De La Paz v. Brennan

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MARITES G. DE LA PAZ, )
)
Plaintiff, ) 1:15-CV-00005 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 14]
MEGAN J. BRENNAN, POSTMASTER )
GENERAL, UNITED STATES POSTAL )
SERVICE, )
)
Defendant. )
)
I. MOTION PRESENTED
At docket 14, Defendant Megan J. Brennan, Postmaster General of the United
States Postal Service (“Defendant”), filed a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies.
Plaintiff Marites G. De La Paz (“Plaintiff”) responds at docket 16. Defendant replies at
docket 20. She files supplemental material at dockets 19 and 22. Oral argument was
not requested and would not assist the court.
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 1 of 7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II. BACKGROUND
Plaintiff filed a formal EEO complaint of discrimination on March 31, 2014. On
September 2, 2014, she received the EEO investigation report.1 The report stated that
Plaintiff had 30 days to request a hearing before an administrative law judge (“ALJ”) or a
final agency decision without a hearing (“FAD”) would be issued. Thus, Plaintiff’s
deadline for requesting a hearing with an ALJ was October 2, 2014. The investigative
report included the form necessary to request a hearing, and it outlined what would
follow any final ALJ decision. Plaintiff did not request a hearing at that time, and,
consequently, on November 20, 2014, the United States Postal Service (“USPS”)
issued a FAD, denying her claim.2 Plaintiff and her attorney received the FAD on
November 24, 2014.
The FAD provided notice of Plaintiff’s appeal rights.3 Plaintiff had the right to
appeal the FAD to the Equal Employment Opportunity Commission (“EEOC”) within 30
calendar days of receipt of the decision. Thus, Plaintiff’s appeal deadline was
December 24, 2014. The FAD instructed Plaintiff to use Form 573 when filing an
appeal with the EEOC and to mail the form to the EEOC’s Office of Federal Operations
in Washington, D.C. The FAD informed Plaintiff that a copy of the necessary form was
attached to the decision, and, indeed, the form was included with Plaintiff’s FAD.4 The
FAD also informed Plaintiff that, rather than filing an appeal with the EEOC, she could
bring a civil action in the appropriate U.S. District Court within 90 calendar days of her
receipt of the FAD. Plaintiff’s deadline for filing a civil action was February 25, 2015.
On December 23, 2014, Plaintiff, through her attorney, filed a request for a
hearing with an ALJ, even though the deadline for such a request had passed and the
1Doc. 16-2.
2Doc. 16-4.
3Doc. 16-4 at pp. 28-29.
4Doc. 16-4 at p. 30
-2-
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 2 of 7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
USPS had already issued its FAD. She sent the request to the EEOC’s Hearing Unit in
Seattle, Washington. She did not file the requisite appeal form with the EEOC’s Office
of Federal Operations in Washington D.C. The EEOC’s Hearing Unit processed the
request, and the USPS then designated a representative as directed.5 A status
conference with the administrative law judge was held on March 24, 2015, and the
parties proceeded with discovery. Plaintiff filed her civil action with the court on May 20,
2015, and, given the pending civil action, the ALJ consequently dismissed the EEOC
complaint.6 Defendant filed the motion to dismiss based on Plaintiff’s failure to file her
Title VII action within the 90-day filing period.
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s claims.
In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken
as true and construed in the light most favorable to the nonmoving party.”7
The requirement for filing a Title VII civil action within 90 days constitutes a
statute of limitations rather than a jurisdictional prerequisite.8 Therefore, the motion to
dismiss based on the timeliness of the complaint can be brought as a Rule (12)(b)(6)
motion.9 However, the failure to comply with the 90-day requirement is subject to the
usual limitations defenses of waiver, estoppel, and equitable tolling.10 Such issues are
5Doc. 19-1; Doc. 16-6.
6Doc. 16-9.
7Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
8Zipes v. Trans World Airlines, Inc., 455 U.S. 365, 393 (1982); Scholar v. Pac. Bell, 963
F.2d 264, 266–67 (9th Cir.1992).
9Tadesse v. Tungland Corp., No.13-cv-02440, 2014 WL 4755519, at *1 (D. Ariz.
Sept. 24, 2014); see also Anjelino v. New York Times Co., 200 F.3d 73, 88 (3d Cir. 1999)
(motions to dismiss for failure to file a Title VII civil action within the ninety-day filing period
should be considered under Rule 12(b)(6) and not 12(b)(1)).
10Zipes v. Trans World Airlines, Inc., 455 U.S. 365, 393 (1982); Scholar, 963 F.2d at 267.
-3-
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 3 of 7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
often resolved based on materials outside the pleading, and therefore “it is rarely
appropriate to grant a Rule 12(b)(6) motion to dismiss” when such matters are at
issue.11 “[O]nly if the assertions of the complaint, read with required liberality, would not
permit the plaintiff to prove that the statute was tolled” should the motion to dismiss be
granted.12
Where the timeliness issue cannot be determined from the face of the complaint,
a motion for summary judgment is the proper procedure. Under Rule 12(d), “if matters
outside the pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56," as long as the parties have
been given an opportunity to present all material that is pertinent to the motion.13
Here, Defendant raised the issue of timeliness through a Rule 12(b)(6) motion to
dismiss and relied solely on the complaint. It is clear from the face of the complaint that
it was not filed within the 90-day period. However, in response, Plaintiff raised equitable
tolling and estoppel defenses and filed materials outside of the pleadings. Defendant
then supplemented the record with her own materials in support of her argument that
equitable tolling and estoppel do not apply. Given that both parties have had the
opportunity to file materials with the court and given that the facts surrounding Plaintiff’s
EEOC and district court filings are not in dispute, the motion will be converted to one for
summary judgment.
IV. DISCUSSION
It is undisputed that Plaintiff filed her civil action with the court on May 20, 2015,
about three months after the 90-day filing deadline. It is also undisputed that Plaintiff
did not file the correct appeal form, or any form for that matter, with the federal
11Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006).
12Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000) (internal quotation mark
omitted).
13Fed. R. Civ. P. 12(d).
-4-
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 4 of 7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
operations office of the EEOC. She instead filed a request for an ALJ hearing with the
EEOC’s Hearing Unit in Seattle. Plaintiff argues that her delay in filing the civil
complaint is excusable because she reasonably believed she had properly filed an
appeal with the EEOC and did not realize that the 90-day clock was running. She
argues that the EEOC processed her request and the USPS participated in the ALJ
hearing process without informing her that such a procedure was improper and
untimely, thereby reaffirming her belief that the request for a hearing on her
discrimination complaint effectively stopped the 90-day deadline clock from running.
She requests that the court equitably toll the 90-day deadline during the time that her
request for a hearing was being processed.
Equitable tolling is applied so that the court can “accord all the relief necessary to
correct . . . particular injustices.”14 “Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in his way.”15 “‘[A]
garden variety claim of excusable neglect, such as a simple ‘miscalculation’ that leads a
lawyer to miss a filing deadline, does not warrant equitable tolling.’”16 “Instead, a litigant
must show that “extraordinary circumstances were the cause of his untimeliness and
. . . ma[de] it impossible to file [the document] on time.”17
Plaintiff has not shown the presence of extraordinary circumstances at play here.
Plaintiff’s attorney filed a request for a hearing on a discrimination complaint that had
already been finally decided by the USPS after she failed to timely request an ALJ
hearing. Plaintiff and her attorney received the FAD, which indicated that she had not
14Holland v. Florida, 560 U.S. 631, 650 (2010) (internal quotation marks omitted).
15Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (internal citations and
quotations omitted).
16Id. (quoting Holland, 560 U.S. at 651-52).
17Id. (internal quotation mark omitted).
-5-
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 5 of 7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
requested a hearing on time. The FAD clearly laid out the next steps in the process,
which was an appeal with the EEOC or a civil action in federal district court, not an ALJ
hearing. The FAD instructed her to file a specific form if she wanted to appeal the
decision and provided her with a copy of that specific form. There was nothing unclear
or inadequate about the FAD’s instructions or its statement of her appeal rights.
Plaintiff’s attorney simply failed to follow the directions. The court concludes that the
failure of an attorney to correctly follow directions is tantamount to a deadline
miscalculation, which the Supreme Court has described as “a garden variety claim” of
attorney negligence that does not justify equitable tolling.18
Plaintiff argues that mistakenly filing the wrong form is like a defective pleading
and that a defective pleading should not prevent her from seeking relief in district court.
While filing the incorrect form to in the incorrect office may nonetheless demonstrate
diligence on Plaintiff’s part, equitable tolling also requires that an extraordinary
circumstance—some obstacle outside of her control—prevented her from filing the
proper appeal form. There was no such extraordinary circumstance here. Moreover,
this was not a mere technical deficiency, where the wrong form was otherwise filed
properly. Plaintiff did not actually file any appeal with the EEOC’s federal office as
required; she requested a completely different procedure, and sent her request to a
different department in a different city.
Plaintiff also argues that the USPS’s actions prevented her from realizing her
mistake in time when it appointed a representative and moved forward with the ALJ
proceeding. In essence, Plaintiff raises an estoppel argument. Equitable estoppel
requires a showing that the party to be estopped knew the true facts and intended to
induce reliance on his actions or statements and that the other party was ignorant of the
18Holland, 560 U.S. at 651-52; see also Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir.
2010) (“Holland tells us that a simple legal mistake does not excuse an untimely filing.”);
Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014) (listing cases
in which attorney error did not support equitable tolling).
-6-
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 6 of 7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
true facts and, in fact, relied on the other party’s actions or statements.19 A party
asserting equitable estoppel against the government must show that the government
made an affirmative misrepresentation, actively concealed material facts, or otherwise
engaged in affirmative misconduct.20 There has been no showing of affirmative
misrepresentation or misconduct here. Plaintiff relies on the fact that the EEOC
assigned an ALJ to the complaint, and the USPS designated a representative and
moved forward with the hearing. However, as noted by Defendant, the 90-day deadline
expired on February 25, 2015. All the EEOC did by that date was assign an ALJ and
ask the USPS to appoint a representative. The USPS simply complied and appointed a
representative. Such ministerial acts are not affirmative conduct. The fact that the
agency participated in a status hearing and engaged in discovery in late March, after
the February 25th deadline, is immaterial, as the 90-day deadline had already expired,
and thus, Plaintiff could not have detrimentally relied on such conduct. Plaintiff provides
no authority to support her argument that Defendant had a duty to inform her attorney
that the request for an ALJ hearing was untimely and was not the proper appeal
procedure.
V. CONCLUSION
Based on the preceding discussion, Defendant’s motion at docket 14 is
GRANTED. The court having granted summary judgment for defendant, the Clerk will
please enter judgment for defendant.
DATED this 14th day of December 2015.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
19Baccei v. United States, 632 F.3d 1140, 1147 (9th Cir. 2011).
20Id.
-7-
Case 1:15-cv-00005-JWS Document 24 Filed 12/14/15 Page 7 of 7