                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 CARLOS M. RUIZ,

         Plaintiff,
                 v.                                          Civil Action No. 10-0291 (JDB)
 THOMAS J. VILSACK, in his official
 capacity as Secretary of the United States
 Department of Agriculture,

         Defendant.


                                   MEMORANDUM OPINION

       Plaintiff Carlos M. Ruiz ("plaintiff"), proceeding pro se, brings this action under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the U.S. Department of

Agriculture ("USDA") discriminated against him on the basis of his Hispanic national origin

while he was employed as a Computer Assistant at the USDA's International Institute of Tropical

Forestry in San Juan, Puerto Rico. Presently before the Court is defendant's motion to dismiss

plaintiff's complaint or, in the alternative, for summary judgment, or for transfer to the United

States District Court for the District of Puerto Rico. In his motion, defendant argues that (1)

plaintiff failed to exhaust his administrative remedies as to certain claims; (2) plaintiff failed to

timely file his action within ninety (90) days of receiving his right-to-sue letter from the Equal

Employment Opportunity Commission ("EEOC"); and (3) venue is improper in the District of

Columbia. For the reasons set forth below, the Court will grant defendant's motion to dismiss for

failure to comply with the 90-day statute of limitations imposed by 42 U.S.C. § 2000e-5(f)(1).




                                                  -1-
                                        BACKGROUND

       In May 2002, plaintiff began working as a Computer Assistant at the International

Institute of Tropical Forestry ("IITF") in San Juan, Puerto Rico. Compl. ¶ 1. Plaintiff alleges

that from August 2002 until his departure from the IITF in August 2005, he was subjected to

"constant harassment, hostile work conditions and discrimination." Id. ¶ 2.1 Specifically, he

claims that his Caucasian supervisor, Lynda Lynch, "constantly interfered" with his attempts to

complete his work, as she demanded that he perform his "website-manager duties" in a manner

that was inconsistent with the regulations mandated by the Chief of the U.S. Forest Service. Id.

According to plaintiff, Lynch accused him of "not knowing what [he] was doing," id. ¶ 6, called

him a "bureaucrat" in an insulting manner, and told him that "she did not have time for [his]

games," id. ¶ 11. Lynch subsequently removed plaintiff's website managerial duties -- allegedly

"without justification," see id. ¶ 6 -- and hired a Caucasian woman to replace plaintiff as the IITF

website manager, id. ¶ 13. Once he was no longer responsible for maintaining the IITF website,

plaintiff's job included only "minimal computer support duties," which caused his position to be

at risk during the agency reorganization. See id. ¶¶ 14-15.

       In November 2003, plaintiff complained to Ariel Lugo, Director of IITF, and Tito

Santiago, IITF's Human Resources Officer, about Lynch's alleged "discriminatory actions and

unfair practices." Id. ¶ 14. On June 3, 2005, plaintiff filed a formal complaint with the USDA



       1
          In his complaint, plaintiff does not specify the class-based impetus for the alleged
discrimination that he suffered. For purposes of this motion, however, the Court will assume
that plaintiff has alleged discrimination on the basis of his Hispanic national origin. See, e.g.,
Def.'s Mot. to Dismiss [Docket Entry 3] ("Def.'s Mot."), Ex. 1 ("USDA Compl.") at 1 (accepting
and referring for investigation plaintiff's claim that he was discriminated against on the basis of
his Hispanic national origin).

                                                -2-
Office of Civil Rights, alleging that he had been discriminated against on account of his Hispanic

national origin. See USDA Compl. at 1. Once he filed his complaint, plaintiff claims that he

was retaliated against by Lugo and Santiago, who accused him of having "sabotag[ed]" the IITF

website and told him that he had a "bad attitude." See Compl. ¶¶ 16-17. Three days after filing

his complaint, plaintiff was reassigned to another office. See USDA Compl. at 1. Then, on

August 17, 2005 -- shortly before plaintiff's official departure from IITF -- plaintiff found a

"counseling" memorandum on his desk-chair, allegedly drafted by Santiago, which criticized

plaintiff's work performance and accused him of "manipulating [his] leave to milk the institute

for their [sic] money." Compl. ¶ 18; see also Def.'s Mot., Ex. 2 ("Ruiz Letter") at 1.2 Plaintiff

was so upset that the memorandum had been left in a public place where his colleagues could

read it that he allegedly suffered an anxiety attack, which required emergency medical care.

Compl. ¶ 18.

       After this incident, plaintiff submitted an amended complaint to the USDA Office of

Civil Rights. See USDA Am. Compl. at 1. The USDA consolidated plaintiff's two complaints

on September 30, 2005, and explained that it would investigate (1) whether plaintiff was subject

to discrimination based on his Hispanic national origin when he was reassigned on June 6, 2005;

and (2) whether he was subject to discrimination based on his Hispanic national origin when he

received the counseling memo on August 17, 2005. Id. The USDA subsequently issued a final

decision denying plaintiff's request for relief, which plaintiff appealed to the EEOC in October

2008. See Pl.'s Opp. to Def.'s Mot. to Dismiss [Docket Entry 5] ("Pl.'s Opp.") at 3. The EEOC


       2
        Although plaintiff's complaint states that this event occurred on August 17, 2009, see
Compl. ¶ 18, the record indicates that this incident actually took place on August 17, 2005, see
Def.'s Mot., Ex. 3 ("USDA Am. Compl.") at 1; see also Ruiz Letter at 1.

                                                 -3-
affirmed the agency's decision, and plaintiff requested reconsideration of the EEOC's decision.

See id. On June 19, 2009, the EEOC denied plaintiff's request for reconsideration, and notified

plaintiff that he had 90 days from his receipt of the decision to file a civil action against the

Secretary of the Department of Agriculture. See Compl., Ex. 1 ("EEOC Decision") at 1-2; see

also Def.'s Mot., Ex. 4 (same) at 1-2. Plaintiff's complaint does not specify the date on which he

received the EEOC decision denying his request for reconsideration (the "right-to-sue letter").

However, the certificate of mailing attached to the EEOC decision states that "the Commission

will presume that this decision was received within five (5) calendar days after it was mailed."

See EEOC Decision at 3.

       On September 16, 2009, plaintiff submitted an Application to Proceed Without Prepaying

Fees or Costs (an application to proceed in forma pauperis or an "IFP application") to this Court,

and he attached his complaint to the application. See Pl.'s Opp. at 3-4; see also Compl., Ex. 2;

Def.'s Mot., Ex. 5 (same). On October 5, 2009, the Court denied plaintiff's request to proceed in

forma pauperis, and explained to plaintiff that "[a]s a result of the Judge's ruling, your case has

not been filed with our Court and is being returned to you at this time." Compl., Ex. 2; Def.'s

Mot., Ex. 6 (same). More than four months later, plaintiff paid the requisite filing fee and filed

his complaint, which was docketed by the Clerk of the Court on February 24, 2010. Plaintiff

claims that his delay in filing after the Court's denial of his IFP application was due to the fact

that he was "saving the money to be able to pay the court fees." See Pl.'s Opp. at 5. He further

alleges that he consulted the local rules, but that he "could not find a reference to a time limit as

to when or how to file the case after a request to proceed in forma pauperis is denied." Id. at 4.




                                                  -4-
                                             DISCUSSION

        Title VII requires that a plaintiff file a civil action within 90 days of receiving notice

from the EEOC of his right to sue. See 42 U.S.C. § 2000e-5 (f)(1). The 90-day statutory period

is not a jurisdictional prerequisite to filing suit, but rather operates as a statute of limitations, and

is thus an affirmative defense that can be raised in a pre-answer dispositive motion.

See Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 577-79 (D.C. Cir. 1998). Here, the EEOC

issued its right-to-sue letter on June 19, 2009, see EEOC Decision at 2, but plaintiff's complaint

does not specify when he received the letter. Where a plaintiff fails to plead the date that he

received the right-to-sue letter, the court "must fix a presumptive date of receipt for purposes of

determining whether Plaintiff complied with the ninety day filing requirement." Anderson v.

Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 97 (D.D.C. 1995). Courts generally assume

that the final EEOC decision was mailed on the same day that it was issued, see id., and that the

plaintiff received the decision either three or five days after it was mailed. See, e.g., Baldwin

Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (finding that the "presumed date of

receipt" was three days after the EEOC right-to-sue letter was issued); Smith-Haynie, 155 F.3d

at 578 n.3 (applying Baldwin's three-day rule to a plaintiff's receipt of a right-to-sue letter);

Anderson, 886 F. Supp. at 97 (noting that "[c]ourts are divided as to the presumptive date of a

right-to-sue letter," but that it is either three or five days after the letter's issuance).

        The Court will apply the more generous five-day presumption in this case, given that the

certificate of mailing accompanying plaintiff's right-to-sue letter specified the presumptive date

of receipt as five days after the decision was mailed. See EEOC Decision at 3; see

also Washington v. White, 231 F. Supp. 2d 71, 75 (D.D.C. 2002) (applying the five-day


                                                    -5-
presumption where the certificate of mailing stated that the EEOC "will presume that [its]

decision was received within five (5) calendar days after it was mailed"). The Court will

therefore assume that plaintiff received the EEOC's final decision denying his request for

reconsideration on June 24, 2009. Applying the 90-day statute of limitations from that date,

plaintiff was required to file this civil action no later than September 22, 2009.

       Defendant argues that plaintiff's complaint must be dismissed because he did not file suit

until February 24, 2010 -- 245 days after receiving notice from the EEOC of his right to sue. See

Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 11. Plaintiff counters that he

did, in fact, file suit within the statutory period, because he attached his complaint to his IFP

application, which he submitted to the Clerk of the Court on September 16, 2009 -- six days

prior to the expiration of the 90-day statute of limitations. See Pl.'s Opp. at 3-4.

       Several courts have addressed whether a complaint is "deemed 'filed' upon presentation

to the court clerk when accompanied by an IFP motion, so that the formal filing 'relates back' . . .

to the 'lodging' of the complaint with the clerk." See Jarrett v. US Sprint Comm'cns Co., 22 F.3d

256, 259 (10th Cir. 1994); Williams-Guice v. Bd. of Educ. of Chi., 45 F.3d 161, 164-65 (7th Cir.

1995); Truitt v. Cnty. of Wayne, 148 F.3d 644, 647-48 (6th Cir. 1998). Thus far, the Tenth,

Seventh, and Sixth Circuits have all held that where a complaint is filed with an IFP application,

and that application is ultimately denied, the subsequent filing of the complaint with the filing

fee does not "relate back" to the date of the initial filing for statute of limitations purposes. See

Jarrett, 22 F.3d at 259-60; Williams-Guice, 45 F.3d at 164-65; Truitt, 148 F. 3d at 647-48.

Rather, "the lodging of a complaint by a person who is not entitled to proceed IFP suspends the

period of limitations, which begins once again when the judge decides that payment is essential."


                                                  -6-
Williams-Guice, 45 F.3d at 164 (emphasis added). In other words, the 90-day statute of

limitations is equitably tolled while the IFP application is pending, "but only during that time."

Jarrett, 22 F.3d at 260. Hence, as Judge Easterbrook explained for a Seventh Circuit panel, once

the court denies the IFP application, the clock resumes ticking, and "the would-be plaintiff must

act with dispatch." Williams-Guice, 45 F.3d at 165.

       Following the Tenth, Seventh, and Sixth Circuits, judges on this Court have also held that

the filing of a complaint attached to an IFP application "is insufficient to commence the action

and provide notice to the defendant for purposes of the 90-day requirement." Okereh v. Winter,

600 F. Supp. 2d 139, 142 (D.D.C. 2009), rev'd and remanded on other grounds sub nom. Okereh

v. Mabus, 625 F.3d 21 (D.C. Cir. 2010); see also Amiri v. Stoladi Prop. Group, 407 F. Supp. 2d

119, 124 (D.D.C. 2005) (explaining that "[t]he Clerk of the Court will not accept a complaint for

filing that is not accompanied by a filing fee until the Court has granted a petition for leave to

proceed in forma pauperis"). Instead, the filing of a complaint along with an IFP application

merely "tolls the ninety-day period of limitations contained in the right to sue letter" during the

Court's review of the IFP application. Guillen v. The Nat'l Grange, 955 F. Supp. 144, 145

(D.D.C. 1997); see also Okereh, 600 F. Supp. 2d at 141 (noting that the 90-day requirement is

"subject to equitable tolling . . . when the Court is reviewing IFP petitions"); Amiri, 407 F. Supp.

2d at 124 (explaining that the "90-day period is tolled between the time a complaint and an

application to proceed in forma pauperis are received by the Court and the time the Court rules

on the application"); Washington, 231 F. Supp. 2d at 75 (citing the "substantial body of case law

holding that the ninety day period is tolled between the time a complaint and an application to

proceed in forma pauperis are received by the Court, and the time the Court rules on the


                                                 -7-
application"). This rule protects the interests of both the plaintiff and the defendant, since "the

plaintiff remains entitled to litigate even if the district judge concludes that he is not entitled to

proceed IFP," while the defendant "gets timely notice - for the plaintiff must pay the docket fee

within the remainder of the period of limitations." Williams-Guice, 45 F.3d at 165.

        Here, plaintiff filed his IFP application on September 16, 2009, and the Court denied his

request to proceed in forma pauperis on October 5, 2009. See Compl., Exs. 1-2; Def.'s Mot.,

Exs. 5-6 (same). Courts have not been entirely consistent as to whether the statute of limitations

is equitably tolled only from the time that the IFP application is filed until the time that the Court

rules on the application, or whether it remains tolled until the plaintiff receives notice of the

Court's decision. See, e.g., Amiri, 407 F. Supp. 2d at 124 (emphasis added) (explaining that

tolling continues until "the time the Court rules on the application"); Washington, 231 F. Supp.

2d at 75 (same); Okereh, 600 F. Supp. 2d at 142 (stating that "[e]quitable tolling applies between

the day [the plaintiff] filed his IFP application . . . and the day he received the Court's denial");

Williams-Guice, 45 F.3d at 165 (acknowledging the possibility that "the time remains in

suspension for a reasonable time . . . after the district court's order" denying the IFP application,

but declining to decide the tolling end-date, since the plaintiff's complaint was untimely under

either possible date).

        This Court need not resolve this issue here, because plaintiff's complaint is untimely

under either mode of analysis. Assuming that receipt is required, and applying the more

generous five-day presumption, plaintiff is presumed to have received notice of the Court's

denial of his IFP application five days after its issuance, i.e., on October 10, 2009. Plaintiff filed

his IFP application and initial complaint when only six days remained in the 90-day statutory


                                                  -8-
period. Therefore, in light of the tolled statute of limitations, plaintiff -- at the very latest -- was

bound to commence this action by October 16, 2009 (six days after his presumed receipt of the

Court's denial of his IFP application). But plaintiff did not file suit until February 24, 2010 --

131 days after the statute of limitations had expired, taking into account the 24-day period in

which the statute of limitations was tolled (from September 16, 2009 to October 10, 2009).

        Plaintiff has explained that he filed suit more than four months after the denial of his

request to proceed in forma pauperis because he was "saving the money to be able to pay the

court fees," and that, as a pro se litigant, he did not understand the effect of the denial of his IFP

application on the 90-day statute of limitations. See Pl.'s Opp. at 4-5. This Court is not

unsympathetic to plaintiff's situation, but "[e]ven uncounseled litigants must act within the time

provided by statutes and rules." Williams-Guice, 45 F.3d at 164. Because "[p]rocedural

requirements established by Congress for gaining access to the federal courts are not to be

disregarded by courts out of a vague sympathy for particular litigants," Baldwin, 466 U.S. at 152,

courts have strictly construed the 90-day statute of limitations in Title VII cases, even where the

plaintiff is proceeding pro se. See, e.g., Smith v. Dalton, 971 F. Supp. 1, 2 (D.D.C. 1997)

(dismissing action by pro se litigant who filed suit 91 days after receiving the EEOC's final

decision denying his request for reconsideration); Anderson, 886 F. Supp. at 97 (dismissing

plaintiff's suit as untimely where it was filed 97 days after issuance of the EEOC right-to-sue

letter, and emphasizing that plaintiff's status as "a pro se litigant does not render him immune

from the ninety-day requirement").

        Plaintiff was clearly informed that he had 90 days to sue from the date that he received

the final EEOC decision, and he decided to submit his IFP application with his complaint only


                                                   -9-
six days prior to the 90-day filing deadline. When plaintiff's IFP application was denied on

October 5, 2009, his complaint was returned to him, and he was instructed that his case had not

yet been filed with the Court. See Compl., Ex. 2; Def.'s Mot., Ex. 6 (same). Plaintiff then

waited more than four months to pay the filing fee and initiate this action. Because plaintiff

failed to pay the filing fee within 90 days of receiving the right-to-sue letter -- even taking

equitable tolling into account -- he failed to file his complaint within the time allowed by 42

U.S.C. § 2000e-5 (f)(1). Accordingly, his complaint must be dismissed.

                                          CONCLUSION

       For the foregoing reasons, defendant's motion to dismiss will be granted. A separate

order has been posted on this date.

                                                              /s/
                                                      JOHN D. BATES
                                                 United States District Judge

Dated: February 9, 2011




                                                 -10-
