1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 HARRIS L. WINNS, Case No. 21-cv-04264-VKD

9 Plaintiff, ORDER GRANTING DEFENDANT'S 10 v. MOTION FOR SUMMARY

JUDGMENT

11 LOUIS DEJOY, Re: Dkt. No. 48 Defendant. 12

13 14 Plaintiff Harris Winns, who is representing himself in this matter, sues Louis DeJoy in his 15 capacity as the Postmaster General of the U.S. Postal Service (“USPS”)1 for alleged employment 16 discrimination and retaliation under Title VII, 42 U.S.C. § 2000e-16. USPS now moves pursuant 17 to Rule 56 for summary judgment. Mr. Winns opposes the motion. Upon consideration of the 18 moving and responding papers, as well as the oral arguments presented, the Court grants USPS’s 19 summary judgment motion.2 20 I. BACKGROUND 21 Unless otherwise indicated, the following material facts are undisputed. 22 A. 2014 Termination and MSPB Appeal 23 Mr. Winns is Black and a Christian (Methodist). Dkt. No. 49 ¶ 3, Ex. B (Dkt. No. 49-2 at 24 ECF 3). He previously was employed by USPS in various non-career3 capacities since 2011, and 25 1 For simplicity, the Court refers to defendant as “USPS.” 26

2 All parties have expressly consented that all proceedings in this matter may be heard and finally 27 adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 4, 16. 1 most recently as a non-career Postal Support Employee Sales and Services/Distribution Associate 2 at the Seven Trees Carrier Station in San Jose, California. Dkt. No. 48 ¶ 3.4 In September 2014, 3 Mr. Winns requested that he not be scheduled to work on Sundays, for religious reasons. Dkt. No. 4 1 ¶ 12; Dkt. No. 47 ¶ 4. Around this time, USPS began Sunday package delivery service for 5 Amazon.com. Mr. Winns’s manager, Rose Dyer Sothdam, says that she told him that due to the 6 anticipated volume of packages on Sundays, all carriers would be required to work on those days. 7 Dkt. No. 47 ¶ 4. Ms. Sothdam further states that she offered to schedule Mr. Winns’s Sunday 8 hours so that he could attend church, but that there was no realistic possibility that he would have 9 been permitted to take every Sunday off. Id.; see also Dkt. No. 48 ¶ 19, Ex. I (Dkt. No. 48-9 at 10 ECF 3). 11 After Mr. Winns did not report for work on two Sundays, USPS designated him Absent 12 from Work without Approved Leave (“AWOL”). Dkt. No. 47 ¶ 5. When Mr. Winns did not 13 report for work on two additional Sundays, USPS issued a Notice of Removal dated October 3, 14 2014, stating that his employment would be terminated effective November 7, 2014 for failure to 15 follow instructions, irregular attendance, and being AWOL. Id. ¶ 5, Ex. A (Dkt. No. 47-1); see 16 also Dkt. No. 1 ¶ 12, Ex. A. Claiming that Mr. Winns refused to obey instructions, used profanity 17 and left during his work shift, USPS subsequently issued a second Notice of Removal dated 18 October 30, 2014, stating that his employment would be terminated, effective November 30, 2014, 19 for unacceptable conduct and failure to follow instructions. Dkt. No. 47 ¶ 5, Ex. B; Dkt. No. 1 20 ¶ 12, Ex. B. 21 In lieu of contacting an equal employment opportunity (“EEO”) counselor and filing a 22 complaint, on December 7, 2014, Mr. Winns filed a mixed case appeal with the Merit Systems 23 Protection Board (“MSPB”) challenging his 2014 termination and alleging discrimination based 24 on his race and religion, as well as retaliation for prior EEO and union activities. Mr. Winns also 25 be scheduled for less than eight hours per service day or less than 40 hours per normal work week. 26 See Dkt. No. 48 ¶ 3.

27 4 Although Mr. Winns objects that USPS submitted no declaration from Cheryl Cavanaugh in 1 alleged harassment and a hostile work environment and claimed that he was denied a promotion. 2 See Winns v. U.S. Postal Serv., No. SF-0752-15-0165-I-1, 2015 WL 2127208, ¶ 2 (M.S.P.B. May 3 7, 2015); see also 29 C.F.R. § 1614.302(b) (providing, in relevant part, that “[a]n aggrieved person 4 may initially file a mixed case complaint with an agency pursuant to this part or an appeal on the 5 same matter with the MSPB pursuant to 5 C.F.R. 1201.151, but not both.”). On January 26, 2015, 6 an MSPB administrative judge dismissed the appeal for lack of jurisdiction on the ground that Mr. 7 Winns did not allege that he completed the one year of continuous service required to establish 8 jurisdiction over his appeal. Winns, 2015 WL 2127208, ¶ 3; see also Dkt. No. 48 ¶ 12, Ex. B 9 (Dkt. No. 48-2 at 1). That decision was upheld by the full Board on May 7, 2015. See Winns, 10 2015 WL 2127208, ¶¶ 5, 6. 11 Mr. Winns filed a petition with the Office of Federal Operations (“OFO”), the appellate 12 arm of the Equal Employment Opportunity Commission (“EEOC”), for review of the MSPB’s 13 May 7, 2015 decision. See Dkt. No. 48 ¶ 12, Ex. B (Dkt. No. 48-2).5 On March 8, 2016, the OFO 14 denied Mr. Winns’s petition and remanded the matter to USPS. Id.; see also Winns (Salvatore B) 15 v. U.S. Postal Serv., No. SF No. SF-0752-15-0165-I-1, 2016 WL 1085154 (E.E.O.C. Mar. 8, 16 2016). Because Mr. Winns initially elected to file an MSPB appeal rather than initiate EEO 17 proceedings, the OFO instructed USPS to notify Mr. Winns “of the right to contact an EEO 18 counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint,” 19 stating that “[t]he date on which [Mr. Winns] filed the appeal with the MSPB shall be deemed the 20 date of the initial contact with the EEO counselor.” Dkt. No. 48, Ex. B (Dkt. No. 48-2 at ECF 3); 21 see also 29 C.F.R. § 1614.302(b) (providing, in relevant part, that “[i]f a person files a mixed case 22 appeal with the MSPB instead of a mixed case complaint and the MSPB dismisses the appeal for 23 jurisdictional reasons, the agency shall promptly notify the individual in writing of the right to 24 5 Mr. Winns also filed an action in this district for review of the MSPB’s dismissal of his case. 25 The Court’s records reflect that his action was dismissed and transferred to the Federal Circuit on October 30, 2015. Mr. Winns appealed the district court’s decision to the Ninth Circuit, but later 26 voluntarily dismissed that appeal on March 18, 2016. See Winns v. Merit Sys. Protection Bd., No. 15-cv-02313-HRL, Dkt. Nos. 50, 59; see also Winns v. Merit Sys. Protection Bd., No. 15-cv- 27 02313-HRL, 2015 WL 6602518 (N.D. Cal. Oct. 30, 2015). On June 11, 2018, the Federal Circuit 1 contact an EEO counselor within 45 days of receipt of this notice and to file an EEO complaint, 2 subject to § 1614.107.”). 3 B. 2015 Reinstatement and Termination 4 Meanwhile, USPS sent Mr. Winns a letter dated March 24, 2015, stating that the October 5 3, 2014 and October 30, 2014 removal notices were rescinded and would be expunged from his 6 personnel file. Dkt. No. 47 ¶ 6, Ex. C (Dkt. No. 47-3). USPS’s legal department says that the 7 March 24, 2015 letter resulted from a review of Mr. Winns’s 2014 removal, in which it was 8 determined that USPS did not seek volunteer substitutes to work on Sundays in place of Mr. 9 Winns, and therefore may not have properly evaluated his request to not work on Sundays. Dkt. 10 No. 50 ¶¶ 3, 4. The letter further advised that USPS would pay Mr. Winns back pay and benefits 11 for the period that he was off work, excluding any dates taken for personal reasons and accounting 12 for any unemployment benefits received during the time period of the removal actions. Dkt. No. 13 47 ¶ 6, Ex. C (Dkt. No. 47-3). To that end, the letter requested that Mr. Winns complete and 14 submit an enclosed PS Form 8038, noting “[i]f you do not timely complete and return the PS Form 15 8038, you will be deemed to have waived your right to collect back pay.” Id. Finally, the letter 16 instructed Mr. Winns to report back to work on March 30, 2015, at which time he would receive 17 his work duties and schedule. Id. The letter also provided contact information if he had any 18 questions about the letter or how to complete the PS Form 8038. Id. 19 Mr. Winns disputes that USPS validly rescinded the October 2014 removal notices and 20 reinstated his employment. He contends that the October 2014 removal notices were not “fully 21 rescinded” because the March 24, 2015 letter did not give certain assurances regarding his 22 employment, including that he would not have to work on Sundays. Dkt. No. 53 at 7-9. In his 23 complaint filed with this Court, Mr. Winns states that “if it was true that the USPS offered him an 24 opportunity to return to work, he would have gleefully done so.” Dkt. No. 1 ¶ 47. However, in 25 his summary judgment opposition, Mr. Winns argues that the March 2015 reinstatement of his 26 employment is invalid because no reasonable person would agree to return to employment at 27 USPS without assurances that, among other things, he would not be required to work on Sundays. 1 clarification about his work schedule. See Dkt. No. 49 ¶ 2, Ex. A (Winns Dep. at 87:1-88:8). 2 Mr. Winns did not respond to the March 24, 2015 letter and did not return to work on 3 March 30, 2015. Dkt. No. 47 ¶ 8. USPS sent Mr. Winns a second letter dated April 2, 2015, 4 stating that he was considered AWOL and noting that he had not been at work since March 30, 5 2015 and failed to provide documentation justifying his continued absence from work. Id. ¶ 9, Ex. 6 D (Dkt. No. 47-4). The letter directed Mr. Winns to contact USPS immediately upon his receipt 7 of the letter and, within five days of his receipt of the letter, to submit acceptable evidence of his 8 inability to report to work. Id. Mr. Winns did not respond to the April 2, 2015 letter. Id. ¶ 12. 9 USPS sent Mr. Winns a third letter dated April 10, 2015, instructing him to report on April 10 14, 2015 for an investigative interview to discuss his AWOL status. Dkt. No. 47 ¶ 13, Ex. F (Dkt. 11 No. 47-6). The letter warned that “[a] failure to attend this investigative interview and/or a failure 12 to immediately return to duty will result in your removal from the Postal [S]ervice.” Id. Mr. 13 Winns did not respond to the April 10, 2015 letter. Nor did he appear for the April 14, 2015 14 investigative interview. Id. ¶ 15. 15 A few weeks later, USPS sent Mr. Winns a Notice of Proposed Removal, dated May 4, 16 2015. Id. ¶ 16, Ex. G (Dkt. No. 47-7). The notice advised that USPS proposed to terminate his 17 employment “no sooner than 30 calendar days from the date of [his] receipt of this notice” based 18 on his AWOL status and failure to comply with the instructions in the March 24, 2015, April 2, 19 2015, and April 10, 2015 letters. Id. The notice informed Mr. Winns that he could review the 20 material USPS relied on to support the reasons for the notice and that he could answer the notice, 21 within 10 calendar days from his receipt of the notice, either in person or in writing, including any 22 affidavits or written material. Id. The notice further advised Mr. Winns that he had 14 days from 23 his receipt of the notice in which to file a grievance concerning the proposed removal. Id. USPS 24 says that Mr. Winns did not ask to review any documents or to set a meeting to challenge the 25 proposed removal. Id. ¶ 17. 26 On July 9, 2015, USPS issued a Letter of Decision to Mr. Winns, advising that his 27 employment would be terminated effective July 15, 2015, due to his continued AWOL status and 1 ¶ 18, Ex. H (Dkt. No. 47-8). The letter stated that USPS believed Mr. Winns did not have the 2 right to appeal the termination decision directly to the MSPB, but that if he believed otherwise, he 3 had 30 days from his receipt of the Letter of Decision to file such an appeal. Id. (Dkt. No. 47-8 at 4 ECF 4). The letter otherwise informed Mr. Winns that if he believed the termination decision was 5 “based on discrimination because of race, sex, religion, color, national origin, age, disability, or 6 genetic information” or “made in retaliation for [his] complaining or opposing discrimination or 7 [his] participation in any process designed to remedy discrimination,” he could challenge the 8 termination by filing a formal complaint with USPS. Id. (Dkt. No. 47-8 at ECF 5). If he chose 9 this option, the letter stated that Mr. Winns “must notify [USPS] of [his] challenge within 45 days 10 of the [July 15, 2015] effective date of this decision by calling [a phone number] and first 11 participate in informal counseling with an EEO counselor.” Id. Mr. Winns did not file an appeal 12 with the MSPB within 30 days or initiate contact with an EEO counselor within 45 days. Id. ¶ 18. 13 As discussed below, the record reflects that Mr. Winns did not contact an EEO counselor about 14 the 2015 termination until about nine months later, on April 4, 2016. 15 C. Subsequent EEO and EEOC Proceedings 16 As discussed above, on March 8, 2016, the OFO remanded Mr. Winns’s then-pending 17 appeal regarding his 2014 denial of religious accommodation and removal actions and instructed 18 USPS to process those claims and to notify Mr. Winns of his right to contact an EEO counselor 19 regarding those claims. Dkt. No. 48 ¶ 12, Ex. B (Dkt. No. 48-2 at ECF 3).6 USPS sent Mr. Winns 20 such a notice dated April 1, 2016. Dkt. No. 48 ¶ 13, Ex. C (Dkt. No. 48-3 at ECF 14). On April 4, 21 2016, Mr. Winns initiated contact with an EEO counselor for the first time since his July 2015 22 termination. Id. (Dkt. No. 48-3 at ECF 2). Records indicate that Mr. Winns complained about the 23 2014 removal actions, alleging “discrimination on the basis of race, religion and retaliation when 24

25 6 Mr. Winns argues that USPS incorrectly contends that he filed an appeal with the EEOC in March 2016, noting that he did not file an appeal with the EEOC until August 2017. See Dkt. No. 26 53-2 ¶¶ 3-4; Dkt. No. 53-4 ¶ 2; Dkt. No. 58 at 2. USPS does not so contend, and Mr. Winns appears to be confusing his December 2014 appeal to the MSPB with his subsequent August 2017 27 appeal to the EEOC. As discussed above, the record reflects that in March 2016, the OFO 1 on October 17, 2014 and prior, Supervisor Christina Balcazar denied him reasonable religious 2 accommodation by not giving him Sundays off.” See id. (Dkt. No. 48-3 at ECF 2-14). Mr. Winns 3 also complained that he subsequently was terminated in July 2015 after he did not report for work. 4 See id. (Dkt. No. 48-3 at ECF 2). 5 Mr. Winns filed a formal EEO complaint on July 9, 2016, alleging discrimination based on 6 race, religion, and retaliation, as well as a hostile work environment. The complaint was based on 7 events leading up to the 2014 removal notices and termination. Dkt. No. 48 ¶ 14, Ex. D (Dkt. No. 8 48-4). 9 On August 25, 2016, USPS issued a “Partial Acceptance/Partial Dismissal of Formal EEO 10 Complaint.” Id. ¶ 15, Ex. E (Dkt. No. 48-5). USPS accepted for investigation Mr. Winns’s claims 11 based on USPS’s 2014 denial of his request for religious accommodation and the 2014 removal 12 actions. Id. (Dkt. No. 48-5 at ECF 2-3). USPS interpreted Mr. Winns’s complaint as also 13 including a claim of discrimination and retaliation based on the July 2015 termination. USPS 14 dismissed that claim as untimely, stating that his request for pre-complaint counseling was made 15 more than 45 days after the effective date of the July 2015 termination. Id. (Dkt. No. 48-5 at ECF 16 3-6). USPS informed Mr. Winns that the dismissal of that claim could not be appealed at that 17 time, but that “[i]f [he] disagree[d] with [USPS]’s reasons for dismissing this issue,” he could 18 “raise [his] objections with the Administrative Judge in the event that [he] request[s] a hearing on 19 [his] complaint[.]” Id. (Dkt. No. 48-5 at ECF 5). If Mr. Winns did not request such a hearing, 20 USPS informed him that “the issue will be decided in [USPS]’s final agency decision on the 21 complaint[.]” Id. 22 Mr. Winns did not request a hearing with an administrative judge. Instead, around May 23 31, 2017 he requested a final agency decision. Dkt. No. 48 ¶¶ 16, 21 Exs. F (Dkt. No. 48-6) & K 24 (Dkt. No. 48-11 at ECF 4); see also 29 C.F.R. §§ 1614.108(f), 1614.110(b). USPS issued its final 25 agency decision on July 6, 2017. Id. ¶ 17, Ex. G (Dkt. No. 48-7). With respect to the claims 26 regarding the 2014 denial of religious accommodation and removal actions, USPS concluded that 27 Mr. Winns did not establish that he was subjected to discrimination or retaliation. Id. (Dkt. No. 1 decision incorporated USPS’s dismissal of that claim as untimely. Id. (Dkt. No. 48-7 at ECF 2). 2 Around July 31, 2017, Mr. Winns submitted an appeal of USPS’s final agency decision, 3 which was received by the EEOC in August 2017. Dkt. No. 48 ¶ 18, Ex. H (Dkt. No. 48-8). In 4 that appeal, Mr. Winns addressed his 2014 claims of discrimination and retaliation. He mentioned 5 USPS’s March 24, 2015 letter rescinding the October 2014 removal notices and reinstating his 6 employment. Id. (Dkt. No. 48-8 at ECF 17, 19). However, he did not challenge the final agency 7 decision dismissing his claim relating to the July 2015 termination. See id., Ex. H (Dkt. No. 48-8); 8 see also Dkt. No. 48 ¶ 21, Ex. K (Dkt. No. 48-11 at ECF 4). 9 1. The EEOC’s February 5, 2019 Decision 10 On February 5, 2019, the EEOC issued its decision on Mr. Winns’s appeal of USPS’s final 11 agency decision. Dkt. No. 48 ¶ 19, Ex. I (Dkt. No 48-9). With respect to the 2014 denial of 12 religious accommodation and removal actions, the EEOC found that Mr. Winns established 13 discrimination and retaliation.7 Id. (Dkt. No. 48-9 at ECF 4-7). The EEOC ordered USPS to take 14 remedial action. Relevant to the discussion below, the EEOC ordered that within 60 days from the 15 date of its decision, USPS must (1) retroactively reinstate Mr. Winns to the position he would 16 have held absent the unlawful discrimination and retaliation; (2) conduct an investigation to 17 determine whether Mr. Winns is entitled to compensatory damages; and (3) determine the 18 appropriate amount of back pay, with interest, and other benefits due to Mr. Winns. As to this last 19 requirement regarding back pay and benefits, the EEOC directed Mr. Winns to “cooperate in 20 [USPS]’s efforts to compute the amount of back pay and benefits due” and to “provide all relevant 21 information requested by [USPS].” Id. (Dkt. No. 48-9 at ECF 8). In the event of a dispute 22 regarding the amount of back pay or benefits, the EEOC ordered USPS to issue a check to Mr. 23 Winns for the amount USPS believes is due, and informed Mr. Winns that he could petition the 24 EEOC for enforcement or clarification of the amount in dispute. Id. USPS was also directed to 25 submit to the EEOC a report of compliance with the ordered remedial relief. Id. (Dkt. No. 48-9 at 26 7 The EEOC did not address the remaining allegations of Mr. Winns’s complaint, noting that a 27 finding on those additional bases would not entitle him to any greater relief. Dkt. No. 48 ¶ 19, Ex. 1 ECF 9). 2 The EEOC further advised Mr. Winns that the February 5, 2019 order was “a decision 3 requiring [USPS] to continue its administrative processing of [his] complaint.” Id. (Dkt. No. 48-9 4 at ECF 11). However, the EEOC noted that if Mr. Winns wished to file a civil action, he had to do 5 so within 90 days from the date of his receipt of the February 5, 2019 decision, or after 180 days 6 from the date he filed his complaint with USPS or filed his appeal to the EEOC. Id. The EEOC 7 further noted that the “[f]iling [of] a civil action will terminate the administrative processing of 8 [Mr. Winns’s] complaint.” Id. 9 2. The EEOC’s March 9, 2021 Enforcement Decision 10 The parties disputed the computation of back pay and benefits due to Mr. Winns. Around 11 December 3, 2019, Mr. Winns submitted a petition for enforcement with the EEOC. Dkt. No. 48 12 ¶ 20, Ex. J (Dkt. No. 48-10). In that petition, he disputed USPS’s contentions that it had reinstated 13 his employment in March 2015 and that the relevant period for back pay was October 25, 2014 14 through March 30, 2015. Id. (Dkt. No. 48-10 at ECF 3); see also id. ¶ 21, Ex. K (Dkt. No. 48-11 15 at ECF 3). Mr. Winns’s petition for enforcement indicates that in August 2019, USPS sent him 16 letters stating that the agency had repeatedly tried to obtain necessary information to process his 17 back pay and benefits, namely completed PS Forms 8038 and 8039. Id. ¶ 20, Ex. J (Dkt. No. 48- 18 10 at ECF 3). His petition does not indicate whether he provided the requested information. 19 On March 8, 2021, the EEOC issued its enforcement decision regarding Mr. Winns’s back 20 pay, benefits, and interest. Dkt. No. 48 ¶ 21, Ex. K (Dkt. No. 48-11). The EEOC noted that long 21 before it issued its February 5, 2019 decision, by letter dated March 24, 2015 USPS rescinded the 22 October 2014 removal notices and instructed Mr. Winns to return to work on March 30, 2015. Id. 23 (Dkt. No. 48-11 at ECF 3). Further noting that Mr. Winns did not challenge the July 2015 24 termination in his appeal of USPS’s July 2017 final agency decision, the EEOC found that the July 25 2015 termination remained effective and had not been overturned. Id. (Dkt. No. 48-11 at ECF 4). 26 In view of these intervening events, the EEOC stated that with respect to its February 5, 2019 27 remedial order, “compliance with the order means reinstating [Mr. Winns] on paper retroactive to 1 up to his third removal on July 15, 2015.” Id. Further, the EEOC stated that USPS was not 2 required “to ignore [Mr. Winns’s] July 15, 2015 removal and offer to return him to work.” Id. 3 With respect to the relevant period for back pay, the EEOC noted that there was 4 insufficient information in the record to determine whether the pay period began on October 22, 5 2014 (the day Mr. Winns claimed was the last day he worked) or October 25, 2022 (the date USPS 6 claims Mr. Winns was last in pay status pending his October 30, 2014 removal). The EEOC 7 directed USPS to supplement the record with documentation relevant to determining the proper 8 start date. Id. However, the EEOC disagreed with Mr. Winns’s contention that he is entitled to 9 back pay until the effective date USPS offers to return him to work (which Mr. Winns claimed had 10 not yet happened). Instead, the EEOC found that the back-pay period runs through March 30, 11 2015, the date USPS claimed Mr. Winns failed to return to work after being reinstated and began 12 his AWOL status. Id. The EEOC further found that USPS had been unable to calculate back pay 13 because Mr. Winns did not comply with the agency’s requests to return back-pay statement forms. 14 Id. (Dkt. No. 48-11 at ECF 5). Finding that the delay in calculating back pay was Mr. Winns’s 15 fault, the EEOC concluded that interest on back pay and benefits stopped accumulating on 16 September 26, 2019. Id. Within 60 days of the EEOC’s enforcement decision, USPS was ordered 17 to (1) amend Mr. Winns’s personnel record to reflect that he was reinstated to the job he would 18 have had but for the October 2014 removals, up through the July 15, 2015 termination; (2) provide 19 Mr. Winns with another opportunity, in writing, to complete the necessary back-pay statement 20 forms; and (3) supplement its back-pay calculations with documentation supporting the date in 21 October 2014 (i.e., October 22, 23, 24, or 25) USPS determined is the start of the back-pay period. 22 Id. 23 The EEOC informed Mr. Winns that if USPS did not comply with the March 8, 2021 24 enforcement order, he could petition the EEOC for enforcement. Id. The EEOC further advised 25 Mr. Winns that he also had the right to file either a civil action to enforce the EEOC’s order or to 26 file a civil action on his underlying complaint for discrimination and retaliation. The EEOC noted 27 that if Mr. Winns chose to file a civil action, he had 90 days from the date he received the 1 processing of [his] complaint.” Id. (Dkt. No. 48-11 at ECF 5, 6). 2 3. The EEOC’s April 15, 2021 Decision 3 Meanwhile, disputes also arose between the parties regarding USPS’s calculation of 4 compensatory damages. The record reflects that in April 2019, USPS determined that Mr. Winns 5 was entitled to $10,000 in non-pecuniary compensatory damages related to the 2014 denial of 6 religious accommodation and removal actions. See Dkt. No. 1 ¶ 57, Ex. D. Mr. Winns appealed 7 that determination to the EEOC, contending that he was entitled to $120,000 in damages. Id. The 8 record also indicates that Mr. Winns told the EEOC that he returned a $10,000 check he received 9 from USPS “due to its overwhelming delinquency[.]” Id. at ECF 36; see also Dkt. No. 48 ¶ 20, 10 Ex. J (Dkt. No. 48-10 at ECF 4). 11 On April 15, 2021, the EEOC issued a decision on Mr. Winns’s appeal, concluding that 12 Mr. Winns was entitled to $30,000 in non-pecuniary compensatory damages, plus $20 for 13 pecuniary damages. Dkt. No. 1 ¶ 57, Ex. D at ECF 35. The EEOC thus ordered USPS to pay Mr. 14 Winns a total of $30,020 within 60 days from the date of its April 15, 2021 decision. Id. at ECF 15 36. The EEOC informed Mr. Winns that if USPS did not comply with the April 15, 2021 order, 16 he could petition the EEOC for enforcement. Id. The EEOC further noted that Mr. Winns also 17 had the right to file either a civil action to enforce the EEOC’s order or to file a civil action on his 18 underlying complaint for discrimination and retaliation. The EEOC noted that if Mr. Winns chose 19 to file a civil action, he had to do so within 90 days from the date of the April 15, 2021 decision 20 (or, alternatively, after 180 days from the date he filed his complaint with USPS or filed his appeal 21 with the EEOC). The EEOC further noted that the “[f]iling [of] a civil action will terminate the 22 administrative processing of [Mr. Winns’s] complaint.” Id. at ECF 37-38. 23 USPS claims that it paid Mr. Winns $30,020 in May 2021. See Dkt. No. 46 at 7 n.1. Mr. 24 Winns has not asserted any argument or submitted any evidence to the contrary. The record 25 before this Court reflects that the EEOC issued a notice to Mr. Winns, dated August 18, 2021, 26 stating that compliance monitoring with respect to compensatory damages had ceased because 27 USPS provided the EEOC with sufficient documentation demonstrating its compliance with the 1 D. Procedural History 2 Mr. Winns filed the present action in this Court on June 4, 2021. His complaint states that 3 this lawsuit is an “‘Independent action’ . . . being brought due to the Plaintiff’s right to file a civil 4 action in District Court within ninety (90) days of the date of the EEOC’s Order.” Dkt. No. 1 at 1. 5 However, Mr. Winns’s pleading is styled as a Rule 59 “Motion to Alter or Amend a Judgment” or 6 “Relief from a Judgment or Order” and expressly seeks “enforcement” of the EEOC’s February 5, 7 2019 remedial order and “relief” from the EEOC’s subsequent March 8, 2021 enforcement order. 8 See Dkt. No. 1 ¶ 52. Additionally, he alleged that USPS did not comply with the EEOC’s April 9 15, 2021 order to pay $30,020 in compensatory damages. See id. ¶¶ 56-59. Mr. Winns does not 10 take issue with the EEOC’s findings that USPS discriminated and retaliated against him with 11 respect to his 2014 request for religious accommodation and the October 2014 removal actions. 12 But he contends that the EEOC should not have credited the USPS’s March 24, 2015 notice 13 rescinding the 2014 removal notices and directing him to return to work. He maintains that he 14 was not actually reinstated by USPS in March 2015, and therefore could not have been terminated 15 in July 2015, and that the 2015 notice of removal and termination are USPS fabrications that 16 constitute unlawful discrimination and retaliation. See, e.g., id. at 2, 4, 6-13. In Mr. Winns’s 17 view, the period for back pay, benefits, and interest properly begins on October 18, 2014, and 18 remains open-ended through the present time. See id. ¶¶ 54, 55. 19 USPS moved pursuant to Rule 12(b)(6) to dismiss Mr. Winns’s complaint, arguing that 20 Mr. Winns’s claim concerning compensatory damages is moot and that his Title VII claim for 21 discrimination based on the July 2015 termination failed because he did not exhaust his 22 administrative remedies.8 Dkt. No. 17. The Court granted USPS’s motion to dismiss with respect 23 to the payment of the $30,020 compensatory damages, in view of undisputed records 24 8 Although USPS’s motion was also brought pursuant to Rule 12(b)(1), the agency acknowledged 25 that the Title VII administrative exhaustion requirement is not jurisdictional in nature. See Dkt. No. 19 at 2 n.1; see also Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1851 (2019) (stating that 26 “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”). Accordingly, the 27 Court construed USPS’s motion to dismiss as one brought solely pursuant to Rule 12(b)(6) for 1 demonstrating that USPS had paid that sum to Mr. Winns. See Dkt. No. 29 at 9. Broadly 2 construing Mr. Winns’s complaint as claiming that the 2015 termination constituted unlawful 3 discrimination and retaliation under Title VII, the Court denied without prejudice USPS’s motion 4 to dismiss that claim, noting the complaint’s allegations disputing Mr. Winns’s receipt of 5 documents concerning that termination. Id. at 8. The denial of USPS’s motion to dismiss the 6 Title VII claim was without prejudice to USPS to renew the issue on a motion for summary 7 judgment. Id. 8 The Court also denied Mr. Winns’s then pending motion for leave to amend his complaint 9 to add claims under the Age Discrimination in Employment Act, 29 U.S.C. § 623, et seq. and for 10 alleged violation of his federal due process rights, as well as several state law claims for relief. 11 See id. at 9-13. Accordingly, the sole remaining claim before the Court is the one brought 12 pursuant to Title VII.9 13 USPS now moves for summary judgment, renewing its argument that Mr. Winns did not 14 timely initiate EEO counseling with respect to the 2015 termination and thus failed to 15 administratively exhaust his Title VII claim. Even assuming that Mr. Winns exhausted his claim, 16 USPS contends that he failed to timely file the present action. USPS maintains that the present 17 action does not, in any event, properly seek enforcement of the underlying administrative 18 proceedings and that Mr. Winns has not presented sufficient evidence establishing a prima facie 19 case for discrimination or retaliation. 20 II. LEGAL STANDARD 21 A motion for summary judgment should be granted if there is no genuine issue of material 22 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial 24

25 9 For the first time in his opposition to USPS’s summary judgment motion, Mr. Winns claims that USPS defamed him. See Dkt. No. 52 at 2-3, 21-22; Dkt. No. 53-9. No such claim appears in the 26 complaint, and Mr. Winns “may not amend [his] complaint through argument in a brief opposing summary judgment . . .” Netbula, LLC v. BindView Dev. Corp., 516 F. Supp. 2d 1137, 1153 n.9 27 (N.D. Cal. 2007); see also Wasco Products, Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th 1 burden of informing the court of the basis for the motion, and identifying portions of the 2 pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the 3 absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In 4 order to meet its burden, “the moving party must either produce evidence negating an essential 5 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 6 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 7 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 8 If the moving party meets its initial burden, the burden shifts to the non-moving party to 9 produce evidence supporting its claims or defenses. See id. at 1102. The non-moving party may 10 not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce 11 admissible evidence that shows there is a genuine issue of material fact for trial. See id. A 12 genuine issue of fact is one that could reasonably be resolved in favor of either party. A dispute is 13 “material” only if it could affect the outcome of the suit under the governing law. Anderson, 477 14 U.S. at 248-49. 15 “When the nonmoving party has the burden of proof at trial, the moving party need only 16 point out ‘that there is an absence of evidence to support the nonmoving party’s case.’” 17 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex Corp., 477 U.S. at 18 325). Once the moving party meets this burden, the nonmoving party may not rest upon mere 19 allegations or denials, but must present evidence sufficient to demonstrate that there is a genuine 20 issue for trial. Id. 21 III. DISCUSSION 22 A. De Novo Civil Action or Enforcement Action 23 The Court first addresses the question whether the present action is a de novo 24 discrimination action against USPS or an action to enforce the EEOC’s ordered remedies. 25 Under Title VII, an individual alleging that a federal agency engaged in employment 26 discrimination must seek administrative adjudication of such claims. See generally 42 U.S.C. 27 § 2000e-16. When an employee or job applicant initiates a complaint with the employing agency, 1 hearing and a decision from an administrative judge, or may, as Mr. Winns did, request an 2 immediate final decision from the agency. 29 C.F.R. §§ 1614.108(f), 1614.110(b). The 3 complainant may appeal the final agency decision to the EEOC, where the OFO issues a decision 4 on the appeal. 29 C.F.R. § 1614.405. “If the OFO issues a decision favorable to the employee, 5 and the agency fails to comply with that decision, the employee can then file a petition for 6 enforcement with the EEOC.” Carver v. Holder, 606 F.3d 690, 696 (9th Cir. 2010) (citing 29 7 C.F.R. § 1614.503(a)). “The OFO must then ascertain whether the agency is in complete 8 compliance with its prior order and issue a decision regarding the adequacy of the agency’s 9 response.” Id. (citing 29 C.F.R. § 1614.503(b)). The OFO’s decision on an appeal generally 10 triggers the right to file a civil action in an appropriate district court. See 29 C.F.R. § 1614.407. 11 Upon conclusion of the administrative process, a complainant who prevails on his claim 12 may follow one of two avenues into federal court. Carver, 606 F.3d at 696. He may file an 13 enforcement action against the agency. In such an action, “the issue is not liability or the remedy, 14 . . . but rather whether the federal employer has complied with the OFO’s remedial order.” Id. 15 (internal quotations and citation omitted). Thus, in an enforcement action the complainant “may 16 not challenge the OFO’s decision regarding either discrimination or what it found to be 17 appropriate remedies.” Id. Alternatively, the complainant may choose to bring a de novo civil 18 action against the agency, in which the parties must relitigate issues of liability (i.e., whether the 19 agency acted in a discriminatory manner) and the remedy for any discriminatory conduct. Id. at 20 696, 697. 21 There is some ambiguity in the record as to what Mr. Winns intended in filing the present 22 action. As noted above, certain allegations in his complaint suggest that the present lawsuit is an 23 “independent action” in which he seeks a de novo determination regarding the 2014 denial of 24 religious accommodation and removal actions and the 2015 termination. See, e.g., Dkt. No. 1 at 1; 25 see also, e.g., id. ¶¶ 43, 44, 58. Nevertheless, the Court cannot fairly construe the complaint as 26 seeking such de novo review. Mr. Winns does not take issue with the EEOC’s findings of 27 discrimination and retaliation based on the 2014 denial of religious accommodation and October 1 Additionally, other allegations of the complaint clearly indicate that Mr. Winns seeks only to 2 enforce certain remedies ordered by the EEOC. See, e.g., id. ¶¶ 20, 45, 49, 52, 54-57, 59, 69. 3 Moreover, the record indicates that USPS complied with the EEOC’s April 15, 2021 order to pay 4 Mr. Winns $30,020 in pecuniary and non-pecuniary compensatory damages. Mr. Winns has 5 offered no evidence to the contrary, or any evidence suggesting that he disputed the $30,020 6 award, or did not accept the $30,020 payment from USPS. See Dkt. No. 1 ¶ 57, Ex. D; Dkt. No. 7 17, Ex. B (Dkt. No. 17-2 at ECF 8). 8 At the same time, however, the Court also cannot conclude that the present lawsuit 9 properly is brought as an enforcement action. Mr. Winns’s request to enforce the EEOC’s April 10 15, 2021 order has been deemed moot. As confirmed by the record presented and by Mr. Winns at 11 the hearing on the present motion, Mr. Winns received payment of the ordered compensatory 12 damages, and there does not appear to be anything further to enforce with respect to the payment 13 of compensatory damages. See Dkt. No. 29 at 9; Dkt. No. 17, Ex. B (Dkt. No. 17-2 at ECF 8); 14 Dkt. Nos. 57, 58 (confirming receipt of compensatory damages). Mr. Winns’s complaint 15 otherwise seeks to enforce only selected portions of the EEOC’s disposition of his claim. 16 Specifically, he wishes to enforce the EEOC’s February 5, 2019 remedial order regarding back 17 pay, benefits and interest, but requests “relief” from the EEOC’s subsequent March 8, 2021 18 enforcement order concerning those same remedies. See Dkt. No. 1 ¶ 52. However, the EEOC’s 19 response to Mr. Winns’s petition for enforcement “is as much a part of the administrative 20 disposition as is the remedial order itself,” and a complainant bringing a civil enforcement action 21 cannot “selectively choose which aspect of the administrative disposition of his claim he wishes to 22 enforce.” Carver, 606 F.3d at 697. Moreover, the EEOC’s February 5, 2019 remedial order 23 directed USPS to “determine the appropriate amount of back pay, with interest, and other benefits 24 due [Mr. Winns]”; directed Mr. Winns to “cooperate in [USPS]’s efforts to compute the amount of 25 back pay and benefits due” and to “provide all relevant information requested by [USPS]”; and 26 seemed to contemplate that further proceedings may be necessary in the event the parties disputed 27 the amount of back pay and benefits due. See Dkt. No. 48 ¶ 19, Ex. I (Dkt. No. 48-9 at ECF 8); 1 failed to state a claim for a certain amount of additional back pay, based on an EEOC order that 2 “plainly envisions that a further process will need to take place to determine what additional sum, 3 if any, if due to [plaintiff].”). In subsequent enforcement proceedings, the EEOC noted that the 4 proper start date of the period for back pay and benefits remained unclear. But, in view of the 5 intervening 2015 reinstatement of Mr. Winns’s employment and subsequent termination, the 6 EEOC stated that its February 5, 2019 remedial order did not require USPS to again offer to return 7 Mr. Winns to work. Further concluding that the delay in the calculation of back pay was Mr. 8 Winns’s fault, the EEOC concluded that the back pay period ended on March 30, 2015 and that 9 interest stopped accumulating on September 26, 2019. Dkt. No. 48 ¶ 21, Ex. K (Dkt. No. 48-11 at 10 ECF 4-5). In sum, based on the EEOC’s administrative disposition as a whole, Mr. Winns has not 11 demonstrated that there is an enforceable order for back pay beginning October 18, 2014 and 12 continuing, open-ended, through the present, as requested in his complaint. See Dkt. No. 1 ¶ 69. 13 Mr. Winns maintains that the EEOC’s March 8, 2021 enforcement order is incorrect. 14 Indeed, the crux of his complaint filed with this Court appears to be that the EEOC erroneously 15 considered USPS’s March 2015 reinstatement of his employment and subsequent July 2015 16 termination as valid bases to further define the scope of his remedies. See, e.g., Dkt. No. 1 ¶¶ 34, 17 35. He contends that the 2015 reinstatement and July 2015 termination of his employment were, 18 in themselves, unlawful discriminatory conduct concocted by USPS to reduce the damages owed 19 as a result of the 2014 denial of religious accommodation and October 2014 removal actions. See, 20 e.g., id. ¶¶ 44, 45. As noted above, the Court broadly construed these allegations as asserting an 21 independent claim under Title VII based on the 2015 termination. See Dkt. No. 29 at 7. USPS 22 contends that Mr. Winns’s claim fails for failure to exhaust his administrative remedies and to 23 timely file the present lawsuit. The Court now turns to those arguments below. 24 B. Title VII Administrative Exhaustion Requirement 25 As discussed above, there is no genuine dispute that Mr. Winns first contacted an EEO 26 counselor on April 4, 2016, about 9 months after the effective date of the July 2015 termination 27 and well beyond the 45-day deadline under 29 C.F.R. § 1614.105. See Dkt. No. 48 ¶ 13, Ex. C 1 that Mr. Winns did not timely initiate contact with an EEO counselor regarding the 2015 2 termination and thus failed to exhaust his administrative remedies. 3 To bring a claim under Title VII, Mr. Winns must exhaust his administrative remedies. 4 See 42 U.S.C. § 2000e-16(c); Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001). As 5 noted above, while Title VII’s claim-processing rules are non-jurisdictional, they are mandatory. 6 Fort Bend, 139 S. Ct. at 1851. Complainants claiming discrimination by a government agency 7 “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be 8 discriminatory or, in the case of personnel action, within 45 days of the effective date of the 9 action.” 29 C.F.R. § 1614.105(a)(1). “Although it does not carry the full weight of statutory 10 authority, failure to comply with this regulation has been held to be fatal to a federal employee’s 11 discrimination claim.” Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002). “This deadline 12 constitutes an administrative requirement that, like a statute of limitations, is subject to waiver, 13 estoppel, and equitable tolling.” Id. at 1105 n.5 (internal quotations and citation omitted); see also 14 29 C.F.R. § 1614.105(a)(2) (“The agency or the Commission shall extend the 45-day time limit in 15 paragraph (a)(1) of this section when the individual shows that he or she was not notified of the 16 time limits and was not otherwise aware of them, that he or she did not know and reasonably 17 should not have been known that the discriminatory matter or personnel action occurred, that 18 despite due diligence he or she was prevented by circumstances beyond his or her control from 19 contacting the counselor within the time limits, or for other reasons considered sufficient by the 20 agency or the Commission.”). “Whether a plaintiff in a Title VII action has timely exhausted h[is] 21 administrative remedies is an affirmative defense” and “the defendant bears the burden of pleading 22 and proving it.” Kraus v. Presidio Tr. Facilities Div., 572 F.3d 1039, 1046 n.7 (9th Cir. 2009) 23 (internal quotation and citation omitted). 24 The Court previously denied USPS’s motion to dismiss Mr. Winns’s Title VII claim in 25 view of his complaint’s allegations disputing that he received the 2015 notices and termination 26 letter—an apparent fact dispute that could not properly be resolved at that stage of the litigation. 27 See Dkt. No. 29 at 8; see also Dkt. No. 1 ¶¶ 34, 35, 39, 46, 65. 1 notices and letters regarding his reinstatement and termination. See Dkt. No. 49 ¶¶ 2, 3, Ex. A 2 (Winns Dep. at 82:19-83:13; 85:22-86:7; 88:20-89:21; 93:13-24; 95:18-98:1; 98:10-99:5) & Ex. B 3 (Dkt. No. 49-2 at ECF 4). It remains unclear exactly when Mr. Winns received the documents. 4 He testified in deposition that he does not remember the dates he received them, although USPS’s 5 evidence indicates that he received some documents contemporaneously with the date they were 6 issued. See id. In any event, Mr. Winns no longer disputes that he received the documents, 7 explaining that due to the passage of time, he simply forgot that he had received them. See Dkt. 8 No. 52 at 13. Nor does he offer any argument or evidence creating a triable issue whether he 9 timely initiated contact with an EEO counselor within 45 days from his notice of any of the 2015 10 events he claims constitutes discriminatory or retaliatory conduct, including the July 15, 2015 11 termination of his employment. Instead, Mr. Winns offers several arguments why he was not 12 required to comply the Title VII’s 45-day presentment requirement or that his time to do so was 13 tolled. 14 Mr. Winns appears to contend that he is entitled to equitable tolling based on the fact that 15 he filed a mixed-case appeal with the MSPB regarding the 2014 denial of religious 16 accommodation and removal actions. Dkt. No. 52 at 10-11. As discussed above, the unrefuted 17 evidence in the record demonstrates that the MSPB upheld the dismissal of Mr. Winns’s appeal on 18 May 7, 2015. And on March 8, 2016, the EEOC denied Mr. Winns’s petition for review of the 19 MSPB’s dismissal decision and remanded the matter to USPS. See Winns, 2015 WL 2127208, 20 ¶¶ 3, 5, 6; Winns (Salvatore B), 2016 WL 1085154 at *1; see also Dkt. No. 48 ¶ 12, Ex. B (Dkt. 21 No. 48-2 at 1). Mr. Winns appears to argue that because he could either file an appeal with the 22 MSPB or file an EEO complaint (but not both) with respect to the 2014 denial of religious 23 accommodation and removal actions, he was excused from initiating the EEO process with regard 24 to the 2015 termination until after his MSPB appeal was remanded to USPS in March 2016. Dkt. 25 No. 52 at 10-11; see also 29 C.F.R. § 1614.302(b). However, Mr. Winns’s MSPB appeal 26 concerned only the 2014 denial of religious accommodation and removal actions. While the 27 requirement to contact an EEO counselor with regard to those claims was tolled, see 29 C.F.R. 1 in the discrete, separate 2015 adverse termination action. See Blackman-Baham v. Kelly, No. 16- 2 cv-03487-JCS, 2017 WL 679514, at *17 (N.D. Cal. Feb. 21, 2017) (construing the term “matter” 3 in 29 C.F.R. § 1614.302(b) to refer to the underlying employment action rather than the 4 discrimination claim). “Discrete acts such as termination, failure to promote, denial of transfer, or 5 refusal to hire are easy to identify, [and] [e]ach incident of discrimination and each retaliatory 6 adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” 7 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). “‘[D]iscrete discriminatory acts 8 are not actionable if time barred, even when they are related to acts alleged in timely filed 9 charges[.]’” Lyons, 307 F.3d at 1105-06 (quoting Morgan, 536 U.S. at 113). 10 Also misplaced is Mr. Winns’s argument that, under 5 U.S.C. § 7121(d), no EEO 11 complaint regarding the 2015 termination properly could have been processed until after his 12 MSPB appeal was done. See Dkt. No. 52 at 6, 11. Section 7121(d), which concerns MSPB 13 review of arbitration decisions, does not apply to Postal Service employees. See Stahl v. Merit 14 Sys. Protection Bd., 83 F.3d 409, 411 (Fed. Cir. 1996); accord Burke v. U.S. Postal Serv., 888 15 F.2d 833, 834-35 (Fed. Cir. 1989); Bacashihua v. Merit Sys. Protection Bd., 811 F.2d 1498, 1502 16 (Fed. Cir. 1987). 17 Mr. Winns argues that the 45-day deadline to initiate EEO proceedings does not apply to 18 him because he contends that, having been removed from USPS employment in 2014, he was no 19 longer a USPS employee in 2015. See Dkt. No. 52 at 12. USPS correctly notes, however, that a 20 complainant need not have employee status in order to fall within the scope of Title VII or the 21 requirement to exhaust administrative remedies. See generally 42 U.S.C. § 2000e-16; Youssef v. 22 Pritzker, No. CV 14-3629-PLA, 2015 WL 13916268, at *9-10 (C.D. Cal. July 20, 2015) 23 (applying 45-day deadline to prospective employee). 24 Relatedly, Mr. Winns argues that he was not required to comply with the administrative 25 exhaustion requirement because, in his view, the 2014 removal actions were never validly or fully 26 rescinded. Thus, he contends that USPS could not legitimately order him to return to work in 27 March 2015, unless he agreed to do so. And, as discussed above, Mr. Winns argues that he would 1 would not be required to work on Sundays. See Dkt. No. 52 at 7-8. Mr. Winns is not aided, 2 however, by the MSPB decisions he cites, which concern the effect of an agency’s reinstatement 3 of employment on a pending MSPB appeal, and not the effect, if any, that a pending MSPB appeal 4 has on an agency’s ability to reinstate an employee. See Harris v. Dep’t of Transp., 96 M.S.P.R. 5 487 (M.S.P.B. July 12, 2004); Murray v. Dep’t of Defense, 92 M.S.P.R. 361 (M.S.P.B. Sept. 13, 6 2002); Gillespie v. Dep’t of Defense, 90 M.S.P.R. 327 (M.S.P.B. Nov. 14, 2001). 7 Ultimately, Mr. Winns maintains that the July 2015 termination was nothing more than “a 8 fabricated instrument that exists only in theory, but not in reality.” Dkt. No. 53-5 ¶ 2. Here, he 9 argues that errors in the USPS’s EEO Alternative Dispute Resolution Specialist’s Inquiry Report 10 demonstrate that the report was concocted to create the appearance that the July 2015 termination 11 was valid, when it was not.10 Dkt. No. 52 at 17; Dkt. No. 53-6. He further suggests that the July 12 2015 termination must be fake because the EEOC’s February 5, 2019 decision on his appeal of 13 USPS’s 2017 final agency decision does not mention it. See Dkt. No. 53-5. As discussed above, 14 however, the unrefuted evidence in the record demonstrates that while Mr. Winns’s 2017 appeal of 15 USPS’s final agency decision mentioned USPS’s March 24, 2015 letter reinstating his 16 employment, he did not challenge USPS’s dismissal of the EEO claim relating to the July 2015 17 termination. Dkt. No. 48 ¶ 18, Ex. H (Dkt. No. 48-8 at ECF 17, 19); see also Dkt. No. 48 ¶ 21, 18 Ex. K (Dkt. No. 48-11 at ECF 4). To the extent Mr. Winns maintains that the July 2015 19 termination was merely theoretical, it would appear that there is no adverse action on which to 20 base a Title VII discrimination claim. 21 More fundamentally, none of Mr. Winns’s arguments concerning the alleged invalidity of 22 his 2015 reinstatement and termination support his contention that the Title VII exhaustion 23 requirement did not apply or was tolled. “The doctrine of equitable tolling has been consistently 24 applied to excuse a claimant’s failure to comply with the time limitations where [he] had neither 25 10 For example, Mr. Winns notes that the “No” boxes are checked under “Mixed Case” and 26 “MSPB Appeal Filed?” Dkt. No. 52 at 17; Dkt. No. 53-6. As acknowledged by Mr. Winns, however, by the time he initiated EEO counseling on April 4, 2016, his MSPB appeal had been 27 dismissed. See Dkt. No. 53-6 ¶ 3. And as USPS points out, in March 2016, the EEOC remanded 1 actual nor constructive notice of the filing period.” Johnson v. Henderson, 314 F.3d 409, 414 (9th 2 Cir. 2002) (internal quotations and citation omitted). Equitable estoppel, by contrast, focuses 3 primarily on actions taken by the defendant to prevent a plaintiff from taking timely action. Id. 4 While Mr. Winns points out that he is representing himself, he has not presented any argument or 5 evidence raising a triable issue that he was not notified of the 45-day time limit or was not 6 otherwise aware of it; that he did not know that the 2015 termination occurred; or that despite due 7 diligence, he was prevented from timely contacting an EEO counselor. See 29 C.F.R. 8 § 1614.105(a)(2). In the July 9, 2015 Letter of Decision, USPS told Mr. Winns that it did not 9 believe he had the right to appeal the termination directly to the MSPB, and that if he claimed the 10 termination was based on discrimination or retaliation, he had 45 days to notify USPS and 11 participate in EEO counseling. See Dkt. No. 47 ¶ 18, Ex. H (Dkt. No. 47-8 at ECF 4-5). The 12 Letter of Decision concerned Mr. Winns personally and followed a series of notices from USPS 13 advising that he was considered AWOL and that his employment was in jeopardy. Dkt. No. 47 14 ¶¶ 7, 9, 13, 16, 18 & Exs. C, D, F, G, H. Each notice specifically informed Mr. Winns that his 15 responsive action was required and when he was required to act, and the letters leading up to the 16 May 2015 removal notice and July 2015 Letter of Decision specifically invited Mr. Winns to 17 contact USPS to discuss any questions or concerns. See id. It is undisputed that Mr. Winns never 18 responded to any of USPS’s notices. See Dkt. No. 47 ¶¶ 8, 12, 15, 17, 18. But there is no 19 indication that his failure to respond was due to any misconduct by USPS. Instead Mr. Winns 20 contends that he was justified in ignoring the notices because he did not want to return to work 21 unless USPS gave assurances that, among other things, he would not have to work on Sundays. 22 See Dkt. No. 53 at 8. However, Mr. Winns did not communicate that concern to USPS nor did he 23 inquire about his work schedule. See Dkt. No. 49 ¶ 2, Ex. A (Winns Dep. at 87:1-88:8). In 24 essence, the undisputed evidence shows that Mr. Winns did not respond to USPS’s notices 25 because he chose not to do so. 26 Accordingly, the Court concludes that there is no genuine issue of material fact that Mr. 27 Winns failed to timely exhaust his administrative remedies as required by Title VII and that no 1 C. Whether Mr. Winns Timely Filed the Present Lawsuit 2 Alternatively, USPS contends that it is entitled to summary judgment on the independent 3 ground that the present action is time-barred because it was not filed within 90 days of USPS’s 4 final decision on Mr. Winns’s 2015 discrimination claim. 5 Under Title VII, federal employees have “90 days of receipt of notice of final action taken 6 by a department, agency, or unit referred to in [42 U.S.C. § 2000e-16(a)]” in which to file a civil 7 discrimination action. 42 U.S.C. § 2000e-16(c). The related regulation provides that “[a] 8 complainant who has filed an individual complaint” may file a Title VII civil action in an 9 appropriate United States District Court:

10 (a) Within 90 days of receipt of the agency final action on an individual or class complaint; 11 (b) After 180 days from the date of filing an individual or class 12 complaint if agency final action has not been taken;

13 (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or 14 (d) After 180 days from the date of filing an appeal with the 15 Commission if there has been no final decision by the Commission. 16 29 C.F.R. § 1614.407(a)-(d). Equitable tolling applies, but only “‘sparingly.’” Gray v. Shinseki, 17 No. C-12-03109 JCS, 2013 WL 1891387, at *2 (N.D. Cal. May 6, 2013) (quoting Scholar v. Pac. 18 Bell, 963 F.2d 264, 268 (9th Cir. 1992)). “Circumstances that have been found to give rise to 19 equitable tolling include inadequate notice, a pending motion for appointment of counsel and the 20 court leading a plaintiff to believe [he] has done everything required of [him].” Id. (citing Baldwin 21 Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). However, “[o]ne who fails to act 22 diligently cannot invoke equitable principles to excuse that lack of diligence.” Baldwin Cty., 466 23 U.S. at 151. Additionally, “[p]rocedural requirements established by Congress for gaining access 24 to the federal courts are not to be disregarded by courts out of a vague sympathy for particular 25 litigants.” Id. at 15. “A plaintiff’s pro se status does not mean [he] should be treated differently 26 than a plaintiff represented by counsel.” Gray, 2013 WL 1891387 at *3 (citing Payan v. Aramark 27 Mgmt. Servs. Ltd., 495 F.3d 1119, 1127 (9th Cir. 2007)); see also Baldwin Cty., 466 U.S. at 152 1 With respect to Mr. Winns’s EEO complaint regarding the 2015 termination, USPS 2 dismissed that claim as untimely. See Dkt. No. 48 ¶ 15, Ex. E (Dkt. No. 48-5 at ECF 3-6). After 3 Mr. Winns requested a final agency decision, USPS issued its final decision on July 6, 2017, 4 incorporating the dismissal of his claim regarding the 2015 termination as untimely. See id. ¶ 17, 5 Ex. G (Dkt. No. 48-7 at ECF 2); see also 29 C.F.R. § 1614.107(a)(2). USPS’s dismissal of Mr. 6 Winns’s claim concerning the 2015 termination therefore was a final decision appealable as of 7 July 6, 2017. 29 C.F.R. § 1614.107(b); Puckett v. Potter, 342 F. Supp. 2d 1056, 1066 (M.D. Ala. 8 2004) (where an agency dismisses some, but not all claims in a complaint, § 1614.107(b) 9 “contemplates that the agency’s decision to dismiss is not considered final until the agency takes 10 final action on the remainder of the administrative complaint that was not dismissed.”). As 11 relevant here, USPS’s final decision informed Mr. Winns that he had 30 days from his receipt of 12 the decision to appeal to the EEOC or 90 days from receipt of USPS’s final decision in which to 13 file a civil lawsuit. Dkt. No. 48 ¶ 17, Ex. G (Dkt. No. 48-7 at ECF 17-18). 14 Mr. Winns timely appealed USPS’s final decision to the EEOC. While he mentioned 15 USPS’s March 24, 2015 letter rescinding the October 2014 removal notices and reinstating his 16 employment, the record reflects that the only issues he challenged in that appeal concerned the 17 2014 denial of religious accommodation and removal actions. He did not challenge USPS’s 18 dismissal of his claim relating to the July 2015 termination. See Dkt. No. 48 ¶ 18, Ex. H (Dkt. No. 19 48-8); see also id. ¶ 21, Ex. K (Dkt. No. 48-11 at ECF 4). Thus, Mr. Winns had 90 days from 20 USPS’s July 6, 2017 final decision to file a lawsuit regarding the 2015 termination. See Puckett, 21 342 F. Supp. 2d at 1066. The present action was not filed until four years later and is untimely. 22 Mr. Winns has not presented a basis for tolling the deadline to file a civil action. He 23 reiterates that because he filed an appeal with the MSPB, it should have been obvious to USPS 24 that he elected to pursue a non-EEO process and USPS therefore should have dismissed his entire 25 EEO complaint. See Dkt. No. 52 at 14. For the reasons discussed above, however, Mr. Winns has 26 not demonstrated that his MSPB appeal encompassed the subsequent 2015 termination. 27 Although he was informed of his rights to challenge USPS’s dismissal of the 2015 termination 1 Accordingly, the Court grants USPS’s motion for summary judgment on the ground that 2 the present action is time-barred. 3 Because the Court concludes that Mr. Winns failed to timely exhaust his administrative 4 remedies with respect to his Title VII claim regarding the 2015 termination and failed to timely 5 file the present action with respect to that claim, the Court finds it unnecessary to address USPS’s 6 arguments that Mr. Winns fails to establish a viable claim for discrimination or retaliation. 7 IV. CONCLUSION 8 Based on the foregoing, USPS’s motion for summary judgment is granted. The Clerk of 9 Court shall enter judgment accordingly and close this file."! 10 IT IS SO ORDERED. 11 Dated: October 31, 2022 12 7” ‘

VIRGINIA K. DEMARCHI

14 United States Magistrate Judge 15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28 '! USPS’s request to continue the previously scheduled final pretrial conference and trial dates (Dkt. No. 59) is denied as moot.