Opinion
No. C-00-4618 EDL
September 14, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Plaintiff Betty Johnson filed this lawsuit under 42 U.S.C. § 2000 (e), et seq., for sexual harassment and retaliation, wrongful termination in violation of public policy and intentional infliction of emotional distress. Defendant moved for summary judgment on June 5, 2001 on the grounds that Plaintiff failed to exhaust her administrative remedies. Plaintiff timely filed her opposition. The Court held a hearing on July 10, 2001. Both parties appeared through their counsel of record. At the hearing, the Court ordered the parties to file supplemental briefing. On July 31, 2001, Defendant filed its Supplemental Brief in Support of Motion for Summary Judgment. On August 10, 2001, Plaintiff filed her Supplemental Brief in Opposition to Defendant's Motion for Summary Judgment. Defendant timely replied.
Upon consideration of the parties' arguments at the hearing and their submissions, and for the reasons set forth below, the Court enters the following order.
FACTUAL BACKGROUND
The following facts are undisputed, except where specifically noted. In 1997, the United States Postal Service ("Postal Service") employed Plaintiff as a casual mailhandler at the Oakland Processing and Distribution Center ("PDC"). See Declaration of Alex Tse in Supp. of Def.'s Mot. for Summ. J. ("Tse Decl.") Ex. A (Deposition of Betty Johnson ("Johnson Dep.") at 10:10-16. Plaintiff argues that throughout her employment with the Postal Service she was subjected to a sexually hostile work environment. See Decl. of Pl. in Opp'n to Def.'s Mot. for Summ. J. ¶ 3 ("Johnson Decl."). Plaintiff claims that she complained of this sexual environment to supervisors and managers on numerous occasions. Id. Defendant terminated Plaintiff in January 2000. See Tse Decl. Ex. A (Johnson Dep.) at 41:13.
On June 19, 2000, Plaintiff requested EEO counseling. See Tse Decl. Ex. B. In response to Plaintiff's request for counseling, Defendant sent Plaintiff a Form 2564-A, Information for Precomplaint Counseling, and a booklet entitled "What You Need To Know About EEO, An Informative Booklet." See Tse Decl. Ex. C. Plaintiff received this information at her residence, via certified mail, on June 21, 2001. See Tse Decl. Ex. C.
On June 24, 2000, Plaintiff completed the EEO Request for Counseling. See Tse Decl. Ex. B. Plaintiff returned the counseling request form along with a signed acknowledgment that she had received the booklet "What You Need to Know About EEO, An Informative Booklet." See Tse Decl. Ex. E. In her EEO Request for Counseling, Plaintiff alleges that on August 8, 1999:
A co-worker by the name of Sam Santos was using the work equipment very unsafely bumping co-workers and not saying excuse me. When as [sic] of him to apologize, he refused and decided to insult me as well as two other coworkers calling us demeaning names. I did inform a supervisor but no action was taken.
See Tse Decl. Ex. B.
According to Defendant, on August 3, 2000, it sent Plaintiff a letter informing her of her right to file an individual complaint within fifteen days of receipt of the letter. The letter was hand dated September 3, 2000. See Tse Decl. Ex. F. Defendant sent this notice via certified mail and an individual at Plaintiff's residence, "Katie," acknowledged receipt of the letter on August 4, 2000. Id. Plaintiff testified that a relative, by the name of Katie, visits her residence. See Tse Decl. Ex. A (B. Johnson Dep.) at 36:21-37:16. Plaintiff argues, instead, that she did not receive this letter informing her of her right to file an individual complaint until September 3, 2000.
On September 4, 2000, the Postal Service issued a Final Agency Decision ("FAD"). See Tse Decl. Ex. H. On September 8, 2000, Plaintiff filed a formal EEO Complaint of Discrimination with the Postal Service. See Tse Decl.Ex. G. In her formal complaint, Plaintiff alleges that the date on which the alleged act of discrimination took place was on October 12, 1999. Id. Defendant rejected Plaintiff's complaint for the following two reasons: (1) Plaintiff filed the complaint after the fifteen-day time limit to file a formal complaint; and (2) Plaintiff sought informal EEO counseling after the forty-five-day time limit. See id.
Plaintiff now brings this action for sexual harassment and retaliation under 42 U.S.C. § 2000 (e), et seq., wrongful termination in violation of public policy and intentional infliction of emotional distress. Plaintiff filed her Complaint on December 8, 2000.
LEGAL ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id., The court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." United Steelworkers of American v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).
The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325.
A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Liberty Lobby, 477 U.S. at 250. However, the opposing party need not produce evidence in a form that would be admissible at trial in order to avoid a summary judgment. See Celotex, 477 U.S. at 324. Nor must the opposing party show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is sufficient evidence supporting the asserted factual dispute and requiring a jury or judge to resolve the parties' differing versions of the truth at trial. See id.
B. Exhaustion of Administrative Remedies
Plaintiff filed this lawsuit pursuant to Title VII. Title VII provides that "it is unlawful for an employer to fail to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000 (e) 2(a)(1). Additionally, Title VII is violated if sexual harassment is so severe as to create a hostile work environment. See Kortan v. California Youth Auth., 217 F.3d 1104, 1109 (9th Cir. 2000).
In order to maintain a suit alleging employment discrimination against an agency of the United States, a claimant must exhaust her administrative remedies in accordance with published procedures. See Leorna v. United States Dep't of State, 105 F.3d 548, 550 (9th Cir. 1997) (citing Brown v. General Serv. Admin., 425 U.S. 820, 832 (1976)). Federal regulations require that a federal employee raise a discrimination claim with an Equal Employment Opportunity ("EEO") counselor within forty-five days of an adverse employment action. Id. (citing 29 C.F.R. § 1614.105 (a)). The forty-five-day statute of limitations begins to run "when the facts that would support a charge of discrimination would have been apparent to a similarly situated person with a reasonably prudent regard for his rights." Boyd v. United States Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 1985). The policy underlying this statute of limitations provision is to encourage quick and informal resolutions of employment disputes involving charges of discrimination and civil rights violations. See Christison v. Alvarez, 31 F. Supp.2d 787 (D. Mont. 1999), aff'd, 243 F.3d 547 (9th Cir. 2000). If the matter cannot be resolved formally, a complaint must be filed with the agency within fifteen days of the conclusion of the pre-complaint processing. See 29 C.F.R. § 1614.106.
These administrative requirements are intended to act as a statute of limitation and, as such, are subject to waiver, equitable estoppel and equitable tolling. See Zipes v. Trans World Airlines. Inc., 455 U.S. 385, 393 (1982). Generally, federal courts grant equitable relief in only two kinds of situations: (1) when delay in filing a claim is excusable and does not unduly prejudice the defendant (equitable tolling); or (2) when the defendant prevented the plaintiff from asserting her claim by some kind of wrongful conduct (equitable estoppel). See Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000).
The Supreme Court has held that the failure to file a timely EEOC administrative complaint is not a jurisdictional prerequisite to a Title VII claim, but is merely a statutory requirement subject to waiver, estoppel and equitable tolling. See Zipes v. Trans World Airlines. Inc., 455 U.S. 385, 393 (1982). In a recent Ninth Circuit decision, Sommatino v. United States, 2001 WL 674288, *3 (9th Cir. June 18, 2001), the court held that where a plaintiff has never presented a discrimination complaint to the appropriate administrative authority, the district court does not have subject matter jurisdiction. Here, however, Plaintiff did make administrative complaints; the issue, instead, is their timeliness. Therefore, Defendant's surprising argument that under Sommatino Plaintiff's delay in meeting administrative deadlines goes to jurisdiction is without merit.
Here, Defendant argues that Plaintiff failed to exhaust her administrative remedies at two critical steps in the process. First, Defendant contends that Plaintiff failed to bring her claim to an EEO counselor for pre-complaint processing within forty-five days of the adverse action. Second, Defendant contends that Plaintiff failed to file her formal complaint within fifteen days of the resolution of the pre-complaint processing. Moreover, Defendant argues that no equitable relief tolls or estops Plaintiff's duty to satisfy these requirements.
1. Pre-Complaint Process
a. Failure to Seek Counseling Within Forty-Five Days
In order to satisfy her administrative remedies, Plaintiff must have sought pre-complaint counseling with the EEO within forty-five days of an adverse action. It is undisputed that Plaintiff sought pre-complaint counseling with the EEO on June 19, 2000. See Tse Decl. Ex. B. The event that triggered the counseling requirement took place either on August 8, 1999 see id or on October 12, 1999. See Tse Decl. Ex. G. Under either date, Plaintiff's counseling request is well beyond the specified forty-five-day time limit.
Plaintiff concedes that she did not seek EEO counseling within forty-five days of the adverse action. Instead, Plaintiff argues that because she complained weekly to her supervisors regarding the hostile work environment, she satisfied Defendant's own policy as established in the "Orientation for New Employees: Learner's Workbook" ("Workbook"). See Decl. of Eugene T. Franklin in Opp'n to Def.'s Mot. for Summ. J. Ex. B ("Franklin Decl."). The Workbook sets forth a Zero Tolerance Policy for sexual harassment that provided: (1) "postal employees who believe that they are the victims of sexual harassment should bring the situation to the attention of impartial supervisors or managers;" and (2) "[i]n addition, postal employees may seek relief through the Equal Employment Opportunity (EEO) complain [sic] process, grievance arbitration procedures. . . ." See Franklin Decl. Ex. B at 4-7. Plaintiff contends that her verbal complaints to her supervisors about sexual harassment and her October 10, 1999 letter complaining about sexual harassment satisfied the workbook provision and therefore exhausted her administrative remedies. See Johnson Decl. Ex. A.
Plaintiff's attempt to convert the Postal Service's Zero Tolerance Policy into an administrative remedy that obviates the need to raise a claim with an EEO counselor is without merit. Plaintiff relies on Leorna v. United States Dep't of State, 105 F.3d 548 (9th Cir. 1997), in support of her argument that frequent complaints to her supervisors satisfy this administrative step. Leorna does not, however, lend support to Plaintiff's argument. There, the court assumed for purposes of the appeal that the plaintiff's letters to the State Department Director, the United States Secretary of State, the Director of the State Department's EEO Office and the EEOC constituted a formal administrative complaint. Id. at 550. The court specifically noted, however, that the plaintiff's filing of her administrative complaint did not fulfill 29 C.F.R. § 1614.105 (a)'s requirement that she contact the agency's EEO counselor to attempt informal resolution of the dispute prior to filing of the complaint. Id. at 551 n. 3. Therefore, the court held that because the plaintiff failed to timely contact a State Department EEO counselor, she failed to preserve her right to maintain a suit alleging employment discrimination against the State Department. Id. at 551-52.
Here, it is undisputed that Plaintiff failed to satisfy the forty-five-day requirement. Plaintiff's verbal complaints to her supervisors are not a substitute for lodging a complaint with an EEO counselor as required by the regulations. Even though the Workbook affords employees the option of seeking direct informal relief from management, it does not follow that this option allows employees to sue in court if they are not satisfied without first exhausting their administrative remedies. Therefore, unless the doctrine of equitable estoppel and/or equitable tolling applies here, Plaintiff's failure to exhaust her administrative remedies bars her right to judicial review.
b. Equitable Tolling of the Forty-five-day Deadline
The requirement that a claim of discrimination be timely filed with the agency is subject to the doctrine of equitable tolling. Leorna, 105 F.3d at 551 (citing Zipes, 455 U.S. at 393). This doctrine excuses a plaintiff's failure to comply with the time limitations where she had neither actual nor constructive notice of the filing period. Leorna, 105 F.3d at 551 (citing Stallcop v. Kaiser Found, Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987)).
Here, Plaintiff declared that she never saw any sexual harassment posters posted in her work place. See Johnson Decl. ¶ 2. Plaintiff also testified at her deposition that she was not aware of the EEO forty-five-day filing requirement and never attended a Postal Service orientation. See Tse Decl. Ex. A (Johnson Dep.) at 42:9-23. Plaintiff's declaration and deposition testimony raise a triable issue of fact as to whether Plaintiff had actual notice of the forty-five-day counseling requirement.
The real issue is whether Plaintiff had constructive knowledge of the counseling requirement. Defendant initially argued that Plaintiff had constructive knowledge of the filing period since every Postal Service facility was required to display posters notifying employees of the time limits, which included the address and phone number of the EEOC office. See Decl. of Sandra Barton in Supp. of Def's Mot. for Summ. J. ¶ 3 ("Barton Decl."). Defendant did not, however, initially address whether the Oakland branch, where Plaintiff worked, actually displayed these posters during the relevant time period, 1999. In its supplemental papers, Defendant submitted the declarations of employees of the Oakland branch, which show that posters were in fact displayed there.
For example, Sandra Barton, a Labor Relations Specialist at the Oakland Processing and Distribution Center ("PDC"), declared that numerous EEO posters were displayed at the PDC during the relevant time period. See Supplemental Decl. of Sandra Barton in Supp. of Def.'s Mot. for Summ. J ¶¶ 2, 4 ("Supp. Barton Decl."). Barton was employed at the PDC from 1995 to the present. See Supp. Barton Decl. ¶ 4. Although Barton could not recall each location of the EEO posters, Barton declared that she has personally observed posters at the personnel office at the PDC where all employee must report at some time, the cafeteria on the third floor of the PDC and the employee information bulletin board outside of the second floor office. Id. ¶ 5.
Similarly, Teresa Richard, an EEO Dispute Resolution Specialist in the Oakland, California District since 1993 who has worked at the PDC for the past year, declared that the PDC displayed numerous EEO posters as long as [she has] worked for the Postal Service in California. See Decl. of Teresa Richard in Supp. of Def.'s Mot. for Summ. J. ¶ 4 ("Richard Decl."). According to Richard, before recommending that a complaint be dismissed for failure to comply with the forty-five-day limit requirement, she verifies that EEO rights posters are present in a facility where the complainant worked. Id. ¶ 5. On July 23, 1999, the relevant time period, Richard requested such information from the Oakland PDC. See Richard Decl. Ex. A. According to the memo, posters addressing "How to Present an EEO Problem," were displayed at the following locations: first floor entrance and exit bulletin board; time clock located on the first floor in automation; time clocks located on the first floor in the express mail unit and the SPBS unit; posted in the class window on the first floor located by room 149W, first floor office; posted on all bulletin boards on the platform; second floor — posted in the class window next to conference room 259W; second floor — posted on the bulletin board by P.E.D.C., next to elevators number seven and eight; second floor — posted on time clock in the 040 unit; second floor-posted on two time clocks in the FSM unit; second floor — posted on time clock in 074 unit; second floor-posted in swing room bulletin board; third floor — posted on bulletin board next to cafeteria; third floor — posted on bulletin board #33; and also posted on every EEO bulletin board in our facility. Id.
Richard also stated that she personally replaced all prior versions of the EEO rights posters in the PDC as recently as July 5, 2001. See Richard Decl. ¶¶ 8, 9, 10, 11. Because this information may not pertain to the relevant time period, the Court does not rely on this evidence.
Plaintiff testified at her deposition that she has been to the following locations: first-floor entrance and exit, time clock located on the first floor in automation, time clock on the first floor in the express mail unit and the cafeteria on the third floor. See Tse Decl. Ex. A (Johnson Decl.) at 46:1-47:24. Defendant's unrebutted evidence shows that EEO posters were displayed in these areas.
Plaintiff responds that she never noticed any posters informing her of her rights and obligations. This testimony begs the question of constructive notice. The only specific evidence on this point is her declaration and her daughter's declaration that during her employment, there was a glass enclosed bulletin board near the entry of the Post Office on the first floor and that they occasionally looked at it, but never saw any material on that bulletin board that explained the purpose of the EEO or discussed EEO procedures for filing a complaint of discrimination. See Supplemental Decl. of Pl Betty Johnson in Opp'n to Def.'s Mot. for Summ. J. ¶ 2 ("Supp. Johnson Decl."); see also Decl. of LaShawn Johnson in Opp'n to Def.'s Mot. for Summ. J ("L. Johnson Decl."). This evidence that one glass bulletin board did not contain an EEO poster, even when viewed in the light most favorable to Plaintiff and drawing all reasonable inferences in her favor, is insufficient to raise a triable issue of fact regarding constructive notice.
Because Plaintiff has failed to raise a triable issue of fact as to whether she had constructive notice of the forty-five-day limit, Plaintiff is not entitled to equitable tolling of this requirement.
c. Equitable Estoppel to Assert the Forty-five-day Deadline
Equitable estoppel, which is distinct from the doctrine of equitable tolling, allows tolling of the statute of limitations when the plaintiff has been misled by the defendant, as opposed to her own excusable ignorance. See Christison, 31 F. Supp.2d at 790 (citing Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990)). The "principles of equitable estoppel . . . do not extend to what is at best a garden variety claim of excusable neglect." Id. Equitable estoppel turns on the consideration of a non-exhaustive list of factors, including: (1) the plaintiff's actual and reasonable reliance on the defendant's conduct or representations; (2) evidence of improper purpose on the part of the defendant, or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct; and (3) the extent to which the purposes of the limitations period have been satisfied. See Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (citing Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981)).
In Stallcop v. Kaiser Found. Hosp., 820 F.2d 1044, 1050 (9th Cir. 1987), the plaintiff argued that the defendant was estopped from asserting the statute of limitations because a union business representative informed her that she had one year in which to file suit and she reasonably relied on his representations. The court held that because the plaintiff failed to provide evidence of an improper purpose by the defendant, or of the defendant's actual or constructive knowledge that its conduct was deceptive, equitable estoppel was inapplicable. The court noted that the plaintiff conceded that the union business representative's misrepresentations were not intentionally or fraudulently made. Id.
Here, Plaintiff argues that Defendant's Zero Tolerance Policy misled her into believing that her complaints of sexual harassment to her supervisors satisfied the filing requirements. Plaintiff has failed, however, to produce evidence raising a triable issue of fact that Defendant had actual or constructive knowledge that its conduct regarding its published policy was deceptive or indeed had any improper purpose.
Additionally, Plaintiff argues that equitable estoppel should toll the forty-five-day time requirement because of intimidation by comments made by Yvonne Davis, her supervisor. According to Plaintiff, Davis informed Plaintiff that because she was a "casual employee," she did not have the same rights and protections as a regular employee and that if she continued complaining, she would "be the first one out of here." See Supp. Johnson Decl. ¶ 4; Johnson Decl. ¶ 3; see also L. Johnson Decl. ¶ 4. Based on this representation, Plaintiff declared that she was reluctant to continue bringing her complaints of sexual harassment to management because she "wanted to keep her job." Id. ¶ 5.
On June 26, 2001, Defendant filed an Objection to Evidence Submitted in Opposition to Summary Judgment. Specifically, Defendant argued that Yvonne Davis' statement constitutes hearsay And should not be considered by this Court. This statement, however, is non-hearsay pursuant to Federal Rule of Evidence 801(d)(2)(D), which provides that a "statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" may be offered against the party as a vicarious admission. Therefore, Defendant's motion, with respect to this objection, is denied. (Docket #25). The Court need not address Defendant's remaining objections since the other statements are not material.
Plaintiff has not raised a triable issue of fact on equitable estoppel of the forty-five-day time limit based on this evidence. While these statements could have led Plaintiff to fear retaliation from her supervisor, they do not relate to time limits for seeking counseling from an EEOC counselor who is not her supervisor. Nor has Plaintiff provided any evidence of when the statements were made in relation to her seeking counseling, which she did eventually do. The statements do not constitute the specific misinformation about time limits or deliberate or reckless lulling that courts have held necessary for equitable relief from the limits. For example, in Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.D.C. 1998), the plaintiff sought tolling of the time period for filing suit after receiving her right-to-sue letter. She claimed that she was "scared or lulled" by the fact that one of those who allegedly sexually harassed and retaliated against her was the chief EEO officer, who had the authority to remedy her complaints or terminate her. The court rejected this argument, observing: "nowhere does she claim that anything the defendants did or said misled her as to the effect of the 90-day limitation period on her right to seek judicial relief." Id. at 188 cf Currier v. Radio Free Europe/Radio Liberty, 159 F.3d 1363, 1368-69 (D.C. Cir. 1998) (affirmative representations that the plaintiff's termination was not final and will be reinstated tolled retaliation claim, but no tolling of sexual harassment claim "where statements did not lead the plaintiff to believe hostile work environment would change)."
Similarly, in Shanoff v. Illinois Dep't of Human Servs., 258 F.3d 696, 702 (7th Cir. 2001), the court rejected the plaintiff's argument that his late filing of his EEOC charge should be excused due to his supervisor's threats that she had friends that "could take care of" him if he filed a charge. The court observed that the plaintiff provided no explanation as to why he failed to sue earlier, but then no longer felt deterred when he did file. Also, he failed to present authority from any circuit court holding that equitable estoppel applied where the employee had the knowledge and ability to file his EEOC charge, but was deterred by her employer's threat of retaliation. The court reasoned:
Although Plaintiff here did not have had actual knowledge of the deadline, she had constructive knowledge, as found above. The Court does not find the distinction between constructive and actual knowledge material in these circumstances, especially since the threat in Shanoff was more specific, yet still did not justify estoppel.
Title VII already makes it unlawful for employers to retaliate against employees who assert their rights under the statute, and thus a remedy already exists for employees who suffer an adverse action by their employers because they pursued a Title VII claim. If we extended the equitable estoppel doctrine to [the plaintiff's] claim, that would permit Title VII plaintiffs to sidestep the statute of limitations by simply alleging that they were threatened by a supervisor at one time, and thus remained deterred from filing an earlier charge. . . .
Id. at 702 (citations and footnote omitted). Here, Plaintiff also did not explain why she failed to bring her claim to a counselor within the forty-five-day limitations period but later no longer felt deterred. Moreover, unlike here, the threat in Shanoff was specifically related to the filing of an EEOC charge, yet was still held insufficient to toll the limitations period. See also Kirk v. Hitchcock Clinic, 2001 WL 929880, *2 (1st Cir. Aug. 20, 2001) (court affirmed trial court's finding that equitable estoppel did not toll the limitations period because the fear of retaliatory action is not an "exceptional circumstance" beyond the plaintiff's control, given that Title VII provides specific remedies for retaliation).
In any case, even assuming that Plaintiff raised a triable issue as to the forty-five-day time limit for EEO counseling, the Court concludes below that she did not do so with respect to the untimely filing of her formal complaint with the agency.
2. Filing of Formal Agency Complaint
a. Failure to File Agency Complaint Within Fifteen Days of Receipt of Notice
Federal employees must file their formal complaint with the agency within fifteen days of the conclusion of the pre-complaint processing. See 29 C.F.R. § 1614.106. Defendant argues that Plaintiff received her "Notice of Right to File Individual Complaint" ("Notice") on August 4, 2000. The Return Receipt form shows that the certified mail was received on August 4, 2001 and received by Defendant's office on August 7, 2000. See Tse Decl. Ex. F. Therefore, Plaintiff had until August 19, 2000 to file her formal complaint with the agency. It is undisputed that Plaintiff filed her formal complaint on September 8, 2000. See Tse Decl. Ex. G.
It is also undisputed that the cover letter accompanying the Notice is dated August 3, 2000 and advised Plaintiff that to pursue her complaint, she must complete and return certain forms "within fifteen (15) days upon receipt of this letter. . . ." Tse Decl. Ex. F (emphasis added). Further, the attached Notice stated: This notice will attest to the fact that on August 3, 2000 [printed in bold] I advised you of the actions . . . you have the right to file to [sic] formal complaint within 15 calendar days of the date this notice is received." Id. (emphasis added).
Next to the signature of Ms. Diana Cruz-Crowder at the bottom of the form, however, is the handwritten date of 9-3-00. Id. Plaintiff argues that because the Notice contained this one September 3, 2000 date, this is sufficient evidence to raise a triable issue of fact as to whether she received the Notice on or about that date rather than on August 4, 2000. See Tse Decl. Ex. F. If Plaintiff received the Notice on September 3, 2000, she timely filed her formal complaint.
Defendant responds that the handwritten date on the Notice was an error in transcription. Defendant points out that the Notice was dated August 3, 2000 and received on August 4, 2000. Indeed, the certified mail document shows that someone at Plaintiff's residence received the document on August 4, 2000. See Tse Decl. Ex. F. Filed in connection with Defendant's supplemental brief, Diana Cruz-Crowder's declaration provides that it was her "usual practice to print the Notice . . . along with a cover letter and mail it, certified mail, return receipt requested, on the same day." See Decl. of Diana Cruz-Crowder in Supp. of Def.'s Mot. for Summ. J. ¶ 3 ("Cruz-Crowder Decl."). Cruz-Crowder explained that the Notice must be dated in two places. Id. The date is entered by the computer when the form is generated and Cruz-Crowder declared that it was her practice to insert the current date by computer into the forms when she printed them. Id. The date must also be inserted on the cover letter, which is done by computer. Id. Cruz-Crowder declared that after printing the Notice, she then must sign it and date the Notice and the Receipt for Certified Mail by hand. Id.
A party moving for summary judgment is entitled to the benefit of any relevant presumptions that would be available at trial, provided that the facts giving rise to the presumption are undisputed. See Coca-Cola Co. v. Overland. Inc., 692 F.2d 1250, 1254 (9th Cir. 1982); see also Cal-Farm Ins. Co. v. United States, 647 F. Supp. 1083, 1086 (E.D. Cal. 1986) (citing Long v. Commissioner of Internal Revenue, 757 F.2d 957, 959 (8th Cir. 1985)). "A letter properly addressed, stamped and mailed is presumed to have been duly delivered to the addressee." C. McCormick, McCormick On Evidence § 343 (1999) (Fifth Edition) (footnote omitted). In Federal Deposit Ins. Corp. v. Schaffer, 731 F.2d 1134, 1137 (4th Cir. 1984), the court found that the presumption is especially strong when the delivery is by certified mail and that clear and convincing evidence is required to overcome this presumption. Id. There, the court reasoned that the plaintiff's denial of receipt, not supported by any affidavit from any member of the household indicating what became of the certified mail, was insufficient to overcome the presumption of notice of delivery to the addressee. Id. at 1138; see also Beck v. Somerset Tech., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (a record containing a copy of the properly addressed letter, a certified mail receipt and signed return postcards was sufficient evidence to create a presumption that a letter was received in the due course of mail; testimony that the employee did not remember receiving a warning letter from the defendant and that he did not recall whether the person who signed the return receipt worked for the employee was insufficient to rebut the presumption that the letter was received); but see Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998) (holding that the district court erred in failing to consider the plaintiff's affidavit denying receipt of mail because the certified mail presumption is rebuttable and the affidavit created a credibility issue that must be resolved by the trier of fact).
Unlike the plaintiff in Witt, Plaintiff here does not deny in her declaration that she received the letter in August.
The Ninth Circuit's analysis regarding the presumptive effect of certified mail in Arrieta v. Immigration Naturalization Serv., 117 F.3d 429 (9th Cir. 1997), in the context of a deportation proceeding, is instructive. There, the court held that "where service of a notice of deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises." Id. at 431. This presumption, however, may be overcome by "the affirmative defense of nondelivery or improper delivery by the Postal Service based on substantial and probative evidence presented by the alien." Id. The court found that the plaintiff did not overcome this presumption because she failed to provide substantial evidence "such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence" demonstrating that improper delivery that was not her fault. Id. (citing In re Grijalva, Int. Dec. 3246 (BIA Apr. 28, 1995)).
Here, Plaintiff offers no evidence of improper delivery. Plaintiff could have produced a declaration from "Katie," the name that appears on the certified mail document, indicating whether she signed for the document and what she did with it. In fact, Plaintiff testified that a relative named Katie visits her residence. See Tse Decl. Ex. A (B. Johnson Dep.) at 36:21-37:16. More importantly, Plaintiff provides no evidence that she did not receive the document on August 4, 2000. Aside from an argument in the opposition papers, Plaintiff never declares under oath or provides any other evidence that she did not receive the Notice until September 3, 2000. Instead, Plaintiff's declaration merely provides that because the document was signed "9/3/00," she believed she had fifteen days from that date to file a formal complaint. That evidence does not go to when she received the letter, but rather to the issue of equitable tolling or equitable estoppel regarding the fifteen-day deadline.
Thus, Plaintiff has failed to rebut the strong presumption of delivery. While Plaintiff may argue that she did not read the letter until a later date (i.e., September), the fifteen-day period begins to run on the date that the Notice was received at her residence. See Scholar v. Pacific Bell, 963 F.2d 264, 267 (9th Cir. 1992) (time period began to run when claimant's daughter signed for right-to-sue letter at claimant's house, not when claimant discovered it a few days later); see also Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 (9th Cir. 1997); Homer v. Henderson, 2001 WL 228164 (N.D. Cal.). Therefore, her claim is barred for failure to meet the fifteen-day deadline unless she is entitled to equitable tolling or equitable estoppel based on the erroneous September 3, 2000 date. See 29 C.F.R. § 1614.105 (a)(2)(d).
a. Equitable Tolling of the Fifteen-Day Deadline
Defendant argues, and Plaintiff does not address, that because Plaintiff was represented by counsel when she failed to comply with the fifteen-day time requirement to file a formal EEO complaint, she cannot take advantage of equitable tolling. Equitable tolling ceases once a claimant retains counsel because the claimant "has gained the means of knowledge of her rights and can be charged with constructive knowledge of the law's requirements." Leorna, 105 F.3d at 551 (citing Stallcop, 820 F.2d at 1050) (citations omitted).
Here, Defendant produced evidence that as of June 24, 2000, in Plaintiff's Request for Counseling, Plaintiff identified Eugene Franklin as her counsel and authorized him to represent her. See Tse Decl. Ex. B. Plaintiff also testified that when she completed her Request for Counseling, she had an attorney. See Tse Decl. Ex. A (Johnson Dep.) at 27:14-16. Plaintiff does not dispute this date, but responds only that she does not recall when she first retained her attorney, Eugene Franklin. Her failure to recall does not create a triable issue of fact that she was not represented by counsel as early as June 2000, well before the fifteen-day deadline began to run. Defendant also points out that on June 24, 2000, Plaintiff acknowledged receipt of the booklet "What You Need to Know About EEO, An Informative Booklet," which notified Plaintiff of the fifteen-day time requirement. See Tse Decl. Ex. E. Instead of responding to this argument, Plaintiff merely argues that she complied with Defendant's published policy in reporting complaints of sexual harassment. As previously discussed, this argument is without merit.
In her supplemental declaration, Plaintiff declares that she dropped out of school after the tenth grade. See Supp. Johnson Decl. ¶ 6. Plaintiff's limited education does not constitute the kind of extraordinary circumstances that justify equitable tolling. See. e.g., Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). In any event, while Plaintiff contends that the hand-written date on the Notice confused her, her retention of counsel renders any equitable tolling argument inapplicable.
Therefore, in light of the evidence before this Court and Plaintiff's failure to produce any evidence to the contrary, Plaintiff had constructive knowledge of the fifteen-day time requirement. Accordingly, Plaintiff is not entitled to equitable tolling of the fifteen-day time requirement to file a formal EEO Complaint.
b. Equitable Estoppel to Assert the Fifteen-day Deadline
As previously discussed, equitable estoppel requires wrongful conduct on the part of the defendant. See Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990). Further, a plaintiff's reliance on the defendant's conduct must be reasonable. Id. The fact that Plaintiff retained counsel does not necessarily cease her right to equitable estoppel, as it does for equitable tolling. See Stallcop, 820 F.2d at 1050 (court held that equitable tolling was foreclosed because the plaintiff had consulted three attorneys, but did not rely on her consultation of attorneys with respect to equitable estoppel, focusing instead on the defendant's conduct).
Although not entirely clear, Plaintiff apparently argues that Defendant is equitably estopped from raising the fifteen-day deadline because of the September 3 date on one part of the August Notice. She has failed to raise any triable issue of fact, however, as to whether Defendant entered the date wrongfully for some improper purpose, as opposed to being merely negligent, or had actual or constructive knowledge that the date was deceptive. Accordingly, Plaintiff is not entitled to equitable estoppel of the fifteen-day time requirement.
CONCLUSION
Based on the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. This Order disposes of docket # 11 and docket # 25. The clerk shall close the file.
JUDGMENT
This action came before the Court for hearing, Magistrate Judge Elizabeth D. Laporte presiding, and the issues have been heard and a decision having been fully rendered.
IT IS ORDERED AND ADJUDGED that in accordance with the Court's order of September 14, 2001, Defendants' Motion for Summary Judgment is GRANTED.