Steven Aquino v. Alejandro Mayorkas

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2022
• Docket: 20-55783
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN AQUINO, No. 20-55783

Plaintiff-Appellant, D.C. No. 2:18-cv-10489-CJC-SS v.

ALEJANDRO N. MAYORKAS, Secretary, MEMORANDUM* Department of Homeland Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted December 10, 2021* Pasadena, California

Before: BERZON and BEA, Circuit Judges, and BENNETT,** District Judge. Concurrence by Judge BERZON

Appellant Steven Aquino (“Aquino”) appeals the district court’s grant of

summary judgment for Alejandro Mayorkas, Secretary of the Department of

Homeland Security, in his Title VII employment discrimination action. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. jurisdiction pursuant to 28 U.S.C. § 1291 and review a grant of summary judgment

de novo. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). As

Aquino’s claims are untimely, we affirm.

EEOC regulations promulgated pursuant to Title VII require aggrieved parties

to exhaust their administrative remedies prior to bringing an action in federal court.

See Sommatino v. United States, 255 F.3d 704, 707–08 (9th Cir. 2001). “An

aggrieved person must initiate contact with a Counselor within 45 days of the date

of the matter alleged to be discriminatory or, in the case of personnel action, within

45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). “Failure to

comply with this regulation is ‘fatal to a federal employee’s discrimination claim.’”

Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003) (quoting Lyons v.

England, 307 F.3d 1092, 1105 (9th Cir. 2002)). It is undisputed that Aquino first

contacted an EEO Counselor on September 17, 2014—more than six months after

his termination, and well beyond the 45-day deadline prescribed by 29 C.F.R. §

1614.105(a). Accordingly, Aquino’s discrimination claims are untimely.

Aquino contends that his claim did not accrue until August 8, 2014, when he

became aware of facts supporting his claim that his termination was discriminatory.

This argument is unavailing. An employment discrimination claim accrues upon

actual or constructive “awareness of the adverse employment action,” rather than

“when the plaintiff suspects a legal wrong.” Lukovsky v. City & Cnty. of S.F., 535

2 F.3d 1044, 1049–50 (9th Cir. 2008). Aquino was aware of his termination on

February 25, 2014, and his removal was sustained on April 30, 2014. Aquino was

therefore required to contact an EEO counselor no later than June 14, 2014—45 days

after his termination became final. He did not meet this deadline.

Aquino also contends that he is entitled to statutory or equitable tolling for the

same reason. 29 C.F.R. § 1614.105 requires the agency to extend the 45-day deadline

when the aggrieved party can show:

[(1)] that he or she was not notified of the time limits and was not otherwise aware of them, [(2)] that he or she did not know and reasonably should not have . . . known that the discriminatory matter or personnel action occurred, [(3)] that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or [(4)] for other reasons considered sufficient by the agency or the Commission.

29 C.F.R. § 1614.105(a)(2). The 45-day deadline is also subject to equitable tolling,

id. § 1614.604(c), which requires Aquino to establish: “‘(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his

way.’” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted); see also

Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016) (“[T]he

second prong of the equitable tolling test is met only where the circumstances that

3 caused a litigant’s delay are both extraordinary and beyond its control.” (emphasis

in original)).1

Aquino fails to make either showing. It is undisputed that Aquino was aware

of his 45-day deadline to obtain EEO counseling. It is equally obvious that he was

aware of the pertinent “personnel action”—his termination. Moreover, this Court is

not persuaded that Aquino pursued his rights diligently, or that he was delayed by

circumstances beyond his control: The record reflects that he appealed his removal

to the TSA Office of Professional Responsibility Appellate Board, and that he has

always believed his removal to be unfair and unduly harsh. This is not a case where

facts were fraudulently concealed from the plaintiff, or where he was prevented from

contacting an EEO Counselor by the applicable deadline—rather, Aquino was aware

of the process for pursuing his claims further and elected not to do so. These facts

are not sufficient to justify equitable tolling.

AFFIRMED.

1 Aquino cites this Court’s unpublished disposition in Ho v. Brennan for the proposition that the 45-day limit “extends to the point in time when an employee knows or should have known of the comparators’ disparate treatment.” 721 F. App’x 678, 681 (9th Cir. 2018). We decline to rely on Ho, as it is unpublished and nonprecedential. See Ninth Circuit Rule 36-3(a). Moreover, Ho involved a different aspect of the governing regulations. In Ho, the appellant challenged a grievance regarding her limited work status, and was thus required to seek counselling “‘within 45 days of the matter alleged to be discriminatory.’” 721 F. App’x at 679–80 (quoting 29 C.F.R. § 1614.105(a)(1)). As Aquino challenges his termination, a personnel action, he was required to contact an EEO Counselor “within 45 days of the effective date of that action.” 29 C.F.R. § 1614.105(a)(1).

4 Steven Aquino v. Alejandro Mayorkas, FILED No. 20-55783 JAN 3 2022 BERZON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur in the disposition except for the last three sentences of footnote one.

Ho v. Brennan, 721 F. App’x 678, 681 (9th Cir. 2018), is a non-precedential

opinion, and it is therefore unnecessary for us to discuss it further. See Grimm v.

City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020).