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CASIANA v. U.S. DEPARTMENT OF ARMY SECRETARY OF THE ARMY

United States District Court, N.D. California


February 9, 2004.

CAROLYN CASIANA, Plaintiff,
v.
U.S. DEPARTMENT OF ARMY SECRETARY OF THE ARMY, Defendant

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.

BACKGROUND

  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 Page 2 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.)

  DISCUSSION

  "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 Federal Circuit Page 3 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 Page 4 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). Page 5

  CONCLUSION

  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 as moot. The Clerk of the Court shall close the case.

  IT IS SO ORDERED. Page 1

 [EDITORS NOTE: THIS PAGE CONTAINED "CERTIFICATE OF SERVICES".] Page 1

  JUDGMENT IN A CIVIL CASE

  Jury Verdict. This action came before the Court for a trial by jury, The issues have been tried and the jury has rendered its verdict.

  Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED

  1. Plaintiff's complaint is DISMISSED, without leave to amend; and

  2. Plaintiff's application to proceed in forma pauperis is DENIED as moot.


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