                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 UJUCHRIS OKEREH                               )
                                               )
                      Plaintiff,               )
                                               )
               v.                              )   Civil Case No. 07-cv-1552 (RJL)
                                               )
                                               )
 DONALD C. WINTER,                             )
 SECRETARY OF THE NAVY                         )
                                               )
                      Defendant.               )




                              MEMORA
                                (March

       Ujuchris Okereh, the plaintiff, appears pro se and alleges his employer

discriminated against him based on his race, national origin, and color, in violation of

Title VII of the Civil Rights Act of 1964,42 U.S.C. §2000e, et seq. His employer, the

Secretary of the Navy, filed a Motion for Summary Judgment on the grounds that Mr.

Okereh filed his complaint untimely. This Court agrees and GRANTS the Navy's

summary-judgment motion.

                                    BACKGROUND

      Mr. Okereh is a Nigerian-born black man and was employed as a Logistic

Management Specialist for the United States Department of the Navy from February

2004 through March 2006. (See Compl. at 1.) On March 6, 2006, the Navy fired Mr.
Okereh for "unacceptable job performance." (Def.'s Statement of Material Facts Not in

Dispute at,-r 2.) Mr. Okereh filed an employment-discrimination complaint with the

Merit Systems Protection Board (the Board) claiming he was fired based on his race,

national origin, and color. (ld. at,-r 3.) The Board affirmed the Navy's decision to fire

Mr. Okereh and later denied his petition for review. (ld. at,-r 6.)

       Mr. Okereh appealed to the Equal Employment Opportunity Commission (EEOC),

and the EEOC dismissed his appeal. (ld. at,-r 8.) The EEOC also dismissed his EEOC-

filed complaint and his request for reconsideration. On February 9, 2007, the EEOC

issued a final agency decision stating Mr. Okereh had "the right to file a civil action in an

appropriate United States District Court within ninety (90) calendar days from the date

that [he] receive[d] this decision." (PI.'s Ex. B at 3.)

       May 7, 2007, 87 calendar days after the EEOC issued the final agency decision,

Mr. Okereh filed an Application to Proceed Without Prepayment of Fees and Affidavit,

or in forma pauperis (lFP) with this Court. (See PI.'s Ex. C.) Mr. Okereh attached a

complaint alleging employment discrimination to his IFP application. The Court denied

Mr. Okereh's IFP application two weeks later, on May 21,2007. Mr. Okereh did not pay

the requisite fees or file his complaint with this Court until Aug. 31, 2007, which was 203

calendar days after the EEOC issued its final agency decision. (Compl. at 1 (date stamp

noting date filed).)




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       The Navy filed a motion for summary judgment asserting it is entitled to relief

because Mr. Okereh did not file his complaint within 90 days after the final agency

decision. Mr. Okereh responded after this Court issued a Fox-Neal Order informing him

of the federal and local requirements.

                               STANDARD OF REVIEW

       Summary judgment is appropriate "if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). In ruling upon a motion for summary judgment, this Court draws all reasonable

inferences in favor of Mr. Okereh, as the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). However, Mr. Okereh "may not rest upon the mere

allegations or denials of his pleading, but must set forth specific facts showing that there

is a genuine issue for trial." Amiri v. Stoladi Prop. Group, 407 F. Supp. 2d 119, 123

(D.D.C. 2005) (internal quotation and alteration omitted). The Court will also construe

Mr. Okereh's filings liberally, as he filed this action pro se. See Boag v. MacDougall,

454 U.S. 364,365 (1982).

                                         DISCUSSION

       The Navy moves for summary judgment on the ground that Mr. Okereh's

complaint was filed untimely based on the requirements of 42 U.S.C. § 2000e-5(f)(1).

This section provides that when the EEOC dismissed Mr. Okereh's charge, the EEOC




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notified him he could file suit against the Navy within 90 days. See 42 U.S.C. § 2000e-

5(f)(l). Courts adhere strictly to the 90-day requirement, even in cases where the

plaintiff is apro se litigant. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152

(1984) (noting that courts cannot disregard the procedural requirements "out of a vague

sympathy for particular litigants" and upholding the dismissal of a pro se plaintiffs

complaint because it was filed six days after the expiration of the 90-day period); Smith v.

Dalton, 971 F. Supp. 1,3 (D.D.C. 1997) (granting employer's motion for summary

judgment when the pro se plaintiff filed the complaint 91 days after receiving the final

agency decision).

       Nevertheless, this requirement is subject to equitable tolling in "extraordinary

circumstances," Amiri, 407 F. Supp. 2d at 124, such as when the Court is reviewing IFP

petitions. Washington v. White, 231 F. Supp. 2d 71, 75 (D.D.C. 2002) (noting 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 application"); Guillen v. Nat 'I Grange, 955 F.

Supp. 144, 145 (D.D.C. 1997) (applying equitable tolling to the 90-day period based on

"administrative delay associated with the Court's review of petitions to proceed informa

paupe ris").

       The 90-day requirement begins when plaintiffs receive the EEOC's final agency

decision. Courts have presumed plaintiffs receive decisions either three or five days after




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their issuance. See Fed. R. Civ. P. 6(e) (providing three days); Baldwin County Welcome

Ctr., 466   u.s. at 148 (presuming a plaintiff received notice of a right-to-sue letter three
days after it was issued); Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 n.3

(D.C. Cir. 1998) (applying Baldwin's three-day rule to a plaintiffs receipt of a right-to-

sue letter); Anderson v. Local 201 Reinforcing Rodmen, 866 F. Supp. 94, 97 (D.D.C.

1995) (noting the presumptive date of receipt of a right-to-sue letter is three or five days

after its issuance).

       This presumption can be rebutted by "sworn testimony or other admissible

evidence" indicating the notice was received later. Sherlock v. Montejiore Med. Ctr., 84

F. 3d 522, 526 (2nd Cir. 1996); see also Williams v. First Government Mortg. and

Investors Corp., 225 F.3d 738, 751 (D.C. Cir. 2000) (affirming a district court's

determination that the plaintiff failed to rebut a presumption of delivery in light of the

plaintiffs inconsistent testimony and the plaintiffs failure to offer any "evidence of non-

delivery beyond his trial testimony"). "[G]eneral claims that mail is sometimes delayed

will not be sufficient to rebut the presumption." Payan v. Aramark Mgmt. Servs. Ltd.

P'ship, 495 F.3d 1119, 1126 (9th Cir. 2007).

       In this case, the EEOC issued the final agency decision on February 8, 2007.

Using the most generous presumption of five days, the Court presumes Mr. Okereh

received it February 13. Thus, absent any equitable tolling, Mr. Okereh had until May

14, 2007, to file his complaint with this Court.




                                                5
       This date is adjusted, however, as the 90-day requirement is subject to equitable

tolling because Mr. Okereh filed his IFP application before the 90-day period expired.

Equitable tolling applies between the day Mr. Okereh filed his IFP application on May 7,

2007, and the day he received the Court's denial. See Washington, 231 F. Supp. 2d at 75.

The Court issued its denial of his IFP application on May 21, 2007. Applying the most

generous presumption, Mr. Okereh received the Court's denial on May 26,2007.

       Although Mr. Okereh claims in his pleadings he did not receive the IFP denial

until "[s]ometime in August 2007," (Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2.), Mr.

Okereh does not submit sworn testimony or other admissible evidence to support this

claim. Instead, Mr. Okereh relies only "on allegations or denials in [his] own pleading,"

which is impermissible under Federal Rule of Civil Procedure 56(e). See Fed. R. Civ. P.

56(e)(2) (establishing a party opposing a summary-judgment motion "may not rely

merely on allegations or denials in its own pleading," but must "by affidavits ... set out

specific facts showing a genuine issue for trial"). Mr. Okereh's assertion alone is

insufficient to rebut the presumption he received the IFP denial on or before May 29,

2007. See Sherlock, 84 F. 3d at 526; see also Williams, 225 F.3d at 751.

       The 90-day requirement was thus tolled for 19 days, between the filing of the IFP

application on May 7 and the presumptive receipt of the denial on May 21. Tolling the

90-day requirement for 19 days resulted in a new deadline of June 2. Because June 2 was

a Saturday, Mr. Okereh had until Monday, June 4,2007, to file his complaint. Mr.




                                             6
Okereh, however, did not file his complaint until August 31, 2007, 85 days after the 90-

day time period expired. (See CompI. at 1.)

       While Mr. Okereh attached a complaint to his IFP application, which was filed

within the 90-day time period, this is insufficient to commence the action and provide

notice to the defendant for purposes of the 90-day requirement. See Fed. R. Civ. P. 3 ("A

civil action is commenced by filing a complaint with the court."); Amiri, 407 F. Supp. 2d

at 124 ("The 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."); Truitt v. County of Wayne, 148 F.3d 644,645 (6th Cir. 1998) (finding

a plaintiff who submitted her complaint with her IFP application within the 90-day time

frame nevertheless did not comply with the requirement because she did not pay the

filing fee within 90 days); Jarrett v. US Sprint Commc 'ns, Co., 22 F.3d 256,259 (lOth

Cir. 1994) (holding that the filing date did not relate back to the date the plaintiff

submitted the IFP application, even though the complaint was attached to the

application); see also Baldwin County Welcome Ctr., 466 U.S. at 149 (holding a plaintiff

who filed her complaint after the 90-day requirement expired could not avoid a dismissal

by filing a right-to-sue letter within the 90-day time period).




                                              7
      Because Mr. Okereh failed to file his cause of action within 90 days of receiving

the final EEOC decision, this Court will GRANT Defendant's Motion for Summary

Judgment. An Order consistent with the foregoing accompanies this Memorandum

Opinion.




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