United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Sonny Perdue's
motion for summary judgment (Dkt. No. 16). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
the motion for the reasons explained herein.
Gerald Williams alleges he is an employee of the United
States Forest Service, a sub-agency of the United States
Department of Agriculture (USDA). Plaintiff alleges he was
subject to a hostile work environment and retaliated against
for engaging in protected activities in violation of Title
VII, 42 U.S.C. § 2000e-16. (See Dkt. Nos. 1,
filed a formal complaint with the USDA on April 16, 2015, and
elected a hearing by an Equal Employment Opportunity
Commission (EEOC) administrative law judge (ALJ). (Dkt. No.
17 at ¶ 2; Dkt. No. 17-1.) However, on March 15, 2016,
he withdrew his request for a hearing in order to proceed in
a United States District Court. (Dkt. No. 17-2 at 2, 14.) On
March 16, 2016, the ALJ granted the motion, and instructed
the parties to take “whatever action is
appropriate.” (Id. at 2.)
14, 2016, the USDA issued its Final Order and notified
Plaintiff that if he chose to proceed with a civil action in
federal district court, he must do so within 90 days. (Dkt.
No. 18-1 at 4, 5.) On the same day, the USDA sent the Final
Order by certified mail to Plaintiff and his attorney at the
mailing addresses listed in the proceedings before the
EEOC. (Dkt. No. 18 at ¶ 3; Dkt. No. 18-1 at
7; Dkt. No. 18-2 at 2; Dkt. No. 22-1.) The tracking
information indicates that the Final Order was available for
pickup by Plaintiff on June 18, 2016. (Dkt. No. 18-2 at 2.)
It remained available until July 5, 2016, and was then
returned to the USDA as unclaimed. (Id.) It is
unclear from the tracking information whether Plaintiff's
counsel ever received the Final Order. (Dkt. No. 18-4 at 2.)
February 21, 2017, 248 days after the Final Order was
delivered, Plaintiff filed this action. (Dkt. No. 1.)
Defendant now moves for summary judgment, and argues the
complaint is time barred and not subject to equitable
tolling. (Dkt. No. 16.)
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In making such a determination, the Court
must view the facts and justifiable inferences to be drawn
therefrom in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Once a motion for summary judgment is
properly made and supported, the opposing party “must
come forward with ‘specific facts showing that there is
a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)).
Material facts are those that may affect the outcome of the
case, and a dispute about a material fact is genuine if there
is sufficient evidence for a reasonable jury to return a
verdict for the non-moving party. Anderson, 477 U.S.
at 248-49. Conclusory, non-specific statements in affidavits
are not sufficient, and “missing facts” will not
be “presumed.” Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990). Ultimately,
summary judgment is appropriate 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, 324 (1986).
plaintiff must file her complaint within 90 days of receipt
of an agency's final action to bring a Title VII claim in
federal court against her federal employer. 42 U.S.C. §
2000e-16(c); 29 C.F.R. § 1614.4079(a). The period for
filing suit runs from the claimant or her attorney's
receipt of notice, whichever date of receipt comes first.
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
92 (1990). In the Ninth Circuit, “receipt” occurs
when delivery is attempted at the address of record.
Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495
F.3d 1119, 1122 (9th Cir. 2007); Nelmida v. Shelly
Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997);
Noonan v. Seattle City Light, 2016 WL 5109653, at *2
(W.D. Wash. Sept. 20, 2016). Where that date is known, the
Court “deem[s] the claimant to have received notice on
that date, regardless of whether the claimant personally saw
the right-to-sue letter.” Payan, 495 F.3d at
attempts to argue that Ninth Circuit case law supports his
position that he needed actual notice of his right to sue.
(Dkt. No. 20 at 9.) However, actual notice is not required
and the cases he cites do not support his position. See
Payan, 495 F.3d at 1122. Plaintiff also argues that
efforts to send the Final Order to Plaintiff's counsel
were “unreasonable” and “legally
insufficient.” (Dkt. No. 20 at 12.) However, receipt
turns on when a claimant or her attorney received
notice; notice to both is not required. See Irwin,
498 U.S. at 92. Here, there is no dispute that Defendant used
the proper mailing address and that the Final Order was
delivered to Plaintiff on June 18, 2016. (See Dkt.
No. 18-2 at 2.) It is also undisputed that Plaintiff filed
this action on February 21, 2017, 248 days after receipt.
(Dkt. No. 1.) Therefore, Plaintiff's claim is time barred
because he did not file this action within 90 days of receipt
of the Final Order.
also argues that he is entitled to equitable tolling. (Dkt.
No. 20 at 13.) “Equitable tolling is, however, to be
applied only sparingly.” Nelmida, 112 F.3d at
384. For example, the Supreme Court has allowed equitable
tolling when “the statute of limitations was not
complied with because of defective pleadings, when a claimant
was tricked by an adversary into letting a deadline expire,
and when the EEOC's notice of the statutory period was
clearly inadequate.” Scholar v. Pac. Bell, 963
F.2d 264, 268 (9th Cir. 1992) (collecting cases).
“Courts have been generally unforgiving . . . when a
late filing is due to claimant's failure ‘to
exercise due diligence in preserving his legal
rights.'” Id. (quoting Irwin, 498
U.S. at 96).
claims “extraordinary circumstances beyond his control
prevented him from filing suit earlier.” (Dkt. No. 20
at 14.) Plaintiff explains that he lives in Concrete,
Washington, but maintains a Darrington, Washington,
address-the same address Defendant mailed the Final order
to-as a “practical choice” because he works in
Darrington. (Dkt. No. 20-1 at ¶¶ 2, 3.) He claims
that during fire season, which runs from mid-June to
mid-September, receiving mail during business hours is
difficult. (Id. at ¶ 4.)
Britton Davis, Plaintiff's supervisor, testified that
during the period of “late June to early July 2016,
[Plaintiff] would have spent approximately half of his time
in the field [in remote locations] and the other half working
at his desk” in Darrington. (Dkt. No. 23 at ¶ 6.)
When in Darrington, Plaintiff generally worked from 8:00 a.m.
until 4:30 p.m., with a half hour lunch break. (Dkt. Nos.
23-1, 23-2, Dkt. No. 28 at ¶ 8.) The Darrington Post
Office website states the office is open from 8:30 a.m. to
4:00 p.m., Monday through Friday. (Dkt. No. 28 at 7.)
Plaintiff also states the ...