The opinion of the court was delivered by: James Robertson, United States District Judge.
Plaintiff Christopher McKay, an African-American male, brings this employment action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging discrimination on the basis of race. Defendant moves for summary judgment on the grounds that McKay's complaint was not filed in a timely fashion. For the reasons set forth below, that motion must be granted.
Plaintiff has been employed by the Navy since 1980. He filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) on August 17, 1999, alleging discrimination on the basis of race, and was represented by his present attorney in proceedings before the EEOC. On July 31, 2001, an administrative judge in EEOC's Washington field office granted summary judgment for the Navy. The Navy then issued its final order on plaintiff's EEO complaint on August 24, 2001. That order advised plaintiff that he could appeal to the EEOC or sue, but that if he elected to sue he had to do so within 90 days of the day he received the order, and that if he failed to file suit within that 90-day period, his complaint might be dismissed. See Exhibit 4 to Defendant's Motion for Summary Judgment ("D. Ex. 4"). Plaintiff received this final order on September 5, 2001. D. Ex. 3. His attorney received a copy of the final order on September 11, 2001. Plaintiff filed his complaint in this Court on December 7, 2001, 93 days after he received the order.
A federal employee may file a civil action in district court under Title VII "[w]ithin 90 days of receipt of notice of final action taken by a department, agency . . . or the [EEOC]." 42 U.S.C. § 2000e-16 (c). If a complaint is not filed within that time period, it may be dismissed as untimely. See, e.g., Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976) (dismissal of complaint as untimely was proper when plaintiff filed suit after Section 2000e-16(c)'s limitations period); Tyler v. Henderson, No. 00-0060, 2001 WL 194930 at *5 (D.D.C. Feb. 22, 2001) (granting summary judgment for defendant when plaintiff failed to file suit within 90 days), aff'd, No. 01-5085, 2001 WL 1297501 (D.C. Cir. Sep. 12, 2001).
Here, defendant has presented a postal receipt signed by McKay, establishing that McKay personally received the final order on September 5, 2001. McKay does not dispute this, nor can he dispute the official court docket, establishing that his complaint was filed on December 7, 2001. See Smith v. Dalton, 971 F. Supp. 1, 3 (D.D.C. 1997) (date of filing of complaint established by official docket).
The only argument McKay makes in response to the defense of untimeliness is that his attorney did not receive the final order until September 11, 2001, so that it was September 11, and not September 5, that started the running of the 90-day period. He offers no caselaw in support of that proposition, and indeed the Supreme Court has suggested the contrary proposition: that notice of a final action is considered received by a claimant when the notice reaches either a claimant or the claimant's attorney, whichever comes first. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92 (1990) (affirming Fifth Circuit's holding, which relied on that proposition); see also id. at 97 (White, J., concurring) ("I agree with the Court that the 30-day period under 42 U.S.C. § 2000e-16 (c) begins to run when the notice from the [EEOC] is delivered either to the claimant or the claimant's attorney . . .").
The Seventh Circuit Court of Appeals explicitly adopted that exact rule in Threadgill v. Moore U.S.A., Inc., 269 F.3d 848 (2001), cert. denied, 535 U.S. 970 (2002). In that case, the EEOC mailed a right-to-sue notice to the claimant, but never mailed a copy to claimant's attorney, even though the attorney had previously requested that he be sent any right-to-sue notice. Id. at 849. Plaintiff/claimant filed suit more than 90 days after he had received notice, but argued that the 90-day limitation should have commenced only upon receipt of notice by his attorney. Id. at 850. The Court rejected this contention:
Two types of receipt of a right-to-sue notice can start
running the 90-day limitation period, and each does so
equally well: actual receipt by the plaintiff, and
actual receipt by the plaintiff's attorney (as such
receipt constitutes constructive receipt by the
plaintiff). Both methods of receipt focus on notice to
the plaintiff. The attorney's receipt is pertinent only
because he is an agent of the plaintiff. If, as in the
instant case, the plaintiff actually receives notice
from the EEOC, the attorney's receipt is irrelevant; it
simply is not required for the 90-day period to begin
Id. (internal citation omitted); see Noe v. R.A. Ward, 754 F.2d 890
, 892 (10th Cir. 1985) ("[P]laintiff herself received notice more than 90 days before suit was filed. She may not now complain that the 90 days did not begin to run until the receipt of the `Right to Sue' letter by her attorney seven days later"); Leonard v. Rumsfeld, 146 F. Supp.2d 1227, 1237 (M.D. Ala.) (even though plaintiff had requested that her attorney be provided copy of all correspondence, "[p]laintiff's actual receipt of the final agency decision commenced the running of the ninety day period . . . despite the agency's failure to provide the notice to plaintiff's attorney"), aff'd, No. 01-13847, 2001 WL 1690557 (11th Cir. 2001).
McKay's reliance on 29 C.F.R. § 1614.605 (d) for support of his argument is misplaced. That regulation states, in pertinent part, that "[w]hen the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of materials shall be computed from the time of receipt by the attorney." First, as plaintiff himself concedes, this regulation applies to administrative proceedings before the EEOC; it does not purport to apply to the limitations period for filing suit in federal court. Second, the same regulation contemplates that a complainant "shall at all times be responsible for proceeding with the complaint whether or not he or she has designated a representative." 29 C.F.R. § 1614.605 (e). This latter subsection reflects the common-sense axiom that a plaintiff must shoulder some responsibility for advancing his complaint. See Leonard, 146 F. Supp.2d at 1237 ("Plaintiff's actual receipt of the final agency decision commenced the running of the ninety-day period. . . . To hold otherwise would be to relieve plaintiff of the . . . requirement that she assume some minimal responsibility for the resolution of her dispute"); Carney v. City of Shawnee, Kan., 24 F. Supp.2d 1185, 1189 (D. Kan. 1998) (citing 29 C.F.R. § 1614.605 (e), court held that 90-day period began running on day plaintiff received notice, even though plaintiff's attorney had requested, but never gotten, receipt of right to sue letter).*fn1 Plaintiff here had actual notice of the final order, containing an explicit warning that he must file suit in federal court within 90 days of his receipt of that notice, and he failed to act in a timely fashion.
The 90-day period is subject to equitable tolling. See Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998). However, a Title VII plaintiff bears the burden of pleading and proving equitable reasons for his failure to adhere to the 90-day limit. See Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982); Dalton, 971 F. Supp. at 3. This plaintiff has neither asserted nor attempted to prove any reason why the doctrine of equitable tolling should apply, and no such reason is apparent from the record. The 90-day period accordingly will not be equitably tolled. See Rochon v. Attorney General of United States, 710 F. Supp. 377, 379 (D.D.C. 1989) (no equitable tolling when plaintiff had not asserted that time limits should be tolled, and no reason to toll apparent from the record).
An appropriate order accompanies this ...