UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JETTANNA D. WILEY-BURRUSS, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0427 (RBW) ) RAY MABUS, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

In this action brought pro se under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-1 to e-17 (2006), the plaintiff claims that she was fired from her job “as a police officer

with the Naval District of [the] Washington Police Force . . . due to discrimination with unjust

cause.” Complaint (“Compl.”) at 1. The defendant, Secretary of the Navy, moves to dismiss the

complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment

under Rule 56 on the ground that the complaint is untimely. Upon consideration of the parties’

submissions and the entire record, the Court will grant the defendant’s motion for summary

judgment.

I. FACTUAL BACKGROUND

The relevant undisputed facts are as follows. The Navy hired the plaintiff as a student

trainee on May 14, 2007, and fired her on January 10, 2008. Defendant’s Statement of Material

Facts Not in Genuine Dispute ¶¶ 1, 3. On March 19, 2008, the plaintiff filed with the agency a

formal discrimination complaint, in which she claimed that she was subjected to a hostile work

environment, sexual harassment, retaliation and discrimination on the bases of her race (African

American), color (black), and gender. See Defendant’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (“Def.’s Mot.”), Exhibit (“Ex.”) A [Dkt. No. 8-2]. On

September 22, 2009, an Administrative Judge (“AJ”) of the Equal Employment Opportunity

Commission (“EEOC”) issued a written ruling adverse to the plaintiff. See Def.’s Mot., Ex. D

[Dkt. No. 8-5]. On November 4, 2009, the defendant issued its “Final Order,” which “fully

implemented” the AJ’s decision. Id., Ex. A at 1. The defendant advised the plaintiff of her right

to appeal to the EEOC “up to thirty [] calendar days after receipt of this Final Order” or to file a

lawsuit in federal court within 90 days of receipt of the notice of the right to appeal. Id. at 2-3.

The docket shows that the Clerk of Court first received the plaintiff’s complaint and

application to proceed in forma pauperis (“IFP”) on March 5, 2010. See Dkt. Nos. 1, 2. The

case was noted as filed by the Clerk of Court on March 16, 2010, after the plaintiff’s IFP motion

was granted on March 12, 2010. See Case Caption; Dkt. No. 2.

II. DISCUSSION

I. Standard of Review

The 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.” Fed. R.

Civ. P. 56(a). When ruling on a Rule 56(a) motion, the Court must view the evidence in the light

most favorable to the non-moving party. Holcomb v. Powell,

(D.C. Cir. 2006)

(citing Reeves v. Sanderson Plumbing Prods.,

(2000)). The Court must

therefore draw “all justifiable inferences” in the non-moving party's favor and accept the

non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc.,

(1986).

The non-moving party, however, cannot rely on “‘mere allegations or denials,’” Burke v. Gould,

(D.C. Cir. 2002) (quoting Anderson,

) (internal quotation

2 marks omitted), and “must do more than simply show that there is some metaphysical doubt as to

the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)

(citation omitted). Simply put, “conclusory allegations unsupported by factual data will not

create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA,

(D.C. Cir. 1999) (internal quotation marks and citations omitted). To survive a properly

supported motion for summary judgment, the non-moving party must show that a genuine factual

issue exists by “(A) citing to particular parts of materials in the record . . . or (B) showing that the

materials cited do not establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c).

Any factual assertions in the moving party’s affidavits will be accepted as being true unless the

opposing party submits her own affidavits or other documentary evidence contradicting the

assertion. Neal v. Kelly,

(D.C. Cir. 1992).

II. Legal Analysis

The defendant argues that the complaint should be dismissed because the plaintiff failed

to timely file this action. See Memorandum of Points and Authorities in Support of Defendant’s

Motion to Dismiss or in the Alternative Motin [sic] for Summary Judgment at 3-5. A Title VII

claimant has 90 days from the receipt of an EEOC right-to-sue notice or a notice of final agency

action to file a civil action. See 42 U.S.C. § 2000e-5(f)(1). The 90-day requirement for filing a

civil action is subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World

Airlines, Inc.,

(1982). The “hurdle” for equitable tolling, however, is high.

Communications Vending Corp. of Arizona, Inc. v. F.C.C.,

, 1075 (D.C. Cir. 2004)

(citation omitted). “The court's equitable power to toll the statute of limitations will be exercised

only in extraordinary and carefully circumscribed instances.” Mondy v. Sec’y of the Army, 845

, 1057 (D.C. Cir. 1988). "[I]n the absence of some equitable tolling, a civil suit filed

even one day late is time-barred and may be dismissed." Burgh v. Borough Council of Borough

of Montrose,

(3d Cir. 2001). The defendant has the burden of proving that an

action is untimely and, once the defendant satisfies that burden, the burden shifts to the plaintiff

to assert that equitable principles justify avoidance of the defense. Bowden v. U.S.,

(D.C. Cir. 1997).

The defendant has presented evidence showing that the final agency action dated

November 4, 2009, was delivered to the plaintiff’s address by certified mail on November 12,

2009, and that the plaintiff signed for the delivery. See Def.’s Mot., Exs. B & C. The plaintiff

does not present any evidence to refute those facts but rather merely asserts that she received the

notice two weeks later1, that her “date of receipt November 25, 2009 allotted [her] a grace period

up until February 25, 2010" to file her lawsuit, and that she “filed with the District Court on

February 22, 2010.” Memo [Dkt. No. 11]. However, the Clerk’s “Received” stamp of March 5,

2010, contradicts the plaintiff’s asserted filing date, and there is no dispute that February 25,

2010, was the latest date for her to file a timely complaint under Title VII. Furthermore, the

plaintiff has not articulated an equitable basis for tolling the 90-day filing period. The Court

therefore concludes that the defendant, having shown that the complaint was untimely filed, is

entitled to judgment as a matter of law.2

__________s/______________ Reggie B. Walton Date: February 23, 2011 United States District Judge

1 The defendant states that it mailed a second notice of the agency’s final decision to the plaintiff on November 24, 2009, “to further verify that she received the [decision].” Reply in Support of Defendant’s Motion to Dismiss or in the Alternative Motion for Summary Judgment [Dkt. No. 12], Affidavit of Isaac J. Natter ¶ 7. 2 A separate Order accompanies this Memorandum Opinion.

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