UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TOMMIE JEFFERSON, : : Plaintiff, : Civil Action No.: 21-1489 (RC) : v. : Re Document No.: 33, 40, 42 : LLOYD AUSTIN, III, : Secretary, U.S. Department of Defense : : Defendant. :

MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION TO STAY DISCOVERY; DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL EVIDENCE

I. INTRODUCTION

Plaintiff Tommie Jefferson sues Lloyd Austin, in his official capacity as Secretary of

Defense, for disability discrimination and retaliation taken against Jefferson by the Defense

Intelligence Agency within the U.S. Department of Defense (the “Agency”). See Compl. ¶ 1,

ECF No.1. The Secretary has filed a motion for summary judgment on the basis that Jefferson

did not timely file this case. See Def.’s Mot. Summ. J. at 1 (“Def.’s MSJ”), ECF No. 33. For the

reasons explained below, the Court denies the Secretary’s motion.

II. FACTUAL BACKGROUND

Jefferson worked for the Agency as a human resource specialist January 2016 until July

2016. See Compl. ¶¶ 2, 137. Jefferson suffers from dyslexia, obesity, and diabetes, which he

says are disabilities that impair his major life functions. See id. ¶¶ 3, 21-22. Although Jefferson

was granted an accommodation for his dyslexia, his supervisor at the Agency treated him with

“hostil[ity]” regarding his spelling and grammar and frequently berated him. See id. ¶¶ 51–53. Jefferson further alleges that he requested, and was denied, accommodations for his obesity and

diabetes. See id. ¶¶ 30–32, 43–47. In July 2016, the Agency terminated Jefferson, which

Jefferson alleges was on account of his requested accommodations and disabilities. See id.

¶¶ 178, 181–82. Accordingly, Jefferson filed an Equal Employment Opportunity Commission

(“EEOC”) complaint alleging that the Agency had discriminated against him in violation of Title

VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. See Equal Employment

Opportunity Commission Decision at 1 (“EEOC Decision”), ECF No. 1-1.

Following the Agency’s investigation of his allegations, Jefferson requested a hearing on

his complaint with the EEOC. Id. An EEOC administrative law judge (“ALJ”) was assigned to

Jefferson’s case. Id. At that point, the Agency filed a motion for summary judgment with the

ALJ, to which Jefferson responded and the Agency replied. Id. On November 29, 2020, the ALJ

granted summary judgment to the Agency without a hearing. See id. at 2. In her order, the ALJ

included a notice of Jefferson’s right to file an appeal. That notice stated that Jefferson could

“file an appeal with the Commission’s Office of Federal Operations when you receive a final

order from the agency informing you whether the agency will or will not fully implement this

decision.” Id. at 9. It further explained that “[i]f the agency fails to issue a final order, you have

the right to file your own appeal any time after the conclusion of the agency’s (40) day period for

issuing a final order.” Id.

The Agency failed to issue a final order. Eventually, on June 1, 2021, Jefferson filed a

complaint in this Court raising the claims that he had made before the ALJ—namely, that the

Agency had unlawfully engaged in disability discrimination and retaliation. See generally

Compl. The Agency then filed a motion for summary judgment arguing that Plaintiff’s

complaint in this Court was untimely filed. See generally Def.’s MSJ. Jefferson filed a response

2 in opposition to the Agency’s motion, see generally Pl.’s Opp’n Mot. Summ. J. (“Pl.’s Opp’n”),

ECF No. 35, and the Agency filed a reply in support of its motion, see generally Def.’s Reply

Supp. Mot. Summ. J. (“Def.’s Reply”), ECF No. 37.

III. LEGAL STANDARD

A court must grant a motion for summary judgment when 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). A “material” fact is one capable of affecting the substantive outcome of the litigation.

See Anderson v. Liberty Lobby, Inc.,

(1986). A dispute is “genuine” if it could

“be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either

party.”

. When considering a motion for summary judgment, a court may not

“make credibility determinations or weigh the evidence,” Lopez v. Council on Am.-Islamic Rels.

Action Network, Inc.,

(D.C. Cir. 2016) (quoting Holcomb v. Powell,

(D.C. Cir. 2006)), but it must accept the nonmoving party’s evidence as true and draw

all reasonable inferences in that party’s favor, Anderson,

.

Summary judgment streamlines litigation by disposing of factually unsupported claims or

defenses and thereby determining whether trial is genuinely necessary. See Celotex Corp. v.

Catrett,

, 323–24 (1986). The movant bears the initial burden of identifying

portions of the record that demonstrate the absence of any genuine issue of material fact. See

Fed. R. Civ. P. 56(c)(1); Celotex,

. In response, the non-movant must point to

specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex,

. Conclusory assertions offered without any evidentiary support do not establish a

genuine issue for trial. See Greene v. Dalton,

, 675 (D.C. Cir. 1999).

3 IV. ANALYSIS

The resolution of the Agency’s motion hinges on whether Jefferson’s complaint was

timely filed in this Court. A plaintiff must commence a Title VII civil suit “within ninety days

after obtaining notice of [the plaintiff’s] right to sue from the EEOC.” Dougherty v. Barry,

(D.C. Cir 1989); accord 42 U.S.C. § 2000e-5(f)(1). This “90-day period is not a

jurisdictional prerequisite to filing suit in federal district court but operates as a statute of

limitations and is subject to waiver and equitable tolling.” Smith-Haynie v. Dist. of Columbia,

(D.C. Cir. 1998) (citing Baldwin Cnty. Welcome Ctr. v. Brown,

,

152 n.6 (1984) (per curiam)). Relatedly, a Rehabilitation Act claim against a federal agency

must be filed with the U.S. District Court “[w]ithin 90 days of receipt of notice of final action

taken by [the Agency].” 42 U.S.C. § 2000e-16(c); see also

(same); 29

U.S.C. § 794a(a)(1) (making Title VII remedies, procedures, and rights applicable to claims

under § 501 of the Rehabilitation Act); McManus v. Williams,

, 5 n.2 (D.D.C.

2007) (“[P]rocedures of Title VII apply to ADA claims.”). Generally speaking, a plaintiff’s

failure to initiate litigation within the 90-day period requires dismissal of any Title VII claim.

See Dougherty,

. The Agency’s primary argument here is that Jefferson failed to

file his complaint in this Court during the requisite 90-day window. See Def.’s MSJ at 1.

Jefferson responds that (1) the Agency’s notice did not trigger the 90-day window in the first

instance, (2) he is entitled to equitable tolling, and (3) the Agency’s statute of limitations defense

is barred by equitable estoppel. 1 See Pl.’s Opp’n at 1, 6, 10–11, 15, 17. As explained in detail

1 Although the Agency’s motion for summary judgment focuses primarily on equitable tolling, see Def.’s MSJ at 4, Jefferson’s argument about when the limitations period began to run in the first instance is distinct from Jefferson’s equitable tolling argument, compare Pl.’s Opp’n at 6 with id. at 11. Courts in this district have explained that the concepts of accrual and equitable tolling are distinct. See, e.g., Doe v. Exxon Mobil Corp., No. 01-cv-1357,

below, the Court concludes that the Agency’s notice did not trigger the 90-day window for filing

suit in the first instance.

A. Accrual of Ninety-Day Filing Period

To determine whether Jefferson filed his complaint within the statutory 90-day time limit,

the Court must first determine when the 90-day clock began ticking. As relevant here, once an

EEOC ALJ issues a decision, the relevant agency has an opportunity to issue a final order

deciding whether to accept the ALJ decision within forty days.

(a). That

final order “shall notify the complainant whether or not the agency will fully implement the

decision of the administrative judge,” and “shall contain notice of the complainant’s right to

appeal to the Equal Employment Opportunity Commission, the right to file a civil action in

federal district court, the name of the proper defendant in any such lawsuit and the applicable

time limits for appeals and lawsuits.”

If the agency fails to issue such an order within forty

days, the ALJ’s decision “shall become the final action of the agency.”

§ 1614.109(i).

At that point, an employee has two options: he may appeal the final agency action to the

EEOC within thirty days or alternatively file suit in federal district court within ninety days of

the final agency action. 42 U.S.C. § 2000e-16(c). Critically, however, the D.C. Circuit has held

“that notice of final agency action alone does not start that ninety-day clock running if

unaccompanied by notice (1) of the employee’s right to file a civil action and (2) of the time

3043219, at *11 (D.D.C. Aug. 2, 2022); 4 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1056 (4th ed. 2024) (observing that the line distinguishing accrual and the doctrines of estoppel and tolling is often blurred). Accrual governs when the statute of limitations starts running in the first instance, whereas equitable tolling pauses the limitations period once it has start to run. See Doe,

, at *11. Additionally, the doctrine of equitable estoppel “is also distinct from equitable tolling because it does not prevent the statute of limitations from running; it instead prevents the defendant from asserting a statute of limitations defense.”

5 limit on filing such action.” Al-Saffy v. Vilsack,

(D.C. Cir. 2016) (cleaned up);

see also

(a) (stating that the final agency action must contain “notice of the

complainant’s right to appeal to the [EEOC], the right to file a civil action in federal district

court, the name of the proper defendant in any such lawsuit and the applicable time limits for

appeals and lawsuits”). And “ALJ decisions that become final agency actions by operation of

law also must provide comparable notices in order to trigger the applicable statutes of limitations

for appeals and civil lawsuits.” Staropoli v. Donahoe,

(D.D.C. 2011).

That notice is required regardless of whether plaintiff is proceeding pro se or is represented.

.

The Agency explains that the ALJ’s decision was rendered on November 29, 2020, see

Def.’s MSJ at 1, and that the Agency “did not issue a final order, and, therefore, the

Administrative Judge’s decision became the final action by operation of law forty days after the

decision, on January 8, 2021,” id. at 2. The Agency says, therefore, that by operation of law the

final order “triggered Plaintiff’s right to file a civil action within ninety days, thus expiring on

April 8, 2021” but that Plaintiff did not file his civil action until June 1, 2021, meaning that it

was untimely. Id. In response, Jefferson argues that he never received notice of the time limit

on filing a civil action and that, therefore, the ninety-day clock did not start running when the

ALJ’s decision became final by operation of law. See Pl.’s Opp’n at 6, 10–11. Jefferson is

correct.

As explained above, “notice of final agency action alone does not start that ninety-day

clock running if unaccompanied by notice (1) of the employee’s right to file a civil action and (2)

of the time limit on filing such action.” Al-Saffy,

(cleaned up); see also Williams

v. Hidalgo,

(D.C. Cir. 1980) (holding that final decision must provide plaintiff

6 with “notice (1) of her right to file a civil action and (2) of the . . . time limit on filing such

action”); Wilson v. Peña,

(D.C. Cir. 1996) (explaining that notice requires

“both the right to sue and the time limit”); Mills v. Hayden,

(D.D.C.

2018) (holding that decision letter did not trigger limitations period when letter failed to inform

plaintiff of 90-day limit for filing a civil action). Here, the only notice that Jefferson received

was included at the end of the ALJ’s decision, which informed Jefferson of the following:

You may file an appeal with the Commission’s Office of Federal Operations when you receive a final order from the agency informing you whether the agency will or will not fully implement this decision.

(a). You will have thirty (30) days to file an appeal from the time you receive the agency’s final order. If the agency fails to issue a final order, you have the right to file your own appeal any time after the conclusion of the agency’s (40) day period for issuing a final order. See EEO MD-110, 9-3. In either case, please attach a copy of this decision with your appeal.

EEOC Decision at 9 (emphasis added). Rather than explain that Jefferson would have ninety

days to file a civil action after the decision became final, the ALJ instead informed Jefferson that

he could file an appeal “at any time.”

“[T]o start the running of the time limitation of the

statute, [the Agency] was required by regulation, statute and by court decision to notify

[Jefferson] of [his] right to sue in federal court and of the [time] limit for bringing such an

action.” Al-Saffy,

.

On its face, the ALJ’s order granting summary judgment in favor of the Agency omitted

the statutorily required notice. See EEOC Decision at 9. “That alone bars application of the

ninety-day limitation period.” Al-Saffy,

. As the Circuit has explained, “it would

be perverse if this cursory ALJ order entirely omitting any form of notice, could—through

agency inaction no less—replace the final agency action that should otherwise have provided

notice to the employee.”

“Because Title VII requires final agency action to notify the

employee of his right to appeal and the governing time limitation,” the ALJ’s order “did not

7 trigger the ninety-day deadline for [Jefferson] to file suit.”

Consequently, because the ninety

day period never commenced, Jefferson’s suit—filed on June 1, 2021—was not filed after the

ninety day period expired. 2 See Al-Saffy,

; see also Mills,

(holding that agency decision letter did not trigger ninety-day limitations period when letter

failed to inform plaintiff of that time limit); Staropoli,

(concluding that

notice was inadequate when it indicated that there was “no hard deadline” for filing even though

plaintiff was represented and the notice made reference to the regulatory scheme). The ninety-

day limitations period, therefore, does not bar Jefferson’s suit.

B. Laches

Even if its notice was deficient, the Agency asserts a laches defense arguing that

Jefferson still filed his complaint in this Court too late. See Reply at 4–5. 3 It is true that “even

where the notice is defective, complainants still must file suit within a reasonable time or may be

defeated by a laches defense.” Wilson,

n.4. To that end, “[w]hen an agency or

department has taken final action but has failed to issue a proper notice . . . an employee can

bring an action in district court within a reasonable time. Of course, when the agency neglects

2 Although the Defendant does not address it, the Court also observes that the ALJ’s notice does not even mention that Jefferson had the right to file a civil action in federal court. See EEOC Decision at 9; see also Pl.’s Opp’n at 3 (“The administrative judge’s decision in this case did not provide Mr. Jefferson with any mandatory suit-filing notice rights, much less correctly identify a time limit for such action.”). Rather, the notice merely informed Jefferson of his right to appeal to the EEOC Office of Federal Operations. See EEOC Decision at 9. Accordingly, not only was the notice insufficient because it failed to inform Jefferson of the time limit for filing a civil suit, it was additionally deficient because it failed to inform Jefferson that he could file a civil suit at all. 3 The Court observes that the Department did not explicitly mention a laches defense in its motion for summary judgment. “[I]t is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief.” Benton v. Laborers’ Joint Training Fund,

(D.D.C. 2015). The Court nevertheless addresses the Department’s laches defense and concludes that it is meritless.

8 to issue proper notice the right to sue would not continue forever because of the defense of

laches.” Williams,

(emphasis added) (citation omitted). Laches applies when a

plaintiff has unreasonably delayed in asserting a claim and that delay caused undue prejudice to

the defendant. See Nat’l Treasury Emps. Union v. Whipple,

(D.D.C.

2009); Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers,

(D.D.C. 2017) (“Run-of-the-mill delay is not sufficient to warrant the application of laches.”).

Contrary to the Agency’s argument however, the Court concludes that Jefferson filed his

complaint in this Court within a reasonable amount of time after the ALJ’s decision issued.

As in this case, in Williams v. Hidalgo, the D.C. Circuit was required to decide whether a

plaintiff had filed his complaint within a reasonable time after an agency neglected to issue a

proper notice triggering a limitations period. See Williams,

. There, the plaintiff

had filed his complaint four months and five days after the agency action became final and the

Circuit—considering laches—concluded that time was reasonable.

In this case, Jefferson

filed his complaint on June 1, 2021—four months and 24 days after the ALJ’s order became

final. Although this delay is slightly longer than the plaintiff waited in Williams, it is not

materially longer. See also Menominee Indian Tribe of Wis. v. United States,

(D.C. Cir. 2010) (explaining that application of laches defense “turns on whether the party

seeking relief delayed inexcusably or unreasonably in filing suit, not simply whether the party

delayed” (cleaned up)). Indeed, in other contexts, laches has been found inapplicable even when

a plaintiff has delayed far longer than five months. See, e.g., Powell v. Zuckert,

(D.C. Cir. 1966) (collecting cases where laches defenses were denied for delays of 14

months and 32 months). Accordingly, the Court concludes that Jefferson filed within a

reasonable time and that laches does not bar this suit.

9 The Court additionally observes that the Agency’s laches defense fails for a second

reason: to utilize a laches defense, the Agency must demonstrate that allowing Jefferson’s claim

would cause the Agency prejudice, and the Agency has not done so. See Pro Football, Inc. v.

Harjo,

(D.C. Cir. 2009). While the Agency asserts that it “has been

prejudiced by being compelled to expend extensive resources litigating this case to date,” the

cost of litigation exists in every case and the Agency’s bare assertion that it would prefer not “to

use valuable and limited resources litigating” this case is insufficient to show prejudice and

succeed on a laches argument at the summary judgment stage. Reply at 6; see also Powell,

(“The prejudice normally contemplated in applying laches . . . stems from such

factors as loss of evidence and unavailability of witnesses, which diminish a defendant’s chances

of success.”); Whipple,

(“If only a short period of time elapses between

accrual of the claim and suit, the magnitude of prejudice required before suit would be barred is

great.”). Because “delay that merely prolongs litigation ‘is not a sufficient basis for establishing

prejudice,’” the Agency cannot utilize a laches defense here. Washington Metro. Area Transit

Comm’n v. Reliable Limousine Serv., LLC,

(D.C. Cir. 2015); see also Pro-

Football, Inc. v. Harjo,

(D.D.C. 2003) (explaining that mere delay

insufficient for application of laches defense); c.f. Serv. Emps. Int’l Union Nat’l Industry Pension

Fund v. Bristol Manor Healthcare Ctr., Inc.,

(D.D.C. 2014) (explaining in

Rule 55(c) context that “delay and legal costs are part and parcel of litigation and typically do

not constitute prejudice”).

Because the Court holds that Jefferson’s complaint was not untimely filed in the first

instance, the Court need not and does not address Jefferson’s equitable tolling or equitable

estoppel arguments. As the Agency makes no other argument besides timeliness in support of

10 summary judgment, see Def.’s MSJ at 1–2, the Court denies the Agency’s motion for summary

judgment. 4

V. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant’s motion for summary

judgment (ECF No. 33), DENIES as MOOT Defendant’s motion to stay discovery (ECF No.

40), and DENIES as MOOT Plaintiff’s motion to submit supplemental evidence (ECF No. 42).

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 27, 2024 RUDOLPH CONTRERAS United States District Judge

4 The Agency has also filed a motion to stay discovery pending resolution of its motion for summary judgment. See Mot. Stay Disc. ECF No. 40. That motion is moot given the Court’s resolution of Defendant’s motion for summary judgment as well as the Court’s prior order granting Defendant’s consent motion for extension of time to complete discovery. See Min. Order (May 9, 2024). For his part, Jefferson has filed a motion for leave to submit supplemental evidence. See Pl.’s Mot. Leave Submit Supp. Evidence, ECF No. 42. That motion is also moot because the Court denies the Agency’s motion for summary judgment irrespective of whether the Court were to consider Plaintiff’s supplemental evidence.

11