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SPEISER v. U.S. HHS

June 18, 1986

Judith N. Speiser, Plaintiff,
v.
U.S. Department Of Health And Human Services, et al., Defendants


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

Plaintiff Judith Speiser, an attorney formerly employed by the U.S. Department of Health and Human Services (the Department), brings this action against the Department under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Plaintiff claims that the defendant discriminated against her because of her mental illness in violation of the Rehabilitation Act of 1973 by harassing and intimidating her and eventually causing her constructive discharge. Pending before the Court is defendant's motion to dismiss or for summary judgment on the grounds that plaintiff failed to exhaust her administrative remedies in a timely manner. More specifically, defendant's motion raises the issue of whether the plaintiff's claim of mental illness and the circumstances surrounding her five and one-half month delay in filing her discrimination complaint mandate equitable tolling of the 30 day period for lodging a discrimination complaint required by 29 C.F.R. § 1613.214(a)(1)(i). For the reasons stated herein, the Court finds that the circumstances do not require equitable tolling, and therefore grants defendant's motion for summary judgment on the grounds that plaintiff failed to exhaust administrative remedies within the requisite period of time.

 I

 The following facts are undisputed. Plaintiff was employed as an attorney in the General Counsel's office of the U.S. Department of Health and Human Services from November 1981 until February 24, 1984. On February 10, 1984, plaintiff received a letter from her supervisor stating that she would be terminated effective February 24, 1984. On the same day, February 10, 1984, plaintiff, advised by her attorney, Joseph D. Gebhardt, reached an agreement with plaintiff's supervisor that the Department would withdraw her termination and expunge her unsatisfactory 1983 annual performance appraisal in exchange for plaintiff's resignation from the Department. *fn1" Plaintiff submitted her letter of resignation on February 15, 1984, to be effective February 24, 1984.

 Plaintiff and her attorney met with the General Counsel and Deputy General Counsel of the Department on February 24, 1984. On the same day, plaintiff delivered a letter to the General Counsel's office which requested additional benefits and an investigation into the conduct of plaintiff's supervisor. *fn2" The letter referred to the resignation agreement between plaintiff and her supervisor, and stated that plaintiff had decided that it would be in the best interests of her future career to resign with a clean record rather than pursue her claim of discrimination. The letter was accompanied by a memorandum which described in detail the basis for plaintiff's discrimination claim, although the letter also stated that Ms. Speiser did not plan "to contest her departure." *fn3" The General Counsel responded to the February 24, 1984 letter on March 22, 1984, when he informed plaintiff that the General Counsel's office would take no further action.

 Meanwhile, plaintiff's mental disorder became aggravated, leading to a series of intermittent hospitalizations for treatment. Plaintiff was hospitalized five times for a total of 65 days in the months following her resignation. *fn4"

 On August 10, 1984, five and one-half months after plaintiff's resignation, her attorney submitted an informal discrimination complaint to an Equal Employment Opportunity officer, along with a letter requesting an extension of time to file the complaint. Following the EEO counselor's issuance of a final report, plaintiff filed a formal administrative complaint. The Department, however, rejected the complaint as untimely. The Equal Employment Opportunity Commission affirmed the Department's decision on June 26, 1985. Plaintiff then filed this action.

 II

 Plaintiff brings her claim pursuant to the Rehabilitation Act of 1973 (the Act), as amended, 29 U.S.C. § 701 et seq., which prohibits employment discrimination against handicapped individuals. A federal employee seeking relief under the Act must exhaust administrative remedies before bringing a civil suit alleging discrimination on the basis of a handicap. *fn5" Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524 (D.C. Cir. 1983); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).

 The regulations setting forth the procedures for seeking administrative relief in Rehabilitation Act cases provide that an aggrieved person may not file a formal administrative complaint until he has "brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of its effective date." 29 C.F.R. § 1613.214(a)(1)(i). The regulations also provide that:

 
The agency shall extend the time limits in this section: (1) when the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits ; . . .

 29 C.F.R. § 1613.214(a)(4).

 The primary issue before the Court in defendant's motion *fn6" is whether plaintiff was "prevented by circumstances beyond [her] control from submitting the matter" to an EEO counselor within 30 days, thus entitling her to an extension of the 30 day time period. *fn7" Plaintiff argues that she is entitled to an extension, or equitable tolling, of the 30 days because she was mentally incapacitated from the date of her resignation until shortly before she contacted an EEO counselor. She claims that her incapacitation constitutes "circumstances beyond her control" which prevented her from filing her EEO complaint in a timely fashion.

 Viewing the circumstances of plaintiff's case as a whole, the Court concludes that an extension of the 30 day requirement is not warranted. In reaching this conclusion, the Court is mindful that the various time limits imposed for instituting discrimination complaints at the agency level represent "a balance between fairness to the claimant and the importance of beginning the administrative process of ...


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