                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
LATANNYA BELL,                  )
                                )
               Plaintiff,       )
                                )   Civil Action No. 11-1804
          v.                    )
                                )
UNITED STATES,                  )
                                )
               Defendant.       )
________________________________)

                       MEMORANDUM OPINION

     Plaintiff LaTannya Bell brings this action alleging racial

and gender discrimination in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,

against defendant Martha Johnson, Administrator of the U.S.

General Services Administration (“GSA”).    Pending before the

Court is defendant’s Motion to Dismiss.    Upon consideration of

the Motion, the response and reply thereto, the applicable law,

and the entire record, the Court GRANTS defendant’s Motion.

I.   BACKGROUND

     Plaintiff, an African-American female, has been employed by

defendant at the GSA since 1984.    On January 3, 2008, plaintiff

filed a formal complaint of discrimination with the Equal

Employment Opportunity Commission (“EEOC”), alleging that

defendant took a variety of adverse actions against her because

of her race, sex, and color.   Pl.’s EEOC Compl., Dkt. No. 6-1.
In a supporting affidavit prepared on March 18, 2008, plaintiff

claimed that she was intimidated, threatened with being placed

on Absent Without Leave status, forced to attend a meeting, and

denied use of sick leave.   Pl.’s Aff. in Supp. of EEOC Compl.,

Dkt. No. 6-1.   On September 8, 2010, EEOC Administrative Judge

McKnight issued judgment for the GSA, concluding that plaintiff

failed to establish a genuine issue that the GSA’s actions were

based on a discriminatory motive.       EEOC Order, Dkt. 6-1.

     On September 27, 2010, the GSA mailed to plaintiff its

Final Order (“GSA Letter”) implementing the EEOC decision.         GSA

Letter, Dkt. 6-1.   The letter notified plaintiff of the relevant

deadlines for filing a civil action:

     [A] civil action may be filed in the appropriate federal
     district court in any of the following situations:
     (a) Within 90 calendar days of receipt of GSA’s final
     decision on an individual or class complaint if no appeal
     has been filed with the EEOC;
     (b) After 180 calendar days from the date of filing an
     individual or class complaint if an appeal has not been
     filed with the EEOC or a final decision has not been issued
     by GSA;
     (c) Within 90 calendar days of receipt of the EEOC’s
     decision on an appeal;
     (d) After 180 calendar days from the date of filing an
     appeal with the EEOC if a decision has not been issued by
     the EEOC.

Id. at 2.   It informed plaintiff that any request for a court-

appointed lawyer “must be made within the above-referenced 90-

day time limit for filing suit.”       Id.   It also stated that




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plaintiff’s receipt of the letter would be presumed 5 days after

it was sent.   Id. at 4.

      On March 9, 2011, 158 days after her presumed receipt of

the GSA Letter, plaintiff filed a pro se complaint in the Court

of Federal Claims.    The case was transferred to this Court on

October 11, 2011 upon grant of plaintiff’s Motion to Transfer.

II.   STANDARD OF REVIEW

      A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint.     Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).     A complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief, in order 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) (internal quotation marks and citations omitted).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.”    Id.

      When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

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favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint.   Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).    However, the Court

must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.”   Id.   “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.”   Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. ANALYSIS

A.   Plaintiff Failed to Comply with the 90-Day Filing
     Requirement

     Upon receiving the September 27, 2010 GSA Letter informing

her of her right to sue, plaintiff had 90 days within which to

file a civil action in federal court to challenge the EEOC

decision.   See 42 U.S.C. § 2000e-16(c) (federal employees must

file a civil action within 90 days after “receipt of notice of

final action.”); 29 C.F.R. § 1614.407(a) (civil action must be

filed within 90 days of receipt of final action if no appeal has

been filed).    Courts have strictly construed the 90-day statute

of limitations in Title VII cases.    See, e.g., Ruiz v. Vilsack,

763 F. Supp. 2d 168, 173 (D.D.C. 2011) (dismissing action filed

133 days after the statute of limitations had expired); Anderson

v. Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 97 (D.D.C.

1995) (dismissing action where it was filed 97 days after

plaintiff’s receipt of EEOC right-to-sue letter).


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     Where a plaintiff fails to plead the date that she received

a letter informing her of her right to sue, the court “must fix

a presumptive date of receipt for purposes of determining

whether plaintiff complied with the ninety day filing

requirement.”   Ruiz, 763 F. Supp. 2d at 171 (citing Anderson,

886 F. Supp. at 97).    Courts generally assume that a right-to-

sue letter was mailed on the same day it was issued, see id.,

and that the plaintiff received the letter either three or five

business days after it was mailed.    See id. (citing cases).   The

Court will apply the more generous five-day presumption in this

case, in light of the statement in the certificate of service

accompanying the GSA Letter that the letter would be presumed to

have been received within 5 days after September 27, 2010.

Accordingly, plaintiff is presumed to have received the GSA

Letter on October 2, 2010.    In this case, it is undisputed that

plaintiff filed her complaint on March 9, 2011, 158 days after

her presumed receipt of the letter.    Plaintiff’s claim is

therefore untimely.

B.   Application of Equitable Tolling Is Unwarranted in this
     Case

     The 90-day time limit for asserting a Title VII claim

against the government is non-jurisdictional and subject to

equitable tolling.    Mondy v. Sec’y of the Army, 845 F.2d 1051,

1055-57 (D.C. Cir. 1988).    Courts have exercised the power to


                                  5
toll the statute of limitations only in “extraordinary and

carefully circumscribed instances.”       Id. at 1057.   For example,

courts have excused untimely filings (1) “where a claimant has

received inadequate notice,” (2) “where affirmative misconduct

on the part of a defendant lulled the plaintiff into inaction,”

(3) “where the court has led the plaintiff to believe that she

had done everything required of her,” or (4) “where a motion for

appointment of counsel is pending and equity would justify

tolling the statutory period until the motion is acted upon.”

Id.

      However, courts have been “much less forgiving in receiving

late filings where the claimant failed to exercise due diligence

in preserving [her] legal rights.”       Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990).       Thus, to invoke the doctrine

of equitable tolling, plaintiff’s excuse for her untimely filing

must be more than “what is at best a garden variety claim of

excusable neglect.”   Id.   Plaintiff has the “burden of pleading

and proving in the district court ‘equitable reasons’ for

noncompliance” with the statutory deadline.       Bayer v. U.S. Dep’t

of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992) (quoting Saltz

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

      In this case, plaintiff claims that she believed she had up

to 180 days within which to file suit.       Plaintiff points to

language in the GSA Letter stating that:

                                   6
     [A] civil action may be filed in the appropriate federal
     district court in any of the following situations:
     (a) Within 90 calendar days of receipt of GSA’s final
     decision on an individual or class complaint if no appeal
     has been filed with the EEOC;
     (b) After 180 calendar days from the date of filing an
     individual or class complaint if an appeal has not been
     filed with the EEOC or a final decision has not been issued
     by GSA;
     (c) Within 90 calendar days of receipt of the EEOC’s
     decision on an appeal;
     (d) After 180 calendar days from the date of filing an
     appeal with the EEOC if a decision has not been issued by
     the EEOC.

GSA Letter, Dkt. 6-1, at 2.   Plaintiff argues that the language

did not clearly distinguish between the 90-day deadline for

filing suit and the 180-day period after which plaintiff could

file suit.   Pl.’s Opp’n to Def’s Mot. to Dismiss at 5.   As a

result, plaintiff claims that she was “lulled ... into waiting

to take action on the later period provided by the notice.”      Id.

at 6.   Therefore, plaintiff argues, her filing deadline should

be equitably tolled.   Id.

     Contrary to plaintiff’s arguments, however, the notice

clearly stated, in underlined print, that a civil action may be

filed “within” 90 days or “after” 180 days, depending on the

actions taken by plaintiff and GSA regarding the EEOC complaint.

GSA Letter, Dkt. 6-1, at 2.   GSA timely issued its final

decision and plaintiff did not appeal the decision with the

EEOC; therefore, she had 90 days from her receipt of the GSA

Letter to timely file her claim in federal court.   The notice


                                 7
further emphasizes this deadline in the next paragraph, where it

provides that a request for a court-appointed lawyer “must be

made within the above-referenced 90-day time limit for filing

suit.”   Id.   Thus, plaintiff’s argument that the notice was

“convoluted and confusing” is unavailing.

     Even assuming that the GSA Letter was unclear, plaintiff

failed to show that she acted with sufficient diligence to

invoke the principles of equitable tolling.    Plaintiff does not

claim that she made any efforts to contact the EEOC or that she

visited the EEOC website to seek clarification regarding the

relevant deadlines.    Because plaintiff failed to demonstrate

that she exercised due diligence in preserving her claim,

plaintiff’s justifications for her untimely filing do not rise

to the level required for the doctrine of equitable tolling to

apply.   See Irwin, 498 U.S. at 96 (affirming dismissal of Title

VII case for failure to timely file complaint and declining to

extend the doctrine of equitable tolling to “a garden variety

claim of excusable neglect”); Miller v. Rosenker, 567 F. Supp.

2d 158, 161-162 (D.D.C. 2008) (denying extension of equitable

tolling to plaintiff who failed to demonstrate that his “delay

in filing was anything more than the result of neglect and lack

of due diligence”).




                                  8
      Accordingly, in the absence of any recognized basis for the

application of equitable tolling, the Court grants defendant’s

motion to dismiss plaintiff’s untimely action.

IV.   CONCLUSION

      For the foregoing reasons, defendant’s Motion to Dismiss

plaintiff’s complaint is hereby GRANTED.   An appropriate Order

accompanies this Memorandum Opinion.

      SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           July 27, 2012




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