POLITO v. DEJOY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

MICHAEL POLITO, )

) Civil Action No.:

) 2:24-CV-00201-MRH-CBB

Plaintiff, )

)

vs. ) Mark R. Hornak

) Chief United States District Judge

LOUIS DEJOY, )

)

) Christopher B. Brown

Defendant. ) United States Magistrate Judge

REPORT AND RECOMMENDATION

on ECF No. 6

CHRISTOPHER B. BROWN, United States Magistrate Judge.

I. Recommendation

This civil action was initiated by Plaintiff Michael Polito, a former letter

carrier employed by the United States Postal Service (“USPS”), against Postmaster

General Louis DeJoy for failing to provide reasonable accommodations under the

Rehabilitation Act, 29 U.S.C. § 701 et seq. (“Rehab Act”).

The Court has subject matter jurisdiction under 28 U.S.C. § 1331 which gives

original subject matter jurisdiction to federal courts in civil cases arising under the

Constitution, laws or treaties of the United States.

Presently pending before the Court is Defendant’s motion to dismiss for

failure to exhaust administrative remedies. ECF No. 6. The motion is fully briefed

and ripe for consideration. ECF Nos. 7, 14, 15. For the reasons that follow, it is

respectfully recommended that the Court grant in part and deny in part

Defendant’s motion to dismiss and the parties may raise the issues regarding

equitable tolling and Polito’s adequate notice following the completion of discovery

at the appropriate procedural juncture.

II. Report

a. Background

Polito was employed by the USPS as a letter carrier from September 1, 2018

until on or about October 31, 2022. ECF No. 1 at ¶ 4. On or about February 18,

2021, Polito was admitted to the hospital where he was diagnosed with a serious

medical condition which rendered him unable to work for an extended period of

time. Id. at ¶ 5. In May 2021, USPS placed Polito on “leave without pay” status. Id.

at ¶ 6. In June 2021, Polito informed his union president, Ted Lee, that his doctors

were optimistic that he would be able to return to work and requested advanced

sick leave, donated annual leave or leave share. Id. at ¶ 7. Lee did not respond to

Polito’s email. Id.

In May 2022, Polito attempted to contact USPS Labor Relations Specialist

Ekaterina Efimova to inform her that he wished to pursue a reasonable

accommodation and called her three separate times. Id. at ¶ 9. Each time the USPS

employee who answered the phone took his information and told him that someone

would call him back, but no one ever returned his call. Id. Thereafter, a former

supervisor helped Polito contact Adam Davis, the Chair of the Reasonable

Accommodation Committee (“RAC”). Id. at ¶ 10. In August 2022, Polito met with

the RAC and informed the members of the Committee that he could not work

outdoors due to his medical condition and requested reassignment to an indoor

position. Id. at ¶ 11. At this meeting, the USPS nurse asked Polito to provide a

letter from his rheumatologist concerning his condition and his physician agreed to

provide the letter but wanted to first speak with the RAC nurse. Id. at ¶ 12. Polito’s

physician attempted to contact the RAC nurse, but the nurse did not return Polito’s

physician’s calls. Id.

In September 2022, Davis sent Polito a letter informing him that “the

information provided by your medical provider on May 6, 2022 did not state you

were released to return to work with restrictions.” Id. at ¶ 13. Polito does not know

what information, if any, his medical providers gave to the USPS on May 6, 2022.

Id. at ¶ 14. Davis’s letter provided Polito with the option “to allow the RAC medical

consultant to contact your medical provider directly for additional information or

clarification as it specifically relates to your request for reasonable accommodation.”

Id. at ¶ 15. Polito completed and signed all the authorizations to do so for each of

his four physicians and faxed these forms to the USPS on September 15, 2022. Id.

at ¶ 17.

On October 31, 2022, Polito received a “Notice of Separation Disability” from

USPS stating his employment would be terminated in thirty days. Id. at ¶ 18. The

letter stated “[t]he Reasonable Accommodation Committee invited you to

participate in the RA interactive process. By a letter dated September 6, 2022, you

were informed the information provided by your medical provider was insufficient.

As of October 3, 2022, RAC has not received the updated documentation and closed

your case.” Id. at ¶ 19. Polito was never informed that the RAC had not received

sufficient information from his physicians, nor was he informed that RAC closed his

case. Id. at ¶ 20. Polito asked his physicians what information they provided to

USPS and all his physicians informed him that USPS had not contacted them or

requested any information about Polito. Id. at ¶ 21. The October 31, 2022 letter did

not inform Polito of his right to file a discrimination complaint with the USPS EEO

Office or that a failure to do so within 45 days would result in the forfeiture of his

rights, nor did Polito ever see any notices in his place of employment informing him

of his EEO rights and believes no such notices were posted. Id. at ¶¶ 22-23.

On November 7, 2022, Polito contacted Lee regarding the termination letter

and the reasonable accommodation process. Id. at ¶ 26. Lee requested copies of

Polito’s documentation, which Polito sent, and Lee never responded. Id. Polito

thereafter attempted to call and email both Davis and Lee numerous times but

never received a response. Id.

On November 29, 2022, Polito’s medical provider, Dr. Ellen Carrington, sent

a letter to Davis stating that she had access to Mr. Polito’s medical records and that

“It would be unfair to subject undue financial and psychological hardship on

Michael Polito. I can only hope that you reconsider your decision not to give this

gentleman reasonable work accommodation or disability should he be eligible.” Id.

at ¶ 28. Davis never contacted Polito about this letter, nor did David ever respond

to the letter in any way. Id. at ¶ 29.

On December 16, 2022, Polito sent Davis the following letter stating, inter

alia,

On Your letter dated 9-6-22 it states I may choose an RAC medical

consultant to contact my medical provider if I complete sections 1

& 3 of PS Form 2488. So I faxed the post office on 9-15-22 as you

requested 4 authorizations for 4 different doctors to obtain my

medical info. I have included all the documents.

The separation letter dated 10-31-22 states my medical information

was insuffient (sic). What documents were insuffient (sic)? I was

never told what these documents were.

I talked to both my insurance companies past and present and they

were never contacted by the USPS. I talked to all 4 doctors I gave

permission to obtain my medical records from and all 4 doctors were

never contacted by the USPS. So I have no clue what information

you're talking about and the info should have been brought to my

attention. I did everything I was asked to but it seems your side did

not do its job.

Id. at ¶ 30. Polito sent a copy of this letter to Lee and did not receive a response

from Lee or Davis. Id. at ¶ 31.

On January 18, 2023, Polito received a “Notice of Debt Determination” and

“Invoice” stating that he owed the USPS $1,490.78 for “overdrawn annual and/or

sick leave.” Id. at ¶ 32. On February 21, 2023, Polito sent a letter to HR Manager

Lori Price explaining the history of his illness, informing her that he could not

possibly pay the invoice he had received and explaining that the USPS had not

contacted his physicians despite having received signed released within the

deadline provided by Davis. Id. at ¶ 33. Price did not respond to this letter. Id.

Polito called Price multiple times and left messages asking about the process for

challenging his termination and she did not return his calls. Id. at ¶ 34.

In March 2023, Polito contacted Pennsylvania State Senator Jay Costa

detailing his situation and was advised to file a complaint with the USPS EEO

Office. Id. at ¶ 36. Polito submitted a complaint to the USPS EEO Office on July

31, 2023 who then dismissed his complaint on November 20, 2023 for not contacting

the USPS EEO Office within 45 days of his termination. Id. at ¶¶ 37-38. In the

dismissal, the agency explained it was required to extend the 45-day deadline if

Polito “showed that he . . . was not notified of the time limits and was not otherwise

aware of them,” but that it was not required to in this instance because Polito “did

not claim that [he was] unaware of the time limit for contacting an EEO Counselor

and the record contains an affidavit attesting to the fact that the EEO poster [was]

appropriately displayed at [his] facility.” ECF No. 7-5 at 4.

Polito filed this action on February 19, 2024 alleging USPS failed to

reasonably accommodate him for his disability in violation of the Rehab Act and

asserts claims for discrimination and retaliation.

b. Standard of Review – Fed. R. Civ. P. 12(b)(6)

The applicable inquiry under Fed. R. Civ. P. 12(b)(6) is well settled. A

complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief;” Fed. R. Civ. P. 8(a)(2), and can be dismissed for “failure

to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). A

defendant bears the burden of showing a plaintiff's complaint fails to state a claim.

See Gould Elecs. Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).

To survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell A. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A complaint must be dismissed if it merely alleges

entitlement to relief without supporting facts. Fowler v. UPMC Shadyside, 578 F.3d

203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the

pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of’ the necessary element.’” Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.

at 556). The court need not accept as true “unsupported conclusions and

unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d

173, 183–84 (3d Cir. 2000), nor a plaintiff's “bald assertions” or “legal conclusions.”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The court’s role

is limited to determining whether a plaintiff is entitled to offer evidence in support

of their claims – not if they will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232,

236 (1974) (overruled on other grounds).

In deciding a motion to dismiss, a court may consider the allegations in the

complaint, exhibits attached to the complaint, matters of public record and any

document “integral to or explicitly relief upon in [framing] the complaint.” Schmidt

v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (cleaned up). If a court considers other

matters outside of this list, the motion must be converted to a motion for summary

judgment after giving the parties a reasonable opportunity to present all material

discovery relevant to a summary judgment motion before the Court’s decision. Fed.

R. Civ. P. 12(d). Where a defendant seeks to dismiss a complaint for failure to

exhaust administrative remedies, courts may consider EEO documents which are

fundamental to the allegations of the complaint. Smith v. Pallman, 420 Fed. Appx.

208, 213 (3d Cir. 2011)(unpublished). While Polito did not attach a copy of the

agency’s dismissal letter to his complaint, it is proper to consider the letter provided

by Defendants as it is fundamental to the allegations in Polito’s complaint.

c. Discussion

Defendant moves to dismiss Polito’s complaint on the basis that he failed to

timely exhaust administrative remedies and there is no basis for tolling or

otherwise extending the deadline. ECF No. 7 at 1. Polito responds that the deadline

to exhaust should be extended pursuant to 29 C.F.R. § 1614.105(a)(2) and that

equitable tolling applies. ECF No. 14 at 5-7; 7-9.

“It is a basic tenant of administrative law that a plaintiff must exhaust all

administrative remedies before bringing a claim for judicial relief.” Robinson v.

Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Federal employees must exhaust

administrative remedies for claims brought under the Rehab Act. Freed v. Consol.

Rail Corp., 201 F.3d 188, 191 (3d Cir. 2000) (“persons can sue a federal employer for

injunctive relief and/or damages for violating section 501 [of the Rehab Act] but are

required to exhaust administrative remedies.”). “[A] plaintiff’s failure to timely

exhaust administrative remedies bars his subsequent claim in federal court.” Harris

v. Postmaster Gen. of U.S., No. 21-1589, 2022 WL 336999, at *1 (3d Cir. Feb. 4,

2022)(unpublished).

Federal regulations supply the regulatory scheme for exhausting

administrative remedies for such claims and require an employee who believes they

have been discriminated against on the basis of an enumerated protected class –

including for a disability or related medical condition – to “consult a[n EEO]

Counselor prior to filing a complaint in order to try to informally resolve the

matter.” 29 C.F.R. § 1614.105(a). An employee “must initiate contact with a

Counselor within 45 days of the date of the matter alleged to be discriminatory or,

in the case of a personnel action, within 45 days of the effective date of the action.”

29 C.F.R. § 1614.105(a)(1).

The 45-day time limit is not jurisdictional and rather considered an

“affirmative defense in the nature of statute of limitations.” Williams v. Runyon,

130 F.3d 568, 573 (3d Cir. 1997). This 45-day time limit is a “prudential exhaustion

requirement” Wilson v. MVM, Inc., 475 F.3d 166, 175 (3d Cir. 2007), subject to the

equitable legal defenses of waiver, estoppel, and tolling. 29 C.F.R. § 1614.604(f). In

addition, the federal regulations provide for statutory tolling of the 45-day time

limit as follows:

The agency or the Commission shall extend the 45–day time limit in

paragraph (a)(1) of this section 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 been 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.

29 C.F.R. § 1614.105(a)(2).

Because these exhaustion requirements are akin to a statute of limitations

and not jurisdictional, the defendant bears the initial burden of proving the lack of,

or untimely exhaustion. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Bowden v.

U.S., 106 F.3d 433, 437 (D.C. Cir. 1997). Once that burden has been met, “the

obligation shifts to the plaintiff to support avoidance of the exhaustion bar, such as

by asserting equitable defenses.” Hill v. Garland, No. CV 19-3389 (JEB), 2021 WL

965624, at *4 (D.D.C. Mar. 15, 2021) (citing Bowden, 106 F.3d at 437).

To this end, it is undisputed that Polito received notice that his employment

would be terminated on October 31, 2022 and he did not contact an EEO counselor

until July 31, 2023 – more than seven months after the 45-day deadline to contact

an EEO counselor expired. ECF No. 1 at ¶¶ 18, 37. Polito therefore did not timely

exhaust his administrative remedies with respect to the claims he now brings in

federal court and relies on tolling principles to excuse his failure to exhaust. ECF

No. 1 at ¶ 44; ECF No. 14 at 5. Polito’s arguments for tolling are twofold: First, he

is entitled to statutory tolling under 29 C.F.R. § 1614.105(a)(2), and second, he is

entitled to equitable tolling. ECF No. 14 at 5-9. Polito maintains that USPS never

informed him of the 45-day deadline for contacting the EEO Office and he was not

otherwise aware of that deadline. Id. Naturally, Defendant disagrees that Polito is

entitled to tolling and gives several reasons against so finding: Polito waived his

right to assert lack of notice as a defense because he did not raise this excuse during

the administrative process; Polito does not establish that he lacked sufficient notice;

and there is no basis for equitable tolling. ECF No. 7 at 9-15.

Polito Has Not Demonstrated He is Entitled to Statutory Tolling Under 29

C.F.R. § 1614.105(a)(2)

Polito first maintains he is entitled to statutory tolling under the applicable

regulations because he was not notified or otherwise aware of the time limits which

requires an extension of the 45-day deadline. ECF No. 14 at 5

Defendant responds that Polito waived his “lack of notice” argument for an

extension of the 45-day deadline because he did not present this argument to the

EEO in the first instance, and he cannot raise it for the first time in federal court.

ECF No. 7 at 9-10. Defendant’s argument is persuasive and mirrors what several

other courts addressing the issue have found. Deference to Congress’s intention to

vest federal agencies with the responsibility of investigating and resolving

complaints of discrimination in the workplace and fairness to the agency “demand

that courts decline to consider arguments for tolling the 45-day deadline [of 29

C.F.R. § 1614.105] not initially pressed or passed upon during administrative

proceedings[.]” Hill, 2021 WL 965624, at *5. The conclusion that a plaintiff waives

a tolling argument not brought before the EEO in the first instance is further

supported by the statute itself which requires the “agency or Commission” to extend

the 45-day deadline “when the individual shows” a lack of notice. 29 C.F.R. §

1614.105(a)(2) (emphasis added). See also Hill, 2021 WL 965624, at *5 (“This Court

cannot find that the agency should have relaxed that deadline when Plaintiff did

not even inform it of the precise basis she now claims entitled her to an extension.”)

Several courts that have addressed this issue have similarly found a plaintiff

waives his argument to excuse the untimely initiation of his claim with the EEO

counselor for inadequate notice of the 45-day deadline where he does not first raise

it during the administrative process. Hill, 2021 WL 965624, at *5 (plaintiff waived

argument that she lacked notice of the 45-day time limit imposed by 29 C.F.R. §

1614.105(a)(2) by not raising it during the administrative process); Doe v. Brennan,

980 F. Supp. 2d 730, 736 (E.D. Va. 2013) (“[w]here a plaintiff does not affirmatively

raise the issue that he lacked notice and should be entitled to an extension during

the administrative process, he has waived that notice argument in an appeal in

federal court.”); Nicosia v. Mabus, No. 7:16-CV-29-D, 2016 WL 4767537, at *2

(E.D.N.C. Sept. 13, 2016) (“[A] plaintiff seeking to extend the 45-day deadline under

29 C.F.R. § 1614.105(a)(2) first must have presented all facts supporting such an

extension to the agency and may not raise new arguments for the first time in a

judicial filing in federal court.”); Winston v. Clough, 712 F. Supp. 2d 1, 9–10 (D.D.C.

2010) (plaintiff waived argument that he lacked constructive notice of the 45-day

time limit imposed by 29 C.F.R. § 1614.105(a)(2) by not raising it during the

administrative process). This Court has found no cases which expressly find that a

court can grant an extension under 29 C.F.R. § 1614.105 for a lack of notice where

the plaintiff has not first raised the issue at the administrative level and the Court

is constrained not to do so here.1

Polito also counters that he was not “obligated to address entitlement to an

extension” during the administrative proceedings because Defendant did not raise

the 45-day time limit as an affirmative defense during those proceedings. ECF No.

14 at 6. According to Polito, only after a defendant “has pled and proven that

plaintiff failed to exhaust” would the burden shift to Polito to avoid exhaustion.

ECF No. 14 at 6. While Polito is technically correct that the failure to exhaust

administrative remedies is an affirmative defense for which the defendant has the

initial burden to plead and prove – failure to exhaust administrative remedies is a

legal defense applicable in the context of a lawsuit, and not during the

administrative process. Moreover, the plain text of 29 C.F.R. § 1614.105(a)(2)

places the burden of raising an inadequate notice argument on the “individual” to

raise during the administrative proceedings, not the agency or Commission. To the

extent Polito implicitly argues Defendant forfeited its failure to exhaust defense by

not raising it during the administrative process, an agency does not waive such a

defense where, as here, the agency’s administrative decision dismissed the claim as

1 While Polito cites two cases to support his position that courts do in fact have this authority,

Bittermann v. Zinke, 465 F. Supp. 3d 1185, 1197 (D.N.M. 2020) and Hatcher v. Potter, No. CIV.A. 04-

2130, 2005 WL 3348864 (E.D. Pa. Dec. 7, 2005), neither case squarely decided the issue of waiver by

a plaintiff in this context. While Bittermann indicated it was deciding the statutory tolling issue “in

the first instance,” it was doing so because the agency “did not explicitly find that the Bittermans

were entitled to equitable tolling, nor did it make any findings on their claims on the merits.”

Bittermann, 465 F. Supp. 3d at 1196. The decision is entirely silent as to whether the Bittermanns

affirmatively raised the equitable tolling argument during the administrative process. Hatcher is

likewise silent as to whether plaintiff affirmatively raised a statutory tolling argument during the

administrative process, and only affirmed the agency’s dismissal of plaintiff’s claims based on

untimeliness. 2005 WL 3348864 at *4-*5.

untimely. Sierra v. Hayden, 254 F. Supp. 3d 230, 240–41 (D.D.C. 2017); Hill, 2021

WL 965624, at *4.

For these reasons, Polito has failed to show that he is entitled to statutory

tolling under 29 C.F.R. § 1614.105(a)(2).

Dismissal Based on Equitable Tolling is Premature

In addition to the statutory extension, the 45-day time limit to initiate

contact with a counselor after the alleged discriminatory act is subject to equitable

tolling. 29 C.F.R. § 1614.604. Polito maintains that he is invoking equitable tolling

because “[i]t would be manifestly unjust to rigidly apply the 45-day time limit for

contacting an EEO counsellor [where he] diligently and timely raised his claims

with people who he reasonably expected to address such matters (i.e. the Chair of

the Reasonable Accommodation Committee, his Human Resources Manager and his

Union President.).” ECF No. 14 at 8. Polito further argues that he “raised his

claims in the incorrect forum only because Defendant failed to comply with its

statutory obligations and withheld basic information about the complaint process.

It would be inequitable to dismiss [his] complaint because he did not comply with

procedural steps which he specifically requested and which Defendant was

obligated to provide.” Id.

Because the 45-day deadline is not jurisdictional, courts may permit

equitable tolling in the following limited circumstances: “(1) where the defendant

has actively misled the plaintiff respecting the 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.” Hedges v. U.S., 404 F.3d 744, 751 (3d Cir. 2005) (cleaned up).

Equitable tolling is an “extraordinary remedy” that should be granted “sparingly.”

Id. (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)). For equitable

tolling to apply, the plaintiff must have exercised due diligence to preserve his claim

and the party asserting the exception – here, Polito – bears the burden to show he

or she is entitled to tolling. Irwin, 498 U.S. at 96.

Polito implies he was misled because Defendant withheld basic information

about the EEO complaint process, causing him to miss the 45-day deadline. While

he does not explicitly so argue, in essence, Polito maintains he did not receive

adequate notice of his right to contact the EEO counselor regarding his termination

and is entitled to equitable tolling. While Polito cites to no case law to support this

position, out of an abundance of caution to ensure Polito is not disenfranchised of

his rights by operation of the 45-day limitation – the Court will address this issue.2

2 Polito largely argues he is entitled to equitable tolling because he raised his claims in the

incorrect forum. This argument summarily fails, as there are no allegations to plausibly suggest

that he asserted any rights in any forum. See Bourdeau v. Nicholson, No. 06-CV-2896, 2007 WL

9812955, at *2 n. 3 (E.D. Pa. Mar. 28, 2007) (plaintiff’s claim for disability discrimination under the

Rehab Act was equitably tolled under the “incorrect forum” factor where plaintiff timely filed suit in

state instead of federal court). The Court is not convinced – and Polito has cited to no applicable

legal authority for the proposition – that raising employment concerns with organizational leaders

constitutes asserting legal rights in a forum sufficient to trigger equitable tolling. While Polito

asserts a lack of notice argument as grounds for statutory tolling, he does not explicitly make that

argument for equitable tolling, despite the existence of binding authority requiring the court to

consider adequate notice as a factor to apply equitable tolling.

“The Supreme Court has held that equitable tolling may be appropriate when

a claimant received inadequate notice of her right to file suit[.]” Seitzinger v.

Reading Hosp. and Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) (citing Baldwin

County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). Several courts have

extended this principle in the employment discrimination context to include

instances where an employee receives inadequate notice of the applicable time

limits for filing administrative claims, including for inadequate notice of the 45-day

deadline to report discrimination or retaliation to the EEO counselor under 29

C.F.R. § 1614.105(a)(1). Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997); Doe

v. DeJoy, No. 5:19-CV-05885, 2020 WL 6482545, at *10 - *11 (E.D. Pa. Nov. 4, 2020)

(considering actual and constructive notice of the 45-day deadline); Hatcher v.

Potter, No. CIV.A. 04-2130, 2005 WL 3348864, at *5 (E.D. Pa. Dec. 7, 2005), aff'd,

196 Fed. Appx. 120 (3d Cir. 2006)(unpublished); Dougherty v. Henderson, 155 F.

Supp. 2d 269, 275 (E.D. Pa. 2001).

“[W]hether a particular party is eligible for equitable tolling generally

requires consideration of evidence beyond the pleadings,” and commonly cannot be

resolved on a Fed. R. Civ. P. 12(b)(6) motion. In re Community Bank of N. Virginia,

622 F.3d 275, 301 (3d Cir. 2010), as amended (Oct. 20, 2010). See also Doe, 2020 WL

6482545, at *10 - *11 (declining to decide whether plaintiff had notice of the 45-day

deadline under 29 C.F.R. § 1614.105(a)(1) at the motion to dismiss stage); Hatcher,

2005 WL 3348864, at *5 (deciding notice of the 45-day deadline under 29 C.F.R. §

1614.105(a)(1) on summary judgment after an evidentiary hearing); Dougherty, 155

F. Supp. 2d at 275 (deciding notice of the 45-day deadline under 29 C.F.R. §

1614.105(a)(1) on summary judgment). But see Villalobos v. Vilsack, No. C 12-138

MEJ, 2012 WL 4674056, at *9 (N.D. Cal. Oct. 1, 2012) aff'd, 601 Fed.Appx. 551 (9th

Cir. 2015) (deciding notice issue on a motion to dismiss where it was undisputed

plaintiff had actual notice of the 45-day deadline).

A determination of whether Polito is entitled to equitable tolling because he

did not receive adequate notice of the 45-day deadline to contact the EEO counselor

regarding his allegations of discrimination and retaliation would be a fact-intensive

inquiry not suitable for resolution at this stage. Polito maintains, and Defendants

do not dispute, that his termination letter did not include any notice of his right to

contact the EEO within 45 days, which is enough at this stage that discovery may

reveal Polito did not have adequate notice of this deadline and equitable tolling may

apply. While it is disputed whether Polito had constructive notice of the deadline

because his EEO rights were posted at his worksite, this is not an issue to resolve at

this stage. See Doe, 2020 WL 6482545, at *11 (declining to consider issue of

constructive notice of EEO rights on a motion to dismiss where posters setting forth

those rights were posted at the workplace). Therefore, it is respectfully

recommended that Defendant’s motion to dismiss be denied in this respect as the

issues regarding equitable tolling and Polito’s adequate notice are better decided

with the benefit of a completed record at the appropriate procedural juncture.

III. Conclusion

Based on the foregoing, it is respectfully recommended that Defendant’s

motion to dismiss be granted in part and denied in part and the issues regarding

equitable tolling and Polito’s adequate notice may be raised following the

completion of discovery at the appropriate procedural juncture.

Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Fed. R. Civ. P. 72,

and the Local Rules for Magistrates, the parties have until February 25, 2025 to

object to this report and recommendation. Unless otherwise ordered by the District

Judge, responses to objections are due fourteen days after the service of the

objections. Failure to file timely objections will waive any appellate rights.

Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

DATED this 11th day of February, 2025.

Respectfully submitted:

s/Christopher B. Brown

United States Magistrate Judge

cc: Hon. Mark R. Hornak

Chief United States District Judge

via CM/ECF electronic filing

Counsel of record

via CM/ECF electronic filing