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Harry O Davis v. Thomas J. Vilsack

August 1, 2012

HARRY O DAVIS, PLAINTIFF,
v.
THOMAS J. VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Harry Davis, proceeding pro se, brings this Title VII employment-discrimination action against defendant Thomas J. Vilsack, in his official capacity as United States Secretary of Agriculture. Before the Court is defendant's motion to dismiss. Having considered the entire record in this case, the Court will grant defendant's motion.

BACKGROUND

Davis is a former employee of the United States Department of Agriculture ("USDA"). On July 21, 2011, the USDA issued a Final Agency Decision on an administrative complaint filed by Davis in 2009. (Def.'s Mot. Ex. 1, at 2, July 12, 2012 (Davis v. Vilsack, No. CRSD-2009-00656, USDA Office of Adjudication (July 21, 2011) ("FAD").) Davis had alleged that the USDA subjected him to discriminatory harassment based on sex, race, color, and physical disability, and retaliated against him for whistleblowing. (FAD at 1-2.) The USDA dismissed Davis's complaint, supporting its conclusion that Davis failed to offer sufficient evidence in support of his claims with a detailed, 20-page decision.*fn1

Equal Employment Opportunity Commission (EEOC) regulations provide that an agency must notify complainants of their right to appeal these final agency actions, and of the applicable time limits:

When an agency dismisses an entire complaint under §1614.107 . . . the agency shall take final action by issuing a final decision. The final decision shall consist of findings by the agency on the merits of each issue in the complaint, or, as appropriate, the rationale for dismissing any claims in the complaint . . .. The final action shall contain notice of the right to appeal the final action to the Equal Employment Opportunity Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for appeals and lawsuits.

29 C.F.R. § 1614.110(b).*fn2 Federal law limits the time in which federal employees may appeal certain adverse final agency actions to 90 days. See 42 U.S.C. § 2000e-16(c).

The USDA complied with this EEOC regulation. The FAD was clearly marked as a final decision (see FAD at 1 (captioned "Final Agency Decision" in bold underlined text and stating in introductory section that "[i]n accordance with . . . 29 C.F.R. § 1614.110(b), this is the final decision of the United States Department of Agriculture (USDA) on this complaint"); FAD at 17

("This is the final decision of the USDA on the cited complaint.")), and contained an explicit notice of Davis's rights to appeal either to the EEOC or to this Court. (Id. at 17--20.) The FAD made clear that these were "the only rights available to challenge this decision." (Id. at 17.) The FAD stated, under the bold, all-capitalized heading "Civil Action in Federal Court":

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 ninety (90) days of receipt of this final action or final decision (as appropriate) if no appeal [to the EEOC] has been filed; or  within ninety (90) days after receipt of the EEOC's final decision on appeal; or  after one hundred and eighty (180) days from the date of filing an appeal with the EEOC if there has been no final decision by the Commission . . .

If you decide to file a civil action, under Title VII or under the Rehabilitation Act, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. The grant 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 receive the final action or final decision (as appropriate) from the agency or the Commission.

Unless an appeal is filed with the EEOC, failure to file a civil action within ninety (90) calendar days may result in dismissal of your civil action. (Id. at 19.)

Davis does not allege that he filed an EEOC appeal, nor does he deny receiving notice of the FAD; in fact, he appears to admit that he received the notice. (See Pl.'s Opp'n, July 17, 2012 ("on July 21, 2012 the [USDA] issued a Final Decision on my Administrative complaint. I was informed that I must file a Civil Action . . . within NINETY (90) CALENDAR DAYS of the date I received the final decision by USDA").) A certificate of service, dated the same date the FAD was issued, attests that the FAD was sent by certified mail to Davis, as well as to his representative, Nathaniel D. Johnson, a Maryland attorney. (FADat 22.)

On March 15, 2012, Davis filed the pending complaint, appealing the USDA's decision and requesting money damages and injunctive relief.*fn3 (Compl. at 2.) Defendant filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), accompanied by a copy of the FAD, on June 12, 2012. Plaintiff filed an opposition and a motion to appoint counsel on July 17, 2012, and defendant filed its reply on July 27, 2012. In its motion, defendant argues that plaintiff's complaint should be dismissed for failure to state a claim because the complaint, having been filed past the 90-day statutory deadline, is time-barred. ...


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