Rodolfo Asuncion worked as a civilian Electronic Duplicating System Technician for the Defense Logistics Agency (DLA) in Pearl Harbor, Hawaii, for 30 years. Asuncion argued that he developed post-traumatic stress disorder, which made it difficult and burdensome to complete his work tasks without reasonable accommodation. After a series of incidents in which Asuncion made threatening statements in the workplace, Asuncion was indefinitely suspended without pay on April 21, 2021, based on a determination that he should no longer be permitted to access classified information.
Asuncion filed an Equal Employment Opportunity claim with DLA’s Office of Equal Employment Opportunity and Diversity in December 2019. He filed a formal complaint in December 2020. The agency did not, however, receive a hard copy until September 2021 because of the COVID-19 pandemic. The office issued its final agency decision (FAD) regarding his complaint on November 4, 2022. In the FAD, DLA concluded that Asuncion failed to establish that he was subjected to disparate treatment and harassment based on disability and notified Asuncion about his right to file a civil action within 90 calendar days of receipt of the final agency decision.
The DLA Case Number assigned to the FAD was “DLAF-20-0424.” The correct case number appeared on the letter enclosing the FAD and on every page of the FAD. However, a different, incorrect case number, DLAF-21-0424, appeared once on the first page of the FAD.
DLA’s EEO office transmits FADs using the Department of Defense’s Secure Access File Exchange (DoD SAFE).
On November 8, 2022, Asuncion’s FAD and a certificate of service were dropped off at DoD SAFE. The certificate of service stated that, for timeliness purposes, it shall be presumed that the parties received the foregoing DLA final agency decision dated November 4, 2022, for DLA Case Number DLAN-22-0051 within five calendar days after it was mailed. It is undisputed that the service contained the wrong case number and did not indicate the substance of the final agency decision.
On November 11, 2022, Asuncion’s lawyer, Shawn Luiz, replied to the November 4 email that he could not access the file. On November 14, Luiz was informed that the file had expired and a new file would be sent to him. Luiz received a new file; however, the passphrase to access the email was incorrect. Luiz responded the following day that he still did not have access to the file. On November 21, Luiz requested that the file be mailed via U.S. Mail.
On December 5, after more back and forth, Luiz was finally emailed a decrypted PDF copy of the FAD. Luiz confirmed his receipt by email and asked for confirmation that his time to respond to the timelines triggered by the FAD began on December 5. Luiz filed the complaint on Asuncion’s behalf on March 3, 2023. That was 88 days after Luiz received the decrypted PDF and 115 days since the FAD was first dropped off into the DoD SAFE link.
The government moved to dismiss the complaint or, in the alternative, for summary judgment because Asuncion’s complaint was untimely as it was not filed within 90 days of receipt of the FAD. The district court agreed that the complaint was untimely and granted summary judgment. The court further denied Asuncion’s motion for reconsideration.
The 9th Circuit Court of Appeals reviewed de novo. The court first addressed whether Asuncion’s complaint was filed timely. The court held that claims brought under the Rehabilitation Act are governed by the same “remedies, procedures, and rights” applicable to Title VII employment discrimination claims brought by federal employees against federal defendants.
Under Title VII, civil actions brought by federal employees must be brought within 90 days of receipt of notice of final agency action. The court determined that when a document is electronically sent, the 90-day limitation period does not begin until the lawyer can realistically be held responsible for having access to the FAD and learning what the agency had decided.
Here, the court held that Luiz did not have effective notice of the nature of the agency’s final decision until December 5, the day he received by email a decrypted copy of the decision. Therefore, as he filed suit in the district court within 90 days of receiving the accessible FAD his complaint was timely. The court also held that, alternatively, Asuncion was entitled to equitable tolling as his lawyer was pursuing his rights diligently and because extraordinary circumstances stood in his way and prevented timely filing.