THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THEODORE McGARY

Plaintiff,
Civ. A. No. 13-1136 (RCL)
v. Hon. R0yce C. Lamberth

THE HONORABLE JOHN M. McHUGH,
Secretary, Department of the Arrny, et al.,

Defendant.

MEMORANDUM OPINION

Theodore McGary, plaintiff, brings this pro se action alleging Title VII employment
discrimination against the United States Army, his former employer, in the United States District
Court for the District of Columbia. After receiving what he characterizes as a negative
recommendation, plaintiff initially filed a complaint with the Equal Employment Opp0rtunity
Commission ("EEOC"), appealed that decision to the Office of Federal Operations ("OFO"), and
subsequently filed in the district court system after receiving unfavorable outcomes each time.
Defendants John McHugh, Secretary for the Department of the Army, and Carol Burton,
plaintiffs former supervisor, have filed a l2(b)(6) motion to dismiss on the basis that plaintiff
has failed to state a claim on which relief can be granted, and a l2(b)(l) motion to dismiss for
lack of subject matter jurisdiction over defendant Burton. Defendants further allege that
plaintiffs complaint was not timely filed. Received 4 days after the strict deadline, plaintiffs
complaint was indeed not timely, and as such the plaintiffs claim will be DISMISSED with

prej udice.

I. BACKGROUND

Many of the facts of this case were thoroughly set out in the Office of Federal Operations
("OFO") decision.

[Plaintiff_| worked as an Employee Relations Specialist at the Agency’s Civilian
Personnel Advisory Center (CPAC), U.S. Army Garrison in Kaiserlautern,
Gerrnany. [Plaintiff] began working for the Agency in September 2007, and left
for another position in January 2009.

ln a complaint dated April l3, 2009, [plaintiff] alleged that the Agency
discriminated against him based on his race (Black), sex (male)[,] and reprisal
when:

l. [Plaintiff] received a level three for his decision to accept a position with the
Navy in Yokosuka, Japan.

2. [Plaintiff] received one share for his annual pay increase, while two similarly
situated White females received two shares.

3. [Plaintiff’ s] second level supervisor provided negative references to three
potential employers.

ln 2000, [plaintiff] filed a complaint against his then employer, the Peace Corps.
[Plaintiff] shared this information with his immediate supervisor (Sl) and
[defendant Carol Burton,] his second level supervisor (SZ)[,] and others. Sl
provided a recommendation for [plaintiff]. She also provided a recommendation
for [another employee, a white female]. 82 concurred with both
recommendations. The recommendations were submitted as required to the pay
pool panel. Both ratings were lowered by the pay pool panel. [Plaintiff] received
one share for his reduced rating and [the white female] received two shares with
her reduced rating.

[Plaintiff] also sought other employment. SZ told one prospective employer that
[plaintiff] was a "job hopper."

After conducting an investigation, which included testimony provided at a fact-
finding conference, [plaintiff] was sent a report of investigation (ROI) and the
transcript. [Plaintiff] requested a hearing before an AJ [administrative judge].
Over the objection of [plaintiff], the AJ granted summary judgment
Ex. 10 at l-2, ECF No. 6-12 (footnote omitted). The final agency decision implementing the
judge’s ruling was entered on August 29, 201 l. Id. at l. Plaintiff then appealed his unfavorable

decision to the OFO, which affirmed the administrative judge’s grant of summary judgment to

the defendants, and entered its decision on April 16, 2013. Id. at 3, 6. A provision included in
the decision gave plaintiff "the right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that [plaintiff] receive[d] [the] decision."
Id. On the next page, the certificate of mailing reads: "[f]or timeliness purposes, the
Commission will presume that this decision was received within five (5) calendar days after it
was mailed." Id. at 7. The plaintiff did not include the date he received the right-to-sue
information in his complaint, nor did he include it in his response to the defendants’ motion to
dismiss.
II. ANALYSIS

Defendants argue that this case, or portions of it, should be dismissed on several grounds:
(l) that the complaint was not timely filed, (2) that it fails to state a claim for which relief can be
granted, and (3) that it lacks subject matter jurisdiction over one of the defendants. The Court
agrees that the case was not timely filed, and dismisses it for this reason. As such, the Court
does not address the l2(b)(6) and l2(b)(l) motions in depth.'

A. Timeliness

"Federal employees may only bring Title VII lawsuits in federal district court if they have
exhausted remedies available through administrative processes and filed suit within 90 days of
final administrative action." Price v. Greenspan, 374 F. Supp. 2d l77, 184 (D.D.C. 2005); 42
U.S.C. § 2000e-l6(c). "The 90 day window operates not as a jurisdictional bar, but as a statute

of limitations." Id. "[A] court may dismiss a claim on statute of limitations grounds only if ‘no

1 Although the Court does not address the l2(b)(6) and l2(b)(l) motions in depth, assuming that the complaint was
timely filed, the Court would still rule for the defendants on both issues. Plaintiff received thej0b despite whatever
negative reference he was given, and has suffered nojudicially cognizable harrn. Further, Ms. Burton is not a proper
defendant - it is simply incorrect that because the head of a department can be sued, his subordinates can be as well.
Throughout plaintiffs complaint and the transcript, plaintiff seeks to portray a conspiracy against him, the merits of
which are not evident in the record. This Court is not permitted to make the conclusory leaps that ruling for the
plaintiff would require.

reasonable person could disagree on the date’ on which the cause of action accrued." Smith v.
Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475 (D.D.C. l998) (quoting Kuwait
Airways Corp. v. American Securz`fy Bank, 890 F.2d 456, 463 n.11 (D.C. Cir. 1989)). Courts
generally presume that EEOC right-to-sue letters are received either 3 or 5 days after they are
mailed. See, e.g., Ana'erson v. Local 201 Reinforcing Roa’men, 886 F. Supp. 94, 96-97 (D.D.C,
1995) (dismissing pro se plaintiffs Title VII claim where plaintiff did not plead date of receipt
of right-to-sue letter in complaint and complaint was received 97 days after decision). Because
there are usually no disputable questions of fact conceming EEOC deadlines, courts enforce the
90 day limitations period very strictly. See, e.g., Smith v. Dalton, 971 F. Supp. 1, 1-3 (D.D.C.
1997) (dismissing pro se plaintiffs Title VII claim when it was received 1 day after 90 day
deadline). Although this Court analyzes the complaints of pro se plaintiffs under "less stringent
standards than formal pleadings drafted by lawyers," Haz`nes v. Kerner, 404 U.S. 519, 520
(1972), "[t]he Supreme Court has cautioned that congressionally mandated time requirements
‘for gaining access to the federal courts are not to be disregarded by courts out of a vague
sympathy for particular litigants,"’ Smz`th, 971 F. Supp. at 3 (quoting Baldwin County Welcome
Center v. Brown, 466 U.S. 147 (1984)).

The OFO decided against plaintiff on April l6, 2013, and included in its decision
instructions on how to further pursue a civil action in the district courts. See Ex. 10 at 6. lt
further included a certificate of mailing that notified plaintiff that "the Commission . . .
presume[s] that [the] decision was received with five (5) calendar days after it was mailed." [a'.
at 7. This is consistent with courts presuming that right-to-sue letters in EEOC actions are
received within 3 or 5 days of the decision. See, e.g., Anderson, 886 F. Supp. at 96-97. The

OFO decision was mailed on April 16, 2013, the same day it was decided. Id Therefore, the 90

day countdown began, at the latest, on April 21, 2013, giving plaintiff, at most, until July 20,
2013 to file his complaint. "[T]he date of filing is established by the official docket," Smith, 971
F. Supp. at 3, which means the day it was received by the Clerk of the Court, see Tyler v. District
of Columbz`a, No. 05-2259, 2006 WL 2024377, *l, n.l (D.D.C. Jul. 18, 2006) (citing Lyons v.
Goodson, 787 F.2d 411, 412 (8th Cir. 1986)). Plaintiffs complaint was not received until July
24, 2013, see Compl., ECF No. 1-l, indisputably late.

However, as per the guidelines laid out in Mondy v. Secretary of the Army, 845 F.2d
1051, 1057 (D.C. Cir. 1988), the Court considers whether there is an equitable excuse for
plaintiffs failure to file the complaint on time. Where pro se plaintiffs have been misled or
misguided, "equitable tolling . . . might be available." Norman v. United States, 467 F.3d 773,
777 (D.C. Cir. 2006). But the plaintiff here was not misled. This case is a simple example of a
late filing with no misconduct on the part of the defendant or deciding agency. Even if, as
plaintiff implicitly claims, the Department of Defense internal postal system added a significant
delay to the receipt of the documents, then plaintiff would have been made aware of the lag when
he received the documents longer than 5 days after the date of the decision.z With this
knowledge plaintiff could have (l) mailed his complaint earlier to ensure it arrived within the 90
day window, (2) sought waiver or extension of the 90 day requirement, or (3) even simply
informed the defendants, the Court, or the EEOC agency, of potential delay.3 Because plaintiff
did none of these things, the Court finds that plaintiff did not exercise the due diligence required

of him, and his excuse is at best "a garden variety claim of excusable neglect," insufficient to

2 The certification letter included with the decision states: "[f]or timeliness purposes, the Commission will presume
that this decision was received within five (5) calendar days after it was mailed." Ex. 10. Thus, receipt more than 5
days after the decision was mailed would put plaintiff on notice of the amount of time it takes the postal system to
function.

3 Note that the Court does not hold that simply informing parties of a delay would be sufficient However, it would
have at least helped plaintiffs case by giving credence to his claim that the mail took longer to arrive than normal.

5

warrant equitable tolling. See Baltle v. Rubin, 121 F. Supp. 2d 4, 7-8 (D.D.C. 2000) (quoting
Irwz'n v. Department of Veterans Ayjfairs, 498 U.S. 89, 96 (1990)). The Court sees no reason to
make for pro se plaintiffs what would be a categorical exception to the rule, particularly a
plaintiff with self-proclaimed familiarity with the EEO process. See Ex. 1 at 81-82, ECF No. 6-
4. Therefore, the Court concludes that plaintiffs complaint was not timely, and dismisses his
claims.
III. CONCLUSION

For the aforementioned reasons, Defendant McHugh and Defendant Burton’s l2(b)(6)
Motion to Dismiss for Failure to State a Claim will be GRANTED, Defendant Burton’s l2(b)(l)
Motion to Dismiss for Lack of Subject Matter jurisdiction will be GRANTED, and this case will

be DlSl\/IISSED with prejudice. An order reflecting the stated relief accompanies this opinion.

Date: ¢/.’l.o ///-/ Signature:  (.  

The l’lonorable Royce C. Lamberth
U.S. District Court Judge

