De La Paz v. Brennan

Filing 24

ORDER treating 14 Motion to Dismiss for Failure to State a Claim at dkt 14 as a Motion for Summary Judgment; motion for summary judgment granted. Signed by Judge John W. Sedwick on 12/14/15. (PRR, COURT STAFF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ALASKA

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MARITES G. DE LA PAZ,

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Plaintiff,
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vs.
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MEGAN J. BRENNAN, POSTMASTER )
GENERAL, UNITED STATES POSTAL )
SERVICE,
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Defendant.
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1:15-CV-00005 JWS
ORDER AND OPINION
[Re: Motion at docket 14]

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I. MOTION PRESENTED
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At docket 14, Defendant Megan J. Brennan, Postmaster General of the United
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States Postal Service (“Defendant”), filed a motion to dismiss pursuant to Rule 12(b)(6)
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of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies.
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Plaintiff Marites G. De La Paz (“Plaintiff”) responds at docket 16. Defendant replies at
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docket 20. She files supplemental material at dockets 19 and 22. Oral argument was
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not requested and would not assist the court.
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II. BACKGROUND
Plaintiff filed a formal EEO complaint of discrimination on March 31, 2014. On

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September 2, 2014, she received the EEO investigation report.1 The report stated that

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Plaintiff had 30 days to request a hearing before an administrative law judge (“ALJ”) or a

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final agency decision without a hearing (“FAD”) would be issued. Thus, Plaintiff’s

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deadline for requesting a hearing with an ALJ was October 2, 2014. The investigative

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report included the form necessary to request a hearing, and it outlined what would

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follow any final ALJ decision. Plaintiff did not request a hearing at that time, and,

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consequently, on November 20, 2014, the United States Postal Service (“USPS”)

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issued a FAD, denying her claim.2 Plaintiff and her attorney received the FAD on

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November 24, 2014.

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The FAD provided notice of Plaintiff’s appeal rights.3 Plaintiff had the right to

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appeal the FAD to the Equal Employment Opportunity Commission (“EEOC”) within 30

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calendar days of receipt of the decision. Thus, Plaintiff’s appeal deadline was

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December 24, 2014. The FAD instructed Plaintiff to use Form 573 when filing an

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appeal with the EEOC and to mail the form to the EEOC’s Office of Federal Operations

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in Washington, D.C. The FAD informed Plaintiff that a copy of the necessary form was

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attached to the decision, and, indeed, the form was included with Plaintiff’s FAD.4 The

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FAD also informed Plaintiff that, rather than filing an appeal with the EEOC, she could

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bring a civil action in the appropriate U.S. District Court within 90 calendar days of her

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receipt of the FAD. Plaintiff’s deadline for filing a civil action was February 25, 2015.

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On December 23, 2014, Plaintiff, through her attorney, filed a request for a
hearing with an ALJ, even though the deadline for such a request had passed and the

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Doc. 16-2.

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Doc. 16-4.
Doc. 16-4 at pp. 28-29.
Doc. 16-4 at p. 30

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USPS had already issued its FAD. She sent the request to the EEOC’s Hearing Unit in

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Seattle, Washington. She did not file the requisite appeal form with the EEOC’s Office

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of Federal Operations in Washington D.C. The EEOC’s Hearing Unit processed the

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request, and the USPS then designated a representative as directed.5 A status

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conference with the administrative law judge was held on March 24, 2015, and the

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parties proceeded with discovery. Plaintiff filed her civil action with the court on May 20,

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2015, and, given the pending civil action, the ALJ consequently dismissed the EEOC

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complaint.6 Defendant filed the motion to dismiss based on Plaintiff’s failure to file her

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Title VII action within the 90-day filing period.

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III. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s claims.

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In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken

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as true and construed in the light most favorable to the nonmoving party.”7

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The requirement for filing a Title VII civil action within 90 days constitutes a

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statute of limitations rather than a jurisdictional prerequisite.8 Therefore, the motion to

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dismiss based on the timeliness of the complaint can be brought as a Rule (12)(b)(6)

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motion.9 However, the failure to comply with the 90-day requirement is subject to the

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usual limitations defenses of waiver, estoppel, and equitable tolling.10 Such issues are

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Doc. 19-1; Doc. 16-6.

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Doc. 16-9.

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Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).

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Zipes v. Trans World Airlines, Inc., 455 U.S. 365, 393 (1982); Scholar v. Pac. Bell, 963
F.2d 264, 266–67 (9th Cir.1992).
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Tadesse v. Tungland Corp., No.13-cv-02440, 2014 WL 4755519, at *1 (D. Ariz.
Sept. 24, 2014); see also Anjelino v. New York Times Co., 200 F.3d 73, 88 (3d Cir. 1999)
(motions to dismiss for failure to file a Title VII civil action within the ninety-day filing period
should be considered under Rule 12(b)(6) and not 12(b)(1)).
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Zipes v. Trans World Airlines, Inc., 455 U.S. 365, 393 (1982); Scholar, 963 F.2d at 267.

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often resolved based on materials outside the pleading, and therefore “it is rarely

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appropriate to grant a Rule 12(b)(6) motion to dismiss” when such matters are at

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issue.11 “[O]nly if the assertions of the complaint, read with required liberality, would not

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permit the plaintiff to prove that the statute was tolled” should the motion to dismiss be

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granted.12

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Where the timeliness issue cannot be determined from the face of the complaint,

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a motion for summary judgment is the proper procedure. Under Rule 12(d), “if matters

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outside the pleadings are presented to and not excluded by the court, the motion must

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be treated as one for summary judgment under Rule 56," as long as the parties have

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been given an opportunity to present all material that is pertinent to the motion.13

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Here, Defendant raised the issue of timeliness through a Rule 12(b)(6) motion to

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dismiss and relied solely on the complaint. It is clear from the face of the complaint that

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it was not filed within the 90-day period. However, in response, Plaintiff raised equitable

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tolling and estoppel defenses and filed materials outside of the pleadings. Defendant

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then supplemented the record with her own materials in support of her argument that

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equitable tolling and estoppel do not apply. Given that both parties have had the

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opportunity to file materials with the court and given that the facts surrounding Plaintiff’s

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EEOC and district court filings are not in dispute, the motion will be converted to one for

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summary judgment.

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IV. DISCUSSION
It is undisputed that Plaintiff filed her civil action with the court on May 20, 2015,

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about three months after the 90-day filing deadline. It is also undisputed that Plaintiff

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did not file the correct appeal form, or any form for that matter, with the federal

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Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006).

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Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000) (internal quotation mark

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omitted).

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Fed. R. Civ. P. 12(d).

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operations office of the EEOC. She instead filed a request for an ALJ hearing with the

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EEOC’s Hearing Unit in Seattle. Plaintiff argues that her delay in filing the civil

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complaint is excusable because she reasonably believed she had properly filed an

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appeal with the EEOC and did not realize that the 90-day clock was running. She

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argues that the EEOC processed her request and the USPS participated in the ALJ

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hearing process without informing her that such a procedure was improper and

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untimely, thereby reaffirming her belief that the request for a hearing on her

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discrimination complaint effectively stopped the 90-day deadline clock from running.

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She requests that the court equitably toll the 90-day deadline during the time that her

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request for a hearing was being processed.
Equitable tolling is applied so that the court can “accord all the relief necessary to

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correct . . . particular injustices.”14 “Generally, a litigant seeking equitable tolling bears

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the burden of establishing two elements: (1) that he has been pursuing his rights

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diligently, and (2) that some extraordinary circumstances stood in his way.”15 “‘[A]

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garden variety claim of excusable neglect, such as a simple ‘miscalculation’ that leads a

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lawyer to miss a filing deadline, does not warrant equitable tolling.’”16 “Instead, a litigant

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must show that “extraordinary circumstances were the cause of his untimeliness and

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. . . ma[de] it impossible to file [the document] on time.”17

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Plaintiff has not shown the presence of extraordinary circumstances at play here.

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Plaintiff’s attorney filed a request for a hearing on a discrimination complaint that had

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already been finally decided by the USPS after she failed to timely request an ALJ

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hearing. Plaintiff and her attorney received the FAD, which indicated that she had not

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Holland v. Florida, 560 U.S. 631, 650 (2010) (internal quotation marks omitted).

Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (internal citations and
quotations omitted).

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Id. (quoting Holland, 560 U.S. at 651-52).
Id. (internal quotation mark omitted).

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requested a hearing on time. The FAD clearly laid out the next steps in the process,

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which was an appeal with the EEOC or a civil action in federal district court, not an ALJ

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hearing. The FAD instructed her to file a specific form if she wanted to appeal the

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decision and provided her with a copy of that specific form. There was nothing unclear

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or inadequate about the FAD’s instructions or its statement of her appeal rights.

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Plaintiff’s attorney simply failed to follow the directions. The court concludes that the

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failure of an attorney to correctly follow directions is tantamount to a deadline

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miscalculation, which the Supreme Court has described as “a garden variety claim” of

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attorney negligence that does not justify equitable tolling.18

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Plaintiff argues that mistakenly filing the wrong form is like a defective pleading

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and that a defective pleading should not prevent her from seeking relief in district court.

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While filing the incorrect form to in the incorrect office may nonetheless demonstrate

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diligence on Plaintiff’s part, equitable tolling also requires that an extraordinary

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circumstance—some obstacle outside of her control—prevented her from filing the

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proper appeal form. There was no such extraordinary circumstance here. Moreover,

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this was not a mere technical deficiency, where the wrong form was otherwise filed

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properly. Plaintiff did not actually file any appeal with the EEOC’s federal office as

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required; she requested a completely different procedure, and sent her request to a

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different department in a different city.

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Plaintiff also argues that the USPS’s actions prevented her from realizing her

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mistake in time when it appointed a representative and moved forward with the ALJ

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proceeding. In essence, Plaintiff raises an estoppel argument. Equitable estoppel

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requires a showing that the party to be estopped knew the true facts and intended to

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induce reliance on his actions or statements and that the other party was ignorant of the

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Holland, 560 U.S. at 651-52; see also Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir.
2010) (“Holland tells us that a simple legal mistake does not excuse an untimely filing.”);
Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014) (listing cases
in which attorney error did not support equitable tolling).

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true facts and, in fact, relied on the other party’s actions or statements.19 A party

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asserting equitable estoppel against the government must show that the government

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made an affirmative misrepresentation, actively concealed material facts, or otherwise

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engaged in affirmative misconduct.20 There has been no showing of affirmative

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misrepresentation or misconduct here. Plaintiff relies on the fact that the EEOC

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assigned an ALJ to the complaint, and the USPS designated a representative and

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moved forward with the hearing. However, as noted by Defendant, the 90-day deadline

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expired on February 25, 2015. All the EEOC did by that date was assign an ALJ and

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ask the USPS to appoint a representative. The USPS simply complied and appointed a

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representative. Such ministerial acts are not affirmative conduct. The fact that the

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agency participated in a status hearing and engaged in discovery in late March, after

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the February 25th deadline, is immaterial, as the 90-day deadline had already expired,

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and thus, Plaintiff could not have detrimentally relied on such conduct. Plaintiff provides

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no authority to support her argument that Defendant had a duty to inform her attorney

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that the request for an ALJ hearing was untimely and was not the proper appeal

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procedure.

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V. CONCLUSION
Based on the preceding discussion, Defendant’s motion at docket 14 is

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GRANTED. The court having granted summary judgment for defendant, the Clerk will

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please enter judgment for defendant.

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DATED this 14th day of December 2015.

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/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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Baccei v. United States, 632 F.3d 1140, 1147 (9th Cir. 2011).
Id.

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