UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) HARRY O DAVIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0544 (ESH) ) THOMAS J. VILSACK, Secretary, ) United States Department of Agriculture, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION Plaintiff Harry Davis, proceeding pro se , brings this Title VII employment-discrimination action against defendant Thomas J. Vilsack, in his official capacity as United States Secretary of Agriculture. Before the Court is defendant’s mo tion to dismiss. Having considered the entire record in this case, the Cour t will grant defendant’s motion.

BACKGROUND Davis is a former employee of the United St ates Department of Agriculture (“USDA”). On July 21, 2011, the USDA issued a Final Agency Decision on an administrative complaint filed by Davis in 2009. (Def.’s Mot. Ex. 1, at 2, July 12, 2012 ( Davis v. Vilsack , No. CRSD2009-00656, USDA Office of Adjudica tion (July 21, 2011) (“FAD”).) Davis had alleged that the USDA subjected him to discriminatory hara ssment based on sex, race, color, and physical disability, and retaliated agains t him for whistleblowing. (FAD at 1-2.) The USDA dismissed2 Davis’s complaint, supporting its conclusion that Davis failed to offer sufficient evidence in support of his claims with a detailed, 20-page decision. 1 Equal Employment Opportunity Commission (EEO C) regulations provide that an agency must notify complainants of their right to appeal these final agency actions, and of the applicable

time limits: When an agency dismisses an entire complaint under §1614.107 . . . the agency shall take final action by issuing a final decision. The final decision shall consist of findings by the agency on the merits of each issue in the complaint, or, as appropriate, the rationale for dismissing a ny claims in the complaint . . .. The final action shall contain noti ce of the right to appeal the final action to the Equal Employment Opportunity Commission, the ri ght to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for appeals and lawsuits. 29 C.F.R. § 1614.110(b). 2 Federal law limits the time in which federal employees may appeal certain adverse final agency actions to 90 days. See 42 U.S.C. § 2000e-16(c). The USDA complied with this EEOC regulation. The FAD was clearly marked as a final decision ( see FAD at 1 (captioned “Final Agency Decisi on” in bold underlined text and stating in introductory section that “[i] n accordance with . . . 29 C.F.R. § 1614.110(b), this is the final decision of the United States Depa rtment of Agriculture (USDA) on this complaint”); FAD at 17

1 See , e.g. , FAD at 10 (complainant failed to pres ent sufficient evidence of discrimination relating to any of his claims); id . at 14–15 (investigating complainant and placing him on paid leave and other restrictions “was appropriate and nondiscriminatory given the potential for workplace violence” relating to Davis’s use of abusive and “vulgar and harassing” language; id

. at 16 (“considering the entire record, we note there is no direct evidence to substantiate the complainant’s contention with regard to any of the issues presented”; id. at 17 (rejecting reprisal/whistleblower claim, and concluding with respect to the en tire claim that the “weight of the evidence indicates that no discrimination occurred regardi ng the issues presented”).

2 EEOC policy, implementing 29 C.F.R. § 1614.110(b) , provides that “all federal agencies subject to” § 1614 must include specific text deta iling a complainant’s right to appeal “in every final action or final decision on complaints whic h allege discrimination on the bases of race, color, religion, sex, national origin, and/or di sability.” EEOC Management Directive 110 (MD110), Federal Sector Complaint Processing Manual, ch. 10, s. 4, available at http://www.eeoc.gov/federal/directives/md110/ch apter10.html (last visited July 27, 2012).3 (“This is the final decision of the USDA on the cited complaint.”)), and contained an explicit notice of Davis’s rights to appeal either to the EEOC or to this Court. ( Id. at 17–20.) The FAD made clear that these were “the only rights available to challenge this decision.” ( Id. at 17.) The FAD stated, under the bold, al l-capitalized headin g “Civil Action in Federal Court”: You also have the right to file a civ il action in an appropr iate United States district court. If you choose to file a civil acti on, you may do so

 within ninety (90) days of receipt of this final action or final decision (as appropriate) if no appeal [to th e EEOC] has been filed; or

 within ninety (90) days after receipt of the EEOC’s final decision on appeal; or

 after one hundred and eighty (180) days fr om the date of filing an appeal with the EEOC if there has been no fina l decision by the Commission . . . If you decide to file a civ il action, under Title VII or under the Rehabilitation Act, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoi nt an attorney to represent you and that the Court permit you to file the action without paymen t of fees, costs, or other security. The grant or denial of the request is wi thin the sole discretion of the Court. Filing a request for an attorney does not ex tend your time in which to file a civil action. Both the request and the ci vil action MUST BE FILED WITHIN NINETY (90) CALENDAR DA YS of the date you rece ive the final action or final decision (as appropriate) from the agency or the Commission. Unless an appeal is filed with the EEOC, fa ilure to file a civil action within ninety (90) calendar days may result in dismissal of your civil action. ( Id. at 19.) Davis does not allege that he filed an EEOC appeal, nor does he deny receiving notice of the FAD; in fact, he appears to adm it that he received the notice. ( See Pl.’s Opp’n, July 17, 2012 (“on July 21, 2012 the [USDA] issued a Final D ecision on my Administrative complaint. I was

informed that I must file a Civil Action . . . within NINETY (90) CALENDAR DAYS of the

date I received the final decisi on by USDA”).) A certificate of se rvice, dated the same date the4 FAD was issued, attests that the FAD was sent by certified mail to Davis, as well as to his representative, Nathaniel D. J ohnson, a Maryland attorney. (FAD at 22.) On March 15, 2012, Davis filed the pending co mplaint, appealing the USDA’s decision and requesting money damages and injunctive relief. 3 (Compl. at 2.) Defendant filed a motion

to dismiss for failure to state a claim under Fe d. R. Civ. P. 12(b)(6), accompanied by a copy of the FAD, on June 12, 2012. Plaintiff filed an opp osition and a motion to appoint counsel on July 17, 2012, and defendant filed its reply on July 27 , 2012. In its motion, defendant argues that plaintiff’s complaint should be dismissed for failure to state a claim because the complaint, having been filed past the 90-day statutory deadline, is time-ba rred. Because Davis’s complaint was untimely filed and there are no extraordinary facts warranting equitabl e tolling of the time bar, defendant’s motion will be granted.

ANALYSIS

I. STANDARD OF REVIEW An action will be dismissed where the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). 4 To avoid dismissal, a complaint must cont ain “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

3 Davis’s prayer for relief is as follows: He “would like the maximum amount of monetary can be granted under the US Dist rict Courts”; “for USDA stop hindering me from employment elsewhere”; and “pay for training to make me Competitive after being placed on Administrative Leave for 18 months.” (Compl. at 2 (errors in original).)

4 In its motion to dismissal, defendant argues for dismissal based on Fed. R. Civ. P. 12(b)(6), failure to state a claim upon which relief may be gr anted. (Def.’s Mot. at 1.) In defendant’s reply to Davis’s response in opposition to its motion, however, defendants argue for dismissal based on Rule 12(b)(1), lack of subject-matter jurisdiction. (Def.’s Re ply at 1.) The Court rejects defendant’s Rule 12(b)(1) challenge becau se 42 U.S.C. § 2000e-16(c) time limits are nonjurisdictional. Mondy v. Sec’y of the Army , 845 F.2d 1051, 1052–57 (D.C. Cir. 1988)5 . . . 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). “Only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal , 556 U.S. 662, 679 (citing Twombly , 550 U.S. at 556); see also Voinche v. Obama , 744 F. Supp. 2d 165, 170–71 (D.D.C. 2010). “A defendant may raise the affi rmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint,” and “[i]f no reasonable person could disagree on the date on which the cause of action accrued” and the complaint is “conclusi vely time-barred,” it may be dismissed. DePippo v. Chertoff , 453 F. Supp. 2d 30, 33 (D.D.C. 2006) (inter nal citations and quotation marks omitted) (collecting cases); accord Doe v. U.S. Dep’t of Justice , 753 F.2d 1092, 1115 (D.C. Cir. 1985), Strong-Fischer v. Peters , 554 F. Supp. 2d 19, 21–22 (D.D.C. 2008).

A pro se plaintiff’s complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus , 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Koch v. Schapiro , 699 F. Supp. 2d 3, 7 (D.D.C. 2010). But even a pro se complaint “must plead factual matter that permits the court to infer more than the mere possibility of misconduct.” Jones v. Horne , 634 F.3d 588, 596 (D.C. Cir. 2011) (internal citations and quotation marks omitted).

II. PLAINTIFF’S COMPLAINT IS NOT TIMELY The USDA issued its FAD adjudicating Davis’s claim on July 21, 2011. As noted above, the statutorily-mandated time limitation for a c overed federal employee “aggrieved by the final disposition of” an employment discrimination complaint runs 90 days from when the employee6 receives the notice of final ac tion. 42 U.S.C. § 2000e-16(c). 5 There is a presumption that notices of final action are mailed on the same day they were issued, and received by complainants between three and five days later. See McAlister v. Potter , 733 F. Supp. 2d 134, 142 (D.D.C. 2010) (collecting authorities). Plaintiff may rebut this pr esumption by presenting “sworn testimony or other admissible evidence indi cating the notice was received later.” Id. (internal citations and quotation marks omitted). “The plaintiff who fails to comply, to the le tter, with administrative deadlines ordinarily will be denied a judicial audience.” Brown v. Marsh , 777 F.2d 8, 13 (D.C. Cir. 1985) (internal quotation marks and citation omitted). Courts appl y time deadlines “strictly” and “will dismiss a suit for missing the deadlin e by even one day.” Woodruff v. Peters , 482 F.3d 521, 525 (D.C. Cir. 2007) (quoting Wiley v. Johnson , 436 F. Supp. 2d 91, 96 (D.D.C. 2006)). Indeed, courts have dismissed claims or entered summary judgment fo r defendants when Title VII complaints were filed just past the statutory deadline. See, e.g. , Smith v. Dalton , 971 F. Supp. 1, 3 (D.D.C. 1997) (one day late); Wolfe v. Danzig , 2001 WL 1661479, at *4 (D.D.C. J une 1, 2001) (one day late),

Bass v. Bair , 514 F. Supp. 2d 96, 99 (D.D.C. 2007) (two days late). Since, as defendant notes (Def.’s Reply at 2) , Davis concedes that he received notice of the FAD and does not allege any delay in receivi ng it, the Court finds th at the 90-day period for

5 This statute applies, inter alia , to “all personnel actions affecti ng employees or applicants for employment . . . in executive agencies as defi ned in section 105 of title 5.” 42 U.S.C. § 2000e16(a). In turn, 5 U.S.C. § 105 defines “Execu tive agency” as “an Executive department, a Government corporation, and an independent establishment.” It is not disputed that the USDA and Davis are covered by the Act.7 filing suit in district court e xpired no later than October 24, 2011. 6 As Davis filed suit on March 15, 2012, approximately five months past this deadline, his complaint is not timely.

III. EQUITABLE TOLLING Since the 90-day limitations period to file suit is non-jurisdictiona l, it is “subject to waiver, estoppel, and equitable tolling” in “extrao rdinary and carefully circumscribed instances.” Mondy v. Sec ’ y of the Army , 845 F.2d 1051, 1054–57 (D.C. Cir. 1988) (following Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982)). Here, the only possible basis for equitable tolling is plaintiff’s assertion that he is homeless and suffers from lupus and “mental issues” which require him to “take up to 15 medications” and “have really taken a toll on me mentally and physically.” (Pl.’s Opp’n at 1; Pl.’s Mot. to Appoint Counsel at 1.) Equitable relief is granted only “sparingly,” when “a claimant has received inadequate notice, where a motion for appointment of counsel is pending and equity w ould justify tolling the statutory period until the motion is acted upon, where the court has led the plaintiff to believe that she had done everything requ ired of her, or where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction.” Wiley , 436 F. Supp. 2d at 96 (D.D.C. 2006) (quoting Mondy , 845 F.2d at 1057) (internal punctuation modified); accord Irwin v. Dep ’ t of Veterans Affairs , 498 U.S. 89, 96 (1990). Equitable relief will not issue where “the claimant failed to exercise due diligence in preserving his legal rights” or has only a “garden variety claim of

6 Davis’s complaint and accompanying application to proceed in forma pauperis were received on March 15, 2012, but the complaint was only do cketed on April 6, 2012, following approval of his application. The statute of limitations is tolle d for the period “between the Clerk’s receipt of [a] pro se complaint, accompanied by an applicat ion to proceed in forma pauperis, and entry of these documents on the Cour t’s electronic docket.” Minter v. Dist. of Columbia , No. 10–0516, 2012 WL 925715, at *4-5 (D.D.C. Ma r. 19, 2012) (citing cases); Johnson v. Interstate Mgmt. Co., LLC , No. 11–cv–1702, 2012 WL 2552777, at *3 (D.D.C. Ju ly 3, 2012) (“a plaintiff is not held responsible for a delay attributable to the Court’s review of the in forma pauperis application and the Clerk’s intern al processing of his papers”).8 excusable neglect.” Irwin , 498 U.S. at 96 (citing Baldwin County Welcome Ctr. v. Brown , 466 U.S. 147, 151 (1984)). “The burde n of pleading and proving any equi table excuse for failure to meet the ninety-day filing limit fa lls wholly upon the plaintiff.” Wiley , 436 F. Supp. 2d at 96 (citing Saltz v. Lehman , 672 F.2d 207, 209 (D.C. Cir. 1982)). Where a plaintiff is “unambiguously notified that [he] must sue within ninety days . . . we conclude that no equitable considerations justified or excused . . . failure to m eet the ninety-day limit.” Dougherty v. Barry , 869 F.2d 605, 613 (D.C. Cir. 1989) (int ernal punctuation modified). Although mental illness may be grounds for equitable tolling, a bare assertion of health problems does not rise to the extr aordinary level; rather, the plai ntiff must show that he was non compos mentis – incapable of handling his own affairs or unable to function in society. Dahlman

v. Amer. Ass ’ n of Retired Persons , 791 F. Supp. 2d 68, 77–78 (D.D.C. 2011) (citing SmithHaynie v. Dist. of Columbia , 155 F.3d 575, 580 (D.C. Cir. 1997)). “Impaired judgment or general claims of mental illn ess is not enough to justify equi table relief from procedural requirements”; rather, an indivi dual must show that during th e limitations period he was unable “to engage in rational thought and deliberate decision.” Id. (internal quotation marks and citations omitted). In making this determina tion, “courts have often focused on whether the plaintiff was ever adjudged incompetent, signed a power of attorney, had a guardian or caretaker appointed, or otherwise took measures to let so meone else handle [plaintiff’s] affairs.” Id. (citing Speiser v. U.S. Dep ’ t of Health & Human Servs. , 670 F. Supp. 380, 385 (D.D.C. 1986)); see also Nunnally v. MacCausland , 996 F.2d 1, 2–6 (1st Cir. 1993) (per curiam). Equitable tolling on non compos mentis grounds is typically granted only in the extreme case. The mere existence of mental problems or life difficulties will not suffice; rather, “total incapacity” is “necessary to wa rrant equitable tolling” on non compos mentis grounds. Miller v.9 Rosenker , 578 F. Supp. 2d 67, 71 (D.D.C. 2008). For inst ance, time limits for a plaintiff’s claim may be equitably tolled when the plaintiff had extremely severe, “crippling” paranoid schizophrenia that rendered her “incapable of rationally cooperating w ith any counsel, and/or pursuing her claim on her own during the limitations period.” Nunnally , 996 F.2d at 5–7. In less severe cases, equitable to lling is routinely denied. See, e.g. , Rosenker , 578 F. Supp. 2d at 71–73 (“severe panic disorder and depr ession,” where plaintiff “does not establish that he could not manage his affairs or comp rehend his legal rights”); Smith-Haynie , 155 F.3d at 580 (claimed confusion by EEOC right-to-sue information and “em otional difficulties” causing inability “to psychologically deal with” case); Dahlman , 791 F. Supp. 2d at 77–79 (emotional breakdown causing claimed inability to function, where plaintiff was able to complete various skilled tasks); Speiser , 670 F. Supp. at 385 (hospitalization, depr ession, and obsession, wh ere plaintiff never “let someone else handle her affairs”); Perry v. U.S. Dep’t of State , 669 F. Supp. 2d 60, 66–67 (D.D.C. 2009) (possibility of “bipolar disorder, mood disorder , and/or post-traumatic stress disorder”); Kien v. United States , 749 F. Supp. 286, 288, 291–92 (D.D.C. 1990) (diagnosed borderline personality/post-trauma tic stress disorder, where no s howing of inability to handle own affairs); Harding v. Ft. Wayne Foundry/Pontiac Div., Inc. , 919 F. Supp. 1223, 1229 (N.D. Ind. 1981) (homelessness for several months and endurance of a “series of personal crises”).

Plaintiff’s situation does not me rit equitable tolling. Davis received actual notice of his right to sue and the limited period in which he could do so in the F AD. He has the ability to read and write English and presents no claim of total mental incapacity during the 90-day period in which he could sue. Prior to his January 12, 2011 resignation from the USDA (Pl.’s Mot. to Appoint Counsel at 1), he had a job as a telecommunications ar chitect with the USDA Office of

the Chief Information Officer at the GS-13 level. (FAD at 2, 5–6.)10 Since Davis has not come forth with evidence demonstrating that he even approaches the degree of incapacity requir ed to be considered non compos mentis and there are no extraordinary facts presenting compelling equitable reasons to allow Davis to proceed with an untimely suit, plaintiff’s complaint will be dismissed.

CONCLUSION For the foregoing reasons, the defendant’s motion to dismiss for failure to state a claim is

GRANTED . A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: August 1, 2012