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Navarro v. McAleenan

United States District Court, S.D. California

November 5, 2019

LETICIA NAVARRO, Plaintiff,
v.
KEVIN MCALEENAN, ACTING SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT [DOC. 31]

          Roger T. Benitez United States District Judge

         Defendant Kevin McAleenan, Acting Secretary of the United States Department of Homeland Security, moves to dismiss Plaintiff Leticia Navarro's Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for her failure to name him as the proper defendant within the applicable statute of limitations period. For the following reasons, the motion to dismiss is GRANTED.

         I. BACKGROUND [1]

         Plaintiff Leticia Navarro is a Hispanic woman who works as a Group Supervisor (GS-14) for Immigration and Customs Enforcement ("ICE"). On May 15, 2012, ICE announced a "Merit Promotion Opportunity" for a GS-15 position. Plaintiff applied for the position and was one of seven individuals interviewed. One of Plaintiff s supervisors was the "Selecting Official" for the position and appointed a three-person panel to rank and assess the applicants. The panelists ranked Plaintiff fifth, lower than the Hispanic male applicant. After the official for the open position retired, Plaintiff was removed from her position as acting supervisor of her department.

         Plaintiff claims she was not selected for the promotion because of her national origin and sex. She further alleges that two members of the selection panel discriminated against her because they were aware of her past EEO complaints against the Agency. Following an Administrative Judge's denial of Plaintiffs claims, Plaintiff appealed to the Equal Employment Opportunity Commission ("EEOC"). On October 18, 2018, the EEOC affirmed the Administrative Judge's decision, finding that Plaintiff did not establish her qualifications were "plainly superior to those of the selectee" and that there was no evidence showing "prior EEO activity or lack thereof of the candidates played any role in the final determination." Ex. A to Complaint at 5-6.

         On December 29, 2018, Plaintiff filed the present lawsuit against ICE and her two supervisors. Doc. 1. On May 13, 2019, the Court dismissed Plaintiffs Complaint because she failed to state a claim, did not name the proper defendant, and did not properly serve her Complaint. Doc. 23. The Court's dismissal order cautioned that should Plaintiff "re-file her lawsuit, [she] would do well to heed our Ninth Circuit jurisprudence on the parameters within which an individual may sue the federal government under Title VII." Id. at 6. In addition, the Court expressly declined to decide whether Plaintiffs lawsuit was barred by the applicable statute of limitations, finding the issue premature because it had not been fully briefed by the parties. Id. at 2, n, 3.

         On May 20, 2019, Plaintiff filed a First Amended Complaint against "James M. Murray, Secretary, United States Department of Homeland Security."[2] Doc. 24. On May 21, 2019, Plaintiff filed a Second Amended Complaint against "Kevin M. McAleenan, Acting Secretary of the Department of Homeland Security," instead. Doc. 26. The next day, Plaintiff withdrew both her First and Second Amended Complaints and replaced them with an "Amended Complaint," Doc. 29. Docs. 27-28. In her Amended Complaint, Plaintiff brings claims for discrimination and retaliation under Title VII against Kevin M. McAleenan.

         II. DISCUSSION

         Kevin McAleenan, Acting Secretary of the Department of Homeland Security ("the Secretary"), moves to dismiss Plaintiffs Amended Complaint, arguing that Plaintiffs failure to timely name him as the proper defendant bars her action as a matter of law. The Court agrees: the Amended Complaint is untimely and cannot be saved under Rule 15(c)'s relation back doctrine or by equitable tolling.

         A. Timeliness

         Under 42 U.S.C. § 2000e-5(f)(1), a claimant challenging an EEOC dismissal has 90 days to bring her civil action in district court.[3] "The requirement for filing a Title VII civil action within 90 days from the date the EEOC dismisses a claim constitutes a statute of limitations." Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir. 1992). Accordingly, "[i]f [a] claimant fails to file within [the] 90-day period, the action is barred." Id.

         Here, the parties agree that Plaintiff had until January 16, 2019-90 days from the October 18, 2018 EEOC letter-to file a complaint naming the Secretary as the proper defendant.[4] See Doc. 31-1 at 5:1; Doc. 33 at 6:18. Although Plaintiffs initial Complaint was filed within the 90-day statute of limitations on December 29, 2018, it was dismissed in part because it failed to name the proper defendant; rather, it improperly named the agency, itself, and two supervisory employees. See Doc. 23. Plaintiff then filed a First Amended Complaint on May 20, 2019, again naming the wrong defendant-this time, the Director of the United States Secret Service. Finally, on May 21, 2019, Plaintiff filed a Second Amended Complaint properly naming as defendant the Acting Secretary of the Department of Homeland Security.

         Unfortunately for Plaintiff, her May 21, 2019 Amended Complaint falls well outside of the 90-day statute of limitations, and thus, it is barred. See Mahoney v. U.S. Postal Service, 884 F.2d 1194, 1196 (9th Cir. 1989) ("Failure to name the proper defendant within the limitations period deprives the district court of jurisdiction over the matter."). In Mahoney, the Ninth Circuit affirmed the district court's dismissal under a similar set of facts. There, the pro se plaintiff timely filed a Title VII lawsuit against the United States Postal Service but failed to name the correct defendant, the Postmaster General. Mahoney later amended her complaint to name the Postmaster General, but she did so after the statute of limitations period had expired. The Ninth Circuit affirmed the district court's dismissal of Mahoney's complaint for lack of jurisdiction, holding that, although the original complaint was timely filed, Mahoney's claims were barred because she did not attempt to add the Postmaster General until "well after the limitations period had run." Id. at 1197.

         As in Mahoney, Plaintiff did not name the proper defendant until well after the 90-day limitations period had run. See Id. Thus, the Court must dismiss her Amended Complaint, unless she can establish either: (1) that her Amended Complaint relates back to her original December 29, 2018 Complaint under Federal Rule of Civil Procedure 15(c), or (2) the ...


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