The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Yanelle Strong*fn1 brings this suit against the Secretary of Transportation, alleging employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The Secretary has moved to dismiss, arguing that Strong failed to meet the deadline under Title VII for filing suit in federal court, and failed to timely effect proper service as is required under Federal Rule of Civil Procedure 4. Because Strong's Title VII claims are time-barred and she is not entitled to equitable tolling, the Secretary's motion to dismiss those claims, treated as a motion for summary judgment, will be granted.*fn2 However, because Strong served the Secretary within the time afforded to her by the court, Strong's § 1981 claim will survive the Secretary's motion to dismiss.
Strong submitted a letter of resignation as an employee of the Federal Aviation Administration, but sought unsuccessfully to rescind her resignation. She alleges that she was subjected to racial and sexual discrimination, retaliation, and a hostile work environment which culminated in her supervisor's refusal to rescind her resignation. Strong filed a formal charge with the Equal Employment Opportunity Commission ("EEOC"), and after the EEOC rendered a final agency decision ("FAD"), Strong's attorney, Brian Plitt, received a letter on October 3, 2006 informing Strong of her right to file a civil suit in federal district court. (See Def.'s Mem. of P. & A. in Support of Def.'s Mot. to Dismiss or Transfer ("Def.'s Mot.") Exs. 1, 2.) Plitt also received an additional copy of the letter on November 7, 2006. (See Pl.'s Mem. of P. & A. in Support of Pl.'s Response to Def.'s Mot. to Dismiss or Transfer ("Pl.'s Opp'n") at 6 & Ex. 1.) On February 5, 2007, Strong filed the instant complaint.
The Secretary has moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Title VII claims, arguing that Strong failed to file her complaint within ninety days of Plitt's receipt of the first letter, as is required by Title VII. The Secretary also alleges that Strong failed to timely serve process. Strong opposes, insisting that her complaint was timely because she filed it within ninety days of Plitt's receipt of the second letter, and that even if she were deemed to have missed the deadline, she is entitled to equitable tolling. Strong also insists that she served the Secretary within the time afforded to her by the court.
A party may move under Federal Rule of Civil Procedure 12(b)(6) to dismiss a complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). "A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint." DePippo v. Chertoff, 453 F. Supp. 2d 30, 33 (D.D.C. 2006) (citing Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)). A court should grant a pre-discovery motion to dismiss on statute of limitations grounds "only if the complaint on its face is conclusively time-barred." DePippo, 453 F. Supp. 2d at 33 (citing Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). "If 'no reasonable person could disagree on the date' on which the cause of action accrued, the court may dismiss a claim on statute of limitations grounds." DePippo, 453 F. Supp. 2d at 33 (quoting Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475 (D.D.C. 1998)).
"If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed. R. Civ. P. 12(d). Since matters beyond the pleadings will be considered,*fn3 the Secretary's motion will be treated as one for summary judgment. See Mulhall v. Dist. of Columbia, 747 F. Supp. 15, 19 (D.D.C. 1990).
Summary judgment may be granted only where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."*fn4 Fed. R. Civ. P. 56(c); Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). The relevant inquiry "is the threshold inquiry of determining whether there is a need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one that is capable of affecting the outcome of the litigation. Id. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 251-52. The burden falls on the moving party to provide a sufficient factual record that demonstrates the absence of a genuine issue of material fact. See Beard v. Banks, 126 S.Ct. 2572, 2578 (2006). "Once the moving party has carried its burden . . . [t]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Taylor v. Blakey, 490 F.3d 965, 972 (D.C. Cir. 2007) (internal quotations and citation omitted) (emphasis in original). In considering a motion for summary judgment, all "justifiable inferences" from the evidence are to be drawn in favor of the non-movant. Anderson, 477 U.S. at 255.
"Federal employees may . . . bring Title VII lawsuits in federal district court [only] if they have exhausted remedies available through administrative processes and filed suit within 90 days of final administrative action." Price v. Greenspan, 374 F. Supp. 2d 177, 184 (D.D.C. 2005) (citing 42 U.S.C. § 2000e-16(c)). Courts have observed the ninety-day time limit strictly. See Wiley v. Johnson, 436 F. Supp. 2d 91, 96 (D.D.C. 2006) (citing Smith v. Dalton, 971 F. Supp. 1, 2-3 (D.D.C. 1997) (barring a suit filed ninety-one days after a final agency action)). "However, the ninety-day time period is non-jurisdictional -- it functions like a statute of limitations and is subject to waiver, estoppel, and equitable tolling." Wiley, 436 F. Supp. 2d at 96 (citing Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)).
"Court[s] typically extend equitable relief when 'a claimant has received inadequate notice, . . . where the court has led the plaintiff to believe that she had done everything required of her, or where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction.'" DePippo, 453 F. Supp. 2d at 33 (quoting Wiley, 436 F. Supp. 2d at 96). "In other words, to apply equitable tolling, the plaintiff must have exercised due diligence and his excuse for the delayed filing must be 'more than a garden variety claim of excusable neglect.'" Id. Plaintiff carries the burden of "pleading and proving any equitable excuse for failure to meet the ninety-day filing limit[.]" Wiley, 436 F. Supp. 2d at 96 (citing Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982)).
A party may move under Federal Rule of Civil Procedure 12(b)(5) to dismiss a complaint for insufficiency of service of process. See Fed. R. Civ. P. 12(b)(5). "Upon such a motion, the plaintiff carries the burden of establishing that [she] has properly effected service" as is required under Rule 4. See Koerner v. United States, 246 F.R.D. 45, 46 (D.D.C. 2007) (internal quotations and citation omitted). Rule 4(m) requires that service of summons and the complaint be made upon the defendant "within 120 days after the complaint is filed[.]" Fed. R. Civ. P. 4(m). However, courts "must extend the time for an appropriate period" if the plaintiff shows good cause for failure to effect timely service. See id. "If the plaintiff fails to effect proper service within the 120-day limit enumerated in the Rule, or within the time period designated by the Court, the plaintiff carries the burden of showing good cause for the failure." Candido v. Dist. of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007). "[U]nless the procedural requirements for effective service of process are satisfied, a court lacks authority to exercise personal jurisdiction over the defendant." Id.