Alfarag v. DeJoy

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 MAJID ALFARAG, CASE NO. 2:22-cv-1745 11 Plaintiff, ORDER OF DISMISSAL WITH PREJUDICE 12 v. 13 LOUIS DEJOY, Postmaster General, U.S. Postal Service, 14 Defendant. 15

16 18 This matter comes before the Court on Defendant Louis DeJoy’s Motion for Judgement 19 on the Pleadings (Dkt. No. 26) and Motion to Strike All Deadlines and Stay Case (Dkt. No. 35). 20 Having reviewed the Motion, Plaintiff Majid Alfarag’s Opposition (Dkt. No. 32), the Reply (Dkt. 21 No. 33), the Surreply (Dkt. No. 34), and all supporting materials, the Court GRANTS the Motion 22 for Judgement on the Pleadings. Alfarag’s Complaint is DISMISSED WITH PREJUDICE. 23 Accordingly, the Court DENIES as MOOT DeJoy’s Motion to Strike. 24 2 Alfarag was employed by the United States Postal Service (“USPS”) as a mail handler 3 assistant at the Seattle Network Distribution Center from 2017 through April 20, 2018. (Dkt. No. 4 4 at 4–5; see also Declaration of Alixandria Morris (“Morris Decl.”), Dkt. No. 27, Ex. 2 at 8.)

5 Alfarag alleges that throughout his employment, USPS management treated him “differently” 6 and accused him of being “a terro[r]ist, liar and dishonest.” (Dkt. No. 4 at 4.) During his tenure 7 at USPS, Alfarag twice violated policies regarding requesting leave. (See Morris Decl., Ex. 2 at 8 11–15.) After his second such policy violation, Alfarag resigned in lieu of termination on April 9 20, 2018. (Mot. at 3 n.1.) Construing the Complaint in Alfarag’s favor, the Court views Alfarag’s 10 resignation as a termination for purposes of this Order. (Id.) 11 Between June 2018 and May 2022, Alfarag filed five separate EEO complaints regarding 12 his employment, termination, and USPS’s refusal to rehire him for a position. (See Morris Decl. 13 ¶¶ 2–8.) Alfarag’s Complaint appears to rely on only his fourth EEO complaint. (See Dkt. No. 4 14 at 11–15.) The Court takes judicial notice of the additional four EEO complaints and their

15 dispositions as they are matters of public record. See Lacayo v. Donahoe, No. 14-CV-04077, 16 2015 WL 993448, at *9 (N.D. Cal. Mar. 4, 2015) (“In the context of employment discrimination 17 cases specifically, it is well established that courts may consider the administrative record of a 18 plaintiff’s claims before the EEOC as judicially noticeable matters of public record.”). Alfarag’s 19 five complaints are as follow: 20 June 2018: Alfarag first sought EEO pre-complaint counseling on June 8, 2018, 49 days 21 after his termination. (Morris Decl., Ex. 1 at 2.) He then filed a formal EEO complaint on 22 October 30, 2018. (Morris Decl., Ex. 2 at 2.) USPS conducted an investigation which resulted in 23 a 30-page final agency decision issued on May 12, 2020, which dismissed Alfarag’s claims.

24 1 (Morris Decl., Ex. 2 at 2, 31.) The USPS investigator detailed Alfarag’s unhelpfulness during the 2 investigation, finding that Alfarag “failed to provide a completed affidavit in support of the 3 complaint and only partially responded to many of the questions to which he did respond.” (Id. at 4 9.)

5 March 2019: 332 days after his termination—and while his first EEO complaint was 6 pending—Alfarag again sought pre-complaint counseling for the same discriminatory practices 7 he previously alleged. (Morris Decl., Ex. 3, at 1–2.) On July 31, 2019, USPS dismissed Alfarag’s 8 second complaint via final agency decision on the grounds that he did not seek EEO counseling 9 within the required 45 days. (Id. at 6–7.) 10 September 2020: Alfarag’s third EEO complaint alleged that he was subjected to 11 discrimination based on race, national origin, color, sex, and religion when USPS rejected his 12 application for rehire on March 2, 2020. (Morris Decl., Ex. 4 at 2.) In his third EEO complaint, 13 Alfarag alleged that USPS rejected his application on July 19, 2020. (Id.) This allegation appears 14 to be incorrect; USPS found that Alfarag had no employment applications “processed in the

15 July/August 2020 time frame.” (Id. at 1–2.) USPS dismissed the third EEO complaint for failure 16 to initiate contact with an EEO counselor within the 45-day regulatory window. (Id.) Alfarag 17 appealed. (Id. at 3.) On appeal, the Equal Employment Opportunity Commission (“EEOC”) 18 affirmed the dismissal on May 12, 2020. (Id.) 19 November 2021: Alfarag sought pre-complaint counseling for a fourth EEO complaint on 20 November 3, 2021, largely reiterating his previous claims of discrimination from his three 21 previous complaints. (Morris Decl. Ex. 6 at 2–3.) USPS again dismissed the complaint for failure 22 to initiate contact within an EEO counselor within the 45 days of the adverse action. (Id. at 3.) 23 The EEOC affirmed the Agency’s decision on November 14, 2022. (Id. at 4–5.)

24 1 May 2022: On May 16, 2022, Alfarag requested pre-complaint processing for his fifth 2 EEO complaint, again alleging he was subjected to discrimination based on race, color, and 3 religion during his employment at USPS from 2017 to April 2018. (Morris Decl., Ex. 7 at 2.) The 4 USPS again dismissed Alfarag’s complaint because he did not seek EEO counseling within the

5 45 days required the guiding regulations. (Id.) On appeal, the EEOC affirmed the dismissal, 6 concluding that Alfarag’s pre-complaint counseling had been untimely. (Id. at 3.) 7 Alfarag filed this suit on December 12, 2022, renewing his claims found in his fourth 8 EEO complaint. Specifically, he alleges that he was discriminated against because of his race, 9 color, and religion during and after his tenure at USPS. (See Dkt. No. 4 at 4–5.) During his 10 employment, he alleges that he was subjected to a hostile work environment due to his protected 11 status(es). (Id.) He further claims the same discriminatory animus resulted in USPS terminating 12 his employment in April 2018 and alleges that USPS’s refusal to re-hire him in December 2019 13 was not only impermissible racial discrimination, but also violated Title VII’s prohibition on 14 retaliation. (Id.)

15 DeJoy now moves for judgment on the pleadings under Federal Rule of Civil Procedure 16 12(c). (Dkt. No. 26.) DeJoy has also moved to also moved to stay the case and strike all 17 deadlines pending the Court’s ruling on his motion for judgment on the pleadings. (Dkt. No. 35.) 19 A. Legal Standard 20 “After the pleadings are closed—but early enough not to delay trial—a party may move 21 for judgment on the pleadings.” Fed. R. Civ. Pro. 12(c). “A judgment on the pleadings is 22 properly granted when, taking all the allegations in the pleadings as true, the moving party is 23 entitled to judgment as a matter of law.” Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d

24 1 1036, 1042 (9th Cir. 2005) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 2 713 (9th Cir. 2001)). 3 B. Alfarag failed to exhaust his administrative remedies. 4 DeJoy argues Alfarag’s case must be dismissed because he failed to exhaust his

5 administrative remedies for each of his five complaints. The Court agrees. The record is clear 6 that none of Alfarag’s five EEO complaints were brought within the 45-day window required by 7 29 C.F.R. § 1614.105(a)(1). 8 “In order to bring a Title VII claim in federal court, a plaintiff must first exhaust their 9 administrative remedies.” Sommatino v. United States, 255 F.3d 704, 707–08 (9th Cir. 2001) 10 (citing 42 U.S.C. § 2000e–16(c); Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995)). Under 11 the regulatory scheme, the aggrieved employee must first seek EEO counseling within 45 days of 12 the alleged conduct or adverse employment event; only then may the employee submit a formal 13 administrative complaint. Sommatino, 255 F.3d at 707–08 (citing 29 C.F.R. § 1614.105; 29 14 C.F.R. § 1614.106). Failure to seek EEO counseling within 45 days is grounds for dismissal of a

15 Title VII claim. See Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002) (“Although it does 16 not carry the full weight of statutory authority, failure to comply with this regulation has been 17 held to be fatal to a federal employee’s discrimination claim.”). 18 Alfarag did not comply with the requirements of 29 C.F.R. § 1614.105(a)(1) when he 19 filed any of his five EEO complaints between 2018 and 2022. Indeed, “[e]very single EEO 20 counseling Alfarag sought was outside the 45 days required to notify an EEO counselor of the 21 alleged discriminatory conduct.” (Mot. at 8.) This is not in dispute; Alfarag acknowledges his 22 “prior EEO counseling instances occurred outside the 45-day time frame.” (Opp. at 6; see also 23 Reply at 1–2.) Because Alfarag failed to exhaust his administrative remedies, the Court finds that

24 1 his Complaint should be dismissed. And because Alfarag cannot possibly remedy his failure to 2 timely seek EEO counseling, the Court finds it appropriate that its dismissal be made with 3 prejudice. See Int’l Longshore & Warehouse Union v. ICTSI Or., Inc., 863 F.3d 1178, 1187 n.5 4 (9th Cir. 2017), cert. denied, 138 S. Ct. 1262 (2018) (dismissal upheld where complaint cannot

5 be saved by further amendment.) 6 C. Alfarag’s claims are not subject to equitable tolling. 7 Alfarag argues that his claims are subject to equitable tolling because the alleged “hostile 8 work environment and retaliatory actions significantly hindered [his] ability to seek timely 9 counseling.” (Opp at 3.) The Court disagrees. Alfarag was on notice of the 45-day requirement 10 and provides no tangible reason for why his claims warrant equitable tolling. 11 The “time period for filing a[n] [EEO] charge is subject to equitable doctrines such as 12 tolling or estoppel.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). However, 13 such equitable doctrines are “to be applied sparingly,” by the deciding court. Id.; see also 14 Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (per curiam) (cautioning

15 that “[p]rocedural requirements established by Congress for gaining access to the federal courts 16 are not to be disregarded by courts out of a vague sympathy for particular litigants.”). The Ninth 17 Circuit has held that equitable tolling applies when the plaintiff “had neither actual nor 18 constructive notice of the filing period.” Leorna v. U.S. Dep’t of State, 105 F.3d 548, 551 (9th 19 Cir. 1997) (citing Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987)). 20 The record here demonstrates that Alfarag had actual notice of the requirement that he 21 request EEO counseling within the 45-day period required by 29 C.F.R. § 1615.105(a)(1). On 22 July 31, 2019, Alfarag received a dismissal of his second formal EEO complaint, which included 23 explicit notice that his complaint was made 332 days after the alleged discrimination occurred

24 1 and that he was “obligated to request pre-complaint counseling no later than 45 days from the 2 date” of his termination. (Morris Decl., Ex. 3 at 3–4.) The subsequent dismissals also contain 3 clear notice of the 45-day period. (See, e.g., Morris Decl., Ex. 4 at 3; Ex. 6 at 3; Ex. 7 at 3.) 4 Because he had actual notice of the timing requirements, the Court finds that Alfarag’s claims

5 are not subject to equitable tolling. See Lake-Seibert v. Brennan, No. C15-925RAJ, 2016 WL 6 410130, at *3 (W.D. Wash. Feb. 2, 2016) (plaintiff’s claims were not subject to equitable tolling 7 because a poster displaying applicable EEO guidelines provided notice of the 45-day deadline). 8 Additionally, the Court notes that Alfarag does not provide any evidence as to why his 9 situation warrants setting aside the 45-day requirement. Instead, he relies on a purported “inten[t] 10 to submit supplemental evidence and affidavits detailing the obstacles faced during the relevant 11 period,” claiming that this evidence will “provide the necessary factual basis to substantiate [his] 12 claim of USPS’s role in impeding timely action.” (Dkt. No. 34 at 1.) But the time for Alfarag to 13 provide this evidence was when he filed his opposition to DeJoy’s motion for judgement on the 14 pleadings. On this record, the Court declines to apply equitable tolling to Alfarag’s claims.

16 Alfarag admits that he failed to seek EEO counseling within 45 days of the 17 discriminatory conduct, termination, or failure to rehire that form the basis of his suit. By failing 18 to do so, he did not exhaust his administrative remedies prior to bringing his Title VII claim. 19 Alfarag provides no basis for the Court to find that his claims are subject to equitable tolling. The 20 Court therefore GRANTS DeJoy’s Motion for Judgment on the Pleadings. Alfarag’s claims are 21 hereby DISMISSED WITH PREJUDICE. Accordingly, the Court DENIES DeJoy’s Motion to 22 Stay Case and Strike Deadlines as MOOT. 23 The clerk is ordered to provide copies of this order to all counsel.

24 1 Dated August 27, 2024. A 2 3 Marsha J. Pechman United States Senior District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24