UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DIVA SAMAI,
Plaintiff,
v.
Civil Action No. 22-cv-943 (TSC)
MARKWAYNE MULLIN, et al.
Secretary of Homeland Security, 1
Defendants.
MEMORANDUM OPINION
Plaintiff Diva Samai, proceeding pro se, sued her former employer, XTec, and the
Department of Homeland Security (“DHS”), alleging race and gender discrimination and
retaliation under Title VII. Am. Compl. ¶¶ 69–86, ECF No. 12. Both Defendants moved to
dismiss. XTec Mot. to Dismiss (“XTec Mot.”) at 1–14, ECF No. 33-1; DHS Mot. to Dismiss
(“DHS Mot.”) at 1–18, ECF No. 39-1. The court granted XTec’s motion after determining that
Plaintiff’s Complaint was untimely under Title VII’s 90-day statute of limitations, denied DHS’s
motion as moot, and dismissed the case without prejudice. See Mem. Op. at 4–5, ECF No. 57;
Ord. at 1, ECF No. 58. Plaintiff now seeks leave to file a Motion for Relief from the Court’s Order
(“Pl.’s Mot.”), ECF Nos. 59-1–59-2. For the reasons below, the court will GRANT Plaintiff’s
Motion for Leave to File and DENY her Motion for Relief from Order.
1
The caption is updated to reflect the current Secretary of Homeland Security. Fed. R. Civ. P. 25(d).
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I. BACKGROUND
From June 2019 through January 2020, Plaintiff worked as an administrative executive
assistant in DHS’s Office of Chief Security Officer, National Security Services to fulfill a
government contract between her employer, XTec, and the agency. See generally Am. Compl.
Her duties included a range of administrative tasks: transcribing minutes from meetings, creating
presentations, and assisting with the onboarding and offboarding of personnel. Id. ¶ 12. According
to the Complaint, Plaintiff was the only African American woman in her DHS division and
experienced repeated instances of discrimination in the form of “repetitive questions regarding
assignments” by the Director, Michael Scott, and assignments that were inconsistent with a “21st
century administrative assistant.” Id. ¶¶ 21, 23, 28. Plaintiff also alleges that Scott “was quick to
point out flaws and failed to recognize” her accomplishments, demanded her input on an event in
the office then became upset with her over a minor task, and reprimanded her for not greeting him
in the hallway. Id. ¶¶ 24–26. Plaintiff alleges that when she raised these concerns to her
supervisor, Samantha East, she was “ridiculed rather than supported.” Id. ¶¶ 27–28.
Plaintiff was terminated from her position on January 16, 2020, and, in February 2020,
filed Equal Employment Opportunity (“EEO”) complaints against XTec 2 and DHS. Id. ¶¶ 29, 30;
see also Pl.’s Opp’n to XTec’s Mot. at 4, ECF No. 35. Soon thereafter, DHS allegedly “spoke illy
of Ms. Samai outside the context of a recommendation for a job.” Am. Compl. ¶ 85. On
September 3, 2020, the Equal Employment Opportunity Commission (“EEOC”) dismissed
Plaintiff’s charge because it was “unable to conclude that the information obtained established
2
As explained below, Plaintiff’s complaint named the wrong entity, but the charge and subsequent decision were nonetheless addressed and forwarded to XTec.
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violations of the statutes.” XTec Mot., Ex. 2 (“XTec Ex. 2”) at 2–3, ECF No. 33-1. 3 The EEOC’s
decision included a Notice of Right to Sue, informing Plaintiff that she had 90 days to file a lawsuit
under Title VII in federal district court. Id.; see also Pl.’s Mot. at 6.
Plaintiff filed this case against DHS on April 1, 2022, and, on August 9, 2022, amended
the Complaint to add XTec as a Defendant. See generally Am. Compl. DHS moved to dismiss
Plaintiff’s Complaint on October 15, 2022, which the court denied without prejudice. See Dec.
28, 2023 Min. Ord. DHS renewed its motion to dismiss on April 5, 2024. See generally DHS
Mot. XTec separately moved to dismiss on January 31, 2024, asserting, inter alia, that Plaintiff’s
Complaint was untimely. XTec Mot. at 7–9. On February 27, 2025, the court granted XTec’s
motion and dismissed Plaintiff’s case without prejudice for failure to sue within Title VII’s 90-day
window. See Mem. Op. at 4–5. In so doing, the court denied DHS’s motion as moot. Mem. Op.
at 5; Ord. at 1.
Nearly eight months later, on October 20, 2025, Plaintiff moved for leave to file a motion
for relief under Federal Rule of Civil Procedure 60(b) and requested the court equitably toll her
deadline to file suit. Pl.’s Mot. at 1. Since that time, Plaintiff has sought leave to file numerous
documents, including a supplemental request for equitable tolling, in which she largely re-alleges
her grounds for relief under Rule 60(b) and articulates her various efforts to seek legal advice.
Pl.’s Req. for Equitable Tolling, ECF No. 62. Plaintiff also seeks leave to file notices of exhibits,
which detail her correspondence with the EEOC and a law school clinic, ECF No. 63; an automated
response message from the EEOC’s online support center, ECF No. 64; screenshots from
Plaintiff’s inquiries on Justanswer.com, ECF No. 65; another automated response message from
3
Plaintiff’s EEO proceedings are matters of public record, of which the court may take judicial notice. See Vasser v. McDonald, 228 F. Supp. 3d 1, 9–11 (D.D.C. 2016) (collecting cases).
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the EEOC’s online support center, the D.C. Commission on Judicial Disabilities and Tenure’s
dismissal of Plaintiff’s complaint against a Superior Court judge, and several returns of nonservice, ECF No. 66; and emails from her prior attorney explaining why her Superior Court case
was dismissed, ECF No. 67. 4
II. LEGAL STANDARD
Under Rule 60(b), a court may “relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of six enumerated reasons, including “mistake,
inadvertence, surprise, or excusable neglect,” “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule 59(b),” and
“fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b)(1)–(3). All motions for relief from a judgment under Rule
60(b) “must be made within a reasonable time,” and for reasons established in Rule 60(b)(1)–(3),
no more than a year after the court’s entry of the operative order or judgment. Fed. R. Civ. P.
60(c)(1). Courts are “vested with a large measure of discretion” in ruling on Rule 60(b) motions.
Owens v. Republic of Sudan, 864 F.3d 751, 818 (D.C. Cir. 2017) (cleaned up).
Pro se litigants are “allowed more latitude than litigants represented by counsel,” which
includes applying less stringent standards to their pleadings. Moore v. Agency for Int’l. Dev., 994
F.2d 874, 876 (D.C. Cir. 1993). Nonetheless, pro se litigants must abide by the Federal Rules of
Civil Procedure, id., and courts must strike a “‘delicate balance between the sanctity of final
judgments . . . and the incessant command of a court’s conscience that justice be done in light of
4
The court will GRANT Plaintiff leave to file her supplemental request for equitable tolling, ECF No. 62, and considers the arguments made therein. Because Plaintiff’s remaining submissions are largely duplicative of that request and otherwise irrelevant to the court’s analysis of the pending motion, Plaintiff’s other requests for leave to file, ECF Nos. 63, 64, 65, 66, 67, will be DENIED.
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all the facts,’” Owens, 864 F.3d at 818 (quoting Good Luck Nursing Home, Inc. v. Harris, 636
F.2d 572, 577 (D.C. Cir. 1980)).
III. ANALYSIS
Plaintiff asks the court for relief from its Order dismissing her case in light of “mistake,
inadvertence, surprise, or excusable neglect, such as newly discovered evidence that could not
have been found earlier with reasonable diligence, fraud, misrepresentation, misconduct and
timing.” Pl.’s Mot. at 10 (citing Fed. R. Civ. P. 60(b)(1)–(3)); see also Pl.’s Reply in Supp. of
Mot. for Relief (“Pl.’s Reply”) at 3, ECF No. 61 (citing Rule 60(b)(6)). The crux of Plaintiff’s
motion, however, focuses on purported “deliberate misinformation” she received from former
attorney, Mattew Famiglietti, and XTec’s prior counsel, Eduardo Rasco, which “led [her] to
believe the Notice of Right to Sue was not valid because the notice was addressed to another
company thus filing suit was null and void.” Pl.’s Mot. at 1; id. at 4 (“I acknowledge the deadline
to file suit has passed[,] but it was because I was misinformed by my former counsel and XTec”);
see also Pl.’s Reply at 2–3. In light of these representations, Plaintiff asks the court to reopen her
case and equitably toll her deadline to file suit under Title VII. Pl.’s Mot. at 11–12. Because
Plaintiff has failed to establish any grounds for relief under Rule 60(b), the court declines to do so.
The court notes that it has already decided, and rejected, some of Plaintiff’s arguments
regarding why she did not file her Complaint within Title VII’s limitations period. See Mem. Op.
at 4–5. It is well established that motions for reconsideration are not an opportunity “to reargue
facts and theories upon which a court has already ruled.” Black v. Tomlinson, 235 F.R.D. 532,
533 (D.D.C. 2006) (cleaned up). Yet in her opposition to XTec’s motion to dismiss, Plaintiff
asserted that she “missed the deadline to file a lawsuit” because her former counsel “wanted to sue
both XTec and DHS on the DHS EEO report,” but “[w]hen Plaintiff received the report from the
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agency[,] the deadline had passed.” Pl.’s Opp’n to XTec’s Mot. at 6; see also Pl.’s Mot. at 7. As
the court previously explained, however, “[c]ourts ‘apply Title VII’s statute of limitations strictly’
and will dismiss Title VII lawsuits for even ‘minor tardiness.’” Mem. Op. at 4 (quoting Able v.
Washington Metro. Area Transit Auth., No. 18-cv-1372, 2023 WL 2733680, at *3 (D.D.C. Mar.
31, 2023) (collecting cases)). The court went on to observe that Plaintiff’s Complaint came “nearly
500 days after the Commission’s deadline,” Mem. Op. at 5, because Plaintiff made the decision to
“initiate[] two other claims in separate forums rather than heed the Commission’s directive.” Id.
at 4. To the extent Plaintiff attempts to reassert her argument as a basis for equitable tolling, see
Pl.’s Mot. at 7, the court will not revisit its prior determination. And, in any event, “tactical
mistakes” are not grounds for extending a deadline to file suit. Nelson v. SEC, 138 F.4th 514, 523
(D.C. Cir. 2025) (cleaned up). 5
As for Plaintiff’s new claims regarding the allegedly misleading legal advice she received
from her prior attorney and counsel for XTec, Plaintiff has failed to sufficiently explain why she
did not advance these theories in her original pleadings. “Rule 60(b) is not ‘a vehicle for presenting
theories or arguments that could have been raised previously.’” Walsh v. Hagee, 10 F. Supp. 3d
15, 19 (D.D.C. 2013) (quoting Fund for Animals v. Williams, 311 F. Supp. 2d 1, 5 (D.D.C. 2004)).
Although Plaintiff suggests that she “had the revelation later” that she “could use emails and the
correspondence letter to show [she] lacked knowledge and was misled by the Defendant,” Pl.’s
Mot. at 10 (emphasis added), this “revelation” does not explain why she did not press her
5
Nor does Plaintiff’s initiation of litigation against XTec in other forums mandate equitable tolling. See Williams v. Perdue, 613 F. Supp. 3d 437, 451–53 (D.D.C. 2020), aff’d, No. 20-5133, 2020 WL 9595288 (D.C. Cir. Nov. 23, 2020); Brookens v. Acosta, 297 F. Supp. 3d 40, 50–51 (D.D.C. 2018), aff’d, No. 18-5129, 2018 WL 5118489 (D.C. Cir. Sept. 19, 2018).
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arguments in the underlying proceedings. Plaintiff’s failure to do so is independently fatal to her
motion. See Walsh, 10 F. Supp. 3d at 19.
Moreover, to the extent Plaintiff claims that she discovered new evidence of attorney
misconduct after her case was dismissed, Pl.’s Mot. at 1, 10, she does not (and cannot) explain
how the evidence she now proffers was undiscoverable through even minor diligence at the time
she filed her opposition to XTec’s motion to dismiss, see Duckworth v. United States, 808 F. Supp.
2d 210, 216 (D.D.C. 2011) (explaining that a party seeking relief under Rule 60(b)(2) must show
they were “justifiably ignorant of the evidence despite due diligence”), which put Plaintiff on
notice that the timing of her Complaint might be problematic. See XTec Mot. at 7–9. Indeed,
Plaintiff acknowledged that her Complaint was untimely in her briefing, see Pl.’s Opp’n to XTec’s
Mot. at 5–6, and her own submissions show that she received a copy of the now-critical email
exchange between her former attorney and counsel for XTec in November 2020. Pl.’s Mot. at 7;
Pl.’s Ex. 2 at 4–5, ECF No. 59-4. In addition, Plaintiff’s reliance on Rule 60(b)(3)’s provision for
misleading conduct by an opposing party is misplaced. “Rule 60(b)(3) is concerned with fraud
perpetrated in the course of litigation,” In re Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867, 875
(D.C. Cir. 2014) (cleaned up), “not misconduct that preceded the litigation, which provided—or
might have provided—a basis for seeking relief in the litigation,” Peltier v. Haaland, No. 20-cv3775, 2023 WL 12007545, at *5 (D.D.C. Aug. 29, 2023).
Finally, even assuming Plaintiff could demonstrate valid grounds for failing to raise her
arguments and accompanying evidence in the original proceedings, she has failed establish any
basis for the court to grant her requested equitable relief. As the D.C. Circuit has repeatedly
explained, equitable tolling is “exercised only in extraordinary and carefully circumscribed
instances,” Smith-Haynie v. District of Columbia, 155 F.3d 575, 579–80 (D.C. Cir. 1998) (cleaned
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up), and a plaintiff must demonstrate “(1) that [she] has been pursuing [her] rights diligently, and
(2) that some extraordinary circumstance stood in [her] way and prevented timely filing,” Holland
v. Florida, 560 U.S. 631, 649 (2010) (cleaned up). Such extraordinary circumstances include
“where a claimant has received inadequate notice” or “where affirmative misconduct on the part
of a defendant lulled the plaintiff into inaction.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057
(D.C. Cir. 1988) (cleaned up). Under the related doctrine of equitable estoppel, “defendants are
prevented from utilizing a statute of limitations defense when they affirmatively misled plaintiffs
leading to the untimely filing.” Nelson v. Blinken, No. 18-cv-1880, 2024 WL 3985365, at *4
(D.D.C. Aug. 29, 2024).
Turning first to XTec’s purported intentional misrepresentations, Plaintiff states that on
November 5, 2020, Rasco responded to an email from Famiglietti regarding a proposed settlement.
Pl.’s Mot. at 7. In that email, Rasco asserted that Plaintiff’s attached Notice of Right to Sue was
“against a different company,” and asked Famiglietti “what [his] theory is regarding XTec’s
liability.” Id.; Pl.’s Mot., Ex. 2 at 1–3, ECF No. 59-4. 6 According to Plaintiff, this was an attempt
to “deliberately trick and sabotage [Plaintiff’s] efforts from filing.” Pl.’s Mot. at 11. While it is
true that individuals not named in an EEOC charge may still be sued if “they have been given
actual notice of the EEOC proceeding or have an identity of interest with the party or parties sued
before the EEOC,” Clay v. Howard Univ., 82 F. Supp. 3d 426, 433–34 (D.D.C. 2015) (cleaned
up), nothing in Rasco’s correspondence rises to the level of “affirmative misconduct” required to
preclude XTec from raising a limitations defense or equitably toll Plaintiff’s deadline, Mondy, 845
F.2d at 1057; Nelson, 2024 WL 3985365, at *4.
6
Later, in these proceedings, XTec’s current counsel averred that “Ms. Samai incorrectly called the company ‘Authentic Technologies’ in her complaint, but the matter was addressed and forwarded to XTec.” See XTec Ex. 2 at 1, ECF No. 33-1.
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Nor do Plaintiff’s allegations regarding Famiglietti’s purportedly misleading legal advice
warrant equitable tolling. Plaintiff’s own submissions show that Famiglietti acted with diligence
in making further inquiries regarding the defendant named in Plaintiff’s EEOC charge. See Pl.’s
Mot. at 7; Pl.’s Ex. 2 at 4–5. After Plaintiff “mistakenly confirmed” that her charge named
Authentic Technologies, Pl.’s Mot. at 8, Famiglietti simply advised Plaintiff “that if the wrong
employer’s name and address had been on the [Notice] the suit would be dismissed” and
“expressed concerns” regarding Plaintiff’s deadline for filing a lawsuit. Id. (emphasis added).
Famiglietti then advised Plaintiff to contact the EEOC to amend her charge, id., and, when the
EEOC stated it could not do so, recommended Plaintiff file a new charge with the DC Office of
Human Rights, id. at 9. Notably, nothing in Plaintiff’s motion suggests that Famiglietti provided
erroneous legal advice, and even if his advice was less than sound, “the circumstances that caused
a litigant’s delay must have been beyond [their] control,” Menominee Indian Tribe of Wis. v.
United States, 764 F.3d 51, 58 (D.C. Cir. 2014) (cleaned up). Famiglietti’s candid representations
regarding Plaintiff’s likelihood of success, however, did not prevent her from filing a timely
Complaint. If anything, his stated concern regarding Plaintiff’s impending deadline to sue was yet
another warning that her right to sue would soon expire. Plaintiff was thus “told three 7 times what
she must do to preserve her claim, and she did not do it.” Baldwin Cnty. Welcome Ctr. v. Brown,
466 U.S. 147, 151 (1984).
In the end, Plaintiff’s claims regarding Rasco’s representations and Famiglietti’s legal
counsel boil down to a request to equitably toll her deadline in light of her pro se status and her
misunderstanding of the legal consequences flowing from the defects in her EEOC charge. See
7
Plaintiff’s own exhibits show that, in addition to the Notice of Right to Sue itself, the EEOC informed her that “[t]he notice of right to sue time period cannot be extended.” Pl.’s Mot., Ex. 1 at 1–2, ECF No. 59-4.
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Pl.’s Mot. at 10–11, Pl.’s Reply at 2–3; Pl.’s Req. for Equitable Tolling at 1–3. But equitable
tolling is not appropriate if “the circumstance that stood in a litigant’s way [is] a product of that
litigant’s own misunderstanding of the law.” Nelson, 138 F.4th at 523. And “[a]lthough it is true
that courts liberally construe pro se filings, a case in which a plaintiff fails to meet a statutory
deadline but attributes it to her pro se status is not one in which a court should toll the statute of
limitations.” Ferguson v. Loc. 689, Amalgamated Transit Union, 626 F. Supp. 2d 55, 61 n.2
(D.D.C. 2009) (citation omitted); see also Baldwin Cnty. Welcome Ctr., 466 U.S. at 152
(“Procedural requirements established by Congress for gaining access to the federal courts are not
to be disregarded by courts out of a vague sympathy for particular litigants.”).
In sum, Plaintiff’s motion fails to establish any grounds for relief under Rule 60(b) or any
basis to equitably toll her deadline to file suit. As a result, the court declines to disturb its prior
decision and accompanying Order dismissing her claims.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT Plaintiff’s Motion for Leave to File, ECF
No. 59, and DENY her Motion for Relief from the court’s Order, ECF No. 59-1. 8 A corresponding
Order will follow.
Date: August 6, 2026
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
8
Plaintiff’s supplemental Request for Equitable Tolling, ECF No. 62, is consequently DENIED
as moot.
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