Harris v. Haaland

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-14164-CIV-ROSENBERG/MAYNARD

DELTA DANIELLE HARRIS,

Plaintiff,

v.

DEB HAALAND, Secretary

United States Department of the Interior,

Defendant.

_____________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before me upon Defendant’s Motion to Dismiss Plaintiff’s Complaint

(“Motion to Dismiss”). DE 18. The District Court has referred this case to me for all non-

dispositive matters and for a Report and Recommendation for any dispositive issues pursuant to

28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida.

DE 7. I have reviewed the Motion to Dismiss, the Response (DE 19), the Reply (DE 20) and the

record. Being otherwise duly advised, I respectfully RECOMMEND that the Motion to Dismiss

be GRANTED for the reasons stated below.

Plaintiff filed her complaint on April 12, 20211 alleging that she “was harassed,

discriminated against, and subjected to a hostile work environment based on disability . . . reprisal

. . ., prior sexual harassment complaint—ongoing EEO activity, and disparate treatment.”2 DE 1

1 Plaintiff dated the complaint as having been signed on March 31, 2021; however, the Clerk of

Court stamped it as filed on April 12, 2021. DE 1 at 1, 5.

2 Plaintiff’s charges of hostile work environment, sexual harrassment and failure to accommodate

are also the subject of another lawsuit in this District, Case No. 20cv14195 (“Related Case”).

Defendant has filed a motion to dismiss in the Related Case on grounds that Plaintiff seeks an

untimely appeal of the Merit Systems Protection Board’s decision that was stated to become final

on December 23, 2019, which decision informed Plaintiff that appeals of cases of discrimination

at 6. Plaintiff brought her action “pursuant to . . . “[the] Civil Rights Act of 1964, Title VII” and

“42 U.S.C. §§ 12112 to 12117, Americans with Disabilities Act of 1990” (the “ADA”).”3 Id. at

3.

On July 30, 2021, Defendant filed the instant Motion to Dismiss. DE 18. Defendant moves

for dismissal on grounds that Plaintiff’s suit is untimely. Id. at 2-3. Specifically, Defendant argues

that Plaintiff failed to file her civil action in federal court “within the ninety-day time period

mandated by Title VII[,]” which procedure is likewise to be followed for claims under the

Rehabilitation Act. Id. at 3 (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148-52

(1984) (affirming district court’s finding that plaintiff “forfeited her right to pursue her claim under

Title VII of the Civil Rights Act of 1964 because of her failure to file a complaint . . . within 90

days of her receipt of the right-to-sue letter”); 29 C.F.R. § 1614.407).

Here, Plaintiff’s complaint confirms that her suit is untimely. Plaintiff attached to her

complaint a copy of a Final Order of the United States Department of the Interior dated November

16, 2020, stating that “[t]he U.S. Department of the Interior is fully implementing the [Equal

Employment Opportunity Commission’s (“EEOC’s”)] Order.” DE 1 at 10, 12. The Final Order

provided a statement of notice and rights to appeal (“Notice”). DE 1 at 10-12. The Notice

informed Plaintiff, in relevant part, that

must be filed in the appropriate U.S. District Court within a thirty (30) day timeframe. Compl. at

12, 38, 43, Harris v. Haaland, No. 20-14195-CIV-RLR (S.D. Fla. Jun. 18, 2020), ECF No. 1.

3 The ADA does not apply to the federal government. Therefore, I construe Plaintiff’s ADA

allegations as claims under the Rehabilitation Act. Moseley v. Lynch, No. 17-15494-GG, 2018

WL 5822068, at *1 (11th Cir. Oct. 30, 2018) (noting that “because the ADA does not apply to

employment by the federal government or its agencies, the District Court construed [plaintiff]’s

claims as being raised under the Rehabilitation Act, which governs claims of discrimination by a

federal agency on the basis of disability”). Furthermore, as Defendant observes, Plaintiff also

raises claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et. seq. DE 18 at 2.

The Appellant . . . has the right to file a civil action in an appropriate United States

District Court. If the Appellant decides to file a civil action, the Appellant must

file:

• Within ninety (90) calendar-days of receipt of the Final Decision, if no

appeal has been filed.

Id. at 11-12. See also 42 U.S.C. § 2000e-16(c) (“Within 90 days of receipt of notice of final action

taken by a[n] . . . agency . . . on a complaint of discrimination based on race, color, religion, sex

or national origin . . . an employee . . . may file a civil action . . ..”).

Because the final agency decision (“Decision”) in the instant case was issued on November

16, 2020, Plaintiff had ninety (90) days, or until February 14, 2021, to file suit in federal court.

Plaintiff, however, did not file suit until April 12, 2021. DE 1. Plaintiff does not deny the fact the

complaint was untimely. DE 19 at 1. Rather, Plaintiff attests that the United States Postal Service

failed to deliver the complaint to the court “by February 8, 2021.” Id. Therefore, Plaintiff states

that she “resent the original Complaint . . . which was docketed after the 90 day deadline.” Id. at

2. Plaintiff’s claim that she mailed her “original complaint” before the due date and the post office

failed to deliver it on time does not make sense, however, since the complaint that was filed says

it was signed on March 31, 2021. If she “resent the original complaint” as claimed, it would not

be dated March 31, 2021. See DE 1 at 5, 36, 40. Therefore, I conclude that Plaintiff did not file

her complaint within the required timeframe, nor does she provide any reason why good cause

exists to excuse her untimeliness. See Williams v. Georgia Dep’t of Def. Nat. Guard

Headquarters, 147 F. App’x 134, 136 (11th Cir. 2005) (affirming dismissal of complaint where

plaintiff neither filed his complaint within the required 90-day period nor met his burden to

demonstrate entitlement to equitable tolling).

Furthermore, Plaintiff’s argument that Defendant was untimely in issuing the Decision is

of no moment. DE 19 at 2-3. Plaintiff contends that the Decision was issued two months late

because it should have been issued forty days after the EEOC’s final decision on August 7, 2020.

Id. In other words, Plaintiff contends that the Decision should have issued on September 16, 2021

rather than on November 16, 2021. Id. As Defendant correctly argues, however, agencies were

allowed to delay taking final action on decisions during the pandemic. DE 20 at 2. Indeed, the

EEOC’s final decision attached to Plaintiff’s complaint included a notice regarding the tolling of

timeframes during the pandemic.4 DE 1 at 20-21. Moreover, even if the Decision was issued late,

that fact would not change the requirement for Plaintiff to file suit within 90 days. Thus, I do not

find Plaintiff’s arguments persuasive. As such, for the reasons stated above, I find that Plaintiff’s

complaint is time-barred.

Accordingly, I RECOMMEND that Defendant’s Motion to Dismiss (DE 18) be

GRANTED.

The parties shall have fourteen (14) days from the date of being served with a copy of this

Report and Recommendation within which to file written objections, if any, with U.S. District

Judge Robin L. Rosenberg. Failure to file objections timely shall bar the parties from a de novo

determination by the District Judge of an issue covered in the Report and Recommendation and

shall bar the parties from attacking on appeal unobjected-to-factual and legal conclusions

contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn., 474

U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. 4. 3-1

(2016). Conversely, if a party does not intend to object to this Report and Recommendation, then

4 The notice provision states: “Agencies are advised to refer to the April 6, 2020 memo issued by

Carlton Hadden to the Federal Sector EEO Directors and officials at

http://www.eeoc.gov/processing-information-all-parties-federal-eeo-processing-under-29-cfr-

part-1614 for information and directives regarding the tolling of timeframes during the pandemic.

EEOC will not sanction an agency that holds off on taking final actions pursuant to the directives

of the memo.” DE 1 at 20-21.

that party shall file a Notice of such within five (5) days of the date of this Report and

Recommendation.

DONE AND SUBMITTED in Chambers at Fort Pierce, Florida, this 25th day of October,

2021.

Seondae VN ouyod

SHANIEK M. MAYNARD

UNITED STATES MAGISTRATE JUDGE