1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAREN J. HORNING, Case No. 23-cv-00421-DMR

8 Plaintiff,

ORDER ON DEFENDANT’S MOTION

9 v. FOR SUMMARY JUDGMENT ON THE

ISSUE OF TIMELINESS

10 GINA RAIMONDO, Re: Dkt. No. 18 11 Defendant.

12 Plaintiff Karen J. Horning filed a complaint against Defendant Gina Raimondo, Secretary 13 of the Department of Commerce alleging claims in connection with her employment application to 14 the United States Census Bureau (the “Census”). Defendant now moves to dismiss the complaint 15 for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Nos. 18 16 (“Mot.”), 28 (“Reply”).] Plaintiff opposed. [Docket No. 27 (“Opp’n”).] At the July 13, 2023 17 hearing on the motion, the court notified the parties that it would convert Defendant’s motion to 18 dismiss into a motion for summary judgment on the issue of timeliness, and ordered the parties to 19 file supplemental evidence. [Docket No. 30.] For the following reasons, Defendant’s motion for 20 summary judgment on the issue of timeliness is granted. 21 I. BACKGROUND1 22 A. Plaintiff’s Allegations 23 Plaintiff was diagnosed with young onset rheumatoid arthritis (“RA”) as a teenager, which 24 caused her hands, feet, and ankles to be severely deformed. Compl. ¶ 7. Although she had to use 25 a wheelchair before the age of 30, Plaintiff is now able to walk with some mobility challenges. Id. 26 On November 18, 2019, Plaintiff applied for an office position with the 2020 Census, 27 1 identifying herself as an individual with a disability. Compl. ¶ 8. On January 28, 2020, Plaintiff 2 received a call from the 2020 Census San Francisco Office asking if she would like to work as an 3 enumerator. Id. ¶ 11. Plaintiff responded that she had applied for an office position. Id. When 4 the caller replied that the Census was only hiring enumerators, Plaintiff explained that she had RA 5 and was disabled. Id. Plaintiff alleges that the caller then “abruptly” thanked her for her interest 6 in working for the Census and hung up. Id. 7 Plaintiff called back the same day and requested to speak with a supervisor. Compl. ¶ 12. 8 She recounted the previous call to supervisor Dean Book and informed him that she wished to file 9 a grievance. Id. Plaintiff also stated that she would accept to work as an enumerator if that was 10 the only position open at the time. Id. Plaintiff explained that she would nevertheless require an 11 accommodation to perform the job and requested to be stationed in a relatively flat neighborhood. 12 Id. Book informed Plaintiff that employees were generally stationed in their own neighborhoods 13 and stated that her accommodation request would be met. Id. ¶ 13. Book then completed a job 14 requisition to hire Plaintiff, making note of her accommodation requirement. Id. Plaintiff 15 reiterated her intention to follow through with her complaint, and Book responded that they would 16 discuss this at Plaintiff’s orientation. Id. After the call, Book emailed Plaintiff to congratulate her 17 on being hired by the Census. Id. ¶ 14. Plaintiff also received an auto-generated email requesting 18 that she schedule a fingerprinting appointment for her background check. Id. Plaintiff booked an 19 appointment for the following week and completed her fingerprinting at the San Francisco Census 20 Field Office on February 7, 2020. Id. ¶¶ 14-15. 21 On March 27, 2020, Plaintiff received an email from the Census announcing that 22 fingerprinting appointments were temporarily suspended as of March 18, 2020, and that 23 appointments were canceled until further notice. Compl. ¶ 16. According to Plaintiff, the email 24 made clear that this did not impact the processing of fingerprints received in February 2020. Id. 25 Around June 2020, Plaintiff reached out to the San Francisco Field Office to ask about 26 scheduling a training orientation. Compl. ¶ 17. An unidentified individual informed Plaintiff that 27 her background check had not yet been cleared, and that she could not attend an orientation until 1 still pending. Id. 2 Around July 2020, Plaintiff alleges that Census workers began canvassing San Francisco. 3 Compl. ¶ 18. She spoke with several enumerators who shared that they had not applied to work 4 for the Census until the middle of the government shutdown. Id. ¶ 18. None of them had a 5 disability. Id. Throughout July 2020, Plaintiff reached out to the San Francisco Office to obtain 6 more information about her background check, but her calls were never returned. Id. ¶ 20. 7 Around the same time, Plaintiff learned that Book no longer worked with the Census. Id. ¶ 21. 8 She requested to speak to the new Administrative Office Manager, Anne Lin, and left Lin 9 numerous messages explaining that she was physically disabled, that she had made a request for 10 an accommodation, and that her background check results were missing since February. Id. She 11 also mentioned that she wanted to file a grievance. Id. Lin never returned Plaintiff’s calls. Id. 12 Plaintiff alleges that, at some point in July 2020, Lin became aware of her request for an 13 accommodation and her attempts to file a complaint. Id. ¶ 22. According to Plaintiff, Lin was 14 responsible for accommodating her disability but “her silence was a sign of hostility.” Id. ¶¶ 22- 15 23. 16 On August 14, 2020, Plaintiff communicated with an unidentified individual at the Census’ 17 Los Angeles Regional Office. Compl. ¶ 24. That employee allegedly discovered that Plaintiff’s 18 fingerprints had never been processed. Id. A few days later, on August 26, 2020, Plaintiff’s 19 background check cleared, and she completed the rest of the onboarding documents. Id. ¶ 25. 20 According to Plaintiff, she was now “officially hired and pending assignment.” Id. When 21 Plaintiff called the Census’ San Francisco Office, they informed her that someone would reach out 22 to her. Id. 23 A couple of months later, on October 6, 2020, Plaintiff re-contacted the San Francisco 24 Office and requested to speak to a supervisor. Compl. ¶ 28. Plaintiff asked why she had not 25 received an assignment after having waited eight months for her background check to clear. Id. 26 The supervisor did not have an answer for Plaintiff because he was new. Id. Plaintiff informed 27 him that she wished to file a complaint for disability discrimination and wanted his help with the 1 not discriminated against her because they had hired her. Id. 2 Ultimately, Plaintiff claims that she was not given an enumerator assignment from August 3 26, 2020 through December 31, 2021, even though the Census “continued to hire new applicants, 4 process and assign them work.” Compl. ¶ 60. 5 B. Administrative Proceedings 6 Plaintiff first contacted the Equal Employment Opportunity Commission (“EEOC”) on 7 October 7, 2020 to file a grievance against the Census. Compl. ¶ 30. The same day, the Deputy 8 Chief of the EEOC called Plaintiff to initiate a formal complaint. Id. ¶ 31. Plaintiff alleges that 9 the administrative investigatory phase suffered several deficiencies including, for example, that 10 the Regional Director of the Census’ Los Angeles Region “abused his position and authority by 11 involving himself in an EEO investigation at one of the field offices” and “testif[ying] from Los 12 Angeles offering false statements as a matter of fact.” Id. ¶¶ 33-57. 13 On October 24, 2022, the EEOC issued its final decision, concluding that Plaintiff was not 14 treated unfairly as compared to other applicants without a disability. Compl. ¶¶ 6, 59. Plaintiff 15 originally alleged that she “signed for and received” the decision on October 31, 2022. Id. ¶ 6. 16 She now appears to concede that she received the decision on October 24, 2022, as asserted by 17 Defendants, as she no longer argues that her lawsuit was timely filed. See Opp’n at 3 (arguing 18 only that Plaintiff’s lawsuit should be treated as timely due to equitable tolling). 19 C. Procedural History 20 Plaintiff filed her complaint on January 27, 2023 along with an application to proceed in 21 forma pauperis (“IFP”).2 [Docket Nos. 1, 2.] The complaint alleges three claims for relief: (1) 22 “failure to accommodate and failure to hire”; (2) “failure to accommodate, failure to hire, and 23 retaliation”; and (3) “retaliation and hostile work environment.” Compl. ¶¶ 62-69. On March 14, 24 2023, the court granted Plaintiff’s IFP application and ordered the U.S. Marshal for the Northern 25 District of California to serve Defendant with the complaint. Counsel for Plaintiff subsequently 26 appeared on June 1, 2023. [Docket No. 21.] Defendant moved to dismiss the complaint, arguing 27 1 in part that the action is barred in its entirety because Plaintiff failed to file suit within 90 days of 2 receipt of the EEOC’s final decision.3 The parties submitted evidence in support of their 3 positions. When a court considers matters outside the pleadings on a motion under Rule 12(b)(6), 4 it must convert the motion into a Rule 56 motion for summary judgment, and in so doing, the 5 court must give “[a]ll parties . . . a reasonable opportunity to present all the material that is 6 pertinent to the motion.” Fed. R. Civ. P. 12(d). Accordingly, at the July 13, 2023 hearing, the 7 court notified both parties that it would convert Defendant’s motion to dismiss into a motion for 8 summary judgment on the issue of timeliness. [Docket No. 30.] Plaintiff was ordered to file any 9 evidentiary support for the relevant factual allegations in her complaint or opposition brief, and 10 any other facts supporting her position on the issue of timeliness, by August 14, 2023. By the 11 same date, Plaintiff was ordered to re-submit Exhibit A to her opposition brief and appropriately 12 authenticate the document by an affidavit or declaration pursuant to the district’s local rules. 13 Defendant was also permitted to submit additional evidence on the timeliness issue. After being 14 prompted by the court, see Docket No. 34, Plaintiff re-submitted and authenticated Exhibit A to 15 her opposition brief on September 22, 2023. [Docket No. 35 (re-filed with title page at Docket 16 No. 37).] Nothing else was filed. 17 II. LEGAL STANDARDS 18 A court shall grant summary judgment “if . . . there is no genuine dispute as to any material 19 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden 20 of establishing the absence of a genuine issue of material fact lies with the moving party. 21 Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 22 U.S. 317, 323 (1986)). The court must view the evidence in the light most favorable to the non- 23 moving party. Fresno Motors, LCC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 24 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A genuine factual issue 25 exists if sufficient evidence favors the non-movant such that “a reasonable [judge or] jury could 26

27 3 Defendant makes several other arguments in support of her motion to dismiss. See Mot. at 2. 1 return a verdict for the nonmoving party. Cline v. Indus. Maint. Eng’g & Contracting Co., 200 2 F.3d 1223, 1229 (9th Cir. 2000) (alteration in original) (quoting Anderson, 477 U.S. at 248). The 3 court may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. 4 City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Anderson, 5 477 U.S. at 255). 6 To defeat summary judgment once the moving party has met its burden, the nonmoving 7 party may not simply rely on the pleadings, but must point to specific facts, by affidavit or as 8 otherwise provided by Federal Rule of Civil Procedure 56, showing that a genuine issue of 9 material fact exists. Devereaux, 263 F.3d at 1076. More than a “scintilla of evidence” must exist 10 to support the non-moving party’s claims. Pomona, 750 F.3d at 1049 (quoting Anderson, 477 11 U.S. at 252). A showing that “there is some ‘metaphysical doubt’ as to the material facts as issue” 12 will not suffice. In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (quoting 13 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “Where the 14 record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there 15 is no genuine issue for trial.” Pomona, 750 F.3d at 1049-50 (quoting Matsushita, 475 U.S. at 16 587). 17 III. DISCUSSION 18 In her opposition brief, Plaintiff agrees to dismiss her third claim for disability-based 19 harassment, her claims under the Americans with Disabilities Act and Title VII, and her claim 20 based on improper processing of her EEOC complaint. Opp’n at 1. She seeks to file a First 21 Amended Complaint focused only on her claims for disability discrimination and retaliation under 22 the Rehabilitation Act. 23 Defendant moves to dismiss all claims as time-barred because Plaintiff did not file her 24 lawsuit within 90 days of receiving the EEOC’s right-to-sue letter. Mot. at 6. Plaintiff does not 25 dispute that she failed to initiate this lawsuit within the 90-day statute of limitations; instead, she 26 contends that she is entitled to equitable tolling of the statute of limitations.4 See Opp’n at 3. 27 1 When Congress enacted the Rehabilitation Act, it incorporated the administrative 2 exhaustion requirements of Title VII, 42 U.S.C. § 2000e-16(c). See 29 U.S.C. § 794a(a)(1); see 3 also Bullock v. Berrien, 688 F.3d 613, 615 (“the Rehabilitation Act . . . incorporates the 4 administrative exhaustion procedures of Title VII of the Civil Rights Act of 1964”). Like Title 5 VII, the Rehabilitation Act requires a plaintiff to file a charge of discrimination with the EEOC 6 prior to filing a lawsuit. Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 7 1997) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). If the EEOC 8 dismisses the charge, the plaintiff must file a civil action within 90 days of the dismissal of the 9 charge. 42 U.S.C. § 2000e-5(f)(1) (“If a charge filed with the [EEOC] . . . is dismissed by the 10 [EEOC], . . . the [EEOC or other authorized entity] shall so notify [the claimant] and within ninety 11 days after the giving of such notice a civil action may be brought . . ..”). The 90-day period 12 “operates as a limitations period.” Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 13 1121 (9th Cir. 2007 (citing Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir. 1992)). If the civil 14 action is not filed within the 90-day period, “then [it] is time-barred.” Payan, 495 F.3d at 1121. 15 The 90-day statute-of-limitations is “subject to the doctrine of equitable tolling.” Nelmida, 16 112 F.3d at 384 (citing Scholar, 963 F.2d at 266-67). However, the doctrine is applied 17 “sparingly.” Nelmida, 112 F.3d at 384 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 18 (1990)); see also Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999), as amended (Mar. 22, 19 1999) (“Equitable tolling applies . . . when extraordinary circumstances beyond the plaintiff’s 20 control made it impossible to file a claim on time.”). The Supreme Court has “allowed equitable 21 tolling when the statute of limitations was not complied with because of defective pleadings, when 22 a claimant was tricked by an adversary into letting a deadline expire, and when the EEOC’s notice 23 of the statutory period was clearly inadequate.” Scholar, 963 F.3d at 268 (citing Irwin, 498 U.S. at 24 111 and Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per curiam)). 25 the Program Implementation Division for the Office of Civil Rights, asserts that he transmitted the 26 EEOC’s final decision to Plaintiff by email on October 24, 2022. Redpath Decl. ¶ 8, Ex. B (copy of the email sent to Plaintiff via secure file transfer system Kiteworks). On the same date, 27 Redpath received electronic confirmation that Plaintiff downloaded the final agency decision. Id. 1 Accordingly, “[c]ourts have been generally unforgiving . . . when a late filing is due to [the] 2 claimant’s failure to ‘exercise due diligence in preserving his [or her] legal rights.’” Scholar, 963 3 F.3d at 268 (quoting Irwin, 498 U.S. at 96). 4 Plaintiff advances two grounds for equitable tolling: her prior status as a self-represented 5 plaintiff and “additional extraordinary obstacles” related to her disability. With respect to the first, 6 Plaintiff contends that unlike the plaintiff in Fitten v. Whitley—a case proffered by Defendant— 7 she is not an experienced attorney. Opp’n at 4 (citing Fitten v. Whitley, No. 21-cv-00513, 2021 8 WL 4776975 (E.D. Cal. Oct. 13, 2021) (dismissing Title VII and ADA claims where self- 9 represented plaintiff who was also an attorney did not initiate suit within 90 days of receipt of final 10 agency action by email)). That argument is not compelling. Ignorance of the law due to a 11 plaintiff’s pro se status is not a basis for equitable tolling. See Gray v. Shinseki, No. C-12-03109 12 JCS, 2013 WL 1891387, at *2-3 (N.D. Cal. May 6, 2013) (“A plaintiff’s pro se status does not 13 mean she should be treated differently than a plaintiff represented by counsel.”) (citing Payan, 495 14 F.3d at 1127); Payan, 495 F.3d at 1127 (“Payan’s pro se status does not afford her different 15 treatment under these standards.”). 16 Next, Plaintiff argues that her untimely filing should be excused because she suffers from 17 RA and mental health conditions that impacted her executive functioning between the time she 18 received the agency’s final decision and when she filed the complaint. Opp’n at 4. In support of 19 her argument, Plaintiff offers a letter signed by her psychiatrist, Neelam Sachdev. [Docket No. 20 35.] 21 Defendant originally objected to Sachdev’s letter and to Plaintiff’s new factual assertions 22 on multiple grounds. First, Defendant argued that a plaintiff “cannot avoid dismissal by alleging 23 new facts in an opposition to a motion to dismiss.” Reply at 2 (citing Abbot v. Experian Info. 24 Solutions, 179 F. Supp. 3d 940, 946 (N.D. Cal. 2016) (quoting Schneider v. Cal. Dep’t of Corr., 25 151 F.3d 1194, 1197 n.1 (9th Cir. 1998)). Second, Defendant stated that Plaintiff failed to present 26 these assertions “in a cognizable manner” because she did not authenticate Exhibit A by an 27 affidavit or declaration. Id., n.1. (citing Civil L.R. 7-5(a); see also GTE Mobilnet of Cal. Ltd. 1 2022) (“Given counsel’s failure to authenticate the documents, the court held that it could not 2 consider them in ruling on the motion”)). Plaintiff has since re-submitted and authenticated 3 Exhibit A. In addition, Defendant has now had an opportunity to respond to Plaintiff’s argument. 4 Plaintiff’s assertions do not justify invoking equitable tolling. In limited circumstances, a 5 plaintiff’s mental state “may equitably toll administrative deadlines if a plaintiff meets a two-part 6 test.” Johnson v. Lucent Technologies, Inc., 653 F.3d 1000, 1010 (9th Cir. 2011) (citation 7 omitted); see also Friend v. Hegarty, No. 5:15-CV-04506-HRL, 2017 WL 1164291, at *6 (N.D. 8 Cal. Mar. 29, 2017). “First, a plaintiff must show his mental impairment was an extraordinary 9 circumstance beyond his control by demonstrating the impairment was so severe that either (a) 10 plaintiff was unable rationally or factually to personally understand the need to timely file, or (b) 11 plaintiff’s mental state rendered him unable personally to prepare [a complaint] and effectuate its 12 filing.” Id. (citation omitted). “Second, the plaintiff must show diligence in pursuing the claims to 13 the extent he could understand them, but that the mental impairment made it impossible to meet 14 the filing deadline under the totality of the circumstances.” Id. (citation omitted). 15 Plaintiff argues that the unprecedented shortage of Adderall in the Fall and Winter of 2022 16 affected her executive functioning. See Opp’n at 4; [Docket No. 35.] During this time, Plaintiff 17 also experienced a three-and-a-half-week delay in getting a necessary injection to treat her RA 18 symptoms. Id. Without these necessary medications, it took Plaintiff “all the available time to 19 prepare her documents.” Id. In addition, the medication issues described by Plaintiff required her 20 to “spend an inordinate amount of time filing MediCal appeals, calling pharmacies, and attending 21 additional doctor appointments that were needed in order to titrate her medications.” Id. The 22 letter from Plaintiff’s psychiatrist is dated June 14, 2023 and states:

23 I have been seeing Karen Horning since 7/21/2020. She has been diagnosed to have Bipolar Disorder and ADHD Predominantly 24 inattentive presentation. Karen, also, has multiple medical problems. Due to shortage of Adderall, she was unable to get her ADHD 25 medication in November and part of December 2022. The medication was changed to Vyvanse and it took 3 months for the therapeutic dose 26 to be established. Due to not having medications for ADHD, she was not focused and was very distracted, unorganized and her executive 27 functioning was very limited. This prevented her from doing the 1 None of these circumstances warrant equitable tolling. Although Plaintiff faced medical 2 challenges during the relevant timeframe, the evidence does not establish that she was “unable 3 rationally or factually to personally understand the need to timely file.” See Johnson, 653 F.3d at 4 1010. Plaintiff’s overarching claim that she “was very distracted, unorganized and her executive 5 functioning was very limited,” see Opp’n at 4-5, falls below the necessary threshold. The Ninth 6 Circuit has found equitable tolling appropriate where the plaintiff “presented overwhelming 7 evidence that she was completely psychiatrically disabled during the relevant limitation period,” 8 including evidence that she had “attempted suicide numerous times—and may do so again . . . 9 [and] is unable to read, open mail, or function in society” due to her mental health condition. 10 Stoll, 165 F.3d at 1242. In contrast, courts have found that assertions more akin to Plaintiff’s are 11 not sufficient to invoke equitable tolling. See, e.g., Friend, 2017 WL 1164291, at *6-7 (Title VII 12 case finding equitable tolling did not apply to 90-day statute of limitations after receipt of a right- 13 to-sue notice where the plaintiff was unhoused, had post-traumatic stress disorder, and suffered 14 from medication side effects); Kuklok v. United States Dep’t of Veterans Affs., No. 19-CV-02958- 15 DMR, 2020 WL 4051561, at *5 (N.D. Cal. July 20, 2020), aff’d sub nom. Kuklok v. U.S. Dep’t of 16 Veterans Affs., No. 21-15105, 2022 WL 256361 (9th Cir. Jan. 26, 2022), and aff’d sub nom. 17 Kuklok v. U.S. Dep’t of Veterans Affs., No. 21-15105, 2022 WL 256361 (9th Cir. Jan. 26, 2022) 18 (Privacy Act case holding equitable tolling was not warranted where plaintiff alleged “outrageous 19 conduct” on behalf of the defendant, extraordinary disability that affected his comprehension, and 20 at least ten serious medical conditions that made it difficult to discover, prepare, and file legal 21 actions). 22 In addition, as in Friend v. Hegarty, Plaintiff managed to file this lawsuit along with an 23 IFP application. This suggests that she was able to advance and protect her legal interests. See 24 Friend, 2017 WL 1164291, at *7; see also Johnson, 653 F.3d at 1010 (contrasting plaintiff’s 25 active participation in lawsuits with claims that he was forced on mental disability for twenty 26 years, was unable to manage his day-to-day affairs, and was of unsound mind). In other words, 27 Plaintiff has not—and cannot—establish that her mental state rendered her unable to personally 1 Because Plaintiff has not offered evidence demonstrating that her mental impairment was 2 an extraordinary circumstance beyond her control, she has failed to show that a dispute of fact 3 exists as to whether equitable tolling applies. 4 IV. CONCLUSION 5 In conclusion, Defendant’s motion for summary judgment on the issue of timeliness is 6 granted. The case is dismissed with prejudice. The Clerk shall close the file in this matter.5 7 8 IT IS SO ORDERED. 9 Dated: October 23, 2023 10 ______________________________________ Donna M. Ryu 11 Chief Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

27 5 On August 16, 2023, Plaintiff’s counsel filed a motion to withdraw along with Plaintiff’s consent