United States District Court, District of Columbia
C. LAMBERTH, UNITED STATES DISTRICT JUDGE
September 30, 2016, plaintiff Irorere Summers filed suit
under Title VII of the Civil Rights Act against defendant
Howard University Hospital. Ms. Summers amended her complaint
on October 14, 2016. ECF No. 4. In her Amended Complaint, Ms.
Summers alleges that on or about June 11, 2014, she filed a
formal Charge of Discrimination with the U.S. Equal
Employment Opportunity Commission ("EEOC") and the
D.C. Office of Human Rights. Plaintiff further alleges the
EEOC issued her a Notice of Right to Sue on March 23, 2016.
The Amended Complaint asserts three claims for relief: (1)
the defendant unlawfully discriminated against the plaintiff
on the basis of her national origin in violation of Title
VII; (2) the defendant discriminated against the plaintiff on
the basis of her disability; and (3) the defendant unlawfully
retaliated against the plaintiff on the basis of her national
origin and disability.
moved to dismiss all claims pursuant to Rule 12(b)(6), on the
basis that the plaintiffs Complaint was untimely filed and,
in the alternative, that the plaintiff failed to state any
claim upon which relief may be granted. ECF No. 11. For the
reasons stated below, the Court GRANTS the Motion to Dismiss.
Title VII, a plaintiff must file a civil action within 90
days of receiving notice from the EEOC of a right to sue.
See 42 U.S.C. § 2OOOe-5(f)(1). The 90-day time
limit is not jurisdictional; rather it is functions like a
statute of limitations and may 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). Courts
strictly construe the 90-day deadline and will dismiss suits
filed even one day late. See, e.g., Woodruff v.
Peters, 482 F.3d 521, 525 (D.C. Cir. 2007); Wiley v.
Johnson, 436 F.Supp.2d 9l, 96(D.D.C.2OO6).
the plaintiff acknowledged that her right to sue letter was
issued March 23, 2016. Plaintiff filed her Complaint in this
Court on September 30, 2016, well beyond the 90-day
requirement. Assuming the Court presumed that the plaintiff
received the right to sue letter five days after it was
issued, see Washington v. White, 231 F.Supp.2d 71,
75 (D.D.C. 2002), the plaintiff filed suit approximately 192
days after the letter was issued and 96 days after the
limitations period expired.
argues that the suit should not be dismissed as untimely
because she attempted to file suit within the 90-day time
limit and the Court should grant her "special
leniency." ECF No. 14 at 8. The Amended Complaint reads
as follows: "On May 20th 2016 a complaint was
filed, within 90 days after Plaintiff received the Notice of
Right to Sue on her EEOC complaint. This complaint was
returned unfiled due to its failure to comply with the
requirements of the court." ECF No. 4 at ¶ 6.
Plaintiff provides no further color in her Amended Complaint
as to why her original unfiled complaint failed to comply
with court requirements, does not provide the date that the
court allegedly rejected the unfiled complaint, and why her
suit was only filed on the docket over 4 months later.
Opposition to the Motion to Dismiss, the plaintiff asserts
that she was proceeding pro se at the time, but
again fails to provide any explanation for why the filing was
inadequate. She does allege that the Complaint was only filed
in September because of "significant time lapse by the
court" in returning her unfiled complaint and due to
"further delay  caused by the postal service
forwarding the mail after [she] relocated [from D.C. to
Illinois]." ECF No. 14 at 8. Given those alleged facts,
the plaintiff asks the Court to equitably toll the statute of
court's equitable power to toll statutes of limitations
"will be exercised only in extraordinary and carefully
circumscribed instances." Mondy v. Secretary of the
Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). Plaintiffs
bear the burden of pleading and proving that the court should
exercise its equitable power. Bayer v. U.S. Dep't of
Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). They must
demonstrate that they exercised due diligence; courts will
not excuse what amounts to a "garden variety claim of
excusable neglect." Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990).
the plaintiff has not justified equitable tolling. She
provides no concrete evidence as to why her alleged original
complaint was returned unfiled. She does not explain why she
failed to inform the court of her move, which could have
allowed future correspondence to reach her faster. And she
does not appear to have followed up with the court to confirm
whether her complaint was filed. Plaintiff provides no
evidence to indicate that she diligently pursued her claim
and her argument for equitable tolling does not rise above a
"garden variety claim of excusable neglect." That
plaintiff was proceeding pro se does not excuse her
lack of diligence in this case. See Anderson v. Local 201
Reinforcing Rodmen, 886 F, Supp. 94, 97 (D.D.C. 1995);
Ruiz v. Vilsack, 763 F.Supp.2d 168, 173 (D.D.C.
in the absence of equitable tolling, dismissal of the
plaintiffs suit as barred by the statute of limitations is
appropriate. The Court therefore GRANTS the defendant's
Motion to Dismiss, ECF No. 11, on those grounds and need not
address whether the plaintiff has stated a claim upon which
relief can be granted. The case is DISMISSED. A separate
Order accompanies this Memorandum Opinion.
 Defendant provided notice that the
Motion to Dismiss could be converted to a Motion for Summary
Judgment at the ...