DiPetto v. U.S. Postal Service
Filing
64
MEMORANDUM & ORDER granting 53 Motion for Summary Judgment; For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The Clerk of the Court is directed: (1) to substitute Patrick R. Donahoe in place of John E. Potter as Defendant, (2) enter judgment and mark this matter as CLOSED, and (3) mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 6/16/2014. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN DIPETTO,
Plaintiff,
-against-
MEMORANDUM & ORDER
08-CV-4927(JS)(ARL)
PATRICK R. DONAHOE, Postmaster
General, United States Postal
Service 1,
Defendant.
----------------------------------------x
APPEARANCES
For Plaintiff:
John DiPetto, pro se
11 Hickory Lane
Roslyn Heights, NY 11577
For Defendant:
Robert W. Schumacher, II, Esq.
U.S. Attorney’s Office/EDNY
610 Federal Plaza
Central Islip, NY 11722
Currently pending before the Court is a motion for
summary
judgment
brought
by
defendant
Patrick
R.
Donahoe,
Postmaster General, United States Postal Service (“Defendant”).
For the following reasons, Defendant’s motion is GRANTED.
BACKGROUND 2
The
Court
presumes
familiarity
with
the
facts
and
procedural background of this case, which are detailed in the
1
The Clerk of the Court is directed to update the docket to
reflect Patrick R. Donahoe as the Postmaster General, in place of
John E. Potter.
2
The following material facts are drawn from the parties’ Local
Civil Rule 56.1 Statements (“56.1 Stmt.”) and their evidence in
support.
Court’s
various
Orders,
including
the
January
7,
2013
Order
denying pro se plaintiff John DiPetto’s (“Plaintiff”) motion for
reconsideration.
Briefly, Plaintiff is a mail handler for the United
States Postal Service (“USPS”).
Plaintiff alleges that he was
discriminated against on the basis of his race, color, national
origin, and sexual orientation.
requested
EEO
counseling,
counseling form.
On December 15, 2004, Plaintiff
and
submitted
a
pre-complaint
(Def.’s 56.1 Stmt., Docket Entry 56, ¶ 1; see
also Friedman Decl., Docket Entry 55, ¶ 5 & Ex. A.)
Plaintiff
never filed a formal complaint in connection with that matter and
withdrew his request for counseling on January 26, 2005.
(Def.’s
56.1 Stmt. ¶ 2; see also Friedman Decl. ¶ 6 & Ex. B.)
On
counseling.
& Ex. C.)
October
6,
2006,
Plaintiff
again
requested
EEO
(Def.’s 56.1 Stmt. ¶ 3; see also Friedman Decl. ¶ 7
Again he did not file a formal complaint and withdrew
his request on October 30, 2006.
(Def.’s 56.1 Stmt. ¶ 4; see
also Friedman Decl. ¶ 8 & Ex. D.)
Finally, on March 4, 2008, Plaintiff filed a third
request for EEO counseling.
Friedman
Decl.
¶
9
&
Ex.
(Def.’s 56.1 Stmt. ¶ 5; see also
E.)
On
May
21,
2008,
after
participating in mediation, Plaintiff withdrew his request for
EEO counseling.
¶ 10 & Ex. F.)
(Def.’s 56.1 Stmt. ¶ 7; see also Friedman Decl.
His written and signed withdrawal states:
2
I fully understand that by withdrawing the
complaint or allegation(s) I have withdrawn,
I am waiving my rights to any further appeal
of the allegation(s) through the EEO process.
I further stipulate that my withdrawal did
not
result
from
threat,
coercion,
intimidation, promise, or inducement.
(Def.’s 56.1 Stmt. ¶ 8; see also Friedman Decl. Ex. F.)
Plaintiff then commenced this action on December 8,
2008.
On January 6, 2011, Defendant moved to dismiss Plaintiff’s
Second Amended Complaint.
(See Docket Entry 28.)
In opposition
to that motion, and specifically in opposition to Defendant’s
assertions that Plaintiff’s claims are time-barred and that he
failed to exhaust his administrative remedies, Plaintiff argued
that he
was
coerced
complaints.
(See
into
Docket
withdrawing
Entry
35.)
his
prior
Following
EEO
informal
that
motion,
Plaintiff’s only remaining claims are against Defendant pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”) for alleged discrimination, retaliation,
and a hostile work environment.
The Court permitted limited
discovery on: (1) whether Plaintiff’s failure to follow through
with
the
EEO
Plaintiff’s
procedure
claims
are
precludes
his
time-barred.
claim,
(See
and
(2)
Sept.
whether
14,
2011
Memorandum & Order, Docket Entry 39.)
DISCUSSION
Defendant now seeks summary judgment, asserting that
Plaintiff did not engage in any discovery on the relevant matters
3
and that Plaintiff’s claims fail because he did not exhaust his
administrative remedies and his claims are time-barred.
The
Court will first address the applicable legal standard before
turning to the merits of Defendant’s motion.
I. Summary Judgment Standard
Summary judgment is only appropriate where the moving
party can demonstrate that there is “no genuine dispute as to any
material fact” and that the moving party is entitled to judgment
as a matter of law.
question,
the
FED. R. CIV. P. 56(a).
Court
considers
“the
In considering this
pleadings,
depositions,
answers to interrogatories and admissions on file, together with
any other firsthand information including but not limited to
affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)
(internal citation omitted); see also FED. R. CIV. P. 56(c).
“In
assessing the record to determine whether there is a genuine
issue to be tried . . . the court is required to resolve all
ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.”
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
McLee v.
The burden of
proving that there is no genuine issue of material fact rests
with the moving party.
Gallo v. Prudential Residential Servs.,
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. &
Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)).
burden
is
met,
the
non-moving
party
4
must
“come
Once that
forward
with
specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
1998),
to
demonstrate
that
“the
evidence
is
such
that
a
reasonable jury could return a verdict for the nonmoving party,”
Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505,
2510, 91 L. Ed. 2d 202, 218 (1986).
or denials will not suffice.”
323 (2d Cir. 1986).
“Mere conclusory allegations
Williams v. Smith, 781 F.2d 319,
And “unsupported allegations do not create a
material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000), superseded by statute on other grounds as
stated in Ochei v. Coler/Goldwater Mem’l Hosp., 450 F. Supp. 2d
275, 282 (S.D.N.Y. 2006).
II. Analysis
A. Failure to Exhaust Administrative Remedies
Defendant first asserts that Plaintiff’s claims fail
because Plaintiff did not exhaust his administrative remedies.
The Court agrees.
Title
VII
requires
that
a
plaintiff
exhaust
administrative remedies before filing a civil action.
his
Butts v.
N.Y.C. Dep’t of Hous. Preservation & Dev., 990 F.2d 1397, 1401-02
(2d Cir. 1993), superseded by statute on other grounds, Civil
Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
A
district court may only hear claims that were included in the
administrative charge or which are “reasonably related” to the
allegations in the charge.
Id. at 1401.
5
Here,
it
is
undisputed
that
Plaintiff
voluntarily
withdrew his EEO informal complaints raised in 2004 and 2006.
Withdrawal of an administrative complaint “constitutes a failure
to exhaust administrative remedies.”
Baber v. Runyon, No. 97-CV-
4798, 1998 WL 912065, at *5 (S.D.N.Y. Dec. 30, 1998) (collecting
cases); see also Lucenti v. Potter, 432 F. Supp. 2d 347, 357
(S.D.N.Y. 2006) (“‘[T]he withdrawal of an EEO complaint must be
considered as a waiver of any underlying discrimination claims.’”
(quoting
Littlejohn
v.
Henderson,
No.
01-CV-2772,
21738608, at *3 (E.D.N.Y. June 19, 2003)).
assertion
complaint
is
that
was
his
not
withdrawal
voluntary
of
the
because
2003
WL
Plaintiff’s only
2008
he
EEO
was
informal
coerced.
Specifically, Plaintiff maintains that he executed a withdrawal
because the EEO mediator Ronnie Berlin informed him that the
issues Plaintiff raised were union matters, not EEO matters.
(See Pl.’s 56.1 Stmt., Docket Entry 61, ¶ 1.)
As previously stated, the Court granted discovery on
this matter in its September 14, 2011 Memorandum and Order.
Docket
Entry
39.)
In
the
nearly
three
years
since
(See
then,
Plaintiff has come forward with absolutely no evidence to support
his assertion.
Coercion could theoretically demonstrate that the
withdrawal was not knowing and voluntary.
912065, at *6.
See Baber, 1998 WL
Here, however, Plaintiff has failed to support
his self-serving allegation with any admissible evidence.
6
See
Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (noting that
the Court may rely only on admissible evidence).
In fact, most
of Plaintiff’s evidence and documentation attached to his 56.1
Statement relates to events well after the events at issue here,
which could not have been the basis of Plaintiff’s complaints in
2008 and prior and which were not before the EEO at the time.
See Lucenti, 432 F. Supp. 2d at 358 (finding that the plaintiff
failed to exhaust her administrative remedies as it pertained to
issues post-dating her EEO complaint).
Moreover, the Court notes that Plaintiff filed at least
two EEO informal complaints prior to the one filed in 2008.
Plaintiff is no stranger to the EEO process and, in fact, he
alleges, in part, that he was discriminated against given his
long history of making complaints.
(See, e.g., Second Am. Compl.
¶ 56.)
Accordingly, the Court finds that Plaintiff has failed
to exhaust his administrative remedies and, as such, Defendant’s
motion is GRANTED.
B. Time-Barred
Finally,
the
Court
notes
that
even
if
Plaintiff’s
claims were exhausted, which they are not, Plaintiff’s claims
would otherwise fail because they are time-barred.
Employment discrimination claims under Title VII are
considered
timely
if
Plaintiff:
7
(1)
timely
filed
an
administrative charge; (2) received a right-to-sue letter; and
(3) commenced suit within ninety days of receiving the right-tosue letter.
See 42 U.S.C. § 2000e-5(e), (f); 29 U.S.C. § 626(d).
In this case, even if the Court considered the withdrawal the
last administrative action, the withdrawal took place on May 21,
2008.
Plaintiff did not commence this case until December 8,
2008, more than ninety days later.
The
tolling.
ninety-day
requirement
is
subject
to
equitable
See Johnson v. Al Tech Specialties Steel Corp., 731
F.2d 143, 146 (2d Cir. 1984); see also Toner v. Suffolk Cnty.
Water Auth., 220 F.R.D. 20, 21 (E.D.N.Y. 2004) (holding that the
ninety-day limitation is stringently enforced).
Such equitable
tolling is available, however, only in “rare and exceptional
circumstances,
in
which
a
party
is
prevented
extraordinary way from exercising his rights.”
in
some
Zerilli-Edelglass
v. N.Y. City Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003)
(internal quotation marks and citations omitted).
Misinformation
by an EEO counselor, as alleged by Plaintiff, is insufficient to
warrant equitable tolling.
See Shearard v. Geithner, No. 09-CV-
0963(JS)(ETB), 2010 WL 2243414, at *3 (E.D.N.Y. May 30, 2010);
see also Miller v. Potter, No. 07-CV-1767, 2007 WL 4615611, at *4
(E.D.N.Y.
Nov.
29,
2007)
(misinformation
from
a
union
representative did not warrant equitable tolling because such
8
statements
did
not
reflect
on
whether
the
employer
actively
misled the plaintiff).
Thus,
Defendant’s
motion
is
also
GRANTED
because
Plaintiff’s claims are time-barred.
CONCLUSION
For
the
foregoing
reasons,
Defendant’s
motion
for
summary judgment is GRANTED.
The Clerk of the Court is directed: (1) to substitute
Patrick R. Donahoe in place of John E. Potter as Defendant, (2)
enter judgment and mark this matter as CLOSED, and (3) mail a
copy of this Memorandum and Order to pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.
Date: June 16, 2014
Central Islip, New York
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