Jimenez v. Duffy

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10 ----oo0oo----

11

12 MARK JIMENEZ, No. 2:24-cv-02158 WBS SCR

13 Plaintiff,

14 v. ORDER RE: MOTION TO DISMISS

15 SEAN DUFFY, SECRETARY OF

TRANSPORTATION,1

16

Defendant.

17

18 ----oo0oo----

19 Plaintiff Mark Jimenez alleges the Secretary of

20 Transportation violated Title VII of the Civil Rights Act of

21 1964, 42 U.S.C. § 2000e et seq., in terminating him from his

22 employment with the Department of Transportation (“Department”).

23 (Compl. (Docket No. 1).) Plaintiff filed this action following

24 the unsuccessful appeal of his termination to the Merit Systems

25 Protection Board (“Board”).

26

27 1 Pursuant to Federal Rule of Civil Procedure 25(d),

Secretary of Transportation Sean Duffy has been substituted for

28 former Secretary of Transportation Pete Buttigieg.

1 In January 2018, plaintiff was informed that he had

2 been selected for a temporary promotion at the Department. (Id.

3 ¶ 7.) In March 2018, plaintiff learned that a different

4 candidate had been given his position, and plaintiff ultimately

5 did not receive a temporary promotion. (Id.) Plaintiff lodged a

6 complaint of unlawful discrimination in July 2018, alleging that

7 he was not selected for the position on the basis of his Hispanic

8 descent. (Id. ¶ 11.) Plaintiff participated in a mediation

9 concerning his allegation of discrimination with the Office of

10 Civil Rights on October 3, 2018. (Id.)

11 In August 2018, the Department issued a notice

12 proposing to remove plaintiff from his position based on charges

13 that he falsified documents. (See Board Order (Docket No. 1 at

14 7-30) at 2.) Plaintiff was terminated from his employment on

15 October 10, 2018, after several of the falsified document charges

16 were sustained following an investigation. (See Compl. ¶ 12;

17 Board Order at 4.) Plaintiff appealed his termination to the

18 Board, which upheld his removal. (See Board Order at 17.)

19 A discrimination action following an adverse decision

20 from the Board must be filed in the district court “within 30

21 days after the date the individual filing the case received

22 notice of the judicially reviewable action.” 5 U.S.C. §

23 7703(b)(2); Kloeckner v. Solis, 568 U.S. 41, 53 (2012).

24 Accordingly, the Board’s decision advised plaintiff that if he

25 wanted to pursue a discrimination claim, he was required to file

26 an action in the U.S. district court within 30 calendar days of

27 either the day plaintiff received the decision or the date his

28 representative received the decision, whichever came first. (See

1 Board Order at 19.)

2 The regulations governing the procedures for filing a

3 discrimination action following a Board decision indicate that a

4 party is presumed to have received a document via mail five days

5 from the date of mailing. See 5 C.F.R. §§ 1201.22(b)(3),

6 1201.23(a), 1201.152.

7 The Board mailed its decision to plaintiff on July 3,

8 2024. (See Docket No. 1 at 6, 29.) According to the Notice

9 attached as an exhibit to plaintiff’s complaint, the Board also

10 sent the decision to plaintiff’s representative on that date, but

11 the mailing was returned to sender because plaintiff’s counsel

12 had failed to update his mailing address. (See id. at 6.) The

13 Board contacted plaintiff’s counsel on July 22, 2024 to request a

14 current mailing address, and the decision was mailed to counsel’s

15 correct address that same day. (See id.)

16 Plaintiff has not provided any evidence showing that he

17 did not receive the decision, that he received it more than five

18 days following the date of mailing, or that he received it after

19 his counsel did. See Payan v. Aramark Mgmt. Servs. Ltd. P’ship,

20 495 F.3d 1119, 1126 (9th Cir. 2007) (“to rebut a mailing

21 presumption, the plaintiff must show that [he] did not receive

22 the [agency’s] right-to-sue letter in the ordinary course”);

23 Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984)

24 (for purposes of the 30-day filing requirement under § 7703(b),

25 “the date of receipt by petitioner’s counsel is irrelevant where

26 petitioner himself actually received notice”). When questioned

27 at oral argument, plaintiff’s counsel did not offer to provide

28 any evidence to that effect.

ne nnn en ee on nn en ne nn nn nn nn ON SN

1 Plaintiff therefore had 35 days from the July 3, 2024

2 date of mailing -- the 30-day time for filing plus five days for

3 | mailing -- in which to file his complaint in the district court,

4 | placing the filing deadline at August 7, 2024. See 5 U.S.C. §

5 | 7703 (b) (2); 5 C.F.R. §§ 1201.22 (3), 1201.23(a). Plaintiff did

6 not file this action within the allotted time, as his complaint

7 was docketed on August 8, 2024, (See Compl.) Accordingly, his

8 complaint is untimely.

9 The statute of limitations under § 7703(b) (2) is

10 subject to equitable tolling. See Washington v. Garrett, 10 F.3d

11 1421, 1437 (9th Cir. 1993); Robinson v. Dep’t of Homeland Sec.

12 Off. of Inspector Gen., 71 F.4th 51, 55 (D.C. Cir. 2023).

13 However, plaintiff does not raise any argument on the issue, and

14 there is no information before the court suggesting that

15 “extraordinary circumstances . . . prevented timely filing” such

16 that equitable tolling is appropriate. See Holland v. Florida,

17 560 U.S. 631, 649 (2010).

18 For the foregoing reasons, plaintiff’s complaint must

19 | be “dismiss[ed] as time-barred.” See Washington, 10 F.3d at 1437

20 (failure to timely file action in district court within thirty

21 days prescribed by § 7703(b) (2) warrants dismissal).

22 IT IS THEREFORE ORDERED that defendant’s motion to

23 dismiss (Docket No. 6) be, and the same hereby is, GRANTED. The

24 Clerk of Court is directed to close the case.

25 | Dated: March 17, 2025 tleom ah. A. be—~

26 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

27

28