                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


DAVID DONALD WEBSTER,                                )
                                                     )
                      Plaintiff,                     )
                                                     )
                      v.                             )       Civ. Action No. 15-0127 (RMC)
                                                     )
UNITED STATES PATENT AND                             )
TRADEMARK OFFICE et al.,                             )
                                                     )
                      Defendants.                    )


                                   MEMORANDUM OPINION

               On September 8, 2014, plaintiff David Donald Webster filed a motion in the U.S.

Court of Appeals for the Ninth Circuit, purportedly appealing a decision of the U.S. Equal

Employment Opportunity Commission (“EEOC”). The Ninth Circuit construed Mr. Webster’s

motion as an attempt to file a civil action under 42 U.S.C. § 2000e (Title VII) against his former

employer, the U.S. Patent and Trademark Office (“PTO”), and transferred it here. This Court

permitted Mr. Webster to file the operative Complaint [Dkt. 11].

               Pending is Defendants’ Motion to Dismiss or for Summary Judgment [Dkt. 18]. 1

Defendants contend that this action is untimely. They also assert that Mr. Webster has failed to

state a claim upon which relief may be granted and that he was fired for legitimate, non-

discriminatory reasons related to his poor work performance. The Court agrees that this action is




1
     In addition to the Patent and Trademark Office and parent agency Department of Commerce,
Mr. Webster has named two former supervisors, Patrick Nolan and Gladys Corcoran. A
supervisory employee “may be joined as a party defendant in a Title VII action” but only “as the
agent of the employer, who is alone liable for a violation of Title VII.” Gary v. Long, 59 F.3d
1391, 1399 (D.C. Cir. 1995). Accordingly, any claim against Mr. Nolan and Ms. Corcoran in their
personal capacity is hereby dismissed as a matter of law.
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untimely, and it finds no support for equitable tolling. Accordingly, Defendants’ motion will be

granted solely on the untimeliness ground.

                                        I. BACKGROUND

               On October 27, 2008, PTO hired Mr. Webster as a GS 12 Patent Examiner. Mr.

Webster was hired as part of the Federal Career Intern Program. His continued employment

depended on his successful completion of a two-year probationary period. Mr. Webster first

participated in a training program at the Patent Academy. In April 2009, he was assigned to the

Art Unit. Mr. Webster was fired on August 13, 2009, for alleged subpar work performance.

               On September 24, 2009, Mr. Webster filed an EEO complaint, alleging

discrimination based on his age and disability, retaliation for his prior EEO activity, and a hostile

work environment. The Agency finally denied Mr. Webster’s complaint on August 10, 2012,

and he filed an appeal with the EEOC on September 23, 2012. On March 15, 2013, the EEOC

denied Mr. Webster’s appeal as untimely filed. On March 14, 2014, the EEOC denied Mr.

Webster’s request for reconsideration. Its “Denial” contained a section captioned:

“Complainant’s Right to File a Civil Action,” which stated:

               This decision of the Commission is final, and there is no further right
               of administrative appeal from the Commission’s decision. You have
               the right to file a civil action in an appropriate United States District
               Court within ninety (90) calendar days from the date that you receive
               this decision. If you file a civil action, you must name as the
               defendant in the complaint the person who is the official Agency
               head or department head, identifying that person by his or her full
               name and official title. Failure to do so may result in the dismissal
               of your case in court. “Agency” or “department” means the national
               organization, and not the local office, facility or department in which
               you work.


Gov’t’s Ex. 2 [Dkt. 18-2, ECF p. 20] (emphasis added). Nearly six months later, on September

8, 2014, the Ninth Circuit received Mr. Webster’s “Motion for Writ of Corbis [sic] Nobis and

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Extension of Time to File Appeal With U.S. District Federal Ninth Court” [Dkt. 1-1, ECF p. 4],

which is the initiating pleading that was transferred to this Court.

                                     II. LEGAL STANDARD

               A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim challenges the adequacy of a complaint on its face. A complaint must be sufficient

“to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and internal quotation marks

omitted). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits or incorporated by reference, and

public matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao,

508 F.3d 1052, 1059 (D.C. Cir. 2007). Public matters include the records of other courts, see

Rogers v. District of Columbia, 880 F. Supp. 2d 163, 166 (D.D.C. 2012) (citing cases), and those

of administrative proceedings, see Hourani v. Psybersolutions LLC, No. 15-933, 2016 WL

659669, at *4 (D.D.C. Feb. 18, 2016).

                                          III. ANALYSIS

               Following the exhaustion of administrative remedies, a federal employee may

bring a timely civil action by filing suit with a federal district court within 90 days of final

administrative action. See Price v. Greenspan, 374 F. Supp. 2d 177, 184 (D.D.C. 2005), aff'd,

Price v. Bernanke, 470 F.3d 384 (D.C. Cir. 2006); accord 42 U.S.C. § 2000e-16(c) (federal

employees must file a civil action within ninety days after “receipt of notice of final action”).

Courts apply the ninety-day time limit strictly and will dismiss a suit for missing the deadline by

even one day because it constitutes a waiver of sovereign immunity. McAlister v. Potter, 733 F.

Supp. 2d 134, 142 (D.D.C. 2010) (examining cases). Nonetheless, the ninety-day time period is

not jurisdictional—it functions as a statute of limitations and is subject to waiver, estoppel, and
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equitable tolling. See Mondy v. Sec. of the Army, 845 F.2d 1051, 1054, 1057 (D.C. Cir. 1988).

Tolling applies only in “extraordinary and carefully circumscribed instances.” Id. At 1057.

Courts may allow tolling where:

               a claimant has received inadequate notice, . . . where a motion for
               appointment of counsel is pending and equity would justify tolling
               the statutory period until the motion is acted upon, . . . where the
               court has led the plaintiff to believe that [he] had done everything
               required of [him], . . . [or] where affirmative misconduct on the part
               of a defendant lulled the plaintiff into inaction.

Id. (quoting Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). Courts are not

forgiving where late filings are simply due to a plaintiff's failure to exercise due diligence. Irwin

v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). In other words, to warrant equitable tolling,

a plaintiff must have exercised due diligence and his excuse for the delayed filing must reflect

“more than a garden variety claim of excusable neglect.” Battle v. Rubin, 121 F. Supp. 2d 4, 8

(D.D.C. 2000) (citation and internal quotation marks omitted). The burden of pleading and

proving any excuse for failure to meet the ninety-day filing limit falls wholly upon the plaintiff.

Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982).

               Mr. Webster simply failed to follow the advisements set out prominently in the

right-to-sue portion of the EEOC’s final decision. “Even presuming a generous five days for

mail delivery and receipt,” McAlister, 733 F. Supp. 2d at 143, Mr. Webster had until June 17,

2014, to file a civil action. Not only did Mr. Webster fail to file a timely action, he failed to file

any action in the district court as so advised. Mr. Webster has not offered a cogent explanation

for his inaction, let alone one “demonstrating that equity demands that [his] late filing be




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forgiven.” Id. at 144. Therefore, this Title VII action must be dismissed. A memorializing

Order accompanies this Memorandum Opinion.




Date: September 15, 2016                    ______/s/_________________
                                            ROSEMARY M. COLLYER
                                            United States District Judge




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