MILFORD v. KATHLEEN SEBELIUS

Filing 13

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 3/22/2013; that Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Docket Entry 4 ) is GRANTED and judgment as a matter of law is entered for Defendant pursuant to a contemporaneously filed Judgment. FURTHER that Plaintiff's Request for Extension of Time (Docket Entry 12 ) is DENIED AS MOOT. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CAROLYN MILFORD,
Plaintiff,
v.
KATHLEEN SEBELIUS, SECRETARY,
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Defendant.

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1:09CV941

MEMORANDUM OPINION AND ORDER
The instant case comes before the undersigned United States
Magistrate Judge for a ruling on Defendant’s Motion to Dismiss or
in the Alternative for Summary Judgment (Docket Entry 4) and
Plaintiff’s Request for Extension of Time (Docket Entry 12).
Docket Entries dated Apr. 8, 2010, and Feb. 29, 2012.)1

(See

For the

reasons that follow, the Court will grant Defendant’s Motion and
deny Plaintiff’s Request as moot.2
Procedural Background
Plaintiff brought this action “to restrain Defendant from
discriminating against Plaintiff because of Plaintiff’s disability,
age and sex with respect to hire [sic], terms, conditions, and
privileges of employment opportunities, the right to contract and
1

The Parties have consented to disposition of this case by
a United States Magistrate Judge. (Docket Entry 11.)
2

Because the Court looks to evidence outside the
pleadings, it will treat Defendant’s Motion as one for summary
judgment. See Fed. R. Civ. P. 12(d).

otherwise adversely affect Plaintiff’s status as a citizen and
employee.”

(Docket Entry 1, ¶ 1.)

The Complaint identifies

Plaintiff as “a former Administrative Technician, GS-6, for the
National Institute for Environmental Health Services (NIEHS),
Division of Intramural Research, Laboratory of Molecular Genetics
(LMG), in Durham, North Carolina.”

(Id. ¶ 6.)

The Complaint

identifies Defendant as “Secretary of the Department of Health and
Human Services.” (Id. ¶ 5.) The Complaint alleges that Plaintiff,
a Black 59-year-old female with a physical disability, “was subject
to harassment and discrimination based upon her race [], age [],
sex [], disability and reprisal . . . .”
According

to

Defendant,

“[o]n

or

(Id. ¶ 7.)
about

August

8,

2008,

Plaintiff contacted the Equal Employment Opportunity (‘EEO’) office
[of the Department of Health and Human Services (‘HHS’)], claiming
she had been discriminated against based on race, sex, color, age,
disability, and retaliation.”

(Docket Entry 5 at 2.)

Plaintiff

does not dispute this allegation for the purpose of this Motion.
(Docket Entry 8 at 2.)

In October of 2008, the EEO office notified

Plaintiff (through her attorney) that her “[EEO] discrimination
precomplaint has not been resolved [and she is therefore] entitled
to file a formal complaint of discrimination as stated in 29 C.F.R.
1614.105(d).”

(Docket Entry 5-3 at 2.)

The letter further

indicated that, because Plaintiff raised “a mixed case matter,”
Plaintiff

could

file

her

formal

-2-

complaint

with

the

National

Institutes of Health Office of Equal Opportunity and Diversity
Management (“OEODM”) or with the Merit Systems Protection Board
(“MSPB”), but not both.

(Id.)

Plaintiff thereafter filed an

Individual Formal Complaint of Employment Discrimination with the
OEODM.

(See Docket Entry 5-5 at 2-9.)

Approximately one year

later, Plaintiff received a final decision from the OEODM informing
her

of

“the

decision

of

[HHS]

that

discriminated against, as claimed.”

the

Complainant

was

not

(Docket Entry 5-8 at 2.)

Plaintiff thereafter initiated the instant action (Docket
Entry 1) and Defendant filed the instant Motion (Docket Entry 4),
asserting a time-bar (Docket Entry 5 at 4).

Plaintiff responded

(Docket Entry 8) and Defendant replied (Docket Entry 9). Plaintiff
later filed the instant Request (Docket Entry 12), to which
Defendant did not respond (see Docket Entries dated Feb. 27, 2012,
to present).
Discussion
Defendant argues that Plaintiff filed her Complaint more than
30 days after receiving a Final Agency Decision regarding her
formal complaint to HHS and, therefore, that her Complaint is
untimely.

(Docket Entry 5 at 4.)

The Code of Federal Regulations

provides that “[i]t is the policy of the Government of the United
States to provide equal opportunity in employment for all persons
[and to] prohibit discrimination in employment because of race,
color, religion, sex, national origin, age, disability, or genetic

-3-

information . . . .”

29 C.F.R. § 1614.101(a).

The Code defines a

“mixed case complaint” as “a complaint of employment discrimination
filed with a federal agency based on race, color, religion, sex,
national origin, age, disability, or genetic information related to
or stemming from an action that can be appealed to the [MSPB].”
C.F.R. § 1614.302(a)(1).

29

“An aggrieved person may initially file

a mixed case complaint with an agency pursuant to [29 C.F.R.
§ 1614] or an appeal on the same matter with the MSPB pursuant to
5 C.F.R. [§] 1201.151, but not both.”

29 C.F.R. § 1614.302(b).

“An individual who has a complaint processed pursuant to . . . [29
C.F.R. § 1614] is authorized by 5 U.S.C. [§] 7702 to file a civil
action in an appropriate United States District Court . . .
[w]ithin 30 days of receipt of a final decision issued by an agency
on a complaint unless an appeal is filed with the MSPB . . . .”

29

C.F.R. § 1614.310(a).
Plaintiff does not dispute that she filed her Complaint in the
instant matter more than 30 days after receiving the final decision
from the OEODM.

(See Docket Entry 8 at 3.)

However, she claims

entitlement to equitable tolling as to the period of delay because
the final decision was confusing with respect to when she had to
file her action in federal court.

(Id. at 4-5.)

The final

decision notice reads, in pertinent part:
If you are dissatisfied with this Final Agency Decision
(F.A.D.), within thirty (30) calendar days of receipt of
this correspondence, you have the right to appeal to [the
MSPB Regional Office].
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. . .
You also have the right to file a civil action in an
appropriate United States district court. If you choose
to file a civil action, you may do so:
• Within thirty (30) calendar days of receipt of this
F.A.D. if no appeal has been filed with the MSPB;
. . .
If the Complainant decides to file a civil action and
does not have or cannot afford the services of an
attorney, she may request that the Court appoint an
attorney to represent her, and that the Court permit her
to file the action without payment of fees, costs, or
other security.
The granting or denial of the request is within the sole
discretion of the Court.
Filing a request for an
attorney does not extend your time in which to file a
civil action. Both the request and the civil action must
be filed within ninety (90) calendar days of the date you
received the F.A.D. from the Agency, or the appellate
decision from the EEOC.
(Docket Entry 5-8 at 18-19 (emphasis in original).)
After receipt of the decision, Plaintiff’s attorney wrote to
the OEODM to ask for clarification as to the time for appeal.

(See

Docket Entry 8-2 at 1.) He pointed out the language indicating the
30-day window in which to appeal after the final decision, as well
as the language referencing a 90-day window.

(See id.)

alleges that her attorney received no response.
8 at 3.)

Plaintiff

(See Docket Entry

According to Plaintiff, “the confusion in stating the

option led to confusion and such conduct on the part of the agency
should not be rewarded.”

(Id. at 5.)

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In Irwin v. Department of Veterans Affairs, 498 U.S. 89
(1990),

the

United

States

Supreme

Court

recognized

that

the

principle of equitable tolling applies to suits against the United
States where Congress has waived sovereign immunity. Id. at 95-96.
However,

it

complainant

also
has

distinguished
been

induced

between
or

situations

tricked

by

his

“where

the

adversary’s

misconduct into allowing the filing deadline to pass” and those
“where the claimant failed to exercise due diligence in preserving
his legal rights,” noting that “[w]e have generally been much less
forgiving” of the latter.

Id. at 96.

The United States Court of Appeals for the Fourth Circuit
similarly has recognized the availability of equitable tolling in
claims against the United States.
F.3d 467, 470 (4th Cir. 1994).

See, e.g., Weick v. O’Keefe, 26

In Weick, the Fourth Circuit held

that equitable tolling applied where individuals the plaintiff
believed had discriminated against her lied to her during the
investigation she initiated regarding their reasons for choosing
another candidate over the plaintiff.

Id. at 468, 470-71.

The

court found that the individuals’ “deliberate misconduct had lulled
[plaintiff] into inaction, and the filing deadline for a formal
administrative complaint of discrimination had passed.”
470.

Id. at

In such cases, the Fourth Circuit “would excuse an untimely

filing under equitable tolling principles.”
Irwin, 498 U.S. at 95-96).

-6-

Id. at 471 (citing

However, the Fourth Circuit also has limited the availability
of equitable tolling to “‘those rare instances where - due to
circumstances external to the party’s own conduct - it would be
unconscionable to enforce the limitation period against the party
and gross injustice would result.’”

United States v. Sosa, 364

F.3d 507, 512 (4th Cir. 2004) (quoting Rouse v. Lee, 339 F.3d 238,
246 (4th Cir. 2003)).

“[T]o be entitled to equitable tolling, an

otherwise time-barred [plaintiff] must present (1) extraordinary
circumstances, (2) beyond his control or external to his own
conduct,

(3)

that

prevented

him

(internal quotation marks omitted).

from

filing

on

time.”

Id.

Alternatively, the plaintiff

must show she was “prevented from asserting [her] claims by some
kind of wrongful conduct on the part of the defendant.”
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
mistake

by

a

party’s

counsel

in

interpreting

Harris v.

Furthermore, “a
a

statute

of

limitations does not present the extraordinary circumstances beyond
the party’s control where equity should step in to give the party
the benefit of his erroneous understanding.”

Id. at 331.

The “confusion” alleged in the instant case neither rises to
the level of extraordinary circumstances beyond Plaintiff’s control
that prevented her from making a timely filing nor flows from
wrongful conduct by Defendant sufficient to warrant equitable
tolling.

The decision from the OEODM clearly indicated that

Plaintiff needed to file a civil action within 30 days of receipt

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of the decision.

(See Docket Entry 5-8 at 18.)

The language

concerning a 90-day window appeared within a discussion concerning
a plaintiff’s right to request court-appointed counsel, separate
from the prior notice as to the 30-day limitation period.
18-19.)

(Id. at

Further, the language in question did not negate the 30-

day requirement - in fact, it specifically stated that a request
for an attorney “does not extend your time in which to file a civil
action” (id. at 19) - but merely indicated that, should a plaintiff
request a court-appointed attorney, she must make both the request
and the civil action within 90 days of receipt of the agency
decision.

(Docket Entry 5-8 at 19.)3

Finally, a federal regulation clearly states that, in this
context, Plaintiff had to file a civil action within 30 days of the
receipt of the final agency decision. See 29 C.F.R. § 1614.310(a).
Accordingly, “even if [Defendant’s] denial letter[] did create some
confusion, albeit unintentionally, . . . any such confusion could
have been cured by the exercise of reasonable diligence on the part
of Plaintiff[] and [her] counsel, such as legal research . . . .”

3

Moreover, the entire discussion of the right to request
court-appointed counsel (including the related time limit) (see
Docket Entry 5-8 at 18-19) did not apply to Plaintiff, because she
had retained counsel throughout the OEODM review process (see
Docket Entry 5-5 at 2) and the OEODM referred all correspondence to
said counsel (see Docket Entry 5-3 at 2; Docket Entry 5-6 at 2;
Docket Entry 5-7 at 2; Docket Entry 5-8 at 2). That attorney also
sent the letter requesting clarification to the OEODM (see Docket
Entry 8-2 at 1) and filed the instant action in this Court on
behalf of Plaintiff (see Docket Entry 1 at 4).
-8-

Candelaria v. United States, No. CV 04-1773-GHK(Ex), 2004 WL
5458408,

at

*6

(C.D.

Plaintiff’s
applicable

statute

July

failure

attorney’s

Cal.

to

of

29,

2004)

(unpublished).

independently

limitations

precludes

research

the

finding

of

a

extraordinary circumstances warranting equitable tolling.

See

Harris, 209 F.3d at 331; see also Merritt v. Blaine, 326 F.3d 157,
169

(3d

Cir.

2003)

(recognizing

that

“attorney

error,

miscalculation, inadequate research, or other mistakes have not
been found to rise to the extraordinary circumstances required for
equitable tolling” (internal quotation marks omitted)).
In sum, equitable tolling is not warranted in this case.
Because the Court declines to toll the statutory period for filing,
Defendant’s instant Motion will be granted, given that Plaintiff
concededly failed to file her claim within the prescribed 30 days.4
Conclusion
Plaintiff

failed

to

file

the

instant

action

within

the

applicable statute of limitations and the circumstances of this
case do not warrant equitable tolling.

4

Plaintiff’s instant Request asks the Court to grant her
time to find a new attorney to represent her in this case, given
that her previous attorney passed away. (Docket Entry 12 at 1.)
Plaintiff filed the instant Request long after the completion of
briefing on Defendant’s instant Motion. Further, additional time
has passed since Plaintiff filed the instant Request.
Because
Plaintiff has had a reasonable amount of time to locate a new
attorney, her instant Request will be denied as moot.
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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss or
in the Alternative for Summary Judgment (Docket Entry 4) is GRANTED
and judgment as a matter of law is entered for Defendant pursuant
to a contemporaneously filed Judgment.
IT IS FURTHER ORDERED that Plaintiff’s Request for Extension
of Time (Docket Entry 12) is DENIED AS MOOT.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 22, 2013

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