Ruiz v. Vilsack ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS M. RUIZ,
Plaintiff,
v. Civil Action No. 10-0291 (JDB)
THOMAS J. VILSACK, in his official
capacity as Secretary of the United States
Department of Agriculture,
Defendant.
MEMORANDUM OPINION
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).
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BACKGROUND
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. ¶ 2.1 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
1
In his complaint, plaintiff does not specify the class-based impetus for the alleged
discrimination that he suffered. For purposes of this motion, however, the Court will assume
that plaintiff has alleged discrimination on the basis of his Hispanic national origin. See, e.g.,
Def.'s Mot. to Dismiss [Docket Entry 3] ("Def.'s Mot."), Ex. 1 ("USDA Compl.") at 1 (accepting
and referring for investigation plaintiff's claim that he was discriminated against on the basis of
his Hispanic national origin).
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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 1.2 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
2
Although plaintiff's complaint states that this event occurred on August 17, 2009, see
Compl. ¶ 18, the record indicates that this incident actually took place on August 17, 2005, see
Def.'s Mot., Ex. 3 ("USDA Am. Compl.") at 1; see also Ruiz Letter at 1.
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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.
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DISCUSSION
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]ourts 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
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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."
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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 ticking, and "the would-be plaintiff must
act with dispatch." Williams-Guice, 45 F.3d at 165.
Following the Tenth, Seventh, and Sixth Circuits, judges on this Court have also held that
the filing of a complaint attached to an IFP application "is insufficient to commence the action
and provide notice to the defendant for purposes of the 90-day requirement." Okereh v. Winter,
600 F. Supp. 2d 139, 142 (D.D.C. 2009), rev'd and remanded on other grounds sub nom. Okereh
v. Mabus, 625 F.3d 21 (D.C. Cir. 2010); see also Amiri v. Stoladi Prop. Group, 407 F. Supp. 2d
119, 124 (D.D.C. 2005) (explaining that "[t]he Clerk of the Court will not accept a complaint for
filing that is not accompanied by a filing fee until the Court has granted a petition for leave to
proceed in forma pauperis"). Instead, the filing of a complaint along with an IFP application
merely "tolls the ninety-day period of limitations contained in the right to sue letter" during the
Court's review of the IFP application. Guillen v. The Nat'l Grange, 955 F. Supp. 144, 145
(D.D.C. 1997); see also Okereh, 600 F. Supp. 2d at 141 (noting that the 90-day requirement is
"subject to equitable tolling . . . when the Court is reviewing IFP petitions"); Amiri, 407 F. Supp.
2d at 124 (explaining that the "90-day period is tolled between the time a complaint and an
application to proceed in forma pauperis are received by the Court and the time the Court rules
on the application"); Washington, 231 F. Supp. 2d at 75 (citing the "substantial body of case law
holding that the ninety day period is tolled between the time a complaint and an application to
proceed in forma pauperis are received by the Court, and the time the Court rules on the
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application"). This rule protects the interests of both the plaintiff and the defendant, since "the
plaintiff remains entitled to litigate even if the district judge concludes that he is not entitled to
proceed IFP," while the defendant "gets timely notice - for the plaintiff must pay the docket fee
within the remainder of the period of limitations." Williams-Guice, 45 F.3d at 165.
Here, plaintiff filed his IFP application on September 16, 2009, and the Court denied his
request to proceed in forma pauperis on October 5, 2009. See Compl., Exs. 1-2; Def.'s Mot.,
Exs. 5-6 (same). Courts have not been entirely consistent as to whether the statute of limitations
is equitably tolled only from the time that the IFP application is filed until the time that the Court
rules on the application, or whether it remains tolled until the plaintiff receives notice of the
Court's decision. See, e.g., Amiri, 407 F. Supp. 2d at 124 (emphasis added) (explaining that
tolling continues until "the time the Court rules on the application"); Washington, 231 F. Supp.
2d at 75 (same); Okereh, 600 F. Supp. 2d at 142 (stating that "[e]quitable tolling applies between
the day [the plaintiff] filed his IFP application . . . and the day he received the Court's denial");
Williams-Guice, 45 F.3d at 165 (acknowledging the possibility that "the time remains in
suspension for a reasonable time . . . after the district court's order" denying the IFP application,
but declining to decide the tolling end-date, since the plaintiff's complaint was untimely under
either possible date).
This Court need not resolve this issue here, because plaintiff's complaint is untimely
under either mode of analysis. Assuming that receipt is required, and applying the more
generous five-day presumption, plaintiff is presumed to have received notice of the Court's
denial of his IFP application five days after its issuance, i.e., on October 10, 2009. Plaintiff filed
his IFP application and initial complaint when only six days remained in the 90-day statutory
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period. Therefore, in light of the tolled statute of limitations, plaintiff -- at the very latest -- was
bound to commence this action by October 16, 2009 (six days after his presumed receipt of the
Court's denial of his IFP application). But plaintiff did not file suit until February 24, 2010 --
131 days after the statute of limitations had expired, taking into account the 24-day period in
which the statute of limitations was tolled (from September 16, 2009 to October 10, 2009).
Plaintiff has explained that he filed suit more than four months after the denial of his
request to proceed in forma pauperis because he was "saving the money to be able to pay the
court fees," and that, as a pro se litigant, he did not understand the effect of the denial of his IFP
application on the 90-day statute of limitations. See Pl.'s Opp. at 4-5. This Court is not
unsympathetic to plaintiff's situation, but "[e]ven uncounseled litigants must act within the time
provided by statutes and rules." Williams-Guice, 45 F.3d at 164. Because "[p]rocedural
requirements established by Congress for gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for particular litigants," Baldwin, 466 U.S. at 152,
courts have strictly construed the 90-day statute of limitations in Title VII cases, even where the
plaintiff is proceeding pro se. See, e.g., Smith v. Dalton, 971 F. Supp. 1, 2 (D.D.C. 1997)
(dismissing action by pro se litigant who filed suit 91 days after receiving the EEOC's final
decision denying his request for reconsideration); Anderson, 886 F. Supp. at 97 (dismissing
plaintiff's suit as untimely where it was filed 97 days after issuance of the EEOC right-to-sue
letter, and emphasizing that plaintiff's status as "a pro se litigant does not render him immune
from the ninety-day requirement").
Plaintiff was clearly informed that he had 90 days to sue from the date that he received
the final EEOC decision, and he decided to submit his IFP application with his complaint only
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six days prior to the 90-day filing deadline. When plaintiff's IFP application was denied on
October 5, 2009, his complaint was returned to him, and he was instructed that his case had not
yet been filed with the Court. See Compl., Ex. 2; Def.'s Mot., Ex. 6 (same). Plaintiff then
waited more than four months to pay the filing fee and initiate this action. Because plaintiff
failed to pay the filing fee within 90 days of receiving the right-to-sue letter -- even taking
equitable tolling into account -- he failed to file his complaint within the time allowed by 42
U.S.C. § 2000e-5 (f)(1). Accordingly, his complaint must be dismissed.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss will be granted. A separate
order has been posted on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: February 9, 2011
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