UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JONATHAN HOUSE, )
)
Plaintiff, )
)
v. ) Civil Case No. 08-477 (RJL)
)
KEN SALAZAR, Secretary, )
United States Department of Interior,t )
)
Defendant.
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MEMORANDUM OPINION
(February -z.$ ,2009) [#6]
Plaintiff Jonathan House claims that the Department of the Interior ("the
Department") discriminated and retaliated against him, allegedly because of his race and
gender, in violation of Title VII of the Civil Rights Act of 1964. After considering
defendant's motion to dismiss, plaintiff's opposition, defendant's reply, the relevant case
law, and the entire record herein, the Court GRANTS defendant's motion because
plaintiff's claims are time-barred and are not entitled to equitable tolling.
BACKGROUND
House, an African-American male, was serving as a G-12 financial analyst at the
Department in April 2004, Compi. ~ 8, when Carol Sampson became his new supervisor.
Id. ~ 9. During the ensuing year and a half, according to House, Sampson mistreated him
1 Pursuant to Federal Rule of Civil Procedure 2S( d), if a public officer named as a party to an action in his
official capacity ceases to hold office, the court will automatically substitute that officer's successor.
Accordingly, the Court substitutes Secretary of the Interior Ken Salazar for former Secretary Dirk
Kempthorne.
by berating him in front of his colleagues, falsely accusing him of performing his job
incorrectly, giving him unfair job performance ratings, denying his requests for leave,
excluding him from meetings, denying him training, and stripping him of certain job
responsibilities. Jd. ~~ 10,14,15,17,22,27,28,30. House also alleged that Sampson
mistreated the other African-American males under her supervision. Jd. ~ 20. Despite
this alleged mistreatment, House received a promotion to a GS-I3 position in April 2005.
Jd. ~ 12.
House claimed he attempted to resolve his problems with Sampson by raising his
concerns with his team leader and Sampson's supervisor, but neither took corrective
action. Jd. ~~ 23,24. On December 22,2005, House contacted an EEO counselor, and
on January 26, 2006, he filed an administrative complaint with the Department. Jd. ~ 2.
On December 17, 2007, the Department issued a Final Agency Decision ("FAD"), id. ~ 4,
denying House his requested relief. The FAD also provided information on further action
House could take, which included filing a civil action within ninety days of receiving the
FAD. Compl. Ex. 1, at 11. The FAD was delivered to House's address by certified mail
on December 20,2007. Def.'s Ex. 1. House stated that he did not sign for the package
and, consequently, did not receive the FAD until the day after it was delivered -
December 21,2007. Pl.'s Ex. 1, ~ 1.
On March 20, 2008, ninety-one days after the FAD was delivered to House's
address, House filed suit in this Court alleging discrimination and retaliation in violation
of Title VII. Defendant filed a motion to dismiss on July 10,2008, arguing that House's
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claims were time-barred and undeserving of equitable tolling. This Court agrees and
GRANTS defendant's motion.
DISCUSSION
Although defendant has filed a motion to dismiss, the parties presented materials
outside the pleadings relied upon by the Court. Therefore, the Court will treat the motion
as one for summary judgment. See Fed. R. Civ. P. 12(d); Strong-Fischer v. Peters, 554
F. Supp. 2d 19,22 (D.D.C. 2008). A party is entitled to summary judgment if "the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter oflaw." Fed. R. Civ. P. 56(c). The party seeking summary
judgment bears the initial burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a
motion for summary judgment, however, "may not rely merely on allegations or denials
in its own pleading; rather, its response must ... set out specific facts showing a genuine
issue for trial." Fed. R. Civ. P. 56(e). In deciding whether there is a disputed issue of
material fact, the Court must draw all justifiable inferences in favor of the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
I. Plaintiff's Complaint Was Untimely
A federal employee is required to file suit within ninety days of final
administrative action. 42 U.S.C. § 2000e-16(c) (federal employees must file a civil
action within ninety days after "receipt of notice of final action."); see also 29 C.F .R. §
1614.407(a). Courts apply the ninety-day time limit strictly. See, e.g., Woodruffv.
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Peters, 482 F.3d 521,525 (D.C. Cir. 2007); Strong-Fischer, 554 F. Supp. 2d at 23, Wiley
v. Johnson, 436 F. Supp. 2d 91,96 (D.D.C. 2006). Receipt of notice of final action
occurs when the agency delivers notice to a claimant or his attorney, and delivery to the
attorney's office, even if not to the attorney himself, is sufficient. See Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89,92-93 (1990). Delivery to a claimant's home address,
even ifnot to the claimant himself, is also sufficient. See Million v. Frank, 47 F.3d 385,
388 (10th Cir. 1995) ("In the absence of equitable considerations demanding a different
result, receipt at a plaintiffs address of the right to sue letter constitutes receipt sufficient
to start the running of the time period for filing a discrimination action."); cf Irwin, 498
U.S. at 92-94 (stating that plaintiffs attorney's receipt of the EEOC's right-to-sue letter
could trigger the limitations period regardless of whether plaintiff himself had actual
notice of receipt).
Here, the FAD was delivered to House's home by certified mail on December 20,
2007. Def.'s Ex. 1. To fall within the ninety-day window, House had to file a complaint
on or before March 19,2008. However, he did not file his complaint until March 20,
2008, one day after the deadline.
House admits that he filed his complaint one day after the applicable period had
expired, but states that he did not personally receive the FAD until December 21, 2007.
PI.'s Ex. 1, ~ 1. However, the ninety-day clock began to tick on the day the FAD was
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delivered to House's home. 2 He failed to abide by that time limit and his complaint must
therefore be dismissed.
II. Plaintiff Is Not Entitled to Equitable Tolling
Because the ninety-day time period is non-jurisdictional, it functions like a statute
of limitations and is subject to waiver, estoppel, and equitable tolling, but only in
"extraordinary and carefully circumscribed instances." Wiley, 436 F. Supp. 2d at 96
(citing Mondy v. Sec'y a/the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988». Courts may
properly allow tolling where "a claimant has received inadequate notice, ... where a
motion for appointment of counsel is pending and equity would justify tolling the
statutory period until the motion is acted upon, ... where the court has led the plaintiff to
believe that [he] had done everything required of [him], ... [or] where affirmative
misconduct on the part ofa defendant lulled the plaintiff into inaction." Mondy, 845 F.2d
at 1057 (quoting Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984».
Otherwise, courts "have generally been much less forgiving in receiving late filings
where the claimant failed to exercise due diligence in preserving his legal rights." Irwin,
498 U.S. at 96. In other words, to toll the ninety-day deadline, the plaintiff must have
exercised due diligence and his excuse for the delayed filing must be more than "a garden
variety claim of excusable neglect." Id. The burden of pleading and proving any
equitable excuse for failure to meet the ninety-day filing limit falls wholly upon the
plaintiff. Strong-Fischer, 554 F. Supp. 2d at 23.
2 Moreover, plaintiff addresses only the question of equitable tolling in his opposition, and therefore concedes that
his complaint was untimely.
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House missed the applicable window of time to file his complaint, and he provides
no excuse that would toll the clock. He states that (1) his lawyer passed away on October
15,2007, and he learned of it one or two weeks afterward, Pl.'s Ex. 1, ~ 2, Def.'s Ex. 2;
(2) his previous law firm informed him on March 19,2008 that it would no longer
represent him, PI.' sEx. 1, ~ 3; and (3) the lawyer he spoke to gave him the incorrect
paperwork to file with the court, thus delaying the filing by a day. Id. However, House
learned of his lawyer's death before the FAD issued. He had well over four months to
ascertain whether the law firm would continue with his case. That he waited until the last
possible day before discovering that his deceased lawyer's firm would not represent him
is not an extraordinary circumstance deserving of equitable tolling. To the contrary, it is
the exact type of "garden variety neglect" the Supreme Court cautioned against in Irwin.
Thus, for the foregoing reasons, defendant's motion to dismiss, treated as a motion
for summary judgment, is GRANTED.
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'IU~
RICHARD L ON
United States District Judge
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