Crawford v. Garland

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JANICE M. CRAWFORD,
Plaintiff,
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v. 	) 	No. 23-cv-02456-SHM-atc
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PAMELA BONDI, ATTORNEY
GENERAL,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff 	Janice 	M. 	Crawford 	sues 	Defendant 	Pamela 	Bondi,
Attorney 	General 	of 	the 	United 	States 	of 	America, 	alleging 	a
claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 	2000e-3(a). 	Before 	the 	Court 	is 	Defendant 	Pamela 	Bondi’s
Motion for Summary Judgment. (ECF No. 75.) For the reasons below,
the Court GRANTS Defendant’s Motion.
I. 	Background1
In 	July 	2017, 	Plaintiff 	Janice 	M. 	Crawford 	applied 	for 	a
job 	as 	an 	administrative 	officer 	(“AO”) 	with 	the 	United 	States
1 In her response to Defendant’s statement of undisputed facts in
support of Defendant’s Motion for summary judgment, Plaintiff
submits no facts of her own. She only disputes some of Defendant’s
facts. (ECF No. 83-2.) The Court’s narrative relies on Defendant’s
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Marshals 	Service 	(“USMS”) 	in 	Seattle, 	Washington 	(the 	“Seattle
Position”). 	(ECF 	Nos. 	75 	at 	2 	& 	ECF 	No. 	83 	at 	2.) 	Plaintiff
interviewed 	for 	the 	Seattle 	Position 	with 	three 	people: 	Jacob
Green, 	the 	Selecting 	Official 	and 	Chief 	Deputy 	United 	States
Marshal; 	Charles 	Daniels, 	the 	Assistant 	Chief 	in 	the 	Office 	of
Compliance; 	and 	Grace 	McGrath, 	an 	Administrative 	Officer 	in
California. (Id.)
On September 11, 2017, Plaintiff was informed that she had
not 	received 	the 	Seattle 	Position. 	(ECF 	No. 	83-2 	at 	¶ 	50.)
Another applicant, Wilma Thompson, had been selected. (ECF Nos.
75 	at 	1 	& 	83 	at 	2.) 	In 	December 	2018, 	Plaintiff 	filed 	an 	Equal
Employment Opportunity (“EEO”) claim after she was not selected
for 	a 	different, 	unrelated 	Property 	Management 	Specialist
position 	with 	the 	USMS. 	(ECF 	Nos. 	83 	at 	2-3 	& 	83-2 	at 	¶ 	59.)
While reviewing the Report of Investigation about that claim in
August 2019, Plaintiff represents that she, for the first time,
read 	an 	affidavit 	in 	which 	a 	USMS 	employee, 	Steven 	Moody, 	said
that 	Jacob 	Green 	learned 	of 	Plaintiff’s 	prior, 	unrelated 	EEO
claims 	and 	did 	not 	hire 	Plaintiff 	for 	the 	Seattle 	Position
because 	he 	“didn’t 	want 	to 	deal 	with 	that.” 	(the 	“Moody
Affidavit”) (ECF No. 83 at 3.)
statement of undisputed facts and on documents Plaintiff cites in
the record.
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On September 6, 2019, Plaintiff filed an EEO claim alleging
retaliation 	by 	the 	USMS 	for 	protected 	activity 	under 	Title 	VII
of the Civil Rights Act (“Title VII”) for failing to select her
for 	the 	Seattle 	Position. 	(ECF 	Nos. 	75 	at 	11-12 	& 	83 	at 	10.)
Plaintiff represents that filing that claim “start[ed] the [EEO]
process.” 	(Id.) 	Plaintiff’s 	EEO 	claim 	was 	adjudicated 	by 	the
U.S. Equal Employment Opportunity Commission (the “EEOC”), which
made its Final Agency Decision on March 30, 2023. (ECF No. 1-3.)
In 	that 	decision, 	the 	EEOC 	rejected 	Plaintiff’s 	claim 	and
concluded 	that 	management 	had 	offered 	legitimate,
nondiscriminatory reasons for its hiring decision. (ECF No. 1-2
at 2.)
Plaintiff 	filed 	this 	case 	on 	July 	31, 	2023, 	in 	accordance
with 	the 	EEOC’s 	Final 	Agency 	Decision, 	which 	granted 	Plaintiff
the 	right 	to 	sue 	in 	the 	appropriate 	U.S. 	District 	Court. 	(ECF
No. 1.) On May 29, 2024, the Court denied Defendant’s motion to
dismiss (the “May 29 Order”). (ECF No. 17.) In its May 29 Order,
the Court equitably tolled the deadline for Plaintiff to initiate
contact 	with 	an 	EEO 	counselor 	based 	on 	the 	allegations 	in 	the
Complaint 	and 	determined 	that 	Plaintiff 	had 	adequately 	alleged
retaliation. (Id.)
Since the May 29 Order, the parties have conducted discovery
for 	more 	than 	a 	year. 	On 	August 	20, 	2025, 	Defendant 	filed 	the
pending 	Motion 	for 	Summary 	Judgment. 	(ECF 	No. 	75.) 	Defendant
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argues that the record now shows that Plaintiff is not entitled
to equitable tolling, and that, even if she were, no reasonable
jury 	could 	conclude 	that 	Plaintiff 	was 	retaliated 	against 	for
protected 	activity 	when 	she 	was 	not 	hired 	for 	the 	Seattle
Position. 	(ECF 	No. 	75.) 	Plaintiff 	responds 	that 	she 	remains
entitled 	to 	equitable 	tolling 	based 	on 	the 	record 	and 	that 	the
case should go to trial. (ECF No. 83.)
II. 	Jurisdiction
Federal district courts have original jurisdiction over all
civil actions arising under the Constitution, laws, or treaties
of 	the 	United 	States. 	28 	U.S.C. 	§ 	1331. 	Plaintiff 	brings 	a
claim 	under 	Title 	VII. 	(ECF 	No. 	1.) 	The 	Court 	has 	original
federal question jurisdiction over that claim.
III. Standard of Review
Under 	Federal 	Rule 	of 	Civil 	Procedure 	56(a), 	a 	court 	must
grant a party’s motion for summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 	56(a). 	The 	moving 	party 	must 	show 	that 	the 	nonmoving 	party,
having had sufficient opportunity for discovery, lacks evidence
to support an essential element of its case. See Fed. R. Civ. P.
56(c)(1); 	Peeples 	v. 	City 	of 	Detroit, 	891 	F.3d 	622, 	630 	(6th
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Cir. 	2018). 	All 	inferences 	must 	be 	drawn 	in 	the 	light 	most
favorable to the nonmovant. Bledsoe v. Tenn. Valley Auth. Bd. of
Dirs., 42 F.4th 568, 578 (6th Cir. 2022).
“The moving party has the burden of showing the absence of
a 	genuine 	issue 	of 	material 	fact 	as 	to 	at 	least 	one 	essential
element of the non-moving party's case.” 	Kurtz v. Sec'y of Army,
No. 3:06-1209, 2009 WL 5066901, at *1 (M.D. Tenn. Dec. 21, 2009),
aff'd sub nom. Kurtz v. McHugh, 423 F. App'x 572 (6th Cir. 2011)
(citing Celotex v. Catrett, 477 U.S. 317, 322–23 (1986)). 	Once
the moving party has satisfied its burden, the burden shifts to
the 	non-moving 	party 	to 	set 	forth 	“specific 	facts 	showing 	that
there 	is 	a 	genuine 	issue 	for 	trial.” 	Guptill 	v. 	City 	of
Chattanooga, 	Tennessee, 	160 	F.4th 	768, 	776 	(6th 	Cir. 	2025)
(citing 	Celotex, 	477 	U.S. 	at 	324 	(quoting 	Fed. 	R. 	Civ. 	P.
56(e))).
The Court “is not required to speculate on which portion of
the 	record 	the 	nonmoving 	party 	relies, 	nor 	is 	it 	obligated 	to
wade through and search the entire record for some specific facts
that might support the nonmoving party's claim.” InterRoyal Corp.
v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Although 	summary 	judgment 	must 	be 	used 	carefully, 	it 	“is
‘an 	integral 	part 	of 	the 	Federal 	Rules 	as 	a 	whole, 	which 	are
designed 	to 	secure 	the 	just, 	speedy, 	and 	inexpensive
determination 	of 	every 	action’ 	rather 	than 	a 	‘disfavored
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procedural shortcut.’” F.D.I.C. v. Jeff Miller Stables, 573 F.3d
289, 294 (6th Cir. 2009) (quoting Celotex, 477 U.S. at 327).
IV. 	Analysis: Equitable Tolling
A. Standard
Defendant 	argues 	that 	this 	case 	is 	time-barred 	because
Plaintiff 	did 	not 	diligently 	pursue 	her 	rights 	by 	timely
initiating 	contact 	with 	the 	EEOC. 	Plaintiff 	waited 	two 	years
after she learned she had not been hired for the Seattle Position
to 	initiate 	the 	EEO 	process 	by 	filing 	her 	EEO 	claim 	alleging
retaliation. 	(ECF 	No. 	75 	at 	3-12.) 	Plaintiff 	does 	not 	dispute
Defendant’s 	timeline, 	but 	argues 	that 	she 	is 	entitled 	to
equitable tolling to allow her claim to proceed. (ECF No. 83 at
10-11.)
“A plaintiff who alleges that a federal agency has engaged
in 	race 	discrimination 	must 	initiate 	contact 	with 	an 	EEO
counselor 	within 	forty-five 	days 	of 	the 	date 	of 	the 	alleged
discriminatory act.” 	Dixon v. Gonzales, 481 F.3d 324, 330 (6th
Cir. 2007). 	This forty-five-day limitation is a prerequisite to
filing 	suit, 	but 	“it 	is 	subject 	to 	equitable 	tolling, 	waiver,
and estoppel.” Id.
As the Court noted in its May 29 Order denying Defendant’s
motion 	to 	dismiss, 	the 	forty-five-day 	clock 	began 	to 	run 	when
Plaintiff 	learned 	of 	the 	USMS’s 	decision 	not 	to 	hire 	her, 	not
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when 	Plaintiff 	learned 	the 	decision 	might 	have 	been
discriminatorily motivated. (ECF No. 17 at 9.) Plaintiff learned
of 	the 	hiring 	decision 	on 	September 	11, 	2017, 	and 	did 	not
initiate contact until September 6, 2019, when she filed her EEO
claim 	to 	start 	the 	EEO 	process. 	(ECF 	Nos. 	1 	at 	5 	& 	83-2 	at 	¶
50.) 	The 	Court 	must 	equitably 	toll 	Plaintiff’s 	deadline 	if 	the
case is to proceed.
“Equitable 	tolling 	is 	an 	issue 	of 	law 	suitable 	for
disposition on summary judgment.” 	Kurtz, 2009 WL 5066901, at *6
(citing 	Chavez 	v. 	Carranza, 	559 	F.3d 	486, 	494 	(6th 	Cir.2009)).
At 	the 	summary 	judgment 	stage, 	the 	decision 	to 	equitably 	toll
the 	limitation 	period 	for 	filing 	a 	charge 	of 	discrimination 	is
“within the discretion of the district court and should be made
on a case-by-base basis.” 	Black v. Columbus Pub. Schs., 211 F.
Supp. 2d 975, 981 (S.D. Ohio 2002), aff'd, 79 F. App'x 735 (6th
Cir. 2003).
Title 	VII 	and 	subsequent 	amendments 	are 	the 	exclusive
judicial 	remedy 	for 	claims 	of 	discrimination 	in 	federal
employment. 	Steiner 	v. 	Henderson, 	354 	F.3d 	432, 	434 	(6th 	Cir.
2003). 	In 	allowing 	federal 	employees 	to 	sue 	under 	Title 	VII,
“Congress 	conditioned 	the 	government's 	waiver 	of 	sovereign
immunity 	upon 	a 	plaintiff's 	satisfaction 	of 	rigorous
administrative 	exhaustion 	requirements 	and 	time 	limitations.”
Steiner, 354 F.3d at 434–35 (citing McFarland v. Henderson, 307
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F.3d 402, 406 (6th Cir.2002)). 	The Supreme Court has made clear
that 	tolling 	in 	a 	Title 	VII 	case 	should 	be 	allowed 	“only
sparingly.” 	Steiner, 354 F.3d at 435 (citing Irwin v. Dep't of
Veterans 	Affs., 	498 	U.S. 	89, 	96 	(1990)). 	The 	“procedural
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 Cnty. Welcome Ctr.
v. Brown, 466 U.S. 147, 152 (1984).
Courts 	consider 	the 	following 	five 	nonexhaustive 	factors
when 	determining 	whether 	equitable 	tolling 	is 	appropriate 	in 	a
Title 	VII 	case: 	(1) 	lack 	of 	notice 	of 	the 	filing 	requirement;
(2) 	lack 	of 	constructive 	knowledge 	of 	the 	filing 	requirement;
(3) diligence in pursuing one's rights; (4) absence of prejudice
to 	the 	defendant; 	and 	(5) 	the 	plaintiff's 	reasonableness 	in
remaining ignorant of the particular legal requirement. 	Dixon,
481 F.3d at 331.
B. Application
1. Factors One, Two, and Five
Factors one, two, and five favor Defendant. 	Plaintiff has
nowhere argued that she lacked notice, knowledge, or constructive
knowledge 	of 	the 	filing 	or 	legal 	requirements 	for 	Title 	VII
claims 	in 	general 	or 	for 	this 	claim 	in 	particular. 	(ECF 	Nos. 	1
& 83.) She timely initiated EOO counseling as a federal employee
in 	at 	least 	three 	other 	cases 	alleging 	Title 	VII 	violations
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before 	this 	one. 	See 	Crawford 	v. 	Skinner, 	35 	F.3d 	565, 	1994 	WL
443453 (6th Cir. Aug. 15, 1994) Crawford v. Winter, No. 08-2105
(W.D. 	Tenn.), 	(ECF 	No. 	12-8); 	and 	Crawford 	v. 	Carter, 	No. 	13-
2439 (W.D. Tenn.) (ECF No. 12-9). 	Prior experience with the EEO
process 	is 	sufficient 	to 	infer 	a 	plaintiff’s 	knowledge 	of 	the
relevant procedural requirements. 	Kurtz, 2009 WL 5066901, at *6
(“plaintiff 	therefore 	had 	experience 	with 	the 	EEO 	process 	and
direct 	contact 	with 	an 	EEO 	Officer 	before 	any 	of 	the 	alleged
incidents 	of 	retaliation 	took 	place. 	Because 	of 	this, 	it 	is
unreasonable that Plaintiff remained ignorant of the procedural
requirements of the EEO Office…and therefore the magistrate did
not 	err 	in 	refusing 	to 	apply 	equitable 	tolling 	of 	the 	filing
requirement”). 	Based on Plaintiff’s experience in prior cases,
the 	Court 	attributes 	relevant 	knowledge 	of 	the 	EEO 	process 	to
Plaintiff.
2. Factor Three
The 	parties’ 	arguments 	center 	on 	factors 	three 	and 	four.
Factor three addresses whether Plaintiff was diligent in pursuing
her rights. 	Plaintiff argues that she was diligent because she
“had 	no 	reason 	to 	believe 	that 	she 	[w]as 	[sic] 	the 	victim 	of
discrimination 	or 	reprisal 	at 	the 	time 	of 	her 	nonselection 	in
2017.” (ECF No. 83 at 10.) Plaintiff filed an EEO claim to begin
the EEO process about the Seattle Position a few days after she
read 	the 	Moody 	Affidavit. 	Therefore, 	Plaintiff 	argues 	that 	she
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diligently pursued her rights. (Id. at 10-11.) The Court agreed
with Plaintiff when it denied Defendant’s motion to dismiss and
equitably tolled the filing deadline. (ECF No. 17.)
Defendant argues that the record, as it has developed since
the dismissal stage, should change the Court’s prior conclusion.
(ECF 	No. 	75 	at 	6-7.) 	First, 	Defendant 	shows 	that 	Plaintiff 	was
generally suspicious about potential retaliation as of April 25,
2017, 	when 	Plaintiff 	told 	the 	union 	president 	that 	Plaintiff
“may be getting retaliated against” based on a desk audit. (ECF
No. 	83-2 	¶ 	49.) 	That 	occurred 	three 	months 	before 	Plaintiff
interviewed 	for 	the 	Seattle 	Position 	(ECF 	No. 	1 	at 	4.) 	Second,
Defendant 	shows 	that, 	when 	Plaintiff 	“did 	her 	interview, 	she
thought she did well, and she was being told that she did well,
but 	was 	not 	selected,” 	as 	Plaintiff 	stated 	to 	the 	EEO
investigator 	later 	on. 	(ECF 	No. 	83-2 	at 	¶ 	50.) 	Defendant 	also
shows 	that 	two 	or 	three 	weeks 	after 	Plaintiff’s 	interview,
another 	employee 	told 	Plaintiff 	that 	he 	gave 	her 	a 	“good
recommendation” 	for 	the 	Seattle 	Position.2 (ECF 	No. 	83-2 	at 	¶
51.) 	Defendant 	shows 	that 	a 	different 	employee 	said 	he 	was
2 Plaintiff appears to dispute whether that employee, Brian Sanders,
actually gave Plaintiff a positive recommendation. (ECF No. 83-2 at
21.) Any such objection is not relevant here, because whether
Sanders gave a positive recommendation and whether Green considered
it does not change what Sanders told Plaintiff. The Court does not
consider Sanders’ statement for the truth of the matter asserted,
but for its effect on the listener, Plaintiff.
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“shocked” when Plaintiff was not selected. (ECF No. 75-34 at 1.)3
None of that evidence was in the record or otherwise before the
Court for consideration at the dismissal stage.
Defendant argues that many things have emerged in the record
that 	should 	have 	alerted 	Plaintiff 	to 	the 	possibility 	that 	she
was 	being 	retaliated 	against 	before 	she 	learned 	of 	the 	Moody
Affidavit. 	Defendant 	argues 	that 	these 	new 	facts 	show 	that
Plaintiff did not diligently pursue her rights.
The 	Court 	said 	in 	its 	May 	29 	Order 	denying 	Defendant’s
motion 	to 	dismiss 	that 	there 	were 	two 	questions 	to 	consider 	in
deciding 	Plaintiff’s 	diligence: 	whether 	Plaintiff 	diligently
sought 	the 	information 	necessary 	to 	learn 	whether 	she 	should
consider an EEO action and whether Plaintiff diligently initiated
contact with an EEO employee after being put on notice that she
had 	a 	potential 	claim. 	(ECF 	No. 	17 	at 	13) 	(citing 	Amini 	v.
Oberlin Coll., 259 F.3d 493, 499 (6th Cir. 2001)).
Here, Plaintiff did not seek information about the Seattle
AO 	employment 	decision 	until 	after 	she 	had 	read 	the 	Moody
Affidavit, 	nearly 	two 	years 	after 	she 	learned 	she 	had 	not 	been
3 Defendant also cites other evidence in the record surrounding a
different EEO complaint Plaintiff was considering filing about a
different position. (ECF No. 75 at 8-9.) Although that evidence
might show a generally litigious disposition on the part of
Plaintiff, it does not necessarily show that she could or should
have suspected retaliation when she was not selected for the Seattle
Position.
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hired 	for 	the 	Seattle 	Position. 	(ECF 	No. 	83 	at 	10.) 	In 	its 	May
29 	Order, 	the 	Court, 	considering 	a 	motion 	to 	dismiss, 	reasoned
that 	“it 	is 	difficult 	to 	determine 	how 	Plaintiff 	could 	have
surmised that her non-selection was retaliatory.” (ECF No. 17 at
15.) The evidence that has emerged in the record now shows that
Plaintiff 	was 	or 	should 	have 	been 	on 	notice 	that 	there 	was 	the
possibility she was subject to retaliation. 	Plaintiff testified
that “she thought she did well, and she was being told that she
did well, but was not selected.” (ECF No. 83-2 at ¶ 50.) Two or
three weeks after her interview—and well within the 45-day period
to initiate contact with an EEO counselor—another employee told
Plaintiff 	that 	he 	had 	given 	her 	a 	good 	recommendation 	for 	the
Seattle 	Position. 	(ECF 	No. 	83-2 	at 	¶ 	51.) 	Other 	employees 	were
“shocked” 	that 	Plaintiff 	had 	not 	been 	selected. 	(ECF 	No. 	75-34
at 	1.) 	These 	facts 	combine 	to 	show 	that 	Plaintiff 	could 	have
surmised that her non-selection was retaliatory and that she was
not 	diligent 	in 	pursuing 	her 	rights. 	Although 	Plaintiff 	later
discovered additional evidence of potential discrimination, that
information 	was 	not 	critical 	to 	initiating 	the 	EEO 	process 	in
the 	initial 	45-day 	period. 	“A 	plaintiff 	need 	not 	know 	all 	the
facts 	of 	[her] 	case 	in 	order 	to 	comply 	with 	Title 	VII's
administrative 	exhaustion 	requirement.” 	Tenenbaum 	v. 	Caldera,
45 F. App'x 416, 421 (6th Cir. 2002).
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Other courts have equitably tolled the deadline for a Title
VII claim when the plaintiff has lacked information critical to
her 	case. 	See 	Dixon, 	481 	F.3d 	at 	330 	and 	Seay 	v. 	Tenn. 	Valley
Auth., 339 F.3d 454, 469 (6th Cir.2003). In those cases, however,
“the 	defendant 	withheld 	information 	or 	provided 	misleading
information that plaintiff needed to raise a suspicion that the
defendant's 	actions 	were 	motivated 	by 	discrimination 	or
retaliation.” 	Taylor 	v. 	Donahoe, 	452 	F. 	App'x 	614, 	618 	(6th
Cir. 2011) (describing Dixon and Seay). 	There, “the period was
tolled, but only until [plaintiff] was aware of the possibility
that 	he 	had 	suffered 	an 	adverse 	employment 	action 	because 	of
illegal 	discrimination.” 	Taylor, 	452 	F. 	App'x 	at 	618. 	Dixon
and Seay are inapplicable here, where there is no allegation of
employer 	wrongdoing 	in 	withholding 	information 	or 	providing
misleading information.
“To successfully raise a claim of equitable tolling, a party
must 	show 	either 	fraudulent 	concealment 	of 	the 	critical 	facts
that 	would 	lead 	one 	to 	know 	that 	[she] 	can 	sue, 	or 	a
misrepresentation 	of 	those 	facts—whether 	made 	in 	good 	faith 	or
not—that was calculated to induce a plaintiff to forego the right
to sue.” 	Tenenbaum, 45 F. App'x at 421 (cleaned up). 	Plaintiff
does not argue that she was prevented or hindered from inquiring
or accessing evidence about her case. 	Although it was possible
that concealment or misrepresentation would emerge in the record
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during discovery after the dismissal stage, the record does not
contain any such evidence.
Because Plaintiff was aware of the possibility that she had
suffered 	an 	adverse 	employment 	action 	motivated 	by 	illegal
discrimination 	when 	she 	learned 	she 	had 	not 	been 	hired 	for 	the
Seattle Position, and because there is no evidence or allegation
of 	employer 	concealment 	or 	misrepresentation 	that 	prevented
Plaintiff 	from 	pursuing 	her 	rights, 	Dixon 	and 	Seay 	are
distinguishable. 	Plaintiff did not diligently pursue her rights.
As 	the 	Sixth 	Circuit 	held 	in 	Amini, 	courts 	“will 	not, 	absent
other 	circumstances 	weighing 	in 	favor 	of 	equitable 	tolling,
suspend 	the 	running 	of 	the 	statute 	of 	limitations 	in 	a
discrimination 	action 	until 	the 	plaintiff 	learns 	sufficient
facts that would lead [her] to suspect that the defendant acted
with 	discriminatory 	intent.” 	259 	F.3d 	at 	502. 	There 	are 	no
such circumstances here. 	Factor three favors Defendant.
3. Factor Four
Factor 	four 	addresses 	prejudice 	to 	the 	defendant. 	“The
Supreme 	Court 	has 	held 	that 	the 	absence 	of 	prejudice 	to 	the
defendant employer ‘is not an independent basis for invoking the
doctrine 	and 	sanctioning 	deviations 	from 	established
procedures.’” 	Steiner, 	354 	F.3d 	at 	437 	(citing 	Baldwin 	Cnty.
Welcome 	Ctr., 	466 	U.S. 	at 	152. 	“Although 	absence 	of 	prejudice
is a factor to be considered in determining whether the doctrine
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of 	equitable 	tolling 	should 	apply 	once 	a 	factor 	that 	might
justify 	tolling 	is 	identified, 	it 	is 	not 	an 	independent 	basis
for invoking the doctrine.” 	Graham-Humphreys v. Memphis Brooks
Museum 	of 	Art, 	Inc., 	209 	F.3d 	552, 	562 	(6th 	Cir. 	2000) 	(citing
Andrews 	v. 	Orr, 	851 	F.2d 	146, 	151 	(6th 	Cir.1988)). 	“Prejudice
may only be considered if other factors of the test are met [by
the plaintiff] and therefore can only weigh in [the defendant’s]
favor.” 	3799 Mill Run Partners, LLC v. City of Hilliard, Ohio,
839 	F. 	App'x 	948, 	951 	(6th 	Cir. 	2020) 	(citing 	Townsend 	v. 	Soc.
Sec. Admin., 486 F.3d 127, 132 (6th Cir. 2007)).
“Prejudice for purposes of the doctrine of equitable tolling
means 	the 	disposal 	of 	evidence 	and 	the 	inaccessibility 	of
witnesses, the dimming of recollections and other disadvantages
incident 	to 	the 	lapse 	of 	time.” 	Monnheimer 	v. 	Nielsen, 	No.
1:08CV356, 	2008 	WL 	5333808, 	at 	*5 	(S.D. 	Ohio 	Dec. 	19, 	2008)
(citing Salins v. City of Dayton, 624 F.Supp. 632, 634 (S.D.Ohio
1985)).
The Court need not consider prejudice to Defendant because
no 	other 	factor 	favors 	Plaintiff. 	Courts 	have 	denied 	requests
for 	equitable 	tolling 	even 	when 	no 	prejudice 	to 	the 	defendant
had 	been 	shown. 	See, 	e.g. 	Steiner, 	354 	F.3d 	at 	437; 	Graham-
Humphreys, 209 F.3d at 562; Garrett v. Structured Cabling Sys.,
Inc., No. CIV. 10-55-DLB, 2010 WL 3862994, at *12 (E.D. Ky. Sept.
28, 2010); and Amini, 259 F.3d at 502
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Nevertheless, 	factor 	four 	favors 	Defendant. 	At 	the
dismissal 	stage, 	Defendant 	did 	not 	show 	and 	made 	no 	argument
attempting 	to 	show 	that 	she 	would 	be 	prejudiced 	by 	the 	Court’s
equitably 	tolling 	Plaintiff’s 	deadline 	to 	initiate 	the 	EEO
process. 	(ECF 	No. 	17 	at 	15.) 	Defendant 	argues 	now 	that 	she 	was
prejudiced 	by 	Plaintiff’s 	delay 	in 	two 	ways. 	First, 	Defendant
argues that her access to witnesses was hindered, because three
employee witnesses had left the USMS by January 2020, four months
after 	Plaintiff 	first 	sought 	EEO 	counseling 	in 	September 	2019.
(ECF 	Nos. 	75 	at 	11 	& 	83-2 	at 	¶ 	60.) 	Plaintiff 	does 	not 	address
this argument.4 	The two-year delay in initiating the EEO process
meant that Defendant had more difficulty accessing witnesses.
Second, 	Defendant 	cites 	witnesses’ 	memory 	loss 	caused 	by
the two-year delay. (ECF No. 75 at 11-12.) Defendant accurately
cites the deposition testimony of Jacob Green, Eddie Laster, and
Steve Moody that shows a failure of memory about certain events
and details. (ECF No. 75 at 11-12.) Green ascribed his difficulty
recalling 	events 	to 	the 	passage 	of 	time. 	(ECF 	No. 	75-2 	at 	29).
Moody testified that the fact he was deposed after his June 2022
retirement affected his ability to recall key events.5 (ECF No.
4 Plaintiff incorrectly asserts that “the only prejudice the
Defendant can point to deals with witness recollection.” (ECF No. 83
at 11.)
5 Moody’s subsequent declaration, submitted by Plaintiff in her
response to Defendant’s Motion for Summary Judgment, clarifies some,
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75-7 	at 	5.) 	Laster, 	at 	his 	deposition, 	also 	implied 	that 	the
passage of time had hindered his ability to recall events. (ECF
No. 75-18 at 33-34.)
Memory 	naturally 	fades 	with 	time, 	and 	it 	is 	impossible 	to
say 	definitively 	whether 	a 	witness’s 	memory 	would 	be 	better
absent 	Plaintiff’s 	two-year 	delay. 	A 	witness’s 	faded 	memory
might 	also 	be 	due 	in 	part 	to 	the 	fact 	that 	the 	case 	had 	to
proceed 	through 	an 	administrative 	process 	before 	reaching 	this
Court. 	(ECF 	No. 	1-2.) 	Plaintiff 	argues 	that 	these 	lapses 	in
memory occurred in response to questions that strategically favor
Defendant. 	(ECF 	No. 	83 	at 	11-13). 	However, 	the 	Court 	must
consider the fact that three key witnesses attributed their lack
of 	memory 	to 	the 	passage 	of 	time, 	potentially 	prejudicing
Defendant 	and 	hindering 	the 	case, 	given 	Plaintiff’s 	two-year
delay in initiating the EEO process.
The 	heightened 	difficulty 	of 	accessing 	witnesses 	and 	the
fading memory of other witnesses prejudice Defendant.
4. There Are No Extenuating Circumstances
All of the factors weigh against equitable tolling in this
case. 	Plaintiff 	knew 	the 	procedures 	for 	initiating 	the 	EEO
process, 	she 	suspected 	or 	should 	have 	suspected 	she 	was
potentially 	being 	retaliated 	against 	when 	she 	was 	not 	selected
but not all, of the gaps Defendant cites in Moody’s memory during
his deposition. (ECF No. 83-1.)
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for 	the 	Seattle 	Position, 	and 	Defendant 	would 	be 	prejudiced 	by
Plaintiff’s 	two-year 	delay 	in 	initiating 	the 	process. 	Even 	in
the 	absence 	of 	prejudice 	to 	Defendant, 	equitable 	tolling 	would
be inappropriate.
Because the Dixon factors are “not exhaustive, and equitable
tolling 	is 	decided 	on 	a 	case-by-case 	basis, 	this 	inquiry 	must
consider 	any 	additional, 	relevant 	factors.” 	Garrett, 	2010 	WL
3862994 	at 	*12. 	The 	parties 	have 	cited 	no 	additional 	factors,
and the Court finds none relevant here.
V. 	Conclusion
Defendant’s Motion for Summary Judgment is GRANTED. 	After
full 	consideration 	of 	the 	record, 	the 	Court 	finds 	that 	all 	of
the 	Dixon 	factors 	weigh 	against 	equitably 	tolling 	Plaintiff’s
filing 	deadline. 	Because 	Plaintiff 	did 	not 	initiate 	the 	EEO
process 	within 	forty-five 	days 	after 	learning 	she 	had 	not 	been
hired 	for 	the 	Seattle 	Position, 	the 	retaliation 	and 	reprisal
claim is time-barred and dismissed WITH PREJUDICE.
So ordered this 11th day of February, 2026.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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