Morrison v. Nielsen
Morrison v. Nielsen
Opinion of the Court
Plaintiff Christine Morrison, proceeding pro se , brings this action under the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of 1964 ("Title VII"), alleging that her former employer, the Department of Homeland Security, Customs and Border Protection, discriminated against her on the basis of her religion and her disability, and retaliated against her when she engaged in protected activities. Morrison mailed her complaint to the Court on September 11, 2017, but did not include the filing fee or an application for leave to proceed in forma pauperis ("IFP"). The clerk's office internal records and Morrison's package tracking information show that the complaint was received by the clerk's office on September 18, 2017-the final day on which Morrison was permitted to file a timely complaint. Morrison's complaint was not docketed, however, until November 2, 2017, when she delivered an identical version of the complaint to the clerk's office and paid the filing fee. Relying on the November 2 date, Defendants move to dismiss Morrison's complaint as untimely. Dkt. 13. Because Morrison's lawsuit was commenced on September 18, 2017, when her complaint was received by the clerk's office, the Court disagrees. However, because Morrison may only sue the head of the agency which actions give rise to her claims, the Court will GRANT in part and DENY in part Defendants' motion to dismiss.
I. BACKGROUND
In June 2009, Morrison was hired by the Department of Homeland Security, Customs and Border Protection ("CBP") as a Supervisory Management Program Analyst. Morrison allegedly suffers from a number of disabilities, including "asthma [,] reactive airways disease[,] and chronic obstructive lung disease" as a result of "inhalation of smoke ... and toxic fumes" at the Pentagon during the September 11, 2001 attack. Dkt. 1 at 4-5 (Compl. ¶ 9). According to Morrison, CBP "denied her requests for reasonable accommodation," "harassed [her]," "demoted [her]," and "discriminated and retaliated against [her] in [the] terms and conditions of her employment," because of her disability and her religion, leaving her "no choice but to ... transfer and demotion to another unrelated federal agency at a considerable cut in salary." Id. at 2.
Morrison filed a grievance with the Equal Employment Opportunity Commission ("EEOC") alleging that CBP discriminated against her on the basis of her religion and disability and that she was subject to unlawful "reprisal." Dkt. 17-6 at 1. The Administrative Judge "found in favor of the agency, concluding [that Morrison] failed to prove her discrimination claims," and that decision was affirmed on appeal. Id. at 2. Morrison requested reconsideration of the appeal decision, and, on June 15, 2017, the Commission issued *65its final decision denying her request and informing her of her right to file a "civil action ... within 90 days from the date that [she] received [the] decision." Id. at 2-3. Morrison asserts that she received the EEOC final decision and right-to-sue letter on June 20, 2017. Dkt. 17 at 4. Assuming that is correct, as the Court must at this stage of the proceeding, Morrison was required to file a civil action on or before September 18, 2017. Id.
Morrison contends that her complaint was delivered to the clerk's office on September 18. See Dkt. 17 at 4. In her opposition, she explains that in September 2017 she was "tak[ing] care of her elderly father in the nursing home in Florida" in the wake of Hurricane Irma and that, as a result, she was unable to file her complaint in person. Dkt. 17 at 3. Instead, Morrison asserts that she arranged for her "personal assistant," Chungsoo Lee, to mail the complaint to the Court. Id. In support of that assertion, Morrison has filed a "certificate of service" signed by Lee, attesting that he mailed the complaint to the Court on September 11, 2017 by priority mail and that the postal service tracking number was 9405 8036 9930 0502 9794 46. See Dkt. 1 at 23. Morrison has also provided the Court with a Postal Service report, showing that a mailing with that tracking number reached the Court on September 18, 2017. See id. at 24.
That complaint, however, was not docketed. Records of the clerk's office indicate that, consistent with the tracking information, Morrison's complaint was received by the clerk's office on September 18 but that it was returned with a cover sheet noting that Morrison had failed to pay the filing fee.
Based on the November 2 filing date, Defendants moved to dismiss the complaint as untimely. See Dkt. 13.
II. ANALYSIS
Under Title VII and the Rehabilitation Act, an employee may file a civil action in the appropriate United States District Court "[w]ithin 90 days of receipt of notice of final action taken by a[n] ... agency." 42 U.S.C. § 2000e-16(c) ; 29 U.S.C. § 794a(a)(1) (applying Title VII remedies, procedures, and rights, including the provisions of 42 U.S.C. § 2000e-16, to claims under § 501 of the Rehabilitation Act); see also
Morrison argues that "[t]he date of filing is the date of mailing," Dkt. 17 at 4, and that the complaint was "timely filed" because it "was mailed on September 11, 2017."
Defendants argue that the complaint was not "filed" because it was not accompanied by the filing fee. Under
According to Defendants, the date on the docket nonetheless controls, and Morrison's claims are time-barred because the complaint was not docketed "until November 2, 2017, after the 90-day deadline." Dkt. 13-1 at 3; see also Dkt. 20 at 1. But whether a complaint is docketed is not dispositive. The history of Rule 5 cautions against giving legal significance to the ministerial operations of the clerk's office. In 1991, Rule 5 was amended to specify that a "clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice." Fed. R. Civ. P. 5(d)(4). That revision was adopted "to ensure that judges rather than administrative staff decide whether a document is adequate." Farzana K. v. Ind. Dep't of Educ. ,
Neither the Supreme Court nor the D.C. Circuit Court has decided whether a complaint is "filed" if it is received by the clerk without a filing fee or an IFP application. In the related context of timely filing a notice of appeal, however, the Supreme *67Court has held that, so long as the notice of appeal was received by the clerk within the time limit, "untimely payment of the ... fee d[oes] not vitiate the validity of petitioner's notice of appeal." Parissi v. Telechron, Inc. ,
Other circuits agree that a complaint is filed when it is received by the clerk, even if the filing fee or an application to proceed IFP is submitted after the statute of limitations has run. McDowell v. De. State Police ,
*68Unsurprisingly, the approaches taken by courts in other districts are, for the most part, dependent on whether the Court has, pursuant to
In the absence of a local rule in this district requiring the advance payment of the filing fee, the Court concludes that Morrison's complaint was "filed" when it was first "deliver[ed] ... to the clerk." Fed. R. Civ. P. 5(d)(2)(A). Based on the records of the clerk's office, Lee's "certificate of service," and the Postal Service tracking information, the Court concludes that the date of delivery was September 18, 2017-the last day of the limitations period, see 42 U.S.C. § 2000e-16(c) ;
* * *
Defendants also contend that the only proper defendant for a claim under Title VII or the Rehabilitation Act is the head of the agency that engaged in the allegedly discriminatory conduct, and that all other Defendants to this action should be dismissed. Dkt. 13 at 1 n. 1. The Court agrees, see 42 U.S.C. § 2000e-16(c) ("[T]he head of department, agency, or unit, as appropriate, shall be the defendant."), and will therefore dismiss from this suit all defendants except the Secretary of Homeland Security.
CONCLUSION
Defendants' motion to dismiss, Dkt. 13, is hereby GRANTED in part and DENIED in part. Plaintiff's claims against all Defendants except Kirstjen Nielsen are hereby DISMISSED .
SO ORDERED .
The Court takes judicial notice of this document, which is on file in the clerk's office. See Alridge v. Rite Aid of Wash. D.C., Inc. ,
In cases in which a plaintiff submits his or her complaint with an application to proceed IFP, some courts have held that the statute of limitations is merely "tolled" while the IFP application is pending. See, e.g., Truitt v. Cty. of Wayne ,
Reference
- Full Case Name
- Christine MORRISON v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security
- Cited By
- 3 cases
- Status
- Published