### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA
JONATHAN HOUSE, ) 

### Plaintiff,


### v. ) ) ) 

### ) Civil Case No. 08-477 (RJL) ) 

### KEN SALAZAR, Secretary, ) 

### United States Department ofInterior,t ) ) 

### Defendant.

## )~ MEMORANDUM OPINION (February 

## -z.$ ,2009) [#6] PlaintiffJonathan House claims that the Department ofthe Interior ("the Department") discriminated and retaliated against him, allegedly because ofhis race and gender, in violation ofTitle VII ofthe Civil Rights Act of 1964. After considering defendant's motion to dismiss, plaintiff's opposition, defendant's reply, the relevant case law, and the entire record herein, the Court GRANTS defendant's motion because plaintiff's claims are time-barred and are not entitled to equitable tolling. 

### BACKGROUND House, an African-American male, was serving as a G-12 financial analyst at the Department in April 2004, Compi.**~** 

### 8, when Carol Sampson became his new supervisor. 

### Id.**~** 

### 9. During the ensuing year and a half, according to House, Sampson mistreated him

1Pursuantto Federal Rule ofCivil Procedure 2S(d), ifa public officer named as a party to an action in his official capacity ceases to hold office, the court will automatically substitute that officer's successor. Accordingly, the Court substitutes Secretary ofthe Interior Ken Salazar for former Secretary Dirk Kempthorne.by berating him in front ofhis colleagues, falsely accusing him ofperforminghisjob incorrectly, giving him unfairjobperformance ratings, denying his requests for leave, excludinghim from meetings, denying him training, and strippinghim ofcertainjob responsibilities. Jd.**~~** 10,14,15,17,22,27,28,30. House also alleged that Sampson mistreated the other African-American males underher supervision. Jd.**~** 20. Despite this alleged mistreatment, House received a promotionto a GS-I3 position in April 2005. Jd.**~** 12. House claimedhe attempted to resolve his problems with Sampson by raising his
concerns withhis team leader and Sampson's supervisor, butneither took corrective action. Jd.**~~** 23,24. OnDecember 22,2005, House contacted an EEO counselor, and
onJanuary 26, 2006, he filed an administrative complaint with the Department. 

### Jd.**~** 2. OnDecember 17, 2007, the Department issued a Final Agency Decision ("FAD"), 

### id.**~** 4, denying House his requested relief. TheFAD also provided information on further action House could take, which included filing a civil action within ninety days ofreceiving the FAD. Compl. Ex. 1, at 11. The FAD was delivered to House's address by certified mail
on December20,2007. Def.'s Ex. 1. House statedthathe did not sign for the package and, consequently, did notreceive the FAD until the day after it was delivered

- December21,2007. Pl.'s Ex. 1,**~** 1. OnMarch 20, 2008, ninety-one days afterthe FAD was delivered to House's address, House filed suit in this Court alleging discrimination and retaliation in violation ofTitle VII. Defendant filed a motionto dismiss on July 10,2008, arguing that House's

2claims were time-barred and undeserving ofequitable tolling. This Court agrees and GRANTS defendant's motion. 

### DISCUSSION Although defendant has filed a motion to dismiss, the parties presented materials outside the pleadings relied upon by the Court. Therefore, the Court will treat the motion
as one for summaryjudgment. 

### See Fed. R. Civ. P. 12(d); 

### Strong-Fischer v. 

### Peters, 554 F. Supp. 2d 19,22 (D.D.C. 2008). A party is entitled to summaryjudgment 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 movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). The party seeking summary judgmentbears the initial burden ofdemonstrating the absence ofa genuine issue of material fact. 

### Celotex Corp. v. 

### Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summaryjudgment, however, "may notrely merely on allegations or denials in its own pleading; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). In deciding whether there is a disputed issue of material fact, the Court must draw alljustifiable inferences in favor ofthe non-moving party. 

### Anderson v. 

### LibertyLobby, Inc., 477 U.S. 242, 255 (1986). 

### I. Plaintiff's Complaint Was Untimely A federal employee is required to file suit within ninety days offinal administrative action. 42 U.S.C. § 2000e-16(c) (federal employees must file a civil action within ninety days after "receipt ofnotice offinal action."); 

### see also 29 C.F.R. 

### § 1614.407(a). Courts apply the ninety-day time limit strictly. 

### See, e.g., Woodruffv.
3

### Peters, 482 F.3d 521,525 (D.C. Cir. 2007); 

### Strong-Fischer, 554 F. Supp. 2d at 23, 

### Wiley
v. 

### Johnson, 436 F. Supp. 2d 91,96 (D.D.C. 2006). Receipt ofnotice offinal action
occurs whenthe agency delivers notice to a claimant orhis attorney, and delivery to the attorney's office, even ifnot to the attorney himself, is sufficient. 

### See Irwin v. 

### Dep'tof VeteransAffairs, 498 U.S. 89,92-93 (1990). Delivery to a claimant's home address,
even ifnotto the claimanthimself, is also sufficient. 

### See Million v. 

### Frank, 47 F.3d 385, 388 (10th Cir. 1995) ("In the absence ofequitable considerations demanding a different result, receipt at a plaintiffs address ofthe rightto sue letter constitutes receipt sufficient to start the running ofthe time period for filing a discrimination action."); 

### cfIrwin, 498 U.S. at 92-94 (stating thatplaintiffs attorney's receipt ofthe EEOC's right-to-sue letter could trigger the limitations period regardless ofwhether plaintiffhimselfhad actual notice ofreceipt). Here, the FAD was delivered to House's home by certified mail on December 20, 2007. Def.'s Ex. 1. To fall within the ninety-day window, House had to file a complaint
on or before March 19,2008. However, he did not file his complaintuntil March 20, 2008, one day after the deadline. House admits that he filed his complaint one day afterthe applicable period had expired, but states that he did not personally receive the FAD until December 21, 2007. PI.'s Ex. 1,**~** 1. However, the ninety-day clockbegan to tick onthe day the FAD was

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### delivered to House's home. 2 

### He failed to abide by thattime limit and his complaint must therefore be dismissed. 

### II. PlaintiffIs Not Entitled to Equitable Tolling Becausethe ninety-day time period is non-jurisdictional, it functions like a statute oflimitations and is subjectto waiver, estoppel, and equitable tolling, but only in "extraordinary and carefully circumscribed instances." 

### Wiley, 436 F. Supp. 2d at 96 (citing

### Mondy v. 

### Sec'y a/theArmy, 845 F.2d 1051, 1057 (D.C. Cir. 1988». Courts may properly allow tolling where "aclaimant has received inadequate notice,
... where a motion for appointment ofcounsel is pending and equity wouldjustifytolling the statutory period until the motion is acted upon, ...where the court has led the plaintiffto believe that [he] had done everythingrequired of[him],
... [or] where affirmative misconduct on the part ofadefendant lulled the plaintiffinto inaction." 

### Mondy, 845 F.2d at 1057 (quoting

### Baldwin County Welcome Ctr. v. 

### Brown, 466 U.S. 147, 151 (1984». Otherwise, courts "have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." 

### Irwin, 498 U.S. at 96. In other words, to toll the ninety-day deadline, the plaintiffmust have exercised due diligence and his excuse for the delayed filing must be more than "agarden variety claim ofexcusable neglect." 

### Id. The burden ofpleading and proving any equitable excuse for failure to meet the ninety-day filing limit falls wholly upon the plaintiff. 

### Strong-Fischer, 554 F. Supp. 2d at 23.

2 Moreover, plaintiffaddresses only the question ofequitable tolling in his opposition, and therefore concedes that his complaint was untimely. 

### 5House missed the applicable window oftime to file his complaint, and he provides
no excuse that would toll the clock. He states that (1) his lawyerpassed away on October 15,2007, andhe learned ofit one or two weeks afterward, Pl.'s Ex. 1,**~** 2, Def.'s Ex. 2; (2) his previous law firm informed him onMarch 19,2008that it would no longer represent him, PI.'sEx. 1,**~** 3; and (3) the lawyerhe spoke to gave him the incorrect paperworkto file with the court, thus delaying the filing by a day. 

### Id. However, House learned ofhis lawyer's death before the FAD issued. He had well over four months to ascertain whetherthe law firm would continue with his case. Thathe waited until the last possible day before discovering that his deceased lawyer's firm would not represent him is not an extraordinary circumstance deserving ofequitable tolling. To the contrary, it is the exact type of"garden variety neglect" the Supreme Court cautioned against in 

### Irwin. Thus, for the foregoing reasons, defendant's motion to dismiss, treated as a motion for summaryjudgment, is GRANTED.

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# 'IU~ RICHARD L ON United States District Judge