UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAVADA A. STRICKLAND,

Plaintiff, v. Civil Action No. 20-1890 (JEB) PETE BUTTIGIEG, SECRETARY OF TRANSPORTATION,

Defendant.

MEMORANDUM OPINION

Pro se Plaintiff LaVada A. Strickland brings this race-discrimination suit against the

Secretary of Transportation after her Equal Employment Opportunity Commission appeal

alleging unlawful discrimination was dismissed as untimely. The Government now moves to

dismiss the case, contending that Plaintiff’s Complaint has also been filed too late. The Court

concurs.

I. Background

In weighing a motion to dismiss, a court “may consider only the facts alleged in the

complaint, any documents either attached to or incorporated in the complaint[,] and matters of

which [the court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997). As the EEOC Charge and the Dismissal of Appeal are either

attached to the Complaint or are matters that the Court may take judicial notice of, it may

properly consider them without converting this Motion into one for summary judgment.

According to Plaintiff’s Complaint, the facts of which are presumed true for purposes of

this Motion, during her time as an employee of the Federal Aviation Administration, a

1 component of the Department of Transportation, she was subjected to discrimination, retaliation,

and harassment on account of her race. See ECF No. 1 (Complaint), ¶¶ 5, 7–59. When she

reported such behavior to the appropriate authorities, she alleges that certain individuals

continued their harassment and also retaliated against her “solely because of the exercise of her

constitutionally and statutorily protected right to complain about this harassment . . . and other

misconduct.” Id., ¶ 58.

Strickland then filed an EEOC complaint, which was dismissed after a formal review on

September 9, 2019. See ECF No. 8-3 (3/13/20 Dismissal of Appeal) at 1. At the time of

dismissal, the EEOC informed Strickland that she had 30 days to appeal the decision. Id. at 2.

On December 13, 2019, DOT contacted the EEOC to inquire about the status of any appeal and

learned that “[c]ommission records indicated no appeal had been filed with [the EEOC].” Id. at

1. DOT then gave the EEOC appeal paperwork that it had received from Strickland. The record

is unclear as to why Plaintiff had submitted the paperwork to DOT and not the EEOC;

nonetheless, “[b]ased upon receipt of these documents from [DOT], the [EEOC] docketed the

instant appeal and considered the date of filing to be December 13, 2019.” Id. That posed a

problem: December 13 was more than 30 days after September 9. Id. For that reason,

Strickland’s appeal was dismissed as untimely on March 13, 2020. Id. at 2–3. The notice of

dismissal informed Plaintiff that she had “ninety (90) calendar days” from the date of the

decision “to file a civil action in an appropriate United States District Court” should she wish.

Id. at 3. 116 days later, on July 7, 2020, Strickland filed her suit here against then-Secretary of

Transportation Elaine Chao for violating Title VII. See Compl. at 1.

The Government has now moved either to dismiss under Federal Rule of Civil Procedure

12(b)(6) or for summary judgment. See ECF No. 8-2 (Def. MTD/MSJ). Strickland filed her

2 response after multiple extensions on June 21, 2021. See ECF No. 15 (Pl. Response). While she

attached a Statement of Material Facts, see ECF No. 15-1 (SMF), and multiple exhibits in

support, see ECF Nos. 15-4–17 (Exhibits A–N), she never filed any Memorandum of Points and

Authorities. As she has thus technically not opposed the Motion, the Court could grant it as

conceded. See LCvR 7(b). Since Plaintiff is pro se, the Court will nonetheless look at the

merits.

II. Legal Standard

As the Court will dismiss the case, it lays out only the Rule 12(b)(6) standard. That rule

provides for the dismissal of an action where a complaint fails “to state a claim upon which relief

can be granted.” Although “detailed factual allegations” are not necessary to withstand a Rule

12(b)(6) motion, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007)). The Court “must treat the

complaint’s factual allegations as true and must grant [the] plaintiff ‘the benefit of all inferences

that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000) (quoting Schuler v. United States,

(D.C. Cir. 1979)). It

need not accept as true, however, “a legal conclusion couched as a factual allegation” or an

inference “unsupported by the facts set out in the complaint.” Trudeau v. FTC,

(D.C. Cir. 2006) (first quoting Papasan v. Allain,

(1986); then quoting

Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994)). For a plaintiff to survive

a 12(b)(6) motion, the facts alleged in the complaint “must be enough to raise a right to relief

above the speculative level.” Twombly,

.

3 III. Analysis

In seeking dismissal of the case or summary judgment, Defendant — now current

Secretary of Transportation Pete Buttigieg — makes three arguments. First, DOT contends that

Strickland failed to timely file her suit. See Def. MTD/MSJ at 7. Second, it maintains that even

if the suit were timely filed, Strickland did not exhaust her administrative remedies. Id. at 10;

see also Bowden v. United States,

(D.C. Cir. 1997) (“Complainants [in Title

VII cases] must timely exhaust the[ir] administrative remedies before bringing their claims to

court.”) (internal citations omitted). Finally, Defendant asks for summary judgment on the

ground that Plaintiff was not subjected to any materially adverse actions. See Def. MTD/MSJ at

15.

Satisfied that the issue of timeliness — or the lack thereof — resolves the case, the Court

will only address Defendant’s first argument.

A. Failure to Timely File

Defendant urges that since Plaintiff did not file her suit with this Court within the time

permitted under federal law, the case must be dismissed. A federal employee may file a civil

action in district court under Title VII “[w]ithin 90 days of receipt of notice of final action taken

by a department, agency, . . . or the [EEOC].” 42 U.S.C. § 2000e-16(c); see also

. Strickland, however, failed to meet this deadline as she did not commence this

action until July 7, 2020, several weeks after the permitted 90 days. See Okereh v. Winter,

, 141–42 (D.D.C. 2009) (noting that courts typically presume constructive notice

of final decisions “three or five days after their issuance”).

As Strickland filed no opposition, she says nothing to refute the Government’s position.

Her only conceivable argument is contained in her Complaint, where she alleges that she “timely

4 filed her lawsuit within ninety (90) days of the receipt of her Notice of Dismissal from the

EEOC.” Compl., ¶ 5. As support, Plaintiff points to her civil cover sheet, which is dated June

11, 2020 — i.e., within 90 days of the Agency’s final action. See ECF No. 1-1 (Civil Cover

Sheet) at 2. But it was Strickland herself who filled in this sheet, including this date — indeed,

Plaintiff could have written down any date she pleased. The only date of relevance is when she

actually filed the suit, which the same civil cover sheet shows to be July 7, 2020. Id. at 1. That

means dismissal is warranted. See, e.g., McAlister v. Potter,

(D.D.C.

2010) (dismissing Plaintiff’s Title VII allegations because lawsuit was filed 97 days after final

EEOC action).

B. Equitable Tolling

There is an exception to this 90-day deadline — namely, the doctrine of equitable tolling.

See Mondy v. Secretary of the Army,

(D.C. Cir. 1988) (Ҥ 2000e-16(c) is

subject to equitable tolling”). The D.C. Circuit has cautioned, however, that “[t]he court’s

equitable power to toll the statute of limitations will be exercised only in extraordinary and

carefully circumscribed instances.” Id. at 1057 (discussing applicability of equitable tolling to

Title VII claims). Still, equitable tolling may apply where, for example, “affirmative misconduct

on the part of a defendant lulled the plaintiff into inaction,” Smith v. Holder,

(D.D.C. 2011) (citation omitted), or where “despite all due diligence[,] [she] is unable to

obtain vital information bearing on the existence of [her] claim.” Currier v. Radio Free

Europe/Radio Liberty. Inc.,

(D.C. Cir. 1998).

Plaintiff states that she has provided “supporting documents for equitable tolling.” Pl.

Response at 1. Although she never offers any further explanation, she does attach documents to

her response indicating an earlier futile attempt to timely file materials in the Court of Federal

5 Claims in June 2020. See ECF Nos. 15-14 (email regarding delivery of materials), 15-15

(summons received by Court of Federal Claims on June 11, 2020). Given that EEOC’s

Dismissal expressly directed her to file in an “appropriate United States District Court,”

Dismissal at 3, it is unclear why she proceeded elsewhere. In any event, Strickland subsequently

received a letter from the Court of Federal Claims, see ECF No. 15-17, sent on June 17, 2020,

explaining that it could “not file [her] submission.”

Even if this Court were to equitably toll

the clock through June 22 (five days after mailing), see Okereh, 600 F. Supp. 2d at 141–42

(typical presumption for mailing), Strickland offers no justification for why she waited another

fifteen days to file in this Court. Under this scenario, the Court cannot find extraordinary

circumstances that would warrant equitable tolling here.

IV. Conclusion

Because Plaintiff cannot prevail, the Court will grant Defendant’s Motion and dismiss the

case. An Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 29, 2021

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