Williams v. Young

MOTION for Summary Judgment

W.D. Wash.May 30, 2017

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Honorable John C. Coughenour UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE GERALD WILLIAMS, Plaintiff, v. MICHAEL YOUNG, Acting Secretary of the U.S. Department of Agriculture, Defendant. NO. C17-0280 JCC DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Noted on motion calendar: June 23, 2017 Defendant Young,1 by and through his attorneys of record, Annette L. Hayes, United States Attorney for the Western District of Washington and Patricia D. Gugin, Assistant United States Attorney for said District, respectfully moves this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Williams has failed to file his complaint within ninety days of receipt of the agency’s final action. Pursuant to 42 U.S.C. § 2000e-16(c), his complaint is time-barred. The Court should enter summary judgment for Defendant Young (Perdue) and against Plaintiff Williams. 1 Sonny Perdue is now the Acting Secretary of the United States Department of Agriculture. Pursuant to Fed. R. Civ. P. 25(d), he should be substituted as the proper defendant. Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 1 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. BACKGROUND Plaintiff Gerald Williams alleges that he is an employee of the United States Forest Service (“FS”), a “subagency” of the United States Department of Agriculture (“USDA”). Mr. Williams alleges that his employer subjected him to a hostile work environment and retaliated against him for engaging in protected EEO activities. He brings claims pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1, et seq (“Title VII”). See generally Complaint and Amended Complaint, Dkt. Nos. 1 & 5.2 Prior to filing suit, Mr. Williams had initiated the requisite administrative process for resolving Title VII claims against a federal employer, which included filing his formal EEO complaint with the USDA on April 16, 2014. See Declaration of Linda Overton (“Overton Dec.”), ¶ 2, Exhibit A. Thereafter, Mr. Williams elected to request a hearing by an Equal Employment Opportunity Commission (“EEOC”) administrative law judge (“ALJ”). See id. On March 15, 2016, however, Mr. Williams (and co-complainant Christopher Howells) filed a motion to withdraw their request for a hearing, and requested that “the Court issue an expedited Order withdrawing the hearing request, and that Complainants may proceed in the United States District Court.” See Overton Dec., ¶ ¶ 5-6, Exhibit B, pp. 4, 13. One day later the ALJ granted the motion. “The Complainants in these cases have moved to withdraw their requests for a hearing so that they may proceed to file suit in the United States District Court. … The Complainants filed their complaints over 180 days ago and are entitled to proceed in the manner that they have requested.” See Overton Dec., ¶ 6, Exhibit B., p. 2. The ALJ notified the parties of his decision, advising that the EEOC was “closing its files” on the matters, and instructing the parties to take “whatever action is appropriate.” See id. at pp. 1, 2. 2 Plaintiff amended his complaint to change the name of the defendant from “Michael Scuse’ to “Michael Young.” See Dkt. Nos 1 & 5. Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 2 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The USDA issued its Final Order on June 14, 2016. See Declaration of Donnequa E. Grantham (“Grantham Dec.”), ¶ 2, Exhibit A. In that Final Order, the USDA notified Mr. Williams that, pursuant to 29 C.F.R. § 1614.110, “[t]his order is the final order of the USDA on the complaint cited herein.” See Grantham Dec., ¶ 2, Exhibit A, p. 2. The Final Order set forth and notified Mr. Williams of his appeal rights and his right to proceed with a civil action in federal district court, “… within ninety (90) days of receipt of this final decision ….” See id. at p 3 . On June 14, 2016, the USDA sent the Final Order by certified mail to Mr. Williams (and Mr. Howells) and their attorney at the mailing addresses listed in the proceedings before the EEOC. See Overton Dec., ¶ 3; Grantham Dec, ¶ 3. Tracking information provided by the United States Postal Service shows that the Final Order was available for pickup by Mr. Williams at his post office box on June 18, 2016. See Grantham Dec., ¶ 4, Exhibit B. The Final Order remained available to Mr. Williams for pick up until July 5, 2016, and was then returned to the USDA as unclaimed. See id. Tracking information shows that the Final Order sent by certified mail to Mr. Williams’ attorney was “in transit to final destination” as of June 17, 2016. See Grantham Dec., ¶ 6, Exhibit D. No further information is available. Tracking information shows that the Final Order was available for pickup by Mr. Howells on June 18, 2016, and was delivered on June 28, 2016. See Grantham Dec., ¶ 5, Exhibit C. Plaintiff Williams filed his complaint in federal district court on February 21, 2017, see Complaint, Dkt. No. 1, 248 days after the Final Order was delivered to his address. II. ARGUMENT A. The Standard for Granting Summary Judgment is Met. Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled judgment as a matter of law.” Fed. R .Civ. P. Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 3 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Inferences from the underlying facts must be viewed in the light most favorable to the party opposing the motion. See, e.g., Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The record, however, must be sufficient to let a rational fact finder find that the inferences the non-movant suggests are more likely than not true. See City of Vernon v. S. Cal. Edison Co., 955 F.2d 1361, 1369 (9th Cir. 1992). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. Conclusory, nonspecific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990). The Ninth Circuit “has refused to find a ‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002), citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). Respectfully, Defendant Young shows that he is entitled to judgment as a matter of law. Plaintiff Williams’ complaint is time-barred, and should be dismissed. B. The Complaint is Untimely. A complainant wishing to bring a Title VII complaint in federal district court against his federal employer must file his complaint within ninety days of receipt of the agency’s final action on his claim. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(a); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92 (1990) (then thirty days). Plaintiff Williams received the USDA’s final action on his claim on June 18, 2016, when the USDA’s Final Order was “available for pickup” at Mr. Williams’ post office box, the address he had given the EEOC. See Grantham Dec., ¶ ¶ 2-4, Exhibits A & B; Overton Dec., ¶ 3. Mr. Williams, however, filed his complaint in federal district court on February 21, 2107, not ninety days after receipt of the USDA’s Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 4 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 final action, but 248 days later. His claims are barred and should be dismissed as untimely. It is undisputed that the USDA’s Final Order was delivered to Mr. William’s address of record and “available for pickup” by Mr. Williams on June 18, 2016 through July 5, 2016. Mr. William’s apparent failure to retrieve his mail does not defeat service or grant him an indefinite stay of the ninety- day statute of limitations. The ninety- day period within which to file suit begins running from the date when delivery is attempted at the address of record, and not from when the complainant actually receives the final order. See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997); see also Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1122 (9th Cir. 2007) (citing Nelmida: “We measure the start of the limitations period from the date on which a right- to-sue notice letter arrived at the claimant’s address of record. … Where that date is known, we will deem the claimant to have received notice on that date, regardless of whether the claimant personally saw the right-to-sue-letter.”); Noonan v. Seattle City Light, No.C16-0602-JCC 2016 WL 5109653 at * 2 (W.D. Wash. Sept. 20, 2016). Moreover, Mr. Williams cannot establish that he is entitled to equitable tolling of the ninety-day period. “Equitable tolling” is to be applied only “sparingly.” See, e.g., Irwin, 498 U.S. at 95-96; Nelmida, 112 F.3d at 384-85. Courts are “much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” Irwin, 498 U.S. at 96; see also Nelmida, 112 F.3d at 384. Mr. Williams cannot show that he acted diligently to protect his rights. The USDA’s Final Order was the agency’s final action, referencing 29 C.F.R. 1614.110, which describes the types of agency final actions. The Final Order clearly represented the final agency action taken in connection with Mr. Williams’ complaint, making it clear that the USDA would take no further action on Mr. Williams’ complaint. See Grantham Dec., ¶ 2, Exhibit A, p.2 (“This is the final order of the USDA on the complaint cited herein.”). Furthermore, pursuant to section 1614.110 (a) & (b), the Final Order notified Mr. Williams of his appellate rights and his rights to file a complaint in federal district Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 5 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court, including the ninety-day deadline for pursuing those rights in federal district court. See id. at p. 3. Mr. Williams was or should have been aware that the USDA’s final action would be imminent after the ALJ granted his motion to withdraw his hearing request and closed its files on the matter. Mr. Williams was represented by experienced legal counsel. Moreover, in his order granting Mr. Williams’ motion, the ALJ directed the parties, including the USDA, to take whatever action was appropriate. See Overton Dec., ¶ 6, Exhibit B. p.1. Mr. Williams anticipated or should have anticipated that the agency would take final action and that he should, at a minimum, retrieve his mail or direct that someone retrieve his mail. After filing a motion for an “expedited order” withdrawing his hearing request so that he could proceed in federal district court, Mr. Williams then waited almost an entire year after receiving the USDA’s Final Order before proceeding in federal district court. Plaintiff Gerald Williams’ complaint is untimely because he has not filed within the applicable ninety-day statute of limitations and cannot show that he is entitled to an equitable tolling of the ninety-day period. III. CONCLUSION For the aforementioned reasons, Defendant Young respectfully requests that the Court grant summary judgment in his favor and against Plaintiff Williams, dismissing with prejudice all claims against Defendant Young. Respectfully submitted this 30th day of May, 2017. Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 6 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, ANNETTE L. HAYES United States Attorney /s/ Patricia D. Gugin PATRICIA D. GUGIN, WSBA # 43458 Assistant United States Attorney United States Attorney’s Office 1201 Pacific Avenue, Suite 700 Tacoma, Washington 98402 Phone: 253-428-3832 Fax: 253-428-3826 E-mail: pat.gugin@usdoj.gov Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 7 of 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 No. C17-0280-JCC UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Western District of Washington and is a person of such age and discretion as to be competent to serve papers; It is further certified that on this date, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participant(s): Yaida Ford Yford@fordlawpros.com I further certify that on this date, I mailed by United States Postal Service the foregoing to the following non-CM/ECF participant(s)/CM/ECF participant(s), addressed as follows: -0- DATED this 30th day of May, 2017. s/ Rebecca L. Clauson REBECCA L. CLAUSON Legal Assistant United States Attorney’s Office 1201 Pacific Ave., Ste. 700 Tacoma, WA 98402 Phone: 253-428-3800 Fax: 253-428-3826 E-mail: rebecca.clauson@usdoj.gov Case 2:17-cv-00280-JCC Document 16 Filed 05/30/17 Page 8 of 8 PROPOSED ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT C17-0280 JCC-1 UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Honorable John C. Coughenour UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE GERALD WILLIAMS, Plaintiff, v. MICHAEL YOUNG, Acting Secretary of the U.S. Department of Agriculture, Defendant. NO. C17-0280 JCC ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [PROPOSED] THIS MATTER, having come before the Court upon Defendant’s Motion for Summary Judgment, the Court having reviewed Defendant’s Motion, and any responses and reply thereto, and the record herein, and being fully advised, IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED, for the reasons set forth in Defendant’s Motion. Judgment is entered in favor of Defendant Michael Young, and all claims against Defendant are dismissed with prejudice. Dated this _____day of _________________, 2017. ______________________ John C. Coughenour United States District Judge Case 2:17-cv-00280-JCC Document 16-1 Filed 05/30/17 Page 1 of 2 PROPOSED ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT C17-0280 JCC-2 UNITED STATES ATTORNEY 1201 PACIFIC AVENUE, SUITE 700 TACOMA, WASHINGTON 98402 (253) 428-3800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Presented by: ANNETTE L. HAYES United States Attorney /s/ Patricia D. Gugin PATRICIA D. GUGIN, WSBA # 43458 Assistant United States Attorney United States Attorney’s Office 1201 Pacific Avenue, Suite 700 Tacoma, Washington 98402 Phone: 253-428-3800 Fax: 253-428-3826 E-mail: pat.gugin@usdoj.gov Case 2:17-cv-00280-JCC Document 16-1 Filed 05/30/17 Page 2 of 2