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United States District Court, E.D. Pennsylvania

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 medically, and again, on March 21, 2001, when she spoke to her Union Representative again to find out whether she had been separated from the Postal Service. (See Pl.'s Br. 9)

  1. Failure to see EEO Poster

  On the issue of whether plaintiff was aware of the administrative procedures necessary to file an EEO claim, it is established that mere ignorance of the existence of a poster or a time period for initiating administrative complaints of discrimination is not grounds for tolling the time period. Butz v. Hertz Corp., 554 F. Supp. 1178, 11181-82 (W.D. Pa. 1983). The Third Circuit in an analogous case under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., stated that "if the employer complied with the relevant posting regulations, an employee's assertion that he never saw any notices should not itself require tolling of the 180 day period in which to file a notice of intent to sue." Bonham v. Dresser Industries., 569 F.2d 187,193 n. 7 (3d Cir. 1977), cert. denied, 439 U.S 821 (1978); see also Byers v. Follmer Trucking Co., 763 F.2d 599, 601 (3d Cir. 1985). Plaintiff has not alleged that the Postal Service has failed to comply with the posting regulations; she alleges that she did not see the posters (Pl.'s Br. 16). .

  However, the evidence of record contains an affidavit from Manager Joseph Stewart which states that EEO Poster #72 has been on display at the Freeman Hankins Station since May 2000. The poster informs the individual of the 45 day time limit for contacting an EEO Counselor after the alleged discriminatory Act. In addition, the EEO Poster notifies the individual of the specific address and telephone number of the designated local EEO office. (Def.'s Ex 2 -Aff. of Joseph Stewart). Accordingly, this Court will not toll the time period for Plaintiff's apparent failure to see the posters.

  2. Plaintiff's Mental Illness

  On the issue of whether plaintiff's mental sickness and attendance in an outpatient counseling program at the relevant time qualifies to equitably toll her claim, courts have held that the time limit for presenting an administrative complaint is not jurisdictional but is akin to a statute of limitations and thus subject to equitable tolling, waiver or estoppel. See Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 1982). (regarding EEOC regulations); Irwin v. Department of Veteran Affairs, 498 U.S 89, 95-96, 111 S. Ct.453, 112 (1990) (regarding Title VII); 29 C.F. R § 1614.105(a)(2) (allowing equitable tolling).

  The Third Circuit in Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1993) set forth the standard that needs to be met by a plaintiff seeking equitable tolling as follows:

We have instructed that there are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum
Oshiver, 38 F.3d at 1387.

  Plaintiff argues that she satisfies the second prong of this standard, in that the extraordinary circumstances of her mental illness justify equitable tolling. Various courts have held that a statute of limitations is tolled by reason of mental illness. See, e.g., Graham v. Kyler, No. 01-1997, 2002 U.S Dist. LEXIS 26639 (E.D Pa October 31, 2002); Nunally v. MacCausland, 996 F.2d 1, 6 (1st. Cir. 1993) (limitation period may be tolled for schizophrenic plaintiff if her mental condition "disordered her ability to reason and function" and rendered her incapable of . . . pursuing her claim"); Biester v. Midwest Health Serv., 77 F.3d 1264, 1268 (10th Cir. 1996) (exceptional circumstances justifying equitable tolling include "an adjudication of incompetence, institutionalization for mental incapability or other evidence that the individual is not capable of pursuing his own claims."); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (a pro se petitioner could not pursue his legal rights because of his "mental incompetency combined with forced confinement and medication, no access to legal materials, and the temporary loss of his glasses.)

  On the other hand, some courts have only recognized mental illness as a ground for equitable tolling in rather extreme circumstances, where the illness in fact prevents the sufferer from managing his affairs and therefore from understanding and acting upon his legal rights. Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996), cert denied 117 S. Ct 316 (1996). See also Speiser v. U.S. Dep't of Health and Human Services, 670 F. Supp. 380, 384 (D.D.C. 1986) (plaintiff may not toll time for lodging complaint with EEO Counselor because of mental disorder where she cannot demonstrate inability to mange her affairs or comprehend her legal rights), aff'd 818 f.2d 95 (D.C. Cir. 1987); Decrosta v. Runyon, 1993 WL 117583 (N.D.N.Y, Apr. 14, 1993) (Handicap discrimination plaintiff with "major depressive" disorder may not toll time for contacting EEO Counselor where condition did not impede ability rationally to think and function).

  The Third Circuit has not set forth any standard for determining when equitable tolling is justified on the basis of mental deficiency affecting ability to make a timely filing but has held that mental incompetence is not per se a reason to toll the statute of limitations in federal actions. See e.g., Barren v. United States, 839 F.2d 987 (3d Cir. 1988) (mental incompetence is not reason per se to toll statute of limitations under Federal Tort claims Act). In light of Barren, it is obvious to this Court that a mental deficiency is not per se grounds for tolling, but that a court must consider all relevant factors in determining whether under the circumstances, the mental incompetence had an effect on the ability to file. See also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (limitation period tolled for extraordinary circumstances over which inmate had no control, but requires inmates to diligently pursue claims.)

  In this instance, Plaintiff argues that equitable tolling should apply in her case, as her mental illness did not allow her to "follow up with her Union concerning her termination until March 21, 2002" (Pl.'s Br. 10). Plaintiff provides evidence to prove that she suffers from mental illness. She submits a letter form her doctor at Thomas Jefferson University Hospital which explained that her diagnoses was major depression with psychosis, and post traumatic stress disorder. The doctor's note further explained that her "symptoms have been severe and incapacitating, including profound depressed mood, crying, paranoia, inability to focus or concentrate, and extreme distractibility" (Pl.'s Ex. 5). She also maintains that her employer was aware of her illness as she had suffered episodes of mental crisis at work several times. (Pl.'s Br. 7). Furthermore, she contends that her doctor had faxed all her medical evidence to the medical unit of her employer on January 11, 2002, a month before she was terminated from her job on February 11, 2002. (Pl.'s Br. 9).

  The evidence clearly indicates that Plaintiff's mental illness was debilitating and the Defendant was put on notice at least 30 days before terminating Plaintiff. The letter from Jennifer Lambert, psychologist, states that Plaintiff's symptoms are "severe in nature and have markedly compromised her functioning." (Pl.'s. Ex. 5). Between November 16, 2001 and April 1, 2002, Plaintiff was hospitalized four times. (Pl.'s Ex. 1-5). On November 16, 2001, Plaintiff was sent to Thomas Jefferson University Hospital for treatment. Plaintiff was rushed back to the emergency room at the same hospital on November 19, 2001. On November 28, 2001, Plaintiff began a comprehensive five-day a week program at the same hospital. She stayed in the program until January 2002. She went back again for a five day intensive acute care program on March 26, 2002. Even when she was not hospitalized, she was still under medical care. Dr. Cosgrove of Jefferson Hospital writes that she has been under his care in the Comprehensive Treatment program since January 2002. (Pl.'s Ex. 4). Furthermore, the Postal Service had constructive notice of Plaintiff's mental illness and the medical crisis she was experiencing. Plaintiff had "episodes of mental illness at work and had been referred to the Postal Service Crisis Intervention Unit" several times by her employer. (Pl.'s Br. 15). On November 2, 2001, the first day of her absence, Plaintiff gave Defendant an indication of what was happening to her when she called work to let Defendant know what was going on with her medically, and to ask for FMLA forms. The FMLA forms were sent out by Defendant, but were however, returned as undelivered. (Pl.'s Br. 8). Plaintiff psychiatrist, Dr Stockton, faxed patient's medical records to Defendant on January 11, 2002, a month before the Post Service terminated her on February 11, 2002. The evidence of mental illness clearly justifies denying the pending Motion for Summary Judgment.


  An untimely complaint should be dismissed in accordance with 29 C.F.R. § 1614.107(a)(2) however, this Court concludes that: 1) based on aforementioned evidence, Plaintiff was prevented from exercising her rights due to illness; 2) due to Plaintiff's illness, the statute of limitations is tolled and as such 3) Plaintiff claim is not barred. An appropriate Order follows: ORDER

  AND NOW, this ____ day of July 2004, upon consideration of Defendant's Motion for Summary Judgement (Docs. 7, 12), Plaintiff's Response thereto, (Doc. 11), IT IS HEREBY ORDERED that Defendant Motion for Summary Judgment is DENIED.


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