United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Plaintiff Christopher Galloway received a poor performance review and a three-day suspension from his job as a bank examiner with the Federal Housing Finance Agency (“FHFA”) for submitting inaccurate travel vouchers and committing related administrative transgressions. Galloway contested the agency’s actions in a complaint before its Equal Employment Opportunity office, alleging that he had been retaliated against for having lodged an informal complaint of racial hostility on the part of two of his supervisors. After the agency issued a Final Agency Decision (“FAD”) rejecting his EEO complaint, Galloway filed suit in this Court claiming unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. FHFA has moved to dismiss the suit on just one ground: that Galloway filed his complaint more than 90 days after receiving the FAD, rendering it time-barred. Because Galloway filed his Complaint late, and has offered neither facts nor evidence sufficient to warrant equitable tolling of the filing deadline, the Court will grant FHFA’s motion to dismiss.
Galloway’s complaint-in a section entitled “Exhaustion of Administrative Remedies”- states that “[a]t the time of this action, there has been no final agency decision.” Compl. ¶ 11. Subsequent briefing on FHFA’s motion to dismiss has revealed that statement to be erroneous. Both parties now agree that Galloway chose to pursue his claim of retaliation internally through FHFA’s Equal Employment Opportunity office and that, through this process, he received an unfavorable FAD. Galloway received the FAD on May 5, 2015 and filed his Complaint in this Court on August 7, 2015, a full 94 days later. In response to FHFA’s motion to dismiss his suit as time-barred, Galloway has attempted to “set forth facts entitling [him] to equitable tolling of the 90 day limitations period in which a party may initiate a lawsuit after receiving” a FAD. Uzoukwu v. Metro. Wash. Council of Gov’ts, 983 F.Supp.2d 67, 77 (D.D.C. 2013).
Essentially, he seeks to lay blame for the untimely filing at the feet of his former lawyer, who withdrew after the government filed its motion to dismiss. Galloway’s current counsel states the following in his opposition brief:
• On March 12, 2015, . . . Mr. Galloway met with Denise M. Clark and Melody Webb of the Clark Law Group for legal advice regarding . . . his employment complaint against the FHFA.
• Mr. Galloway corresponded . . . or met with Denise M. Clark and or other agents of The Clark Law Group on these dates: March 17th, March 19th, May 8th and 14th and July 6th, 10th, 14th, and 17th of 2015.
• On May 5, 2015, [he] received a copy, via UPS, of the Final Agency Decision (“FAD”) signed by the Human Resource Director, Brian Guy, as the deciding official.
• Upon receipt, Mr. Galloway, on May 14, 2015, met with Denise M. Clark and hand delivered a copy of the FAD. On July 17, 2015, [he] met with Denise M. Clark to pay his retainer fee.
• At this [July 17] meeting, plaintiff asked Ms. Denise M. Clark if she had enough time to timely file his complaint. Ms. Clark stated[, ] “[Y]es, we have enough time.”
• Ms. Clark filed the Title VII complaint untimely four-(4) days after the Title VII’s 90-day filing date ran.
Pl.’s Opp’n Def.’s Mot. Dismiss 8. In Galloway’s view, these facts, if true, justify the Court’s exercise of its equitable power to toll the 90-day limitations period.
II. Legal Standard
To overcome a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While the court “must take all of the factual allegations in the complaint as true, ” legal conclusions “couched as a factual allegation” do not warrant the same deference. Id. (citing Twombly, 550 U.S. at 555).
“In ruling upon a motion to dismiss, a court may ordinarily consider only ‘the facts alleged in the complaint, documents attached as exhibits incorporated by reference in the complaint, and matters about which the Court may take judicial notice.’” Dyson v. Dist. of Columbia, 808 F.Supp.2d 84, 86 (D.D.C. 2011) (quoting Gustave–Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002)). A Court properly may consider as well “documents upon which [a] plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to ...