Plaintiff’s
Title

VII

state

claims.

law
At

claims,
the

the

outset,

Plaintiff’s Title VII claims against Defendants Louie and Lim

2

The Mandate explained that “federal employees are restricted to
challenges under Title VII when complaining about employment
discrimination” (Mandate at 3), but went on to say, in a
footnote, that Plaintiff “might” have a pendant state law claim
for sexual orientation discrimination under the NYSHRL. (Id. at
4 n.1.)
6

are dismissed because the proper defendant in Title VII actions
against a federal agency is that agency’s head.

42 U.S.C. §

2000e-16.
Turning to the substance of their motion, Defendants
argue (1) that Plaintiff failed to exhaust his administrative
remedies,

and

(2)

for

the

first

time

Plaintiff’s claims are time-barred.

in

their

reply,

that

Neither argument persuades

the Court that Plaintiff’s Title VII claims should be dismissed
at this stage.

As the Second Circuit explained in its Mandate,

Plaintiff is “not required to demonstrate at the pleading stage
that his claims were administratively exhausted.”
4.)

To

required

the
to

extent

file

a

Defendants
formal

EEO

maintain
complaint

that

(Mandate at
Plaintiff

before

filing

was
this

lawsuit, Plaintiff admits he never filed a formal complaint but
claims that he was pressured into withdrawing his complaints by
the EEO counselor.
a

plaintiff’s

See supra at 3-4.

failure

to

timely

In certain circumstances,

exhaust

his

administrative

remedies will be excused, and the Court thinks limited discovery
will be helpful in deciding this issue.

See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132,
71 L. Ed. 2d 234 (1982) (“We hold that filing a timely charge of
discrimination with the EEOC is . . . a requirement that, like a
statute

of

limitations,

is

subject

7

to

waiver,

estoppel,

and

equitable

tolling.”);

Johnson

v.

Al

Tech

Specialties

Steel

Corp., 731 F.2d 143, 146 (2d Cir. 1984).
Defendants
claims

are

also

time-barred

argue

because

that

Plaintiff’s

Plaintiff

did

not

Title
start

VII
this

action until more than six months after he withdrew his latest
(See Def. Reply 8.)

request for counseling.

The Court will

generally not consider arguments raised for the first time in
reply.

E.g., United States v. Hatfield, __ F. Supp. 2d __, 2011

WL 2446430, at *20 (E.D.N.Y. June 14, 2011).

In any event,

whether or not Plaintiff acted diligently to preserve his claim
bears

on

whether

he

is

entitled

to

equitable

tolling.

Cf.

Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74,
80 (2d Cir. 2003).

The Court thinks limited discovery is also

appropriate on this issue.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

to

dismiss Plaintiff’s Second Amended Complaint is GRANTED IN PART
AND DENIED IN PART.

Plaintiff’s Human Rights Law claims are

dismissed, as are his Title VII claims against Defendants Louie
and Lim.

His Title VII claims against Defendant Potter, as

Postmaster

General

of

the

United

States,

accordance with the following guidance.

may

proceed

in

Subject to any further

direction from Magistrate Judge Arlene R. Lindsay, Plaintiff and
the Postal Service shall engage in limited discovery on the
8

issues of (1) whether Plaintiff’s failure to follow through with
the

EEO

procedure

precludes

his

Plaintiff’s claims are time-barred.

claims,

and

(2)

whether

The parties shall inform

the Court when that discovery is complete, and, at that time,
the Court will entertain a request from Defendant Potter for
leave to move for summary judgment on either or both of these
two issues.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: September
14 , 2011
Central Islip, New York

9