PHU G. HUYNH, Plaintiff,
UNITED STATES POSTAL SERVICE, and PATRICK DONAHOE, Postmaster General, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 76.
NATHANAEL M. COUSINS, Magistrate Judge.
Plaintiff Phu G. Huynh brings this action for discrimination under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA) against his former employer, defendants the United States Postal Service and Postmaster General Patrick Donahoe. Defendants move for summary judgment arguing that Huynh's claims are time-barred because he failed to timely exhaust his administrative remedies with the Equal Employment Opportunities Commission (EEOC). The issue presented is whether the statute of limitations for complying with the EEOC's procedural requirements is equitably tolled. After hearing argument and considering the parties' briefs, the Court finds Huynh's claims time-barred and GRANTS defendants' motion for summary judgment.
A. Factual Background
Plaintiff Huynh worked for defendant the United States Postal Service (USPS) as a letter carrier from December 20, 1997 to January 8, 2010. Dkt. No. 1 § 5.
On June 12, 2008, the USPS issued to Huynh a fourteen-day, no-time-off suspension for failure to follow instructions, "expansion of street time, " and unacceptable work performance. Dkt. No. 4 at 2. Huynh filed a complaint with the USPS's Equal Employment Opportunity office (EEO) in response to the suspension, alleging discrimination on the basis of race and age. Id. at 5. The EEO issued a written decision in December 2008 finding that the evidence did not support a finding of discrimination. Dkt. No. 77-1 at 45-59.
On August 27, 2008, the USPS issued to Huynh a notice of removal. Id. § 10; Dkt. No. 4 at 16-18. The notice of removal stated that Huynh's employment would be terminated on September 28, 2008, as a result of his unsatisfactory work performance. Id. Huynh disputed the notice of removal by filing a grievance with his union, the National Association of Letter Carriers, AFL-CIO (the union). Dkt. No. 1 § 11. The USPS's Dispute Resolution Team rescinded the notice of removal on November 17, 2008, after finding that it was not issued for just cause. Id. § 12; Dkt. No. 4 at 11-12.
On June 23, 2009, the USPS issued to Huynh a second notice of removal for failure to perform the duties of the position, failure to follow instructions, and poor work performance. Dkt. No. 77-2 at 10-14. The second notice of removal stated that Huynh's employment would be terminated on July 22, 2009. Id. In response to the second notice of removal, Huynh filed a second grievance with the union. Dkt. No. 1 § 18; Dkt. No. 4 at 24. The USPS's Dispute Resolution Team declared an impasse on Huynh's claim on January 8, 2010. Dkt. No. 4 at 24. Huynh appealed this decision through arbitration. Dkt. No. 1 § 35; Dkt. No. 4 at 45. On June 15, 2010, the arbitrator denied Huynh's claim and upheld Huynh's termination, finding that the USPS had just cause to issue the second notice of removal. Dkt. No. 69, Ex. A.
Following arbitration, on July 19, 2010, Huynh filed a complaint with the EEO, alleging that the second notice of removal was in retaliation for his "prior EEO activity" and was also the result of the USPS's discrimination against him on the basis of race and age. Dkt. No. 1 § 37; Dkt. No. 77-2 at 16. The EEO dismissed this complaint on August 11, 2010, because Huynh did not contact an EEO counselor within forty-five days of the date on which the allegedly discriminatory action took place. Dkt. No. 4 at 50-53. Huynh appealed the EEO's decision to the EEOC, arguing that the second grievance he filed with the union with respect to the second notice of removal tolled the forty-five-day statute of limitations. Dkt. No. 1 § 40; Dkt. No. 4 at 54-56. The EEOC upheld the EEO's dismissal of Huynh's claim. Dkt. No. 4 at 54-56. Huynh subsequently filed a request for reconsideration of the EEOC's decision, but the EEOC denied that request on April 7, 2011. Dkt. No. 80-1 at 38-39.
B. Procedural History
On June 28, 2011, Huynh filed a complaint in this Court against defendants the USPS and Patrick Donahoe, Postmaster General, alleging that his termination from the USPS was retaliatory and discriminatory on the bases of race and age in violation of Title VII and the ADEA. Dkt. No. 1 §§ 8, 14, 16, 28, 29, 31, 43, 44-46. Although paragraph eight of the complaint and Huynh's EEO form complaints indicate that he alleges racial discrimination, the facts alleged in the complaint state claims of discriminatory action on the basis of Huynh's age and retaliatory action based on his 2008 EEO complaint.
1. Defendants' motion to dismiss
Defendants moved to dismiss Huynh's complaint under Rules 12(b)(1) and 12(b)(6) for failure to exhaust his administrative remedies. Dkt. No. 27. Defendants argued that Huynh's complaint must be dismissed because he did not contact an EEO counselor within the forty-five-day statute of limitations. Defendants further contended that the limitations period is not subject to equitable tolling because (1) Huynh's participation in the union grievance process did not toll the statute of limitations; and (2) Huynh had actual and constructive notice of the EEO's procedures, including the time in which to contact an EEO counselor.
This Court denied defendants' motion to dismiss and found that "Huynh's allegation that he was unaware of the 45-day statute of limitations is sufficient to survive defendants' motion under 12(b)(6)." Order, Dkt. No. 57 at 8; see 29 C.F.R. § 1614.105(a)(2) (stating that the EEOC "shall extend the 45-day time limit... when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them"). Because the filing of a claim with an EEO counselor is a ...