The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Carlos M. Ruiz ("plaintiff"), proceeding pro se, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the U.S. Department of Agriculture ("USDA") discriminated against him on the basis of his Hispanic national origin while he was employed as a Computer Assistant at the USDA's International Institute of Tropical Forestry in San Juan, Puerto Rico. Presently before the Court is defendant's motion to dismiss plaintiff's complaint or, in the alternative, for summary judgment, or for transfer to the United States District Court for the District of Puerto Rico. In his motion, defendant argues that (1) plaintiff failed to exhaust his administrative remedies as to certain claims; (2) plaintiff failed to timely file his action within ninety (90) days of receiving his right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"); and (3) venue is improper in the District of Columbia. For the reasons set forth below, the Court will grant defendant's motion to dismiss for failure to comply with the 90-day statute of limitations imposed by 42 U.S.C. § 2000e-5(f)(1).
In May 2002, plaintiff began working as a Computer Assistant at the International Institute of Tropical Forestry ("IITF") in San Juan, Puerto Rico. Compl. ¶ 1. Plaintiff alleges that from August 2002 until his departure from the IITF in August 2005, he was subjected to "constant harassment, hostile work conditions and discrimination." Id. ¶ 2.*fn1 Specifically, he claims that his Caucasian supervisor, Lynda Lynch, "constantly interfered" with his attempts to complete his work, as she demanded that he perform his "website-manager duties" in a manner that was inconsistent with the regulations mandated by the Chief of the U.S. Forest Service. Id. According to plaintiff, Lynch accused him of "not knowing what [he] was doing," id. ¶ 6, called him a "bureaucrat" in an insulting manner, and told him that "she did not have time for [his] games," id. ¶ 11. Lynch subsequently removed plaintiff's website managerial duties -- allegedly "without justification," see id. ¶ 6 -- and hired a Caucasian woman to replace plaintiff as the IITF website manager, id. ¶ 13. Once he was no longer responsible for maintaining the IITF website, plaintiff's job included only "minimal computer support duties," which caused his position to be at risk during the agency reorganization. See id. ¶¶ 14-15.
In November 2003, plaintiff complained to Ariel Lugo, Director of IITF, and Tito Santiago, IITF's Human Resources Officer, about Lynch's alleged "discriminatory actions and unfair practices." Id. ¶ 14. On June 3, 2005, plaintiff filed a formal complaint with the USDA Office of Civil Rights, alleging that he had been discriminated against on account of his Hispanic national origin. See USDA Compl. at 1. Once he filed his complaint, plaintiff claims that he was retaliated against by Lugo and Santiago, who accused him of having "sabotag[ed]" the IITF website and told him that he had a "bad attitude." See Compl. ¶¶ 16-17. Three days after filing his complaint, plaintiff was reassigned to another office. See USDA Compl. at 1. Then, on August 17, 2005 -- shortly before plaintiff's official departure from IITF -- plaintiff found a "counseling" memorandum on his desk-chair, allegedly drafted by Santiago, which criticized plaintiff's work performance and accused him of "manipulating [his] leave to milk the institute for their [sic] money." Compl. ¶ 18; see also Def.'s Mot., Ex. 2 ("Ruiz Letter") at 1.*fn2 Plaintiff was so upset that the memorandum had been left in a public place where his colleagues could read it that he allegedly suffered an anxiety attack, which required emergency medical care. Compl. ¶ 18.
After this incident, plaintiff submitted an amended complaint to the USDA Office of Civil Rights. See USDA Am. Compl. at 1. The USDA consolidated plaintiff's two complaints on September 30, 2005, and explained that it would investigate (1) whether plaintiff was subject to discrimination based on his Hispanic national origin when he was reassigned on June 6, 2005; and (2) whether he was subject to discrimination based on his Hispanic national origin when he received the counseling memo on August 17, 2005. Id. The USDA subsequently issued a final decision denying plaintiff's request for relief, which plaintiff appealed to the EEOC in October 2008. See Pl.'s Opp. to Def.'s Mot. to Dismiss [Docket Entry 5] ("Pl.'s Opp.") at 3. The EEOC affirmed the agency's decision, and plaintiff requested reconsideration of the EEOC's decision. See id. On June 19, 2009, the EEOC denied plaintiff's request for reconsideration, and notified plaintiff that he had 90 days from his receipt of the decision to file a civil action against the Secretary of the Department of Agriculture. See Compl., Ex. 1 ("EEOC Decision") at 1-2; see also Def.'s Mot., Ex. 4 (same) at 1-2. Plaintiff's complaint does not specify the date on which he received the EEOC decision denying his request for reconsideration (the "right-to-sue letter"). However, the certificate of mailing attached to the EEOC decision states that "the Commission will presume that this decision was received within five (5) calendar days after it was mailed." See EEOC Decision at 3.
On September 16, 2009, plaintiff submitted an Application to Proceed Without Prepaying Fees or Costs (an application to proceed in forma pauperis or an "IFP application") to this Court, and he attached his complaint to the application. See Pl.'s Opp. at 3-4; see also Compl., Ex. 2; Def.'s Mot., Ex. 5 (same). On October 5, 2009, the Court denied plaintiff's request to proceed in forma pauperis, and explained to plaintiff that "[a]s a result of the Judge's ruling, your case has not been filed with our Court and is being returned to you at this time." Compl., Ex. 2; Def.'s Mot., Ex. 6 (same). More than four months later, plaintiff paid the requisite filing fee and filed his complaint, which was docketed by the Clerk of the Court on February 24, 2010. Plaintiff claims that his delay in filing after the Court's denial of his IFP application was due to the fact that he was "saving the money to be able to pay the court fees." See Pl.'s Opp. at 5. He further alleges that he consulted the local rules, but that he "could not find a reference to a time limit as to when or how to file the case after a request to proceed in forma pauperis is denied." Id. at 4.
Title VII requires that a plaintiff file a civil action within 90 days of receiving notice from the EEOC of his right to sue. See 42 U.S.C. § 2000e-5 (f)(1). The 90-day statutory period is not a jurisdictional prerequisite to filing suit, but rather operates as a statute of limitations, and is thus an affirmative defense that can be raised in a pre-answer dispositive motion.
See Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 577-79 (D.C. Cir. 1998). Here, the EEOC issued its right-to-sue letter on June 19, 2009, see EEOC Decision at 2, but plaintiff's complaint does not specify when he received the letter. Where a plaintiff fails to plead the date that he received the right-to-sue letter, the court "must fix a presumptive date of receipt for purposes of determining whether Plaintiff complied with the ninety day filing requirement." Anderson v. Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 97 (D.D.C. 1995). Courts generally assume that the final EEOC decision was mailed on the same day that it was issued, see id., and that the plaintiff received the decision either three or five days after it was mailed. See, e.g., Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (finding that the "presumed date of receipt" was three days after the EEOC right-to-sue letter was issued); Smith-Haynie, 155 F.3d at 578 n.3 (applying Baldwin's three-day rule to a plaintiff's receipt of a right-to-sue letter); Anderson, 886 F. Supp. at 97 (noting that "[c]courts are divided as to the presumptive date of a right-to-sue letter," but that it is either three or five days after the letter's issuance).
The Court will apply the more generous five-day presumption in this case, given that the certificate of mailing accompanying plaintiff's right-to-sue letter specified the presumptive date of receipt as five days after the decision was mailed. See EEOC Decision at 3; see also Washington v. White, 231 F. Supp. 2d 71, 75 (D.D.C. 2002) (applying the five-day presumption where the certificate of mailing stated that the EEOC "will presume that [its] decision was received within five (5) calendar days after it was mailed"). The Court will therefore assume that plaintiff received the EEOC's final decision denying his request for reconsideration on June 24, 2009. Applying the 90-day statute of limitations from that date, plaintiff was required to file this civil action no later than September 22, 2009.
Defendant argues that plaintiff's complaint must be dismissed because he did not file suit until February 24, 2010 -- 245 days after receiving notice from the EEOC of his right to sue. See Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 11. Plaintiff counters that he did, in fact, file suit within the statutory period, because he attached his complaint to his IFP application, which he submitted to the Clerk of the Court on September 16, 2009 -- six days prior to the expiration of the 90-day statute of limitations. See Pl.'s Opp. at 3-4.
Several courts have addressed whether a complaint is "deemed 'filed' upon presentation to the court clerk when accompanied by an IFP motion, so that the formal filing 'relates back' . . . to the 'lodging' of the complaint with the clerk." See Jarrett v. US Sprint Comm'cns Co., 22 F.3d 256, 259 (10th Cir. 1994); Williams-Guice v. Bd. of Educ. of Chi., 45 F.3d 161, 164-65 (7th Cir. 1995); Truitt v. Cnty. of Wayne, 148 F.3d 644, 647-48 (6th Cir. 1998). Thus far, the Tenth, Seventh, and Sixth Circuits have all held that where a complaint is filed with an IFP application, and that application is ultimately denied, the subsequent filing of the complaint with the filing fee does not "relate back" to the date of the initial filing for statute of limitations purposes. See Jarrett, 22 F.3d at 259-60; Williams-Guice, 45 F.3d at 164-65; Truitt, 148 F. 3d at 647-48. Rather, "the lodging of a complaint by a person who is not entitled to proceed IFP suspends the period of limitations, which begins once again when the judge decides that payment is essential."
Williams-Guice, 45 F.3d at 164 (emphasis added). In other words, the 90-day statute of limitations is equitably tolled while the IFP application is pending, "but only during that time." Jarrett, 22 F.3d at 260. Hence, as Judge Easterbrook explained for a Seventh Circuit panel, once the court denies the IFP application, the clock resumes ...