United States District Court, D. Alaska
MARITES G. DE LA PAZ, Plaintiff,
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.
ORDER AND OPINION [RE: MOTION AT DOCKET 14]
JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE
I. MOTION PRESENTED
At docket 14, Defendant Megan J. Brennan, Postmaster General of the United States Postal Service (“Defendant”), filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies. Plaintiff Marites G. De La Paz (“Plaintiff”) responds at docket 16. Defendant replies at docket 20. She files supplemental material at dockets 19 and 22. Oral argument was not requested and would not assist the court.
Plaintiff filed a formal EEO complaint of discrimination on March 31, 2014. On September 2, 2014, she received the EEO investigation report. The report stated that Plaintiff had 30 days to request a hearing before an administrative law judge (“ALJ”) or a final agency decision without a hearing (“FAD”) would be issued. Thus, Plaintiff’s deadline for requesting a hearing with an ALJ was October 2, 2014. The investigative report included the form necessary to request a hearing, and it outlined what would follow any final ALJ decision. Plaintiff did not request a hearing at that time, and, consequently, on November 20, 2014, the United States Postal Service (“USPS”) issued a FAD, denying her claim. Plaintiff and her attorney received the FAD on November 24, 2014.
The FAD provided notice of Plaintiff’s appeal rights. Plaintiff had the right to appeal the FAD to the Equal Employment Opportunity Commission (“EEOC”) within 30 calendar days of receipt of the decision. Thus, Plaintiff’s appeal deadline was December 24, 2014. The FAD instructed Plaintiff to use Form 573 when filing an appeal with the EEOC and to mail the form to the EEOC’s Office of Federal Operations in Washington, D.C. The FAD informed Plaintiff that a copy of the necessary form was attached to the decision, and, indeed, the form was included with Plaintiff’s FAD. The FAD also informed Plaintiff that, rather than filing an appeal with the EEOC, she could bring a civil action in the appropriate U.S. District Court within 90 calendar days of her receipt of the FAD. Plaintiff’s deadline for filing a civil action was February 25, 2015.
On December 23, 2014, Plaintiff, through her attorney, filed a request for a hearing with an ALJ, even though the deadline for such a request had passed and the USPS had already issued its FAD. She sent the request to the EEOC’s Hearing Unit in Seattle, Washington. She did not file the requisite appeal form with the EEOC’s Office of Federal Operations in Washington D.C. The EEOC’s Hearing Unit processed the request, and the USPS then designated a representative as directed. A status conference with the administrative law judge was held on March 24, 2015, and the parties proceeded with discovery. Plaintiff filed her civil action with the court on May 20, 2015, and, given the pending civil action, the ALJ consequently dismissed the EEOC complaint. Defendant filed the motion to dismiss based on Plaintiff’s failure to file her Title VII action within the 90-day filing period.
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s claims. In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party.”
The requirement for filing a Title VII civil action within 90 days constitutes a statute of limitations rather than a jurisdictional prerequisite. Therefore, the motion to dismiss based on the timeliness of the complaint can be brought as a Rule (12)(b)(6) motion. However, the failure to comply with the 90-day requirement is subject to the usual limitations defenses of waiver, estoppel, and equitable tolling. Such issues are often resolved based on materials outside the pleading, and therefore “it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss” when such matters are at issue. “[O]nly if the assertions of the complaint, read with required liberality, would not permit the plaintiff to prove that the statute was tolled” should the motion to dismiss be granted.
Where the timeliness issue cannot be determined from the face of the complaint, a motion for summary judgment is the proper procedure. Under Rule 12(d), “if matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56, " as long as the parties have been given an opportunity to present all material that is pertinent to the motion.
Here, Defendant raised the issue of timeliness through a Rule 12(b)(6) motion to dismiss and relied solely on the complaint. It is clear from the face of the complaint that it was not filed within the 90-day period. However, in response, Plaintiff raised equitable tolling and estoppel defenses and filed materials outside of the pleadings. Defendant then supplemented the record with her own materials in support of her argument that equitable tolling and estoppel do not apply. Given that both parties have had the opportunity to file materials with the court and given that the facts surrounding Plaintiff’s EEOC and district court filings are not in dispute, the motion will be converted to one for summary judgment.
It is undisputed that Plaintiff filed her civil action with the court on May 20, 2015, about three months after the 90-day filing deadline. It is also undisputed that Plaintiff did not file the correct appeal form, or any form for that matter, with the federal operations office of the EEOC. She instead filed a request for an ALJ hearing with the EEOC’s Hearing Unit in Seattle. Plaintiff argues that her delay in filing the civil complaint is excusable because she reasonably believed she had properly filed an appeal with the EEOC and did not realize that the 90-day clock was running. She argues that the EEOC processed her request and the USPS participated in the ALJ hearing process without informing her that such a procedure was improper and untimely, thereby reaffirming her belief that the request for a hearing on her ...