Where the lawsuit was filed within 90 days of the employee’s receipt of a determination of her second complaint, and that complaint alleged a hostile work environment, the continuing violation doctrine may allow her to overcome any objection as to time-barred discrete acts, so long as all acts are part of the same unlawful employment practice.
Monica Andrews, an employee of the United States Postal Service, filed her complaint on Sept. 9, 2022, alleging that she had been discriminated against in her employment and subjected to a hostile work environment based on her race, sex and in reprisal for submitting a discrimination complaint to the postal service. The defendant has moved to dismiss, asserting that the lawsuit was untimely in that it had not been filed within 90 days of the plaintiff’s receipt of one of two final agency decisions by the postal service that considered and rejected claims made in the present lawsuit.
I find that the plaintiff received the first final agency decision, or FAD, when it was delivered to a parcel locker for her on June 10, 2022. The second complaint was handled by the same analyst, who issued a second FAD on June 8, 2022, rejecting her claims. The tracking information showed the same type of deliveries as the first FAD, except that the date of delivery for the second FAD was June 11, 2022, the day after the delivery dates of the first FAD. Ninety days from June 10, 2022, would make the filing of the complaint in this court on the 91st day; from June 11, the filing would be on the 90th day.
Thus, while it is clear that Ms. Andrews failed to timely file suit following the first FAD, her suit was timely in relation to the second FAD. The defendant seeks a dismissal of the entire complaint, or alternatively, dismissal of “all allegations in Plaintiff’s Complaint that stem from the [first FAD].”
But the plaintiff makes a claim in the second FAD of hostile work environment, as well as discrete or retaliatory actions by her employer. Thus, the continuing violation doctrine may allow her to overcome any objection as to time-barred discrete acts, so long as all acts are part of the same unlawful employment practice. That remains to be seen.
Defendant’s motion to dismiss denied.
Andrews v. DeJoy, Case No. 2:22-cv-00028, May 23, 2023. WDVA at Big Stone Gap (Jones). VLW 023-3-275. 6 pp.