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Pronechen v. Secretary of U.S. Dep't of Homeland Security

March 24, 2010

RONALD L. PRONECHEN, PLAINTIFF,
v.
SECRETARY OF U.S. DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER

Re: Defendant's Judgment Motion for Summary [88]

Defendant's Motion for Summary Judgment was originally set for hearing on March 5, 2010. Having taken the matter under submission on March 1, 2010, and having reviewed all papers submitted pertaining to this motion, the Court NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS IN PART AND DENIES IN PART Defendant's Motion for Summary Judgment.

Summary judgment is appropriate when the pleadings, affidavits, and other supporting papers demonstrate that there are no genuine issues of material fact, and the moving party is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When making this determination, the Court must view the record in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A "genuine" dispute is one that is supported by evidence sufficient to permit a reasonable jury to find in favor of the nonmoving party. Id. at 247-48.

Under the Age Discrimination in Employment Act, a federal employee who wants to assert an age discrimination claim has two options. First, the complainant can give the EEOC notice of the alleged act within 180 days, and then give notice of suit at least 30 days prior to the filing of the suit. 29 U.S.C. § 633a(c),(d); 29 C.F.R. § 1614.201. Or, second, the complainant may pursue the complaint administratively before the EEOC and appeal any loss in federal court.

29 U.S.C. § 633a(b),(c); 29 C.F.R. § 1614.407.

If an aggrieved person desires to follow the second route, he or she must "initiate contact with a counselor within 45 days of the date of the matter to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."

29 C.F.R. § 1614.105(a)(1).

The 45 day time limit shall be extended "when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred." 29 C.F.R. § 1614.105(a)(2).

Furthermore, if a plaintiff can show "that despite due diligence he or she was prevented by the circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission." 29 C.F.R. § 1614.105(a)(2).

Under federal law, an employment discrimination claim accrues "upon awareness of the actual injury, i.e., the adverse employment action, and not when the plaintiff suspects a legal wrong." Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1049 (9th Cir. 2008). Two doctrines "may apply to extend the limitations period." Id. at 1051. The two doctrines are equitable tolling and equitable estoppel. See id.

"If a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until the plaintiff can gather what information he needs." Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002).

"Equitable estoppel focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit, whereas equitable tolling focuses on the plaintiff's excusable ignorance of the limitations period and on lack of prejudice to the ...


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