United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S AMENDED COMPLAINT [DOC. 31]
T. Benitez United States District Judge
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.
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.
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.
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.
20, 2019, Plaintiff filed a First Amended Complaint against
"James M. Murray, Secretary, United States Department of
Homeland Security." 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.
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.
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. "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."
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. 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
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.
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 ...