                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 MARC BOWMAN BROWN,                            :
                                               :
                        Plaintiff,             :
                                               :
                v.                             :                 Civil Action No. 11-0526 (EGS)
                                               :
 TOM J. VILSACK, Secretary,                    :
 U.S. Department of Agriculture,               :
                                               :
                        Defendant.             :


                                     MEMORANDUM OPINION

        This matter is before the Court on defendant’s Motion for Partial Dismissal [Dkt. # 24].

For the reasons discussed below, defendant’s motion will be granted, and with the exception of

plaintiff’s timely challenge to his termination, the complaint will be dismissed.

                                        I. BACKGROUND

       From July 2003 until his termination on July 25, 2009, plaintiff “was a

Management/Information Technology Analyst, assigned to the Office of Program Evaluation,

Enforcement and Review (OPEER), Information Policy and Capital Planning Division (ITPCPD),”

at the United States Department of Agriculture (“USDA”). Mem. in Supp. of Def.’s Mot. for

Partial Dismissal (“Def.’s Mem.”), Ex. A (Final Agency Decision (“FAD”) dated March 22, 2010)

at 3. According to plaintiff, he has been “unjustly, and illegally victimized” by the USDA, Compl.

at 1, which had taken various adverse personnel actions against him, see generally id. at 3-6.

       First, plaintiff alleges that the USDA took away “all [his] job duties,” leaving him with

“virtually nothing to do for two straight years, despite . . . numerous requests for work,” only to be

reassigned to a new supervisor under whom he “was tasked to a specialty foreign to [him].” Id. at

2. Second, plaintiff claims that the USDA restricted his use of annual and sick leave,
                                                1
notwithstanding his disability and his compliance with the Family Medical Leave Act (“FMLA”).

Id. at 4-5. Third, plaintiff contends that the USDA suspended him on two occasions. See id.

Plaintiff attributes these employment actions to his engagement in whistleblowing activity

pertaining to the “illegal launch” of a computer system by the Associate Administrator of the Food

Safety and Inspection Service, id. at 3, the filing of discrimination claims against the USDA, see id.

at 3-5, and his disability, id. at 5.

        Plaintiff filed two separate discrimination claims with the USDA’s Equal Employment

Office (“USDA-EEO”):

                The issues presented . . . are whether the Food Safety and Inspection
                Service (FSIS) (Agency) subjected the [plaintiff] to harassment
                (non-sexual) based on physical disability (high blood pressure) and
                reprisal when:

                FSIS-2008-00601

                1. On April 17, 2008, [plaintiff’s] supervisor informed him that his
                work performance was not meeting management’s expectation and
                that [he] failed in his role as the liaison between FSIS Internal,
                Controls and the IT Policy and Capital Planning Division. [The
                supervisor] also noted that [plaintiff] made too many errors in his
                work, however, the supervisor based his conclusion on a version of a
                report that the [plaintiff] did not write;

                2. On April 29, 2008, [plaintiff] was placed on leave restriction
                which required him to provide documentation to support his request
                for leave above and beyond what is required under the [FMLA];

                3. Since April 29, 2008, [plaintiff’s] supervisor has refused to sign
                his timesheet and instead has created altered timesheets, changing his
                Leave Without Pay (LWOP) status to Absent Without Leave
                (AWOL) to include May 13, 2008, and June 3-5, 2008; and

                4. On June 24, 2008, [plaintiff] was issued a Notice of Proposed
                Suspension without pay for a maximum of five (5) days.


                FSIS-2009-00502

                1. On September 3, 2008, [plaintiff] received the final decision on
                                               2
               the June 24, 2008, proposal, suspending him from September 15-19,
               2008;

               2. On December 4, 2008, [plaintiff] received another Notice of
               Proposed Suspension and on January 27, 2009, he received the final
               decision suspending him from February 1-14, 2009;

               3. Management failed to address [plaintiff’s] April 29, 2009,
               request for a reasonable accommodation;

               4. Although requested, [plaintiff] has not received any substantive
               work assignments for the past year;

               5. On June 17, 2009, [plaintiff] received a Notice of Proposed
               Removal; and

               6. On July 24, 2009, [plaintiff] was terminated.

Def.’s Mot., Ex. A at 1-2. The claims were consolidated for investigation in July 2009, and on

August 3, 2009, the latter claim was amended to add plaintiff’s termination. Id., Ex. A at 2.

Notwithstanding plaintiff’s assertions, in the agency’s view, “[t]he weight of the evidence

indicate[d] that discrimination did not occur.” Id., Ex. A at 17.

       The USDA’s Final Agency Decision (“FAD”), dated March 22, 2010, notified plaintiff of

his right to file either a Notice of Appeal to the Merit Systems Protection Board (“MSPB”) within

30 calendar days of his receipt of the FAD, id., Ex. A at 17, or, alternatively, to seek judicial review

by filing a lawsuit in federal district court within 90 calendar days of his receipt of the FAD, id., Ex.

A at 18. 1 According to the Certificate of Service, the FAD was sent to plaintiff by certified mail on

March 25, 2010. Id., Ex. A at 21. Plaintiff filed this action on January 19, 2011. 2


1
       Although the FAD sets the filing deadline at 30 calendar days, see Def.’s Mem., Ex. A at 18,
the controlling statute sets the filing deadline at 90 days from receipt of the FAD. See 42 U.S.C. §
2000e-16(c).
2
       The Clerk of Court initially received plaintiff’s complaint [Dkt. #1] and application to
proceed in forma pauperis [Dkt. #2] on January 19, 2011, as the date stamp on the first page of each
document indicates. The Court denied plaintiff’s application to proceed in forma pauperis on
February 4, 2011, and on reconsideration granted the application on March 9, 2011 [Dkt. #4]. The
                                                 3
        Meanwhile, on July 27, 2009, plaintiff filed an appeal of his termination to the MSPB,

Washington Regional Office. See Compl., Ex. 9 (Initial Decision, Docket No.

DC-0752-09-0726-I-1, dated June 28, 2010) at 1. 3 After a hearing, the administrative law judge

(“ALJ”) affirmed the USDA’s action, finding that “the penalty of removal was warranted[; it] was

neither arbitrary, capricious, nor unreasonable.” Id., Ex. 9 at 27. 4 Plaintiff filed a petition for

review of the ALJ’s Initial Decision by the full MSPB on June 29, 2010. Pl.’s Resp. to Def.’s Mot.

for Partial Dismissal and Pl.’s Mot. to Proceed (“Pl.’s Opp’n”), Ex. B (Letter to plaintiff from Philip

Miller, Paralegal Specialist, Office of the Clerk of the Board, U.S. Merit Systems Protection Board,

dated June 30, 2010). The full MSPB denied plaintiff’s petition for review, see id., Ex. C (Final

Order, Docket No. DC-0752-09-0726-I-1, U.S. Merit Systems Protection Board, dated September

30, 2010), and plaintiff filed an appeal of its Final Order to the Equal Employment Opportunity

Commission (“EEOC”), Office of Federal Operations, id., Ex. D (Decision, Petition No.

0320110003, dated December 23, 2010). The EEOC found “that the Agency articulated

legitimate, nondiscriminatory reasons for the removal action, namely [plaintiff’s] improper conduct

and unsatisfactory attendance.” Id., Ex. D at 4. The EEOC notified plaintiff of his right to file a

civil action in federal district court within 30 days of his receipt of its Decision. See id., Ex. D at 4.

Within this time period, on January 19, 2011, plaintiff filed this lawsuit.

Clerk of Court officially filed these documents, among others, on the electronic docket on March
14, 2011.
3
       It appears that plaintiff filed multiple appeals to the MSPB, three of which (including
Docket No. DC-0752-09-0726-I-1) were consolidated “for procedural purposes of conducting the
hearing only.” Def.’s Reply in Supp. of Def.’s Mot. for Partial Dismissal at 4. A separate
decision was issued in each matter. Id. Plaintiff appealed only one of these appeals,
DC-0752-09-0726-I-1, to the full MSPB. Id.
4
      Because plaintiff’s July 27, 2009, appeal of his termination to the MSPB preceded the
August 3, 2009, amendment to his EEO claim to add his termination, see Def.’s Mem., Ex. A at 3,
the MSPB (not the USDA) should have made a ruling on plaintiff’s termination claim. See Def.’s
Mem. at 7.
                                                4
                                          II. DISCUSSION

       Defendant does not seek dismissal of plaintiff’s wrongful termination claim. Def.’s Mem.

at 2, 8; Def.’s Reply in Supp. of Def.’s Mot. for Partial Dismissal at 5. Rather, under Rule 12(b)(6)

of the Federal Rules of Civil Procedure, he moves to dismiss “[t]he remaining discriminatory and

retaliatory allegations,” id. at 7, because “[a]ll . . . were addressed in the FAD issued on March 22,

2010.” Id. at 8. “Plaintiff failed to meet the deadline” for filing his complaint “by several

months,” and, defendant argues, the claims must be dismissed as untimely. Id.

       Plaintiff responds that he filed this action 27 days after he received the EEOC Decision on

review of the Final Order of the Merit Systems Protection Board with respect to his termination.

See Pl.’s Opp’n at 2. He appears to confuse the time limit for an appeal of the EEOC’s Decision

with the time limit for an appeal he could have taken within 90 days of receipt of the FAD, a

decision which addressed his other claims of discrimination and retaliation. The timely filing of

this action challenging the final administrative decision with respect to plaintiff’s termination

alone, the EEOC’s December 23, 2010 Decision, cannot cure the untimely filing of his challenge to

the USDA’s March 22, 2010 FAD.

       A federal employee seeking judicial review of a FAD must file his lawsuit “[w]ithin 90 days

of receipt of notice of final action taken by [the] agency . . . .” 42 U.S.C. § 2000e-16(c). It is

presumed that the employee receives the FAD within three to five days after its issuance, see

Leighton v. Gonzales, No. 05-1835, 2007 WL 625876, at *1 (D.D.C. Feb. 26, 2007) (“Receipt of an

agency decision is normally presumed to occur three days after its issuance.”); see also Anderson v.

Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 97 (D.D.C. 1995) (finding that the pro se

plaintiff’s filing was untimely “[r]egardless of which presumptive receipt rule the Court adopts –

the three-day or five-day rule”), at which time the limitations period begins to run. “It is

well-settled that the statutory time limit for filing a lawsuit under Title VII is subject to waiver,
                                                     5
estoppel, and equitable tolling.” Smith v. Holder, 806 F. Supp. 2d 59, 62 (D.D.C. 2011) (citations

omitted); see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982). Application of

equitable tolling is left to the Court’s discretion, see Smith-Haynie v. District of Columbia, 155 F.3d

575, 579 (D.C. Cir. 1988), and may be warranted where a plaintiff establishes “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). For example, equitable relief may be extended

where the plaintiff has received inadequate notice of the limitations period, or where the

defendant’s misconduct “lulled the plaintiff into inaction,” or where “the [C]ourt has led the

plaintiff to believe [he] has done everything required of [him].” Mondy v. Sec’y of the Army, 845

F.2d 1051, 1057 (D.C. Cir. 1988). Plaintiff alone bears the burden of establishing an equitable

basis for excusing his failure to file his complaint within the 90-day limitations period. See Saltz v.

Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982); House v. Salazar, 598 F. Supp. 2d 89, 92-93 (D.D.C.

2009).

         Assuming that plaintiff received the FAD within five days of its mailing on March 25, 2010,

the 90-day limitations period began to run on March 30, 2010. Plaintiff filed this action on January

19, 2011, several months after the limitations period had ended. Absent any showing by plaintiff

that tolling of the limitations period is warranted, the filing of the instant complaint is untimely as to

any claim other than the wrongful termination claim. See Gladden v. Bolden, No. 11-5279, 2012

WL 1449249, at *1 (D.C. Cir. Apr. 12, 2012) (affirming dismissal of complaint “because it was

filed more than ninety days after appellant received appellee’s final agency decision on appellant’s

administrative complaint”); Miller v. Rosenker, 567 F. Supp. 2d 158, 161-62 (D.D.C. 2008)

(decline to apply equitable tolling where “Plaintiff has failed to meet his burden to c[o]me forward

with any evidence showing that the delay in filing the administrative appeal was anything more than

the result of neglect and lack of due diligence”).
                                                     6
                                       III. CONCLUSION

       The Court concurs with defendant’s assessment that, “with the exception of [plaintiff’s]

claim of wrongful termination,” the claims set forth in this complaint “should be dismissed as

untimely.” Def.’s Mem. at 2. Accordingly, defendant’s motion for partial dismissal will be

granted and plaintiff’s claims based on whistleblowing, disability discrimination, and reprisal will

be dismissed. An Order accompanies this Memorandum Opinion.



                                      Signed:        EMMET G. SULLIVAN
                                                     United States District Judge

                                      Dated:         11 June 2012




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