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.
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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 courtappointed lawyer “must be made within the above-referenced 90-

day time limit for filing suit.” Id. It also stated that 
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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 
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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). 
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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-tosue 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 
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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:
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[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 
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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”).
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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