UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UJUCHRIS OKEREH 

Plaintiff, 

v. 

DONALD C. WINTER, 

SECRETARY OF THE NAVY 

Defendant. 

MEMORA 

(March 

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

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Ujuchris Okereh, the plaintiff, appears pro se and alleges his employer 

discriminated against him based on his race, national origin, and color, in violation of 

Title VII of the Civil Rights Act of 1964,42 U.S.C. §2000e, et seq. His employer, the 

Secretary of the Navy, filed a Motion for Summary Judgment on the grounds that Mr. 

Okereh filed his complaint untimely. This Court agrees and GRANTS the Navy's 

summary-judgment motion. 

BACKGROUND 

Mr. Okereh is a Nigerian-born black man and was employed as a Logistic 

Management Specialist for the United States Department of the Navy from February 

2004 through March 2006. (See Compl. at 1.) On March 6, 2006, the Navy fired Mr. 
Okereh for "unacceptable job performance." (Def.'s Statement of Material 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), 

and the 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 "the right to file a civil action in an 

appropriate United States District Court within 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 after the EEOC issued the final agency decision, 

Mr. Okereh filed an Application to Proceed Without Prepayment of Fees and Affidavit, 

or in forma pauperis (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 not pay 

the requisite fees or file his complaint with this Court until Aug. 31, 2007, which was 203 

calendar days after the EEOC issued its final agency decision. (Compl. at 1 (date stamp 

noting date filed).) 

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The Navy filed a motion for summary judgment asserting it is entitled to relief 

because Mr. Okereh did not file his complaint within 90 days after the final agency 

decision. Mr. Okereh responded after this Court issued a Fox-Neal Order informing him 

of the federal and local requirements. 

STANDARD OF REVIEW 

Summary judgment is appropriate "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 moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56( c). In ruling upon a motion for summary judgment, this Court draws all reasonable 

inferences in favor of Mr. Okereh, as the non-moving party. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 255 (1986). However, Mr. Okereh "may not rest upon the mere 

allegations or denials of his pleading, but must set forth specific facts showing that there 

is a genuine issue for trial." Amiri v. Stoladi Prop. 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 action pro se. See Boag v. MacDougall, 

454 U.S. 364,365 (1982). 

DISCUSSION 

The Navy moves for summary judgment on the ground that Mr. Okereh's 

complaint was filed untimely based on the requirements of 42 U.S.C. § 2000e-5(f)(1). 

This section provides that when the EEOC dismissed Mr. Okereh's charge, the EEOC 

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notified him he could file suit against the 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 

plaintiff is apro se litigant. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 

(1984) (noting that courts cannot disregard the procedural requirements "out of a vague 

sympathy for particular litigants" and upholding the dismissal of a pro se plaintiffs 

complaint because it was filed six days after the expiration of the 90-day period); Smith v. 

Dalton, 971 F. Supp. 1,3 (D.D.C. 1997) (granting employer's motion for summary 

judgment when the pro se plaintiff filed the complaint 91 days after receiving 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. 2d 71, 75 (D.D.C. 2002) (noting the 

"substantial body of case law holding that the ninety day period is tolled between the 

time a complaint and an application to proceed in forma pauperis are received by the 

Court, and the time the Court rules on the application"); Guillen v. Nat 'I Grange, 955 F. 

Supp. 144, 145 (D.D.C. 1997) (applying equitable tolling to the 90-day period based on 

"administrative delay associated with the Court's review of petitions to proceed informa 

paupe ris"). 

The 90-day requirement begins when plaintiffs receive the EEOC's final agency 

decision. Courts have presumed plaintiffs receive decisions either three or five days after 

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

Ctr., 466 u.s. at 148 (presuming a plaintiff received notice of a right-to-sue letter three 

days after it was issued); Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 n.3 

(D.C. Cir. 1998) (applying Baldwin's three-day rule to a plaintiffs receipt of a right-tosue letter); Anderson v. Local 201 Reinforcing Rodmen, 866 F. Supp. 94, 97 (D.D.C. 

1995) (noting the presumptive date of receipt of a right-to-sue letter is three or five days 

after its issuance). 

This presumption can be rebutted by "sworn testimony or other admissible 

evidence" indicating the notice was received later. Sherlock v. Montejiore Med. Ctr., 84 

F. 3d 522, 526 (2nd Cir. 1996); see also Williams v. First Government Mortg. and 

Investors Corp., 225 F.3d 738, 751 (D.C. Cir. 2000) (affirming a district court's 

determination that the plaintiff failed to rebut a presumption of delivery in light of the 

plaintiffs inconsistent testimony and the plaintiffs failure to offer any "evidence of nondelivery beyond his trial testimony"). "[G]eneral claims that mail is sometimes delayed 

will not be sufficient to rebut the presumption." Payan v. Aramark Mgmt. 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 of five days, the Court presumes Mr. Okereh 

received it February 13. Thus, absent any equitable tolling, Mr. Okereh had until May 

14, 2007, to file his complaint with this Court. 

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This date is adjusted, however, as the 90-day requirement is subject to equitable 

tolling because Mr. Okereh filed his IFP application before the 90-day period expired. 

Equitable tolling applies between the day Mr. Okereh filed his IFP application on May 7, 

2007, and the day he received the Court's denial. See Washington, 231 F. Supp. 2d at 75. 

The Court issued its denial of his 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 not receive 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] own pleading," 

which is impermissible under Federal Rule of Civil Procedure 56(e). See Fed. R. Civ. P. 

56( e )(2) (establishing a party opposing a summary-judgment motion "may not rely 

merely on allegations or denials in its own pleading," but must "by affidavits ... set out 

specific facts showing a genuine issue for trial"). Mr. Okereh's assertion alone is 

insufficient to rebut the presumption he 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, between the filing of the IFP 

application on May 7 and the presumptive receipt of the denial on May 21. Tolling the 

90-day requirement for 19 days resulted in a new deadline of June 2. Because June 2 was 

a Saturday, Mr. Okereh had until Monday, June 4,2007, to file his complaint. Mr. 

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Okereh, however, did not file his complaint until 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 and provide 

notice to the defendant for purposes of the 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 of the 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 

forma pauperis."); Truitt v. County of Wayne, 148 F.3d 644,645 (6th Cir. 1998) (finding 

a plaintiff who submitted her complaint with her IFP application within the 90-day time 

frame nevertheless did not comply with the requirement because she did not pay the 

filing fee within 90 days); Jarrett v. US Sprint Commc 'ns, Co., 22 F.3d 256,259 (lOth 

Cir. 1994) (holding that the 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 could not avoid a dismissal 

by filing a right-to-sue letter within the 90-day time period). 

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Because Mr. Okereh failed to file his cause of action within 90 days of receiving 

the final EEOC decision, this Court will GRANT Defendant's Motion for Summary 

Judgment. An Order consistent with the foregoing accompanies this Memorandum 

Opinion. 

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