Opinion
Case No. 3:18-cv-01826-YY
07-15-2020
JEANNE THURSTON, Plaintiff, v. SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant.
FINDINGS AND RECOMMENDATIONS :
FINDINGS
Plaintiff Jeanne Thurston has filed a complaint against Sonny Perdue, Secretary, United States Department of Agriculture ("USDA"), asserting five claims for relief: (1) racial discrimination under Title VII (42 U.S.C. § 2000e-2(a)); (2) retaliation for opposing racial discrimination under Title VII (42 U.S.C. § 2000e-3(a)); (3) disability discrimination—disparate treatment under the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.); (4) disability discrimination—failure to accommodate under the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.); and retaliation for opposing disability discrimination under the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.). Compl. ¶¶ 42-73, ECF #21. Defendant has filed a Motion for Partial Summary Judgment (ECF #16), which should be DENIED for the reasons discussed below.
The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331.
Given the exhaustive briefing by the parties, the court finds this motion suitable for decision without oral argument pursuant to L.R. 7-1(d)(1). --------
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant 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." The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citing Fed. R. Civ. P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A "scintilla of evidence" or "evidence that is merely colorable or not significantly probative" is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court "does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). "Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party." Addisu, 198 F.3d at 1134 (citation omitted).
II. Administrative Exhaustion
Defendant asserts that plaintiff failed to exhaust the administrative remedies for her third claim, agency case number RD-2018-00838 ("838 Claim"), and therefore partial summary judgment must be granted. Because, as discussed below, there is a genuine issue of material fact regarding whether plaintiff timely filed the 838 claim, defendant's motion should be denied.
A. Applicable Law
Title VII requires an aggrieved federal employee to exhaust all administrative remedies before bringing a civil claim. 42 U.S.C. § 2000e-16(c). Employees must first file an informal complaint with an Equal Employment Opportunity ("EEO") counselor within 45 days of the alleged conduct. 29 C.F.R. § 1614.105(a). If the counselor cannot informally resolve the matter and issues a notice of right to file a formal complaint ("NRF"), the employee must file a formal complaint with the agency's EEO office within 15 days after receiving the NRF. 29 C.F.R. § 1614.105(d); see Kerr v. Jewell, 836 F.3d 1048, 1054 (9th Cir. 2016) (describing process of administrative and judicial review for federal employees asserting Title VII claims). A complaint is timely filed if it is received or postmarked before the expiration of the 15-day filing period. 29 C.F.R. § 1614.604(b).
"Title VII's regulatory deadlines for administrative exhaustion are not a jurisdictional requirement; rather, they are conditions precedent to filing an action which are subject to waiver, estoppel, or equitable tolling." Grounds v. United States by and through Dep't of Energy, No. 3:17-cv-01190-HZ, 2019 WL 1270928, at *2 (D. Or. Mar. 18, 2019). A failure to comply with these regulatory deadlines "has been held to be fatal to a federal employee's discrimination claim." Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002). Untimely exhaustion of administrative remedies is an affirmative defense, and "the defendant bears the burden of pleading and proving it." Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046, n.7 (9th Cir. 2009) (quoting Bowden v. U.S., 106 F.3d 433, 437 (D.C. Cir. 1997)).
B. Relevant Facts
On July 12, 2018, plaintiff was notified that she was being terminated from her position with the USDA effective July 16, 2018. Declaration Kavin Johnson ("Johnson Decl."), Ex. A, at 5, 17, ECF #17-1. Plaintiff timely filed an informal EEO claim, i.e., the 838 claim, and Kavin Johnson, an EEO counselor, was assigned to her case. Declaration Sue-Del McCulloch ("McCulloch Decl."), Ex. 17, at 2, ECF #26-11.
On August 28, 2018, Johnson sent an NRF to plaintiff and plaintiff's counsel (Johnson Decl., Ex. B, at 1, ECF #17-1), which plaintiff's counsel received on September 5, 2018. Declaration Maxwell Joyner ("Joyner Decl."), Ex. 1, at 1, ECF #25-1. The NRF stated: "If you choose to file a formal EEO complaint, it must be in writing, signed, and filed within fifteen (15) calendar days after receipt of this notice." Johnson Decl., Ex. B, at 1, ECF #17-1. On September 14, 2018, Maxwell Joyner, a legal assistant to plaintiff's counsel, emailed plaintiff to advise her that the deadline to file the formal complaint was September 20, 2018, and asked her to fill out an attached formal complaint form and return it to his office. Joyner Decl., Ex. 1, at 1, ECF #25-1.
In his sworn declaration, Joyner attests that "[s]hortly" before 5 p.m. on September 20, 2018, he put a hard copy of the formal complaint in an envelope, addressed it "to the address provided on the complaint form," affixed postage on the envelope, and placed the envelope in a mailbox outside the United States Post Office on SW 1st Avenue and Madison Street in Portland, Oregon. Joyner Decl. ¶ 6, ECF #25. On that same date, Joyner emailed plaintiff at 4:38 p.m. and told her that he was "submitting [the formal complaint] presently." Id., Ex. 2, ECF #25-2. Joyner also scanned the formal complaint and saved it as a pdf file. Id. ¶ 5. The document properties for that pdf file show it was created on September 20, 2018, at 3:43 pm. Id., Ex. 3, ECF #25-3. The following day, Joyner emailed plaintiff's counsel to discuss language he had "used" in completing plaintiff's formal complaint. Id., Ex. 4, ECF #25-4.
On April 15, 2019, plaintiff's counsel asked Johnson about the status of the formal complaint. Johnson Decl., Ex. C, at 1, ECF #17-1. A month and a half later, Johnson replied that he had conducted a search within the EEO complaint tracking system and the USDA had no record of ever receiving plaintiff's formal complaint. Id., Ex. D, at 1.
C. Analysis
When the evidence is viewed in the light most favorable to plaintiff, there is a genuine issue of material fact as to whether she filed her formal complaint by the 15-day deadline and thereby exhausted her 838 claim. Joyner attests under oath that he placed the formal complaint in an envelope with postage in a mailbox outside a downtown Portland post office "shortly" before 5 p.m. on September 20, 2018. He also proffers circumstantial evidence to support his testimony: (1) an email he sent to plaintiff at 4:38 p.m. on September 20, 2018, in which he stated that he was mailing the formal complaint "presently"; (2) proof that he scanned and saved a pdf copy of the formal complaint on the same afternoon that he placed it in the mail; and (3) an email to plaintiff's counsel the following day in which he refers to language he "used" in completing the formal complaint. This evidence creates a genuine issue of material fact as to whether the formal complaint was postmarked on September 20, 2018.
Defendant contends that plaintiff has offered no proof the envelope had correct postage or that it would have been collected and postmarked on September 20, 2018. Reply 3-4, ECF #32. Certainly, plaintiff's position would be stronger if she submitted additional evidence on these issues. However, on summary judgment, this court must view the evidence and draw all reasonable inferences in plaintiff's favor. See Aguayo v. Napolitano, No. CV 09-2113 (DRD), 2012 WL 12895219, at *4 (D.P.R. Nov. 20, 2012) ("As it is FEMA's burden to prove its affirmative defense of lack of exhaustion, any doubt on the issue must be resolved at summary judgment stage in favor of Plaintiffs.") (citing Salas v. Wis. Dep't of Corr., 493 F.3d 913, 922 (7th Cir. 2007) (holding failure to exhaust is affirmative defense that is defendant's burden to prove; "tie must go to the plaintiff")).
Here, it is reasonable to infer that when Joyner, who works in a law office, testified that he placed "postage" on the envelope, it was the correct postage. It is also reasonable to infer that when Joyner placed the envelope in a mailbox outside a downtown Portland post office before 5 p.m. on September 20, 2018, it was collected and postmarked that day.
Defendant also cites Van Uitert v. Henderson, 19 F. App'x. 604 (9th Cir. 2001), an unpublished Ninth Circuit opinion from 2001. Reply 2-3, ECF #32. Unpublished dispositions and orders of the Ninth Circuit issued before January 1, 2007, may not be cited to the courts of this circuit, except when relevant for law of the case, claim preclusion, issue preclusion, double jeopardy, sanctionable conduct, or to show a conflict among opinions for purposes of a petition for rehearing or a panel en banc. Ninth Cir. R. App. P. 36-3(c). None of those circumstances exist here.
Moreover, the circumstances of that case are distinguishable. In Van Uitert, the plaintiff's notice of appeal was postmarked two days after the 30-day filing deadline had passed. Id. at 605. Here, there is no evidence showing that plaintiff's formal complaint was postmarked after it was due. Rather, there is sworn testimony and corroborating documentation from Joyner, who attests that he put the formal complaint in an envelope with postage in a downtown Portland mailbox before 5 p.m. on September 20, 2018. All reasonable inferences must be drawn in the light most favorable to the plaintiff, and it is reasonable to infer from these facts that the envelope was collected from that mailbox and postmarked that day.
In sum, when the evidence is viewed in the light most favorable to plaintiff and all reasonable inferences are drawn in plaintiff's favor, there is a genuine issue of material fact as to whether the formal complaint was timely filed.
RECOMMENDATIONS
Defendant's motion for partial summary judgment (ECF #16) should be denied.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, July 29, 2020. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED July 15, 2020.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge