Arata v. Azar

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE

         Pursuant to Federal Rule of Civil Procedure 56, Defendant Alex Azar, Secretary of the U.S. Department of Health and Human Services, filed a Motion for Summary Judgment on each of Plaintiff's claims based on a statute of limitations defense. The Court has now considered the Motion (Doc. 12, Mot.), Plaintiff's Response (Doc. 17, Resp.), and Defendant's Reply (Doc. 22, Reply) along with relevant case law.

         I. BACKGROUND

         Plaintiff Lois Arata brought this action against Alex Azar, Secretary of the U.S. Department of Health & Human Services (“HHS”) on March 27, 2018 for discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the ADA Amendments Act of 2008. (Doc.1). Plaintiff was employed as a Clinical Nurse at Indian Health Service, Kayenta Service Unit (“KSU”), from approximately April 2014 to July 2015 and at Indian Health Service, Gallup Indian Medical Center (“GIMC”), from July 2015 until August 2016.^[1] Id. ¶¶ 4, 8. Plaintiff filed EEOC complaints of discrimination and harassment against HHS regarding her employment at KSU and GIMC. Id. ¶ 1. The only claims in question now are those raised by Plaintiff in two of the EEOC complaints, (Reply at 2), which an Administrative Judge consolidated per an order issued on March 17, 2017 (the “Consolidated Complaints”), (Doc. 13-2 at 7). HHS issued a consolidated Final Agency Decision (the “FAD”) to Plaintiff concerning the Consolidated Complaints on December 21, 2017, determining that Plaintiff had failed to meet her burden of persuasion to show that she was discriminated against. (Doc. 13-5 at 35). The FAD alerted Plaintiff of her right to sue on the claims raised in the Consolidated Complaints within ninety days. (Doc. 13-5 at 37). The FAD was mailed via USPS First Class Mail to Plaintiff's P.O. Box and to her counsel's address of record, which showed both a street address and a P.O. Box. (Doc. 13-5 at 40).

         Defendant now moves for summary judgment, arguing that Plaintiff filed this action outside of the statute of limitations.

         II. LEGAL STANDARD

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is any factual issue that might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

         “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). The court need only consider the cited materials, but it may also consider any other materials in the record. Id. 56(c)(3).

         Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and “identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. If the movant fails to carry its initial burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the movant meets its initial responsibility, the burden then shifts to the nonmovant to establish the existence of a genuine issue of material fact. Id. at 1103. The nonmovant need not establish a material issue of fact conclusively in its favor, but it “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Liberty Lobby, 477 U.S. at 247-48. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted). However, in the summary judgment context, the Court believes the nonmovant's evidence, id. at 255, and construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If “the evidence yields conflicting inferences [regarding material facts], summary judgment is improper, and the action must proceed to trial.” O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002).

         III. ANALYSIS

         Title VII provides that an employee of an executive agency or department, such as the Department of Health and Human Services, “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a); see also 5 U.S.C. §§ 101, 105. After an employee has filed a complaint of discrimination, and notice of the final action taken by such a department has been issued, the employee is permitted to file a civil action “[w]ithin 90 days of receipt of notice[.]” 42 U.S.C. § 2000e-16(c). “Courts apply the ninety-day time limit strictly and will dismiss a suit for missing the deadline by even one day.” Garrison v. Nike Inc., No. CV-17-00805- PHX-DLR, 2017 WL 2653051, at *2 (D. Ariz. June 20, 2017). It is the defendant that “bears the burden of proving that the plaintiff filed beyond the limitations period.” Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007).

         When the date of receipt is known, the notice is deemed received on that date, regardless of whether the claimant or her attorney personally saw the notice. Payan, 495 F.3d at 1122; see also Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992) (calculating the ninety-day period from the date on which the EEOC letter was “received and signed for by” plaintiff's daughter). The limitations period begins on the day that delivery is first attempted at the plaintiff's address of record, even if delivery is not completed at that time. See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997) (holding that the ninety-day period began running on the date that delivery was first attempted at plaintiff's home, even though the certified letter was not delivered because no one was there to receive it).

         Where the date of actual receipt is unknown, but there is no dispute as to receipt itself, the Court applies a presumption to approximate the date of receipt. Payan, 495 F.3d at 1122. First, the Court presumes that “the letter issuance date is also the date on which the letter was mailed.” Id. at 1123. Second, the Court presumes that the letter was received three days after the date of issuance. Id. at 1126. These presumptions are, however, rebuttable. Id. at 1124, 1126. To rebut the presumption of receipt, a plaintiff must show that she did not receive the letter in the ordinary course. Id. at 1126. “In reviewing whether the presumption has been rebutted, courts look for evidence suggesting that receipt was delayed beyond the presumed period.” Id.

         Here, the FAD was issued on December 21, 2017, a Thursday. Defendant contends that applying Payan's three-day presumption, the FAD is presumed received on December 26, 2017, the following Tuesday. The Court assumes that in making this calculation, Defendant omits December 24 (a Sunday) and December 25 (a legal holiday) from the calculation. Defendant also notes that the FAD provides a five-calendar day presumption of timeliness, which is contrary to the Ninth Circuit's three-day presumption applied after a final agency decision has been issued. (Mot. at 5-6). Even assuming that a five-day presumption is applicable to the timing of filing of a civil action and not just the timing of administrative actions, the presumption in this case still falls on December 26, 2017. Since Defendant suggests that under either calculation the presumed date of receipt is December 26, 2017, the Court will proceed with the proposed receipt date of December 26.^[2] Ninety days from the presumed day of receipt is March 26, 2018. Applying the presumption, Plaintiff had up and until March 26, 2018 to file this action. Plaintiff however attempts to rebut the presumption by asserting that the date of receipt is known, asserting that Plaintiff's attorney received the FAD on ...