DiPaulo v. Potter, No. 1:09cv592

• Decision Date: 23 August 2010
• Docket Number: No. 1:09cv592
• Citation: 733 F.Supp.2d 666
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Cathy T. DiPAULO, Plaintiff, v. John POTTER, Postmaster General, United States Postal Service, Defendant.

733 F.Supp.2d 666

Cathy T. DiPAULO, Plaintiff,

v.John POTTER, Postmaster General, United States Postal Service, Defendant.

No. 1:09cv592.

United States District Court,

M.D. North Carolina.

Aug. 23, 2010.

Humphrey S. Cummings, The Cummings Law Firm, P.A., Charlotte, NC, for Plaintiff.

Joan Brodish Binkley, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Plaintiff Cathy T. DiPaulo ("DiPaulo") brings this action against John Potter in his representative capacity as Postmaster General of the United States Postal Service("USPS") under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 et seq. and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., alleging claims of mental disability discrimination. USPS has filed a motion to dismiss or, in the alternative, for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, respectively. (Doc. 4.) USPS also moves to strike DiPaulo's surreply brief filed December 21, 2009, pursuant to Fed.R.Civ.P. 12(f). (Doc. 13.) The court analyzes USPS's motion as one for summary judgment and, for the reasons stated below, grants it.

I. FACTS

On motion for summary judgment, the court views the following evidence in the light most favorable to DiPaulo. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994).

From September 1994 to September 2004, DiPaulo was a rural letter carrier employed by USPS in its Hillsborough, North Carolina, office. (Doc. 1 ¶¶ 4-7.) In March 2004, she was reassigned a new delivery route, which she found in need of a major labeling overhaul. ( Id. ¶¶ 9-10.) DiPaulo ordered new case labels, but once they were received her supervisor, Lori Warren ("Warren"), threw them away. ( Id. ¶ 10.) Warren also did not allow DiPaulo to be paid for pre-approved training, causing her to use a vacation day to attend training while allowing a co-worker in a similar position to be paid for the same training. (Id. ¶ 11.) In addition, DiPaulo's supervisors added mailboxes to her delivery route and failed to properly credit her for the additional workload, resulting in a reduction of her wages. ( Id. ¶¶ 12-13.) The alleged failure to properly adjust her route occurred on August 31, 2004. (Id., Ex. A.)

DiPaulo alleges that these actions were performed "for discriminatory reasons based on her medical impairments and disability related conditions, and had the purpose and effect of creating a hostile and abusive work environment that forced [her] to leave her job due to the intolerable working conditions." ( Id. ¶ 24.) She contends that "based exclusively or in large measure upon Warren's actions of harassment ... [she] was medically diagnosed with work[ ]-related stress to include panic attacks, and show[ed] symptoms of severe anxiety, hair loss and heart arrhythmias, later medically diagnosed as severe anxiety and severe clinical depression." (Id. ¶ 14.) DiPaulo claims that her supervisors and managers knew or had reason to know of her mental impairments yet failed or refused to reasonably accommodate her with respect to her job duties and responsibilities. ( Id. ¶ 20.) DiPaulo resigned on September 15, 2004. (Id., Ex. A.)

DiPaulo subsequently applied for disability retirement, which was approved retroactive to September 15, 2004. ( Id., Ex. A.) On October 21, 2004, she contacted the Equal Employment Opportunity ("EEO") Office of USPS, alleging she had been discriminated against on August 31, 2004, based on her sex and mental disabilities. ( Id., Ex. A at 1.) ¹ She filed a formal complaint of discrimination on January 24, 2005.² ( Id. Ex. A at 1.) USPS issued a Notice of Final Agency Decision (Corrected) on July 22, 2009, dismissing DiPaulo'sclaims on the procedural ground that she failed to contact an EEO counselor within 45 days of the last act of alleged discrimination and on the merits. ( Id., Ex. A at 2, 13.)

DiPaulo filed this lawsuit on August 5, 2009. (Id.) She alleges three claims under the Rehabilitation Act and the ADA: first, that USPS violated her rights by discriminating against her because of her disability; second, that USPS constructively discharged her due to her medical impairments and conditions; and third, that USPS discriminated against her by failing or refusing to reasonably accommodate her medical conditions and impairments. ( Id. ¶¶ 27-29.) USPS moves to dismiss the action for failure to state a claim or, in the alternative, for summary judgment. (Doc. 4.) USPS argues that DiPaulo failed to timely exhaust her administrative remedies by failing to initiate contact with an EEO counselor within 45 days of the date on which she knew or should have known of the alleged discrimination, in accordance with 29 C.F.R. § 1614.105(a)(1). DiPaulo contends that she timely contacted an EEO counselor and, even if she did not, her case should be equitably tolled based on USPS's conduct and her alleged mental and psychological impairments. (Doc. 10.) Additional facts specific to the analysis are set forth in more detail below.

II. ANALYSIS

A. Motion to Strike

USPS moves to strike DiPaulo's surreply brief. (Doc. 13.) The Rules of Practice and Procedure of the United States District Court for the Middle District of North Carolina only allow for the filing of a motion, a response to a motion, and a reply. See Local Rules 7.3 & 56.1. Parties do not have the right to file a surreply. See Johnson v. Rinaldi, No. 1:99CV170, 2001 WL 293654, at *7 (M.D.N.C. Feb. 16, 2001) (noting that the "[c]ourt knows of no authority establishing a right to file a surreply"). Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply. See United States v. Falice, No. 1:04CV878, 2006 WL 2488391 (M.D.N.C. Aug. 25, 2006); Khoury v. Meserve, 268 F.Supp.2d 600, 605-06 (D.Md.2003), aff'd, 85 Fed.Appx. 960 (4th Cir.2004).

Here, USPS raised no new arguments in its reply memorandum in support of its motion for summary judgment. (Doc. 11.) Rather, USPS's reply simply responded to DiPaulo's contention and supporting declaration that she believed Mr. Tom Monroe ("Monroe"), whom she and her father contacted at USPS "[i]n and around early September 2004," was an EEO counselor. Because Federal Rule of Civil Procedure 12(f) applies to pleadings, however, the court will not strike the surreply (Doc. 12) but will simply not consider it and its attachments. ³

B. Motion for Summary Judgment

1. Summary Judgment Standard

Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those identified by controlling law as essential elements of the claims asserted by the parties.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine as to such facts if the evidence is sufficient for a reasonable trier of fact to find for the nonmoving party. Id. No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When ruling on a motion for summary judgment, a court "is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party bears the burden of initially "demonstrat[ing] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has carried its burden, the nonmoving party must present specific facts which show more than some "metaphysical doubt" that a genuine issue of material fact requires trial. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The "mere existence of a scintilla of evidence" is insufficient to defeat summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Even where intent and motive are crucial to determining the outcome of the cause of action, unsubstantiated speculation and bald assertions will not withstand summary judgment. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir.1996). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting First Nat. Bank of Ariz. v. Cities Service, Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). Trial is unnecessary if either "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir.1993).

2. Failure to Timely Exhaust Administrative Remedies

USPS argues that it is entitled to judgment because DiPaulo failed to timely exhaust her administrative remedies. Specifically, USPS contends that DiPaulo failed to timely initiate contact with an EEO counselor within 45 days of when she knew or should have known of her alleged discrimination in violation of 29 C.F.R. § 1614.105(a)(1). DiPaulo counters that she initiated contact within 45 days of when she spoke with Monroe at USPS, who she claims appeared to be an EEO counselor and, alternatively, that the 45-day time period should be equitably tolled.

a. Timely Initiating Contact with an EEO Counselor

A federal employee is required to exhaust her administrative remedies prior to bringing a claim for discrimination in district court. See 42 U.S.C. § 2000e-16; 29 U.S.C. § 794a; 42 U.S.C. § 12111(5)(B)(i) & 12133; Wilkinson v. Rumsfeld, 100 Fed.Appx. 155, 157 (4th Cir.2004) (unpublished) (Rehabilitation Act claims against federal government must comply with same administrative...