Martin v. Donahoe

Filing 20

ORDER granting 5 Motion for Summary Judgment: For the reasons set forth herein, the Court grants defendant's motion for summary judgment. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/22/2013. (Pilmar, Philip)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-672 (JFB) (ARL)
_____________________

MARQUIS A. MARTIN,
Plaintiff,
VERSUS

PATRICK R. DONAHOE,
Defendant.
___________________
MEMORANDUM AND ORDER
March 22, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Marquis A. Martin (“Martin” or
“plaintiff”) brings this action against Patrick
R. Donahoe, Postmaster General of the
United States Postal Service (“defendant”),
pursuant to 29 U.S.C. §§ 701 et seq. (the
“Rehabilitation Act”), alleging that he was
discriminated against on the basis of his
disability (depression) when he was
terminated from his employment after
repeatedly being absent from work.1
Defendant now moves for summary
judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure. For the reasons set
forth below, the Court grants defendant’s
motion in its entirety.

I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the parties’ affidavits, exhibits,
and respective Rule 56.1 Statements of
Facts. Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of N.Y., 422 F.3d 47, 50-51 (2d Cir. 2005).
Unless otherwise noted, where a party’s 56.1
Statement is cited, that fact is undisputed or
the opposing party has pointed to no
evidence in the record to contradict it.2

1

Plaintiff originally brought this action under the
Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12101 et seq. (the “ADA”). (Compl. ¶ 1.)
However, the parties agreed at the pre-motion
conference in this matter that plaintiff’s claim would
be construed under the Rehabilitation Act, and not
the ADA.

2

In addition, where the parties’ Rule 56.1 Statements
contain specific citations to the record to support
their statements, the Court has cited to the Rule 56.1
Statements, rather than the underlying citation to the
record.

1. Plaintiff’s Disability and Termination

occasions to return to work or provide
documentation explaining his absence, but
had failed to do so. (Id.) Through his union,
plaintiff filed a grievance regarding his
removal, and on June 15, 2011, an arbitrator
upheld the USPS’ actions. (Def.’s 56.1 ¶¶ 34.)

Plaintiff was a Mail Handler for the
United States Postal Service (“USPS”) at a
branch in Bethpage, New York. (Compl.
¶ 2; Def.’s 56.1 ¶ 1.) Plaintiff suffers from
“severe and chronic depression” (Compl.
¶ 3), and plaintiff claims that due to his
depression, he had difficulties performing
his duties as a Mail Handler and that his
“attendance was erratic and not continuous”
(id. ¶ 7). Plaintiff’s domestic partner states
that, beginning in July 2010, plaintiff “began
to exhibit signs of severe depression that
required hospitalization for treatment.” (Aff.
of Starlette Chisem (“Chisem Aff.”) ¶ 4.) On
August 18, 2010, the USPS sent plaintiff a
“Notice of Removal,” which informed
plaintiff that he would be removed as a
USPS employee effective September 24,
2010.3 (Decl. of Eriberto Cedeno, Ex. B,
Notice of Removal, at 1.) The Notice of
Removal stated that plaintiff was being
terminated because he had been absent from
work without permission for over six weeks,
and that plaintiff had not provided any
“acceptable documentation to justify [his]
absence . . . .” (Id.) Plaintiff was also
discharged for failing to follow instructions,
because he had been directed on three

2. Exhaustion of Administrative Remedies
On July 29, 2011, 308 days after the
effective date of his removal, plaintiff
contacted
the
Equal
Employment
Opportunity Commission (“EEOC”). (Def.’s
56.1 ¶ 7.) On October 21, 2011, plaintiff
filed a formal complaint with the agency.
(Decl. of Kenneth Abell (“Abell Decl.”) Ex.
D, Dismissal of Formal EEO Complaint, at
1.) On November 14, 2011, the EEOC
dismissed plaintiff’s complaint as untimely
because plaintiff did not contact the EEOC
until 308 days after the effective date of his
removal, while federal regulations require an
aggrieved person to contact an EEO
Counselor within 45 days of the
discriminatory action. (Id. at 1-3); see also
29 C.F.R. § 1614.105(a)(1).
Plaintiff claims that he did not file a
timely complaint with the EEOC because he
was “suffering from a major depressive
disorder . . . whereby he could not function
with the clarity one would need to fully
comprehend what he would need to do to
file suit against his employer.” (Pl.’s Opp’n
at 6.) Plaintiff’s domestic partner states that,
during the relevant time period, plaintiff had
difficulty performing routine tasks such as
bathing and eating, and that he did not
“function out of bed” more than two days a
week. (Chisem Aff. ¶ 14.) She also claims
that plaintiff began to experience delusions
and paranoia that occurred approximately
every three weeks. (Id.) However, plaintiff
provides no medical records regarding his
condition after the effective date of his
termination on September 24, 2010. The

3

Although plaintiff concedes that he did not timely
file an EEOC complaint as required by federal
regulations, plaintiff states that the effective date of
his removal was June 15, 2011, the date that an
arbitrator upheld his termination. (Pl.’s 56.1 ¶ 2.)
However, as the Supreme Court has stated, the
“pendency of a grievance, or some other method of
collateral review of an employment decision does not
toll the running of the limitations period.” Del. State
Coll. v. Ricks, 449 U.S. 250, 261 (1980) (citing Int'l
Union of Elec., Radio & Mach. Workers, AFL-CIO,
Local 790 v. Robbins & Myers, Inc., 429 U.S. 229,
236 (1976) (rejecting argument that “the statutory
period for filing a claim with the EEOC” should be
tolled “during the pendency of grievance or
arbitration procedures under the collectingbargaining contract”)). Therefore, the operative date
of removal for exhaustion purposes is September 24,
2010.

2

B. Procedural Background

only records that plaintiff did submit relate
to the period between his Notice of Removal
and the effective date of his termination. A
counselor from the USPS Employee
Assistance Program (“EAP”) noted on
August 24, 2010 that plaintiff reported
“feeling better” and his “presentation was
less depressed.” (Id. Ex. 1, at 6.) Plaintiff’s
primary care physician remarked on
September 2, 2010 that plaintiff reported a
“lack of interest or pleasure in activities”
and “sleeping [a lot],” but that plaintiff’s
affect presented as “normal,” “not flat,” and
“not sad.” (Id. at 24-25.)

Plaintiff filed the complaint in this action
on February 10, 2012. Defendant filed a preanswer motion for summary judgment on
June 15, 2012. Plaintiff filed his opposition
to the motion on July 21, 2012, and
defendant replied on August 3, 2012. The
Court held oral argument on September 18,
2012. The Court has fully considered the
submissions of the parties.
II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)

Despite plaintiff’s claim that he was
unable to understand his legal rights
following his termination, plaintiff filed a
grievance relating to his termination and
testified before an arbitrator on May 26,
2011. (Abell Decl. Ex. B, Arbitration
Award, at 1-2.) At oral argument, plaintiff’s
attorney stated that this testimony was
limited, and there was no indication during
the testimony that plaintiff was well enough
to understand his rights. However, no
transcript or evidence was submitted to
support this assertion. In addition, plaintiff
reported to the EAP counselor on August 24,
2010 that he had begun the legal process of
locating his children and gaining visitation
rights. (Chisem Aff. Ex. 1, at 6.)
Following oral argument, the Court gave
plaintiff 45 days to submit any medical
documentation to explain why he was
unable to make contact with an EEO
Counselor following his termination. By
letter dated November 13, 2012, plaintiff
informed the Court that he did not have any
supplemental submissions. (See Notice by
Marquis A. Martin, Nov. 13, 2012, ECF No.
18.)

3

(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is not warranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

exhaust his administrative remedies in a
timely manner, and there is no basis for
equitable tolling. For the reasons set forth
below, the Court agrees.
A. Employment Discrimination Claims and
Exhaustion of Administrative Remedies

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment.
Id. at 247-48. Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials, but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to
assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

1. Legal Standard
“To establish a prima facie case of
employment discrimination under the
Rehabilitation Act, a plaintiff must prove
that: (1) he is an individual with a disability,
(2) he was otherwise qualified for a position,
(3) he was denied that position on the basis
of his disability, and (4) the employer
receives federal funds.” D'Amico v. City of
N.Y., 132 F.3d 145, 150 (2d Cir. 1998)
(citations and internal quotation marks
omitted). However, in order to bring a
Rehabilitation Act discrimination claim in a
federal district court, a plaintiff must first
exhaust his administrative remedies. See
Boos v. Runyon, 201 F.3d 178, 181 (2d Cir.
2000) (“EEOC regulations require an
employee suing the federal government
under the Rehabilitation Act to exhaust
certain administrative remedies before
initiating a suit in the district court.”). Thus,
an aggrieved employee must first seek EEO
counseling within 45 days of the allegedly
discriminatory
act.
29
C.F.R.
§ 1614.105(a)(1). Failure to seek EEO
counseling is grounds for dismissal of
plaintiff’s action. See Torres v. U.S. Dep’t of
Veteran Affairs, 02-CIV-9601, 2004 WL
691237, at *4-5 (S.D.N.Y. Mar. 31, 2004)
(dismissing case where federal employee did
not consult with an EEO counselor within
45 days of the alleged discriminatory act);
Judge v. Henderson, 172 F. Supp. 2d 410,
412-13 (S.D.N.Y. 2001) (same).

III. DISCUSSION

However, failure to exhaust is not
jurisdictional. Downey v. Runyon, 160 F.3d
139, 145-46 (2d Cir. 1998) (“‘[F]iling a

Defendant moves for summary judgment
on the grounds that plaintiff failed to
4

74, 80-81 (2d Cir. 2003) (quoting Chapman
v. ChoiceCare Long Island Term Disability
Plan, 288 F.3d 506, 512 (2d Cir. 2002)); see
also Irwin v. Dep’t of Veteran Affairs, 498
U.S. 89, 96 (1990) (noting that “the
principles of equitable tolling . . . do not
extend to what is at best a garden variety
claim of excusable neglect”). The doctrine is
“highly case-specific,” and the “burden of
demonstrating the appropriateness of
equitable tolling [] lies with the plaintiff.”
Boos, 201 F.3d at 184-85; see also Smith v.
Chase Manhattan Bank, No. 97 Civ. 4507,
1998 WL 642930, at *3 (S.D.N.Y. Sept. 18,
1998) (“[A] court must consider the equities
of the excuse offered to explain the delay
and may extend the limitations period if
warranted.”).

timely charge of discrimination with the
EEOC is not a jurisdictional prerequisite to
suit in federal court, but a requirement that,
like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling.’”
(quoting Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982))). In particular,
federal regulations require that the 45-day
requirement be tolled:
when the individual shows that he or
she was not notified of the time
limits and was not otherwise aware
of them, that he or she did not know
and reasonably should not have []
known that the discriminatory matter
or personnel action occurred, that
despite due diligence he or she was
prevented by circumstances beyond
his or her control from contacting the
counselor within the time limits, or
for other reasons considered
sufficient by the agency or the
Commission.

Courts have held that only in a limited
number of cases do extraordinary
circumstances exist. Such cases include
where the plaintiff has a mental or physical
disability. See, e.g., Tsai v. Rockefeller
Univ., 137 F. Supp. 2d 276, 281-83
(S.D.N.Y. 2001). In circumstances more
extreme than those in the present case,
courts have held that extraordinary
circumstances did not exist. See Ferrer v.
Potter, No. 03 Civ. 9113, 2005 WL
1022439, at *8 (S.D.N.Y. May 3, 2005)
(holding father’s death insufficient reason
for equitable tolling); Chalom v. Perkins,
No. 97 Civ. 9505, 1998 WL 851610, at *6
(S.D.N.Y. Dec. 9, 1998) (“Even if [plaintiff]
did offer proof of the mental grief she
alludes to, it would not reach the high
standard that this circuit has applied.” (citing
cases)); Pauling v. Sec’y of Dep’t of
Interior, 960 F. Supp. 793, 804, n.6
(S.D.N.Y. 1997) (holding that plaintiff’s
claim that he was suffering from a “major
depressive episode” did not excuse his
failure to exhaust administrative remedies
when the medical evidence “indicat[ed] only
that he was too ill to work, not that he was
too ill to comprehend his rights and to file a

29 C.F.R. § 1614.105(a)(2). Thus, this Court
must consider whether there are any grounds
for equitable tolling. See Boos, 201 F.3d at
184 (holding 45-day requirement subject to
equitable tolling).
“Tolling of the time limit is granted when
‘rare and exceptional circumstances’
prevented a plaintiff from filing on time.”
Williams v. Potter, No. 06 Civ. 8258, 2007
WL 2375818, at *5 (S.D.N.Y. Aug. 14,
2007) (quoting Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000)). “When determining
whether equitable tolling is applicable, a
district court must consider whether the
person seeking application of the equitable
tolling doctrine (1) has ‘acted with
reasonable diligence during the time period
she seeks to have tolled,’ and (2) has proved
that the circumstances are so extraordinary
that the doctrine should apply.” ZerilliEdelglass v. N.Y.C. Transit Auth., 333 F.3d
5

inquiry into tolling.”); Chalom, 1998 WL
851610, at *6 (rejecting equitable tolling
where plaintiff “offers no evidence of her
suggested mental anguish and stress and the
extent to which it affected her ability to file
within the statutory deadlines.”).

complaint”); Decrosta v. Runyon, Nos. 90CV-1269, 90-CV-585, 1993 WL 117583, at
*3 (N.D.N.Y. Apr. 14, 1993) (holding that
equitable tolling was not justified despite
doctor’s statement that the plaintiff was
“suffering from a major depressive disorder
that was more serious than a neurosis and
his overall ability to function in society was
severely limited” when other testimony from
doctors demonstrated that plaintiff could
care from himself, comprehend problems
with his employment, and had retained an
attorney regarding his legal remedies).

In fact, the evidence in the record
demonstrates that plaintiff was able to
function in society and comprehend his legal
rights. Plaintiff told the EAP counselor after
receiving his Notice of Removal that he had
begun the legal process of locating his
children and gaining visitation rights.
(Chisem Aff. Ex. 1, at 6.) Most importantly,
plaintiff filed a grievance regarding his
termination and testified before an arbitrator
on May 26, 2011. (Pl.’s 56.1 ¶¶ 3-4; Abell
Decl. Ex. B, Arbitration Award, at 1-2.)
Plaintiff’s participation in this legal process
regarding his employment demonstrates that
he had the ability to initiate contact with the
EEOC following his termination. See
Hedgepeth v. Runyon, 96 CIV. 1161, 1997
WL 759438, at *5 (S.D.N.Y. Dec. 10, 1997)
(“[T]he fact that Plaintiff sought disability
retirement benefits in the intervening
months between the date of discharge and
the date of EEO notification belies any
notion that Plaintiff was sufficiently
incapacitated to warrant tolling.”); Pauling,
960 F. Supp. at 804 n.6 (plaintiff denied
equitable tolling when he pursued a claim
for workers’ compensation during the
relevant time period but failed to initiate
contact with the EEOC).

2. Application
As a threshold matter, plaintiff does not
dispute that he failed to file a timely request
for EEO counseling as required by federal
regulations. Instead, plaintiff argues that he
is entitled to equitable tolling because he
was “suffering from a major depressive
disorder . . . whereby he could not function
with the clarity one would need to fully
comprehend what he would need to do to
file suit against his employer.” (Pl.’s Opp’n
at 6.) To corroborate plaintiff’s condition in
the period between his discharge from the
USPS and his complaint to the EEOC,
plaintiff only submits the unsupported
affidavit of his domestic partner, which
claims that plaintiff had difficulty
performing simple life functions and often
did not get up from bed. However, plaintiff
has not submitted any medical evidence to
substantiate his claims. Following oral
argument, plaintiff was given another
opportunity to submit medical evidence
which could provide a justification for his
308-day delay in contacting the EEOC, but
plaintiff was unable to do so. See Boos, 201
F.3d at 185 (“[Plaintiff’s] conclusory and
vague claim, without a particularized
description of how her condition adversely
affected her capacity to function generally or
in relationship to the pursuit of her rights, is
manifestly insufficient to justify any further

The precedent that plaintiff directs the
Court to is unpersuasive. For example, in
Tsai, the court denied the defendant’s
motion to dismiss because the plaintiff had
alleged physical and mental conditions to
justify her delay in initiating contact with
the EEOC. 137 F. Supp. 2d at 282. The
court found that plaintiff’s ability to file for
disability benefits did “not necessarily refute
her inability to file an EEOC charge”
6

(including testifying before an arbitrator),
and plaintiff’s failure to submit any medical
evidence to substantiate his alleged inability
to pursue his legal rights due to his
depression (even after being given
additional time by the Court to do so), the
Court concludes that this is simply not one
of the “rare and exceptional” circumstances
that would justify equitable tolling.
McGinnis, 208 F.3d at 17.

because filing for disability benefits was a
“non-adversarial process” that did not
involve discussion of her former employer,
any mention of which “exacerbated” her
depression. Id. at 282-83. First, in contrast to
the plaintiff in Tsai, plaintiff here does not
claim that any mention of his employer
exacerbates his depression, and the
grievance process he initiated surrounded
the same universe of facts as any complaint
that he would have filed with the EEOC.
Furthermore, upon the defendant’s motion
for summary judgment, the court in Tsai
dismissed the plaintiff’s complaint, as the
evidence produced during discovery
demonstrated that plaintiff had “pursued
various legal rights in a number of ways”
during the relevant time period, including
consulting with an attorney regarding a
possible discrimination suit against her
employer. Tsai v. Rockefeller Univ., No. 00
CIV. 329, 2002 WL 237843, at *5
(S.D.N.Y. Feb 15, 2002).

IV. CONCLUSION
For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment. The Clerk of the Court shall enter
judgment accordingly and close the case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Plaintiff’s reliance on Benn v. Greiner,
275 F. Supp. 2d 371 (E.D.N.Y. 2003), is
also unpersuasive. In Benn, a court
determined that equitable tolling was
warranted for a petitioner seeking a writ of
habeas corpus when the petitioner was
“prone
to
distracting
auditory
hallucinations,” was “confined to the mental
health ward of [the] prison for much of his
sentence,” and could not understand simple
directions. Id. at 373-74. Even fully
crediting the affidavit of plaintiff’s domestic
partner, plaintiff has clearly not satisfied his
burden of demonstrating that his situation is
sufficiently
serious,
such
as
the
circumstances in Benn, to warrant this Court
excusing his 308-day delay in initiating
contact with an EEO Counselor.

Dated: March 22, 2013
Central Islip, NY
***
Plaintiff is represented by Locksley O.
Wade, 110 Wall Street, 11th Floor, New
York, New York, 10005. The attorney for
defendant is Kenneth M. Abell, United
States Attorney’s Office Eastern District Of
New York, 271 Cadman Plaza East,
Brooklyn, New York, 11201.

Having considered all of the evidence,
including the affidavit of plaintiff’s
domestic partner, plaintiff’s ability to pursue
a grievance procedure against the USPS
7