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July 16, 2004.


The opinion of the court was delivered by: CLIFFORD GREEN, Senior District Judge


Presently before the Court is Defendant's Motion for Summary Judgment and Plaintiff's Response thereto. For the reasons set forth below, Defendant's Motion will be denied.


  On February 11, 2002, Plaintiff, a distribution clerk for the Postal Service was terminated from her job. Defendant maintains that Plaintiff's termination was for failure to report to work for a period of three months. (Def.'s Ex. 4).

  Plaintiff contends that her failure to report to work was due to her mental illness, (Pl. Compl. ¶ 1) and that from November 2, 2001 to March 22, 2002, she was too ill to function and was a patient in a mental counseling program. (Pl.'s Ex. 5). In addition, Plaintiff maintains that she notified the Postal Service of her illness on November 2, 2001, the first day of her absence, by calling a supervisor at the Postal Service, explaining what was going on with her, and asking for Family and Medical Leave Act (FMLA) forms. (Pl. Br. 7). Plaintiff further alleges that she never received these forms as they were returned to the Postal Service as undelivered. (Pl.'s Br. 8)

  On March 28, 2002, Plaintiff filed a grievance with the Postal Workers Union claiming she was wrongfully terminated. (Def.'s Ex. 12.) Her grievance was denied because it was deemed untimely. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (EEOC) on May 9, 2002. (Def's Ex. 15-17). The EEOC dismissed her complaint of discrimination as untimely on July 26, 2002. (Def's. Ex.18-21). Plaintiff appealed the EEO decision which was also dismissed. (Def's Ex. 31). Having attempted to exhaust her administrative remedies, Plaintiff filed the instant complaint in this Court on July 8, 2003.


  To be successful on a Fed.R.Civ.P. 56 motion for summary judgment, a party must prove that in considering the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, . . . there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c). An issue is "material" if the dispute may affect the outcome of the suit under the governing law and "genuine" if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S 242 248 (1986).

  Summary judgment should be granted ". . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If, in response to a properly supported motion for summary judgment, an adverse party merely rests upon the allegations or denials in their pleading, and fails to set forth specific, properly supported facts, summary judgment may be entered against her. See Fed.R.Civ.P. 56(e).

  Of course, a court must draw all reasonable inferences in favor of the party against whom judgment is sought. See American Flint Glass Workers, AFL-CIO v. Beaumont Glass Company, 62 F.3d 574, 578 (3d Cir. 1995). DISCUSSION

  Plaintiff filed this action claiming that she was a victim of gender (Female), religious (Christian) and disability (Panic Attacks, Major Depression and Post Traumatic Stress Disorder) discrimination in violation of Title VII of the Civil Rights Act of 1964, and the American Disabilities Act. Plaintiff maintains that, from July 6, 2001 through November 1, 2001, her supervisor made inappropriate comments regarding her Christianity, (Pl.'s Br. 2) and that she suffered sexual discrimination when, because of her babysitting needs, she was removed from her job and replaced by a man. (Pl.'s Br. 3). Furthermore, Plaintiff claims that the Postal Service wrongfully terminated her in violation of American disabilities Act, even though she had put the Postal Service on notice that she was suffering from mental illness. (Pl.'s Br. 6). Plaintiff contends that she has exhausted all her required administrative remedies under the Employment EEOC Regulations before filing this lawsuit, for as a federal employee she can only seek judicial relief after exhausting all her administrative remedies. Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).

  Defendant has moved for Summary Judgment arguing that Plaintiff's claim was untimely because she failed to contact the Postal Service's EEO Counselor within the mandatory period of forty-five days (45) after the occurrence of the alleged discriminatory conduct of termination. Under EEOC Regulations, an aggrieved federal employee must contact an EEO Counselor within 45 days of the alleged occurrence of discrimination. See 29 C.F.R. § 1614.105(a)(1). Plaintiff was terminated on February 11, 2002, and did not contact an EEO counselor until May 9, 2002, which was eighty-seven days after her termination.

  However, under C.F.R. § 1614.105(a)(2) the EEOC may extend the 45-day time limit when the individual shows that she was not notified of the time limits, or was not otherwise aware of them, or that she was prevented by circumstances beyond her control from submitting the matter within the time limits. While Plaintiff concedes that the 45-day limitation applies to her claim and that she filed her grievance outside the time limit, she argues that she meets the independent criteria for an extension of the time limit under 29 C.F.R. § 1614.105(a)(1). Specifically, Plaintiff argues that: (1) she was not notified or otherwise aware of the time limit for contacting the EEO Counselor because she did not see any EEO notices at, the Freeman Hankins Station, her place of work; 2) she did not know that she had been terminated and discriminated against based on disability until she spoke again to her Union representatives on March 22, 2002; and (3) her mental disability prevented her from understanding what her rights were and from contacting the counselor within the time limits.

  Defendant insists that Plaintiff cannot benefit from the time extension because she had received constructive notice of the EEO time limits by virtue of EEO notice posted around Freeman Hankins Station. (Def.'s Ex.14). Defendant further argues that Plaintiff's apparent failure to see this poster is not grounds for tolling these time periods. Defendant, also, argues that Plaintiff's mental illness did not prevent her from managing her affairs and did not render her unable to pursue her legal right. As evidence, Defendant points to Plaintiff's contacts with the Union on December 3, 2001, where she informed the Union of what was happening to her ...

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