Navarro v. Immigration and Customs Enforcement

oo FILED 5 □□ NOV 05 2019 CLERK, U.S. DISTRICT 3 SOUTHERN DIStiic! OF CALIFORNIA . □ ee 4 □□□ [5] 6 , : [7] 9 UNITED STATES DISTRICT COURT. □ 10 SOUTHERN DISTRICT OF CALIFORNIA i LETICIA NAVARRO, . | . Case No.: 3:1 8-cv-2908-BEN-NLS 12 Plaintifé, | ORDER GRANTING DEFENDANT’S MOTION TO 13. _Y. DISMISS PLAINTIFF’S 14 || KEVINMCALEENAN, ACTING ‘Doc. 31]. COMPLAINT 15 || SECRETARY, UNITED STATES ° DEPARTMENT OF HOMELAND 16 || SECURITY, 17 . Defendant. = [18] 19 . ae Defendant Kevin McAleenan, Acting Secretary of the United States Department of [20] Homeland Security, moves to dismiss Plaintiff Leticia Navarro’s Amended Complaint [21] -\lunder Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for her failure to name him [22] as the proper defendant within the applicable statute of limitations period. For the 23 . following reasons, the motion to dismiss is GRANTED. [26] 27 || [28] 1 I. BACKGROUND! _ 2 Plaintiff Leticia Navarro is a Hispanic woman who works as a Group Supervisor 3 |/(GS-14) for Immigration and Customs Enforcement (“ICE”). On May 15, 2012, ICE 4 ||announced a “Merit Promotion Opportunity” for a GS-15 position. Plaintiff applied for 5 ||the position and was one of seven individuals interviewed. One of Plaintiff's supervisors 6 || was the “Selecting Official” for the position and appointed a three-person panel to rank _7 assess the applicants. The panelists ranked Plaintiff fifth, lower than the Hispanic male 8 {lapplicant. After the official for the open position retired, Plaintiff was removed from her 9 || position as acting supervisor of her department. . So 10 Plaintiff claims she was not selected for the promotion because of her national origin 11 |land sex. She further alleges that two members of the selection panel discriminated against 12 because they were aware of her past EEO complaints against the Agency. Following 13 |}an Administrative Judge’s denial of Plaintiffs claims, Plaintiff appealed to the Equal 14 ||Employment Opportunity Commission (“EEOC”). On October 18, 2018, the EEOC 15 affirmed the Administrative Judge’s decision, finding that Plaintiff did not establish her 16. qualifications were “plainly superior to those of the selectee” and that there was no 17 || evidence showing “prior EEO activity or lack thereof of the candidates played any □□□□ in 18 final determination.” Ex. A to Complaint at 5-6. 19 On December 29, 2018, Plaintiff filed the present lawsuit against ICE and her two 20 supervisors. Doc. 1. On May 13, 2019, the Court dismissed Plaintiff's Complaint because 21 failed to state a claim, did not name the proper defendant, and did not properly serve 22 ||her Complaint. Doc. 23. The Court’s dismissal order cautioned that should Plaintiff “‘re23 her lawsuit, [she] ‘would do well to heed our Ninth Circuit jurisprudence on the [24] 25 |_-@-----—_--—— 26 ! On a motion to dismiss, the Court accepts as true the factual allegations set forth in 27 ||the Complaint and reasonably construes the pleadings in the light most favorable to the 28 pone party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th ir. 2008). 1 parameters within which an individual may sue the federal government under Title VII.” 2. ||Id. at 6. In addition, the Court expressly declined to decide whether Plaintiff's lawsuit was 3 barred by the applicable statute of limitations, finding the issue premature because it had 4 been fully briefed by the parties. Jd. at 2, n.3. 5 On May 20, 2019, Plaintiff filed a First Amended Complaint against “James M. 6 ||Murray, Secretary, United States Department of Homeland Security.”* Doc. 24. On May 7 2019, Plaintiff filed a Second Amended Complaint against “Kevin M. McAleenan, 8 || Acting Secretary of the Department of Homeland Security,” instead. Doc. 26. The next 9 || day, Plaintiff withdrew both her First and Second Amended Complaints and replaced them 10 || with an “Amended Complaint,” Doc. 29. Docs. 27-28. In her Amended Complaint, 11 || Plaintiff brings claims for discrimination and retaliation under Title VII against Kevin M. 12 ||McAleenan. □ 13 Il. DISCUSSION □ Kevin McAleenan, Acting Secretary of the Department of Homeland Security (“the 15 ||Secretary”), moves to dismiss Plaintiffs Amended Complaint, arguing that Plaintiffs 16 || failure to timely name him as the proper defendant bars her action as a matter of law. The 17 || Court agrees: the Amended Complaint is untimely and cannot be saved under Rule 15(c)’s 18 relation back doctrine or by equitable tolling. 19 A. Timeliness _ : 20° Under 42 U.S.C. § 2000e-5(f}(1), a claimant challenging an EEOC dismissal has 90 21 || days to bring her civil action in district court.2 “The requirement for filing a Title VII civil oe [23] 54 * The Court notes that Mr. Murray is the Director of the United States Secret Service, not the Secretary of the DHS. See www.secretservice.zov/about/leadership. 25 3 The EEOC is also required to notify the claimant of the dismissal and that the claimant has 90 days from receipt of its letter to file a civil action. See 42 U.S.C. § 2000e5(MC1) (1988). The parties do not dispute the EEOC’s compliance with that requirement. 27 || Indeed, Plaintiff's right-to-sue letter attached to her Complaint, Exhibit A, reflects that the 58 EEOC informed Plaintiff of that information. See Ex. A at p. 7 (“You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar 1 |/ action within 90 days from the date the EEOC dismisses a claim constitutes a statute of 2 limitations.” Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir. 1992). Accordingly, 3 [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 5 October 18, 2018 EEOC letter—to file a complaint naming the Secretary as the proper 6 ||defendant.* See Doc. 31-1 at 5:1; Doc. 33-at 6:18. Although Plaintiff's initial Complaint 7 || was filed within the 90-day statute of limitations on December 29, 2018, it was dismissed 8 |/in part because it failed to name the proper defendant; rather, it improperly named the 9 ||agency, itself, and two supervisory employees. See Doc. 23. Plaintiff then filed a First 10 || Amended Complaint on May 20, 2019, again naming the wrong defendant—this time, the - 11 || Director of the United States Secret Service. Finally, on May 21, 2019, Plaintiff filed a 12 ||Second Amended Complaint properly naming as defendant the Acting Secretary of the 13 || Department of Homeland Security. 14 Unfortunately for Plaintiff, her May 21, 2019 Amended Complaint falls well outside 15 the 90-day statute of limitations, and thus, it is barred. See Mahoney v. U.S. Postal 16 || Service, 884 F.2d 1194, 1196 (9th Cir. 1989) (“Failure to name the proper defendant within 17 ||the limitations period deprives the district court of jurisdiction over the matter.”). In [18] 19 || oaOoOn— 20 days from the date that you receive this decision. .. . [Yjou must name as the defendant in 21 complaint the person who is the official Agency head or department head, identifying 79 that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court.”) (emphasis in original). _ □ 23 4 The Court addressed the proper defendant requirement in its prior order of dismissal, explaining: 25 - Ina Title VII action, the proper defendant is the head of the department, 6 agency, or unit, as appropriate.” Sommartino v. United States, 255 F.3d 2 704, 707, n. 1 (9th Cir. 2001). Put another way, the “agency itself is 27 not a proper defendant.” Parker v. Shinseki, 2013 WL 12202711 , at *6 g (C.D. Cal. Sep. 17, 2013)... . 2 Doc. 23 at 5. . 1 || Mahoney, the Ninth Circuit affirmed the district court’s dismissal under a similar set of 2 |\facts. There, the pro se plaintiff timely filed a Title VII lawsuit against the United States 3 |i Postal Service but failed to name the correct defendant, the Postmaster General. Mahoney 4 || later amended her complaint to name the Postmaster General, but she did so after the statute 5 limitations period had expired. The Ninth Circuit affirmed the district court’s dismissal 6 Mahoney’s complaint for lack of jurisdiction, holding that, although the original 7 complaint was timely filed, Mahoney’s claims were barred because she did not attempt to 8 the Postmaster General until “well after the limitations period had run.” Jd. at 1197. 9 As in Mahoney, Plaintiff did not name the proper defendant until well after the 9010 limitations period had run. See id. Thus, the Court must dismiss her Amended 11 Complaint, unless she can establish either: (1) that her Amended Complaint relates back to 12 original December 29, 2018 Complaint under Federal Rule of Civil Procedure 15(c), 13 or (2) the 90-day statute of limitations should be equitably tolled. As discussed below, 14 || Plaintiff establishes neither. . 15 B. Relation Back 16 |] Rule 15(c)(1\(C) permits an amendment to a pleading to “relate back” to the original 17 ||pleading’s filing date when: 18 the amendment changes the party or the naming of the party against whom a 19 claim is asserted, if Rule 15(c){1)(B) is satisfied and if, within the period □ provided by Rule 4(m) for serving the summons and complaint, the party to 20 be brought in by amendment: | □ (i) received such notice of the action that it will not be prejudiced in _ defending on the merits; and 22 . (i) knew or should have known that the action would have been brought 3 against it, but for a mistake concerning the proper party’s identity. 24 || Fed, R. Civ. P..15(c)(1)(C). Importantly, where “a United States officer or agency is added 25 a defendant by amendment,” Rule 15(c)(1)(C)G) and (ii)’s notice requirements “are 26 || satisfied if, during the stated period, process was delivered or mailed to the United States 27 attorney or the United States attorney’s designee, to the Attorney: General of the United 28 || States, or to the officer or agency.” Fed. R. Civ. P. 15(c)(1)(C){2). “In other words, the . 1 |)agency is considered to have received notice for purposes of relation back even if it was 2 served, so long as at least one of either the U.S. Attorney or Attorney General received 3 ||delivery or mailing of process within 90 days of the original complaint being filed.” 4 || Silbaugh v. Chao, 2018 WL 3769798 , at *2 (W.D. Wash. Aug. 2018). 5 Here, Plaintiff did not serve either the United States Attorney or the Attorney _ 6 || General prior to the statute of limitation’s January 16, 2019 deadline. Likewise, Plaintiff 7 not serve the Secretary within the limitations period, despite delivering a copy of her 8 {| original complaint to a local ICE supervisor on January 9, 2019. See, e.g., Schoo v. United 9 || States Postal Service, 865 F.2d 1259 , 1988 WL 142904, at *2 (4th Cir. 1988) (“a 10 || supervisory employee of a local post office is not such an official” within the meaning of 11 ||Rule 15(c)(2)); see also Dacus v. United States Postal Service, 1987 WL 14368 , at *2 (S.D. 12 June 15, 1987) (“Service on a local post office official is not equivalent to service on 13 Postmaster General.”). Because Plaintiff failed to serve notice on the Secretary within 14 || the 90-day statute of limitations, her Amended Complaint does not relate back under Rule 15 }]15(c)5 oe : 16 C. Equitable Tolling 17 The doctrine of equitable tolling also cannot save Plaintiff's Amended Complaint. 18 || Because the 90-day filing period is a statute of limitations, it is subject to the doctrine of 19 || equitable tolling. Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir. 1992). “Equitable 21 || ee . . 22 5 The Court notes Plaintiff's concession that, in fact, her Amended Complaint does 23 relate back to her original Complaint. Doc, 33 at 3-5. The Court is not persuaded by Plaintiff's unsupported argument that the Court’s order setting a deadline by which she could file an amended complaint somehow trumps the statute of limitations or the need for 25 ||her amended complaint to “relate back” to the original complaint’s timely filing. Indeed, 26 the Court’s order dismissing Plaintiffs original complaint explained that it declined to resolve the timeliness of her complaint because that issue was not “fully briefed.” Doc. 23 27 2, n. 3. Instead, the Court gave Plaintiff an opportunity to amend and explain why she 0g failed to name the proper defendant in her original complaint within the statute of limitations period. Despite that opportunity, Plaintiff has not offered any justification. . 1 |\tolling, however, is only applied ‘sparingly,’ and the court is ‘much less forgiving in 2 ||receiving late filings where the claimant failed to exercise due diligence in preserving his 3 || legal rights.’” Long v. Paulson, 349 Fed. Appx. 145, 146 (9th Cir. 2009) (quoting □□□□□ v. 4 || Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). Plaintiff does not offer any justification 5 her failure to name the proper defendant within the 90-day period, despite being 6 represented by a licensed attorney. Moreover, the Ninth Circuit's precedent is clear that 7 |\“ordinary negligence will not justify equitable tolling.” Spitsyn v. Moore, 345 F.3d 796 , 8 ||800 (9th Cir. 2003), Accordingly, Plaintiff cannot invoke equitable tolling to save her 9 || Amended Complaint. See also, e.g., Long, 349 Fed. Appx. at 147 (affirming district court’s 10 || dismissal of Title VII complaint filed two days after the statute of limitations deadline, as || well as district court’s conclusion that “a garden variety claim of excusable neglect” did 12 warrant equitable tolling).° 13 I. CONCLUSION 14 For the previous reasons, Defendant’s Motion to Dismiss Plaintiff's Amended 15 ||Complaint is GRANTED, and this action is DISMISSED with prejudice. 16 |} ISSO ORDERED. 17 i. 18 || Dated: November Gs , 2019 , ok. [19] 0 HON. RUGER T. B EZ nited States District Judge 21 . □ 22 oo 24 __ □ 25 □ 56 || ® Although Plaintiff suggests Defendant’s motion is a “disguised summary judgment motion,” the Court construes it as a motion to dismiss. See Doc. 33 at 11-12. The issues 27 || before this Court are legal ones and do not require it to weigh evidence or the merits of Plaintiff's factual allegations. Moreover, Plaintiff does not raise any matters outside of the pleadings. .