The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
In this Action, Plaintiff Ronald L. Pronechen ("Plaintiff") alleges that Defendant Secretary of U.S. Department of Homeland Security (the "Secretary") discriminated against him in violation of the federal sector Age Discrimination in Employment Act ("ADEA") when it did not hire him for either a GS-7/9/11/12 Physical Security Specialist ("PSS") position in San Diego, California or a GS-13 Supervisory PSS position in Phoenix, Arizona, which were advertised in job announcements 0392184 and 0392144 respectively. The issues for Trial were whether Plaintiff's claims under the ADEA were time-barred and whether Plaintiff's non-selection for both the San Diego and Phoenix positions were the result of intentional discrimination based on age. The Court having considered all of the arguments, evidence, testimony, and exhibits presented during the Court Trial, NOW FINDS AND RULES AS FOLLOWS:
Plaintiff bears the burden of proving facts to support equitable tolling. Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1218 (9th Cir. 1980). The Court finds that Plaintiff Pronechen has not met his burden of establishing that the 45-day time limit to contact an EEO counselor should be equitably tolled.
Under the ADEA, a federal employee who wants to assert an age discrimination claim may pursue the complaint administratively before the EEOC and appeal any loss in federal court. 29 C.F.R. § 1614.407. Moreover, the federal employee is required to "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). Failure to initiate contact with an EEO counselor within 45 days requires dismissal of an EEO complaint absent waiver, estoppel, or equitable tolling. Id. §§ 1614.107(a)(2), 1614.604(c).
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). 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).
However, equitable tolling does not apply where a plaintiff knew or reasonably should have known of the possible existence of a claim within the limitations period. Id. See also Lukovsky, 535 F.3d at 1051. Furthermore, "the doctrine [of equitable tolling] 'is not available to avoid the consequence of one's own negligence.'" Hensley v. U.S., 531 F.3d 1052, 1058 (9th Cir. 2008)(quoting Lehman v. U.S., 154 F.3d 1010, 1016 (9th Cir. 1998). It does not apply when a late filing is due to a claimant's failure to exercise due diligence in preserving his legal rights. Scholar v. Pac. Bell, 963 F.2d 264, 268 (9th Cir. 1992).
The Court finds that Plaintiff failed to exercise due diligence in preserving his legal rights with regard to his ADEA claim. Specifically, the evidence at Trial established that for every non-selection during 2003 and up to January 14, 2004, Plaintiff suspected that he had been discriminated against based on his age. The evidence presented at Trial further established that Plaintiff knew during this time that discrimination based on age was not tolerated by the Federal Protective Service ("FPS") and that he should contact an EEO counselor to complain of discrimination. However, the evidence at Trial established that Plaintiff did not contact an EEO counselor until March 30, 2004 regarding his non-selection for various federal job announcements, particularly the San Diego and Phoenix job announcements at issue in this case. [Plaintiff's Exhibit 5A].
Specifically, the evidence established that posters with EEO information were placed in a General Services Administration ("GSA") break room where, or adjacent to where, FPS had a mailbox from which Plaintiff, along with other FPS employees, would retrieve GSA mail, notices, and memoranda addressed to GSA. Witness testimony also established that Plaintiff contacted his congressman in June 2003 complaining about the non-selections at issue here and indicating that they were based on his age.
Furthermore, the Court finds Plaintiff's argument that he did not have knowledge of the 45-day time limit unpersuasive. The Court finds the testimony of Lois Allmon and Richard Riccio particularly instructive with regard to this finding. The evidence at Trial established that Plaintiff attended an EEO/Sexual Harassment training on April 18, 2000 in San Francisco, California. [Defendant's Exhibit A]. While Plaintiff testified that he could not remember one way or the other whether the 45-day time limit was taught at the April 18, 2000 training, both Lois Allmon and Richard Riccio testified that the 45-day time limit was discussed at the training. Richard Riccio testified that he specifically remembered the 45-day rule as a topic of discussion in the April 18, 2000 training because he himself had contemplated filing a claim but realized that his filing would be time-barred after learning about the 45-day time limit at the training session. Moreover, Lois Allmon testified that it was her standard practice to discuss the 45-day time limit at the nine or ten training sessions she taught during her ten year career as both an EEO Specialist and Counselor.
The Court finds that the testimony of these witnesses lends significant credibility to the Secretary's position that Plaintiff was aware of the 45-day time limit to contact an EEO counselor. Additionally, evidence at Trial established that the GSA sent orders and memoranda for distribution to all FPS employees informing them of the 45-day time period during the time in which Plaintiff was employed as a Physical Security Specialist for FPS. [Defendant's Exhibits B, C, C1]. The evidence established that some of these orders were placed in a GSA Order Book in the FPS office, in which Plaintiff worked and had access to. The Court also heard testimony that Plaintiff, along with other FPS Physical Security Specialists, was responsible for routinely updating the GSA Order Book.
While Plaintiff claims that he should be entitled to equitable tolling because he applied for the two positions at issue in this case as an outside applicant and therefore had no knowledge of the 45-day time limit, the Court finds that such argument lacks merit. It is undisputed that Plaintiff worked for FPS as a Physical Security Specialist for ten years before he retired in 2000. Moreover, Plaintiff testified that during his ten years of employment with FPS, he was generally aware of EEO policies and procedures. As such, the Court finds that because of Plaintiff's significant background in federal employment, Plaintiff's assertion that he was unaware of the 45-day time limit lacks credibility. Moreover, the Court finds that the overall evidence presented at Trial consistently established that Plaintiff was on notice with regard to the EEO 45-day time limit.
Accordingly, the Court finds that Plaintiff has not exercised due diligence in preserving his legal rights with regard to his ADEA claim and has not met his burden of proof to establish equitable tolling. As such, the Court finds that Plaintiff's age discrimination claim under the ...