The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for a ruling on Defendant's Motion for Summary Judgment (#38). This court has carefully considered the arguments and documentation submitted by both parties. Following this careful and thorough review, Defendant's Motion for Summary Judgment is GRANTED.
John Paul Jenkins (Jenkins) alleges that from July 2006 until approximately November 20, 2007, a female employee at the Danville VA Hospital sexually harassed him. Pursuant to these allegations, Jenkins filed an Equal Employment Opportunity (EEO) administrative complaint that was decided on June 18, 2008. Jenkins received delivery of the agency's final decision on June 23, 2008 via the United States Postal Service. The final two pages of that decision (pages 15 and 16) clearly advised Jenkins that he had a right to file a civil action in the United States District Court, but that he must file the suit within 90 days of his receipt of the decision.
Prior to receiving the final agency decision, Jenkins had commenced a separate suit against Eric Ken Shinseki and the Department of Veterans Affairs (Defendant) on December 12, 2007. On August 6, 2008, Jenkins filed a motion in that case seeking to amend his district court complaint by adding the issues now raised in this case. That motion was denied on August 19, 2008.
Jenkins filed the present Title VII action on October 23, 2008, 122 days after receipt of the final agency decision.
In the instant case, Jenkins has not properly disputed any of the material facts submitted by Defendant that might affect the outcome of the suit under the governing law, particularly Defendant's facts 1-14. Jenkins' response was rambling and did not address any of the facts or arguments made by the government relating to the time limitation to file suit. Therefore, all of Defendant's statements of facts relevant to this decision are deemed admitted.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The summary judgment stage is the "put up or shut up" moment in a lawsuit. Johnson v. Cambridge Ind. Inc., 325 F.3d 892, 901 (7th Cir. 2003). The burden is on the moving party to provide proper documentary evidence to show the absence of a genuine issue of material fact. Schmidt v. Runyon, et al., 20 F.Supp.2d 1246, 1248 (C.D.Ill. 1998). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249.
In determining if a genuine issue of material fact exists, the court is to believe the evidence of the non-movant and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, citing Adikes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). However, "(t)he mere existence of an alleged factual dispute will not defeat a summary judgment motion; instead, the non-movant must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
A civil action filed by an employee against the federal government must be filed "within 90 days of receipt of notice of final action taken by a department, agency, or unit." 42 U.S.C. §2000e-16(c). The Supreme Court has stated that 42 U.S.C. §2000e-16(c) must be "strictly construed." Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 94 (1990).
Similar to lawsuits filed against private employers under Title VII, a timely filing of a Title VII suit against a federal employer may be subject to equitable tolling. Irwin, 498 U.S. at 95-96. However, a litigant seeking equitable tolling bears the burden of establishing: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary ...