The opinion of the court was delivered by: HARRIS
Before the Court are defendant's motion to dismiss or, in the alternative, for summary judgment, and plaintiff's opposition thereto. Upon consideration of the entire record, the Court grants defendant's motion to dismiss in part, and grants summary judgment on the remaining claims. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the Court nevertheless sets forth its reasoning.
Plaintiff, a black male who is mentally handicapped, has worked as a mail clerk at the Department of Health and Human Services ("HHS") since 1982.
Plaintiff was hired for a mail clerk position pursuant to a Schedule A Executive Appointment, following certification of his qualification for such an appointment as a mentally handicapped person.
Initially hired as a GS-2 Mail Clerk, plaintiff was promoted to the GS-3 level in 1987, in which position he currently remains.
On November 16, 1993, plaintiff informed HHS that he was receiving ongoing medical treatment for back injuries that he sustained in an automobile accident on July 13, 1993. Because he had exhausted all of his sick leave, plaintiff requested one week of advanced sick leave. HHS allegedly granted this request, as well as similar requests that plaintiff subsequently made.
Plaintiff also informed HHS that, as a result of his injuries, he was unable to walk long distances, and thus required handicapped parking. HHS provided plaintiff with a temporary handicapped parking permit that was valid from January 1 to January 14, 1994, and from February 1 to February 11, 1994. Plaintiff did not receive an extension of this permit because, according to HHS, he was not eligible for one pursuant to the agency's parking policy. However, HHS informed plaintiff that he could apply for accommodation as a member of a carpool. Plaintiff submitted a carpool application, but HHS returned it because it lacked the required signatures of carpool members.
In March 1994, plaintiff submitted a request to his supervisor, Cappelli Burless, for an upgrade to the GS-4 level. Pursuant to Burless's request, plaintiff submitted a written description of the work he performed that supposedly would entitle him to a promotion. After reviewing plaintiff's statement in conjunction with position descriptions for GS-3 and GS-4 Mail Clerks, Burless concluded that plaintiff was not performing the work of a GS-4 clerk; rather, he was "just barely" performing that of a GS-3 clerk. Def.'s Mot. To Dismiss, Ex. 19.
On April 5, 1994, plaintiff contacted an Equal Employment Opportunity ("EEO") counselor at HHS. Plaintiff alleged that he was discriminated against on the basis of his race and sarcoidosis, an illness from which he allegedly suffered.
Unsatisfied with the counselor's subsequent proposals, plaintiff filed a formal administrative complaint with HHS on August 10, 1994. Specifically, plaintiff alleged six acts of discrimination by the agency: (1) on November 16, 1993, plaintiff requested, but was denied, advanced leave; (2) plaintiff received no response to his February 2, 1994, requests for permission to receive phone calls at the office and for removal of boxes from his working area; (3) on February 15, 1994, HHS did not grant an extension of his temporary parking permit; (4) on March 15, 1994, management officials called plaintiff "boy"; (5) on April 4, 1994, plaintiff was denied a promotion to a GS-4 Mail Clerk; and (6) on April 7, 1994, Gail Atkins, a contract employee in plaintiff's office, "discussed how he worked on his work assignments and his handicap code with him."
Def.'s Mot. To Dismiss, Ex. 22. In July 1995, the EEO completed its investigation of the allegations in plaintiff's administrative complaint and provided him with a copy of its report.
On October 2, 1995, plaintiff filed the instant action. His amended complaint invokes the Court's jurisdiction under the Rehabilitation Act, 29 U.S.C. § 791 et seq., and the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 ("Title VII"), and alleges that plaintiff "has been denied terms and conditions of employment based upon his race and handicap." Compl. P 3, at 2. Plaintiff's claims are particularly difficult to comprehend because his complaint does not allege specific acts of discrimination, but rather makes very general allegations. The Court accordingly assumes that plaintiff means to allege the same six acts of discrimination here that he alleged in his administrative complaint.
The Court analyzes each of these six claims in turn. For the reasons set forth below, the Court dismisses plaintiff's first three claims, and grants defendant's motion for summary judgment as to the remaining claims.
As noted above, plaintiff's first three claims allege discrimination arising from three different events: (1) the alleged November 16, 1993, denial of his request for advanced leave; (2) the failure to respond to his February 2, 1994, requests for permission to receive phone calls at the office and to have boxes removed from his work area; and (3) the February 15, 1994, denial of an extended temporary parking permit. Defendant contends that plaintiff's claims are barred because he failed to adhere to the applicable administrative time limits. The Court agrees.
A plaintiff who wishes to institute a civil action against a federal agency for employment discrimination under Title VII and the Rehabilitation Act must first exhaust his administrative remedies. See 42 U.S.C. § 2000e-16(c); United Air Lines v. Evans, 431 U.S. 553, 555, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); 29 U.S.C. § 794a(a)(1) (procedures for Title VII claims applicable to claims under Rehabilitation Act); Kien v. United States, 749 F. Supp. 286, 289 (D.D.C. 1990), aff'd, 1991 WL 226742 (D.C. Cir. Oct. 22, 1991) (Title VII requirement of exhausting administrative remedies applies to claims under Rehabilitation Act). As a general rule, non-compliance with administrative deadlines will bar a plaintiff from litigating his claims in court. Brown v. Marsh, 250 U.S. App. D.C. 8, 777 F.2d 8, 13 (D.C. Cir. 1985). Before filing a formal complaint, an individual alleging discrimination under Title VII and the Rehabilitation Act must try to resolve the matter "informally" by contacting an EEO counselor within 45 days of the date on which the alleged discrimination occurred. 29 C.F.R. § 1614.105 (1997).
The 45-day time requirement is not jurisdictional, but rather operates "like a statute of limitations, [which] is subject to waiver, estoppel, and equitable tolling." Saltz v. Lehman, 217 U.S. App. D.C. 354, 672 F.2d 207, 208 (D.C. Cir. 1982) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982)); accord 29 C.F.R. § 1614.604(c). Nevertheless, a plaintiff "bears the burden of pleading and proving in the district court 'equitable reasons' for non-compliance with the  day requirement." Bayer v. United States Dep't of Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330, 333 (D.C. Cir. 1992) (quoting Saltz, 672 F.2d at 209).
Plaintiff's first three claims are time-barred because plaintiff did not contact an EEO counselor within 45 days of the allegedly discriminatory actions and plaintiff has not given any equitable reasons for his non-compliance. The latest event that forms the basis of one of plaintiff's first three claims occurred on February 15, 1994, when HHS denied plaintiff an extension of his temporary parking permit. However, plaintiff did not contact the EEO counselor regarding any of these three alleged incidents of discrimination until April 5, 1994, over 45 days after they had occurred.
Thus, plaintiff's first three claims are untimely.
Moreover, plaintiff has not advanced any "equitable reasons," either in his complaint or his opposition to defendant's motion, for his failure to comply with this deadline. For example, plaintiff has ...