The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This is an employment discrimination lawsuit brought by a former letter carrier, Krystyna Pajak, against her ex-employer, the United States Postal Service (―USPS‖ or the ―Postal Service‖). Although Pajak originally proceeded pro se, prior to the commencement of discovery the Court appointed pro bono counsel (D.E. 22) who is representing her in opposing the pending motion (D.E. 49) in which Postmaster General John E. Potter, as head of the USPS (hereinafter referred to institutionally as the ―Postal Service‖), moves for dismissal under Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment under Fed. R. Civ. P. 56(c). Earlier in the case, Potter had filed a pre-answer motion to dismiss, which was denied as premature. (D.E. 16.) At that time, the Court concluded that ―[g]ranting a motion to dismiss before the defendant takes a position on responsibility for the actions does not do justice.‖ (D.E. 9.) Discovery is now complete and Magistrate Judge Shwartz has entered a final pretrial order. (D.E. 57.)
The Postal Service argues for summary judgment on the grounds that Pajak's claims are time-barred because she did not file her civil complaint within the required 90-day time period;*fn1 because she did not timely exhaust her administrative remedies with respect to certain allegations in her complaint; and because her allegations relating to a January 5, 2004 ―notice of removal‖*fn2 were settled during the administrative process. The Postal Service also argues that Pajak's claim for compensatory damages under the ADEA should be dismissed because plaintiff has not alleged a discrete adverse employment action, and because compensatory damages are not available under the ADEA. The Postal Service also maintains that Pajak cannot state a claim for retaliation for discipline issued prior to January 5, 2004; that Pajak is not entitled to a jury trial for her ADEA claims; that Pajak's complaint based on the Rehabilitation Act should be dismissed due to inability to show a violation; and that various other allegations in the complaint that fail to allege discrimination must be dismissed.
Pajak is a 58-year old female Polish immigrant who was employed as a letter carrier for the U.S. Postal Service in Summit, New Jersey from January 2002 to January 2006, when she was approved for disability retirement, on which she remained at the time briefing was submitted. (Certification of Krystyna Pajak ¶¶ 3, 4, 5, 150. (hereinafter, ―Pajak Cert.‖).) Pajak's suit is based on allegations of discriminatory actions beginning in May 2002 and continuing through June 2005.*fn3
In her complaint Pajak contends that she was subjected to constant discrimination by four of her supervisors based on her national origin (Polish), her gender (female), her age (over 40), and a disability (a back injury suffered on the job). Pajak alleges that Postmaster Karp of the Summit Post Office ―verbally abused and nearly tortured Ms. Pajak‖ on these prohibited grounds to the point that his ―discriminatory behavior forced Ms. Pajak to suffer from severe depression and anxiety and seek a transfer out of her workplace due to the unrelenting harassment and discrimination.‖ (Pajak Br. 1.) Pajak also claims retaliation against her for filing a discrimination complaint with the Postal Service's Equal Employment Opportunity Office (―EEO Office‖). Plaintiff alleges, inter alia, that this discrimination and retaliation against her included: wrongful denial of sick leave; improper issuance of notices of suspension and removal; verbal abuse; disparate treatment in the context of job performance observation and evaluation by her supervisors; and disparate treatment regarding work assignments. Plaintiff claims that she is entitled to relief because she ―is now suffering and will continue to suffer irreparable injury and monetary damages as a result of the defendant's discriminatory [employment] practices.‖ (Compl. ¶ 40.)
In the Court's earlier decision, it acknowledged that Pajak's pro se complaint was entitled to ―greater leeway‖ with respect to ―technical rules of pleading.‖ (See D.E. 16 (citing Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993))). Because Pajak's pro se pleading consisted of grouped factual assertions and was not methodically organized by theory of liability, the Court construed the complaint to allege the following claims:
(1) Defendant engaged in various unlawful, discriminatory employment practices based on plaintiff's national origin and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (―Title VII‖), plaintiff's age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (―ADEA‖), and plaintiff's disability in violation of the Rehabilitation Act 1973, 29 U.S.C. § 701, et seq. (―Rehabilitation Act‖);
(2) Defendant engaged in various unlawful, retaliatory employment practices undertaken in response to plaintiff's filing of discrimination complaints with the Postal Service's EEO Office, in violation of Title VII, the ADEA, and the Rehabilitation Act; and
(3) Defendant created a hostile work environment in violation of Title VII, the ADEA, and the Rehabilitation Act.
(D.E. 16.) The Court will proceed in line with this characterization of the complaint's claims.
The Postal Service moves for dismissal on the basis of Rule 12(b)(6), but invites the Court to convert the motion to one for summary judgment under Rule 56(c). The Court opts to treat the current motion as one for summary judgment, making the broader record available as opposed to the limited pleadings. While it is true that ―all parties must be given the opportunity to present material to the court when the court converts a motion to dismiss into a motion for summary judgment,‖ a court can do so if the ―parties . . . have notice of the conversion.‖ Razzoli v. Dir., Bureau of Prisons, 293 F. App'x 852, 855 (3d Cir. 2008). Because it is clear that Pajak drew from an expanded record in opposing the motion, the Court will address the motion as one for summary judgment.
Summary judgment may be granted under Rule 56(c) ―if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(c). The Court is duty-bound to ―view the facts in the light most favorable to the non-moving party and [must] draw all inferences in that party's favor.‖ Gray v. York Newspapers, 957 F.2d 1070, 1078 (3d Cir. 1992). Summary judgment is inappropriate if there is evidence sufficient to allow a reasonable jury to return a verdict for the non-moving party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), or if the factual dispute is one which ―might affect the outcome of the suit under the governing law . . . .‖ Id. The movant's burden, however, ―may be discharged by ‗showing' . . . that there is an absence of evidence to support the non-moving party's case.‖ Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Additionally, the non-movant ―may not rest upon mere allegations or denials of the . . . pleading‖; instead, the non-movant, ―by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.‖ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
On this summary judgment motion, the record consists of Pajak's 150-paragraph detailed certification dated July 3, 2008 submitted with her opposition papers; deposition transcripts of Pajak and her Postal Service superior John Karp; as well as deposition transcripts of her co-workers, Allan Axelrad, Linda Reszutek, and Bayyinah Nashid. The record before the Court also includes Pajak's medical records and psychological counseling records, her EEO administrative complaints, and her EEO Investigative File.
A. The 90-day Time Period for Filing
The Postal Service argues that Pajak failed to sue within 90 days of receipt of a right-tosue letter from the U.S. Equal Employment Opportunity Commission (―EEOC‖). In so doing, the Postal Service revisits an issue already decided by the Court's October 30, 2006 ruling on the first motion to dismiss, where, over the same objections, it found the complaint was timely:
Plaintiff filed a complaint in district court, along with an application to proceed in forma pauperis (―IFP‖), on September 23, 2005 -- 87 days after her attorney received the Postal Service's final decision. Plaintiff did not pay the required $250 filing fee at that time. This Court denied plaintiff's IFP application in an order dated October 18, 2005 and, as a result, the case was terminated. The case was re-opened nine days later on October 27, 2005 after plaintiff paid the $250 filing fee.
Although it is unclear exactly when plaintiff received the Notice of Final Decision, plaintiff is deemed to have received the notice on the date that it was received by her attorney. Irwin v. Dept. of Veteran Affairs, 498 U.S. 92, 92-93 (1990). Thus, the 90-day clock started to tick no later than the date her attorney received the notice, June 28, 2005, meaning that plaintiff's complaint was not timely filed if it was filed after September 26, 2005.
Plaintiff filed a pro se complaint on September 23, 2005, but did not tender the $250 filing fee until October 27, 2005. Defendant argues that the complaint must be dismissed in its entirety as not timely filed because the 90-day period elapsed between the Court's denial of plaintiff's IFP application on October 18, 2005 and payment of the filing fee on October 27, 2005. This legal position is surprising in the face of Third Circuit precedent that compels the opposite result.
This precedent makes it plain that when plaintiff paid the filing fee on October 27, 2005, her complaint was deemed filed on September 23, 2005, which is timely because her time to file a complaint in district court did not expire until September 26, 2005.
(D.E. 16.) Nothing put before the Court calls for a different ruling here, and, thus, the earlier determination of timeliness stands as law of the case. See Hamilton v. Leavy, 322 F.3d 776, 786 (3d Cir. 2003) (―The law of the case doctrine limits relitigation of an issue once it has been decided in an earlier stage of the same litigation.‖).
B. The Postal Service's Arguments Concerning the Timeliness of Pajak's Exhaustion of Administrative Remedies: ¶¶ 7-16; 28-29, 33-34 of the Complaint
The Postal Service contends that Pajak failed to exhaust her administrative remedies with respect to ¶¶ 7-16; 28-29, 33-34 of her complaint. In support of dismissal, the Postal Service argues that because certain allegations refer to events that occurred more than 45 days prior to the date of Pajak's first EEO complaint to an EEO counselor, then those allegations must be time-barred under 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.105(a)(1). (Potter Br. 5.) The Postal Service also contends that Pajak earlier failed to raise with the EEOC ―many of the allegations‖ in her complaint, requiring that they be ―stricken.‖ (Potter Br. 6.)
These are the allegations:
Paragraph 7: In May 2002 -- Supervisor Bruce Olivier screamed at Plaintiff and state [sic] that she was too slow and threatened to fire her. The Plaintiff was the only woman over 40 years of age who worked under Supervisor Olivier.
Paragraph 8: In June 2002, Supervisor Olivier screamed at plaintiff for no reason. The plaintiff reported the incident to the Postmaster.
Paragraph 9: In August 2002, Supervisor Olivier screamed at plaintiff and told her to get off the floor.
Paragraph 10: In November 2002, the plaintiff requested Route 6. Plaintiff was not given Route 6, the defendant gave Route 6 to another worker. Defendant treated male workers better than the plaintiff, the only female over 40 years of age.
Paragraph 11: In December 26, 2002 -- January 5, 2003, the Supervisor refused to give the plaintiff one day off. The plaintiff's co-workers were given days off.
Paragraph 12: On March 11, 2003, plaintiff was given Route 27 in which she was trained for one year prior. Other carrier trained on their ...