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9 OCAHO no. 1111

1999 WL 1893876 at *4-5; Soto at *5. Equitable tolling does not extend to the “garden variety of excusable neglect.” Soto at *5 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)) (holding that complainant did not toll the running of the 90-day period by contacting OSC to inquire as to whether they would reopen the case on the basis of a gratuitous document forwarded to them by complainant). In addition, the Ninth Circuit has applied equitable tolling sparingly. See, e.g., Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir. 1998). The party filing the complaint bears the burden of proving that equitable tolling is appropriate. Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1218 (9th Cir. 1980) (internal citation omitted). Moreover, equitable tolling is not available to avoid the consequences of a plaintiff’s own negligence, Lehman at 1016, and the plaintiff’s own ignorance of the law will usually not justify equitable tolling. See Williamson v. Hubbard, 27 Fed.Appx. 733, 736, 2001 WL 1174037, *3 (9th Cir. 2001) (not selected for publication in the Federal Reporter). As the Ninth Circuit has stated, “Courts have been generally unforgiving [] when a late filing is due to

[the] claimant’s failure to exercise due diligence in preserving his legal rights.” Scholar v. Pacific Bell, 963 F.2d 264, 267-268 (9th Cir. 1992) (internal quotation omitted) (Title VII case).

In this case, Complainant filed her Charge with OSC on December 3, 2003, RX-H (Charge); RX-L at 1 (Complaint), and OSC informed her by letter, dated April 2, 2004, that it would not prosecute the case. RX-I (Right-to-Sue Letter). The right-to-sue letter clearly and unambiguously stated that Seaver had 90 days from the date of her receipt of the letter to file a charge with OCAHO, and provided her with OCAHO’s mailing address. Id. Complainant admitted during the prehearing conference that she received the right-to-sue letter sometime in April of 2004. PHC Tr. 16. Moreover, the return receipt card and United States Postal Service tracking report from OSC, filed by Respondent on November 12, 2004, show that Complainant received the letter on April 6, 2004. Since Complainant received this right-to-sue letter on April 6, 2004, and July 5, 2004 was an observed federal holiday, she had until July 6, 2004 to file a complaint with OCAHO. See 8 U.S.C. 1324(d)(2); 28 C.F.R. §§ 68.4(c) and 68.8(a) (2004). Complainant did not file her Complaint with OCAHO until August 31, 2004, almost two months late. Therefore, I find that Complainant’s Complaint is untimely.

I also conclude that the doctrine of equitable tolling does not apply in this case. The right-to- sue letter from OSC clearly informed Complainant that she had 90 days from her receipt of the letter to file a complaint with OCAHO and explicitly provided the address for filing. Additionally, the language of 8 U.S.C. § 1324b(d)(2) and 28 C.F.R. § 68.4(c) explicitly sets forth this 90-day filing deadline. During the prehearing conference, Complainant admitted her awareness of the 90-day deadline and stated that she missed the deadline because she was preoccupied by working and caring for her children, and she was unable to retain legal counsel. PHC Tr. 16-19. Thus, I find that Complainant knew that the 90-day limitations period was running, and that she had to file her Complaint with OCAHO on or before July 6, 2004. See Scholar, supra, at 267-268. Complainant has not argued that equitable tolling should apply, and in any event, there is no basis for applying that doctrine in this case. See Soto, supra, at *5 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)); Lehman, supra, at 1016. Therefore, no genuine issues of material fact remain with


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