Hogue v. McDonald

Filing 39

MEMORANDUM OPINION & ORDER re: 23 MOTION for Summary Judgment filed by Robert A. McDonald. Defendant's motion for summary judgment is hereby GRANTED. The Clerk of Court is directed to terminate the motion at ECF No. 23 and to terminate this action. (Signed by Judge Katherine B. Forrest on 2/13/2017) (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHRISTINA HOGUE,
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Plaintiff,
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-v:
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ROBERT A. McDONALD, Secretary of the U.S. :
Department of Veteran Affairs,
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Defendant.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 13, 2017

16-cv-5841 (KBF)
MEMORANDUM
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Plaintiff commenced this action on July 21, 2016, alleging unlawful
discrimination and retaliation by her former employer, the Department of Veterans
Affairs (“VA”), under 42 U.S.C. § 2000e et seq. (“Title VII”) and 29 U.S.C. § 701 et
seq. (ECF No. 1.) On January 4, 2017, defendant moved for summary judgment on
the basis that plaintiff’s complaint was not filed within 90 days of her receipt of the
agency’s final action and is therefore statutorily time-barred. (ECF No. 23.)
Plaintiff filed a Response to defendant’s Rule 56.1 Statement, (ECF No. 38),
but failed to file a memorandum of law in opposition to the motion as required by
Local Rule 7.1. This alone is a sufficient basis to grant defendant’s motion. See,
e.g., Healthfirst, Inc. v. Medco Health Solutions, No. 03-cv-5164, 2006 WL 3711567
at *3 (S.D.N.Y. Dec. 15, 2006). But, in addition, the undisputed facts show that

plaintiff’s complaint is untimely, and plaintiff provides no basis for equitable tolling
of the statutory filing period. Defendant’s motion is therefore GRANTED.
The following facts are undisputed unless otherwise indicated. On October 2,
2014, plaintiff contacted an Equal Employment Opportunity representative to
report alleged discrimination against her by a VA employee. (Pl. Response to Def.
Rule 56.1 Statement of Undisputed Material Fact (“Pl. 56.1”) ¶ 1, ECF No. 38).
Plaintiff, through her current counsel, filed a formal complaint of employment
discrimination with the VA on November 20, 2014. (Id. ¶ 2.) On March 7, 2016, the
VA’s Office of Employment Discrimination Complaint Adjudication issued its Final
Agency Decision (“FAD”), which stated that plaintiff had the right to file an appeal
with the Equal Employment Opportunity Commission (“EEOC”) within 30 days and
that plaintiff had a right to file a civil action in federal court “within 90 days of the
receipt of this final decision if no appeal.” (Id. ¶¶ 3, 4.) Plaintiff did not appeal. (Id.
¶ 12.)
The VA sent plaintiff and her current counsel copies of the FAD via certified
mail on March 7, 2016, and a signed certified mail receipt addressed to plaintiff’s
current counsel shows it was received by him on March 11, 2016, at 10:51 a.m. (Id.
¶¶ 5-7.) Plaintiff’s copy was returned marked “Unclaimed” by the U.S. Postal
Service. (Id. ¶ 8.) On April 20, 2016, a local VA Equal Opportunity Specialist
emailed the FAD to plaintiff, who signed an Acknowledgment of Receipt form on
April 21, 2016. (Id. ¶¶ 9, 10.) Defendant alleges that plaintiff returned the signed
acknowledgment form on April 22, 2016; plaintiff alleges that she returned the form
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on April 21, 2016. (Id. ¶ 11.) Plaintiff alleges that the VA Equal Opportunity
Specialist told her that she had 90 days from April 22, 2016, to file her civil action,
that she relayed this statement to her attorney, and that she and her attorney
relied on this statement in filing her complaint on July 21, 2016. (Id. ¶¶ 13-19.)
Summary judgment may only be granted if the movant demonstrates, based
on admissible evidence in the record, “that there is no genuine dispute at to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The movant bears the burden of “demonstrat[ing] the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are “facts that might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(stating that the non-movant “must do more than simply show that there is some
metaphysical doubt as to the material facts”). The Court must “construe all
evidence in the light most favorable to the nonmoving party, drawing all inferences
and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732,
740 (2d Cir. 2010).
A plaintiff “may initiate a Title VII court action within 90 days of the
notification by the [EEOC] that it is unable or unwilling to settle the dispute
between employee and employer.” Johnson v. AL Tech Specialties Steel Co., 731
F.2d 143, 144 (2d Cir. 1984); 42 U.S.C. § 2000e-16(c). This provision, though subject
to equitable tolling, is a “condition to the waiver of sovereign immunity and thus
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must be strictly construed.” Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 94
(1990). A “plaintiff’s complaint is time barred [if] she file[s] it more than 90 days
after her attorney receive[s] notice from the Equal Employment Opportunity
Commission that she ha[s] a right to sue in federal court.” Townsend v. Homes for
the Homeless, Inc., 28 F. App’x 85, 86 (2d Cir. 2002).
Plaintiff concedes untimeliness—she does not dispute that her counsel
received the FAD on March 11, 2016, nor does she dispute that she received the
FAD by email on April 20, 2016, and signed an Acknowledgement of Receipt form
for the FAD on April 21, 2016. (Pl. 56.1 ¶¶ 6, 10, 11.) Rather, plaintiff states she
relied upon an alleged representation by a VA staff member that plaintiff had 90
days from April 21, 2016, to file a civil action, and that plaintiff’s attorney in turn
relied upon plaintiff’s report of this representation despite receiving the FAD over
month earlier. (See id. ¶¶ 13-16.) Plaintiff offers no reason why her or her
attorney’s reliance upon the alleged statement by the VA staff member was
reasonable, and in all events her attorney received the FAD on March 11, 2016,
which alone is sufficient to start the 90-day filing clock. See Townsend, 28 F. App’x
at 86. Plaintiff thus provides no basis for equitable tolling of the statutory filing
deadline, and her complaint is time-barred.

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Defendant’s motion for summary judgment is hereby GRANTED. The Clerk
of Court is directed to terminate the motion at ECF No. 23 and to terminate this
action.
SO ORDERED.
Dated:

New York, New York
February 13, 2017

______________________________________
KATHERINE B. FORREST
United States District Judge

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