UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UJUCHRIS OKEREH Plaintiff,
v.
DONALD C. WINTER, SECRETARY OF THE NAVY Defendant.

MEMORA (March ) ) ) ) ) Civil Case No. 07-cv-1552 (RJL) ) ) ) ) ) )

Ujuchris Okereh, the plaintiff, appearspro se and alleges his employer discriminated against him based onhis race, national origin, and color, in violation of Title VII ofthe Civil Rights Act of 1964,42U.S.C. §2000e, etseq. His employer, the Secretary ofthe Navy, filed a Motion for Summary Judgment on the grounds thatMr. Okereh filed his complaintuntimely. This Court agrees and GRANTS the Navy's summary-judgment motion. BACKGROUND Mr. Okereh is a Nigerian-born blackman and was employed as a Logistic Management Specialist for the United States Department ofthe Navy from February 2004 throughMarch 2006. (See Compl. at 1.) OnMarch 6, 2006, the Navy fired Mr.Okereh for "unacceptablejobperformance." (Def.'s Statement ofMaterial Facts Not in Dispute at,-r 2.) Mr. Okereh filed an employment-discrimination complaint with the Merit Systems Protection Board (the Board) claiming he was fired based on his race, national origin, and color. (ld. at,-r 3.) The Board affirmed the Navy's decision to fire Mr. Okereh and later denied his petition for review. (ld. at,-r 6.) Mr. Okereh appealed to the Equal Employment Opportunity Commission (EEOC), andthe EEOC dismissed his appeal. (ld. at,-r 8.) The EEOC also dismissed his EEOCfiled complaint and his request for reconsideration. On February 9, 2007, the EEOC issued a final agency decision stating Mr. Okereh had "therightto file a civil action in an appropriate United States District Courtwithin ninety (90) calendar 

### days from the date that [he] receive[d] this decision." (PI.'s Ex. B at 3.) May 7, 2007, 87 calendar days afterthe EEOC issued the final agency decision, Mr. Okereh filed an Application to Proceed Without Prepayment ofFees and Affidavit,
or informapauperis (lFP) with this Court. (See PI.'s Ex. C.) Mr. Okereh attached a complaint alleging employment discrimination to his IFP application. The Court denied Mr. Okereh's IFP application two weeks later, on May 21,2007. Mr. Okereh did notpay the requisite fees or file his complaint with this Courtuntil Aug. 31, 2007, which was 203 calendar days afterthe EEOC issued its final agency decision. (Compl. at 1 (date stamp noting date filed).)

2TheNavy filed a motion for summaryjudgment asserting it is entitledto relief because Mr. Okereh did not file his complaint within 90 days after the final agency decision. Mr. Okerehresponded afterthis Court issued a Fox-Neal Order informing him ofthe federal and local requirements. 

### STANDARD OF REVIEW Summaryjudgment is appropriate "ifthe 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 movingparty is entitled tojudgment as a matter oflaw." Fed. R. Civ. P. 56(c). Inruling upon a motion for summaryjudgment, this Court draws all reasonable inferences in favor ofMr. Okereh, as the non-moving party. Anderson v. LibertyLobby, Inc., 477 U.S. 242, 255 (1986). However, Mr. Okereh "may notrest upon the mere allegations or denials ofhis pleading, but must set forth specific facts showing that there is a genuine issue for trial." Amiriv. StoladiProp. Group, 407 F. Supp. 2d 119, 123 (D.D.C. 2005) (internal quotation and alteration omitted). The Court will also construe Mr. Okereh's filings liberally, as he filed this actionpro se. See Boagv. MacDougall, 454 U.S. 364,365 (1982). 

### DISCUSSION TheNavy moves for summaryjudgmentonthe ground thatMr. Okereh's complaint was filed untimely based on the requirements of42 U.S.C. 

### §2000e-5(f)(1). This sectionprovides thatwhen the EEOC dismissed Mr. Okereh's charge, the EEOC

3notified him he could file suit againstthe Navy within 90 days. See 42 U.S.C. § 2000e5(f)(l). Courts adhere strictly to the 90-day requirement, even in cases where the plaintiffis apro se litigant. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (noting that courts cannot disregard the procedural requirements "out ofa vague sympathy for particular litigants" and upholding the dismissal ofapro se plaintiffs complaintbecause it was filed six days afterthe expiration ofthe 90-dayperiod); Smith v. Dalton, 971 F. Supp. 1,3 (D.D.C. 1997) (granting employer's motion for summary judgmentwhen theprose plaintifffiled the complaint 91 days afterreceiving the final agency decision). Nevertheless, this requirement is subject to equitable tolling in "extraordinary circumstances,"Amiri, 407 F. Supp. 2d at 124, such as when the Court is reviewing IFP petitions. Washington v. White, 231 F. Supp. 2d71, 75 (D.D.C. 2002) (noting the "substantialbody ofcase law holding that the ninety day period is tolled between the time a complaint and an application to proceed informapauperis are receivedby the Court, and the time the Courtrules onthe application"); Guillen v. Nat 'I Grange, 955 F. Supp. 144, 145 (D.D.C. 1997) (applying equitable tolling to the 90-day periodbased on "administrative delay associated with the Court'sreview ofpetitions toproceed informa pauperis"). The 90-day requirementbegins whenplaintiffs receive the EEOC's final agency decision. Courts have presumedplaintiffs receive decisions eitherthree or five days after

4their issuance. See Fed. R. Civ. P. 6(e) (providing three days); Baldwin County Welcome Ctr., 466

## u.s. at 148 (presuming a plaintiffreceived notice ofa right-to-sue letterthree days after itwas issued); Smith-Haynie v. Districtof Columbia, 155 F.3d 575, 578 n.3 (D.C. Cir. 1998) (applyingBaldwin's three-day rule to aplaintiffsreceipt ofa right-tosue letter); Anderson v. Local201 ReinforcingRodmen, 866 F. Supp. 94, 97 (D.D.C. 1995) (noting the presumptive date ofreceipt ofa right-to-sue letter is three or five days after its issuance). This presumption canbe rebutted by "sworntestimony or other admissible evidence" indicating the notice was received later. Sherlockv. Montejiore Med. Ctr., 84 F. 3d 522, 526 (2nd Cir. 1996); see also Williams v. First GovernmentMortg. and Investors Corp., 225 F.3d 738, 751 (D.C. Cir. 2000) (affirming a district court's determination thatthe plaintifffailed to rebut apresumption ofdelivery in light ofthe plaintiffs inconsistent testimony and the plaintiffs failure to offer any "evidence ofnondelivery beyond his trial testimony"). "[G]eneral claims that mail is sometimes delayed will not be sufficientto rebut the presumption." Payan v. AramarkMgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1126 (9th Cir. 2007). In this case, the EEOC issued the final agency decision on February 8, 2007. Using the most generous presumption offive days, the Courtpresumes Mr. Okereh received itFebruary 13. Thus, absent any equitable tolling, Mr. Okerehhad until May 14, 2007, to file his complaintwith this Court.

5This date is adjusted, however, as the 90-day requirement is subjectto equitable tolling because Mr. Okereh filed his IFP application before the 90-day period expired. Equitable tolling applies betweenthe day Mr. Okereh filed his IFP application onMay 7, 2007, and the day he received the Court's denial. 

### See Washington, 231 F. Supp. 2d at 75. The Court issued its denial ofhis IFP application on May 21, 2007. Applying the most generous presumption, Mr. Okereh received the Court's denial on May 26,2007. Although Mr. Okereh claims in his pleadings he did notreceive the IFP denial until "[s]ometime in August 2007," (Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2.), Mr. Okereh does not submit sworn testimony or other admissible evidence to support this claim. Instead, Mr. Okereh relies only "on allegations or denials in [his] ownpleading," which is impermissible underFederal Rule ofCivil Procedure 56(e). 

### See Fed. R. Civ. P. 56(e)(2) (establishing a party opposing a summary-judgment motion "maynotrely merely on allegations or denials in its ownpleading," butmust "by affidavits
... set out specific facts showing a genuine issue for trial"). Mr. Okereh's assertion alone is insufficient to rebut the presumptionhe received the IFP denial on or before May 29, 

### 2007. See Sherlock, 84 F. 3d at 526; 

### see also Williams, 225 F.3d at 751. The 90-day requirement was thus tolled for 19 days, betweenthe filing ofthe IFP application on May 7 and the presumptive receipt ofthe denial on May 21. Tolling the 90-day requirement for 19 days resulted in a new deadline ofJune 2. Because June 2 was
a Saturday, Mr. Okereh had until Monday, June 4,2007, to file his complaint. Mr.

6Okereh, however, did not file his complaintuntil August 31, 2007, 85 days after the 90- day time period expired. (See CompI. at 1.) While Mr. Okereh attached a complaint to his IFP application, which was filed within the 90-day time period, this is insufficient to commence the action andprovide notice to the defendant for purposes ofthe 90-day requirement. See Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint with the court.");Amiri, 407 F. Supp. 2d at 124 ("The Clerk ofthe Court will not accept a complaint for filing that is not accompanied by a filing fee until the Court has granted a petition for leave to proceed in formapauperis."); Truitt v. County ofWayne, 148 F.3d 644,645 (6th Cir. 1998) (finding

a plaintiffwho submittedher complaintwith her IFP application withinthe 90-daytime frame nevertheless did not comply with the requirement because she did notpay the filing fee within 90 days); Jarrett v. USSprint Commc 'ns, Co., 22 F.3d 256,259 (lOth Cir. 1994) (holding thatthe filing date did not relate back to the date the plaintiff submitted the IFP application, even though the complaint was attached to the application); see also Baldwin County Welcome Ctr., 466 U.S. at 149 (holding a plaintiff who filed her complaint after the 90-day requirement expired couldnot avoid a dismissal by filing a right-to-sue letter within the 90-day time period).

7Because Mr. Okereh failed to file his cause ofaction within 90 days ofreceiving the final EEOC decision, this Court will GRANT Defendant's Motion for Summary Judgment. An Order consistentwith the foregoing accompanies this Memorandum Opinion.

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