The opinion of the court was delivered by: FERN SMITH, District Judge
ORDER DISMISSING COMPLAINT;
DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS
Before the Court is plaintiff's application to proceed in forma
pauperis, as well as plaintiff's complaint, in which plaintiff alleges
that her former employer, the United States Department of the Army,
violated Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, by terminating her employment on account of plaintiff's
disability. Pursuant to 28 U.S.C. § 1915(e), where a plaintiff seeks
to proceed in forma pauperis, the district court must dismiss the case if
the plaintiff fails to state a claim upon which relief can be granted.
See 28 U.S.C. § 1915(e)(2)(B). The Court, having considered
whether plaintiff's complaint states a claim upon which relief can be
granted, rules as follows.
Plaintiff alleges that defendant terminated her employment on November
12, 1994. Attached to plaintiff's complaint is a decision issued by the
Equal Employment Opportunity Commission ("EEOC") on December 4, 2003. In
its decision, the EEOC reports the
following facts: (1) on June 19, 2001, plaintiff filed an appeal
from her 1994 termination with the Merits Systems Protection Board
("MSPB"); an MSPB administrative law judge subsequently dismissed that
action on the ground that it was untimely; (2) on June 17, 2002, the MSPB
denied plaintiff's petition for review from the decision of the
administrative law judge; (3) on July 7, 2003, the United States Court of
Appeals for the Federal Circuit affirmed the MSPB's decision; (4) on July
2, 2003, shortly before the Federal Circuit issued its decision,
plaintiff filed an EEO complaint with the Department of the Army,
alleging that she had been terminated in 1994 for a discriminatory
reason; and (5) on July 28, 2003, the agency dismissed the EEO complaint
on the ground plaintiff had previously elected to file an appeal with the
MSPB on the same issue raised in the EEO complaint. (See Ex. to
Pl.'s Compl.) After recounting the above-facts, the EEOC affirmed the
agency's dismissal of plaintiff's EEO complaint. (See id.)
"Title VII specifically requires a federal employee to exhaust 
administrative remedies as a precondition to filing suit."
Vinieratos v. United States, 939 F.2d 762, 767-68 (9th Cir.
1991). To exhaust, a federal employee "must initially file a complaint
with the Equal Employment Office of his or her agency," see Sloan v.
West, 140 F.3d 1255, 1259 (9th Cir. 1998), and must do so "within 45
days of the effective date of the personnel action." See id. at
1262. Alternatively, "when a federal employee claims he or she has been
affected by both an `adverse employment action' and a related Title VII
violation, administrative remedies may be exhausted for Title VII
purposes by asserting both claims before the MSPB." See
id. However, a federal employee cannot do both. See
29 C.F.R. § 1614.302(b) ("An aggrieved person may initially file a mixed
case complaint with an agency pursuant to this part or an appeal on the
same matter with the MSPB . . ., but not both").
As noted, the EEOC found that plaintiff had asserted the "same claim"
in her appeal to the MSPB and in her EEO complaint. For the reasons
discussed below, whether or not that finding is correct, plaintiff's
claims are barred and the action must be dismissed.
If plaintiff asserted her claim of discrimination before the MSPB, the
has determined that such claim was time-barred. See Casiana v.
Merit Systems Protection Bd., 70 Fed. Appx. 562, 2003 WL 21525097,
*3 (Fed. Cir. 2003).*fn1 Plaintiff is bound by that finding in this
action. See Hawkins v. Risley, 984 F.2d 321, 325 (9th
Cir. 1993) (holding plaintiff cannot relitigate issues of fact or law
"actually litigated and necessarily decided" in prior action).
Accordingly, if plaintiff did raise her claim of discrimination before
the MSPB, plaintiff's complaint is precluded by the Federal Circuit's
decision and thus subject to dismissal for failure to state a claim.
See 28 U.S.C. § 1915(e)(2)(B)(iii) (directing district
court to "dismiss the case at any time if the court determines that . . .
the action . . . fails to state a claim on which relief may be granted").
If plaintiff did not assert her claim of discrimination before the
MSPB, and assuming she could assert such claim in an EEO complaint after
electing not to assert the claim before the MSPB, she was required to
file an EEO complaint within 45 days of the termination. See
Sloan, 140 F.3d at 1259. Plaintiff, however, waited more than eight
and a half years after her termination to file an EEO complaint. The
45-day period is a statute of limitations. See id. at 1262.
Consequently, plaintiff has failed to state a claim on which relief can
be granted, unless there exists a basis for equitable tolling of the
running of the statute of limitations. Cf. Cervantes v. City of San
Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (holding dismissal for
failure to state a claim improper where plaintiff alleged sufficient
facts to warrant finding of equitable tolling).
Plaintiff, in her complaint, does not allege any basis for equitable
tolling. Further, the record demonstrates that granting plaintiff leave
to amend in an effort to allege a basis for equitable tolling would be
futile. In its decision, the Federal Circuit recounted the reasons
plaintiff provided for not filing a challenge to her termination for over
six years, specifically, that plaintiff was "unaware of the deadline,"
that she had "difficulties with
written English and in finding an interpreter and competent
counsel," and that, on one occasion in 1994, a snowstorm prevented her
from traveling to the "NorCal Center," where she hoped to find
assistance. See Casiana, 2003 WL 21525097 at *1, 3. The Federal
Circuit did not find these reasons sufficient to excuse the six-year
delay at issue therein, see id. at *3, and such
reasons, if they were to be alleged by plaintiff in this case to excuse
an even longer period, are similarly insufficient.
First, plaintiff had actual notice, at the time of the termination, of
her right to file an EEO complaint alleging discrimination and was
specifically advised that any such complaint "`must be submitted within
forty-five (45) calendar days of the effective date of [the
termination].'" See id. at *1 (quoting Department of Army's
"Notice of Decision-Removal," which plaintiff received by certified mail
on November 14, 1994).*fn2 Second, plaintiff conceded having counsel in
1994 and 1995, see id., and, as the Ninth Circuit has held,
"once a claimant retains counsel, tolling ceases because she has gained
the means of knowledge of her rights and can be charged with constructive
knowledge of the law's requirements." See Leona v. Potter,
347 F.3d 1117, 1123 (9th Cir. 2003). To the extent plaintiff might allege
that her counsel was negligent in not filing an EEO complaint or advising
her of the necessity to do so within the time provided under federal law,
such allegation would not entitle plaintiff to equitable tolling.
See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)
(holding, in Title VII case, plaintiff's allegation that he did not file
timely EEO complaint because of "excusable neglect" on the part of his
counsel was insufficient to support claim of equitable tolling).
Accordingly, plaintiff's Title VII claim, if not precluded by the
Federal Circuit's decision, is barred by the statute of limitations and
her complaint is subject to dismissal. See
28 U.S.C. § 1915(e)(2)(B)(iii).
For the reasons expressed above,
1. Plaintiff's complaint is DISMISSED, without leave to amend; and
2. Plaintiff's application to proceed in forma pauperis is DENIED ...