United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE
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
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. 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).
now moves for summary judgment, arguing that Plaintiff filed
this action outside of the statute of limitations.
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.
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).
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).
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).
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).
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
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. 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