Bell v. United States , 880 F. Supp. 2d 24 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
LATANNYA BELL, )
)
Plaintiff, )
) Civil Action No. 11-1804
v. )
)
UNITED STATES, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Plaintiff LaTannya Bell brings this action alleging racial
and gender discrimination in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,
against defendant Martha Johnson, Administrator of the U.S.
General Services Administration (“GSA”). Pending before the
Court is defendant’s Motion to Dismiss. Upon consideration of
the Motion, the response and reply thereto, the applicable law,
and the entire record, the Court GRANTS defendant’s Motion.
I. BACKGROUND
Plaintiff, an African-American female, has been employed by
defendant at the GSA since 1984. On January 3, 2008, plaintiff
filed a formal complaint of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that
defendant took a variety of adverse actions against her because
of her race, sex, and color. Pl.’s EEOC Compl., Dkt. No. 6-1.
In a supporting affidavit prepared on March 18, 2008, plaintiff
claimed that she was intimidated, threatened with being placed
on Absent Without Leave status, forced to attend a meeting, and
denied use of sick leave. Pl.’s Aff. in Supp. of EEOC Compl.,
Dkt. No. 6-1. On September 8, 2010, EEOC Administrative Judge
McKnight issued judgment for the GSA, concluding that plaintiff
failed to establish a genuine issue that the GSA’s actions were
based on a discriminatory motive. EEOC Order, Dkt. 6-1.
On September 27, 2010, the GSA mailed to plaintiff its
Final Order (“GSA Letter”) implementing the EEOC decision. GSA
Letter, Dkt. 6-1. The letter notified plaintiff of the relevant
deadlines for filing a civil action:
[A] civil action may be filed in the appropriate federal
district court in any of the following situations:
(a) Within 90 calendar days of receipt of GSA’s final
decision on an individual or class complaint if no appeal
has been filed with the EEOC;
(b) After 180 calendar days from the date of filing an
individual or class complaint if an appeal has not been
filed with the EEOC or a final decision has not been issued
by GSA;
(c) Within 90 calendar days of receipt of the EEOC’s
decision on an appeal;
(d) After 180 calendar days from the date of filing an
appeal with the EEOC if a decision has not been issued by
the EEOC.
Id. at 2. It informed plaintiff that any request for a court-
appointed lawyer “must be made within the above-referenced 90-
day time limit for filing suit.” Id. It also stated that
2
plaintiff’s receipt of the letter would be presumed 5 days after
it was sent. Id. at 4.
On March 9, 2011, 158 days after her presumed receipt of
the GSA Letter, plaintiff filed a pro se complaint in the Court
of Federal Claims. The case was transferred to this Court on
October 11, 2011 upon grant of plaintiff’s Motion to Transfer.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint. Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the
defendant fair notice of what the ... claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks and citations omitted).
While detailed factual allegations are not necessary, plaintiff
must plead enough facts “to raise a right to relief above the
speculative level.” Id.
When ruling on a Rule 12(b)(6) motion, the Court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in plaintiff’s
3
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.” Id. “[O]nly a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. ANALYSIS
A. Plaintiff Failed to Comply with the 90-Day Filing
Requirement
Upon receiving the September 27, 2010 GSA Letter informing
her of her right to sue, plaintiff had 90 days within which to
file a civil action in federal court to challenge the EEOC
decision. See 42 U.S.C. § 2000e-16(c) (federal employees must
file a civil action within 90 days after “receipt of notice of
final action.”); 29 C.F.R. § 1614.407(a) (civil action must be
filed within 90 days of receipt of final action if no appeal has
been filed). Courts have strictly construed the 90-day statute
of limitations in Title VII cases. See, e.g., Ruiz v. Vilsack,
763 F. Supp. 2d 168, 173 (D.D.C. 2011) (dismissing action filed
133 days after the statute of limitations had expired); Anderson
v. Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 97 (D.D.C.
1995) (dismissing action where it was filed 97 days after
plaintiff’s receipt of EEOC right-to-sue letter).
4
Where a plaintiff fails to plead the date that she received
a letter informing her of her right to sue, the court “must fix
a presumptive date of receipt for purposes of determining
whether plaintiff complied with the ninety day filing
requirement.” Ruiz, 763 F. Supp. 2d at 171 (citing Anderson,
886 F. Supp. at 97). Courts generally assume that a right-to-
sue letter was mailed on the same day it was issued, see id.,
and that the plaintiff received the letter either three or five
business days after it was mailed. See id. (citing cases). The
Court will apply the more generous five-day presumption in this
case, in light of the statement in the certificate of service
accompanying the GSA Letter that the letter would be presumed to
have been received within 5 days after September 27, 2010.
Accordingly, plaintiff is presumed to have received the GSA
Letter on October 2, 2010. In this case, it is undisputed that
plaintiff filed her complaint on March 9, 2011, 158 days after
her presumed receipt of the letter. Plaintiff’s claim is
therefore untimely.
B. Application of Equitable Tolling Is Unwarranted in this
Case
The 90-day time limit for asserting a Title VII claim
against the government is non-jurisdictional and subject to
equitable tolling. Mondy v. Sec’y of the Army, 845 F.2d 1051,
1055-57 (D.C. Cir. 1988). Courts have exercised the power to
5
toll the statute of limitations only in “extraordinary and
carefully circumscribed instances.” Id. at 1057. For example,
courts have excused untimely filings (1) “where a claimant has
received inadequate notice,” (2) “where affirmative misconduct
on the part of a defendant lulled the plaintiff into inaction,”
(3) “where the court has led the plaintiff to believe that she
had done everything required of her,” or (4) “where a motion for
appointment of counsel is pending and equity would justify
tolling the statutory period until the motion is acted upon.”
Id.
However, courts have been “much less forgiving in receiving
late filings where the claimant failed to exercise due diligence
in preserving [her] legal rights.” Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990). Thus, to invoke the doctrine
of equitable tolling, plaintiff’s excuse for her untimely filing
must be more than “what is at best a garden variety claim of
excusable neglect.” Id. Plaintiff has the “burden of pleading
and proving in the district court ‘equitable reasons’ for
noncompliance” with the statutory deadline. Bayer v. U.S. Dep’t
of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992) (quoting Saltz
v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982).
In this case, plaintiff claims that she believed she had up
to 180 days within which to file suit. Plaintiff points to
language in the GSA Letter stating that:
6
[A] civil action may be filed in the appropriate federal
district court in any of the following situations:
(a) Within 90 calendar days of receipt of GSA’s final
decision on an individual or class complaint if no appeal
has been filed with the EEOC;
(b) After 180 calendar days from the date of filing an
individual or class complaint if an appeal has not been
filed with the EEOC or a final decision has not been issued
by GSA;
(c) Within 90 calendar days of receipt of the EEOC’s
decision on an appeal;
(d) After 180 calendar days from the date of filing an
appeal with the EEOC if a decision has not been issued by
the EEOC.
GSA Letter, Dkt. 6-1, at 2. Plaintiff argues that the language
did not clearly distinguish between the 90-day deadline for
filing suit and the 180-day period after which plaintiff could
file suit. Pl.’s Opp’n to Def’s Mot. to Dismiss at 5. As a
result, plaintiff claims that she was “lulled ... into waiting
to take action on the later period provided by the notice.” Id.
at 6. Therefore, plaintiff argues, her filing deadline should
be equitably tolled. Id.
Contrary to plaintiff’s arguments, however, the notice
clearly stated, in underlined print, that a civil action may be
filed “within” 90 days or “after” 180 days, depending on the
actions taken by plaintiff and GSA regarding the EEOC complaint.
GSA Letter, Dkt. 6-1, at 2. GSA timely issued its final
decision and plaintiff did not appeal the decision with the
EEOC; therefore, she had 90 days from her receipt of the GSA
Letter to timely file her claim in federal court. The notice
7
further emphasizes this deadline in the next paragraph, where it
provides that a request for a court-appointed lawyer “must be
made within the above-referenced 90-day time limit for filing
suit.” Id. Thus, plaintiff’s argument that the notice was
“convoluted and confusing” is unavailing.
Even assuming that the GSA Letter was unclear, plaintiff
failed to show that she acted with sufficient diligence to
invoke the principles of equitable tolling. Plaintiff does not
claim that she made any efforts to contact the EEOC or that she
visited the EEOC website to seek clarification regarding the
relevant deadlines. Because plaintiff failed to demonstrate
that she exercised due diligence in preserving her claim,
plaintiff’s justifications for her untimely filing do not rise
to the level required for the doctrine of equitable tolling to
apply. See Irwin, 498 U.S. at 96 (affirming dismissal of Title
VII case for failure to timely file complaint and declining to
extend the doctrine of equitable tolling to “a garden variety
claim of excusable neglect”); Miller v. Rosenker, 567 F. Supp.
2d 158, 161-162 (D.D.C. 2008) (denying extension of equitable
tolling to plaintiff who failed to demonstrate that his “delay
in filing was anything more than the result of neglect and lack
of due diligence”).
8
Accordingly, in the absence of any recognized basis for the
application of equitable tolling, the Court grants defendant’s
motion to dismiss plaintiff’s untimely action.
IV. CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss
plaintiff’s complaint is hereby GRANTED. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 27, 2012
9